author: Stone, J.

text:
      In re HEWITT’S ESTATE. WARNER v. DYER.
    Evidence — Wills—Estates of Decedents — Admissions—Undue Influence.
    Admissions made by a legatee who is not a party to proceedings for the probate of a will, tending to show an intent on her part to exercise undue influence over the mind of testator, are incompetent where there are also other legatees under the testament who took no part in the alleged undue influence.

      Error to Allegan; Padgham, J.
    Submitted April 8, 1910.
    (Docket No. 34.)
    Decided June 6, 1910.
    William W. Warner, as executor, presented for probate the last will and testament of George Hewitt, deceased. The will was allowed in the probate court, and Elizabeth Dyer and Charles W. Hewitt, contestants, appealed to the circuit court. A judgment for contestants is reviewed by proponent on writ of error.
    Reversed.

      Charles Thew and O. 8. Cross, for appellant.

      Wilkes & Stone, for appellees.
   Stone, J.

This case presents a contest over the will of George Hewitt, deceased. The will was allowed in the probate court, and Elizabeth Dyer and Charles W. Hewitt, a daughter and son of deceased, appealed to the circuit court,- where contestants prevailed. The will was contested in the circuit court on the grounds of mental incapacity and undue influence.

The testator died December 31,1907. On February 33, 1907, he made the will in question, leaving one-half of his estate to one Jennie Flitcroft, a woman with whom he had lived, and who had cared for him during the last three years of his life, and the other half to Fanny Miller, his daughter, during her lifetime, and at her death to her six grandchildren, who are named in the will. Mrs. Miller joined in the effort to defeat this will, but she was not a party of record. The grandchildren were not parties, and were not represented at the trial, in so far as this record shows. At the time of his death the testator was 89 years of age. He was an uneducated man, and could neither read nor write. He came from England to the State of New York when the older children were small. After his wife’s death, he came to Allegan, Mich., and spent the remainder of his life at or near that place. He brought with him to Michigan his son Thomas, who has since died. He left in New York the son Charles, then an infant, and at least two daughters, the oldest children. About nine years later, when Elizabeth, the oldest child, one of the contestants, was 20 years old, she came to Michigan, and for a time kept house for her father and brother, and afterwards, and after some trouble with her father, she married Russell Dyer. In 1875 testator married a second wife, and moved upon a farm, and lived with her until she died in 1897, after which a Mrs. Crow kept house for him until her death in 1903. Elizabeth and her husband lived with him on the farm for about 11 months, ending in April, 1904. During this time he visited the daughter Fanny and her children in Kansas. From April, 1904, he lived on the farm alone. In November, 1904, he went to the Flitcrofts’ and l’emained there until his death. After he came to Michigan, the first time testator saw his son Charles was some 16 years ago, when he was visited by him, and Charles visited him twice afterwards. He remained a short time only. Elizabeth has lived in Allegan and vicinity most of the time since she came there, save nine years in northern Michigan. The first time testator saw the daughter Fanny was about 26 years after he came to Michigan, and she has visited him twice since. She and her daughters live in Kansas.

It is claimed by proponents that there never existed any filial affection on the part of the children toward the testator, nor any parental affection on his part toward them; that his relations with Elizabeth were cold, and, while she visited him occasionally, he always showed a distinct dislike to her husband and their son, and while and since they lived with him upon his farm, a dislike toward Elizabeth. He made complaint to his friends, while the Dyers were on the farm, that they did not care for him and neglected him when he was sick, and said he would not live with them again, that he had no use for them, and that Elizabeth should never receive anything from him. Charles in his last visit to testator obtained $30 from him in a way which he considered dishonest. He never exhibited any affection for Charles, and was heard to say that he should never receive any of his property.

During the summer and fall of 1904 Mrs. Flitcroft did the baking and washing for testator, and cleaned his house occasionally, he promising to compensate her for this, and in the fall he went to live with the Flitcrofts. At that time, and for some time afterwards, he was afflicted with sores and rheumatism, and had the grip and bowel trouble. There is no question that Mrs. Flitcroft attended him and nursed him, and gave him excellent care. In October, 1905, testator sold the farm for $3,000. During 1906, and until after the will was made, testator’s health had improved and was good for a man of his age, and he was able to get about and showed great physical vigor. He was a man of strong will and stubborn disposition. He habitually used intoxicating liquors, but generally not to excess. At the time Mrs. Crow died there was a will of testator in existence, and it was destroyed. It gave Mrs. Crow a lot called the brewery lot, a cow, the household furniture, and an equal share in the balance of testator’s estate with his daughters, Mrs. Dyer and Mrs. Miller, and son Charles. In 1905 he made another will, in which he left Mrs. Dyer and Charles out entirely, gave $500 to Mrs. Flitcroft, and the balance to his daughter Mrs. Miller. He paid no board to the Flit-crofts as such, but aided Mrs. Flitcroft in building a brick house to the amount of upwards of $300, gave her a cow and some other articles, and, in the spring of 1907, $150, and, just before he died, $50. William W. Warner, one of the executors of the will, proposed it for probate.

Upon the trial of the case counsel for proponent took numerous exceptions to the rulings of the trial court in the introduction of evidence, and there are 49 assignments of error in the record. We shall not discuss all of these assignments, for the reason that, as the case must go back for a new trial, many of the questions argued are not likely to arise again.

We have read this record carefully, and are of opinion that there was no evidence of want of testamentary capacity on the part of the testator, and that proponents’ twelfth request should have been given. We should hesitate to reverse the case were this the only point, for the reason that we are strongly impressed by the charge, and in fact by the entire record, that the jury found against the will on the ground of undue influence, although both questions were submitted to them.

The questions raised by the second, seventh, and ninth assignments of error, relating to the testimony of the witnesses Clara Hess and Elizabeth Shank as to the statements and declarations of Mrs. Flitcroft, against the objections and exceptions of proponents’ counsel, present the most serious point in the case. When it is borne in mind that Mrs. Flitcroft was not one of the proponents of the will, was not a party to the record, and that she is only one of a number of legatees, and that her interest is distinct from that of the legatees, the grandchildren, the error of admitting this testimony is mads clear. The testimony referred to is as follows:

Clara Hess, a witness for contestants:

“I moved from Allegan about If weeks before Mr. Hewitt died. He was sick when we left and had been for about a week. We had a phone which Mrs. Flitcroft used sometimes for the doctor, and some to order feed, and while using the phone for the doctor she would tell about Hewitt being sick, and didn’t want the Dyers to know it, and for me not to tell them; that she didn’t care how soon he died, and, if he died tomorrow, she knew what she was worth. She said this on more than one occasion. She said it every time she phoned for the doctor. This was during the first week he was sick. I think it was the 12th or 13th of December that we moved away.
Q. Did you say anything to Mrs. Flitcroft when she made those remarks about the Dyers ?
Mr. Thew: Object as incompetent and immaterial.
The Court: Give the whole conversation.
Mr. Thew: Note an exception.
“A. I told her that it was none of my business, but that I thought the Dyers ought to know, as they were his children, and Mrs. Flitcroft said that Hewitt didn’t like them and didn’t want them to know it. I often asked her if she didn’t get board for Hewitt, but she never answered me. The brick house was built before I moved to that neighborhood. Mrs. Flitcroft told me Hewitt built it on her lot. She said Hewitt got letters from his daughter.
“Q. What did she say about reading those letters to him?
“Mr. Thew: Object as incompetent, without laying foundation for it.
* ‘ Mr. Wilkes: This is not impeaching testimony. My opening discloses its purpose.
The Court: She is a party here, anyway. Go on.
Mr. Thew: Note an exception.
“A. She said she read the letters to him, and read what she wanted to in them, and left out what she wanted to. These letters were from his daughter Mrs. Miller who lived in Kansas. She didn’t say what she would put in or what she would leave out.”

Elizabeth Shank, a witness for contestants:

“Q. Did you have any talk with Mrs. Flitcroft relative to her taking care of Hewitt ?
“Mr. Theio: We object, and claim that any conversation of that kind ought to have a foundation laid for it, that it is an impeaching matter, and I wish to object to this, and have this objection stand to others of the same kind without interrupting the court right along.
“Mr. Stone: It is offered as direct testimony bearing upon the question of undue influence.
“ The Court: Take your exception, and go on.
“A. I kept house for John Knowlton for four years, from 1901 till the fall of 1904.
“Q. As to whether or not you acted as nurse for Mr. Knowlton ?
“Mr. Thew: Objected to as incompetent and immaterial.
The Court: Go ahead.
“Mr. Stone: The relevancy will appear soon, because it was about Knowlton the talk started.
“ Mr. Thew: Take an exception.
“A. Yes, he lived across the street from where I live now.
“Q. How did you get your pay from Knowlton ?
“Mr. Thew: Objected to as incompetent and immaterial.
“A. I got my pay every month.
Mr. Thew: Wait until the judge decides this.
“ The Court: Go on.
"Mr. Thew: Note an exception.
“A. The way I first became acquainted with Mrs. Flit-croft was that when I worked for Knowlton I rode in Flitcroft’s hack, and Knowlton, when he was going out of town, I would go to Flitcroft’s and order the hack for him. Sometimes Mrs. Flitcroft drove, and sometimes she rode in the hack when I did.
“Q. Did you have a talk with Mrs. Flitcroft relative to what you received for taking care of Knowlton ?
“Ifr. Thew: Object.
“The Court: She may answer.
“Mr. Thew: Take an exception.
“A. While Hewitt was living at Flitcroft’s, I bought milk of Mrs. Flitcroft, and went there after it, and I asked her if Hewitt had sold his farm. She said he had, and that they had coaxed him to sell it and come and live with them, where he could have care, and that he was alone there. The only thing I can remember about her saying anything about pay was: I am not going to be like you was with Uncle John (meaning Knowlton). He always said he would give you that house and lot when he was through with it, but he didn’t, and I am going to know what I am going to get from Hewitt. I am going to keep a book and put everything down that he has, and that I do for him, and, if I don’t get anything else, I will have a good big board bill.’ That Mr. Hewitt had $2,000 or $3,000, and she was going to coax him to make it over to her, and, if he did, she would be satisfied. I said to her that it seems strange his daughter, Mr. and Mrs. Dyer, living there, that they didn’t see to it that he didn’t give his property away, and she said he had a right to give it to who he had a mind to, and that ‘ Dyers will never get anything if I can help it, and I can, because Grandpa thinks the world of me, and I can coax him to do anything. I hate old Russ Dyer.’ She said she wrote all of Grandpa’s letters, and, when he received any, she read them to him, and put in a good word for herself. The letters he received from his daughter, Mrs. Miller, she said that while reading them, every little while, she would say: Now, father, when you make your will, be sure and remember the good woman who is taking care of you.’ Then she would read a little further, and then she would repeat that two or three times.
“Mr. Thew: This is all under the same objection and exception; and, further, the letters would be better evidence.
Witness: She said Fish was his lawyer one time when I saw her, and that Hewitt had told her he had made the money over to her, and that she was going to ask Fish, and, when I saw her again, she said she had asked Fish, and he wouldn’t tell her, and that she had coaxed Hewitt to take his business away from Fish and give it to Warner, which Hewitt had done. She had asked Warner, and Warner had told her not to worry, that she was well provided for. She told me that Hewitt had given her a cow and calf, some carpets or rugs, and a lot of other things, and showed me a $45 range, and said that Grandpa gave it to her. Once she told me Grandpa drank gin. One time she looked sick, and when I asked her about it, she said she had been awful sick, and said: ' If that old devil lives much longer, I shall die. I can’t do a thing with him unless he has his bitters, and I try to keep his bottle full.’ ”

