author: Brooke, C. J..

text:
    MINDS v. KEYES.
    1. Brokers — Evidence—Commissions.
    In a broker’s action for commissions on tbe sale of real property, disputed claims of plaintiff as to an agreement between him and defendant, another broker, to divide commissions, held, to present a question of fact for the jury.
    2. Appeal and Error — Trial—Requests.
    The Supreme Court will not, in civil causes, consider assignments of error based upon the failure of the court to give instructions for which no requests were filed.
    3. Same — New Trial — Discretion—Extent Reviewable.
    The action of the trial court in declining to grant a motion for a new trial, indicating no abuse of discretion, will not be reviewed by this court on writ of error.
    Error to Wayne; Mandell, J.
    Submitted October 18, 1915.
    (Docket No. 140.)
    Decided December 22, 1915.
    Assumpsit by Hugh L. Minds against George H. Keyes on a contract to divide broker’s fees. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Harry M. Lau (Frank H. Watson, of counsel), for appellant.

      Prentis & Mulford, for appellee.
   Brooke, C. J..

This suit was instituted by plaintiff against defendant for the purpose of recovering from defendant one-half of a real estate commission received by defendant from one Mrs. Hovey, upon the sale of 95 Washington avenue, Detroit, for the sum of $52,-000. The sale appears to have been made on May 27, 1911. The property had been listed for several years by Mrs. Hovey with defendant, and in the fall of 1909 plaintiff claims to have entered into an agreement with defendant by the terms of which he (plaintiff) was to assist in the sale of said Washington avenue property, and if a sale were made he was to receive one-half the commission paid by Mrs. Hovey. It is the claim of plaintiff that some time thereafter he introduced one Stuart to defendant, Stuart then being the owner of a large flat building valued by him at the sum of $55,000, and an effort was made by plaintiff and defendant to accomplish a trade between Stuart and Mrs. Hovey of their several properties, under an agreement that their commissions should, be pooled and equally divided. After some negotiations relative to this sale, it was dropped; Mrs. Hovey declining to entertain the proposition. About 1% years later Mr. Stuart entered into a contract of purchase with Mrs. Hovey for the Washington .avenue property. It was plaintiff’s claim that subsequent to the failure of the trade he constantly urged Stuart, who was a frequent visitor at his office, to buy the Washington avenue property. This does not appear to have been denied by Stuart, who was a witness upon the trial, although he testifies that he was induced to renew negotiations with Mrs. Hovey by reason of the changed conditions' in the neighborhood of the property, involving the erection of a hotel or convention hall, which he believed would require the occupation of the whole block.

Defendant denied the making of the contract for a division of the commission on the sale of the Washington avenue property, and asserted that the only arrangement made between plaintiff and himself was that growing out of the attempt to effect a trade of the-flat building belonging to Mr. Stuart for the Washington avenue property belonging to Mrs. Hovey.

The learned circuit judge who tried the case charged the jury, in part, as follows:

“This is an action upon a contract. It does not make any difference what the equities are or the justice of the situation might be, because this action is brought upon what the plaintiff says was an expressed contract, which was oral in its nature, and the plaintiff claims that he performed his part of the contract and has not received his money. His claim in regard to the contract is this: That on a certain occasion in 1909, he and the defendant met. The defendant said: T have charge of certain property on Washington Boulevard, and I want you to help me sell it, and if you will help me sell this property I will divide my commission with you.’ * * * The defendant says no such contract was ever entered into, and you, gentlemen of the jury, as judges of the facts, will have to determine whether that kind of a contract was ever actually made between the parties, the plaintiff and the defendant. Let us examine the situation and see what it was, because we are often aided in determining issues by seeing what the exact situation is and the relationship of the parties to the situation and all those things are.
“Now, the plaintiff at the time of the negotiations knew a man by the name of Stuart and had certain property belonging to Mr. Stuart in his hands for sale or trade. At the time in 1909 that it is claimed this contract was made, the defendant had charge of certain property belonging to Mrs. Hovey, and it is claimed by the plaintiff that they met, and that the negotiations that led up to this contract all had reference to the sale of the property by the defendant with the aid and active assistance of the plaintiff. Now, we have been told that there were certain propositions with regard to the trade of certain improved property, a flat or an apartment house, for this property. We are told that that deal fell through; we are told numerous interviews were had with _ the man who purchased the property subsequently with the plaintiff and the defendant, and that these negotiations either totally or in part came to an end. The plaintiff claims that he continued his efforts by offering inducements and active aid and assistance in the sale of this property of Mrs. Hovey’s by the defendant. The claim of the defendant, on the other hand, is this: That they tried to effect a deal, but the only deal they tried to bring about was a trade of the properties of Mrs. Hovey and Mr. Stuart; that these negotiations came to an end in 1909; and that the man who subsequently purchased the property, Mr. Stuart, forgot all about this property; and that the defendant had no further negotiations concerning the sale to Mr. Stuart; and that all those negotiations were at an end; and that a year and a half afterwards Mr. Stuart began negotiations with Mrs. Hovey for the purchase of this property only because of the changed conditions; and that he (Mr. Stuart) was referred to the defendant by Mrs. Hovey, who owned the property.
_ “Negotiations were carried on wholly and alone by him, unassisted by the plaintiff, and these negotiations culminated some time afterwards in the sale of the property. The defendant says he had no negotiations with the plaintiff whatsoever, except concerning the trade of the property, and he says he never told him that if he would help him or aid him in any way, materially or otherwise, in the sale of the property, that he would divide the commission. * * *
“Should you, after an examination of all the evidence, determine that there was a contract such as the plaintiff claims under, that he was to receive half of defendant’s commission in case this property was sold, then you will have to study the evidence to determine whether or not the plaintiff did actually help, was either procuring or effective cause of what subsequently transpired. With regard to that, they dispute one another, and you should consider all of the evidence in the case. Mr. Stuart has told his story. He has told you what brought about his purchase of the property, what induced him to buy it, and you should take that into consideration in determining whether or not the plaintiff actually earned the commission. Now, as I said, it is unfortunate that these people do contradict one another. It is unfortunate that contracts are not all in writing, so that there can be no quibbling or misunderstanding about them; but people do not ordinarily have opportunity to put their contracts in writing, and they did not in this case see fit to do it, and you will have to find out from a study of the evidence what the truth of the controversy is with regard to the contract itself, and, if the contract did exist, whether or not the money was earned. There can be no separation or division. There is no question of the fact that the defendant did obtain a thousand dollars commission; so, in case the plaintiff is entitled to recover, he is entitled to recover one-half of that with interest due from the date of the last payment, and you will have to study the evidence to determine when it was. The burden of proof is upon the plaintiff. He must establish his case by a fair preponderance of the evidence. If he has failed to prove his case on both of these points that I have mentioned, he cannot recover. If in regard to both of them he has convinced you by a fair preponderance of the evidence, he should recover.”

During the trial of the case the record fails to disclose any exception taken on behalf of defendant until the testimony was closed. Thereupon counsel for defendant-moved for a directed verdict on four several grounds. The motion was overruled and an exception duly taken. No requests to charge were preferred on behalf of the defendant, and no exception was taken by defendant to the charge as given. Plaintiff having recovered a verdict, a motion for a new trial was made by defendant and denied by the court.

Defendant’s assignments of error follow:

“First: The court erred in denying the defendant’s motion to direct a verdict for said defendant, made at the close of the plaintiff’s testimony, on the grounds:
“(A) The failure of the plaintiff to show that he was the procuring cause of the alleged sale of May 27, 1911.
“(B) Because upon the undisputed testimony produced on the trial of said cause, it shows that the proposition as originally suggested, between Stuart and Mrs. Hovey, was for the exchange of properties, which negotiations failed, and the purchase, sale, and exchange of the Hovey property was abandoned in November, 1909.
“(C) Because after the proposition for exchange of properties failed in November, 1909, and was abandoned, Mr. Stuart, under the law, was not a customer of Mr. Minds so as to prevent Mr. Stuart and Mrs. Hovey at a subsequent date effecting a sale or purchase of the Hovey property; they both acting in good faith.
“(D) Because the testimony shows that Mr. Minds had nothing to do with the sale of May 27, 1911.
“(E) Because the plaintiff failed to show that his efforts and services were the effective, predominating, efficient means of bringing about the sale of May 27, 1911.
(F) Because the court erred in not challenging the attention of the jury to the diversity of the alleged contracts claimed by the plaintiff to have been made by him with the defendant.
“(G) Because the court erred in not calling the jury’s attention to the fact of the abandonment of the contract for the exchange of properties.
“(H) Because the court erred in not charging the jury that plaintiff was not entitled to recover, because the alleged contract under which he claimed to be entitled to commission was not based upon a legal consideration.
“(I)' Because the court erred in denying the defendant’s motion for a new trial.”

