text:
    LENTZ v. LENTZ.
    1. Divorce — Habitual Drunkenness — Statutes.
    Complainant was correctly denied a divorce on the ground of habitual drunkenness of her husband, who, the testimony showed, was intoxicated on four or five different occasions in distinct years, the last one being two years before the hearing.

    2. Same.
    Habitual drunkenness is the habit of becoming intoxicated as often as the temptation presents itself. 2 Comp. Laws, § 8621.
    8. Same — Cruelty—Condonation.
    A decree denying complainant a divorce was warranted on the ground that she condoned extreme cruelty by continuing to live with her husband after the acts complained of, which were not subsequently revived.

      Appeal from Arenac; Sharpe, J.
    Submitted June 10, 1912.
    (Docket No. 60.)
    Decided July 22, 1912.
    Bill by Mary F. Lentz against John C. Lentz for divorce. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      B. J. Henderson, for complainant.

      William Q. Cook, for defendant.

       Drunkenness as a ground for divorce, see note in 34 L. R; A. 449.

   Stone, J.

In this case the bill of complaint praying for an absolute divorce was filed March 27, 1911, and, as near as we can gather from the record, the case, being at issue, was heard in June of the same year, the testimony having been taken in open court, as in á suit at law.

At the time of the filing of the bill the complainant and appellant was about 49 years of age, and the defendant about 55 years old. The parties were married December 28, 1882, and had lived together upwards of 25 years. There were born to them five children, all of whom have grown to manhood and womanhood, the eldest at the time of the filing of the bill being 27 years old, and the youngest 20 years old. Prior to the marriage the complainant had been a teacher in the public schools in the vicinity of the residence of the parents of the defendant, and the defendant had been, as a young man, engaged in logging and sawmill work connected with his father’s business. For the greater part of their married life the parties lived on a farm of 160 acres, the title to 40 acres of which, including the dwelling house, is in the name of complainant; the remainder being owned by the defendant.

The complainant charges the defendant with habitual drunkenness and extreme cruelty. Upon the subject of habitual drunkenness, most of the testimony on the part of complainant was directed to four or five specific occasions of intoxication, one in the year 1903 or 1904, one in the year 1905, one in the year 1906, and one in the year 1907. The occasion in 1903 or 1904 was a Hallowe’en jubilee given by one of the neighbors. Complainant testified that on that occasion defendant came home between 2 and 3 o’clock in the morning smelling so strongly of liquor that she was obliged to leave the bed and go into another room to sleep. She further testified as follows:

“ In the morning when I went' into the room to dress there was nothing said, and I went on and got breakfast for the threshers who were there at that time, and the family. I went down cellar after breakfast, and I could hear Mr. Lentz making an awful noise upstairs. The maid was washing the dishes when I came up, and I said to her: £X wonder what he is hollering about, talking about shooting.’ I went toward the bedroom door, and he was lying on his stomach, and had his hand out reaching for his pants, and he said he would shoot, calling me the same name that he generally did when he was in that condition. I was frightened and told some of the children, I do not remember which one, to go to the barn and have some of the men come over, and Joe Youngman came and took his pants away and took the revolver out of them, and gave it to me, and told me to put it away where he would not get it again. Mr. Lentz stayed in bed that day until after the threshers had got all through and left, the boys looking after the business.”

Referring to the intoxication in 1905, complainant testified :

££ In the spring of 1905 he had an accident in Standish while he was in an intoxicated condition, which resulted in a damage suit which cost him between #600 and #700. I was at home when he arrived thére after the accident, but I did not see very much of him. A man brought him there who he said was the deputy sheriff, came to drive his horses and bring him home. I don’t think he came in the house at all. I just saw him lying up against the house, and he went off somewhere. My son Estey had to take the deputy sheriff back with the team.
The Court: Did you see enough of Mr. Lentz to know what his condition was ?
“A. Well, he was standing or leaning against the corner of the house.”

Speaking of the intoxication in 1906, the complainant testified as follows:

“ The boys had measles four or five years ago. First one would come down with them and then another. They were not sick very long, but it was a week anyway. During all the time that the boys were sick with the measles he was not at home. I learned later that he was in Standish, and I supposed he did not know enough to come home by reason of intoxication.”

Referring to the intoxication in 1907, complainant further testified as follows:

“ A day or two before Thanksgiving, 1907, he went to a bee, and did not come back until evening. I could hear him coming down the road yelling. I was washing the dishes when he came to the house. A couple of men brought him to the house, but I did not see who they were. I was standing at the door holding it open, and I looked out and saw that two men had brought him home, and I said, ‘ You need not bring him here, just take him where he got his whisky and keep him there,’ but they went right on, and I shut the door, and just as soon as I did Mr. Lentz began to kick the panels out, and the next minute the door fell down, and he commenced calling me names, and I ran.
“Q. Just tell the court the language he used.
“A. I can remember the words, but I do not like to say them. When he went through into the dining room, the door was closed, anyway he closed it behind him, and I ran out into the yard, and I saw my boy over at the barn doing the chores, the youngest boy, and he came to the house just as I ran out the front door, and I saw that he was going in through the house, through the back door, and 1 ran around to the south window where I could look into the kitchen, and see what was going on, and the two of them were clinched. The table was in the center of the room and the chairs on the side of the room, and Mr. Lentz was falling around on the chairs. Earl was about 16 or 17 then, and had been sick with appendicitis, and was weak, and I was real frightened for fear he would get hurt, and I ran across the road to Mr. Bowers, and told him to come over. Frank Bowers and George Loamoria came over home with me, and, the door being down, they helped to get some hinges off of another door and put it up, and I told them that I was going down to my brother’s, that I would not stay there, and they said they would take Mr. Lentz, and take care of him that night, for me not to go away, and they took him and kept him all night, and I stayed home. I was preparing to have company for Thanksgiving time and I had to give it up; the house being all kicked to pieces in such a drunken brawl that I did not feel like having anybody there. _ He also kicked the panels out of the door between the dining room and kitchen. Neither of the doors was locked, and there was nothing to prevent him walking right through. The house that this occurred in belongs to me individually.”

She further testified generally that the defendant would frequently go to town to do business and stay two or three days at a time, and this conduct became more frequent the last two or three years that they lived together; that it grew on him, and his disposition got worse; that during the times he was under the influence of liquor he would come home and “ make a scaring,” and tell complainant and the. chidren to get out; that the last time he came home he said things would have to be run differently ; that he was going to run the business himself; and that things would be fixed up differently. This appears to have been shortly before the bill was filed, and just before the lease hereinafter referred to expired. On cross-examination the complainant testified as follows:

“Q. How rpany times have you seen him intoxicated in the last two years ?
“A. Well, I have only seen him once.
“Q. How long ago!
‘A. I think it’was two years ago last Christmas [1908].
fiQ. You have not seen him under the influence of liquor in two years ?
“A. I think it has been two years since I have seen him intoxicated.
“Q. He has not been drinking then in the last two years ?
“A. I don’t know what he has been doing. I presume he has.
“Q. You didn’t see him drinking inside of two years ?
•‘A. No.
/ “ Q. How many times in the last two years has he been to your place ?
“A. Why, he would be there off and on when he was not somewhere else. He would come there and stay a few days at a time. * * *
“Q. Then, since Thanksgiving, 1907, you have lived with John as his wife, have you ?
“A. Yes, sir.
“Q. How long is it since you ceased to cohabit with John as his wife ?
“A. Well, I don’t know the date, but about the 1st of May three years ago.
(‘Q. And you have lived with him for the last three years as his wife; that is, when he would come back and stay at the place ?
“A. Well, as near as I can remember the last time was about one month after the boys rented the farm.”

It appears that on March 28, 1908, the two oldest sons rented the farm from the parties for a term ending April 1, 1911. This included the dwelling house and the entire 160 acres above referred to. The complainant lived with the boys and kept house for them. There seems to have been a good deal of friction between the defendant and the boys. For a time the defendant appears to have made his home at the common dwelling house, having a room there, but after some trouble with the boys, growing out of the use of a fence wire stretcher that was on the farm belonging to the defendant, which the boys had agreed to use on a farm of defendant’s sister, which displeased the defendant, and led to a personal encounter between him and the boys, resulting in their getting possession of the instrument, he seems to have left the home, and has most of the time since resided elsewhere.

