text:
    GAGE v. BOARD OF CONTROL OF PONTIAC STATE HOSPITAL.
    1. Master and Servant — Workmen’s Compensation Act — Notice —Medical and Hospital Expenses — Liability.
    Under section 3, part 2, of the workmen’s compensation act (2 Comp. Laws 1915, § 5434), where an injured employee was taken by his family physician to a hospital and operated upon, his case requiring immediate action, and the next day notice was given to the employer and aid requested, but no' response was made thereto, the latter is liable for plaintiff’s reasonable medical and hospital expenses during the remainder of the three weeks after the injury.

    2. Same — Statute—Construction—Exception,
    While a logical construction of said statute requires notice and opportunity to the employer to select the physician and furnish the needed service during the prescribed three weeks before the injured employee can secure the same at the employer’s expense, yet it is not an unreasonable or strained construction, in view of its purpose, to recognize as inferable exceptions in extraordinary cases where the surrounding circumstances and critical condition of the injured employee present emergencies or exigencies demanding prompt action which reasonably warrant him in securing the needed service at the employer’s expense without first giving notice and opportunity to furnish or offer the same.
    3. Same — Award—Notice.
    Evidence that the employee was injured in the morning, but did not at first realize the nature of his injury, that the same day his wife called the family physician, who pronounced the case strangulated hernia, and advised an immediate operation, which was performed that evening, the physician stating that the following day would be too late, held, to support the conclusion of the industrial accident board that the employer was liable for the expenses of said operation, although no notice or opportunity to furnish the same had been given.
    Certiorari to Industrial Accident Board.
    Submitted April 9, 1919.
    (Docket No. 17.)
    Decided May 29, 1919.
    Clinton C. Gage presented his claim for compensation against the board of control of the Pontiac State Hospital for medical, surgical and hospital expenses incurred as a result of an accidental injury in defendant’s. employ. From an order awarding compensation, defendant brings certiorari.
    Affirmed.

      Alex. J. GroesbecJc, Attorney General, and Clare Retan, Assistant Attorney General, for appellant.

      A. Floyd Blakeslee, for appellee.

      On the question of allowance for medical and hospital services to injured employee under the Workmen’s Compensation Act, see note in L. R. A. 1917D, 178.

   Steere, J.

In this case defendant questions the validity of an award of $189 made against it by the State industrial accident board in favor of plaintiff, for medical, surgical and hospital expenses, incurred by him as the result of an accidental injury which he sustained on September 15, 1917, while in defendant’s employ. The necessity for such services and the reasonableness of the charges made therefor are apparently not questioned, but it is contended that defendant was entitled under the employers’ liability law to notice of plaintiff’s injury and need of medical attendance by reason of it, and a reasonable opportunity to itself furnish all needed medical, surgical and hospital service, before plaintiff could legally secure the same of others at defendant’s expense. This contention is based on the provisions of section 3, part 2, of the workmen’s compensation act (2 Comp. Laws 1915, § 5434), which is as follows:

“During the first three weeks after the injury the •employer shall furnish or cause to be furnished reasonable medical and hospital services and medicines when they are needed.”

Plaintiff’s injury was a hernia. The facts are practically undisputed and the case has been adjusted in all other respects by appropriate proceedings before the industrial accident board based on an agreement in regard to compensation, approved by the board. The issue raised is pointedly presented and concisely argued by counsel on both sides, and by them narrowed to the question of whether, under the claimed exigencies shown here, the injured party may, pending reasonable notice to the employer of the necessity for medical and surgical attention and until the latter after reasonable notice furnishes the same, secure -such attention at the expense of the employer. Counsel for plaintiff frankly concedes it inferable from the duty imposed by the statute that in the majority of cases and as a general rule the employer should be entitled to furnish, or dictate where an injured employee shall obtain, the necessary medical, surgical and hospital attendance, and broadly admits such general rule proper for the protection of both. parties, “in order to prevent an unscrupulous physician from exploiting the injury to his own benefit and to prevent, perhaps, a possibility of malingering on the part of the injured employee.” But no such evil elements are claimed or suggested as present in this case, and it is urged for plaintiff to be also fairly inferable from the act as a whole and the particular subject to which, the section applies that the injured party may secure such services at the expense of the employer in exceptional cases involving manifestations of emergency and demanding prompt attention, as in the instant case, and whether such excepting conditions existed is. a question of fact for the accident board to determine.

Plaintiff's home was on Johnson avenue in the city of Pontiac. He was when injured and had been for many years employed by defendant at the Pontiac State Hospital for the Insane, in its building department. On the day of his injury he was working in a tunnel where it was somewhat dark and in attempting to lift or carry out some material experienced an injury the nature of which he did not then apparently understand, or localize, but which caused him to suspend work, telling his “boss,” who was the superintendent, that he was sick and had to go home, which he did, arriving there between 9 and 10 o’clock, as his wife testified, not yet knowing what ailed him. Shortly before noon hé discovered that he was suffering from a hernia. During the day he experienced increasing pain and grew weaker. His wife summoned their family physician, Dr. Fox, who called shortly after supper and found plaintiff suffering with a strangulated femoral hernia which, in the doctor’s opinion, demanded prompt surgical action, and he at once called in for consultation a surgeon in whom he had confidence named Dr. Howlett, and an immediate operation was deemed by them necessary to save the patient’s life. He was thereupon taken in an ambulance to the Pontiac city hospital, before dark that-evening, and operated upon almost immediately, remaining in the hospital 19 days. He made a good recovery and at the time of hearing before the board had returned to his work in defendant’s employ. The bill in question is for surgical and medical attendance, ambulance, and hospital expenses, the largest item being $100 for the operation, furnished within three weeks after the injury. Of the necessity for prompt action after the physicians had determined Gage’s condition Dr. Fox testified in part as follows:

“Q. Was there any particular urgency there?
“A. Very much so, yes.
“Q. What was the hurry?
“A. What we call strangulated hernia. It is where the bowel goes down and becomes strangulated. It is strangulated there and the bands go round to the outer part and the circulation is shut off. It is sometimes only a few hours before gangrene will set in in the bowels, which means almost certain death.
“Q. For that reason you considered that an immediate operation was necessary?
“A. Yes, sir.
“Q. In your opinion a delay would have been fatal?
“A. Yes, sir, In the morning this man would have been beyond help.”

The Pontiac State Hospital is one of the State asylums for the insane, formerly designated as the “Eastern Michigan Asylum” (1 Comp. Laws 1915, § 1311), but given its present name in 1911 without change of character or functions by an act devoted to “Changing the names of the Michigan Asylums for the Insane” (1 Comp. Laws 1915, § 1365). These institutions have, under the statute providing for them, a medical superintendent with adequate medical and surgical staff for the purposes of the institution, which is the care and treatment of insane inmates committed to them by the probate courts and designated in the act as “patients.” Dr. Christian was then medical superintendent of the institution. Mr. Halsey, its steward, testified it was customary to furnish medical attendance and hospital service to its employees in need of the same; that they did surgical work there but had a surgeon, Dr. Mack, in Detroit whom they called iii to do “the surgical work — the complicated work.”

Defendant contends that reasonable notice and opportunity were not given it of plaintiff’s injury and', needs, and as the statute makes it mandatory for the-employer to furnish the same, plaintiff was not authorized to secure such service at its expense. The only notice plaintiff gave in relation to the matter was when he quit work in the middle of the forenoon, telling his boss, the superintendent, that he was sick and had to go home. This, while not definite notice of an accidental injury, was at least notice of a sudden physical affliction which rendered him incapable of continuing at work. Plaintiff, who testified he.never was advised and did not then know he could receive medical attention at the hospital, states that his condition was such that “everything was hurlyburly” with him anyway and his “mind was occupied in other ways”; that he never notified them himself' and did not know who did. His wife, who first cared for him after he reached home, testified-that she tried to get their family physician some time before she succeeded; that after he came and she learned of the-seriousness of her husband’s condition she “took on. and cried” for he had to be taken to the hospital immediately; but that she notified defendant the next morning, which she says was “the first chance I had,”' that she promptly went up there the next morning and tried to see Dr. Christian to notify him, but he was not in and she told his assistant, Dr. Butler, about, it, — of the operation and that her husband was in the city hospital — and asked if they could do anything for-him, saying “he was entitled to have something done by them for him if they did anything for any of their employees,” to which Dr. Butler replied he would report the matter to Dr. Christian as soon as he returned, and when she asked if it was necessary for her to do so he replied it was not.

It appears undisputed that within 24 hours after the accident defendant was fully notified of it, and told where plaintiff then was by his wife, who requested aid in his behalf. Defendant'then had notice with a request for proper attention, certainly giving opportunity to offer, and so far as shown to furnish from that time on all needed medical and hospital services during the remaining 20 days of the prescribed three weeks. It is not shown or claimed that defendant at any time furnished or offered to furnish plaintiff any free medical or hospital services or medicines for his accidental injury while in its employ. After such notice, request and reasonable opportunity to furnish or offer the required treatment and failure to act, defendant was clearly liable for plaintiff’s reasonable expenses in securing the same during the remainder of the three weeks after the injury.

