author: Moore, J.

text:
    McBRIDE v. SCOTT.

    1. Negligence — Personal Injuries — Falling Building — Declaration —Demurrer.'

      A declaration in an action for injuries received by the collapse of a building alleged to have been caused by defendants’ negligence, which states that many persons were killed and wounded, among whom was the plaintiff, but which contains other allegations stating that he was injured, is not subject to demurrer as showing that plaintiff is dead.
    2. Same — Proprietors—Several Interests.
    A declaration in an action for injuries received by the collapse of a building alleged to have been caused by defendants’ negligence, which shows that several of the defendants owned the property, and attempted to erect a building thereon, and the collapse of the structure, is not subject to demurrer because it does not show the respective interests of such defendants.

      3. Same — Joint Liability.
    The owner of property who contracts for the construction of an obviously defective and dangerous building, the architect thereof, and the various contractors who participate in the defective work may be made joint defendants in an action for injuries received by the collapse of the building.

    Error to .Wayne; Erazer, J.
    Submitted October 5, 1900.
    Decided January 29, 1901.
    Case by Joseph McBride against John Scott, Arthur M. Scott, and Maxwell H. Grills, doing business as John Scott & Co., James H. Moore, Enoch W. Wiggins, Alexander Chapoton, and James M. Wood, impleaded ' with others, for injuries received by the collapse of a building. Erom a judgment for defendants on demurrer to the declaration, plaintiff brings error.
    Reversed.

      S. E. Engle, for appellant.

      Earl D. Bábst and Otto Kirchner, for appellees John Scott & Co.

      Brennan, Donnelly & Van De Mark, for the other above-named appellees.

         Rehearing denied April 30, 1901.

       As to individual liability for falling walls or buildings, ses note to Ryder v. Kinsey, (Minn.) 34 L. R. A. 557.

   Moore, J.

The plaintiff commenced suit against defendants by declaration. Some of the defendants pleaded thereto. Others of them demurred to the declaration. The circuit judge sustained the demurrer. The case is brought here for review by the plaintiff. The declaration-is very long. We insert here only a portion of it, but enough to answer the purposes of the inquiries involved:

Joseph McBride, the plaintiff herein, by Seth E. Engle, his attorney, complains of James H. Moore, John Scott, Arthur. M. Scott, Maxwell H. Grills (the last three doing business under the style John Scott & Co.), Enoch W. Wiggins, Col. J. M. Wood, Richard J. Thompson, Geo. O. Muhlfeld, Alphonse De Man, and Florimond De Man (the last two copartners as De Man Bros ), William Reich, Alexander Chapoton, Edward Schmitt, Clara S. Scherer, and the Peninsular Engineering Co., a corporation existing under the laws of, and doing business in, Michigan, having its office in the city of Detroit, and J. C. Dantziger, -A. A. Cowles, E. A. Goodrich, and William Gerhauser, members of said corporation, in an action of trespass on the case, filing this declaration and entering a rule to plead as commencement of suit.
“For that whereas, heretofore, to wit, before the 5th of November, 1898, the date of the culmination of the grievances hereinafter complained of, there was and had been in the city of Detroit, on Monroe avenue, near Campus Martius, a parcel of ground in which said James H. Moore, and Enoch W. Wiggins, as his agent and manager and attorney in fact, had a proprietary interest, to wit, the ownership by land contract, or of a term of years therein, or otherwise, and the said Edward Schmitt and Clara S. Scherer had also a proprietary interest, to wit, the ownership of the fee thereof beyond the contract or term of years or otherwiseand that the said James H. Moore, and his agent, said Wiggins, under a power of attorney, with the consent and concurrence of said Schmitt and Scherer, for expected revenues and profits to be derived therefrom to themselves respectively, proposed to erect upon said property a building for amusement purposes, including a theater with a large stage and auditorium, the roof over which stage and auditorium should be supported by material extending in a span from wall to wall, across the auditorium and stage, from side to side transversely over the path of the entrance from Monroe avenue; the entire building, including the roof, to be fireproof; the roof to be of great height from the ground, to wit, about pr upwards of 100 feet, and the span of the supports to be very long, to wit, about 73 feet; the trusses bridging said span, and the very high trestlework frame, to wit, of about 100 feet from the ground, resting upon the trusses and extending up to and supporting the roof, and the framework of the roof itself, all to be composed of steel, and the panels of the roof frame to be filled with some kind of suitable concrete, cement, and the like, the surface extending sufficiently above the steel framework to make a connected, continuous, smooth-surface cement roof, to be covered with an ordinary tar and gravel roofing; said trusses so spanning the building, and supporting the entire steel-frame trestlework above them, together with the roof resting thereupon, to have no supports underneath except by said brick side walls, respectively, at each end of the trusses.
“ The danger arising from such a building, both when completed and while in the course of construction, is, was, and must have been, to competent artisans, obvious, unless planned and executed with great skill, care_, and experience in that kind of construction, it not being a building of steel framework from the foundation up, but, instead thereof, merely brick walls, which walls alone were to support at a great height, to wit, of 80 to 90 feet, the whole of said high, tall, steel construction, together with the ceiling and fixtures attached beneath, and the roof upon the top. It was and must have been evident to competent architects and engineers that such walls required the utmost strength, firmness, durability, and perfect adaptability in order to support, at so great a height, the adequate and necessary steel work for the purpose aforesaid; and it was and must have been in like manner obvious that- the said extensive and tall steel trusses and trestlework, so resting upon mere walls at such height, inquired such strength, adaptation, rigidity, and firmness as to rest and remain quiescent upon the walls supporting it, as well as to safely sustain at the same time, in a like quiescent state, the great weight, not only of the roof, together with the framework itself, but such increment of load as might arise from other causes,- — as the elements, falling snow, etc.; and that, unless said walls and said steel work and roofing were of proper material, dimensions, construction, and workmanship, it was obvious that great danger would and must impend over those who might occupy the building when completed, or who might be engaged on or about the premises during its construction, by reason of inevitable tendency to topple, sway, bend, twist, and warp out of alignment, out of plumb, and from proper bearings and position, resulting in total collapse.
“In the course of the construction of said building, heretofore, to wit, on the 5th day of November, 1898, the roof being just nearly or quite completed, the roof and walls and the steel framework collapsed and fell all together in a mass of debris, wounding and killing many engaged thereon and about the premises, among whom was the plaintiff, receiving the injuries hereinafter set forth. * * *
“Third Count. And for that whereas, the said four proprietary defendants, proposing to erect the theater aforesaid, of the size and general plan in the first count set forth, they employed the said John Scott & Co. as their agent to supervise, inspect, and carry forward said enterprise, and made said John Scott & Co. the general supervisors thereof and their agent therein; and they further employed, and allowed to be employed, the other defendants, as in said first count mentioned, to carry forward the other respective parts of the structure, -as in said first count stated, and retained the control over them, and the right to control, supervise, and direct as to the work, materials, manner, method, and details of construction to the completion thereof, through their agent, the said John Scott & Co., whom they made their agent for that purpose; and their said agent, John Scott & Co., and their other employés, were each and all negligent in producing such a defective structure, not only as in said first count stated, but also as more fully hereinafter in this count set forth; and the said J. M. Wood participated and contributed, and was allowed to participate and contribute, to the grievances aforesaid as in said first count stated.
“In addition to the neglect of duty on the part of the various defendants, and their defective work, as already set forth in the first count, and made a part hereof by reference thereto, the plaintiff avers the neglect of duty on the part of the several defendants so employed and permitted to be employed by said proprietors, and to participate and to be engaged in said enterprise, and to conduct the respective parts thereof, as follows: It was the duty, under the circumstances, of John Scott & Co. to exercise and apply skill and diligence in the inspection of said plans', and to ascertain and to know and to understand the defects and dangers thereof, if any, and to point out such defects and dangers, and to give warning against them, and to refuse to proceed or to allow such a structure to be built until such defects and dangers should be corrected and removed; and plaintiff avers that in this respect the said John Scott & Co., the agent selected by the proprietors aforesaid, wholly and fatally neglected said duty on their part, and raised no objection, gave no warning, pointed out no defects, but deliberately, negligently, and recklessly proceeded with the construction of said building upon the plans selected by the proprietors, and adopted by them as aforesaid. The plaintiff avers that said plans were defective, and among their defects he proceeds to point out, so far as he is able at the present time, the main ones:
“He avers that the plans and specifications as a whole were such as would produce a structure weak, frail, and liable to collapse, and therefore extremely dangerous; that the roof, being of the dimensions of about 67 by 73 feet, consisting of heavy material, to wit, cakes of concrete laid in the panels of the steel framework, was too heavy, and of such great weight that the trusses and trestlework supporting it from beneath were insufficient, and the structure was top-heavy and toppling; that the trusses were insufficient in number; that the span of the trusses, being about 73 feet from wall to wall, should have been increased in number, and whereas only two trusses were used to span the auditorium, more should have been used; that the upper and lower girders of the trusses were too small and thin in dimensions, and therefore too weak; that steel material for such girders of the same pattern and depth of beam are manufactured in different degrees of strength and sectional area by increasing their thickness, and they are manufactured in several different and higher degrees of strength simply by increasing their thickness, and the thicker and stronger ones are the safer without occupying any more perpendicular space when in use, but they are more expensive on account of their increased thickness, weight, and strength; that in this case the thicker, heavier, and stronger material for the truss girders was not used, but the thin and weak, to wit, the thinnest, weakest, and cheapest that was manufactured of that depth of beam; that the other parts of said trusses were in like manner too thin, weak, and frail.
“Channel bars entered into the construction of said girders and parts of said steel work. A channel bar may be generally described as the half of an I -beam bisected vertically; and, to obtain the greatest strength in making a girder of two channel bars parallel and their backs toward each other, they should be placed not within nor beyond certain limited distances from each other; but in placing these channel bars- they were placed at an improper distance, to wit, the backs too near each other, and thereby the maximum strength of the girders greatly and dangerously reduced. In other respects the said trusses and the various parts thereof were improperly, negligently, and dangerously adjusted, fitted, and constructed.
“That the workmanship upon the trusses themselves was in some important respects bungling, and a botch work, as the parts not properly fitting, the holes through which adjacent parts were to be riveted or bolted together not meeting each other, and the iron was hammered, gouged, drawn, and weakened in the effort to get the bolts or rivets through them; and when thus bolted or riveted, the holes being enlarged and irregular, and the joints defective, the structure was not firm and safe, but loose, and the parts so jointed liable to slip and work past each other, especially under a great strain, and not only to weaken1 the trusses themselves by so loosening, but, by such weakening and loosening, liable to cut the bolts or rivets, thus disconnecting such parts of said trusses entirely. Some of the holes where the adjoining parts should have been bolted or riveted Were left open, not being fastened or bolted together at all. These trusses, from the bottom to the top girders, were about 15 feet in height, and spanning a space of about 73 feet between the walls, and extending onto and through said walls, were about 75 or 76 feet in length, and, being of such height and such length, and so bunglingly constructed, they were extremely frail, and liable to warp and twist out of plumb and out of line, presenting the appearance, to some extent, of an old rail fence; and they did, while in the course of construction, so warp and twist both out of alignment and out of plumb; and notwithstanding it was and must have been obvious to a competent supervisor of the work that the least departure from correct lines would be extremely dangerous, and certain to lead to further departure under the inevitable, constant pressure, that a total collapse must inevitably follow, and yet, without correcting these errors, or attempting to do so, the work was negligently allowed to proceed.
“These trusses, being thus 15 feet or more in total height, and of the length aforesaid, according to the plans and specifications, were without any adequate lateral support, whereas on account of their length and height, and bearings only at the ends, it was and must have been evident to a competent supervisor that thorough lateral supports were absolutely necessary in order to keep them in alignment and plumb, and especially as the cross-girders supporting the roof beams did not rest directly on the top girders of the trusses. Upon the tops of these precarious trusses without lateral supports, instead of laying or fastening the cross-beams or girders, which would, to some extent, have furnished lateral support, a most reckless and dangerous construction was contemplated by the plans. Resting upon those two frail trusses were steel upright studs or struts, so called, and extending to the height of about 7 feet, the trusses being a great distance apart, to wit, about 21 feet, and the struts upon each truss being 12 feet apart, and on the top of these tottling supports were extended, at right angles to the trusses across the building, from the Monroe-avenue front to the rear, the steel girders; and these carried the roof beams crossing them at right angles, upon which roof beams the concrete was to be laid. Thus the trusses, with the struts resting upon them, were liable, without proper lateral support, to warp, twist, and sway one way or the other, to the right or to the left, so that the struts and trasses, instead of remaining in the same perpendicular plane, would, at their points of juncture, form an angle, practically removing all sufficient support intended by the truss to sustain the uprights, and, through them, the roof.
“The plaintiff avers that this defect was of such a glaring, negligent character as to be inconceivable except in the most wanton recklessness or imbecility; and, to guard against this extreme danger in the want of lateral support to the trusses themselves and the struts upon them, only the most inadequate, futile, childish provisions were made, to wit, short, inefficient bracings at the top of the struts, where least needed and of the least use, instead of properly bracing the trusses where bracings were most needed, and where they might have been more efficient, and would have been, if adequate in themselves. The braces were not needed at the top, because the top of the said struts could be held in place by fastenings to the girders which they carried; and, besides being improper in design and. location, they were too short and weak to sufficiently support the lower end of the strut in case of the swaying of the truss from its alignment or plumb. Besides, these braces were prepared as though the roof had been horizontal, instead of, as it was, sloping at an angle, the braces being of the same length for use on the side of the truss where the roof was lower as on the opposite side, where the roof was higher; and the braces were tampered with, bent, gouged, bungled, and weakened for the purpose of thus using them when not properly fitted, adjusted, and efficient to be used.
“Not only was there great and inevitable danger that such a structure could not long endure, and that it must, from its inherent weakness and inability to support its own weight, therefore sooner or later begin to warp, sway, twist, and yield under the pressure, but in fact, before its completion, and while in the course of construction, it did and had begun to warp, twist, and bend out of plumb and out of alignment, and partially yield and give way; and these occurrences were open and visible, and easy to be detected by the eye of the diligent artisan or supervisor; but nevertheless, through neglect of the said artisans and supervisors, the work was allowed to proceed, and the weight continued to be negligently piled upon the top of the top-heavy structure, without correcting or attempting to correct said obvious defects or to remove said danger.
“The means of supporting the panels of concrete work while being placed and while hardening were bunglingly defective, unskillful, and were dangerous, because so constructed as not to be removable after their purposes were accomplished without the exertion of great force and the shock of heavy blows. These temporary supports were constructed by fitting pieces of weak scantling between the roof beams. The ends of the scantling rested upon the lower flanges of the roof beams, the scantling being about one and a half feet apart, upon which planks were laid, making a temporary flooring to support the concrete until it should become hard and solid, supporting itself by its bearings upon the roof beams forming each panel respectively. In removing this temporary wooden support so that the roof should consist only of fireproof material, those pieces of scantling, being tightly held between said iron flanges, and the boards beneath the concrete resting upon it, were knocked out by heavy and powerful blows, which was a most dangerous treatment of this most dangerous and toppling structure, and it was in ripe condition to cause the calamity under such treatment at that time, — a calamity already culminating, and which inevitably must have soon resulted, without the blows, from the frailty of the structure and the weight put upon it. Some days before the removal of the temporary support was begun, as aforesaid, the roof had already been sagging by reason of the frailties of the structure aforesaid; and yet a further coating and weight of concrete was negligently placed thereon, greatly adding to the weight of the roof, which must soon have collapsed had it not been added.
“The walls and the plans thereof were defective, not being of sufficient thickness and dimensions to support the weight of a proper roof, or as intended by the plans to be put upon it. The plans did not contemplate the strengthening of the walls by buttresses, or by combining with- the brick any other constructive material, such as steel, or iron, or stone work constructed therein and combined with the brick walls in order to hold, bind, brace, and support them, which should have been done in order to carry safely so great a weight at such a height in the walls. The immediate supports placed in the -walls for the bearings at the ends of the trusses were insufficient in quality and dimensions to sufficiently distribute the strain from the weight and pressure of the trusses most thoroughly and symmetrically throughout the walls, but leaving such strain and pressure mostly in the vicinity of the bearings, thus giving it the crushing, bending, bulging effect upon the walls, which they could not, as planned and built, sufficiently resist.
“And the said supervisors and agents, John Scott & Co., were in duty bound to object and protest against these various defects in the plans, and to refuse to proceed to erect a building in accordance with and involving such dangers; but they negligently violated said duty, made no protest, but carelessly and negligently went on with the work in the manner aforesaiid; and they were also negligent and careless in their inspection of the workmanship, by means whereof it became still more defective and dangerous as aforesaid.
“It was also the duty of the other defendants, in their respective spheres, to object and protest against the plans, involving the defects and dangers aforesaid, and to refuse to contribute or to participate in or to aid in bringing about such dangers, surely tending to a catastrophe such as actually resulted; but they negligently proceeded and participated in and aided to bring about the result herein set forth, to wit, the said Chapoton proceeded to erect the walls, defective as aforesaid, and with defective material, lacking in adhesiveness and strength; and said defendants connected with and carrying forward the steel work as aforesaid should have protested against the defects and deficiencies in the plans, and refused to go on with such dangerous structure, but, on the contrary, they negligently participated and proceeded therein and erected the work, not only involving the weakness and defects indicated by the plans, but they allowed the work to proceed in an unworkmanlike manner in the respects aforesaid, and otherwise of like character; and the said defendants having charge of the concrete roofing should have protested against the plans adopted for such heavy roof upon such frail support, and against putting any roof thereon until strengthened, but, on the contrary, they negligently participated in the work, and constructed the roof, involving the defects and dangers indicated by the plans and specifications, and otherwise dangerous and defective, not only in the ingredients themselves and their proportions and combinations, and the material was not placed and spread with due care, nor at a proper height or position, in the steel panel frames of the roof beams, and the metallic straps imbedded in the concrete were allowed to become disordered, out of place, and loosened from their supports upon said steel beams while spreading said concrete, leaving the same in a weak and insecure situation; and it was the duty of the roofers, defendants, not to overload said roof, but they negligently did so by making said concrete too thick and heavy, which weight, together with the temporary supports of scantling and plank, rested for several weeks upon the frail structure, causing it to gradually sag, warp, and twist out of place, tending to an ultimate collapse. Some of the temporary supports to the roofing were weak and defective, causing the panels to sag, break, and drop, and thus, and by prematurely removing some of the temporary supports, and using great force therein with blows of iron sledges, said toppling, frail structure, which was already in the process of collapsing, was shaken, precipitated to the ground, as aforesaid. But the plaintiff avers the defects in the trusses alone, as aforesaid, were sufficient, and already tending thereto, independent of the other defects herein set forth, to have caused the collapse of the building and plaintiff’s injury, as aforesaid, had the other defects not contributed thereto; and he avers the same in reference to the defects in the superstructure above the trusses; and he avers the same in reference to the concrete roofing, its methods of construction, temporary supports, and the removal thereof; and he avers the same with regard to the brick walls and the defects therein, and of the supports and anchoring therein.
“And the said plaintiff, who had been and was at the time engaged in the work of wiring for electric lighting, was, without neglect on his part, with due care, upon the premises, and had not been warned and was unaware of the impending danger; and when the said structure collapsed and fell he was, by means of the premises, and of the various defects as aforesaid, wounded and injured, and sustained damages as in said first count alleged.
“Fourth Count. And for that whereas, the said proprietors negligently proceeded to erect a building as in said last count mentioned, and negligently adopted the defective plans as therein mentioned, and negligently had the work carried forward in the defective and negligent manner and upon those defective plans as in' said last count stated; and the plaintiff avers also that defendant J. M. Wood assumed to be a competent, reliable, and experienced architect and engineer in the construction of theaters and buildings of the class proposed, and was engaged to, allowed to, and did participate as associate architect in the preparation of said plans, and in the direction, carrying forward, and the supervision of the work so carried on as in the last count set forth; and it was the duty of said Wood to have exercised care and skill both in the preparation and adoption of said plans and specifications, and to see that they were perfect and safe, and liext also to see that the work" in all its parts was properly and safely executed, so as to make a safe construction; and that the like duty rested upon John Scott & Co., defendants, associate architects with said Col. Wood; that the said proprietors retained control over them, and they were acting as agents for said proprietors and said enterprise, as were all the other defendants; and as such agents, in so carrying forward the respective parts of the work as in said last count , mentioned, they were all guilty of negligence as in said last count stated, respectively, together with the said defendant Wood, as herein stated, contributing to the catastrophe and the injury herein complained of, by which neglect of said architects, engineers, and artisans the said principal defendants were bound as principals; and by reason of the premises, and the said wrongful and negligent misconduct on the part of said defendants, the plaintiff was, at the time and place aforesaid, in the manner aforesaid, wounded and injured as aforesaid, in the ways and manners and to the extent aforesaid, to his damage of $10,000; and therefore he brings suit.”