The evidence bearing upon the question of extreme cruelty has already been foreshadowed in what has appeared in the testimony above quoted. There is no claim made by complainant of actual personal violence. The cruelty complained of consisted of threats and abusive language while intoxicated, and the trouble which defendant seems to have had with the boys, especially the two older ones, in connection with their working the farm. It is the claim of the defendant, and he gave evidence tending to show, that there had never been any serious trouble between him and his wife until after the boys rented the farm, that in his differences with them the complainant uniformly sided with the boys, and he claimed that matters became so unpleasant that he was denied a place at the family table, and that he was really driven away from his home. He not only testified himself, but produced a number of witnesses to show that during the two years immediately preceding the hearing he had not been intoxicated at all. He admits that he from his boyhood has drunk liquor occasionally, but not to excess; that his wife knew of this habit when she married him, and it appears in complainant’s testimony that she had at least heard of his drinking before she married him. We have already quoted sufficient of the record to show the general trend of the testimony. We have read it all carefully, and it would not be prpfitable to repeat more of it.

The circuit judge, who heard and saw the witnesses testify, dismissed the bill, and denied the relief prayed for, upon the ground that the evidence did not show that the defendant was an habitual drunkard, and that he could not grant a decree on the ground of extreme cruelty under the evidence in the case. It might be urged with much force that complainant condoned the bad conduct of the defendant complained of, down to and including Thanksgiving, 1907, and that since that time the evidence does not show any revival of such ill conduct on his part.

The court announced the following opinion when ordering the bill dismissed:

“ The counsel I think are practically agreed upon the definition of ‘ habitual drunkenness.’ The bill in this case charges habitual drunkenness and extreme cruelty; aside from the drunkenness, I do not think it can be said that the proof of extreme cruelty is such as would entitle the complainant to a decree. These parties have lived together 25 years and more, and I doubt whether there are very many families living in Arenac county, situated as (they have been, that have brought up a family that have not had more trouble than these parties have had, aside from the defendant’s intoxication; so I do not think I should grant a decree in this case on the ground of extreme cruelty. Now, the question of whether or not the complainant has made out a case of habitual drunkenness, there might be some doubt about it. I think habituál drunkenness means just what counsel suggests. I think that it means that a man gets drunk whenever a reasonable opportunity offers for it. I do not think it means that whenever he comes to town he must get drunk, but I think it does mean that whenever there is a reasonable opportunity for his intoxication he gets intoxicated. In my judgment there is not a charge made that is so easily proven as habitual drunkenness by proofs outside the family. If this man is an habitual drunkard, there are a hundred people in Standish who know it, and know it just as well as the complainant knows it, because it does not appear that his drunkenness was brought about by his taking liquor home and drinking it there. Now, if counsel will examine the testimony of the witnesses in this case, I do not think there is any evidence at all to establish the fact that this man is an habitual drunkard. There is evidence, of course, that he gets intoxicated, but intoxication is not a ground for divorce. If it was, there would be very many divorces granted in this and other counties. The intoxication must become habitual. As I say, if this man Lentz has lived within four or five miles of Standish all his lifetime, and all the liquor he gets apparently he gets here so far as the evidence tends to show, and if he is an habitual drunkard, as I say, I think there could be 30 or 50 business men in Standish called to establish that fact. I do not think under the evidence in this case I can say that this man is an habitual drunkard.”

We are impressed in this case with the fact that nearly all of the evidence adduced on the part of the complainant consisted of her own testimony and that of her sister and boys; the testimony of the latter, with the exception of the specific occasions referred to, being very general, so general in fact as to say “we expected him to come home drunk every time he left home.” And yet both they and complainant testified that on very many occasions he did not come home drunk. On the part of defendant, a number of neighbors, who have known the parties since their marriage, testified that they had not seen defendant drunk more than once or twice in the last three or four years. This court said, speaking of habitual drunkenness :

“ One who has the habit of indulging in intoxicating liquors so firmly fixed that he becomes intoxicated as often as the temptation is presented by his being in the vicinity where liquors are sold is an habitual drunkard within the meaning of the divorce law,” [3 Comp. Laws, § 8621]. Magahay v. Magahay, 35 Mich. 210.

See, also, Rapp v. Rapp, 149 Mich. 219 (112 N. W. 709).

The most that can be said, giving the testimony of complainant full credence, is that defendant was occasionally under the influence of intoxicants. This is not in our opinion the habitual drunkenness contemplated by the statute. Meathe v. Meathe, 83 Mich. 150 (47 N. W. 109); Tierney v. Tierney, 169 Mich. 600 (135 N. W. 654). We are of opinion that we should not disturb the finding of the circuit judge, who seems to have considered the evidence very carefully and reached, in our judgment, the only conclusion warranted by the evidence.

The decree of the circuit court is affirmed, but without costs to either party.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    KELLOGG v. KELLOGG.
    1. Divorce — Extreme Cruelty — Clean Hands — Equity.
    A decree of divorce will be denied to both complainant and defendant who have been guilty of the same misconduct, i. e., extreme cruelty. 8 Comp. Laws, § [8625.
    2. Same — Maxims.
    Complainant or cross-complainant in divorce proceedings must come into equity with clean hands.
    Appeal from Wayne; Donovan, J.
    Submitted June 11, 1912.
    (Docket No. 73.)
    Decided July 22, 1912.
    Bill by Vivian A. Kellogg against Frank J. Kellogg for divorce. From a decree for complainant, both parties appeal, complainant asking for increased alimony.
    Reversed; bill and cross-bill dismissed.
    Frazer, Griswold & Sly field, for complainant.

      Dwight C. Bexford, for defendant.
   Stone, J.

On February 2, 1911, the complainant and cross-defendant filed her bill of complaint against the defendant and cross-complainant praying for an absolute divorce from the bonds of matrimony, and for alimony, alleging as ground therefor repeated acts of extreme cruelty of the defendant, consisting of personal violence and permanent physical injuries, false charges of improper conduct with men, attempts to take the life of complainant, refusing and refraining from speaking to her for several days at a time, insane jealousy, the use of obscene and opprobrious epithets and names, orders to leave the house of defendant, quarrelsome, abusive, and tyrannical conduct towards complainant, and violent outbursts of anger, all of which it was claimed had impaired the general health and nervous system of the complainant; and numerous specific instances of such alleged cruelty are detailed at great length in the bill of complaint.

The defendant filed his answer in the nature of a cross-bill, asking for a divorce on the ground of extreme cruelty and adultery. The several acts of extreme cruelty charged in the cross-bill áre similar in nature and character to those charged by complainant, and also that complainant was dissolute in her habits, and had brought shame and disgrace upon defendant by going out riding with men, visiting saloons, and returning home late in the evening intoxicated, and by entertaining men at their home with wine, in the absence of defendant. Specific instances of such alleged extreme cruelty are set forth in great detail.

The pleadings in this case constitute chapters of accusation, crimination, and recrimination. There is not an act of misconduct charged by the one party that is not denied by the other party. The answers to the bill and cross-bill consist of repeated denials of the charging allegations; the only exception being the admission of defendant that he had been divorced by two former wives.

The case, being at issue, was heard in November and December, 1911, and resulted in a decree for complainant, and a dismissal of the cross-bill, with $25,000 alimony and $4,000 for solicitor’s fees and expenses.

At the time of the hearing, the complainant was 28 years of age and the defendant was 68. The marriage of the parties took place June 8 or 9, 1909; defendant’s second wife having obtained a divorce from him upon the grounds of extreme cruelty on May 14, 1909. The parties had first met in 1907, and entered into correspondence and became interested in each other while defendant was living with his second wife. It was claimed upon the hearing that defendent had been guilty of subornation of perjury by inducing witnesses to swear falsely (against the. complainant. This was as strenuously denied. Both parties have appealed to this court; the complainant claiming inadequate alimony, and defendant claiming that he and not the wife should have been given the decree.