The more serious question is that of the expenses incurred in the claimed emergency prior to notice. Of this contention the board found and held as follows :

“It would seem that ordinarily the employer should be notified of an accident and given an opportunity to provide medical and surgical treatment to an injured .workman. However, in a case like the instant one where the employee is in such a serious condition as to require an immediate operation and where his life would be endangered by any delay, the board believes that he should have the right to secure the necessary attention as soon as possible and that the employer should bear the expense of the same. * * * Respondent failed and neglected to offer any medical services even after receiving notice of the injury. The board believes that because of applicant’s serious condition, the undisputed testimony of his physician being that an immediate operation was imperative in order to save his life, the case was brought within the emergency class, and respondent should pay the expenses incurred by the applicant for medical and hospital services during the first three weeks after his injury as provided by law.”

In 1 Honnold on Workmen’s Compensation, § 193, where the admitted general rule of the employer’s right to select the physician and furnish the necessary services for treatment of an injured employee is discussed, the author adds as a constructive corollary:

“But this does not militate against the employee’s right to obtain medical and surgical treatment at the expense of his employer in the interim between the happening of the injury and time for notice to the employer of the employee’s needs, subject to the right of the employer or insurer to change physicians at the close of the emergency -treatment.”

The authority to support this text is found in 1 Cal. I. A. C. Dec. pp. 385, 575. Counsel do not cite nor have we found any decisions by courts of last resort where this question has been directly involved. Counsel for defendant cite but two cases which' relate to liability under a similar provision for medical services where the employee has procured the same without the employer’s knowledge or consent—Keigher v. General Electric Co., 173 App. Div. 207 (158 N. Y. Supp. 939), and City of Milwaukee v. Miller, 154 Wis. 652 (144 N. W. 188, L. R. A, 1916A, 1, Ann. Cas. 1915B, 847). While the cases deal with that subject the exact question at issue here was not involved. Counsel quote from the Keigher Case as follows:

“But the duty to provide certain services, which is cast by the statute upon the employer naturally implies the right of the latter to select his own agencies for the proper fulfillment of that duty, unless language is found in the statute indicating a contrary intent.”

An examination of that case shows that defendant had provided for the injfired employee a competent physician and surgeon, who took charge of the case and rendered' professional service for a time, when the employee refused longer to accept his services and requested the employment of a certain physician of his own selection, which defendant declined to do. The physician the employee desired thereafter rendered him medical services which defendant declined to pay for. The court held that under these circumstances the general rule applied, and sustained the refusal. No question of intervening jeopardy before notice, or pressing emergency, was involved.

In City of Milwaukee v. Miller, supra, the employee, Miller, suffered an injury to his great toe and without requesting medical service or notifying the municipality of his injury employed his own physician and nurse. Eleven days after the accident amputation of the toe was deemed necessary by his physician, who then performed the operation. Ten days later, and three weeks after the accident, Miller for the first time notified the city of his injury and made claim for compensation, but even then gave no notice of his requiring medical services. Some time after receiving this notice the city tendered him the services of a competent physician which he did not accept and continued to employ his own physician until he had charged up 130 visits and the bill for medical service and nursing, which Miller claimed the city should pay, amounting to over $250. This the court declared “preposterous” in view of the nature of the accident and actual needs of the patient. No question of emergency was involved; but in discussing the facts and applying the general rule of the employer’s right to notice, etc., the court to a degree recognized an inferable exception to it under possible circumstances as follows:

“The result is that Miller, since he failed to notify his employer of his need, never had competency to employ a physician at the expense of the city of Milwaukee, except for such reasonable length of time as necessarily intervened between his injury and reasonable opportunity after due notice for the city to exercise its privilege.”

In that case the general rule, conceded here, that the law should be construed and applied so as to secure to the employer reasonable opportunity to conserve the related interests of both parties to the misfortune by supplying the medical and surgical needs - of the injured is instructively discussed at length. Running through the discussion is an indicated recognition that by fair construction of the act there may be exceptional cases where it is permissible and in the interest of both parties for the injured party to promptly secure such services before notice, although “ordinarily” reasonable opportunity should be first accorded by him to the employer. It is pointed out that the reason of the provision is two-fold:

“First. As a rule, an employer is more competent to judge the efficiency of the doctor employed and to provide efficient medical and surgical treatment. Second. It is to the interest of the employer to furnish the very best medical and surgical treatment, so as to minimize the result of the injury and to secure as early a recovery as possible. The more serious the result of the injury, the more the employer must pay.”

In this case there was, as the result of prompt and efficient action after plaintiff’s critical condition was discovered, an early and full recovery, at small expense to defendant compared with a death loss which was threatened and would have been the result of delay until the following morning, as the undisputed medical testimony shows. It is indicated that plaintiff after his return home and his distress increased was not in a physical or mental condition to judge or act in the matter. His wife is not shown to have then known he had sustained an accidental injury. She knew he was sick, and when his condition indicated the need called in their family physician who recognized the emergency. It is undisputed that from that time immediate and proper action was successfully taken to save the patient’s life by a prompt and critical major operation, which it can with some force be contended might have been delayed until too late by sending word to the hospital and waiting for them to investigate and call from Detroit Dr. Mack, who did their complicated surgery work. Broadly considered, the statute as to medical service to be paid for by the employer involves the combined interests of both parties. What services were actually and reasonably necessary to that end, and what is a fair compensation therefor are the vital inquiries. Unquestionably that construction of the statute is logical and the adopted rule sound which requires notice and opportunity to the employer to select the physician and furnish the needed service during the prescribed three weeks before the injured party can secure the same at the employer’s expense, but in the many complications which arise in industrial activities it is not an unreasonable or strained construction of the statute in view of its purpose to recognize as inferable exceptions in extraordinary cases where the surrounding circumstances and critical condition of the injured party present emergencies, or exigencies demanding prompt action which reasonably warrant the injured party in securing the then needed service at the employer’s expense without first giving notice and opportunity to furnish or offer the same. Such cases are, of course, distinctively exceptional and consequently rare. Where such exception is claimed, the question of a pressing necessity demanding and excusing prompt action before reasonable time for notice and opportunity thereafter for the employer to act becomes primarily an issue of fact. There is testimony in this case to support the conclusions of the board in that particular.

The award will, therefore, stand affirmed.

Bird, C. J., and Ostrander, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    HENDERSON v. HENDERSON.
    Guardian and Ward — Competency—Evidence—Sufficiency.
    In proceedings to have plaintiff’s guardian discharged, and to have plaintiff declared mentally competent to- have the care, custody, and management of his estate, evidence examined, and held, sufficient to support the finding of •the jury that plaintiff was mentally incompetent.
    Error to Cass; Des Voignes, J.
    Submitted January 15, 1919.
    (Docket No. 10.)
    Decided May 29, 1919.
    Petition by Milton A. Henderson against Harley Henderson for the removal of defendant as his guardian under 3 Comp. Laws 1915, § 13950. The petition was denied in the probate court, and plaintiff appealed to the circuit court. Judgment for defendant. Plaintiff brings error.
    Affirmed.
    C. E. Cone and C. M. Lyle, for appellant.

      Elias P, Harmon and Thomas J. Cavanaugh, for appellee.
    On opinion evidence hy nonexpert a,s to contractual or testamentary capacity in lunacy proceedings, see note in 37 L. R. A. (N. S.) 598.
   Steere, J.

Plaintiff began this proceeding in the probate court of Cass county to obtain discharge of defendant as his guardian, the issue being whether since put under guardianship plaintiff has recovered from the infirmities then found by the probate court and is now mentally competent to have the care, custody and management of his estate. The petition for appointment of a guardian over him was filed in the probate court on September 16, 1915, under provisions of the statute authorizing such course in case of persons who by reason of old age or disease are mentally incompetent to have the care and custody of their estate (3 Comp. Laws 1915, § 13950). Plaintiff at that time made no objection to the proceeding. An order was made for personal service on plaintiff, Milton A. Henderson, and William Henderson, his son, then living with him, fixing the date of hearing October 1, 1915; personal service was made on William, September 17, and service was accepted in writing by plaintiff on September 16. On October 1, 1915, a hearing was had before the probate court at which all parties, in interest were present and the said Milton A. Henderson was adjudged mentally incompetent under the statute. Defendant Harley Henderson, his son, was appointed guardian.

While plaintiff makes certain somewhat random and querulous complaints of his guardian’s conduct, his chief contention is that he has a right and is perfectly competent to control and manage his own property, his express comparative estimate being, “I know more than both of my d — d boys.” The record fairly shows that defendant has honestly and faithfully conserved and improved the condition of his father’s estate, acting with the approval and under the direction of the probate court, and has provided for his father’s care and needs out of the income to the extent plaintiff would accept. He secured a good home for his father in Porter township in the vicinity of the old home in the community where the father desired to be. Of this plaintiff says, “I was there four years,” and “I had a good home, perfectly satisfactory to me until last year.”