This is a part only, but a fair sample, of the testimony of this witness. That this testimony had weight with the jury is rendered probable by the charge of the court upon this subject. It was as follows:

“ The jury have a right to consider whether or not Mrs. Flitcroft expressed to others an intention to poison the mind of Mr. Hewitt against the Dyers, and whether she said that she was going to try to get the property for herself, and prevent them from obtaining it, whether she read into the letters received by Mr. Hewitt things in her own favor that were not contained in these letters, because, while this evidence might not of itself prove undue influence, it might tend to prove, if believed by the jury, a desire and willingness on the part of Mrs. Flitcroft to practice fraud and deceit in her dealings with Mr. Hewitt for the purpose of obtaining an influence over his will and mind, and for the purpose of fraudulently causing him to dispose of his property in her favor; and the jury would have a right to consider all this evidence bearing upon the question as to whether or not undue influence was actually exercised by Mrs. Flitcroft over Mr. Hewitt.”

In O'Connor v. Madison, 98 Mich. 183 (57 N. W. 105), it was distinctly held by this court that the rule admitting the declarations of a sole devisee as competent evidence to prove undue influence does not extend to cases where there are several devisees or legatees, and many cases are there cited in support of the rule. The above case has been cited and expressly approved in the following cases: In re Estate of Lefevre, 102 Mich. 568 (61 N. W. 3); Bean v. Bean, 144 Mich. 599 (108 N. W. 369). It is the claim of contestants’ counsel that this rule was departed from in the recent case of In re Loree’s Estate, 158 Mich. 372 (122 N. W. 623). This case is clearly distinguishable. An examination of it will show that Mrs. Loree, the widow, was the proponent of the will, and therefore a party to the suit, and her statements were admissible in evidence. The clear weight of authority in other States is in accord with O’Connor v. Madison, supra. See 29 Am. & Eng. Enc. Law (2d Ed.), 119, and cases cited in notes; Matter of Ames, 51 Iowa, 596 (2 N. W. 408); Smith v. Henline, 174 Ill. 184 (51 N. E. 227); Shailer v. Bumstead, 99 Mass. 112, 127; Schierbaum v. Schemme, 157 Mo. 1 (57 S. W. 526, 80 Am. St. Rep. 604). In this last case the authorities are reviewed at length.

For the errors pointed out, the judgment below will be reversed, with costs, and a new trial ordered.

Moore, McAlvay, Brooke, and Blair, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    CLARK v. MACK.
    1. Wills — Estates of Decedents — Conveyances—Life Estates and Remainders.
    By a will providing that the property of testatrix should belong to her two sisters to be equally used and controlled by them until death, then the remaining portion to the nearest of kin, the title thereto was not conveyed absolutely to the sisters but merely a life estate.
    2. Same.
    The disposing clause being in one sentence, in which the sisters and next of kin were named, and the intent of the testatrix being clear, the will was not a gift with a repugnant clause.
    3. Same — Lapse—Ambiguities.
    When a will fairly construed is susceptible of two constructions, one of which would render it inoperative and the other give effect to it, the duty of the court is to adopt the latter construction.
    4. Same — Invalidity.
    It is only when a reasonable construction and the discovery of the intent of the testator are utterly hopeless that all effect should be denied to a will.
    5. Same — Lapse—Residuary Clause.
    Where a lapse is not in the residuary clause, both personal and real property, of which the gift by will has been defeated, pass to the residuary legatees.
    6. Same — Construction.
    Where both legatees died before the death of testatrix and the life interests could not be given effect, the property passed under the residuary clause to the next of kin.
    7. Same — Words and Phrases — Next of Kin.
    In the absence of a contrary intent, a gift to next of kin is a gift to the nearest of kin, in the strictest sense, under the rules of civil law excluding persons who, under the statute of distribution, would be entitled to take by representation.

      8. Same.

      A will speaks “from the death of the testator and the estate vests at that time unless the will contains some provision to the contrary: so that the next of kin are those persons who are nearest in degree of relationship at the death of testatrix.
    Appeal from Kalamazoo; Smith (Clement), J., presiding.
    Submitted April 8, 1910.
    ( Docket No. 39.)
    Decided June 6, 1910.
    Bill by Kate Clark and others against Albert Mack, administrator with the will annexed of the estate of Betsey C. Sellmann, deceased, and others, for a construction of said will. From a decree for defendants, complainants appeal.
    Affirmed.

      Frost & Farrell ( W. S. Powers, of counsel), for complainants.

      Leo T. Flansburg {F. M. Irish, of counsel), for defendants.
   Stone, J.

In this case the bill of complaint was filed to obtain the construction of the will of Betsy C. Sellmann, deceased. The will is holographic, and was made while the testatrix was in Kansas City, Mo., on December 1, 1890. The following is a copy of the substantial portion of the will:

“In consideration of the duty I owe those near and dear to me by ties of blood and friendship, and my desire to benefit, pecuniarily, those among them, who, not having children to care for them, are likely to be most in need of help, as age creeps on, and helplessness:
“ I therefore, this day December 1, 1890, in the city of Karlas City, Mo., in presence of these witnesses, do solemnly will and bequeath all my earthly possessions, real estate and personal property, to my two sisters Emily A. Coe, and Esther A. Coe, widow of Rubin Coe, to be equally used and controlled by them both, while both live, and should one of them die first, the one that is left shall use and control all that remains until her death, when if anything remains, it shall then be divided among the nearest of kin.”

Testatrix was a single woman, without children, and died April 23, 1907. At the time the will was made all of the brothers and sisters of the testatrix were living, viz., Lafayette Coe and Walter Coe, brothers, and Jane Coe, Esther A. Coe, Emily A. Coe, and Ursula Gilfillin, sisters. After making this will, and prior to the death of the testatrix, Lafayette Coe, Jane Coe, Esther A. Coe, and Emily A. Coe died. Lafayette and Jane left children; Esther and Emily left no children. At the time of the death of the testatrix one brother, Walter Coe, and one sister, Ursula Gilfillin, were living. Ursula Gilfillin has since died, leaving children. The will was duly admitted to probate. Defendant, Albert Mack, was appointed administrator with the will annexed of the estate, and is still acting in that capacity. The joint and several answer of Albert Mack, administrator, and Walter Coe admits all the material allegations of fact in the bill, and asks for a construction of the will. None of the other defendants appeared or answered. Defendant Walter Coe claims the advantage of a cross-bill, and asks that the will be so construed as to give him one-half of the estate, as one of the nearest of kin of the testatrix.

The complainants claim that the legatees, Emily A. Coe and Esther A. Coe, under the will, took an absolute estate in fee simple, and that by reason of both of the said legatees having died before the death of the testatrix the legacy lapsed, and the estate became intestate, and should be divided among the heirs of the deceased, as provided by the statutes of this State, in case of intestate estates. The claim in behalf of defendant Walter Coe is that Emily A. Coe and Esther A. Coe were entitled to a life estate in the property, had they lived until the death of the testatrix, and that it should now be equally divided between himself and the ' heirs of his sister Ursula Gilfillin; and that he and said sister were the nearest of kin of the said testatrix at her •death. The learned circuit judge took this view of the case, and decreed one-half of the estate to said Walter Coe, and the other one-half to the heirs of Ursula Gilfillin. The complainants have appealed.