A careful perusal of the pleadings and record, covering nearly 1,000 printed pages, has satisfied us that it is our duty to relieve our reports from the sickening and distressing details of the testimony and claimed facts in this case. It would profit no one to set out the testimony. If a tenth part of the testimony of either party is to be believed, the other party has been guilty of the same misconduct as that charged. Neither party deserves particular consideration at the hands of the court.

The last clause of section 8625, 3 Oomp. Laws, provides that:

“No divorce shall be decreed in any case where the party complaining shall be guilty of the same crime or misconduct charged against the respondent.”

We are of the opinion that this provision of the statute should be applied in this case. As was well said by Justice Cooley in Hoff v. Hoff, 48 Mich., at page 282 (12 N. W. 160):

“A proper administration of justice does not require that courts shall occupy their time, and the time of the people who are so unfortunate as to be witnesses to the misdoings of others, in giving equitable relief to parties who have no equities. And it is as true of - divorce cases as of any others that a party must come into a court of equity with clean hands. Divorce laws are made to give relief to the innocent, not to the guilty.”

In the instant case both parties are complainants, hence the doctrine applies that the complainant in a bill for divorce should be free from fault. Divorce is a remedy for the innocent as against the guilty, and should not be granted where both parties are at fault.

This is no more than the application of the equitable rule that one who invokes the aid of a court must come into it with a clear conscience and clean hands. Divorce is a remedy for the innocent and injured, and the complainant who has himself broken the marriage contract connot well ask to be relieved from its obligations because his spouse may also have broken it. The law is for the assistance of those who obey it, and not for those who violate it, and, where two parties are both in the same wrong, the court helps neither. 2 Bishop on Marriage and Divorce (5th Ed.), § 87; Stafford v. Stafford, 53 Mich. 522 (19 N. W. 201); Warner v. Warner, 54 Mich. 492-495 (20 N. W. 557); Morrison v. Morrison, 64 Mich. 53 (30 N. W. 903); Minde v. Minde, 65 Mich. 633 (32 N. W. 868); Stiehr v. Stiehr, 145 Mich. 297 (108 N. W. 684); Root v. Root, 164 Mich. 638 (130 N. W. 194, 32 L. R. A. [N. S.] 837, Ann. Cas. 1912B, 740; 14 Cyc. pp. 648-649; 9 Am. & Eng. Enc. Law (2d Ed.), p. 816.

Were we to apply a rule of comparative extreme cruelty, we might grant relief to the one found to be guilty of the lesser misconduct, and find against the one guilty of the greater misconduct, but the statute contemplates no such rule, and is imperative that no divorce shall be granted in any case where the complainant shall be guilty of the same misconduct as that charged against the other party. The facts in this case warrant the application of this statute.

For the reasons stated, the decree below will be reversed, the bill and cross-bill dismissed, and there will be allowed to complainant’s counsel the sum of $4,000 for solicitor’s fees, expenses, and disbursements in the suit, to be paid by defendant.

Moore, C. J., and Steers, McAlvat, Brooke, Ostrander, and Bird, JJ., concurred. Blair, J., did. not sit.


text:
    PEOPLE v. TESSMER.
    1. Criminal Law — Animals—Malicious Injury — Statutes.
    Malice towards the owner of an animal is not an essential ingredient of the crime prohibited by 3 Comp. Laws, § 11681; respondent was guilty of a violation of the statute for pulling out the tongue of a horse with which he was working and which belonged to a third person, though he was induced to commit the offense because the horse balked, and not because he held any malice towards the owner.
    2. Same — Trial—Special Questions — Jury—Verdict.
    Answers to special questions submitted to the jury were not controlling as they would be in civil cases: the jury’s right to render a general verdict is not impaired in criminal cases by 3 Comp. Laws, § 10237.
    Exceptions before sentence from Washtenaw; Kinne, J.
    Submitted June 14, 1912.
    (Docket No. 137.)
    Decided July 22, 1912.
    Carl Tessmer was convicted of wilfully mistreating and maiming a horse belonging to another.
    Affirmed.

      George J. Burke, Prosecuting Attorney, for the people.

      Arthur Brown, for respondent.
   Stone, J.

The respondent was convicted of a violation of section 11581, 3 Comp. Laws, which reads as follows:

“ Every person who shall wilfully and maliciously kill, maim, or disfigure any horses, cattle, or other beasts of another, or shall wilfully and maliciously administer poison to any such horses, cattle or other beasts, or expose any poisonous substance with intent that the same should be taken or swallowed by them, or who shall wilfully and maliciously destroy or injure the personal property of another, by any means not particularly mentioned or described in this chapter, shall be punished by imprisonment in the State prison not more than five years, or by fine not exceeding one thousand dollars, and imprisonment in the county jail not more than one year.”

The particular offense charged against the respondent was that, at the time and place alleged, he feloniously, maliciously, and wilfully did maim one bay mare, the property of one Silas Elsifor. It was claimed that the act was committed by respondent by putting a strap around the animal’s tongue and pulling upon it with both hands and with his full strength, accompanying the act with the remark that he would make the mare draw or he would kill her; and that the animal was so badly injured that she had to be killed.' There was no evidence of any malice toward the owner of the horse, and it appeared that respondent ill treated and misused the animal because he became angry at it for refusing to work. The respondent was convicted by the jury of the offense charged, and he has brought the case here on exceptions before sentence.

Counsel for respondent in his brief makes but two contentions raised by the assignments of error, as follows:

“ It is submitted, first, that the court at the close of the testimony, because there was no evidence of malice toward the owner of the animal, and because it conclusively appeared from the evidence that the respondent committed the acts charged because he became enraged at the animal for refusing to do its work, should have directed a verdict for the. defendant; and, second, that the court, upon the answers to the two special questions submitted to and answered by the jury, should have granted the motion of defendant, and set aside the general verdict of guilty and entered a verdict of not guilty and ordered the discharge of the respondent.”

He further says:

“Assignments 14 to 20, in one form or another, all relate to the question of whether or not malice toward the owner of the animal was an essential ingredient of the crime charged. These assignments will be considered together, and for the reason , that we think that a decision upon this point will dispose of .the case, we will consider them first: (1) Is malice toward the owner of the animal an essential ingredient of the crime charged ? The jury having found that the respondent did not commit the acts charged against him, because of any malice or ill will that he had against Mr. Elsifor, the owner of the animal, it became and was the duty of the circuit judge to have directed a verdict of not guilty, and to have ordered the discharge of the respondent.”

The above and foregoing quotations in the language of counsel for respondent disclose the only points that he urges as ground of reversal. In fact, upon the oral argument he confined himself to the first point. He makes no claim that the court erred in its charge to the jury, and no error is assigned for this reason except assignment 19, because the court charged that:

“In order to convict the defendant of the crime charged, it is not necessary to establish any express malice against the owner of the horse, Mr. Elsifor. The defendant may, if you find the circumstances justify it, and the law as I shall otherwise instruct you, the defendant may be convicted of the crime charged even though he entertained no ill feeling or malice against Mr. Elsifor, except what the law may imply from the injury to the property of Mr. Elsifor.”

It is urged by counsel for the respondent that the instant case is governed by the case of People v. Minney, 155 Mich. 534 (119 N. W. 918). In that case the respondent was charged under the same statute with mutilating a horse by cutting off its tongue. That the decision in the Minney Oase may not be misunderstood, it requires a careful examination. Such examination will disclose that the case was not reversed upon the question whether malice towards the owner of the animal was an essential ingredient of the crime charged, but upon the testimony of a detective of a claimed confession of the commission of a similar offense by respondent, and over "four pages of the decision are devoted to the discussion of that question. Justice Grant distinctly states that:

“ It was not shown that respondent had any motive for the commission of the crime. He had no ill will against Mr. Murphy (the owner), had done some work for him about two years before, and they had had no intercourse since. * * * The act itself is one of those which, when proven, conclusively establishes the malicious intent if committed by a sane person. * * * If the evidence established the fact that the respondent committed .the deed, he would escape conviction only by a further finding by the jury that he was irresponsible by reason of insanity.”