In August, 1917, plaintiff left this home which had been provided for him by his guardian and went to the home of a family named Conkright some 15 miles away, a member of that family going after him at his request without the knowledge or consent of defendant, and on August 25, 1917, he filed a petition in the probate court of Cass county setting out the appointment of defendant as his guardian because of his mental incompetency, stating that defendant had acted as such guardian since his appointment, and concluding:

“Your petitioner further shows that he has now recovered from the mental infirmities he might have had at the time his said guardian was appointed and that he is now fully restored to soundness of mind.
“Your petitioner therefore prays that he may be declared by the finding or order of this court to be restored to soundness of mind, and his guardian discharged, pursuant to the statute in such cases made and provided.”

After a full hearing upon this petition in the probate court, the same was denied. Appeal was thereupon taken to the circuit court of Cass county, where a trial by jury lasting some four days resulted in a verdict “That said petitioner, Milton A. Henderson, is mentally incompetent to have the care, custody and management of his estate.” Upon which verdict judgment was rendered, and the case brought here for review upon numerous assignments of error.

Milton A. Henderson, plaintiff, is, or was at the time of this trial, about 77 years old and a veteran of the civil war. Before age and rheumatism disabled him his life work was farming. Since 1873 he has resided most of the time in the township of Porter, Cass county, some 18 miles southeast of Cassopolis, on an 80 acres of land which he early secured and settled upon, and yet owns. As the result of improvements made by him and general enhancement of values the farm is now said to be worth about $6,000. His wife died in 1907. He has two sons: William, the older, born in 1868, a man of intemperate and dissolute habits, who has been separated from his wife for some 20 years and after his mother’s death is shown in a fragmentary way to have for much of the time made his home on the farm, living with his father when the latter was there, sometimes working on the place, and at one time renting it of his father for $75 a year and the taxes. His conduct and management of affairs, though tolerated and at times cooperated in by plaintiff, is indicated to have been a very disturbing element in the latter’s life, of which he at times complained emphatically to others. Harley, the younger son and defendant herein, is 47 years of age, was married in 1896, lived near and worked his father’s place for a time, is a temperate man of indicated good character and responsibility and a farmer living with his family near Cassopolis. Plaintiff himself had in former years been confessedly addicted to periods of excessive intemperance. He states that he used to drink heavily at times and get drunk, that he took the cure for it down at Warsaw, where he stayed three weeks, and says: “After I came back, I continued to drink heavily. They said they couldn’t do anything for me because I was what they call a' periodical drinker.” He also stated that the last time he got drunk was in Constantine, and added, “I ain’t touched anything for ten years.” He, however, told in another part of his testimony of drinking beer at a saloon in Elkhart sometime subsequent to the death of his wife (in 1907) after which he states that he went into the street and “got kind of tired out and I just sat down to the side of the street/’ when a nephew of his named Jim came along and called his attention to the fact that a policeman across the street was watching. His nephew, who then looked after him, tells a story of subsequent proceedings not altogether in harmony with plaintiff’s and that he then claimed to have lost $300. Plaintiff admitted so stating and that he turned his watch ovér to his nephew, who later returned it, but asserted he did not lose “a cent.” After the death of his wife he was afflicted with rheumatism which increased until he became a permanent cripple and unable to walk without crutches. After his wife’s death he remained on his farm for a time, then lived with families in the neighborhood for three years or more and then returned to his former home which he attempted to maintain with the assistance of William who was with him at times and the services of women whom he employed at different times with William’s aid, and who left for various reasons. His troubles in that particular were acute at times even as told by him with variations. He bought a piano to influence one to remain, who was of musical temperament and for a time impressed him favorably. Her efforts upon it proved too noisy to suit him. She did not remain long and left him with the piano on his hands, which he had worry and trouble in disposing of. The last woman he had was secured by William through something in the nature of a matrimonial advertisement which she answered, and it was arranged according to approved methods in such cases, as described by plaintiff:

“Willie went down, * * * they was to meet at the street car, and she was to dress one way and he another, so that they would know one another,” etc.

This woman proved in her conduct and treatment of him so unsatisfactory to plaintiff that he ordered her to leave, which she refused to do, threatening, as he states, “to sue me for a year’s wages and for insulting her and that scared me, got me all unstrung.”

For some time before a guardian was appointed troubles in his household and farm affairs so “unstrung” plaintiff, as he apparently realized, that he was wont to discuss them with and ask advice of those he knew, importuning various of his friends and neighbors to take charge of his property and affairs for him. At times when discussing his real or imaginary troubles he would break down and cry. He frequently appealed on such occasions to his son Harley, defendant, and at times offered to deed him his property, which Harley declined to accept, referring to his brother William and his daughter, telling his father she ought to eventually have her father’s share. He, however, advised with and tried to smooth over his father’s troubles and made him welcome at his home where the latter went from time to time and remained as long as he cared to, but he did not want to live there, preferring to be at or near his own place. The winter before a guardian was appointed he telephoned for defendant to come to his place where he said he had been six days alone with only crackers and water and a little grease to eat. Defendant then cared for and took him home with him as plaintiff admits, and states he remained there about six weeks when he “went back home.”

His unstrung condition over his feared inability to discharge his last woman servant, with which trouble he went to defendant, led to their going together to the probate judge where he was apparently agreeable to the guardianship proceedings then instituted. A hearing was had and the order of appointment made, from which no appeal was taken. That adjudication is not open to attack. The claim made and issue tendered by his subsequent petition before that court, and for review here, is that he has since recovered from his mental infirmities which then justified the order. It was not then, and is not now, claimed plaintiff was idiotic, imbecile or insane. Sanity or insanity was not the issue although somewhat stressed by plaintiff. In addition to the power to appoint guardians for those totally void of rational mentality, as the idiotic, imbecile and insane, the court has authority to appoint guardians for those persons “who by reason of old age or disease are mentally incompetent to have the care, custody and management of their estate,” as it also has in certain cases of minors, those given to excessive drinking, etc.

A line of plaintiff’s assignments of error is directed against rulings of the court in rejection or admission of what was in its nature opinion testimony of certain witnesses. On the whole, wide latitude was given in that particular to both sides. Numerous neighbors, relatives, friends and acquaintances of plaintiff of varying periods of time and degrees of intimacy testified, as also men of medical knowledge. Their testimony, elicited under lengthy direct and cross-examinations, constitutes a generous record which cannot be reviewed in detail. Early in the trial the court stated and for the most part adhered to the rule that non-expert witnesses could only express opinions on plaintiff’s mental condition as supplemental to stating facts or incidents which indicated some *basis for the conclusions expressed. To this might be added — or the testimony of the witness must clearly show that such intimate and close relations have existed between him and the party under inquiry as to fairly lead to and warrant the conclusion that such permitted opinion will be justified by the witness’ occasion and opportunities for observation. Paul v. Clements, 176 Mich. 251. Of defendant’s three witnesses, admission of whose testimony is assigned as error, one was a grandson, a graduate of the Cassopolis high school and a school teacher, who had known his grandfather all his life, with familiar knowledge of his characteristics and conduct of his affairs as he grew older. He related incidents of eccentric talk and acts of plaintiff in later years. Another was an old and near neighbor of 45 years’ acquaintance with whom plaintiff had discussed his troubles and asked to take charge of his property for him. He had a neighborly familiarity with plaintiff and how he managed his affairs and told of incidents in that connection in recent years which impressed him as irrational and peculiar. The other witness, Dr. Planck, was plaintiff’s long time family physician, had known him 30 years, had recently attended him when ill, met and talked with him often on the road, at his home and elsewhere. Since his wife’s death plaintiff had frequently told his. troubles to him and in doing so importuned the doctor to take charge of his property and business affairs for him. This witness expressed the opinion that plaintiff was not mentally competent to have the care and management of his property. On cross-examination he answered that he had not said plaintiff was insane and did not so consider him. He, however, adhered to the opinion that he was mentally incompetent to care for and manage his property. In the course of his testimony he stated he came to that conclusion three years previous and then advised plaintiff he should have a guardian; that impressed by his various talks he tested him somewhat, saying:

“I proposed various schemes to him regarding his property, and some of them were very absurd, I think, as sort of feelers to see what his notions were, and he agreed with me. I could make him agree to anything, practically.”

These witnesses were qualified to testify as they were permitted. Of those things in their testimony which it is claimed militate against their opinions or the contradictory testimony of plaintiffs witnesses we are not concerned.. The weight of the testimony was for the jury. Any of plaintiffs witnesses who approximated this degree of long familiarity with and knowledge of plaintiff and his affairs were permitted to give their opinions as to his mental competency to have the care, custody and management of his estate. All were permitted to tell what they personally observed in his talk and conduct and those showing such acquaintance and knowledge as to reasonably judge were, allowed to state whether they detected anything unusual in his talk or actions indicating that he was mentally abnormal or incompetent.

Error is assigned on the refusal of the court to permit five witnesses, Stiles Carter, Anna Udell, Dr. George A. Hughes, Adelbert Field and Frank Jones, to express their opinions as to plaintiffs mental competency to have the care, custody and control of his estate in direct answer to the formal question. As to the first two witnesses, there is nothing in the record giving any force to such objection. While in the progress of Carter’s examination the court made somewhat erratic rulings, he was eventually allowed to answer as follows:

“Q. In your opinion would you say that Milton A. Henderson is mentally competent to care for, have the management of his property and have the custody of it himself?
“A. Never discovered anything but what he was just as much so as ever, any more than he was growing old.
“Q. Then you would say that he was mentally competent?
“A. Yes, sir.”