1. We are unable to agree with the contention of counsel for complainants in the construction of this will. It is their claim that the question is controlled by the cases of Jones v. Jones, 25 Mich. 401; Moran v. Moran, 143 Mich. 322 (106 N. W. 206, 5 L. R. A. [N. S.] 323, 114 Am. St. Rep. 648), and kindred cases. It is our opinion that Mrs. Sellmann did not intend to will the property to the sisters so that it would be theirs absolutely, but that it was the manifest intention of the testatrix to give to the sisters Emily A. Coe and Esther A. Coe, who had no children to care for them, a life estate therein; they to have the use and control thereof jointly, so long as they both should live, and the survivor to have the use and control of what should remain until her death; when if anything remained it should be divided among the nearest of kin. This will does not in our opinion present a case of a gift with a repugnant clause, as was found in many of the cases cited by complainants. The disposing clause of this will is embraced in one sentence. The same form of words that is employed in bestowing the use and control of the property upon the sisters while they live is employed in bestowing the remainder upon the nearest of kin, when the sisters have died. We think that the express terms of the gift created a life estate in the sisters named, and that the case is controlled by our own decisions, a part only of which are here cited. Morford v. Dieffenbacker, 54 Mich. 593 (20 N. W. 600); Gaukler v. Moran, 66 Mich. 353 (33 N. W. 513); Glover v. Reid, 80 Mich. 228 (45 N. W. 91); Cousino v. Cousino, 86 Mich. 323 (48 N. W. 1084); Jones v. Deming, 91 Mich. 481 (51 N. W. 1119); Defreese v. Lake, 109 Mich. 415 (67 N. W. 505, 32 L. R. A. 744, 63 Am. St. Rep. 584); Gadd v. Stoner, 113 Mich. 689 (71 N. W. 1111); Robinson v. Finch, 116 Mich. 180 (74 N. W. 472); Austin v. Hyndman, 119 Mich. 615 (78 N. W. 663).

2. Bearing in mind that the legatees, Emily A. Coe and Esther A. Coe, both died in the lifetime of the testatrix (Esther having died in April, 1904, and Emily in March, 1905, more than two years before the death of the testatrix), what is to become of the property ? The will says: “ It shall then be divided among the nearest of kin.” It is fair to suppose that Mrs. Sellmann knew of the death of her two sisters, yet she allowed over two years to elapse without making any change in her will, and we think that she intended the last clause of the will to be effective. When a will fairly construed is susceptible of two constructions, one of which would render it inoperative, and the other give effect to it, the duty of the court is to adopt the latter construction. 30 Am. & Eng. Enc. Law (2d Ed.), p. 667, and cases cited in note. In Den v. Crawford, 8 N. J. Law, 97, Ewing, C. J., in giving the opinion of the court, said:

“ It is only when a reasonable construction and the discovery of the intent of the testator are utterly hopeless that all effect should be denied to a will.”

The lapse here was not in the residuary clause; and it is held that, where the lapse is not in the residuary clause, lapsed gifts of both personal property and real estate pass under that clause. Remsen on Wills, p. 221, and cases there cited. In Mann v. Hyde, 71 Mich. 278 (39 N. W. 78), it is said:

“ The law in regard to lapsed legacies of personalty has always treated them as part of the general body of the estate, so that they pass to the residuary legatees.”

We think that the testatrix intended that the property, upon the death of Emily and Esther, should go to her nearest of kin!

3. This brings us to the question: Who were the nearest of kin ? In the absence of a contrary intent, a gift to next of kin is a gift to the nearest of kin in the strictest sense, excluding persons who, under the statute of distribution, would be entitled to take by representation. Thus a brother or sister would take to the exclusion of the children of a deceased brother or sister. Remsen on Wills, p. 101; 2 Jarman on Wills (6th Ed.), p. 953; 2 Underhill on Wills, § 626; Rood on Wills, § 456.

The term “nearest of kin,” in the will, signifies those who stand in the nearest relationship to the intestate according to the rules of the civil law for computing degrees of kinship. In this will there are no words suggesting that any one is to take by the right of representation. But that idea is excluded by the words employed: “It shall then be divided among the nearest of kin.” They were the brother, Walter Coe, and the sister, Ursula Gilfillin, surviving at the death of the testatrix. Van Cleve v. Van Fossen, 73 Mich. 342 (41 N. W. 258). The death of the person whose next of kin is mentioned determines the membership of the class.

“ Thus, if the gift be to A. for life, and after his decease to the next of kin of the testator, the persons to take as next of kin are to be ascertained at the death of the testator, and not at the death of A.” Hawkins on Wills (2d Am. Ed.), pp. 99, 1Ó0.

Minot v. Harris, 132 Mass. 528; Letchworth’s Appeal, 30 Pa. 175; Welsh v. Crater, 32 N. J. Eq. 177; Remsen on Wills, p. 102. A will speaks from the death of the testator, and the estate vests at that time, unless the will contains some provision to the contrary. Rood v. Hovey, 50 Mich. 395 (15 N. W. 525); Hibler v. Hibler, 104 Mich. 274-281 (62 N. W. 361).

We conclude, therefore, as did the court below, that the property under the will in question should be divided between the defendant Walter Coe and the heirs of Ursula Gilfillin; the said Walter Coe taking one-half, and the said heirs one-half thereof.

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

Moore, McAlvay, Brooke, and Blair, JJ., concurred.


author: Brooke, J.

text:
    DUNN v. GREAT LAKES DREDGE & DOCK CO.
    1. Master and Servant — Assumed Risk — Apparent Danger.
    A servant engaged in work near a car which, is being loaded with a steam shovel that has previously, as the servant knew, dropped large stones off the car in dumping its load, and that is in operation while he is so engaged, assumes the risk of the falling of a rock outside the car.
    2. Same — Warning Servant — Signals.
    A foreman, who knows of the impending discharge by the shovel from the noise and action of the machinery, of which plaintiff had notice as soon as the foreman, is under no obligation to warn him of the danger.
    3. Same — Signals—Risk Assumed.
    The risk of operation without signals is assumed by an employé who performs his duties and continues in the employment knowing the failure to provide therefor.
    4. Same — Safe Place — Changing Conditions.
    The master’s obligation to provide a safe place does not include dangers arising by reason of conditions which change with the progress of the work.

    Error to Chippewa; Steere, J.
    Submitted April 12, 1910.
    (Docket No. 60.)
    Decided June 6, 1910.
    Case by James Dunn against the Great Lakes Dredge & Dock Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      F. T. McDonald, for appellant.

      Warner & Sullivan, for appellee.
    Defendant was engaged in excavating a ship canal through rock. The rock was first drilled with drills operated by compressed air, then blasted, then loaded upon dump cars by a steam shovel, which was moved forward from time to time as the work progressed. Water for the shovel and air for the drills reached those machines through pipes which had to be lengthened from day to day to keep pace with the forward movement of the work. There were two lines of track, one upon which the cars stood while being loaded by the steam shovel, and another, about 12 feet north, upon which the empty cars were returned. Engaged upon the work were several gangs of men — the drillers, the shovel gang, the track gang, the train crews, track cleaners, whose duty it was to keep the railway tracks free from loose rock, and the pipe gang, whose duty it was to keep the air and water pipes extended to the drills and shovel.
    The plaintiff was a member of the pipe gang. He was a man 63 years of age, had been a mason for 35 years, sometimes taking mason contracts, and had worked for defendant two months when he received the injury complained of. One Kelly was foreman of the pipe gang. The water pipe had been extended the night before from the main on top of the bank to the bottom of the first cut, where the tracks were, under the north track and two lengths east between the two tracks. Kelly ordered plaintiff to put a cut-off valve on the end of the water pipe as the shovel needed water. At this moment there were cars standing upon the track beside the shovel awaiting loads. The shovel itself was being operated, but was at that instant engaged in “ rooting,” or cleaning up the bottom of the pit. Plaintiff started to affix the valve as directed, when the shovel, having secured its load, proceeded to elevate the dipper and dump its contents into one of the cars by the side of which plaintiff was working. A large rock fell from the dipper or bounded off the side of the car and struck plaintiff, breaking his leg. Plaintiff had been engaged in putting on the valve about a minute and a half, when he was struck. He was bending over his work, and the car at his side obstructed his view of the shovel. As soon as the shovel stopped “ rooting” and started to elevate the dipper, plaintiff tried to escape, but was unable to do so. During the time plaintiff had worked for defendant, he had noticed that occasionally rocks fell from the bucket upon the tracks in the operation of loading. He knew men were employed by defendant to keep the tracks free from such rocks. Plaintiff admitted that the shovel operated intermittently, and was being operated in the usual manner and without negligence at the moment of his injury. This was the first time in the course of his employment he had been required to attend the pipes while they were lying beside the tracks, upon which stood cars which were being loaded.
    A verdict was directed for defendant upon the ground that plaintiff had assumed the risk, and upon the further ground, that if there was any duty to give plaintiff warning, that duty devolved upon Kelly, who was a fellow-servant. Plaintiff brings the case here for review by writ of error.

       As to servant’s assumption of risk from changing condition of the working place during the progress of the work, see note to Citrone v. O’Rourke Engineering Construction Co. (N. Y.), 19 L. R. A. (N. S.) 340.

   Brooke, J.

(after stating the facts). Did plaintiff assume the risk? It is conceded by plaintiff’s counsel, that if the danger was apparent it must have been anticipated by plaintiff, and if he had express or implied notice of it, he assumed the risk of his injury. We think that the danger was apparent, and should have been apprehended by plaintiff. It must be remembered that the shovel was not at rest when he assumed the dangerous position. It was engaged in “rooting” according to plaintiff’s testimony, but the testimony of his witness O’Donnell is:

“If I remember, we had not been rooting with the shovel in the pit just before we started to load this one car. I know this car was not the first on that train to be loaded, and I could not say which one it was.”

It is clear that, whether “ rooting ” or regularly loading, the machine was being operated, as plaintiff knew, and in view of the intermittent character of its operation, which was likewise known to plaintiff, we think he must have apprehended that at any moment the dipper would be elevated and its load discharged. He was acquainted with the fact that rocks occasionally fell from the dipper outside the cars and upon the tracks, when the dipper was emptied.

The learned circuit judge was correct in holding that plaintiff assumed the risk incident to his employment, and that his injury resulted from an event which he had every reason to apprehend. Under the circumstances of this case, did the defendant owe to the plaintiff the duty of warning him that at any moment the dipper might be raised and dumped ? It is conceded that it was not the duty of any member of the shovel gang to give such warning, and that the shovel was operated without negligence, and in the usual manner. Upon whom, then, did this alleged duty rest ? It is urged that it rested upon Kelly, plaintiff’s foreman.