With reference to the first assignment, to the effect that the court erred in denying defendant’s motion for a directed verdict, a sufficient answer, we think, is contained in the brief of counsel for appellant, where he says:

“The testimony as to the terms of the contract being conflicting, raised a question of fact for the jury under proper instructions from the court.”

With reference to all the assignments numbered A, B, C, D, and E, it may be said that the testimony of the plaintiff was in conflict with that offered on behalf of the defendant, and clearly raised a question of fact for the determination of the jury under appropriate instructions.

Touching assignments F, G, and H, we must hold that, no requests having been preferred, the court will not in civil cases consider assignments of error predicated upon the failure of the court to give instructions not asked for. Alderton v. Williams, 139 Mich. 296 (102 N. W. 753). Aside from that, we are of opinion that the charge as given fairly presented to the jury the conflicting theories of the parties and the issues involved.

Assignment of error I, based upon the denial of the motion for a new trial, is without merit. The action of the court, in our opinion, indicates no abuse of discretion, in the absence of which this court will not interfere. Cooper v. Carr, 161 Mich. 405, 412 (126 N. W. 468). . ■

The judgment is affirmed.

Person, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.'


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    MILLAR v. HILTON.
    1. Contracts — Lex Fori — Conflict of Laws — Remedy.
    The validity and construction of a contract are controlled and to be determined by the laws of the situs or place where the contract was entered into, while the remedy for enforcing a foreign contract is regulated by the laws of the forum or country where such remedy is pursued.

    2. Limitation of Actions — Foreign Contracts — Bills and Notes —Private International Law.
    The Michigan statute of limitations contains no special provisions recognizing the bar of limitations under a foreign statute, as is the case in some States, where, however, it must appear that the period fixed by the foreign statute had fully run and the bar was complete before the defendant came within the jurisdiction of the State.
    3. Same.
    Defendants owed plaintiff on a promissory note executed in Canada, where the parties resided, and defendants moved to Michigan, when the note had been due 3 years and a half. In neither place had the statute of limitations run so as to bar an action, at the time plaintiff brought suit in Michigan. Held, that the law would not be enforced as a matter of comity in a foreign country and that the two statutes could' not be tacked together to bar the right of action.
    4. Same — Bab.
    In an action begun in one State or jurisdiction upon a contract made in another, a plea of the statute of limitations existing in the place of the contract is not good as a bar to the action, but a plea of the statute existing in the country or State where the suit is in litigation is sufficient and as a universal rule, the statute operates merely upon the remedy; the law of the forum, not the law of the situs of the contract, controls.
    5. Bills and Notes — Foreign Contract — Private International Daw — Forum.
    A promissory note negotiated, dated, signed, indorsed and delivered in Ontario, where it was also made payable and where all the parties resided, was a foreign contract, and though the right of action was transitory, the contractual rights of the parties were governed by the law of the place of contract.
    6. Same — Husband and Wife — Indorsement by Wife.
    Under the law of the place of execution the payor’s wife was liable on her indorsement with the same force and effect as though she was unmarried and proof of her signature, in the absence of evidence of duress or undue influence, made out a prima facie case. No presumption arose from the fact of coverture that shifted the burden of proof to plaintiff.

      Error to Wayne; Mandell, J.
    Submitted October 18, 1915.
    (Docket No. 13.)
    Decided December 22, 1915.
    Assumpsit by Charles Millar against Francis A. Hil- . ton and I. G. Hilton upon a promissory note. Judgment for plaintiff against Francis A. Hilton and for defendant I. G. Hilton on a verdict directed by the court. Plaintiff and defendant F. A. Hilton bring er- . ror.
    Affirmed as to defendant, appellant. Reversed as to defendant I. G. Hilton.

      Moore & Moore, for plaintiff.

      Lodge & Brown, for defendant.

      As to conflict of laws regarding questions arising under bills and notes, see notes in 61 L. R. A. 193, 19 L. R. A. (N. S.) 66.6.