The witness, Udell; a school teacher, who formed plaintiffs acquaintance after September 4, 1917, and was favorably impressed with his discussion of the civil war as well as the war then, in progress, was permitted to answer all questions asked her without objection and apparently to volunteer any information upon the subject she desired. She was directly asked by plaintiff’s counsel:

“Q. Based upon your observation and acquaintance with him, what would you say as to his mental condition, whether he' is of sound mind or not; whether in your opinion he would be mentally competent to manage his own property and have the custody of it?” And answered without objection, “I think he is.”

Dr. Hughes was employed professionally to examine plaintiff and did so in the office of his attorneys and elsewhere; and when he got through was told he would be called as a witness. He was asked for his opinion based on the examinations he had made at various times, his acquaintance and association with plaintiff and experience as a physician and surgeon. To this and another somewhat similar question counsel for defendant renewed his objection that it did not “appear to be an inquiry based upon his knowledge as-an expert,” which the court sustained “under the decision of Matthews v. Lamberton [198 Mich. 746].”' This ruling unmodified would call for serious consideration, but in the course of his examination and after stating his observations witness was asked, and answered :

“Q. State from the examination that you have made of Milton A. Henderson, whether in your opinion as a physician and surgeon, Milton A. Henderson is competent to have the charge, care, management and custody of his person and property?
“A. I believe he is.”

The last question with the answer, asked him by plaintiff’s counsel, was:

“Q. You may state, from the examination you made of Milton A. Henderson, whether you noticed anything that indicated to you that he was mentally incompetent — any fact or circumstance?
“A. No, sir, I detected nothing.”

Field, who, as a child, lived in the same neighborhood and knew plaintiff, stated, “but as I got older I moved away,” to Union where he had lived for the past 30 years. He had met him occasionally since at the stores in Union, mostly during the past five years, and discussed the weather and roads with him, but a question as to his opinion of plaintiff’s mental competency being objected to and sustained because sufficient facts were not stated, his counsel said:

“Well, you hesitated when you were asked whether or not you were well acquainted with Mr. Henderson, now I renew my question: You may state whether or not you are well acquainted with Milton A. Henderson?” To which witness replied, “I would say not.”
“Q. You would say you are not well acquainted with him?
“A. No.”

The only further facts elicited from this witness were that plaintiff subpoenaed him, and that “In an early day he had observed his conduct when he saw him around where threshing was done,” but for ten years or more knew nothing about farming matters “up there.” The court held that he had not qualified by his answers to sufficient acquaintance with plaintiff and knowledge of his affairs to testify as to his mental competency in the particular matter under inquiry. We are not prepared to say this was an abuse of discretion, or otherwise erroneous.

Jones did not know plaintiff until sent to take him in an automobile to Conkright’s in August, 1917, shortly before these proceedings were instituted. He stayed a couple of weeks at Conkright’s where he at times played cards with plaintiff and visited with him. He was permitted to state that he did not notice anything in his conversation or conduct indicating he was mentally incompetent. The conclusion of his examination by plaintiff’s counsel, to which no previous objection was made, appears in the printed record, as follows:

“Q. You may state whether or not, in your opinion, he is competent to have the care, management and custody of his person and property?
“A. I think he is.
“Mr. C.: I object to that.
“The Court: That may go it.”

The witness was permitted to tell all the facts counsel could elicit and to state that he detected no indication of mental incompetency. We are not impressed with the seriousness of the court’s ruling, whatever may have been intended — whether it should go in or out.

In this connection counsel for plaintiff complained that the court made “no distinction between the testimony necessary as a basis for opinions of insanity and sanity.” As before stated, sanity and insanity were not the issue. This is made emphatic and instructively discussed at length, with reference to our own cases, in Re Streiff, 119 Wis. 566 (97 N. W. 189, 100 Am. St. Rep. 903). Even in People v. Borgetto, 99 Mich. 336, cited for plaintiff, a criminal case involving a conviction for murder in the first degree, where insanity appears to have been urged as a defense, this court in discussing the distinction and sustaining an answer that “He seemed to be all right to me,” recognized a discretion in the trial court where such testimony is offered, based on “a sufficient acquaintance (with the party) under circumstances that give a reasonable opportunity for judging” as a preliminary to such answer. In this class of cases the single inquiry is directed to that degree of mental incompetency by reason of old age or disease, which disqualifies persons so afflicted, but not necessarily insane, from the normal care, custody and management of their estates. In the instant case there was ample evidence of plaintiff’s mental incompetency in that respect to carry the case to the jury, and. after a careful reading of plaintiff’s own testimony we cannot disagree with the view of the trial court that it tended to sustain rather than refute defendant’s contention on that issue.

Plaintiff took the stand as a witness in his own behalf at the outset of the trial and again near the close. His testimony as it reads indicates a fluctuating memory, at times clouded comprehension and contradictions in both important and unimportant matters. As illustrative of the latter he at one time stated there were no proceedings in September looking towards appointing a guardian for him, at another time that he did not consent to have a guardian of his own free will, that defendant promised to resign in two years, made statements indicating he was under the impression that defendant had title to all his property and ought to deed it back to him; having told many things about his troubles with the women he employed, who he at one time asserted “was all good women” after he had related how the threatening conduct of one “scared” and “unstrung” him, when subsequently interrogated about it denied he was afraid and declared “Never was. You can’t scare me;” he frequently emphasized his military service, about which his counsel interrogated him and elicited the following information:

“Q. During your service were you wounded?
“A. Well, it come pretty close. It made my hair white.
“Q. What?
“A. It turned all white. They used to call me ‘Rabbit.’ My hair turned white, but it is all turned white now. * * *
“Q. No bullet wound then?
“A. No. * * *
“Q. Well, you were near enough then to at least come close to a battle?
“A. Pretty near.”

His appearance upon the stand and manner of testifying were necessarily before the jury and proper for their consideration in weighing the testimony and passing upon the facts. His age was undisputed and he was, or had been, afflicted with disease and its crippling results, if rheumatism is a disease. Those are the causes designated by the statute, and it was for the jury to determine from all the evidence before it whether the designated incompetency had resulted from such causes in this case. Pertinent to the fact that plaintiff was necessarily in a sense an exhibit in the case, plaintiff’s counsel complain that the court prejudicially adverted to plaintiff’s physical afflictions and in effect authorized the jury to decide the case on physical rather than mental incompetency, quoting the following excerpts from different parts of the charge, upon which error is assigned:

“Of course where the physical infirmity, you can readily see, acts upon the mental, why you would have a right to consider that. * * *
“It is necessary, to place him under guardianship, however, to find that because of extreme old age or from any other reason, or reasons, he is incompetent to have the charge and management of his property.”

' We think it sufficient to state that the first excerpt is a part of the following instruction:

“An adult should not be placed under guardianship or held under guardianship on the ground of mental incompetency unless he is, by reason of extreme old age or other causes, mentally incompetent to have the care and charge of his property. The fact that a man is lame or that it is difficult for him to get around to look after his business, standing alone, is no reason why he should be held under guardianship. It is not the physical infirmity, necessarily, but it is that of the mental infirmity. Of course, where the physical infirmity, you can readily see, acts upon the mental, why you would have a right to consider that. Nor is old age, of itself, grounds for the appointment of a guardian. A person may go to a ripe old age and yet be in full possession of their mental faculties.. The question is do the years that rest upon him, and have they in this particular case, so reduced his mental activity, that it is no longer susceptible of normal action ? A person may even 'be incapable of conducting his business successfully, and still not be mentally incompetent.”

The second excerpt is complained of because the word “incompetent” is used without qualification, which it is said would give the jury a right “to consider the rheumatism as an incompetency instead of the statutory condition, ‘mentally incompetent.’ ” In the course of the charge, which, is quite exhaustive on the subject, the court used the term “mentally incompetent” at least 19 times and defined it in various ways — once saying that the term “has. been defined by the Supreme Court as follows:

“ ‘It does not refer to persons who are sane, but not perhaps as wise or intelligent.as some other persons. It applies to those whose mind is so affected as to have lost control of itself to such a degree as to deprive the person afflicted of sane and normal action.’ ” [In re Storick, 64 Mich. 685].

The excerpt complained of is the conclusion of a paragraph which defines “mental incompetency” and in which the term appears three times.

This case involves but one controlling issue of fact which the jury has decided with ample evidence to support their verdict, rendered after a thorough trial with both sides represented by able counsel, with an impartial and plain charge by the court instructing and cautioning the jury as to the principles which should guide them in passing upon the testimony and determining the facts. Defendant is friendly towards his father, has conserved his estate, gives him his pension each month as the probate court directs, has submitted the matter to the court and acts under its guidance, is not insistent on retaining the guardianship and stated:

“I would just as soon some one else would be guardian. I have given father - all the court said that I should. So far as I am concerned I do not care how much of this he uses. So it is used for him, that is all I care.. I have his money in the bank.”

We discover no miscarriage of justice or reversible error in this judgment, which is therefore affirmed.