Among the reasons assigned for demurring to the declaration are: First, that it does not charge the defendants with the commission of a joint wrong; second, that it does not state a cause of action. It is said plaintiff is averred to be dead, and, though it may be inferred from what follows that he is living, that inference from facts alleged cannot prevail over matter positively alleged. It is also said there is no positive averment of the nature of the respective estates of Moore, Wiggins, Schmitt, and Scherer. It is also said : “ Several tort feasors, not acting in concert, or by unity of design, are not liable to a joint action for damages, although the consequences of the several torts have united to produce an injury to the plaintiff.” Miller v. Ditch Co., 87 Cal. 430 (25 Pac. 550, 22 Am. St. Rep. 254); Chipman v. Palmer, 77 N. Y. 51 (33 Am. Rep. 566 ); Blaisdell v. Stephens, 14 Nev. 17 (33 Am. Rep. 523); Keyes v. Water Co., 53 Cal. 724.

There can be no doubt but the cases cited sustain the last proposition stated by counsel, but we do not think they show the demurrer should be sustained. The declaration is not a model of good pleading. Many of the sentences are involved, many of the statements might be much more clear and terse than they are. We do not, however, think the declaration can be read without reaching the conclusion that what the pleader meant by what he averred was that, when the roof and walls fell in, many who were engaged upon the roof and about the premises were killed, some were wounded, and that plaintiff at the same time, and from the same cause, received injuries which he after-wards described in detail. While the declaration does not show very clearly the respective shares of the premises owned by each of the defendants Moore, Wiggins, Schmitt, and Scherer, it does show that the four owned the premises, and proposed to erect a theater thereon, and then goes on in detail to describe what was done, and with what result. We also think it shows that each of the defendants who have demurred to the declaration contributed to the one catastrophe which resulted in the injury for which plaintiff has brought suit, and that it states wrongs for which a joint action for damages will lie. Cooley, Torts, 78; Slater v. Mersereau, 64 N. Y. 138; Olson v. Manufacturing Co., 103 Wis. 337 (79 N. W. 409); Atkinson v. Transportation Co., 60 Wis. 141 (18 N. W. 764, 50 Am. Rep. 352), and many cases there cited. See, also, Wilkinson v. Spring Works, 73 Mich. 405 (41 N. W. 490); Barnowsky v. Helson, 89 Mich. 523 (50 N. W. 989, 15 L. R. A. 33).

The judgment is reversed, and the case remanded, with leave to defendants to plead to the declaration within 20 days after service of notice.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    HENGSTLER v. FLINT & PERE MARQUETTE RAILROAD CO.
    Carriers — Live-Stock Shipment — Contract.

       1: H. delivered a car load of cows to defendant, as a common carrier, for shipment, without any special parol contract. He signed a written contract, which contained nothing contrary to public policy. Held, that he could not defend upon the ground that the written contract was signed in haste and without reading.
    2. H. accompanied the stock. Held, that it was his duty, and not that of the defendant, to see that the stock was fed and watered.
    E'rror to Mason; McMahon, J.
    Submitted November 13, 1900.
    Decided January 29, 1901.

      Assumpsit by Andrew Hengstler against the Flint & Pere Marquette Railroad Company to recover damages for injury to cattle shipped over defendant’s road. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Plaintiff shipped a car load of cows from Ludington, Mich., to Charter Grove, 111., a distance of 480 miles. The cows were loaded January 37th. Counsel for plaintiff erroneously state the time as the 38th. Plaintiff accompanied the car as care taker. The car left Ludington at 10 o’clock a. m. the 37th, and reached Flint, Mich., at 4 o’clock a. m. on the 38th. Plaintiff testified that the cows were uninjured when they reached Flint, except one, which got hooked down, and he left her at Flint. It is not claimed that the defendant was liable for this injury. Plaintiff unloaded the cows at Flint, watered and fed them, and left Flint over the Grand Trunk Railway at 4 o’clock p. m. of the 38th. He arrived at Charter Grove at 10 o’clock p. m. January 39th, the journey occupying about 60 hours from Ludington to Charter Grove. He was delayed 4 hours at one place, 4 hours at another, and 8 hours in the yards of the Illinois Central Railroad Company in Chicago. The cows were not unloaded, watered, or fed from the time they left Flint -until they reached Charter Grove. Plaintiff claims that the cows were injured on the journey in consequence of these delays, and brought suit to recover such damages. The court directed a verdict for defendant.

      Fitch & Reek, for appellant.

      M. B. Danaher (Frederick W. Stevens, of counsel), for appellee.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). The declaration contains three counts, each one of which is based upon the theory that the plaintiff was a shipper of live stock, that he delivered said stock to defendant, and that the defendant undertook and promised to take and use due and proper care and diligence in and about carrying and conveying the said property from Ludington to Charter Grove. No special contract for carriage, oral or written, is set up in the declaration. It is the ordinary declaration where goods are delivered to a railroad company for carriage in the usual course of business. After the cows were loaded, plaintiff received his bill of lading, and signed a contract providing that “said shipper is, at his own sole risk and expense, to load, take care of, and feed and water said stock while being transported;” also limiting defendant’s liability for loss or damage to negligence upon its own road, and not upon that of the connecting carrier. Plaintiff claims that this contract was presented to him for signature as the train was ready to start; that he had not time to read it, and did not read it;, that he had a special oral contract for the shipping of these cows, which controls, rather than the written contract. Authorities are cited in support of the proposition. Plaintiff testified to conversations with defendant’s agents at Ludington, upon which he bases his special contract. Being asked to state those conversations, he testified:

“Well, we wanted to ship a car of cattle to my farm, and I inquired if I could get a regular cattle car, and they said they did not think so; it is unusual for them to get any such thing as that here; it is not used; and then Mr. Gordon said he would get another car for me, which I could take through to Charter Grove, 111., and I could buy some lumber and make a winter car out of it.”

This conversation does not disclose any definite agreement for shipment. The mere statement that the car could be shipped through to destination is not an agreement on the part of the defendant to be liable for all the delays and acts of negligence on the part of the connecting carrier. It was not an agreement to feed and water the cattle. This duty belongs to the shipper. Heller v. Railway Co., 109 Mich. 53 (66 N. W. 667, 63 Am. St. Rep. 541). It is not necessary, therefore, to consider the case upon the basis that plaintiff had a special parol contract differing from the written contract he signed previous to shipment. The provisions of this contract have been sanctioned by the decisions of this court. McMillan v. Railroad Co., 16 Mich. 79 (93 Am. Dec. 208); Smith v. Express Co., 108 Mich. 572 (66 N. W. 479). There being no special parol contract, and there being nothing in the written contract contrary to public policy, plaintiff cannot now assert that the written contract is not binding because he signed it in haste, without reading.

Aside from this, it appears that the only injury the cattle could sustain was from failure to water and feed them. Plaintiff claims that he had no opportunity to do so upon the journey, after leaving Flint. He testified:

“ I spoke to the conductor and brakeman about feeding and watering whenever I had a chance. I told them the cattle would need a little water and feed, and they told me they could not give it to me.”