      On the enforcement of a personal contract of a married woman capable of contracting according to the law of another state or country where the contract was made, see note in 26 D. R. A. (N. S.) 774.

   Steere, J.

This appeal involves a judgment, in an action begun in the Wayne county circuit court, May 9, 1912, upon a promissory note dated at Toronto, Ontario, November 20, 1902, due in three months, made and signed by defendant Francis A. Hilton, payable to the order of I. G. Hilton, his wife, at Molson’s Bank, Toronto. Plaintiff became owner of the ’note when, or shortly after, it was made, and discounted it at Molson’s Bank. When it became due the bank protested it for nonpayment, and, having indorsed the same, plaintiff was subsequently obliged to pay the amount due upon it to the bank, again becoming owner of the paper. The note fell due on February 23, 1903. Defendants moved from Toronto to Detroit, Mich., on December 1, 1906, and have resided in that city ever since. Plaintiff is still a resident of Ontario. Under a plea of the general issue, defendants gave notice in defense that the note was barred by the Michigan statute of limitations, and that defendant I. G. Hilton was a married woman when she indorsed the same. Upon the trial, the genuineness of the note and plaintiff’s ownership for value were not questioned. It was also conceded that when said note was given defendants were, and yet remained, husband and wife, and that nothing had been paid upon the same by defendants since it fell due. The statutes of Ontario were introduced in evidence, from which it appeared that the statute of limitations in that jurisdiction is the same as that of Michigan, as applied to actions upon negotiable paper of the kind involved here, and under the Ontario law in force when defendant I. G. Hilton indorsed the note no disability existed as to her by reason of coverture. No testimony was introduced by the defense beyond proving the Canadian statute of limitations. After both parties rested, each asked the court for a directed verdict. The court directed a verdict in favor of plaintiff against defendant Francis A. Hilton for the amount of the note, but held that his wife, I. G. Hilton, was not liable, on the ground that she was under disability of coverture, and directed a verdict of no cause of action as to her. Defendant Francis A. Hilton and plaintiff each sued out a writ of error.

This peculiar situation brings in juxtaposition the two principles involved in the general rule that, in determining whether a domestic or foreign law is applicable in a case under consideration, the validity and construction of a contract are controlled and to be determined by the laws of the situs, or place where the contract was entered into, while the remedy for enforcing a foreign contract is regulated by the laws of the forum, or country where such remedy is pursued.

At the time defendants left Canada and moved to Detroit, this note had been past due some three years and nine months. Six years had not expired since they established their residence in Detroit before this action was brought. The statute of limitations had not run in either country. Defendants seek to tack the running of the statutes of limitations in Canada and Michigan which, combined, would bar action upon the note. This cannot be done. The Michigan statute of limitations contains no special provisions recognizing the bar of limitations under the statute of a foreign jurisdiction, as is the case in some States, while even under such provisions to be effectual it must appear that 'the period fixed by the foreign statute had fully run and the bar there was complete before the defendant came within the jurisdiction of the State where the action was brought. 25 Cyc. p. 1241, and cases cited.

The Ontario statute of limitations forms no part of the contract here sued upon and out of which the right of action arises. The action is based on a common-law right entirely independent of the statute, which may or may not later act upon the remedy. The statute does not create the right itself, nor extinguish it, though it may through lapse of time bar, ex post facto, the remedy when pleaded. But laws relating to remedies on contracts are not a matter of comity. The rule is well settled by an abundant and long line of authority that remedies are governed and applied according to the law of the place where the action is instituted, rather than by the law of the place of the contract. The rule is clearly stated in Wood on Limitations (2d Ed.), vol. 1, § 8, and note, as follows:

“ ‘Where an action is brought in one country or State upon a contract made in another, a plea of the statute of limitations existing in the place of contracts is not a good bar, but a plea of the statute existing in the country or State where the action is brought is.’ This rule is in conformity with the universal rule that, as the statute operates merely upon the remedy, the law of the forum, and not the law of the situs of the contract, controls.”