Bird, C. J., and Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Ostrander, J., did not sit.


author: Brooke, J.

text:
    PEOPLE v. McELHENY.
    1. Perjury — Materiauty of Statements to Issues.
    In a prosecution for perjury based upon defendant’s testimony in a civil action denying tbe making of a contract to divide tbe profits on tbe construction of a certain drain, an amendment to tbe bill of particulars setting up an agreement whereby defendant was to pay $6,000 in settlement of said claim did not render immaterial defendant’s testimony denying said contract, since be denied both tbe making of tbe contract and tbe settlement.
    2. Same — Proof—Corroboration—Question for Jury.
    Tbe testimony of tbe plaintiff in tbe civil action to tbe making of tbe contract, supported by tbe testimony of his wife, together with the contents of certain letters written by defendant, held, sufficient to carry the case to the jury.
    3. Same — Triad—Conduct of Court.
    Where defendant had given testimony which tended to show that the prosecuting attorney had, prior to the issuance of the warrant, threatened to make an improper use of criminal process for the purpose of collecting the judgment in the civil action, statements by the trial judge cautioning him to be careful what he said and which naturally would, and probably did, influence the jury against him, held, erroneous.
    4. Same — Instructions.
    Where the jury returned to the court room for further instructions upon a certain point, the charge of the court given in response thereto, which not only failed to give the jury the exact information required but had a tendency to confuse and mislead them, held, erroneous.
    Exceptions before judgment from Van Burén; Des Voignes, J.
    Submitted April 17, 1919.
    (Docket No. 112.)
    Decided May 29, 1919.
    Clarence J. McElheny was convicted of perjury.
    Reversed.

      W. J. Barnard, for appellant.

      H. H. Adams, Prosecuting Attorney, for the people.
    Respondent stands convicted of the crime of perjury. It appears that sometime in the year 1914 one Charles H. Showers as plaintiff brought .suit in assumpsit against the respondent, McElheny, claiming damages, according to his bill of particulars, in the sum of upwards of $14,000. One item of--the plaintiff’s demand under the amended bill of particulars was as follows:
    “To amount agreed to be paid by the defendant to the plaintiff at the conclusion and winding up of an arrangement which they had theretofore entered into by the terms of which plaintiff was to furnish the money against which the defendant was to put his time to carry on the business of constructing drains, $6,000 being the amount then agreed to be due the plaintiff and the amount of his interest in the dredges, machinery, contracts and assets of the business including moneys earned and moneys advanced and which sum the defendant agreed to pay and the plaintiff accept; and the defendant did take over the dredges, machinery, assets, contracts and funds but refused to pay said sum of money.”
    Respondent by his amended plea in that case denied the making of any agreement to share with the plaintiff in that case the profits arising out of the Coin and Blanchard drain and averred that if any such arrangement was made that the same was settled between the parties in December, 1910. Upon the trial of the issue in that case, respondent here, defendant there, swore:
    “I never had any talk and arrangement with him about carrying on the business. I was borrowing money of Showers. I didn’t have any arrangement. At the beginning of any of these jobs I didn’t have any further or different arrangement than what you have stated already to the jury. I had no agreement that I was to pay him half the profits or anything of that sort.”
    On the trial of the issue in the case at bar plaintiff, Showers, swore:
    “The talk was that I should furnish the money and he would the labor, and I would get one-half of the profits. I furnished the money for the drain, I did. I put in a little over $3,000.”
    Plaintiff’s wife was sworn in this case and testified:
    “He wanted Mr. Showers to put up the money and he would put in the labor, you know, and put up the money for the drain and I heard it different times. On our porch we were all there and he told Mr. Showers if he would put up the money why he thought, if he put up the money for the Coin and Blanchard drain that there would be between eleven and twelve thousand dollars profit, which would be divided between Mr. McElheny and Mr. Showers, and he also said that he would make more money for Mr. Showers than Mr. Showers ever made in his life if he would let him have the money to put in the drain.”
    Defendant, sworn in his own behalf in the former-case, testified:
    “There was nothing said whether he would have-any profits- from the jobs or not; no, sir.

      “Q. Was there anything said at any time as to the-fact that he should put up the money in these jobs and you would put your time up and the profits would be divided?

      “A. Never was anything of. that kind talked.

      “Q. You never said to him?

      “A. No.

      “Q. Never had such an idea in your head from any talks that you had with him, did you?

      “A. I never had a talk of that kind with him.

      “Q. You never contemplated that that arrangement was made?

      “A. No, sir.”
    A letter was introduced from respondent to plaintiff, Showers, dated November 21, 1910, in which the following appears:
    “Now, stop and reason; you put your money in and I put my work up against it. You must-figure that you have to be out* of the use of it. There was nothing to them other jobs any way, and how could I pay you the waterworks job? You put in 200 for 45 days and got 300. Here you put in around 2,500 and will get three for one for the use of it six months.”
    The foregoing constitutes practically all the testimony in the record bearing upon the question of respondent’s guilt of the crime of which he was convicted. The record is not clear as to how the civil action ended except that it resulted in a settlement of some kind and apparently in the entry of a judgment upon which later an execution was issued against respondent.
    During the cross-examination of the respondent by the prosecuting attorney the following occurred:
    “You came over to the jail, I think, after Mr. Beat-tie. Nobody called you that I saw. I was right there in the jail and you came yourself after Mr. Beattie. Beattie may have called you over. You told me if I would pay this judgment of $100 that you wouldn’t sue me in this case, or wouldn’t press me in this case; that you would let it go; that is what you told me. You did tell me that you and I had been friendly and that was the first of it. You never mentioned that if you issued a warrant for me that you wouldn’t dismiss the case, under any circumstances; you never mentioned that. You said pay the $1,600 judgment and you wouldn’t press the case. You showed me those letters there; yes, sir. There was three together. You said you had been a friend of mine and didn’t want to issue a warrant for me on perjury; that I would get railroaded for it; that is what you said. Every word that I have spoken here is the truth.

      “The Court: Now, Mr. McElheny, be careful. I am not saying you are not telling the truth, but what you are stating now creates a condition here that, if there was other parties that observed, this will put you perhaps in a bad position, therefore be very careful. I am not going to permit this matter, especially under your statement now in this case to go unnoticed. This court is going to demand of its. officers exact and impartial right. I want you to understand that if an officer of this court is accused of seeking to compound a felony, this court is going to call in outside assistance, if necessary, to make the investigation, and if it is found that you have told an untruth in relation to that, as to the officer, you would know what it would do.

      “A. Your honor—

      “The Court: I don’t care; I am cautioning you. I have said, I am not saying whether it is true or untrue. I am simply cautioning you, that you are now in a court of justice and in a court where you must be cautious in what you say, and that you may have á full and thorough understanding of it. That is all. Now proceed with your examination.”
    At the close of the case for the people respondent’s counsel made, a motion for a directed verdict upon the following grounds:

      “First: For the reason that the testimony introduced in this case and claimed to have been false does not constitute perjury for it was not material to the issue then being tried in the case of Showers v. Mc-Elheny.

      “Second: For the reason, to constitute perjury, it must be predicated upon the testimony of two witnesses or one witness with other credible testimony corroborating the witness of equal value to one witness, and for these reasons I ask for a directed verdict in this case.”
    This motion was denied and the case went to the jury under voluminous instructions. After being absent for a time the jury returned and the following occurred:

      “The Court: Gentlemen, I am speaking now to the foreman — you have a foreman? Mr. Foreman, I am informed by the sheriff that you desire to see the court relative to some portion of the charge in this case.

      “The Foreman: Yes, sir.

      “The Court: Now, before you ask any questions I will ask you some, a question or two. Is your difficulty one arising over a question of fact or a' question of law? Is it over the evidence or over the law?

      “The Foreman: It is over the testimony, I think— the evidence that would be, I suppose.

      “The Court: Well, Mr. Foreman, if it is a question relative to the construction of the testimony, I can’t help you. If it is a question relative to the law I might perhaps give you additional instructions, but of the facts in this case and resolving of some question on the evidence, I can’t help you; that is your province alone. You think it is on the question of evidence, Mr. Foreman?

      “The Foreman: I think so. I am sure it is. That seems to be the difficulty.

      “The Court: How do you stand? Wait a moment before you answer. What I mean — I don’t care to say — have you say whether for or against, but do you stand six to six?

      “The Foreman: No, sir.

      “The Court: Four to eight or three to nine? How do you stand?

      “The Foreman: Ten to two.

      “The Court: You may be seated, Mr. Foreman. Mr. Bullard, that is your idea of it, as stated by the foreman, it is over a question of fact, over the question of the evidence that you seem to differ, is it?

      “Mr. Bullard: Your honor, as I understand you—

      “The Court: (Interrupting.) No, I don’t care—

      “Mr. Bullard: Yes, sir.

      “The Court: I have got to be pretty careful about these mattérs, Mr. Juror — Mr. Bullard. I simply wanted to know whether your difficulty in arriving at a verdict is over the facts testified to in the case, over the evidence.

      “Mr. Bullard: Yes, sir.

      “The Court: It is that, is it?