This testimony is not sufficient to fasten upon the defendant or any connecting carrier liability for damages resulting from failure to water and feed. The company was under no obligation to do so. Plaintiff does not testify that he could not have watered and fed them during the eight-hours stay in the yards of the Illinois Central at Chicago. It was his duty to see that they were then watered and fed. The language used by the circuit judge upon the trial was entirely justifiable:

“He had no right to go through from Flint to Charter Grove without feeding and watering the cattle, and then expect the railroad to pay him for their depreciation and injury to them. It is idle to say a man could not feed a car load of cattle in Chicago. Of all places on earth, that is where he could feed them. Their arrangements there are perfect for that very purpose. If he allowed them to starve for lack of food and water, he cannot claim this railroad company is to blame for it. If he had been obliged, on account of the delay of the railroad, to lose time in feeding and watering, and put to extra expense, there would be some sense to such a claim; but to allow .the cattle to starve for food and water, and to pass through Chicago without feeding them, and then claim that the railroad company should pay him for the cattle themselves, I think is a preposterous claim, and does not come under what is alleged in the declaration and set up against the company.”

Judgment affirmed.

The other Justices concurred.'


author: Hooker, J.

text:
    WATERBURY v. O’BRIEN.
    . Contracts — Evidence—Sufficiency.
    Where a decedent was indebted to a liveryman for boarding a-horse, and his sister paid the claim, and the liveryman continued to board the horse, and sued the sister therefor on an alleged contract with her, a continuation of the account in the name of the decedent was not so inconsistent with the theory of a contract with the sister as to warrant the reversal of a judgment against her on such contract.
    Error to Kalamazoo; Buck, J.
    Submitted November 14, 1900.
    Decided January 29, 1901.

      Assumpsit by Joel Water bury against Mary M. O’Brien for the board of a horse. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      William A. Luby, for appellant.

      Frank E. Knappen, for appellee.
   Hooker, J.

The plaintiff was proprietor of a livery and boarding stable, and had furnished livery to and boarded a horse for one Dr. O’Brien, and at the time of the latter’s death had a claim against him amounting to a little over $40. Dr. O’Brien died March 2, 1899, unmarried and without issue, his nearest relatives being his father and two sisters, one of whom is the defendant.' In the early part of May following, the defendant called upon the plaintiff, and ascertained the amount of the plaintiff’s claim, which had by that time been increased by the board of the horse, and paid $45 upon it. At that time an arrangement was made for the continuance of the boarding of the horse, plaintiff claiming that he contracted with her, and that she promised to pay it, while upon the trial at circuit, if not before, she claimed that she made no such contract, and that the horse fell to her father upon the death of Dr. O’Brien, and that she paid the money and made the arrangement for him. Subsequently she made a payment of $25.

The court left the question of fact to the jury, who returned a verdict for the plaintiff, and the defendant has brought error. The testimony is all returned, from which it conclusively appears that the entire amount of Dr. O’Brien’s debt was paid. Being dead, it can hardly be said that any further charge could be made against him, and, though the account was continued under his name, that fact is not necessarily inconsistent with the plaintiff’s claim that he had contracted with Mary O’Brien. The jury has put the question beyond controversy. Numerous errors are assigned, most of which pertain to the charge. "We have examined them all, and find no error in them; but, as a discussion of them would be of little value to the profession, we omit it.

The judgment is affirmed.

The other Justices concurred.


text:
    PEOPLE v. CAREY.
    1. Criminal Law — Identification—Photographs.
    Where the evidence indicated a change of appearance of accused between the time of his arrest and trial, in that at the trial he wore glasses, which he declined to remove at the request of the people’s counsel, a photograph taken of him at the time of his arrest became competent to aid in his identification with the person alleged to have committed the crime.
    2. Same.
    The photograph being admissible, it was competent for witnesses to testify whether it looked like the person seen committing the crime.

      3. Same — Larceny—Instructions—Matters not Involved.
    Where, on a prosecution for the larceny of certain cattle, the evidence showed conclusively that the cattle were stolen, and the jury were so instructed, and there was also testimony tending to show that respondent was seen in possession of the stolen property, which he denied in tato, it was not error for the court to omit instructions as to the essential elements of the crime of larceny, and as to any theory of the innocence of such claimed possession.

      4. Same — Comments on Testimony.
    That the court called the jury’s attention to the testimony of the only witness who positively connected respondent with the possession of stolen property, and intimated that, if true, it showed him in the possession of the property at a time and under circumstances raising a strong presumption of guilt, was not an improper discussion of the testimony, where the court at the same time explained the rule which made the jurors the judges of its truth and accuracy.
    5. Same — Reading Evidence to Jury — Absence op Respondent.
    Where, on a prosecution for larceny, the jury, after retiring, returned into court in respondent’s absence, and asked to have the testimony of one of the people’s witnesses read to them, which was done after respondent’s counsel had stated, in answer to a question, that he was not particular about the respondent’s being present, no error was committed.
    Error to Lapeer; Smith, J.
    Submitted November 15, 1900.
    Decided January 29, 1901.
    James Carey was convicted of larceny, and sentenced to imprisonment for five years in the State prison at Jackson.
    Affirmed.

      James A. Muir, for appellant.

      Horace M. Oren, Attorney General, and J. J. Kohler, Prosecuting Attorney, for the people. ,
   Hooker, J.

The defendant was convicted of the offense of larceny of some cattle, which the evidence shows to have disappeared from their owner’s field, and later to have been butchered in Port Huron, with the exception of one, which was found upon the premises of the father of an alleged particeps criminis of the defendant, who had, previous to the trial in this case, been convicted of the same offense that the defendant was subsequently convicted of. No witness was produced who saw the cattle taken from the field, but several testified to meeting two men driving some cattle about the time, and the record contains evidence of identification of the cattle sufficient to warrant a jury in concluding that they were the cattle alleged to have been stolen. One witness (Laidlaw) identified the defendant and William Davis as the men driving said cattle, and testified that he had known them 10 years, and that he talked with them upon this occasion, and was told that they intended to take them to their farm;, i. e., the farm of John Davis. This is the farm where the steer was afterwards found. The other witnesses were unable to identify the defendant, and a photograph was produced by the prosecution, and they were asked if they had seen it before. They stated that they had seen it in the hands of the sheriff soon after the alleged larceny, and had identified it as closely resembling one of the men seen by them driving the cattle. One of these witnesses (Spencer) testified as follows upon this subject:

Q. Have you seen a picture since that which resembles either of the men ?
“A. I have.
“Q. Without turning them over on the" back, will you look at these pictures, and see whether or not there is a picture there that resembles either of the men ? (Objected to as incompetent and immaterial.)
“The Coiort: The simple ‘ statement of resemblance would not be material, but he can give his best judgment and belief as to whether it was one of the men. (Exception for defendant.)
“Q. Look at this, and see if you can pick out one of them there that is the picture of the man, in your best judgment.
“Mr. Loughnane: I object to that. What would that prove ?
“The Court: Standing alone it would not be much, but I assume it is preliminary to something else. (Exception for defendant.)
“A. There is a picture there that looks like the man, marked ‘Exhibit X.’ I saw this picture soon after the 10th,- — some time after.
“Q. I will ask you whether or not a couple of men were arrested near your place of residence with stolen cattle ?
The Court: Answer that yes or no.
“A. I don’t know.
“Q. Did you hear of a couple of men being arrested? (Objected to as incompetent.)
The Court: Take it, (Exception for defendant.)
“The Court: Answer yes or no.
“Q. Some time after that, three or four months, in August or September ?
“A. I did. It was shortly after their arrest that this picture was shown to me. I could not tell whether there were more pictures than one or not.
“Q. At that time you picked out the man as being with the cattle ?
“A. I thought it was; I could not tell; I could not say whether or not he had glasses on that time.
“Mr. Kohler (to defendant): Will you take off your glasses and stand up ?
“Mr. Loughnane: I object to that as incompetent and immaterial.
. “The Court: He is not obliged to do that, Mr. Kohler.
“A. I have never seen the defendant before except on the day of examination. I don’t think that he very much resembles the man that I met. I could not describe the man that I saw with reference to his beard.”

Mr. Brown testified:

“ I saw the defendant on the 7th of January. He don’t look like the man that I saw on the 5th day of July driving these cattle. That man had a mustache, and he looked darker complexion. He did not wear glasses those times.
“Mr. Kohler: Remove your glasses, please (addressing the defendant).
“Mr. Loughnane: I object to that.
“The Court: I don’t think I can compel him to do that.
“Q. What do you say, in your judgment, as to his resembling or being the man you saw there ?
“A. I should think he resembled the man some, but I would not say so positively. Sheriff Myers showbd me those pictures. I didn’t look at any of the pictures except on the face, I think. I saw the pictures twice, one side of this.
Q. Is that the picture you picked out resembling the man, or was that it ?
“A. Yes, that is about the way I saw it. It is the same picture I picked out each time.”