Coming to the discussion of the question involved in the instant case, at the bottom of page 540 of 155 Mich. (119 N. W. 921), attention is called to the error assigned upon the instruction of the court that “ it is not necessary that there be malice towards the owner of the animal in a case like this.” Justice Grant then says:

“Maliceis an essential ingredient of the crime, and under the clear weight of authority, both in England and the United States, the malice required must be toward the owner or custodian of the animal, and not malice toward the animal. The rule to be deduced from the authorities is that it is not essential to show express malice, but that the malice required may be shown by the character of, and the circumstances surrounding, the crime” — citing authorities.

He then quotes from Mr. East as follows:

“But it does not appear to have been decided that it is necessary to give express evidence of previous malice against the owner in order to bring a case within the act; but, the fact being proved to be done wilfully, which can only proceed from a brutal or malignant mind, it seems a question solely for the consideration of the jury to attribute the real motive to it, to which the transaction itself will most probably furnish a clue.”

The opinion then proceeds to state that the question under this statute had not before arisen in this State, but that it had arisen upon two other statutes involving malicious injury to property. Section 9275 of Howell (which was repealed in 1891 [Act No. 28, Pub. Acts 1891]) is then quoted in full. We quote the remainder of the opinion on page 542 of 155 Mich. (119 N. W. 921):

“ In People v. Petheram, 64 Mich. 252 [31 N. W. 188], the defendant was arrested, charged with conspiring and combining with others to wilfully and maliciously obstruct and impede the regular operation and conduct of the business of a manufacturing company. It was there urged that the intent and malice must be aimed at the business obstructed. The court held, however, that the statute did not require malice to be shown toward the owner or his business or property, but that the malice required to be shown was the general malice of the law of crime, and that the acts shown may, as in other cases, furnish the presumption of malice. In a prosecution under section 11584, 3 Comp. Laws, for maliciously injuring a building, the same rule was followed, citing and approving People v. Petheram; People v. Burkhardt, 72 Mich. 172 [40 N. W. 240]. The malice required under the statute now under consideration is not different from the malice required by the statute in the above cases. To sustain the contention on behalf of the respondent in this case would be to overrule those two cases. They have stood unchallenged for many years,, and we see no occasion now to overrule them. See, also, State v. Boies [68 Kan. 167, 74 Pac. 630,1 Am. & Eng. Ann. Cas. 491], and Brown v. State [26 Ohio St. 176],
“In view of a new trial we may say that the court should instruct the jury that malice is an essential ingredient of the crime.”

An examination of People v. Petheram, supra, will show that the question was fully discussed and the distinction between malicious mischief and these statutory offenses is pointed out, and Justice Morse said on pages 265 and 266 of 64 Mich. (31 N. W. 194):

“Malice is best defined, in my opinion, as ‘a wicked intent to do an injury’; and it is not necessary that the malice be directed against any particular person; it may be deduced from an intent generally to injure.
“It is a general rule, governing the law of malice, that when a man commits an act, unaccompanied by any circumstances justifying its commission, the law presumes that he has acted advisedly, and with an intent to produce the consequences which have ensued.”

In People v. Burkhardt, supra, the respondent was charged with a violation of section 11584, 8 Comp. Laws, for maliciously injuring a building of another, and it appeared that there was no reason to believe that respondent had any malice toward the owner of the building; and the trial court was requested to charge that no evidence of malice had been given, and that the jury must acquit. This request was refused. This court held that the case was ruled by People v. Petheram, supra, and that, from the act itself, there was evidence from which the jury could infer malice, and the conviction was affirmed.

It will thus be seen that in People v. Minney it was held that the malice required under the statute now under consideration is not different from the malice required by the statutes in the two cases above cited; and that to sustain the contention on behalf of the respondent in that case would be to overrule those two .cases, which this court declined to do. We think that, the, last headnote to the Minney Case is misleading, and that this court did not decide the malice toward the owner or custodian of the animal is an essential element of the crime. It is true that Justice Grant said that the weight of authority, both in England and the United States, was to that effect, yet, by reason of the previous decisions of this court referred to, that rule was not sanctioned, but that it was true that malice is an essential ingredient of the crime, but not necessarily malice toward the. owner or custodian. We have carefully considered the cases cited because of the earnest contention of respondent’s counsel that an application of the doctrine of the Minney Case would result in an acquittal of respondent.

It appears from this record that the respondent, at the time of the offense charged, was a man of mature years; that he was sane; that he did in fact maim the animal; that he maimed it so badly that it was found necessary to shoot it; that he was urged at the time by a person present not to commit the acts that he did commit; that he refused to desist, and declared that, if necessary, he would kill the animal.

The trial court, among other things, charged the jury as follows:

“ Before you convict the respondent of the crime with which he is charged in the information, you must find from the evidence that the deed was done wilfully and maliciously, and I charge you that malice is an essential ingredient of the crime, but, as I have already stated to you, malice may be inferred by you from the facts and circumstances surrounding the commission of the offense. If you find from the evidence in this case that the respondent Tessmer had the intent to do the act charged against him in the information unlawfully, it makes no difference whether it be from spite or revenge or hope of gain and profit; malice may be presumed from that conduct. That perhaps is a repetition of what I have already said. It is a general rule governing the law of malice that when a man commits an act unaccompanied by any circumstances excusing or justifying him in such act, the law presumes that he acted with the intent to produce the results that follow his act. The statute upon which this information is based does not require malice to be shown towards the owner or his business or property, but the malice required to be shown is the general malice of the law of crime, and the acts proven and the evidence proven and the evidence produced may furnish that presumption of malice. The acts need not be inspired by any particular wantonness, cruelty, or revenge against the owner of the property to furnish that presumption of malice. On the part of the defendant I give you these:
“‘Before you can convict the defendant of the e~ime charged, you must find from the evidence that by his wrongful act he not only deprived the horse of the use of its tongue, but you must also find from the evidence adduced here upon the trial and beyond a reasonable doubt that, at the time he committed the acts that resulted in the loss of the use of the tongue to the horse, he (the defendant) intended that what he did would have that effect, for, unless the defendant intended by what he did to the horse to deprive it of the use of its tongue, then in that case he is not guilty of the offense charged, and your verdict must be for the defendant.’”

2. The other ground upon which counsel for respondent asks for a reversal is stated as follows:

“The court upon the answers to the two special questions submitted to, and answered by, the jury should have granted the motion of defendant, and set aside the general verdict of guilty, and entered a verdict of not guilty, and ordered the discharge of the defendant.”

Those questions were as follows:

(1) Did the defendant commit' the acts charged because of the malice or ill will that he had at the time against Mr. Elsifor, the owner of the horse ? Answered: No.

(2) Did the defendant misuse and illtreat the horse because he became angry at it for refusing to do its work ? Answered: Yes.

Not only were the questions and answers not controlling of the general verdict, in our view of the case, but this court has held, on at least two occasions, that the statute (section 10237, 3 Comp. Laws), authorizing answers to particular questions to control a general verdict, does not apply to the trial of criminal cases, and that any limitation upon the right of the jury to find a general verdict in criminal cases is against the policy of the law. People v. Marion, 29 Mich. 31-40; People v. Roat, 117 Mich. 578-582 (76 N. W. 91). The trial court might have refused to submit the questions. Having submitted them, the answers were immaterial and not controlling in any "view of the case.

We find no error in the record, the conviction of the respondent is affirmed, and the trial court is directed to proceed to judgment upon the verdict.

Moore; C. J., and Steere, MoAlvat, Brooke, Ostrander, and Bird, JJ., concurred. Blair J., did not sit.


author: Moore, C. J.

text:
    HERAL v. McCABE.
    Husband and Wife — Married Women — Services —Action — Parties.
    The legal presumption that the wife’s services are employed for the husband’s benefit applies to persons contracting with the husband for the services of his wife, who may not recover for her labor in her own name, unless the defendant understood that she was emancipated and expected compensation.
    Error to Ionia; Davis, J.
    Submitted June 17, 1912.
    (Docket No. 114.)
    Decided July 22, 1912.
    Assumpsit by Julia Heral against John J. McCabe for work and labor. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      William M. Smith, for appellant.

      Scully & Davis, for appellee.
   Moore, C. J.