      “Mr. Bullard: Yes, sir.

      “The Court: It is not relative as to what the law is in a given case at all?

      “Mr. Bullard: Yes, I think it. is in a way.

      “The Court: Well first you tell me you think it is a question of fact, just as the foreman does, Mr. Bullard, and then you think it is a question of law. You may be seated. Juror on the rear seat — I can’t think of your name — Mr. Cochrane, is it your idea that the difficulty arises here is over the evidence in the case, over a question of fact?

      “Mr. Cochrane: It seems to me a question of law, I should think.

      “The Court: You think it is a question of law that the difficulty is about?

      “Mr. Cochrane: It is over your instruction to the jury.

      “The Court: If you state it is a question of law— or let me hear you state what the proposition is to me that you need further instruction on.

      “Mr. Cochrane: I could tell — maybe I would give it wrong.

      “The Court: Well, you are conscientious about it. State it.

      “Mr. Cochrane: It is the question whether this settlement was made before this letter, and you stated if the settlement was made before—

      “The Court: (Interrupting.) After the letter.

      “Mr. Cochrane: After this letter was written why the plaintiff would be considered under contempt.

      “The Court: Would not be guilty of perjury.

      “Mr. Cochrane: Yes, that is the way I interpreted.

      “The Court: Well, now gentlemen, give me that paper. Therefore, your question or difficulty arises from this, as to whether or not the matter testified to by the respondent in this case was material to the issue; that seems to be your trouble, does it not?

      “Mr. Cochrane: Yes.”
    Then followed a repetition by the court of a large portion of his charge together with some added matter, in closing which the court said:
    “That is all I care to say to you, gentlemen. You may retire. You are so near a verdict, ten to two, that I feel I should send you back for further deliberation. You may now go with the officer.”
    Counsel excepted in the following language:

      “Mr. Barnard: At this time I desire to take an ex-' ception to the additional instructions, for it would tend to mislead the jury, and was not an additional instruction at the point asked by the juror. They said they wanted to know whether or not the settlement was made after or before — the claimed settlement was made, after or before the writing of the letters, and it is undisputed in this case that the settlement, if any was made, was made in December, and the last letter that was written in this case was November 21, 1910, therefore said instructions would tend to mislead the jury,”
    . — to which the court replied:

      “The Court: The facts remain very carefully on this record that the jurors — the jury were interrogated in relation as to what the, difficulty was. It is clear from the investigation of the juror that what was in his mind was whether or not — -and he so replied to a question that I asked him, whether or not the trouble with them was whether the testimony was material, and it is upon that question — and I simply gave to the jury the instructions that I had given to them upon the proposition heretofore.”
    The jury thereupon retired and returned with a verdict of guilty.
   Brooke, J.

(after stating the facts). The first assignment of error discussed in counsel’s brief is based upon the refusal of the court to direct a verdict in favor of the respondent upon the ground that the testimony set forth in the information was not material to the issue being tried in the civil case. This contention is based upon the assertion that after the amended bill of particulars was filed the only issue between the parties was whether there had been a settlement between the plaintiff and defendant whereby the defendant had promised to pay to plaintiff the sum of $6,000 in settlement of all their differences. With this contention-we cannot agree. Plaintiff in that suit asserted that a contract had been entered into for an equal division of the profits on the Coin and Blanchard drain and further by his amended bill of particulars asserted that $6,000 was the amount later agreed upon to be due the plaintiff under that contract. Respondent by his plea denied both assertions. We think, therefore, that the testimony given by respondent in the civil case in which he denied positively the making of an agreement to divide profits on the Coin and Blanchard drain was material to the issue and that the jury should have been so instructed by the court.

It is. next urged by counsel that assuming the materiality of the evidence its falsity was not proven in the case at bar by “two or more witnesses or by one witness supported by corroborating and independent circumstances.” We are of opinion that the evidence of Charles H. Showers supported by that of his wife, Minnie Showers, taken together with the contents of the letters written by the respondent, was sufficient to carry the case to the jury.

Error is assigned upon the language of the court quoted in the statement of fact addressed by the court to respondent during his cross-examination. Respondent was on trial for perjury. He had given testimony which tended to show that the prosecuting attorney prior to the issuance of the warrant in the case at bar had threatened to make an improper use of criminal process for the purpose of collecting the judgment arising out of the civil case. We are not concerned with the explanation given by the prosecuting attorney of the incident in question. The point is, Were the strictures of the learned trial judge delivered to respondent on trial for an offense involving his liberty for a long term of years such as. were calculated to prejudice him in the minds of the jurors who heard the remarks and later brought in a verdict of guilty? We are constrained to hold that the language indulged in by the court was such as naturally would and probably did influence the jury against the respondent to his injury. We have examined the assignments of Jerror touching the alleged improper conduct of counsel for the people and with reference to the admission and rejection of testimony and find therein no reversible ¡error.

.¿There are many assignments upon the charge of the court as given and particularly upon that portion of the charge given after the jury returned to the court room for the second time. These it is unnecessary to consider at large. It is sufficient to say that we think the language of the court in the latter portion of his charge is open to the criticism that it was likely to confuse and mislead the jury and that it failed to give to the jury the exact information required which was whether the letters introduced in evidence were dated before or after the date of the claimed settlement in December, 1910. After a consideration of the whole record we are of opinion that the respondent did not have that fair and impartial trial to which he was entitled under the law.

Judgment is reversed and a new trial ordered.

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


text:
    STANDARD v. JEWELL.
    1. Deeds — Identity of Grantor — Names.
    Where the grantor in a deed testified that his full name was Francis Marion Warner, .and that he sometimes signed Francis M. and sometimes Frank M., an objection that the deed was void because signed Frank M., held, untenable. '
    2. Same — Conveyance Prior to Issuance op Patent — Validity.
    Although the conveyance of homestead lands was made prior to the issuance of the patent to. the grantor by the United States, the contention that grantor had no title to convey cannot be-sustained.
    3. Homesteads — Husband and Wipe — Wife Living in Another State.
    A wife living separate and apart from her husband in another State has no homestead rights in her husband’s lands in Michigan. Affirming Stanton v. Hitchcock, 64 Mich. 316.

      4. Adverse Possession — Licensee—Landlord and Tenant — Notice.
    It is settled law in Michigan that a tenant or licensee cannot convert his occupancy under license into an adverse holding without actual notice to the holder of the legal title.
    5. Same — Continuous Possession.
    Where the occupation of the lands by plaintiffs or any one in their behalf was not continuous, the court below properly held that title by adverse possession was not established.
    Error to Otsego; Sharpe, J.
    Submitted April 15, 1919.
    (Docket No. 40.)
    Decided May 29, 1919.
    Rehearing denied October 6, 1919.
    Trespass quare clausum, fregit by Frank Standard and others against Edson Jewell, Walter D. Young and others. Judgment for defendants on a directed verdict. Plaintiffs bring error.
    Affirmed.

      W. A. Harrington, for appellants.

      James E. Duffy (Russell H. Neilson, of counsel), for appellee Young.

      W. L. Townsend, for other appellees.
    Plaintiffs sued in an action of trespass, alleging that defendants had wrongfully entered upon their lands and cut and removed therefrom certain timber. Under the plea of the general issue defendants gave notice that they would show that plaintiffs never had title to the lands or any part thereof upon which the alleged trespass was committed and further that the title thereto rested solely and exclusively in defendant Walter D. Young.
    The pertinent facts appear to be that one Francis Warner (otherwise known in the record as Frank M. Warner), a civil war veteran, entered upon the land in question, together with 40 acres adjoining, under the homestead law. He resided upon the land a sufficient length of time to comply with the provisions of the homestead law and on May 17, 1881, he received from the United States Land Office a final receipt in the following terms:
    “Final Receipt No. 4761.
    “Application No. 7889. Homestead. “Receiver’s Office, Reed City, Mich., May 17th, 1881.
    “Received of Francis Warner the sum of eight dollars being the balance of payment required by law for the entry of S. N. W. *4 and N. 1/2 of S. W. % section 6 in township 32 N. of range 3 west containing 162 80/100 acres. Under section 2291 of the Revised Statutes of the United States.
    “$8.00. W. H. C. Mitchell, Receiver.”
    Prior to his coming to Michigan said Warner had married one Sarah Hodgkins in the State of New York. She, however, never came to Michigan nor resided upon the land in question with Warner. He instituted divorce proceedings against her in Indiana and claims to have believed he had a decree of divorce; at any rate, he married one Allie D. Plumley, with whom he lived for several years. On June 20,1881, he deeded the lands in question to Allie D. Warner, his wife, and at his request she, on January 13, 1883, executed a mortgage for $350 thereon to William Coming of Rochester, New York. This money was received by Francis Warner. On May 10, 1884, the United States patent was issued to Francis Warner. It is to be noted that this patent is of a later date than the deed from Francis Warner to Allie D. Warner as well as later than the mortgage from Allie D. Warner to William Corning. Said mortgage was foreclosed and a sheriff’s deed covering the land in question issued to William Coming’s estate, dated February 24, 1896. Title from the estate passed to defendant Walter D. Young by deed dated August 8, 1910. Plaintiffs rested their claim of title upon two grounds:

      1st. A quitclaim deed dated January 28, 1903, from Francis Warner to Henry B. Standard, father of plaintiffs, now dead, covering the lands in question, and
    2d. Adverse possession.
    They further claim that defendants’ title is bad for the reason that the deed from Francis Warner to Allie D. Warner was void for two reasons:
    1st. Because it was executed prior to the date of the patent from the government to Francis. Warner, and
    2d. Because Sarah Hodgkins who was (it is asserted), at that time Warner’s legal wife, did not join in the deed of the homestead.
    The learned circuit judge directed a verdict in favor of the defendants upon the ground that the deed from Francis Warner to Allie D. Warner was valid even though his legal wife, Sarah Hodgkins, did not join therein; that therefore the quitclaim deed from Francis Warner to Standard conveyed no title. He further held as a matter of law that plaintiffs had failed to establish title by adverse possession for the requisite statutory period. Plaintiffs now review the case in this court.
   Brooke, J.