Passing the question as to whether or not Kelly was a fellow-servant of plaintiff, let us inquire into the relative positions of Kelly and plaintiff, and their knowledge of impending danger at the moment of the accident. Kelly stood within six feet of plaintiff; he had no control of the operations of the shovel, and no knowledge of the time when the dipper would be raised and dumped. It is apparent, from the record, that the shovel makes a different noise when the dipper is being elevated. That noise was heard by plaintiff and accepted by him as a warning, and he attempted to escape. He testifies: “I started to run

to get out of the way, because I heard the noise of the shovel.” He succeeded in taking two or three steps before the rock hit him. It is clear that the only knowledge Kelly had of the impending or actual elevation and discharge of the dipper was the identical knowledge which plaintiff himself possessed. Under such circumstances, the only warning he could give would be to advise plaintiff of a fact with which he was already familiar.

It is unnecessary to discuss the cases of Town v. Railroad Co., 84 Mich. 214 (47 N. W. 665), Kinney v. Folk erts, 78 Mich. 687 (44 N. W. 152), Pecard v. Sugar Co., 153 Mich. 84 (116 N. W. 532), and Barto v. Steel Co., 155 Mich. 94 (118 N. W. 738), relied upon by plaintiff. All are clearly distinguishable upon the facts from the case at bar.

To the claim of the plaintiff that defendant should not have operated the shovel without warning, it is sufficient to say that he knew that it was operated without signals, and he accepted his employment and performed his duties with this knowledge. As to the duty of masters in such cases, we refer to 4 Thompson on Negligence, §§ 4067 and 4068; Baldwin on Personal Injuries (2d Ed.), p. 425 etseq. See, also, Michigan Cent. R. Co. v. Austin, 40 Mich. 247; Jacobs v. Railway Co., 84 Mich. 299 (47 N. W. 669); Lang v. Transportation Line, 119 Mich. 80 (77 N. W. 633); Lynch v. Traction Co., 153 Mich. 174 (116 N. W. 983, 21 L. R. A. [N. S.] 774).

The obligation on the part of the master to provide a safe place is not imposed, where dangers arise by reason of changing conditions in the progress of the work. Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505), and cases there cited; Swanson v. Railway Co., 68 Minn. 184 (70 N. W. 978); Finalyson v. Milling Co., 67 Fed. 507, 14 C. C. A. 492; City of Minneapolis v. Lundin, 58 Fed. 525, 7 C. C. A. 344; Roytio v. Litchfield, 113 Fed. 240, 51 C. C. A. 197. The place where plaintiff was injured was a safe place, except as it became unsafe through the operation of the shovel. He was familiar with the character of that operation and, through his counsel, admits that it was operated without negligence.

We must hold that a verdict was properly directed for defendant.

The judgment is affirmed.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


text:
    FRAAM v. GRAND RAPIDS & INDIANA RAILWAY COMPANY.
    1. Bailments — Negligence — Consideration — Inadequacy — Mutual Benefits —Storage—Warehousemen.
    In receiving and checking for redelivery at the same station, on demand, a suit case of a prospective passenger, for a fee of five cents, a railroad company becomes a bailee for mutual benefit, not for the sole benefit of the bailor, and is liable for failure to exercise ordinary care.
    2. Same — Care—Bailee for Mutual Benefit.
    Ordinary care means such care as ordinarily prudent men, as a class, would exercise in caring for their own property under like circumstances, and whether it is exercised or not is a question of fact for the jury, under proper instructions, where the suit case was not returned to the owner and could not be found.
    3. Same — Carriers—Baggage.
    In so receiving and checking a parcel not to be carried, the railroad company acted as a warehouseman and not as a carrier of baggage.

    4. Same — Burden of Proof — Evidence—Presumptions.
    By showing the deposit of the property and neglect by defendants to return it on demand, the plaintiff cast upon the defendant the burden of exonerating itself from the negligence presumed by law from the facts.
    5. Same — Directing Verdict.
    Under testimony that the room in which the suit case was checked remained unattended for five or ten minutes at a time while three trains arrived and departed, the question of the bailee’s negligence was properly left to the jury.
    6. Contributory Negligence.
    The fact that the plaintiff intended to depart in a couple of hours, and failed to inquire for the checked parcel until he reached his destination, is not evidence of contributory negligence.

      7. Same — Notice ox Value.
    Instructing the agent of the bailee that the suit case contained lots of goods and to be careful, followed by an assurance to plaintiff that the company would be responsible, was sufficient notice of the value.
    Error to Kent; Perkins, J.
    Submitted April 13, 1910.
    (Docket No. 100.)
    Decided June 6, 1910.
    Trover by George Fraam against the Grand Rapids & Indiana Railway Company. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      James H. Campbell, for appellant.

      Powers & JEJardley, for appellee.
    On September 26, 1908, at about 2 o’clock p. m., plaintiff, who was engaged in selling oriental goods, which he carried from place to place in a large suit case, entered defendant’s station at Kalamazoo intending to take defendant’s train to Grand Rapids. Upon inquiry, he found that the next train he could take would not leave until 4:20 p. m. Thereupon, he took his suit case to the baggage room in defendant’s station and asked if he might leave it there until his train left. He was told by the attendant that he would have to check it, which he did, paying five cents and receiving in return a parcel check. He then left the depot, and spent the intervening time visiting with a fellow countryman near the Michigan Central depot. Defendant’s train coming into this depot, plaintiff boarded it there for Grand Rapids, leaving his suit case at the Grand Rapids & Indiana parcel room. Upon his arrival at Grand Rapids at 5:45 p. m., plaintiff went to the baggageman, showed his parcel check, and asked if the suit case would be forwarded to him at Grand Rapids. He was assured it would be there next morning. It was not forwarded next morning, nor at any time thereafter. Plaintiff then went to Kalamazoo and made a demand for the suit case, but did not receive it. Defendant caused a careful search to be made, but the article could not be found, and has never been returned to its owner.
    Plaintiff testifies that at the time he deposited his suit case with defendant’s employé, he said to the baggage-man:
    “‘Be very careful, there is lots of goods here in that suit case.’ He said, ‘ Well, did you have it checked ? ’ I said, ‘Yes.’ ‘ Well,’ he said, ‘you can have the company responsible for the suit case, don’t you care; don’t you be afraid.’ ”
    Defendant, at the trial, admitted the receipt of the prop-. erty and offered no evidence tending to show what had become of it, except that it could not be found. Plaintiff, having recovered a judgment in a suit in trover, defendant has removed the case to this court by writ of error.

       As to liability of carrier for loss of property in check room, see note to Terry v. Southern R. Co. (S. C.), 18 L. R. A. (N. S.) 295.

   Brooke, J.

(after stating the facts). It is contended by defendant that, in assuming to take charge of plaintiff’s suit case, it acted solely for the convenience of the plaintiff, and became bailee of his property for accommodation, and not for hire. That, therefore, defendant would not be liable except for wilful conversion or gross negligence.

We cannot agree with this view of the relations be. tween the parties. It may be true, as urged by defendant, that the fee charged (five cents) for the service performed is not much in excess of the value of the check attached to the article, but we are, nevertheless, of the opinion that the insignificant amount of the charge cannot control the status of the parties. Defendant held itself out to plaintiff as willing to take charge of his property, and to redeliver it to him on presentation of the check. It demanded a certain compensation, which plaintiff paid. That this compensation was small is of no consequence. Its adequacy was a matter for the determination of the parties, and they having agreed, the courts will not interfere. Newhall v. Paige, 10 Gray (Mass.), 366. Moreover, the small fee charged may not be the only consideration moving from plaintiff to defendant. Railways commonly maintain parcel rooms at their depots in considerable cities, where passengers and others may, for a nominal charge, have their belongings cared for. This service is performed not only for the accommodation of the person using it, or the immediate profit arising therefrom, but may, and probably does, result in increased patronage of and profit to the road, because of the knowledge of the traveling public that such service is afforded. This service is not rendered by the railroad company in its capacity as a common carrier, for the articles are not checked for transportation, but for safe-keeping and redelivery at the place of deposit. In this phase of its activity, the company acts rather in the capacity of a warehouseman, who, for compensation, receives and stores the goods of another.

The contract of bailment here under consideration is one for the mutual benefit of the parties, and the bailee thereunder was bound to exercise ordinary care of the subject-matter of the bailment, and is liable for ordinary negligence. Ordinary care means such care as ordinarily prudent men, as a class, would exercise in caring for their own property under the like circumstances, and whether it is exercised or not is a question of fact for the determination of the jury, under proper instructions. Hofer v. Hodge, 52 Mich. 372 (18 N. W. 112, 50 Am. Rep. 256); Ruggles v. Fay, 31 Mich. 141; 3 Am. & Eng. Enc. Law (2d Ed.), p. 744.

Defendant’s fourth request to charge is as follows:

“ It having been shown that the goods were stolen, the burden was thereby placed upon the plaintiff to_ prove want of due care by the defendant. There being no proof of want of such due cara by the defendant, your verdict must be, No cause of action ’ ” (citing Knights v. Piella, 111 Mich. 9 [69 N. W. 92, 66 Am. St. Rep. 375]).

This instruction was properly refused. The record is absolutely barren of evidence tending to show a theft of' the suit case, unless the fact that it could not be found is to be treated as such. In Baehr v. Downey, 133 Mich. 163 (94 N. W. 750, 103 Am. St. Rep. 444), this court said:

“Under these circumstances, plaintiffs made out a prima, facie case by showing the property in the defendants’ possession, and refusal or neglect to return on demand. The onus of exoneration was then upon the defendants. 3 Am. & Eng. Enc. Law (2d Ed.), p. 750. The rule as there stated is that, when the chattels are not returned at all, the law presumes negligence, and casts upon the bailee the onus of showing he was not negligent ” (citing Knights v. Piella, supra; Donlin v. McQuade, 61 Mich. 275 [28 N. W. 114]).