The plaintiff was a washerwoman living in Hubbardston, Ionia county. Defendant is the priest of the Catholic Church at that place, and plaintiff claims she was hired by him in May, 1901, to wash and iron the altar linens, surplices, priest’s robes, boys’ robes, towels, napkins, etc., used in the church; that she washed and ironed those articles sometimes once a week, sometimes more often, and sometimes a little less often, from the time she began doing the work until she was forced to give it up by reason of ill health in July, 1909. She claims she was hired by the priest to do this work without specification as to what her compensation would be, but that the woman who had done the same work before had received $25 per year, and that said amount was what she expected she would be paid. She claims the priest is liable to her for whatever she earned, and that he never paid her. Some time in the late winter or early spring of 1910, she wrote the priest, or caused to be written, a letter asking for her pay for this work. She was not paid, and began this suit by declaration filed April 27, 1911. The declaration is on the common counts with a speciál count setting up the' hiring and the work done, etc. A bill of particulars was filed. Defendant filed a plea of the general issue, and notice of payment and of the statute of limitations.

At the close of the plaintiff’s case the defendant demurred to the evidence, and moved the court to direct a verdict for the defendant for substantially the following reasons:

(1) For the reason that plaintiff was a married woman, and her services belonged to her husband, and she could not sue for them.

(2) For the reason that, under the testimony, defendant was not the proper party defendant, even if the plaintiff had the right to sue. .

The court granted the defendant’s-requests and directed a verdict in favor of the defendant at the close of the plaintiff’s case. Judgment for defendant was thereupon entered on the verdict.

Plaintiff has brought the case to- this court upon error, claiming that the court erred in the following particulars:

(1) That the court erred in holding and directing the jury that, under the testimony in the case, plaintiff had no right to bring suit.

(2) That the court erred in holding and directing the jury that, even though the plaintiff was the proper party plaintiff, said defendant was not liable under the testimony in this case.

(3) That the court erred in admitting certain evidence, and in excluding other evidence. ,

Under proposition 1, it is argued that—

“ A married woman has, under certain circumstances, the right to sue for, collect, and have her own earnings in this State.”

Appellee does not question this proposition, but says it is not applicable to this case. Upon this proposition it is necessary to consider the testimony offered on the part of plaintiff, who is a married woman living with her husband during all of the time the service was rendered.

The husband of plaintiff had been in the employ of the priest who preceded defendant, and of the congregation. He looked after the church, did work for the priest, and had charge of the cemetery connected with the church. He was sworn as a witness for the plaintiff. His testimony as to the hiring is as follows:

“A. Father McCabe came to Hubbardston right after the other priest died, two or three weeks after, I think. At the time Father McCabe came there, Mrs. Sarah Burke in Hubbardston was doing the washing that my wife afterwards did. Mrs. Burke continued to do the washing nearly three months after Father McCabe came there to Hubbardston.
C‘Q. Did Father McCabe hire you todo work in connection with the church ?
“A. He wanted to hire me after the 1st of March after he took charge; I refused to hire with him by the year. I did do the work, but I only done it until he could get another man at that time. It was about the 1st of March that I began. Father McCabe came to me at one time to say something to me about getting Mrs. Heral to do some washing; the Sister had found fault all winter before Father McCabe came; after Father McCabe came there, he and I were standing together, he was giving me some orders about work, we stood at the bottom of the church steps; the Sister came to the front door, and she says, ‘Father, I can’t get this woman,’she says, ‘to do our work right; she won’t do it as I want her to do it.’ ‘Well,’he says, ‘if she won’t do it we will try to get somebody that will. ’ And he turned around to me and he says, ‘Would your wife do it?’ I says, ‘I heard my wife say she had all of the washing at present she could handle.’ ‘Well,’ he says, ‘you ask her and see if she will do it.’ I said I would; so when I went home to dinner I asked her. Well, she said she would take a couple of washings on trial, and if she suited, she would do the washing, so when I took the two washings back to the church I asked the Sister if the washing was satisfactory. She said, ‘Yes, all they required.’ Then I went to Father McCabe and told him what the Sister had said; he said that was all right and that was all the talk him and I had about the washing.”

Further testimony of this witness may be helpful. We quote further:

“I was working for the parish when Father McCabe came there. I worked along for quite a little while, then Father McCabe wanted to hire me by the year first, and I wouldn’t hire, I refused him; I supposed to work by the day, and he asked me if I would stay until he could get a man. I told him I would stay there; I stayed right along; I continued to work right along, continued to work for four years.
“Q. How long had he been there before you made this bargain to work by the year ?
“A. Four years very nearly.
“Q. You claim you were there four years before you made a bargain with him ?
“A. Before I knew what I was getting, yes, sir, I claim it.
“Q. How much did he tell you you were getting ?
“A. $200 a year with the privileges in the cemetery.
“Q. Then, as a matter of fact, you had been there four years before you made any bargain with Father McCabe with reference to' compensation ?
“A. Yes,sir; I didn’t calculate to stay there at that time, when he got a man I calculated— Yes, he paid me money right along. I kept track of it from. the time he came there. Yes, sir, sometimes I would get $5 every couple of weeks; sometimes it would be $10; sometimes it would run 5 weeks and get $5, and so on; yes, sir, I have got higher than $10 at any time; when I asked him— I think I got $25 at one time; the first year I worked there I got, he paid me when the year was up, that he called me at— He called me $150; when the year was up he had $50 more, he said that was mine; he didn’t say I was working for $200 a year then; he gave me $200, but he didn’t say that was my salary.
“Q. The work you had agreed upon to do for Father McCabe at the end of thó year you supposed you were getting $150?
“A. No, I didn’t suppose any such thing.
“Q. At the end of the first year you supposed you were getting $150 a year ?
“A. No, sir; I didn’t know anything about what I was getting that first year. I said Father McCabe paid me through, the first year $150 to live on, then, at the end of the year, he paid me enough to make it $200; he handed it to me and said it is mine, that is all he said. Up to that time I never had any definite talk about how much I was getting; when he called it, the fourth year when he called—
“Q. Just a minute. Up to the end of the first year you never had had any talk with him about just how much you were to have, but he paid you $150 and then $50 more ?
“A. Yes, sir. I went to the end of the second year doing the same work; he paid me up to the time he called his church matters $180 during the year; he didn’t pay me the balance to make up $200 when the year was up. He didn’t pay me that until I quit; we never had a settlement.
“Q. I understand during the first year Father McCabe was there there wasn’t anything said about compensation, the amount of it, until the end of the year, between you and him ?
“A. No, there was nothing said about the wages, about the price.
“Q. During the year he had paid you $150 along at different times, then when the year was up he handed you $50 more ?
“A. Yes, sir.
“Q. And asked you if that was satisfactory and you said it was ?
“A. No, sir; there wasn’t anything said, he said it belonged to me and I took it; it was mine.
“Q. You made no objection then ?
“A. No, sir; I took the $50.
“Q. You made no claim for any more at that time ?
“A. No, sir; I didn’t at that time.
“Q. During that year now this $200 was paid on, your wife was doing the washing ?
“A. Part of that year, yes, sir. * * *
“Q. You went along through the second year, which of course you claim would be 1902, after you got this $200 the first year you went along in 1902 and Father McCabe paid you occasionally on your work and nothing said about the price during that year ?
“A. No, sir; nothing said.
“Q. When you wanted any money you asked for it and he gave it to you ?
“A. Yes, sir. Sometimes he would hand me some money, run four or five weeks and hand me some money without asking, $5 or $10 or something like that. When I asked for money he always handed it to me; we had no trouble up to then.
“Q. At the end of that year he paid you how much ?
“A. During the year up to the time he gave out his clerk’s report he paid me I think $180. He owed me $20.
“Q. To go back to the first year, when you settled up with him the first year and he paid you $200, did you present a bill to him for $5 you had earned before he came there ?
“A. It was before the settlement at all — I didn’t have no settlement before he paid -me — that $5 came in when we looked over the cemetery figures. There was nobody there to give any account of it but me. He paid me that; that was outside of the $200; had nothing at all to do with it. * * *
liQ. The second year you went along and did the same work there you had been doing-the first year, your wife did the washing the same, he paid you along during that year and nothing said about the price; at the end of that year he paid you $180 and owed you $20 on that year ?
“A. Yes, sir.
“Q. Any talk about that money at that time ?
.“A. No, sir; no trouble at all. The third year went along the same way, he would pay me whenever I wanted money, or when he felt like giving it to me; he owed me $30 at the end of the third year; no dispute or trouble over it. At the end of the fourth year he owed me $43 about. He paid me the fourth year $157 for the year; he paid me at the rate, and that is what he paid me through the year. He called that out when he called out his reports.
“Q. When he made his reports it appeared he hadn’t paid you in full ?
“A. Yes, sir; there was no dispute about that; it was all right. I didn’t have any settlement with him at the end of each year, it ran along, that is the way it went from year to year until 1909 — I think it was 1909 when I quit — eight years was what he settled up with me for; you can figure it for yourself. During all of the time Father McCabe and I had no trouble; everything was pleasant until the last year or so. * * * In 1909, March, I quit, will be two years this March coming since I quit him and we had a settlement. * * * Some time before I told him I was going to quit he had another man by the name of Hanley. I met him down in O’Brien’s hardware store, and told him I was going to quit, I didn’t feel very well. I asked him if he would be at home the nest day for settling up, and he said for anything he knew he would, so I went up. We didn’t have any words at O’Brien’s store. * * *
“Q. He asked you then if you had your account ?
"A. He did.
“Q. What did you tell him ?
“A. I told him I hadn’t from the time my wife was sick, that the account I kept for the money that was owing had got lost. * * *
“Q. Then Father McCabe said to you, ‘Mr. Heral, this is very unsatisfactory way to do business for you to come here to settle a long account and have to rely entirely upon me,’ didn’t he ?
“A. Well, he did, he said he would rather I had a book with me. He said it was very unsatisfactory for a man to come and settle' a running account and didn’t have a statement of what work he did or how much money he had received. He said that; yes, sir. * * *
“ Q. Finally Father McCabe figured up his books and he told you according to the books he owed you $39 and some cents ?
“A. $35.
“Q. All right, $35. Now he asked you if that was all satisfactory, didn’t he ?
“JL. He did.
“Q. You said that was all satisfactory ?
“A. Yes, sir; all satisfactory. * * *
“Q. Didn’t he give you $50?
“JL He gave me $50, but that is not the remark; he said, ‘Now, Mr. Heral, wasn’t there some work back from the one ahead of me coming,’ he says, ‘ you never settled up for ? ’ * * * Father McCabe said, ‘ How much do you want, how much will you call it ? ’ ‘ Now,’ I says, ‘Father, look here, this has run a good while; I don’t know what to call it;’ so we stayed there and talked over it a little while. ‘Now,’.he says, ‘well, I make a motion.’ I says, ‘Yes, I will abide by what you say.’ He says, ‘ How would $15 be ? ’ He sets right there, he said $15, he says. I says, ‘ I will take it, it has gone so far, and square up the books.’ That is how I came to take the $50. I did say that was all satisfactory and took it. * * * Father McCabe said if, there was anything else he wanted it included, so he spoke about the old account that was never paid and gave me $15; he was the one to settle it. I said everything was perfectly satisfactory, and I left the office satisfied. I don’t remember there was any more conversations between me and him.
“ Q. You never said a word about the washing ?
*'A. No, sir.
“Q. Nor he to you ?
“A. No, sir; I didn’t do the washing; I didn’t say anything about it.
“Q: Now answer the question. You are a speech-maker. I asked you if there was anything said about the washing ?
“A. No, sir.
“Q. You said nothing ?
“A. Nor he said nothing.
“Q. You knew during all of these different years there wasn’t a word said about this washing only what you stated yesterday ?
“ A. That is all the words we ever had. He sent me there to hire just the same as he would send anybody to her.”