(after stating the'facts). It is the contention of counsel for plaintiffs that a perfect paper title in plaintiffs was shown through:

1st. Homestead entry by Francis Warner.
2d. Patent to Francis Warner from United States.
3d. Deed from Francis Warner and wife to Henry B. Standard.,
4th. Death of Henry B. Standard.
5th. Plaintiffs’ relationship to Henry B. Standard which constituted them his sole heirs.

It will be noted that in this chain of title plaintiffs’ counsel omits all reference to the final réceipt from the land office dated May 17, 1881; the deed from Frank M. Warner to Allie D. Warner, dated June 20, 1881; the mortgage from Allie D. Warner to William Corning dated January 13, 1883, and the sheriff’s deed on the foreclosure of said mortgage from the Corning estate to defendant Walter D. Young, dated February 24, 1896. It seems to be the contention of counsel for appellants that he is justified in disregarding the deed from Frank M. Warner to Allie D. Warner upon several grounds:

1st. He claims that the given name of the grantor in the deed (Frank M.) is different from that (Francis) given in the receipt from the land office.

2d. It is asserted that inasmuch as the conveyance was made from Frank M. to Allie D. Warner prior to the issuance of the patent on May 10, 1884, Frank M. Warner had at the time of the execution and delivery of said deed no title to convey.

3d. That the deed is void because not signed by Sarah Hodgkins, the New York wife.

We will examine these claims as made:

First: It is asserted by counsel for defendants that Francis Warner and Frank M. Warner are one and the same person, indeed, Warner himself was sworn upon the trial and testified that his full name was Francis Marion Warner; that he sometimes signed Francis M. Warner and sometimes Frank M. Warner. We are of opinion that this objection is wholly untenable.

Second: This contention will be found to be negatived by the following decisions: Johnson v. Ballou, 28 Mich. 379; Flint, etc., R. Co. v. Gordon, 41 Mich. 420; Fisher v. Hallock, 50 Mich. 463. See, also, cases reported in note to 6 L. R. A. (N. S.) 934.

Third: It seems to be the settled law of this State that a wife living separate and apart from her husband in another State has no homestead right in her husband’s lands in Michigan. Stanton v. Hitchcock, 64 Mich. 316 (8 Am. St. Rep. 821) ; Black v. Singley, 91 Mich. 50; Hall v. Marshall, 139 Mich. 123 (111 Am. St. Rep. 404). With reference to the decision in Stanton v. Hitchcock, supra, counsel for appellants says:

“It seems to me that both of the Justices who discussed the Hitchcock Case had an erroneous conception of art. 16, section 2 of the Constitution (1850) and §§ 10362, 10363, 3 Comp. Laws 1897.”

We have examined the authorities in question and are satisfied with the conclusions therein announced. It is therefore apparent that at the time the quitclaim deed from Francis Warner and wife to Henry B. Standard was executed and delivered on January 28, 1903, Francis Warner had already parted with his title to said lands. Plaintiffs.’ title, if any, therefore, must rest upon their assertion that they have acquired the same through adverse possession. This claim we will examine. Elizabeth Standard, widow of Henry B. Standard, testified:

“During the time I haye resided here I knew a woman by the name of Rachael Potts. — She occupied this same description of land — Sometime from 1884 to about 1887 — She received possession of this land from Francis Warner. — I know the possession of this property passed from Rachael Potts to Marcy Bradner — Marcy Bradner occupied the property about one year. — Marcy Bradner transferred possession of this property to Henry B. Standard. * * *
“After receiving possession of this property from Marcy Bradner my husband remained in possession of it up to the time of his death. He left no will disposing of his property and his estate has never been probated.”

Harry Standard, one of the plaintiffs, testified:

“Q. Now you say that your father got permission to go on that land from Marcy Bradner?
“A. Yes, sir — I heard the arrangement or bargain made. The bargain was that she left the place wholly and fully in charge of my father, he could work it and crop it to his satisfaction — He was not to pay any taxes or anything for the use of it — he was to look after it and could use it for looking after it. There was no arrangement made about trespass.”

From this testimony it appears that the position of Henry B. Standard was that of a tenant or licensee of Marcy Bradner. We cannot find that Henry B. Standard ever made any claim of ownership to the property in question prior to the date of the quitclaim deed of January 28, 1903, nor is there any evidence of his having given any notice of his claim of ownership to any one except by placing the quitclaim deed upon record. It is settled law that a tenant or licensee cannot convert his occupancy under license into an adverse holding without actual notice to the holder of the legal title. Campau v. Lafferty, 50 Mich. 114; Butler v. Bertrand, 97 Mich. 59; Hoban v. Cable, 102 Mich. 206; City of St. Joseph v. Seel, 122 Mich. 70. The occupation of a small portion of the premises by Henry. B. Standard or his children, plaintiffs, was not continuous up to the time of his death in October, 1906. From 1906 to 1908 it appears to have been occupied by one of the plaintiffs, but there is no evidence of occupation by any of the plaintiffs or any one in their behalf since 1908, no taxes upon the property have ever been paid, either by Henry B. Standard or his. heirs. Under these circumstances we are of opinion that the circuit judge was correct in directing a verdict for the defendants because of the failure of plaintiffs to furnish clear and cogent proofs covering the essential facts necessary to constitute title by adverse possession. Yelverton v. Steele, 40 Mich. 538; Pendill v. Agricultural Society, 95 Mich. 491; and Judson v. Duffy, 96 Mich. 255.

The judgment is affirmed.

Bird, C. J., and Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred. Ostrander, J., did not sit.


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    NAERT v. WESTERN UNION TELEGRAPH CO.
    1. Master and Servant — Workmen’s Compensation Act — Settlement With Wrongdoer Does Not Release Employer.
    Where a mother, as administratrix of her son’s estate, made a settlement with the wrongdoer in an accident, whereby her son was killed, she did not thereby release the son’s employer from liability to dependents under the workmen’s compensation act.
    2. Same — Settlement Does Not Release Wrongdoer from Liability to Employer.
    Under section 15, part 3, of the workmen’s compensation act (2 Comp-. Laws 1915, § 5468), the employer has a right to recover such payments as he is obliged to make from the third person legally liable for the injury, and such right would not be affected by any settlement made by the legal representatives of the injured person with said third person, since the latter must be held to have proceeded with knowledge of the fact that he might be called upon to resprad to the employer who is primarily legally liable under the act.
    Certiorari to Industrial Accident Board.
    Submitted May 1, 1919.
    (Docket No. 70.)
    Decided May 29, 1919.
    Romanie Naerteand others presented a claim for compensation against the Western Union Telegraph Company for the accidental death of claimants’ decedent in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Affirmed.

      Corliss, Leete & Moody and Benjamin S. Pagel, for appellant.

      Edward H. Kennedy, for appellees.
    Certiorari to the industrial accident board. Joseph Naert, son of claimant, Romanie Naert, and half brother of claimant, Mary Naert, was killed on "April 24, 1918. He was a telegraph messenger working for respondent at the time of his death. In delivering messages he used a motorcycle. On the day of his death he was riding at a high rate of speed in an easterly directibn on Mack avenue. At Baldwin avenue a truck belonging to the Cottage Grove Creamery Company was being driven north across Mack. The motorcycle struck the truck with such violence that Joseph. Naert was instantly killed. It is conceded by respondent that the accident arose out of and in the course of the employment and that the average weekly earnings of the boy were sufficient to warrant a maximum award of $10 per week for 300 weeks. The dependency of the mother and sister of the deceased lad likewise is conceded, or, if not conceded, is not seriously questioned. The sole controversy between the parties arises out of the following facts:
    The Cottage Grove Creamery Company at the time of the accident was carrying industrial insurance. On the day after the lad was killed a representative of the insurance company called upon Romanie Naert, mother of the deceased, and it being ascertained that Mrs. Naert was without funds to defray the funeral expenses of her son, Mr. Frick, the manager of the Cottage Grove Creamery Company, volunteered to—
    “see to it that the funeral was paid for either by them or the insurance company.”
    The negotiations between Mrs. Naert and the Cottage Grove Creamery Company and the insurance company carrying the risk seem to have been carried on by one Gaston Verdón, a friend of the Naerts. Within a day or two the lad was buried and on April 30th, the arrangements having been completed, an application was made by Mrs. Naert to the probate court for her appointment as administratrix of the estate of her deceased son. She on the same day was appointed such administratrix and likewise upon the same day filed a petition for leave to accept the sum of $176 from the Cottage Grove Creamery Company for a release of said company:
    “On account of all liability on its part for damages to said estate on account of said accident.”
    An order having been made by the probate judge said sum of $176 was. paid by the creamery company or the insurance company in the form of checks to the undertaker, the florist and the priest who had rendered services in connection with the funeral. A further sum of $24 was paid by the creamery company directly to the mother in consideration of a release from her to it — ■
    “of and from all claims, demands, damages, actions and causes of action, including all claims on account of loss of service, now existing or hereafter accruing on account of injuries accidentally sustained by Joseph Naert and death resulting therefrom on or about the 24th day of April.”
    Romanie Naert is a Belgian, unacquainted with the English language. She testified:
    “There was a man came there and asked if I straightened up the matter for the funeral, and for the motorcycle; he would give me that. If I did not take that, that I would have nothing. * * *
    “A. They told me it was for the accident of the boy, to pay his funeral expenses.