The evidence given by defendant’s witnesses shows that the room in which the suit case was placed was left unattended for five or ten minutes at a time when trains arrived and departed, if any baggage had to be placed thereon. Three trains left the depot during the afternoon. "We think the question of the negligence of the defendant was, under the evidence, a proper one for the jury, and that the jury were properly instructed in relation thereto.

It is urged by defendant that plaintiff was negligent in failing to notify the baggageman of the value of the suit case, and in not calling for it at 4:20. As to the first point, we believe that his conversation with defendant’s servant (if true) was sufficient to warn defendant that the article was of considerable value. He instructed the man to be very careful as there were lots of goods in the case, and received the assurance of defendant’s agent that the company would be responsible and that he need not worry. Touching the second point, it appears that he •did make inquiry of defendant about four hours after he had deposited the suit case. It cannot be said that this delay is any evidence of negligence on the plaintiff’s part.

The other errors assigned have been considered, but require no discussion.

The judgment is affirmed.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


text:
    UNION TRUST & SAVINGS BANK v. TYLER.
    1. Gifts — Banks and Banking — Deposit.
    Testimony that deceased, a depositor of complainant, caused one of the officers of the bank to write upon her bankbook that in case of her death the deposit should be paid to hex-daughter, and before her death sent for the daughter and told her she had something to give her, and the bankbook was in the possession of the daughter after the parent’s death, together with testimony that she had stated hex- daughtexcould draw the money after her death and she had divided up her estate, sufficiently supports the finding that the mother intended to give the daughter the deposit.
    2. Same — Wills—Estates of Decedents.
    The indorsement of the intention of deceased to transfer the bank account to her daughter at her death, was a testamentary disposition ineffectual to transfer title.
    3. Same — Evidence—Presumption.
    Mere possession of the book by the daughter raises no presumption of title.

      4. Same — Parent and Child.
    Evidence of a gift from a parent to a child need not be conclusive.
    5. Same.
    Less positive and unequivocal testimony is required to establish the delivery of a gift from parent to child than in other cases, and in case no fraud or undue influence is suggested, slight evidence will suffice.
    6. Same — Deposit.
    A depositor in a bank may effect a gift of the deposit by delivering to the donee the passbook with intent to transfer the fund.
    Appeal from Genesee; Wisner, J.
    Submitted April 13, 1910.
    (Docket No. 81.)
    Decided June 6, 1910.
    Bill of interpleader by the Union Trust & Savings Bank against John H. Tyler, administrator of the estate of Esther Hynan, deceased, and Catherine Gordon to determine the title to certain money. From a decree for defendant Gordon, defendant Tyler appeals.
    Affirmed.

      Brown, Farley & Selby and John H. Tyler, for appellant.

      Clinton Boberts, for appellee.
    Esther Hynan, deceased, for many years prior to her death, had a savings account with complainant’s bank. She died September 4, 1908, leaving several heirs, and among them defendant Catherine" Gordon, her daughter. Some time in the year 1906 deceased took her bankbook to complainant, an officer of which, at her request, wrote upon the book the following words:
    “ In the event of her death, this account is payable to her daughter, Catherine Gordon.”
    A similar entry was made upon the account in complainant’s books. Early in August, 1908, deceased, being very ill, sent for her daughter, who, with her husband, went at once to the home of deceased. Upon their arrival, the husband testifies that they found deceased much out of breath, and fanning herself; that deceased said to her daughter:
    “ I thought you would never get here. I have something I want to give you.”
    The husband did not see deceased give the bankbook to his wife, but it was shown him by his wife a few days later, but before Esther Hynan’s death, and it was shown by both of them to the complainant bank before that event transpired. In a conversation had by deceased with one Elizabeth Rankin, an old friend, after the visit testified to by the husband, and about a week before her death, deceased said she had divided her property among her children; that she had it fixed up so it would be unnecessary to probate, and that she thought she had got it all right so that Kitty (appellee) would draw the money. Both defendants having made demand upon complainant for the money deposited, it filed its interpleader bill. Each defendant answered, claiming the fund, Tyler, as administrator of the estate of Esther Hynan, and Catherine Gordon, as donee of a gift made to her by Esther Hynan in her lifetime. From a decree in favor of defendant Gordon, defendant Tyler appeals.
   Brooke, J.

(after stating the facts). It is urged by appellant, and we do not understand it to be questioned by appellee, that the indorsement upon the bankbook was testamentary in character, and wholly inoperative to convey any interest in the fund, because lacking in all the statute formalities relative to the execution of a will. There is no doubt that appellee can take nothing by virtue of the writing. We think it may be considered, however, as bearing upon the intention or desire of deceased to possess her daughter of this fund at the time of her death. At the time the indorsement was made, it is evident that deceased intended to retain possession and control of the deposit during her lifetime, but supposed that the indorsement would empower her daughter to draw the money after her death. Less than a month before her death, the book ( without which the money cannot be drawn ) passed from the possession of the deceased into the possession of her daughter. The evidence of a gift from the mother to the daughter is neither very clear nor very satisfactory. It is apparent that no one, except the parties, was present at the moment the transfer was made, and the daughter’s lips are sealed as to what occurred. We are, however, of the opinion that, meager as the proof of a gift is, it is still sufficient to support the inference drawn by .the circuit judge that Esther Hynan, in her lifetime, gave to the defendant Catherine Gordon the bankbook evidencing the deposit, with the intention of conferring upon her daughter a present ownership in the fund.

It may be conceded, as claimed by appellant, that the mere possession of the book by the daughter raises no presumption of ownership, but we think that the possession of the book, coupled with the mother’s statement to the daughter, in the presence of her husband, and the further statement of the mother to the witness Rankin, that she had fixed the matter so her daughter could get the money, indicates that the mother was unwilling, death being near, to have the daughter’s right to the deposit rest upon the writing, and therefore gave her the book, and with the book the deposit represented thereby. It must be borne in mind that for two years or more deceased had intended the deposit to go to her daughter at the time of her own death, and that at the time the daughter gained possession of the book the mother was very ill, and clearly expecting to die in the near future. Conclusive evidence of a gift from parent to child is not necessary.

In the case of Love v. Francis, 63 Mich. 181 (29 N. W. 843, 6 Am. St. Rep. 290), this court said:

“ It requires less positive and unequivocal testimony to establish the delivery of a gift of a father to his children than it does between persons not related, and in cases where there is no suggestion of fraud or undue influence very slight evidence will suffice.”

See, also, Ellis v. Secor, 31 Mich. 185 (18 Am. Rep. 178); Thatcher v. St. Andrews’ Church, 37 Mich. 264, and Bangs v. Browne, 149 Mich. 478 (112 N. W. 1107), and cases there cited.

That a valid gift of the money deposited in a savings bank may be effected by the delivery, to the donee, of the depositor’s passbook, with intent to give the donee the deposit represented by it, is settled law. See 20 Cyc. p. 1239, where the authorities from the various States are collected. Reed v. Whipple, 140 Mich. 7 (103 N. W. 548); State Bank of Croswell v. Johnson, 151 Mich. 538 (115 N. W. 464).

The judgment is affirmed, with costs.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


author: Hooker, J.

text:
    STONE v. STONE.
    1. Divorce — Custody of Children — Modification of Decree.
    Upon an examination of the evidence it is held that the order of the circuit court modifying a decree of divorce and granting the custody of the children to the father is warranted by the best interests of the children.

      2. Same — Evidence.
    That the circuit judge was influenced by unsworn statements of the children and conduct of the complainant out of court does not justify the reversal of a decree which is clearly right.
    3. Same — Res Judicata.
    The right to the custody of children is not so concluded by the decree as to preclude a subsequent modification.
    Appeal from Saginaw; Gage, J.
    Submitted April 13, 1910.
    (Docket No. 77.)
    Decided June 6, 1910.
    Bill by Mary Hanchett Stone against Edwin Pearson Stone for a divorce. There was a decree for complainant, and the custody of certain minor children was given to complainant. Defendant afterwards petitioned for the custody of said children. From an order granting the petition, complainant appeals.
    Affirmed.

      Crane & Crane, for complainant.

      Humphrey, Grant & Baker, for defendant.
   Hooker, J.

The complainant, Mrs. Stone, was granted a decree of divorce in the Saginaw circuit in October, 1908. She was given the custody of three children, named and aged as follows: Wells, aged 12, George, aged 9, and Rose Mary, aged 4 years, until they should respectively reach the age of 14 years, or until the further order of the court, and she has had the custody of George and Rose Mary since Wells reached, the age of 14 years, who is understood to be with his father. On November 5, 1909, the defendant filed a petition asking a modification of the decree, and that the care and custody of George and Rose Mary be transferred from complainant to him. Testimony was taken, and the prayer of the petition was granted and the complainant has appealed.

We have endeavored to examine the testimony critically and have been driven to the conclusion that the best interests of these children will be subserved by awarding their custody to the father. We are of the opinion that no good would follow a reiteration of the testimony in the case, and therefore omit a discussion of the merits. Some claims are made that the course of the learned circuit judge denied the complainant a fair hearing. This is one of those cases where a party is indisposed to have counsel, and undertakes to manage the trial himself. We think that there is no reason for complaint, both because the judge was not unfair and gave complainant every reasonable opportunity, and because, in our opinion, the true facts were elicited.

We will notice some other points raised by her counsel. Referring to them in their order we say: (1) We are satisfied that the cause was rightly decided upon the merits as presented in the record. (2) The complainant was not denied a hearing. (3) The proofs do support the order made. (4-6, 8) There is abundance of testimony to warrant the finding of the trial judge, that is neither hearsay nor incompetent. Neither the fact that he examined the children unsworn, nor the fact that he was influenced by the conduct of the complainant in or out of court, nor his preliminary order as to custody of the children, will justify the reversal of a decree or order which is plainly right as shown by the record alone, and this is such a case. (7) The original decree did not establish complainant’s right to the custody so absolutely as to preclude the court from changing it under the statute. 3 Comp. Laws, § 8632; Griffin v. Griffin, 154 Mich. 536 (118 N. W. 1). (9) The order is not void and we consider it not unreasonable.