The plaintiff, though a willing witness, testified she had no talk with the defendant about doing the washing! The defendant was called as a witness by the plaintiff and testified in part as follows:

Q. Do you recall sending Mr. Heral to his wife to see whether she would do washing in 1902 or thereabouts ?
“A. Yes, sir; not sent tohis wife, asked him if his wife would do it.
“Q. Didn’t he then state to you in substance he would go to see her and ask her whether she would not ?
■ “A. He answered me promptly she would do it; he didn’t say he would go and ask her. From that time forward I never have had any talk whatever from the time she started to do the washing with him or with her specially with reference to that particular washing.”

We have quoted all the testimony in relation to the hiring of the plaintiff to do the washing. It will be noticed that it nowhere gives rise to the inference that defendant was dealing with the plaintiff expecting that he was to pay her. it is shown beyond any question that the work she did was upon linen that was used in the church service.

At the close of the testimony after a full argument by counsel,, the following occurred: The trial judge said:

“No claim was ever made until nearly time suit was brought after the settlement had been made with the husband for the eight years’ work; and he at the time he made that settlement was entitled to the services of his wife unless he had relinquished them. * . * * Under the testimony in this case, and under the law;, it belonged to the husband when he settled his account; it was then too late to relinquish it to the wife and must be presumed in law to have been settled by the husband. So far as the second proposition in the case is concerned, I deem it hardly necessary to pass upon it. I think this disposes of the entire question, so, gentlemen, you will render a verdict—
“Mr„ Smith,: Suppose in the event of a possible retrial of this case, wouldn’t your honor assume to pass upon this other proposition so the upper court might pass upon them both ?
“The Court: If the counsel want the benefit of my opinion, I will give it upon that proposition.
“Mr. Smith: I would be glad to have it, your honor.
The Court: The court finds in this case as to the second proposition that from the testimony it does not appear that the defendant, John J. McCabe, in contracting with the husband, intended to bind, himself. He asked if the washing could be done by his wife. The husband knew to whom the washing belonged and for whose benefit it was. He himself was a member of the very congregation and in law was liable for the doing of the washing. The priest had no personal interest in it. He knew it had been the habit of the priest to report this amount of washing as expenses incident to be paid by the church. Under those circumstances, there was no understanding on the part of the pastor that he become personally liable, or that he knew it was done in reference to any intended charge against himself; that whatever he-did was doñeas the agent of the church, and that that fact was known to the other party, and that the statute, section 10035, gives to the plaintiff, if she had any right to recover against anybody, the clear right to have brought her action against the church. That is my opinion as to the law.”

In Mason v. Dunbar, 43 Mich. 407 (5 N. W. 433, 38 Am. Rep. 301), Justice Cooley, speaking for the court, said:

“The plaintiff claims that her husband and herself alternately took charge of the husband’s father, who in his extreme old age was blind and imbecile, and required constant care and supervision day and night, and that it was distinctly agreed between herself and her husband that for her own services she should receive compensation from the father. If su'ch was the fact, and if the father understood the arrangement and assented to it, the court is of the opinion that she would be entitled to recover what would be just and reasonable. The husband had the right to give her for this purpose her services, or to refuse to give them at his option, and, if he made the gift, the legal right to deal with the father as a stranger might would follow:
‘ ‘ But we are all of opinion that the father must have been made aware of the arrangement, and must expressly or by implication have assented to it before he could have been chargeable with any legal claim in plaintiff’s favor. The legal presumption is that the wife is employing her services in her husband’s interest; and where she is working with her husband, as was the case here, a great wrong would sometimes be done if each might present and recover upon separate claims, when the other party supposed and had a right to suppose he was dealing with the husband alone. It is not enough to show that the husband has given the wife her services, but the other party must also understand that contract relations between himself and the wife exist and that the wife expects compensation.”

While we have had many decisions bearing upon the right of a married woman to recover for services rendered by her, we have not had our attention called to any that changes the rule stated above. See Barnes v. Moore Estate, 86 Mich. 585 (49 N. W. 585).

There is not a particle of evidence in the case from which the inference can be fairly drawn that the defendant understood that he was dealing with the plaintiff and that he was to pay her for her services. Having reached this conclusion, the other questions become unimportant.

The judgment is affirmed.