The photographer identified the defendant as the original of the picture. The sheriff was then sworn, who testified that:

“I reside in Mt. Clemens, and lived there in 1897, and was sheriff of Macomb county at that time. I recognize this defendant as James Carey. He was in my custody while I was sheriff.
“Q. How did he come to be in your custody?
“A. I was notified on the 6th of August, 1897, by telephone, that Mr. Hesner’s cattle were stolen in the township of Bruce, and I sent a deputy on the trail, and he went to Almont, I think, and saw Mr. Myers, a deputy, at that time, under Demorest, a sheriff here. They had one man, and wanted to arrest the other, and wanted me to come up there; and I took the train to Borneo, and a livery rig to Almont, and when I got to Almont—
“Mr. Loughnane: I object to this. I don’t see what this has got to do with it.
“Q. Just state whether or not you took him into custody.
‘Mr. Loughnane: Object to that.
“The Court: Take it. (Exception for defendant.)
“A. Yes, I did.
“The Court: Where?
“A. At Almont. There were two men.
“Q. And what was his name ?
“Mr. Loughnane: I object to it. I don’t see how it has anything to do with this.
“Mr. Kohler: I am trying to connect that picture. I expect to show that he had this picture taken of him while he was in his custody.
‘ ‘ The Court: It may stand. (Exception for defendant.)
“A. This picture was taken on August 7, 1897, by A. C. Novice. It is the picture of James Carey, the defendant here. At the time I got him at Almont, he was not in the habit of wearing glasses, or did not wear them.
Q. How long was he in your custody in the jail at Mt. Clemens ?
“A. From the 7th of August until September term of court. I took him to Jackson myself, he and his partner.
“-Mir. Loughnane: I object to that, and move to strike it out.
“The Court: It may be stricken out.
“A. At that time he complained of rheumatism, and was slightly lame. He was lame part of the time.
“Q. That was a correct picture of Carey, the defendant here, at the time he was in your care? (Objected to as leading.)
“The Court: Take the answer, yes or no.
“A. Yes, sir. (Exception for defendant.)”

The photograph was introduced in evidence. It is claimed that the photograph was not admissible, and that this was an identification of the defendant by secondary evidence, not permissible; also that it was resorted to for the purpose of informing the jury of defendant’s arrest, conviction, and imprisonment for stealing other cattle soon after the loss of the cattle in question in this case. There is some evidence in the record indicating a change in appearance of the defendant, especially in regard to wearing glasses, which he declined to remove at the request of the people’s counsel, which made the introduction of the photograph competent, if it would not otherwise have been, — a question that we prefer to reserve. Being competent, the testimony relating to it was proper; and, while it was not competent to show that the defendant had stolen other cattle, that testimony was volunteered, and was immediately stricken out by the court.

Error is alleged upon the charge, which, it is said, failed to explain to the jury the essential elements of larceny, and leave to them the question “whether the cattle were stolen.” The testimony is all contained in the record, and warranted the court in advising the jury that the cattle were stolen. Hence there was no occasion for defining larceny. Again, there was nothing in the case indicating a claim that defendant, if in the possession or control of the ’cattle, was innocently so. He denied it in toto. If this denial was false, there was nothing in the case which would give rise to an inference of innocence. It was unnecessary to incumber the charge with questions which there was no occasion for the jury to consider.

But one more question needs consideration. Laidlaw was the only witness who unqualifiedly identified the defendant as one of the]_men driving the cattle. The court called attention to the testimony, and intimated that, if true, it showed defendant in possession of the cattle at a time and under circumstances raising a strong presumption of guilt. At the same time he explained the rule which made the jurors the judges of its truth and accuracy. Complaint is made of this, but we think the judge kept well within the proper rule in discussing this testimony. After the jury had retired, they returned into court with the request that Laidlaw’s testimony might be read to them. Defendant was not present, but his counsel was, and, upon being asked whether he desired the presence of the defendant, replied that he was not particular, and the testimony was read in defendant’s absence. It is now contended that this was error. We think the point is within the principle of People v. La Munion, 64 Mich. 715 (31 N. W. 593).

We have examined the remaining assignments of error, and think it unnecessary to discuss them.

The judgment is affirmed.

The other Justices concurred.


text:
    McBRYAN v. TROWBRIDGE.
    Attachment — Grounds for — Fraudulent Disposition oe Property-Intent to Delay Creditors.
    Under 3 Comp. Laws 1897, § 10556, making the disposition of one’s property, with intent to defraud creditors, ground for attachment, the writ may be sued out where a debtor mortgages property, worth twice the amount of his debts, to creditors representing only one-half the total indebtedness, with an avowed intention thereby to gain time to meet, with prospective profits, the claims of the unsecured creditors; the intent to postpone the collection of the claims of such credi- ’ tors being the same in legal effect as an intent to defeat them.
    Appeal from Wayne; Donovan, J.
    Submitted November 15, 1900.
    Decided January 29, 1901.
    Bill by William H. McBryan, trustee of the estate of Pulaski A. Billings, a bankrupt, against Luther H. Trow-bridge, Walter B. Drew, and Harry F. Chipman, to set aside an attachment levy. From a decree dismissing-the bill, complainant appeals.
    Affirmed.

      Graves & Hatch, for complainant.

      Jasper O. Gates, for defendant Trowbridge.
   Moore, J.

Complainant filed a bill of complaint to set aside an attachment levy made upon certain real estate. From a decree dismissing the bill of complaint, he brings the case here by appeal.

On the 23d of April, 1898, an attachment suit was commenced against Pulaski A. Billings by Luther H. Trow-bridge. The affidavit was made by Mrs. Trowbridge. Among other things stated in the affidavit is the following;

“And this deponent further says that she has good reason to believe, and does believe, that the said Pulaski A. Billings and Walter B. Drew have assigned and .disposed of, and are about to assign and dispose of, their property, and the property of each of them, with intent to defraud their creditors.”

The writ was put in the hands of the sheriff, Mr. Chip-man, who, upon April 25, 1898, levied upon certain real estate. The defendant appeared in this case, and pleaded the general issue. Mr. Billings was adjudged a bankrupt on January 19, 1899, and the complainant was appointed trustee of his estate. This bill was filed in October, 1899. Subsequent to that date, but before this case was heard, in May, 1900, a judgment was rendered in the attachment case in favor of Mr. Trowbridge for $575.

There are many reasons assigned in the bill of complaint why the attachment levy should not stand, but the one relied upon in the court below, and here also, is that Mr. Billings had not made such a disposition of property as to justify suing out the writ. Counsel for complainant say:

“In order to sustain an attachment for the alleged fraudulent disposition of property, either actual or contemplated, by a debtor, the plaintiff in the attachment suit has the burden of proof cast upon him to prove four things, viz.:
“ 1. The actual or contemplated disposition by the debtor of his property.
“2. That such disposition is an unlawful one, considering the circumstances of the parties.
“ 3. That such disposition is prejudicial to the plaintiff.
“ 4. That such disposition is accompanied by a f raudulent intent on the part of the debtor.”

They particularly urge in this case the second and third of these propositions, and say there is no proof in the case to sustain them. They insist that a mortgage to secure present advances is not a ground of attachment,— citing Gore v. Bay, 73 Mich. 385 (41 N. W. 329); and that a mortgage to secure past indebtedness and future' advances to enable defendant to continue business is no ground for attachment, — citing Armstrong v. Cook, 95 Mich. 257 (54 N. W. 873). It is also said the disposition of the property must be prejudicial to the plaintiff in the attachment suit, — citing Carver v. Chapell, 70 Mich. 49 (37 N. W. 879); Lord v. Wirt, 96 Mich. 415 (56 N. W. 7). It is said the plaintiff must show that he is hurt; that it is not sufficient to show that other creditors are hurt,— citing Zeigler v. Cox, 63 Ill. 48. It is also said:

“If the disposition of his property by Billings was not unlawful, his motive in making the disposition cannot render it unlawful. A wrongful intent may be presumed from an unlawful disposition of property, but an unlawful disposition of property cannot be presumed from a wrongful intent. Billings may have been ever so maliciously inclined towards Trowbridge; he may have intended that Trowbridge should fail to get his pay; but the means used by Billings to accomplish this purpose were lawful, and the intent cannot make them unlawful. This is the settled law in this State. Jordan v. White, 38 Mich. 253; Gore v. Ray, 73 Mich. 385, 391 (41 N. W. 329). The case of Scripps v. Crawford, 123 Mich. 173 (81 N. W. 1098), is decided on this principle.”

If it be conceded these various propositions are correct statements of the law, it is important to inquire whether the facts in this case bring it within them. Counsel, in their brief, say:

“Mr. Billings had a stock of goods worth $29,000, and real estate worth $3,375. He owed $15,500. His assets were twice his liabilities. He wanted to get rid of a competitor. He need'ed accommodations at the bank. He hid none of his property. He pledged none but for bona fide debts. How can it be said that the use he made of the property was in any sense unlawful ? ”

Do the facts warrant these statements ? Mr. Billings’ testimony shows that prior to February 12, 1898, he was indebted to the amount of fifteen or sixteen thousand dollars, about half of which he owed to the Citizens’ Savings Bank, while the rest of it was divided among 109 other creditors. February 12, 1898, the Billings & Drew Company was organized, with 3,500 shares of stock at $10 a share. Mr. Billings had 2,899 shares, Mr. Drew 600 shares, and Thomas Drew one share. . The assets of this corporation consisted of the stocks of goods formerly owned by Mr. Billings and Mr. Drew, respectively. On February 24,1898, Mr. and Mrs. Billings executed a mortgage to the Citizens’ Savings Bank upon all the real estate Mr. Billings owned, except some lots which were valued at $875, and which are the lots upon which the attachment levy was made. The consideration stated in the mortgage was $1,000. Mr. Billings testified the property described therein was worth $2,500. The mortgage contained the following clause:

“This mortgage and its accompanying note are given to secure the payment of all notes made by the Billings & Drew Company to said mortgagee, and also to secure the payment of any and all notes upon which the name of Pulaski A. Billings shall appear either as maker or indorser, which are now or hereafter shall be owned by said mortgagee; and this mortgage, until discharged, shall be a continuing security for the payment of said notes, or any renewals thereof, in whole or in part.”