It is unnecessary to refer to other questions.

We are constrained to affirm the order, and it is so adjudged. No costs will follow.

Ostrander, Moore, McAlvay, and Brooke, JJ., concurred.


author: Ostrander, J.

text:
    ROY v. BORDAS.
    1. Fraud — Conspiracy—Corporations—Promoters.
    The issuance of stock in a corporation organized for the manufacture of medicine to a subscriber, who pays cash upon the false representations of one of the promoters and directors that he had put in $50,000, and other directors had each put in $4,000, accompanied by like false statements in the articles of incorporation signed by the other promoters, and by concealment of the true facts, and misrepresentations to the public, presents a question of fact as to the fraudulent intent of the directors and the existence of a conspiracy between them to defraud plaintiff.
    2. Same.
    If a material representation, known to be false, is intelligently made in such a matter, a fraudulent intent is inferable.
    S. Appeal and Error — Directing Verdict — Questions of Law and Fact.
    In determining on error whether the trial court rightly directed a verdict for defendant, it is necessary to consider the testimony from the point of view most favorable to the plaintiff.
    Error to Houghton; Streeter, J.
    Submitted April 14, 1910.
    (Docket No. 17.)
    Decided June 6, 1910.

      Case by Sophie Roy against Edward P. Bordas and others for fraud. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Joseph F. Hambitzer, for appellant.

      Allen F. Bees, for appellees.
   Ostrander, J.

The declaration is inartificial, but was not demurred to, and counsel seem agreed that it will support a judgment for plaintiff. The court, upon the testimony introduced by the plaintiff, directed a verdict for the defendants, an exception was taken, and error is assigned upon such ruling and direction. This we learn, not from the brief for appellant, which contains no statement of facts, no reference to any exception or assignment of error, but from the record itself and from the brief for appellees.

It is said in the brief for the appellant:

“ The plaintiff stands or falls upon the proposition that the defendants conspired to defraud the public, and especially the plaintiff, by dissipating one-half of the capital stock in a company promoted by the defendants to manufacture a worthless compound of unproven worth or virtue and concealing the fact from the knowledge of purchasers of the remaining stock. Was there any evidence from which the jury could legally and logically find that these allegations were true ? ”

In view of this statement, and the facts recited above, we have, without feeling bound to do so, examined the record to see if the testimony tends to prove the existence of a conspiracy to defraud. There was testimony tending to prove that defendants, before and after the filing of articles of association, promoted a company to manufacture and sell “various medicinal preparations in liquid and other forms.” The capital was $100,000, with 10,000 shares, and the articles of association, executed by six persons, of whom defendants are five, represented that the amount of capital actually subscribed and paid in in cash was $50,500 and that the shares were held — by Bordas 5,000 and by each of the others 10. In fact, these shares had not been sold for cash, or, if any had been so sold, not more than $500 had been paid for them. In fact, the understanding of the promoters was that for a formula, a copyright, and patents granted in England and Canada, 5,000 shares were to be given to defendant Bordas. A check of the company for $50,000, not drawn against funds, was formally delivered to defendant Bordas and by him surrendered to the company. He assigned 400 shares of stock to each of his co-promoters, so that when the public was admitted to purchase stock the holdings were 3,000 shares by Bordas and 410 by each of the others. It does not appear that either of the promoters sold or offered to sell, his shares or any of them. Shares were sold by the company, and plaintiff purchased and paid par for 100 shares. The money paid for shares sold to the public was received by and disbursed for the company. The business was not successful.

Plaintiff offered to return her shares, and now brings suit for the purchase price of them upon the ground that she was defrauded. In buying her stock, plaintiff did not rely at all upon the representations made in the articles of association and knew nothing about them. She claims to have placed reliance upon, and to have been induced to purchase shares by, the representations made to her by defendant Bordas and to have discovered the falsity of the statements contained in the articles of association, and of those made by Bordas,- shortly before she offered to return her shares. There is testimony tending to prove that defendant Bordas represented to her that he had put $50,000 into the business and the other directors had each put in $4,000. There is testimony tending to prove that some of the defendants — the promoters of the company— stated to others that they were largely interested in the concern. Some or all of them were directors of the company. A local newspaper published by one of them announced the organization of the company and published a list of shareholders as shown by the articles. None of them made public the fact that there had been an allotment of shares or that one-half the stock had been given for the formula, etc., etc., and only a few hundred dollars had been paid for in cash. The incorporators were prominent, and apparently successful business men. There is no testimony tending to prove that they regarded the medicine they proposed to manufacture as worthless, or that they doubted its value or the ultimate value of the shares.

If there was a conspiracy — a common design — it was to promote public buying of shares and to see to it that the cost of the experiment, and of its ultimate failure, should be borne by others while securing for themselves a considerable proportion of any profits which might be made. If the existence of such a common design is material, it is, upon this record, a question of fact and not of law whether there was such a design. It must be admitted that the statements in the articles of association with respect to the paid-up capital are calculated to induce the buying of shares, that all of the defendants subscribed the articles, and that the representations were false. The alleged statements of defendants Bordas and Orr are, in substance and effect, repetitions of those made in the articles of association. The case made for the plaintiff is not the one of a misrepresentation in a prospectus addressed by promoters to prospective subscribers for shares, nor the one of a mere omission or nondisclosure of facts. She asserts and has proven false representations solemnly made in the articles of association by all of the defendants, and has produced testimony tending to prove the making of the same representations by one of the defendants to herself and by one or more of the other defendants to other persons. It cannot be reasonably contended that-the representations were of and concerning immaterial facts. Were they fraudulently made? One does not, ordinarily, allege as truth that which is known to be false. If a material representation, known to be false, is intelligently made in a matter such as we are considering, a fraudulent intent may be inferred. Clearly, the question is one to be answered by the jury.

We have, as we were bound to do, stated the tendency of the testimony most favorable to plaintiff, and from the point of view thus obtained have considered whether the court below rightly directed a verdict for defendants. We do not consider any other question. We are of opinion that the case is one for the jury.

The judgment is reversed, and a new trial is granted.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.


text:
    HOEK v. TOWNSHIP OF ALLENDALE.
    1. Municipal Corporations — Public Officers — Highway Commissioner.
    A quasi municipal corporation is not liable for the action of officers who perform a State function imposed on them bylaw, whether the action is for negligence or trespass, although an action may in many cases lie against the officer personally.
    2. Same — Townships—Torts of Oppicers.
    As a township is not liable for the tort of its highway commissioner in trespassing on the land of an adjacent proprietor in doing highway labor, no obligation can be implied to reimburse one who commits such trespass unwittingly at the command of the commissioner.
    3. Indemnity — Contribution—Joint Tort-Feasors — Contracts.
    A township highway commissioner may lawfully contract to indemnify a person working under his direction from any damages which may result from the unlawful character of his acts so directed, and, if relied on in good faith in the reasonable and honest belief of the promisor’s right to so direct, the contract may be valid.
    4. Contribution — Indemnity—Joint Wrongdoers.
    While there is no right of contribution between joint tortfeasors, there may be a right to indemnity under a contract where the plaintiff is liable to a third party, but is not in pari delicto with the promisor.
    5. Parties — Misjoinder.
    In assumpsit against a township and its highway commissioner, brought in justice’s court for indemnity against damages paid for a tort committed under the commissioner’s direction, the misjoinder of the township is not fatal. Act No. 137, Pub. Acts 1903.
    6. Evidence — Judgment—Parol Prooe.
    Proof of a judgment, against which plaintiff claims a contract of indemnity, may be made by parol, in the absence of an objection on the ground that the proof should be made by the record.
    Error to Ottawa; Padgham, J.
    Submitted April 14, 1910.
    (Docket No. 87.)
    Decided June 6, 1910.
    Assumpsit by Peter Hoek against the township of Allendale and Lloyd Molyneaux, highway commissioner, upon a contract of indemnity. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed as to defendant township, and reversed as to defendant Molyneaux.

      Smedley, Hall & Freeland, for appellant.

      Farr & Farr, for appellees.
   Hooker, J.

Hoek worked his highway tax under direction of an overseer. He plowed up certain growing grain near the center of the road. He claims to have been sued by Schmidt, the man who sowed the grain, and to have suffered judgment in both justice and circuit courts, and to have paid the latter. He thereupon sued the highway commissioner, one Molyneaux, and the township, claiming the right to recover from one, or both, the amount paid upon the judgment, and for disbursements, and compensation for his time in preparing for and attending the suit. In support of his action, he proved that the highway in question separated his land from that of Schmidt, but that Schmidt sowed rye to the center of the road, thus obstructing plaintiff in getting to his barn, to do which it was necessary to use this road. We need not discuss the merits of the original controversy between plaintiff and Schmidt, or the action brought by the latter. Evidently the court found that plaintiff was a tort-feasor in plowing up the crop, and no attempt was made in this case to reopen that matter. If the commissioner directed the work to be done at this place he may have been a wrongdoer also, and Schmidt may have had the option of bringing a joint or several action. He chose the latter, and the sole question here is plaintiff’s right to reimbursement from Molyneaux or the township, or both. This highway was a cul-de-sac extending north from an east and west highway laid along the south side of the lands of plaintiff and Schmidt, and extending to Grand river. Apparently it was used but little, and Schmidt bad desired to have it taken up. This plaintiff opposed, though he admits having put a fence across it at a point north of his barn.