Steere, McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred. Blair, J., did not sit.


text:
      In re GOULD. GRAHAM v. INGHAM PROBATE JUDGE.
    Infants — Juveniles — Probate Courts — Dependent and Neglected Child.
    Where petitioner in proceedings to determine the status and right to custody of a minor, produced evidence tending to show that the child’s mother was dead, that the father had left him in the care of petitioner, the grandmother of said infant, that she and the grandfather had for a period of several years following the death of his mother, cared for the child, and the gtandparents had stood in relation of parents to him and were willing to care for him, the court rightly found that the minor was not a neglected or dependent child within the meaning of Act No. 6, Pub. Acts 1907, as amended by Act No. 310, Pub. Aots 1909.
    Error to Ingham; Oollingwood, J.
    Submitted June 18, 1912.
    ( Docket No. 126.)
    Decided July 22, 1912.
    Lydia Graham presented to the probate court of Ingham county, sitting as juvenile court, a petition averring that Graham Gould was a dependent and neglected child and praying for a determination of the question of his custody. Petitioner reviewed an order dismissing the petition by certiorari to the circuit court, which affirmed the order. Petitioner brings error.
    Affirmed.

      Edward Cahill, for appellant.

      C. W. & W. S. Foster, for appellee.
   Stone, J.

On November 11, 1911, appellant filed her petition in the probate court of Ingham county, sitting as a juvenile court, representing: That she is the grandmother of Graham Gould, who is the son of Durell L. Gould and Pearl Graham Gould, his wife, and that said Graham Gould was born at petitioner’s home in Delta on August 30, 1903; that the mother of said Graham Gould, who was petitioner’s daughter, died in the city of Chicago on May 29, 1908, leaving said Graham Gould as her only child, but left no estate; that the parents of said Graham Gould were married at Saginaw, Mich., on May 19, 1902, and for most of the time after their marriage, and until the death of the mother, lived with petitioner and her husband, George Graham; that their infant son, Graham, also lived with petitioner, not only when the parents were there, but at other times, when the parents were temporarily absent, their son was left in petitioner’s care; that upon the death of his mother, the son, Graham, then but four years old, was left by his father in petitioner’s care, and he so remained continuously until on or about July 9, 1911, when, at the suggestion of his father, he was permitted by petitioner to go on a visit to his aunt, his father’s sister, Mrs. W. O. Robinson, who resides in Detroit, Mich.; that the exact length of said visit was not settled in advance, but it was understood that Graham should return in time for the opening of school in September, 1911; that about a month after Mrs. Robinson came to Lansing and called on petitioner, and asked her if she would consent to let Graham remain with her permanently. Such consent was refused by petitioner and her husband, and Mrs. Robinson went away saying: “It will be just as you say.” She did not, however, permit Graham to return, and he was kept in Detroit for some time against his own desires, and to his great grief and distress.

The petitioner then states: That shé and her husband, the grandfather of said Graham, have become greatly attached to the child, and that by reason of his absence the grandfather became seriously ill, and was mentally unbalanced, and called constantly for his grandson, and that finally Graham was permitted to return to petitioner on October 24, 1911, and has since lived with her and her husband; that petitioner and her husband are abundantly able to care for and support their said grandchild in comfort, and to see that he is properly educated, and are willing and anxious to do so; that notwithstanding Mrs. Robinson and her husband are fully informed of the fact that petitioner and her husband have nurtured and cared for the said Graham, and have practically stood in place of parents to him since his birth, and particularly since the death of his mother, and are able and willing to continue to do so, and of the fact that Graham was greatly grieved and distressed by his enforced separation from his grandparents, and anxiously desires to live with them, and that his absence from his grandfather is a great affliction to the latter, and is probably dangerous to his life, yet Mrs. Robinson and her husband insist upon the return of Graham, and have threatened, in case he is not returned, to take him away, but whether by force or by stealth or some legal process petitioner is not informed; that the father of Graham has no home of his own, and has not had since his marriage to petitioner’s daughter; that he is intemperate in his habits, and a spendthrift, and is not a fit or proper person to have the custody and care of his said son, and has long ago abandoned him to the care of petitioner and her husband, as before stated; that Graham has not proper parental care or guardianship, and is a dependent child, and a neglected child within the meaning of section 1 of Act No. 6 of the Public Acts of 1907, Special Session, as amended. The petitioner prays the aid of the court in the premises, and that proceedings may be taken under said act to determine the status of said Graham Gould, and as to his care, custody, and guardianship as in-said act provided; that, in case it shall be determined that- said Graham is a dependent and neglected child within the meaning of said act, then that the court may award the care and custody of said child to petitioner.

The petition came on for hearing after due notice, and the father of the child was present. The petitioner was the only witness sworn in support of her petition. Among other things, she testified'as follows:

“ After the funeral, Mr. Gould, the father, went away, leaving the boy with us, and he has lived with us ever since. When his father went away, he made no arrangement with us about the boy — simply went away. He has never contributed anything towards his support, and has never sent him any money or clothing, never exercises any care or supervision over him. He has been to see him occasionally. Twice he has taken him to Detroit to visit his aunt, Mrs. W. O. Robinson. The last time was in July, 1911. * * * We are able to take care of Graham and want to do so. His father is not in a condition to take care of him. He has no home of his own, and has no property as far as I know, and his habits are bad. I know from his own confession that he drinks to excess and is a spendthrift. He has applied to us for money at different times. The last time was in January, 1911.”

On cross-examination petitioner testified:

“We were willing to have Graham. * * * We never complained to Mr. Gould, nor asked him to take Graham away. We both loved him. He was the only son of our only child. We never asked his father to do anything towards his support. I don’t mean to be understood that his father ran away, but that he went away without making any arrangements with us about him. We never asked for pay or expected any. We desired to have- our daughter buried in Lansing. I never personally knew of Mr. Gould’s drinking to excess except on two occasions.”

The entire testimony is in the record, and has been read by us. At the hearing the judge of probate made the following finding and determination:

“ And the court having listened to the testimony given on behalf of the petitioner, and the argument of counsel, thereupon it appearing to the court, after due consideration of the pleadings and proofs, that the child, Graham Gould, is not a dependent and neglected child, without proper parental care or guardianship within the meaning of section 1 of Act 6 of the General Acts passed at the Special Session of 1907, as amended, and it appearing to the court, after a full investigation of the facts and circumstances, that said Graham Gould is not a dependent, neglected child; it is therefore ordered that the petition be dismissed, and all relief as prayed therein be denied.”

Whereupon the petitioner removed said proceedings to the circuit court by writ of certiorari, alleging the following errors in her affidavit:

(1) That the probate judge erred in holding and deciding that the child, Graham Gould, was not a dependent and neglected child, without proper parental care or guardianship.

(2) That the probate judge erred in refusing to take jurisdiction of the subject-matter of deponent’s petition, and in refusing to grant the relief therein prayed.

(3) That the probate judge erred in dismissing deponent’s petition, and in denying the relief therein prayed.

The circuit court dismissed the writ of certiorari, and gave the following reasons for such course:

“The decision of the probate judge sitting in such matters in the juvenile division is final, and cannot be reviewed on appeal. The method chosen to bring the proceedings of the probate court before this court was by writ of certiorari, and only those errors assigned in the affidavit can be considered. A writ of certiorari brings the proceedings of the lower court for a review of the questions of law, but not of fact. . The return of the probate judge is full and complete. If the lower court had jurisdiction, its discretionary power cannot be inquired into. This disposes of the first assignment of error. The second assignment of error charges that the court refused to take jurisdiction of the subject-matter of the petition. It is conceded that the probate court has jurisdiction in this class of cases, and that in this case the proper steps were taken up to and including the introduction of testimony-in open court. Petitioner claims that inasmuch as the petition was in due form, and followed by the sworn testimony of petitioner, which was not controverted by testimony of the opposition, even though the father was in court, the finding of the court that Graham Gould was not a dependent child amounted to a refusal of the probate court to take jurisdiction. The burden of proof rested on the petitioner. The presumption was that Graham Gould was not a dependent child, and, that presumption was not overcome by the petitioner, or by the report of the county agent. Whether or not it was overcome by the proofs in the case is a matter for the determination of the probate judge who heard the case. He certifies in his return that he did take jurisdiction of the case as presented by the petition and proofs, and determined the case upon the petition and proofs so submitted to him in open court. This court cannot go behind such a return. This disposes of the second and third assignments of error. The writ of certiorari is dismissed.”