      “Q. Did they say anything further if you did not sign for it?

      “A. They said that he would give me that money, that they would give me that money for funeral expenses. He offered'me $200 for the expenses, and the leavings was for me. If I would not take that, I would have nothing. That is what he said.

      “Q. That is all. You had no lawyer representing you, did you?

      “A. No.”

      All the court proceedings were carried out and the money was paid on the same day, April 30th, which was the 6th day after the death of Joseph Naert. Later, on the 11th day of September, 1918, Romanie Naert applied to the industrial accident board for compensation under the statute. The award on arbitration provided for $10 per week for 300 weeks. This was affirmed by the full board in all things except that the award was made payable one-half to the mother and one-half to the sister of the deceased boy.
    It is the claim of the appellant that Romanie Naert, by executing the releases to the Cottage Grove Creamery Company on April 30th, has deprived the Western Union Telegraph Company of its right to sue the creamery company for the amount of compensation the telegraph company will be obliged to pay to her and to Mary Naert under the award of the board. This contention raises the only question in the case.
   Brooke, J.

(after stating the facts). We have held (Vereeke v. City of Grand, Rapids, 203 Mich. 85), that a beneficiary by accepting compensation under the act from her decedent’s employer did not thereby release the original wrongdoer “from liability in an action for the benefit of the heirs at law or the creditors,” of the deceased. The converse of that proposition is here presented. Did Romanie Naert by accepting a settlement as administratrix of her son’s estate or as an individual for all claims against the Cottage Grove Creamery Company, growing out of her son’s death, thereby release her son’s employer from liability under the act? We think not. The act provides, section 1 of part 6 (2 Comp. Laws 1915, § 5488), as follows:

“If the employee, or his dependents, in case of his death, of any employer subject to the provisions of this act files any claim with, or accepts any payment from such employer, or any insurance company carrying such risks, or from the commissioner of insurance on account of personal injury, or makes any agreement, or submits any question to arbitration under this act, such action shall constitute a release to such employer of all claims or demands at law, if any, arising from such injury.”

As was pointed out in the Vereeke Case, the act nowhere compels election on the part of the dependent as it does on the part of the injured party himself. We are disposed to hold that the releases executed by Romanie Naert to the Cottage Grove Creamery Company were of no force and effect, as between the employer of the dead boy and the Cottage Grove Creamery Company, in an action brought by the telegraph company to recover the compensation it is called upon to pay under the award of the board. Section 15 of part 3 (2 Comp. Laws 1915, § 5468) clothes the employer with the absolute right to recover such payments as it is obliged to make from the third person legally liable for the injury. Such third person, in this case, the Cottage Grove Creamery Company, in adjusting a claim with the legal representatives of the injured person must be held to have proceeded with knowledge of the fact that it might be called upon to respond to the employer who is primarily legally liable under the terms of the act to the injured party or to his dependents in case of his death. The industrial accident board held under such proofs as were introduced at the hearing that the death of the boy was not caused “under circumstances creating a legal liability” in the Cottage Grove Creamery Company; that the payment of $200 to Romanie Naert was a mere gratuity and that her releases to the Cottage Grove Creamery Company constituted no bar to her right to compensation from the telegraph company.

Under our view of the case it is unnecessary to either agree or disagree with these holdings. So long as the telegraph company is left free to proceed against the Cottage Grove Creamery Company as though no settlement had been made it has ho reason for complaint, and that we hold to be its present status herein.

The award is affirmed.

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


text:
    TAYLOR v. TAYLOR.
    Cancellation of Instruments — Deeds—Proof.
    On a bill by brothers of the grantor to cancel certain deeds placing the title of certain hotel property in the grantor and his wife as tenants by the entireties, the decree of the court below dismissing the bill for failure of proof, is affirmed on appeal.
    Appeal from Muskegon; Barton, J., presiding.
    Submitted April 9, 1919.
    (Docket No. 20.)
    Decided May 29, 1919.
    Bill by William P. Taylor and another against Anna Taylor and another for the cancellation of certain deeds. From a decree dismissing' the bill, plaintiffs appeal.
    Affirmed.

      James E. Sullivan, for plaintiffs.

      John A. McLaughlin and Oscar E. Waer, for defendants.
   Brooke, J.

The bill in this case is filed to secure the cancellation and delivery of two deeds executed' and delivered by one James C. Taylor on February 27, 1917. Said Taylor died four days later, on March 2, 1917.

The plaintiffs are brothers of James C. Taylor, deceased, and the defendant Anna Taylor is the widow of said deceased. The two plaintiffs and the defendant named are the only heirs at law of the deceased. Defendant Lillian Arnold has no interest in the litigation, she being merely the grantee in the first deed and the grantor in the second, — the conduit through whom the title to the property in question passed from James C. Taylor, deceased, to James C. Taylor and Anna Taylor as tenants by entireties. At the time of his death James C. Taylor was 54 years of age and had been married to Anna Taylor for some 12 years. The union was fruitless. He had been engaged for many years in the saloon or hotel business at Muskegon Heights and had accumulated some little property. A farm in the vicinity was owned by him, the title to which had for some time stood in the names of himself and wife as tenants by entireties. He was taken ill about the 14th of February with erysipelas and became rapidly worse, though not confined to his bed until on or about the 27th, the day the deeds were executed. On that day he asked one Haverstumpf, an old friend, to send for a Mr. Morris who was cashier of the First State Savings Bank of Muskegon Heights. The deceased was a stockholder and director as well as a considerable depositor in said bank. Mr. Morris at once responded to the call and was advised by deceased to fix the title to the hotel property, “like the farm.” Morris asked him if he did not think a lawyer should be called in to handle such a matter, and the deceased replied: “Yes, you and Johnnie fix it.” By “Johnnie” meaning Mr. McLaughlin, a local attorney, whom he had known many years. Morris immediately advised Mr. McLaughlin of the desire of the deceased and McLaughlin prepared the deeds in question. They were taken to the bedside of the deceased in the hotel, the title to which was being changed, and there executed by deceased in the presence of two witnesses (nurses of the deceased), the acknowledgment being taken by one Glenn M. Porter, a notary public. .

It is the contention of the plaintiffs that at the time of the execution of the deeds in question the deceased did not possess sufficient mental capacity; that he was not in a condition—

“capable of knowing and understanding the nature of-the business he was then engaged in and the elements of that business and what was necessary to accomplish that business.”

Nine witnesses were sworn at the hearing, all of whom gave testimony touching the mental condition of the deceased at the time the deeds were executed. An examination of the record discloses that aside from the testimony of the two plaintiffs who are vitally interested in the outcome of the controversy, there. is no testimony calling in question the mental capacity of the deceased at the time in question. It is true that counsel for plaintiffs draws certain conclusions from the testimony of the attending physician which it is claimed support the contention that the deceased was, at the time the deed was executed, mentally incompetent. On the other hand we find the direct and positive testimony of the two nurses, Allard and Foley; Haverstumpf, an old friend of the deceased; McLaughlin, a lawyer, and legal adviser of the deceased;. Porter, a notary public, .and Morris, the cashier of the savings bank with whom he did business, all of whom are apparently without interest in the controversy, tending to support the conclusion that on the day in question the deceased was able to comprehend and did comprehend the nature of the business in which he was engaged. Some argument is indulged in by counsel for plaintiffs based upon the shaky and partially illegible character of the signature of deceased to the instrument in question. This fact we think not controlling. The disease in its progress had entirely obliterated the sight of one of the eyes of the deceased and had caused the other eye to become much swollen. The physical ability to write his name clearly and legibly is not the test to be applied. Assuming that deceased had the mental capacity to fully understand the nature of the transaction the deed would have been just as valid had it been executed by his making a mark instead of writing his name.

It would be idle to set forth or even discuss with particularity the testimony of- the several witnesses. The learned circuit judge who heard and saw them upon the stand in dismissing the bill said: “The plaintiff has failed in this case utterly.” It is sufficient to say that with this conclusion we agree.

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

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