The testimony of plaintiff and his wife indicates unfriendliness between plaintiff and Schmidt. It tended to prove that at some time Schmidt moved his barn upon this highway and put it in bad shape, and afterwards plowed up a portion of the road and sowed grain; that the plaintiff saw Molyneaux, then highway commissioner, and asked the privilege of working out his road tax, by putting the labor on this highway, to which Molyneaux assented, and so informed the overseer of the district. When the latter spoke to the plaintiff about his work, plaintiff told him that Molyneaux had consented to his work being done upon this highway, and offered to do it, but the overseer was unwilling to set him at work there until Molyneaux should locate the center line of the road. Some correspondence followed, Molyneaux writing plaintiff as follows:

“ September 28, Grand Haven Road Del. No. 1.
“ Mr. Hoek.
Dear Sir: I was at your place today. I did not find any one home. I should have been there before, but I did not get your letter on account of being directed to the post office instead of R. F. D. I think if you know about where the center of the road is it will be all right to plow it up. I think the sooner it is plowed and graded up, the better.
“ Yours truly,
“A. L. Molyneaux, H. C.”

At a subsequent interview with Molyneaux the following occurred, according to plaintiff’s testimony:

“After I received this letter, Mr. Pott came to see me again. He said, * I see that Mr. Molyneaux has not straightened out the road yet.’ He said that he couldn’t go on with it; he couldn’t let me do my work because it was not straightened. By that he meant that he wanted to know where the center of it was. After that I went to see Mr. Molyneaux again. He told me he would come down and straighten it out, and he did come down about three weeks after I received this letter from him. It was after grape picking time. I don’t remember the date. I am sure it was three weeks after this. When he came down we got a couple of stakes, he held the stakes and I drove them down, and straightened it out. We commenced at the north end of the house. One stake was opposite my house. We did not go to the south, where the east and west road is. We can see it plainly from our house because it is on a knoll, and we can look from the house towards the river and also the other way. We drove one stake north of the house, and west, and the other stake opposite the house. We found the old bed of the road, the middle of the road. There were not any fences there to go by. The fences were towards the river. We could find the middle of the road. There were not any stakes towards the south and where the east and west road run. There was a big soft maple tree that had always been there in the center as long as I lived there. We took that for the center. Mr. Molyneaux helped me drive these stakes. He told me to plow it up now, and that no matter what Schmidt said he would stand by me. I do not know whether he had any talk with Schmidt or not. My wife was there at the time. She said, ‘I suppose when Schmidt sees these stakes there will be more trouble.’ Mr. Molyneaux said: ‘Nevermind Schmidt; I told Mr. Hoek to plow it up; he better plow it up and I would stand back of him.’ I did plow some of it up that fall and finished it in the year 1907 — March 28th or 29th— just as soon as the frost went out. I do not know whether Molyneaux came to see the job after it was done or not. I asked him for an order, and he gave me one for $4 for my work on that road — the order drawn on the township treasurer. When I did this work under the instructions of Mr. Molyneaux I certainly thought that I had a right to do it. I was sure that I was working in the center of the highway. Mr. Molyneaux acted as though he thought that we were in the middle of the highway. Mr. Molyneaux did not know that I was getting over into Schmidt’s rye. I did not think that I was on Schmidt’s land. I was pretty sure that I was not on his land, and I acted in good faith.”

Upon the foregoing statement of facts the plaintiff claims that both Molyneaux and the township are liable. There is some testimony of conversations between the plaintiff and some of the township officers, but we think it unnecessary to refer to it further as it in no way tends to establish a liability on the part of the township. The case is therefore reduced to a few legal questions.

Liability of the Township. Nothing is better settled in this State than the principle that a quasi municipal corporation is not liable for the action of officers (though elected by the township) who perform a purely State function imposed upon them by law, whether the action is for negligence or trespass, although an action may in many eases lie against the officer personally. Such was the law of England and is of this country as the following authorities show:

In Commissioners of Highways of Niles Township, v. Martin, 4 Mich. 557 (69 Am. Dec. 333), after adverting to the English rule, this court said, in an opinion written by the late Judge Douglass, a lawyer of great learning:

“Towns, with us, are mere political organizations, created wholly by statute for certain purposes of local government. They are vested with no franchises or special privileges for their own benefit. They have only such powers as the statute confers, and are subject to no obligations, except such as are derived from statutory provisions. It is difficult to see how any common-law obligations, the sole foundation of which is prescription and immemorial usage, can be made to attach to them. An obligation to construct and repair roads and bridges can only be derived from the possession of such powers over their construction and repair as the statute has conferred upon them. And the law will not impose an unqualified obligation, where the means of performing it do not exist. Now, the towns have power to choose commissioners of highways, but the statute, in express terms, gives to these commissioners, when elected, the care and superintendence of the highways and bridges of the town, and confers upon them all the powers requisite for the execution of their trust. They are in no way responsible to the town, but are themselves a species of quasi corporation, with power to sue and be sued; having legal succession, and deriving their authority, not through the town, but directly from the statute. The towns have no power to give the slightest direction or instruction to these officers, as to the performance of their duties. So the towns have power to raise money for constructing and repairing roads and bridges, but this power is limited to the raising of only $250 in any one year (Rev. Stat. 1846, chap. 22, § 4), and can only be exercised at the annual township meeting. So highway labor may be annually assessed upon persons and property within the township, but the amount to be assessed in any one year is limited (Rev. Stat. 1846, chap. 23, §§ 4, 5), and the power to assess is vested exclusively in the commissioners of highways. Further, the power to raise money for the construction of bridges is vested, in part, in the boards of supervisors of the counties (Rev. Stat. 1846, chap. 27). Looking at all the statutory provisions on the subject, we think they furnish no ground for the inference that it was intended that townships should be subject to any such broad and onerous obligation as is contended for.”

Authorities are cited. After alluding to the distinction that exists when municipal corporations proper are sued, Judge Douglass adds:

“ But the cases which have gone furthest in this direction distinctly assert that no such liability exists on the part of those minor political organizations, or quasi corporations, such as towns and counties, whose corporate powers and functions are conferred without their solicitation for the benefit, not of themselves, but of the public at large. In Hickok v. Trustees of the Village of Plattsburgh [15 Barb. 427], the New York court of appeals, after a review of the authorities, say that it is the acceptance of a special charter that makes the incorporated body liable to this action, and it is the want of such a charter that exempts the towns, unless they are especially made liable by statute under certain circumstances as in Massachusetts. ”

This case was followed in Township of Leoni v. Taylor, 20 Mich. 148, where the late Mr. Justice Graves, referring to Commissioners of Highways of Niles Township v. Martin, supra, said:

“ It is true that the action was there brought against the highway commissioners, but a proper disposition of the ease made it necessary for the court to consider with some minuteness the powers, duties, and responsibilities of townships touching highways and bridges, and it was there held that under our system of township organization and management, ‘ the care and superintendence of the highways and bridges of the towns was given to the highway commissioners, together with all the powers requisite to the execution of their trust,’ and that the ‘ towns had no power to give the slightest direction or instruction to such officers as to the performance of their duties,’ and it was also declared that ‘ the law would not impose an unqualified obligation when the means of performing it did not exist. ’ We think it was fully established in that case that the townships were subject to no legal duty or obligation' to overlook or repair the roads and bridges within their limits, and that whatever duty the law had cast upon commissioners and overseers in that particular, the failure to perform it could furnish no cause of action against the townships.”

See opinion of Campbell, C. J., in People v. Hurlbut, 24 Mich., at page 80 et seq., and of Cooley, J., at page 102 et seq. (9 Am. Rep. 103). He said:

“For those classes of officers whose duties are general —such as the judges, the officers of militia, the superintendents of police, of quarantine, and of ports, by whatever name called — provision has to a greater or less extent been made by State appointment. But these are more properly State than local officers; they perform duties for the State in localities, as collectors of internal revenue do for the general government; and a local authority for their appointment does not make them local officers when the nature of their duties is essentially general. In the case before us, the officers in question involve the custody, care, management and control of the pavements, sewers, waterworks and public buildings of the city, and the duties are purely local. The State at large may have an indirect .interest in an intelligent, honest, upright and prompt discharge of them, but this is on commercial and neighborhood grounds rather than political, and is not much greater or more direct than if the State line excluded the city. Conceding to the State the authority to shape the municipal organizations at its will, it would follow that a similar power of control might be exercised by the State as regards the property which the corporation has acquired, or the rights in the nature of property which have been conferred upon it. There are cases which assert such power, but they are opposed to what seem to me the best authorities, as well as the soundest reason. The municipality, as an agent of government, is one thing; the corporation, as an owner of property, is in some particulars to be regarded in a very different light.”

Sheldon v. Village of Kalamazoo, 24 Mich. 383, a case relied on by plaintiff, was a case against a city, and is clearly distinguishable from the present case. A note to that case shows the distinction and cites many authorities both in Michigan and elsewhere. Dawson v. Township of Aurelius, 49 Mich. 479 (13 N. W. 824), applies the doctrine to a township drain commissioner, as also does the case of Camp v. Township of Algansee, 50 Mich. 4 (14 N. W. 672). See, also, Barron v. City of Detroit, 94 Mich. 601 (54 N. W. 273, 19 L. R. A. 452, 34 Am. St. Rep. 366), and cases cited. Davock v. Moore, 105 Mich. 128 (63 N. W. 424, 28 L. R. A. 783), applies the rule to boards of health, and People v. Mahaney, 13 Mich. 481, to the police board of Detroit; and see minority opinion in case of City of Lansing v. Board of State Auditors, 111 Mich. 332 (69 N. W. 723). Gilboy v. City of Detroit, 115 Mich. 121 (73 N. W. 128), was a board of health case. Corning v. City of Saginaw, 116 Mich. 74 (74 N. W. 307, 40 L. R. A. 526), held that the maintenance of a drawbridge was a public, and not a private, duty.