The mortgage was acknowledged the 23d of March.

At the time the mortgage was turned over to the bank, Mr. Billings transferred to them $24,000 of his stock. He transferred to Mr. Radford, who for some time had been' acting as his attorney, to help compensate him, 291 shares of stock. The stock book shows the stock was transferred to Mr. Radford the 23d day of April. He also transferred to his wife $2,000 worth of stock, which he says was for a debt due her, represented by a note dated November 11, 1897. He retained eight shares of stock for himself. After this transaction was completed, he had remaining, according to his testimony, real estate worth $875, bills receivable worth $400, and eight shares of stock, of the par value of $80, in the Billings & Drew Company, while he owed about $8,000 to upwards of 100 creditors, none of whom were secured.

Upon the examination of Mr. Billings the following questions and answers occurred:

“Q. Now, I want you to look over this schedule of your creditors, and say if you can point me out a single debt which you did not owe at the time you went into this arrangement that we have been talking about here.
“A. I say we owed every one of them on the 24th of February, 1898. I owed every one of these debts at the time I made the arrangement with the bank. I owed approximately $15,000 to 109 creditors, besides the bank. I owed the bank in the neighborhood of $8,000 or $9,000.
“Q. But after you had made this arrangement, the amount you had left in your hands to pay them with was $875 worth of real estate, and bills receivable worth $400, and eight shares of the stock of the Billings & Drew Company. Now, sir, I want you to tell me how you expected that this property was going to pay your $8,000 of indebtedness.
“A. I expected to have made money enough in the new business, when we started out, to pay all my debts, with the making of the arrangement with my creditors, — to pay them in full. By that I mean to pay them as fast as I could. That is what I expected doing when the corporation was formed.
“Q. Is it not a fact, in other words, that you were perfectly aware that, if your $8,000 worth of unsecured creditors, 109 unsecured creditors, came to you and insisted on having their debts due paid, you had not more than enough to pay them 10 or 12 cents on the dollar, — is not that the fact ?
“A. Yes, sir; I guess that is about the fact.
“Q. In other words, you knew very well when you made this mortgage^ and pledged your $24,000 worth par value of the stock in the Billings & Drew Company, that these 109 unsecured creditors could not get their pay unless you made it out of your business ?
“A. I don’t see how they could.
“Q. And you knew that perfectly well at the time you made that arrangement ?
“A. Yes, sir. * * *
“Q. Now, is it not a fact that you hoped and expected in this time the Billings & Drew Company to make money and prosper, and that you would pay off your creditors, and have something left for yourself ?
“A. Sure, that was my intention; most decidedly.
“Q. And that was the reason you fixed your property up in the shape you did, because that was the intention; is that right ?
“A. Yes, I put a mortgage on that property for future accommodations from the bank. (Question repeated.)
“A. I have said that I put the mortgage on there for future accommodations, — to make money, to do some business, pay my debts, and get started again. By getting started again I mean in business as Billings & Drew Company.
“Q. What do you mean by getting started again ?
“A. Why, doing business as the Billings & Drew Company.
“The Court: You had in view, when you put that mortgage on, you intended to pay everybody, but you intended to get a chance to turn yourself ?
“A. Yes, sir.
“Q. Is that the idea ?
“A. Yes, sir.
“Q. You put it on so that in the meantime, while you were starting up, things would wait in abeyance?
“A. Yes, sir.
“Q. I understood it that way, — so that it would give him room to turn himself. It would stay the immediate crowd, and give you a chance to pay everybody alike, more particularly ?
“A. Yes, sir.
‘1Q. That was the way I got it.
“A. That was my intention. That is what I said. I have tried to make myself clear.
“Q. Your idea was that all these people, — these 109 people, or some considerable number of them,' — if they came down with attachment, or crowded you, you could not pay them. You knew that perfectly well?
“A. Yes, of course, I could not. * * *
“The Court: What you really wanted was time to turn yourself ?
“A. Yes, sir.
“Q. That is, to stand still a moment, to wait your rush on me until I can move ?
“A. Yes, sir.”

Mr. and Mrs. Trowbridge testified they had been trying to collect the debt due Mr. Trowbridge, and that early in March Mr. Billings came to their office, and, after considerable, other conversation, said:

“ ‘Now, let us talk this matter over, and effect some sort of a compromise. I acknowledge the indebtedness; I am willing to acknowledge judgment now.’ I said: ‘We cannot talk about any compromise. All we want, and all we ask, first and last, is payment of what is due; and, if you are prepared to do that, there is no use in wasting your time or ours. 'There is no occasion for any talk of compromise.’ ‘ Well,’ he said, ‘ I acknowledge the indebtedness; 1 am ready to confess judgment; but I cannot pay you today, I cannot pay you this week, I cannot pay you the week after, and I don’t know when I can pay you.’ I said that, ‘If that is a fact, there is one course left to us, and we must proceed to collect;’ and then in a decidedly firm tone of voice he said: ‘You can try to collect; you can sue; but I have put my business into a stock company, and you cannot touch that; and I have put my real estate and other property up at the bank as collateral, and you cannot touch that. Creditors cannot touch any of my property. You can sue, but you cannot collect anything; ’ and in a triumphant manner he turned around and left the office.”

It will be observed the transfer of stock to Mr. Radford was made' the same day the attachment suit was begun. What, then, is the situation? Mr. Billings owed $15,000 or $16,000. He had $29,000 worth of goods, which he turned over to the Billings & Drew Company, for which he received stock of a corresponding amount. He gave a mortgage to one of his creditors, who has a claim of $7,000 or $8,000, and is to make advances of $1,000 more, upon $2,500 worth of real estate, and transfers to it $24,000 of stock. To two other creditors he makes other transfers of property, so that property counsel say is worth twice the amount of all his debts is nearly all transferred to three of his creditors, while he retains in his control less than $1,400 worth of property, and has upwards of 100 creditors, with $7,000 or $8,000 of debts, all unsecured. He states that one of the purposes in making these transfers was to put his property in such condition that the unsecured creditors could not at once compel payment, and so he should have a chance to turn himself, and earn money to pay off his indebtedness.

3 Comp. Laws 1897, § 10556, states what must be contained in the affidavit to secure the writ. Applying the provisions of that section to this case, it was necessary to show Mr. Billings had assigned, disposed of, or concealed, or was about to assign, dispose of,- or conceal, any of his property with intent to defraud his creditors. What must a debtor do in making a conveyance of his property that his action may be deemed in law to defraud his creditors? In 14 Am. & Eng. Enc. Law (2d Ed.), 244, 245, the rule is stated as follows:

Intent to Hinder or Delay Creditors. But, in order to render a deed fraudulent, it is not necessary that the debtor should intend entirely to defeat the creditor in the collection of his claim. Creditors are entitled not only to be paid, but to be paid as their claims accrue, and a debtor has no more right to postpone payment simply for his own advantage than to defeat it altogether.- A purpose to hinder and delay a creditor is, therefore, fraudulent, although the debtor may honestly intend that all his debts shall ultimately be paid.”

See Herman v. McKinney, (C. C.) 47 Fed. 758; Corbitt v. Cutcheon, 79 Mich. 41 (44 N. W. 163); Cutcheon v. Buchanan, 88 Mich. 594 (50 N. W. 756); Pettibone v. Byrne, 97 Mich. 85, 92, 93 (56 N. W. 236); Walker v. Cady, 106 Mich. 21, 25, 26 (63 N. W. 1005).

Taking the testimony in this case in its entirety, the conclusion is irresistible that the purpose of Mr. Billings in making these transfers was not simply to secure bona Jide indebtedness and secure advances to be used in his business, but he also purposed to put his property in such shape it could not be reached by his other creditors until he was ready to place it at their disposal. We think this brought his case within the statute.

The decree is affirmed, with costs.

The other Justices concurred.


author: Long, J.

text:
    PEOPLE v. BERNARD.

    1. Criminal Law — Assault on Officer — Exouse—Evidence.
    Respondent, who "was the owner of a small boat moored at a certain dock, knew that it was desired to serve process on him, and had threatened to shoot any one who came on his boat for that purpose.' Witnesses for the prosecution stated that the sheriff and his depmty went to the dock, and the sheriff told respondent that he had come to serve process on him, and wished to explain the matter; that respondent thereupon ran on his boat, secured a pistol, and declared he would shoot if they came on the boat, and did shoot the deputy. Respondent testified that he acted in-self-defense, and that the officers fired the first shot. Held, that the evidence justified a finding that the shooting was without reasonable-excuse or in belief that a forcible felony was being attempted..
    3. Same — Defense of Dwelling-House — Passenger Boat.
    A small steam launch, run as a public conveyance, having-seats extending around it, and no sleeping or living apartments, was not a house or castle which might be defended, against entry by an officer to the extent of taking his life, merely because the boat was moored to a dock, and used as a sleeping berth by the owner.
    3. Same — Assault With Intent to Kill — Defenses—Void Process.
    Where, in a prosecution for assault with intent to kill, it appeared that the respondent, after threatening to kill any officer who should attempt to serve process upon him, on meeting an officer armed with process, had refused to listen to any explanation, but had immediately procured a pistol and opened fire and .wounded the officer, it could not avail him to show in defense that the writ under which the officer was. assuming to act was void upon its face.
    Error to Van Burén; Carr, J.
    Submitted November 15, 1900.
    Decided January 29, 1901.