The petitioner and appellant moved for a rehearing, which was denied.

The caséis here upon writ of error, and error is assigned upon the order and determination of the circuit court, and upon the refusal of the motion for a rehearing. In our view of the case a more specific statement of the assignments of error is not necessary.

Section 1 of the act as amended (see Act No. 810, Pub. Acts 1909) relating to this subject, provides as follows:

“For the purpose of this,apt the words ‘dependent child,’ and ‘ neglected child ’ shall mean any child who for any reason is destitute or homeless or abandoned or dependent upon the public for support, or who has not proper parental care or guardianship, or who habitually begs,” etc.

A careful reading of this record leads us to the conclusion that by the undisputed evidence this child was not shown to be destitute, homeless, or abandoned, or dependent upon the public for support, or one who has not proper parental care or guardianship, and therefore does not fall within the statutory definition of “ a dependent or neglected child.” We cannot agree with counsel for appellant that the probate judge refused to entertain jurisdiction of the case. As we read the record, he did entertain the petition and heard the evidence and decided the matter upon its merits, dismissing the petition for the reason that the child was not a dependent or neglected child within the meaning of the statute, and under the evidence in the case, thus passing both upon the law and the facts. We not only think that there was evidence to warrant this conclusion, but we are also of opinion that the conclusion was fully justified by the evidence. By appellant’s own showing she and her husband “have practically stood in place of parents to him (Graham) since his birth, and particularly since the death of his mother,” more than four years ago. It is undisputed that he has an excellent home with his grandparents, who have heretofore cared for, and are anxious to care for him in the future. All this has been done with at least the tacit consent of the father, who has never been asked to pay for such care and support. Is not such care “proper parental care or guardianship?’5 We think so. We are of opinion that such a case is not within the purview of the statute. It should be borne in mind that this is not a habeas corpus proceeding to determine who shall have the custody of this child, but it is a proceeding under the statute instituted before the only judicial officer clothed by the act with the power of exercising discretion in the case, and disposition of that class of children mentioned in the statute. Van Leuven v. Ingham Circuit Judge, 166 Mich. 115-117 (131 N, W. 531).

We think that the circuit court reached the right result in the case, and the order and judgment below are affirmed, with costs to the appellee.

Moore, O. J., and Steers, - McAlvay, Brooke, Ostrander, and Bird, JJ., concurred. Blair, J., did hot sit.


author: Bird, J.

text:
    BOWEN v. MOELLER.
    Taxation — Land Contracts — Record Fee — Amount Due as Determining Specific Tax.
    A land contract executed before but not recorded between' the date when the mortgage tax law of 1911 (Act No. 91), took effect and January 1, 1912 (being classed by the terms of the act with contracts executed after the latter date), must pay a tax on the basis of the amount appearing to be due on its face, not on the amount actually due as shown by an affidavit annexed to the instrument; for purposes of record it is to be treated as a contract executed after the act took effect and not in the same manner as contracts recorded before the date named in the statute: nor does such determination have the effect of infringing the constitutional rule of uniformity in taxation since all instruments are given equal privileges under the law.
    Certiorari to Wayne; Hosmer, J.
    Submitted July 11, 1912.
    ( Calendar No. 25,095.)
    Decided July 22, 1912.
    Mandamus by Herbert Bowen against William F. Moeller, Wayne County'Treasurer,” to compel respondent to reduce the specific tax as estimated by him upon an instrument offered for record.1 An order granting the writ is reviewed by respondent on certiorari.
    Reversed.

      Bowen, Douglas, Eaman & Barbour (F. H. & George L. Canfield, of counsel), for relator.

      Franz C. Kuhn, Attorney General, Charles W. McGill, Assistant Attorney General, and Hugh Shepherd, Prosecuting Attorney, for respondent.
   Bird, J.

On the 25th day of February, 1912, the relator tendered to respondent a land contract duly acknowledged and witnessed, together with an affidavit showing that the contract was executed in September, 1909; that it was originally given to secure the payment of $260; and that subsequent payments had reduced the amount due thereon to $100. Respondent was requested to compute and indorse on the contract the tax provided for under the provisions of Act No. 91 of the Public Acts of 1911, known as the mortgage tax law. The respondent computed the tax at the sum of $1.50. The relator refused to pay this sum, insisting that it should be computed at the sum of 50 cents, which sum was tendered and refused. This proceeding was then instituted to determine which was the proper amount.

It is the contention of the relator that section 6 of the act entitles him to have the contract recorded by paying a tax of 50 cents a hundred on the actual amount due. The position of respondent is that all of section 6, except the final clause, was a temporary provision and exhausted itself between the 1st day of August, 1911, and the 1st day of January, 1912, when the entire act went into operation. He concedes that relator would have had the right he now contends for had he tendered his contract between those, dates, but, having failed to do so, he must now pay on the same basis as though it were an obligation executed after January 1st.

Section 6, the construction of which is involved, reads as follows:

“ Sec. 6. The owner of any mortgage which is now, or which may be recorded before this act takes effect, may present to the county treasurer of the county in which said property is situated, an affidavit setting forth the mortgage and the place of record thereof and the amount of principal secured thereby, which is unpaid, and may pay a like tax of one-half of one per cent, upon such amount, and thereafter said mortgage for the purpose of taxation .is to be considered and treated the same as other mortgages provided for in this act. Said affidavit shall be recorded in the office of the register of deeds and shall be prima facie proof of the amount of the principal unpaid on said mortgage. Mortgages given prior to January first, nineteen hundred twelve, and on which the registry tax provided for in this act shall not be paid, shall remain under the present ad valorem system of taxation and shall be assessed and taxed under the present law.”

By this legislation it was intended to change the method of taxing mortgages from the ad valorem system to a specific one. The act, after providing that land contracts and other liens should be regarded as mortgages, provided a recording tax of 50 cents upon each $100 and major fraction thereof, and then fixed upon January 1, 1912, as a time for the act to go into operation. Had the act stopped here and section 6 not been inserted, it is obvious that all mortgages, whether executed prior to or after January 1, 1912, would have been taxed alike, but the legislature evidently thought some method ought to be provided whereby old mortgages with their partial payments should be placed on a parity with those which were executed and recorded after January 1, 1912, and for that reason inserted section 6. This provision, as we view it,' was to afford this opportunity and to fix a period within which it might be accomplished. ■ -

If we construe the words in the second line of section 6, “before this act takes effect,” to mean “before this act goes into operation,” it is then clear that the legislature intended the five months which elapsed between the date of the taking effect of the act, August 1st, and the date on which it went into full operation, January 1st, as a period in which this might be done. In other words, we think the act says to the holders of old mortgages that you may have them recorded and pay the tax upon the actual amount due thereon if ypu present them within that period, but if you fail to do so, and present them after that period, you must pay upon the same basis as mortgages which were executed and recorded after January 1st. If you do not choose to present them at all, then they shall continue to be taxed upon the ad valorem plan.

Had not the legislature intended a different rule should prevail before January 1st, than afterwards with reference to old mortgages, it is not clear why section 6 was inserted, and neither is it clear what it meant by the words, “ The owner of any mortgage which is now or may be recorded before this act takes effect may,” etc.

It is suggested that this construction infringes the constitutional rule of uniformity. The act provides a uniform rate and extends the privilege to all holders of old mortgages to have them recorded and the recording tax computed upon the actual amount due thereon within a certain period. After the expiration of that period, the law operates upon all mortgages alike, and if, in any given case, there is a discrimination against an old mortgage after January 1st, it is not the fault of the law, but is due to the neglect of the holder of the mortgage in not presenting his mortgage for computation within the period fixed by the act. We are of the opinion that this construction of the law violates no rule of uniformity.

We think the respondent made a proper computation, and the judgment of the trial court is reversed.

Moore, C. J., and Steers, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Blair, J., did not sit.