In Jenney v. Township of Mussey, 121 Mich. 229 (80 N. W. 2), a town was held not liable for the unlawful acts of its treasurer. Murray v. Village of Grass Lake, 125 Mich. 5 (83 N. W. 995), held a village not liable for a trespass ordered by its council, in flooding premises, while acting under general law, as a State agency, distinguishing Sheldon v. Village of Kalamazoo, supra. Nicholson v. City of Detroit, 129 Mich. 246 (88 N. W. 695, 56 L. R. A. 601), was a case brought by an administratrix for subjecting her husband to exposure to smallpox from which he died. The case turned upon the question now before us. The opinion cites many authorities, and the subject is discussed at length. In Whitehead v. Board of Education of Detroit, 139 Mich. 491 (102 N. W. 1029), we held in an opinion by Mr. Justice Blair, that the trial judge “ was correct in saying that the affairs of the board of education are as purely a State function as those of a board of health,” and could not be distinguished in principle from the Case of Nicholson, supra. See, also, Bodewig v. City of Port Huron, 141 Mich. 564 (104 N. W. 769). This was a case holding that a tortious entry and wrongful use of real estate, by its health officer did not warrant a recovery against the city. Alberts v. City of Muskegon, 146 Mich. 216 (109 N. W. 262, 6 L. R. A. [N. S.] 1094, 117 Am. St. Rep. 633).

In Davidson v. Hine, 151 Mich. 302 (115 N. W. 249, 15 L. R. A. [N. S.] 575, 123 Am. St. Rep. 267), it was said in the majority opinion:

“It cannot be said that a municipality is responsible for all the negligence of its officers when they are engaged in performing a local governmental duty, and therefore it is not true that exemption from such responsibility proves that they are not performing a local governmental duty. This is settled by our own decisions. The authorities heretofore cited in this opinion prove that officers having charge of the streets of a municipality are performing local governmental duties, and that the State has no right to appoint such officers. And it is also settled that in the absence of a statute establishing a contrary rule, a municipality is not liable for the negligence of such officials.”

And see minority opinion which contains a discussion of this subject. See, also, Hall v. City of Concord, 71 N. H. 367 (52 Atl. 864, 58 L. R. A. 455); McFadden v. Town of Jewell, 119 Iowa, 321 (93 N. W. 302, 60 L. R. A. 401, 97 Am. St. Rep. 321), when the rule was applied to the cutting of weeds. Dudley v. City of Flemingsburg, 115 Ky. 5 (72 S. W. 327, 60 L. R. A. 575, 103 Am. St. Rep. 253), a case growing out of coasting on the city streets, and Dickinson v. City of Boston, 188 Mass. 595 (75 N. E. 68, 1 L. R. A. [N. S.] 666, and note). See, also, 4 Current Law, p. 737; 2 Cooley on Torts (3d Ed.), p. 1303; 2 Dillon on Municipal Corporations (4th Ed.), § 976; 5 Thompson on Negligence, § 5789; Lawson v. City of Seattle, 6 Wash. 184 (33 Pac. 347); Russell v. City of Tacoma, 8 Wash. 156 (35 Pac. 605, 40 Am. St. Rep. 895); Lynch v. City of North Yakima, 37 Wash. 657 (80 Pac. 79, 12 L. R. A. [N. S.] 261). See, also, along list of cases cited in Cunningham v. City of Seattle, 40 Wash. 59 (82 Pac. 143, 4 L. R. A. [N. S.], at pages 635, 636).

We must hold, therefore, that the township was not liable for any tort of the highway commissioner, and it necessarily follows that the law will not imply any obligation to reimburse the plaintiff for an unwitting trespass committed at the command of the commissioner. As it is conceded that the township was not bound by his alleged promise of indemnity, we need not discuss the question of the commissioner’s power to bind his town, though we cite the following cases as bearing on this subject: Hosier v. Higgins Township Board, 45 Mich. 340 (7 N. W. 897); Mackey v. Township of Columbus, 71 Mich. 227 (38 N. W. 899); Jenney v. Township of Mussey, 121 Mich. 229 (80 N. W. 2); Sherman v. Carr, 8 R. I. 431.

Molyneaux’s Liability. For the purpose of this proceeding, we must assume that Molyneaux told plaintiff that he would stand back of him if there was “more trouble” with Schmidt, as Mrs. Hoek said there would be when he should see the stakes set by Molyneaux and the plaintiff. We are of the opinion that a laborer asked by his employer to work in a given place in a particular manner, in which he had reason to and did suppose his employer had a right to so direct him to work would naturally infer, from the language shown here, that he was to be protected against any damages which result to him in consequence of the unlawfulness of his compliance. It was a promise that the commissioner might lawfully make, and if relied upon in good faith, in the reasonable and honest belief of the promisor’s right to so direct, the contract might be valid though otherwise it might not be. The rule of law is that while there is no right of contribution between joint tort-feasors, there may be a right to indemnity under a contract where the plaintiff is liable to a third party, but is not in pari delicto with his co-wrongdoer.

In a note to 22 Cyc. p. 99, it is said that these cases are exceptions to the general rule, and such exceptions obtain in two classes of cases:

(1) Where an innocent master is held to respond for the tort of his servant.

(2) Where both parties have been in fault, but not in the same fault, etc.

Many authorities are cited.

Again it is said:

“ When an act has been done by plaintiff under the express directions of defendant which occasions an injury to the rights of third persons, defendant will be bound to indemnify plaintiff against the consequences of the act, provided such act is not apparently illegal in itself, and is done honestly and bona fide in compliance with defendant’sdireefcions. So a person who has been exposed to liability and compelled to pay damages on account of the negligence or tortious act of another has a right of action against the latter for indemnity, provided plaintiff and defendant are not joint tort-feasors in such sense as to prevent plaintiff from recovering. Thus it is well settled that a municipal corporation which has been compelled to pay a judgment recovered against it for damages sustained by an individual by an obstruction, defect, or excavation in the sidewalk or street of such corporation has an action over against the person who negligently or unlawfully created the defect that caused the injury.” 22 Cyc. pp. 95, 96.

Coventry v. Barton, 17 Johns. (N. Y.) 142 (8 Am. Dec. 376, and note), resembles the present case. There one at work on the highway was directed by the overseer to remove a turnpike gate, promising that he “would bear him out in it.” This was held a possibly valid contract of indemnity and a directed nonsuit was reversed. Allaire v. Ouland, 2 Johns. Cas. (N. Y.) 54. This exception to the rule is well supported by authorities:

“Contribution and Indemnity as Between Wrongdoers. — As under the rules already laid down the party wronged may, at his election, compel any one of the parties chargeable with the act, or any number less than the whole, to compensate him for the injury, it becomes a consideration of the highest importance to the person or persons thus singled out and compelled to bear the loss, whether the others who were equally liable may be compelled to contribute for his relief. On this subject there is a general rule, and there are also some very important exceptions. The general rule may be found expressed in the maxim that no man can make his own misconduct the ground for an action in his own favor. If he suffers because of his own wrongdoing, the law will not relieve him. The law cannot recognize equities as springing from ee, wrong in favor of one concerned in committing it. But; there are some exceptions to the general rule which rest upon reasons at least as forcible as those which support the rule itself. They are of cases where, although the law holds all the parties liable as wrongdoers to the injured party, yet as between themselves some of them may not be wrongdoers at all, and their equity to require the others to respond for all the damages may be complete. There are many such cases where the wrongs are unintentional, or where the party by reason of some relation is made chargeable with the conduct of others.” 1 Cooley on Torts (3d Ed.), pp. 254, 255.

And see Kenyon v. Woodruff, 33 Mich. 310.

We are of the opinion that the testimony stated made a question for the jury on the subject of Molyneaux’s contract of indemnity, and unless there is some other reason for taking the case from the jury the judgment cannot be sustained.

It follows that the verdict and judgment must be affirmed with costs, as to the township, and’ it only remains to inquire whether plaintiff is entitled to a reversal as to Molyneaux.

Misjoinder. The misjoinder of the defendant township is not necessarily a fatal point. See Cir. Ct. Rule No. 27, subds. “c;” Durgin v. Smith, 115 Mich. 239 (73 N. W. 361); Wright v. Reinelt, 118 Mich. 638 (77 N. W. 246); McPherson v. Pinch, 119 Mich. 38 (77 N. W. 321); Wilson v. Medler, 140 Mich. 209 (103 N. W. 548); Hillman v. Hulett, 149 Mich. 289 (112 N. W. 918); Act No. 137, Pub. Acts 1903.

Should Case Have Gone to the Jury? If we can say that the case should have been submitted to the jury, as against Molyneaux, the judgment as to him should be reversed.

There was testimony in the case tending to show that the plaintiff was put to expense and trouble in defending a suit, growing out of a trespass for which Molyneaux was responsible and against the consequences of which he promised to indemnify plaintiff. We do not say that either the trespass, the judgment, or the promise was conclusively proved, and we do not say that plaintiff’s good faith is not open to question. We merely say that these questions were, under the proof, open, and should have gone to the jury. Counsel for the defendant urge that the testimony relating to the alleged judgment came in under objection, referring us to the following objection made before any testimony was received:

“Mr. Farr: Now, I would like to make an objection here, and I think we might facilitate matters if this testimony could all be taken under my general objection. My objection is that the testimony is immaterial and incompetent; that under the pleadings and under the statement of counsel there is no cause of action here under the law, and my objection may stand in that way.”

It is evident from what has been said that this objection was properly overruled, and that it was competent to prove the judgment. Had the objection that parol testimony was not admissible to prove a judgment been made at the time such proof was offered, an exception to its reception might have been well taken, but it was not, and the testimony came in practically without objection. Even if we concede that all testimony was taken subject to the objection made, the court had a rigid; to suppose that the ground was the inadequacy of the statement of plaintiff’s case, by counsel.

We are of the opinion that the judgment should be reversed as to Molyneaux, and affirmed as to the township, and it is so ordered.

Ostrander, Moore, McAdvay, and Brooke, JJ., concurred.