      Charles L. Bernard was convicted of an assault with intent to commit the crime of murder, and sentenced to .imprisonment for seven years in the State prison at Jackson.
    Affirmed.

      Dioight Goss, for appellant.

      James H. Chandler, Prosecuting Attorney (William G. Howard, of counsel), for the people.

       Rehearing denied May 7, 1901.

   Long, J.

Respondent was convicted of the crime of assault with intent to kill and murder one John Brit-ton, undersheriff of "Van Burén county. In the summer of 1899, the respondent, together with one M. J. Maloney, brought from Chicago to South Haven, this State, a small steam launch, which they ran as a public conveyance on Black river and the harbor at South Haven as a pleasure boat. They tied the boat, when not in use, to a certain dock on Black river; and, refusing to pay dockage, the parties owning the dock commenced proceedings against the boat under the water-craft act of this State to recover the amount due them for wharfage and dockage. The process issued in that case was delivered to one Gleason, a deputy sheriff, for service. He attempted to serve the same, and in July, 1899, went aboard the boat of respondent, called the Louise, for that purpose, when the respondent and Maloney steamed the boat up the river for a distance, and forcibly ejected Gleason therefrom. On the evening of the same day, Gleason again attempted to serve the process, when, as Gleason testified, respondent told him that if he came aboard the boat he would shoot him. Respondent was thereafter arrested for resisting an officer in attempting tó serve process. The people claim that, when respondent was taken before the justice for that offense, he stated that he would shoot the first man who came aboard his boat to serve process. It is shown by the people that, after Gleason failed to make service of the process, it was turned over to the sheriff of the county, and that he, on the 4th of August, 1899, accompanied by Undersheriff Britton, went down to the dock where the boat was tied for the purpose of serving the process; that they met the respondent on the dock in front of the boat, and the sheriff introduced himself to the respondent, saying, “I am the sheriff of the county, and I have come to serve process on your boat, and here is a copy of it, and I would like to explain the matter to you; ” that he got no further with the explanation when the respondent jumped upon his boat, ran around the boiler to the tool-box, took out a revolver, and said he would shoot them if they came upon the boat; that they went upon the boat, when respondent shot and wounded Britton. The defense was :

1. That the writ under which the officers were acting was void, and not fair upon its face, and afforded them no protection for what they did.
2. That respondent was defending his own person; that he was protecting his castle; and that he had reason to believe that a forcible felony was being attempted.

We shall discuss the second question first. The people’s testimony tended to show that the sheriff and his under-sheriff went to the dock, and the sheriff introduced himself, and told respondent what he was there for, and gave him a copy of the process. He must have known from the acts and conduct of the officers that they were not there for the purpose of offering him any personal violence. When the sheriff attempted to explain the situation to him, he would not listen, but at once rushed to the tool-box, where his revolver was kept, and, according to the people’s witnesses, fired the first shot, wounding Mr. Britton. He fired directly at him, with apparent intention to kill. It is shown hy the testimony that shots were fired by the officers, but the whole testimony, aside from respondent’s, tends to show that he fired the first one. It is also shown by testimony introduced by the people that at the time of the first arrest of the respondent prior to that time, for resisting an officer, he made threats that he would kill any officer who attempted to seize his boat. This is undisputed by the respondent, but his testimony in regard to the shooting was that, before he attempted to make any resistance, the sheriff fired on him first, and that he only acted in self-defense. As to the shooting by himself, he testified:

“ Britton told me to throw down my revolver. When he said that, he had a gun in my face, and I had been shot, and I stood there paralyzed, with the revolver in my hand as I had grabbed it out of the box. Britton says, ‘Drop that, or I will put a hole through you.’ I simply opened my hand, and the revolver fell out of my hand. It was of no use to me; I was paralyzed.”'

Upon his cross-examination respondent admitted that, after the shooting, he immediately left South Haven, and fled to the State of Virginia.

The questions as to whether respondent fired the first shot, and whether he was acting in self-defense, were fairly left to the jury in the charge by the trial court. The court instructed the jury upon the question of the elements of the crime:

“ You are instructed that while the law requires, in order to constitute an assault with intent to commit murder, that the assault to kill and murder must have been committed under such circumstances and with such premeditation and design as would have made the killing murder had death ensued, still it does not require that the willful intent, premeditation, or deliberation shall exist for any length of time before the crime was committed. It is sufficient if there was a design and determination to kill distinctly formed in the mind at any moment before or at the time the blow was struck or the pistol fired. In this case, if you believe from the evidence, beyond a reasonable doubt, that the respondent discharged his pistof at the under-sheriff, and that before or at the time he did so he had formed in his mind a willful, deliberate, and premeditated design to take the life of Britton, or any person who should attempt to seize the boat Louise under the warrant introduced in this case, and that the pistol was fired in furtherance of that design or purpose, and without justifiable cause or legal excuse therefor, then you should find the respondent guilty. * * - * In determining the respondent’s intent^ you may consider the threats made by him, if you are satisfied beyond a reasonable doubt that they were so made; and you may also consider the fact of his leaving the State in the manner he claims he did, as well as the fact that some'of the witnesses testified to having heard only four shots, as claimed by the respondent.”

We think the court correctly stated the law in this> charge, and that the testimony introduced by the people fully sustains the claim made by the prosecution that the shot fired by the respondent was without any reasonable or justifiable excuse whatever. These were questions of fact, which were fully settled by the verdict of the jury.

The claim made by counsel for respondent that this boat was a dwelling-house, and that respondent was justified in resisting an attempt to enter it or seize it, finds no warrant in this record. The boat was a common carrier of passengers for hire. The fact that respondent slept at night on a seat in the boat could in no manner change the character of the boat, and transform it into a dwelling-house. A somewhat similar question was raised in State v. Smith, 100 Iowa, 1 (69 N. W. 269). In that case the sheriff had for service an order issued by a justice of the peace for the removal of respondent and his goods and office furniture from a certain building in the village. He found the premises described in the order occupied by the respondent and his brother. The respondent, who was a physician, moved the medicines out of the building, but claimed that the groceries belonged to his brother. The latter was not named in the order, and refused to move the property. The sheriff insisted upon his right to do so, and, while attempting to enter the building after respondent had left it, the brother discharged a gun at him. The shot missed the sheriff, but hit four children, who were on the opposite side of the street. It was claimed that respondent was an accessory to the act. The respondent requested the court to charge the jury:

“You are instructed to determine as to whether or not that was the dwelling-house or habitation of John T. Smith [the brother]; and, if you find that it was his dwelling-house or habitation, you are then instructed that he did not, under the law, have to retreat from it, but could defend himself and resist intrusion by any means, if he, as a reasonable man, had an apprehension that the party making the attempt to enter was intending to commit great bodily harm, and that his entering was for the purpose of committing said bodily harm.”

This request was refused, and the refusal assigned as error. The supreme court of that State said upon that question:

“ It is urged by the defendant that the evidence authorized the jury to find that the room in which John T. Smith carried on his business was his living apartment, in which he resided. It appears that the defendant and his brother occupied the front part of a room 12 by 24 feet in size for business purposes. It was separated from the back part by a partition, which extended but a part of the way across the room, and did not reach the ceiling. John T. Smith had occupied the room with the defendant for about three months, having some groceries in the front part, and sleeping and keeping a satchel and some clothing in the back part. His occupation was by virtue of some arrangement with the defendant, who claimed that he had leased the premises, and he obtained his meals outside of the building. We find nothing in the record which would have justified the giving of the instruction refused. The evidence did not show that the place was a dwelling-house or private habitation, but a public place of business, to which the people of the community were expected to resort. The fact that John T. Smith slept and kept a few articles of clothing there did not change its character.”

The boat in question had no sleeping apartment, and, so far as the record shows, no place for meals, but was a small river boat, with seats extending around it, used in carrying passengers for hire. The public were invited to come there, and it cannot be regarded in any sense as a dwelling-house or castle of the respondent, which he had a right to defend from intrusion. He was not assaulted in his dwelling-house. The officers were there simply for the purpose of serving process, and, according to the testimony offered by the people, without any reasonable or justifiable excuse the respondent fired upon Mr. Britton.

In view of the above facts, we think it is not important to discuss the first question raised by respondent’s counsel. Whether the writ under which the officers were acting was void, and not fair upon its face, or not, is of no importance. The respondent could not take the law into his own hands, and, with so little excuse as here shown, assault another with a deadly weapon.

The conviction must be affirmed.

The other Justices concurred.


text:
    PEOPLE v. SEVERANCE.
    1. Nuisances — Abatement — Obstruction in Street — BoatHouse.
    A boat-house built in a river at the foot of a public street, in such adjacency to respondent’s premises as to destroy a passage desired by him for ingress and egress, constituted a nuisance, which respondent, after notice to the owner and the latter’s refusal to remove it, was justified in abating so far as was necessary to secure to himself the right of way; the same being accomplished without breach of the peace.

      2. Same — Assent—Estoppel.
    One’s assent to the erection of a nuisance will not estop him from afterwards demanding that the nuisance be abated.
    Exceptions before judgment from Ingham; Wiest, J.
    Submitted November 16, 1900.
    Decided January 29, 1901.
    Horace B. Severance was convicted of malicious injury to a building. Reversed, and respondent discharged.

      Leiuis Severance, for appellant.

      Arthur J. Tuttle, Prosecuting Attorney, for the people.
   Long, J.

The respondent was convicted in the Ingham. circuit court, before a jury, with having willfully and maliciously destroyed and injured a certain building, to wit, the boat-house of one Reuben E. Brackett, situated in Grand river, at the foot of Lenawee street east, in the city of Lansing, by sawing said building in two, and tearing off the west end of the same, the building having been damaged, as alleged, to the amount of $25. The action against the respondent was brought for the violation of section 11581, 3 Comp. Laws 1897, which provides:

“Every person who shall willfully and maliciously destroy or injure any house, barn, or other building of another, or the appurtenances thereof, if the damage resulting from such injury * * * shall not exceed $25, shall be punished,” etc.

It appears that the respondent was a tank manufacturer, and carried on business on land owned by him at the foot of Lenawee street east, on the north side of the street, on the bank of Grand river. Lenawee street east extends to the Grand river. Some time in the year 1897, Reuben E. Brackett, claiming to have received the consent of the mayor and of several individual members of the common council of the city of Lansing, erected a boat-house in Grand river at the foot of Lenawee street east. It extended some 26 or 27 feet into the water from the bank. It is the claim of Mr. Brackett that, before the boat-house was built, he consulted respondent, Severance, about it, and that respondent drove the stake marking the corner where the boat-house was to rest. In 1899 respondent’s business had increased to such an extent that he desirod the use of the rear end of his lot on the river for the purpose of piling lumber, and in order to have such use he was compelled to have a driveway to it to get his lumber in and out. Brackett’s boat-house stood so near respondent’s land that it was impossible for him to use the back end of his lot for such purpose without the removal of the boat-house or some portion of it. Respondent claims that he went to see Mr. Brackett in the summer of 1899, and asked him to remove it; that Brackett agreed to do this, but that he put off the period of removal until December, when respondent informed him that he must move it or he (respondent) would move it himself; that Brackett paid no further attention to the matter, when, in the same month, respondent sawed off about 12 feet of the boathouse for the purpose of making the driveway. Brackett owned no land where the boat-house stood, and it is conclusively shown that it was impossible for the respondent to enter upon his premises with teams by reason of the location of the boat-house.

Respondent asked the court to charge as follows :

“It is the law of this State that a private individual may abate a nuisance, either public or private, that is injurious to himself, so far as it is necessary to stop or prevent the injury, provided he can do so without committing a breach of the peace. And in this connection I say to you that if you find that the boat-house of complaining witness, Brackett, obstructed. or impeded the respondent in any degree in the full enjoyment of his property, then respondent must be acquitted by you, as it is conceded that he removed the obstruction without any breach of the peace.
“No person has a right to erect a permanent "'structure in the public highway, whether on land or water; and, as it is conceded that the boat-house of Brackett was in the highway, he was to that extent himself a trespasser, and had no rights in the use of the soil for such purpose which the abutting owner was bound to respect, as it is the law that a trespasser cannot justify his acts against an abutting owner on the grounds of a right of easement in the general public.”

These requests were refused, and the court charged the jury as follows:

“It is willful injury or destruction of property from ill-will or resentment towards its owner which is the gist of the offense. The injury must be such as to impair its utility. If it has not been shown that the injury was wanton, or if it was done under the belief that respondent had a right to commit it, and not from malicious motive, the offense has not been committed. If, at the time the respondent committed that act, he believed he had a right to remove that building, and did it solely for the purpose of opening a way to his premises, so that he might have a road or access to his premises, — if that was the sole and only purpose, — then it would be your duty to acquit. But if you find that under that pretense, or if you find that was a mere pretense of access to his premises, that it was a pretense that he used for the purpose of accomplishing the malicious destruction or the malicious injury of Mr. Brackett’s property, that he used it merely as a pretense, then it would not bar a conviction in this case.
“You will notice that the statute uses the word £ malice. ’ Malice is the gist of the offense, for without malice it would be a trespass. Unless you find from the evidence in this case that when respondent committed this act he was actuated by malicious motives, then it would be your duty to acquit, even though it was the destruction of Mr. Brackett’s property. He must have done the same maliciously. A malicious act is where a man does that which is illegal, and which in its necessary consequence must injure another, and a malicious injury is an injury committed willfully and wantonly, and without cause; and in this case a malicious intent is essential, and unless you are satisfied from the evidence, beyond a reasonable doubt, that the injury was done to the boat-house by respondent with málicious intent to injure the same, you should acquit him. The act, however, need not have been inspired by any particular wantonness or revenge against the owner of the property. But the act, if you find that the same was willful, and done with the intent and purpose of destroying or injuring the boat-house of Brackett, regardless of the rights of Brackett, may be considered by you in determining whether the same was done maliciously.
“Something has been said in this case about the abatement of a nuisance. I charge you that, under the evidence in this case, the boat-house, situated where it was, under the circumstances as testified to in this case, was not a nuisance of that character that would permit its destruction by a private citizen. So that, so far as the abatement of the nuisance was concerned, under the evidence in this case, it is* absolutely beyond your power to acquit the respondent on that theory. But if, as I said before, the respondent believed that that was an encroachment on his rights, and solely for the purpose of getting better access to his premises he removed a part of that boat-house, then it was a trespass, and it does not come within this criminal statute. But if he simply used that as a pretense, or if he told others that that was his purpose, when in fact that was not his. purpose, but his purpose was to destroy or injure maliciously the property of Brackett, then he would come within the provisions of this statute.
“You are not in this case to determine the boundaries of any one’s premises. The question of title is not in this case. It is merely a question for you to determine as to the motive which actuated the respondent. If his motive was, as I said before, merely to obtain a better access to the place, then he is not guilty. But if that was a pretense, and his motive was maliciously to destroy the property of Brackett, or to injure the property of Brackett, or motive of revenge or wantonness or willfulness, then it comes within the statute.”

We think the court was in error in refusing the requests to charge, and'also in the charge as given. It is well settled in this State that any person injured by a nuisance to the extent that he may maintain an action at law therefor may remove so much of the nuisance as is necessary to secure to himself immunity from damage therefrom; but he must not be guilty of any excess therein, for as to all excess of abatement he will be a trespasser'. This rule is taken from Wood, Nuis.' (3d Ed.) § 844, and quoted with approval in Hickey v. Railroad Co., 96 Mich. 501 (55 N. W. 989, 21 L. R. A. 729). Also that case quotes from section 848 of the same work, as follows:

“ The party judges at his peril, and, if he errs in judgment, he is answerable for all the damages that ensue; and if, in the exercise of the right, a breach of the peace is involved, he is answerable by indictment for the result.”

In the present case there is no claim that there was any breach of the peace.

There seems to be no dispute but that the building, standing as it did, destroyed the passage which the respondent had the right to use for ingress and egress to his premises from the highway in front of his premises. The mere fact that the boat-house stood in the waters of Grand river, instead of upon the land on Lenawee street, gave Mr. Brackett no right to have it continued there. The respondent’s premises extended to the thread of the stream in Grand river, and the boat-house obstructed his entrance thereon. The court should have directed the jury that the building, standing at the foot of this public thoroughfare, though in the waters of Grand river, being so near to' respondent’s premises that it shut off his ingress and egress, was a nuisance in fact. When Mr. Brackett refused to move the boat-house after notice, the respondent had the right to abate the nuisance, and the jury should have been so. instructed. Whether an obstruction in the street is or is not a nuisance is usually a question of fact for the jury, and not a question of law; but the testimony in this case, which is uncontradicted, establishes the fact conclusively that the boat-house was a nuisance. As a general legal proposition, the public has the right to use every part of a public highway. In Hart v. Mayor, etc., of Albany, 9 Wend. 571 (24 Am. Dec. 165), it was said:

“This float, if permanently moored and continued in the open part of the river, thereby rendering the navigation less safe and convenient, would, I apprehend, most clearly be a public nuisance, liable to be indicted as such, or to be abated, without indictment, by any individual who might be injured or aggrieved by it.”

It was held in Pontiac, etc., Plank-Road Co. v. Hilton, 69 Mich. 115 (36 N. W. 739), that any unauthorized obstruction of a public street is a public nuisance, which any citizen desiring to travel along the street may abate if he can do so without a breach of the peace.

The mere fact that the respondent assented to the building of the boat-house would not estop, him from demanding tbat the nuisance be abated. Pilcher v. Hart, 1 Humph. 524.

It will be seen from what we have said that the court below was in error in stating that the boat-house was not a nuisance of that character that would permit its destruction by a private citizen.

We think the eoujrt was also in error, in his charge as given, in stating that if the jury found that respondent made it a pretense that he desired an approach to his property, but that his motive was to maliciously destroy the property of Brackett, or to injure it, or if they found he was actuated by motives of revenge or wantonness, his offense would come within the statute. We find nothing in the record which authorized the court to submit such question to the. jury. At most, it could not have been .more than a trespass, and the respondent apparently acted within what he considered the scope of his rights in the abatement of a nuisance by which he was injured in his property rights.

The conviction must be reversed, and the respondent discharged.

The other Justices concurred.