In the early and leading case of Bulger v. Roche, 28 Mass. (11 Pick.) 36 (22 Am. Dec. 359), where the debt was barred between the parties in a foreign jurisdiction by the law of that country before either left it, Chief Justice Shaw, in the concluding paragraphs of his illuminating discussion of the subject, says:

“The plaintiff, having a right to sue in our courts, must conform to our law, as to the time of bringing his action, and all other particulars affecting his remedy. That remedy is not barred or taken away by our statute of limitations, until six years have elapsed after both the plaintiff and the defendant have been within the jurisdiction of the commonwealth. How does the existence of a foreign law of the like kind, which would merely affect the remedy within its own jurisdiction, control or affect the statute of limitations which regulates the remedy here? The statute itself makes no such distinction, and none can be implied either from its letter or spirit.”

This case, with others to the same effect, is cited and recognized as controlling in Belden v. Blackman, 118 Mich. 448 (76 N. W. 979), where it is said:

“Our statute is like that of Massachusetts and New York. The statutes of those States have been construed as applying to causes of action which accrued without the State between nonresidents (citing cases). We think the last-named cases should be followed here.”

This rule is also recognized in Blackburn v. Blackburn’s Estate, 124 Mich. 190 (82 N. W. 835, 83 Am. St. Rep. 325).

Defendants’ contention that the ruling of the trial court is “anomalous” and introduces a “strange doctrine,” because it is elementary that the cause of action accrued when the note fell due and a cause of action can accrue but once, while the statute of limitations having once started to run will continue, demands, to give it point, recognition of the Ontario statute of limitations and its application in combination with the Michigan statute to the case under consideration. Eliminating the foreign remedial statute, the strange doctrine vanishes. The cause of action has accrued but once in this State, and since then the statutory period of limitations has not intervened. In the absence of special statutory provisions, the law upon the question is too well settled in this State, and elsewhere, to be questioned.

It is also well settled in this State, in harmony with the prevailing rule elsewhere, that foreign contracts, when the subject of litigation in. this jurisdiction, are to be given effect, interpreted, and the contractual rights of the contending parties determined according to appropriate statutes and decisions of the territory where the contract was entered into, unless by some provision of the contract it is manifest the parties have otherwise intended and agreed. Douglass v. Paine, 141 Mich. 485 (104 N. W. 781). The promissory noté upon which the action is based is clearly a foreign contract without qualification, intended to be performed where made. It was negotiated, dated, signed, indorsed, delivered, and made payable in Toronto, Ontario, where all parties in interest then resided. It was not paid there or elsewhere. Actions upon commercial paper are transitory, and the creditor may pursue and sue the debtor in any State where his person or property can be found; but the contractual rights of the parties are tested by the law of the place of contract, as before stated.

The trial court, referring to the disability of coverture in this State as applied to commercial paper, expressed a doubt as to whether “the rule of law is any different in the Province of Ontario than in Michigan, and for the purpose of this case” directed a verdict in favor of Mrs. Hilton.

The applicable statute of Ontario in force at the time this note was given provided as follows:

“A married woman shall be capable of entering into and rendering herself liable in respect of and to the extent of her separate property on any contract, and of suing and being sued, in all respects as if she was a feme sole, and her husband need not be joined with her as a plaintiff or defendant, or be made a party to any action or other legal proceeding brought by or taken against her. * * * Every contract entered into by a married woman on or after the 13th day of April, 1897, otherwise than as an agent (a) shall be deemed to be a contract entered into by her with respect to and to bind her separate property whether she is or. is not in fact possessed of or entitled to any separate property at the time when she enters into such contract, and it shall not be necessary in any proceeding to prove that she had any separate property at the time when such contract was entered into, or subsequently; (b) shall bind all separate property which she may at the time or thereafter possess or be entitled to; and (c) shall also be enforceable by process of law against all property which she may thereafter while discovert, possess or be entitled to.” R. S. Ont. 1897, chap. 163.

The doubt expressed by the trial court as to the law of that Province differing from ours may have arisen from a once somewhat unsettled condition of their decisions touching presumptions and burden of proof where a married woman executed or indorsed paper with or for the benefit of her'husband. This uncertainty became marked in the case of Cox v. Adams, 35 Can. S. C. R. 393, where, out of a diversity of opinions by the justices, it was inferable that a wife so signing was presumed to have acted under undue influence or duress of her husband, and the burden of proof rested upon those relying upon her signature to prove that she did not. In Stuart v. Bank of Montreal, 41 Can. S. C. R. 516, the Cox v. Adams Case was discussed at length by different members of the court whose views were not altogether in harmony, and a majority of the court inclined to the view that it was a controlling precedent; but, on appeal of the case from the Supreme Court of Canada to the Privy Council of England, it was squarely held without hesitation, accepting the law as laid down in Nedby v. Nedby, 5 De G. & Sm. 377, that in case of husband and wife the burden of proving duress or undue influence lies upon those who allege it. This rule as to burden of proof and presumption was also declared in the English case of Field v. Sowle, 4 Russ. 112, where the wife had joined her husband in a promissory note to plaintiff for money advanced by him to her husband. Undue influence and coercion were urged as a defense, with no other proof than coverture. The court there said:

“The signature .of the promissory note by the defendant Sarah Sowle is prima facie evidence to charge her; and it is upon her to repel the effect of her signature by evidence of undue influence, and not upon the plaintiff to prove a negative.”

Gold Medal Furniture Co. v. Stephenson, 10 D. L. R. 1 (1913), fully recognizes this rule of prima facie liability with citation of authorities; the court quoting with approval from Talbot v. Van Boris, 1 K. B. 854 (1911), which is an action against a wife upon joint and several promissory notes of her husband and herself signed by her as surety. It was there held that the only substantial defense of the wife was duress, and she was not relieved by the relation of husband and wife from the burden of proving it; that:

“To support such a defense, where the alleged duress is that of a person other than the person contracted with, it must be shown that the duress by which the contract was procured was known to the plaintiff when he entered into the contract.”

It is manifest that under the law of Ontario the wife is liable on her indorsement with the same force and effect as though she were unmarried, in the absence of proof of duress or undue influence.

Proof of this note and her signature made out a prima facie case against Mrs. Hilton. No presumptions existed by reason of coverture which placed upon plaintiff the burden of proving a negative, and no evidence was offered to meet the case made. Plaintiff was also entitled to a judgment against her.

For the reasons above given, the judgment rendered by the trial court herein is sustained and affirmed against said Francis A. Hilton, but reversed as to defendant I. G. Hilton, and a new trial granted plaintiff as to her.

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


author: Brooke, C. J.

text:
    FALLS v. GRAND RAPIDS, GRAND HAVEN & MUSKEGON RAILWAY CO.
    1. Street Railways — Wye—Definition.
    A wye, as employed in the grant by a village council of the right to construct new track, meant a track with two legs, one joining the main track from one direction and the other joining the main track from a different direction.
    2. Same — Removal of Trees — Cities—Rights in Streets.
    Where the common council of the village of Spring Lake authorized defendant railway company by resolution to lay a single track or wye, in a street to connect with existing track “and extend the same in a northerly direction across State street to, in, and upon” a lot adjoining complainant’s property, and where, in so doing, because of the overhang of the cars, it became necessary to remove a shade tree in the portion of the street fronting upon complainant, the defendant was authorized to remove the tree, and the lower court rightly entered a decree giving complainant the option of transplanting the tree or cutting it down after thirty days’ written notice.

      3. Same.
    A property owner who plants trees in the street does so with the understanding that they can remain there only so long as the space used is not required for public purposes.

    Appeal from Ottawa; Cross, J.
    Submitted October 21, 1915.
    (Docket No. 31.)
    Decided December 22, 1915.
    Bill by Samuel Falls against the Grand Rapids, Grand Haven & Muskegon Railway Company for an injunction and other relief. From a decree for defendant, complainant appeals.
    Affirmed.

      Lillie & Lillie, for complainant.

      Carroll, Kirwin & Hollway, for defendant.

      On the right of municipal corporation to cut or trim trees within the limits of highway, see notes in 20 L. R. A. (N. S.) 809, 31 L. R. A. (N. S.) 951.

      Generally, on ownership and control -of trees in highway, see note in 15 L. R. A. 553.

   Brooke, C. J.

The learned circuit judge who heard this case filed the following findings:

“The bill of complaint in this cause was filed by the complainant against the defendant to secure an injunction to restrain the deféndant from constructing its tracks in the streets in front of or across the property of the complainant.
“The proofs show that the complainant is the owner of lot 3, block 10, of Bryant’s addition to the village of Spring Lake, Ottawa county, upon which lot is situated the dwelling house of the complainant. The defendant company operates an electric street railway along the street in front of the residence of the complainant, and, being desirous of erecting a depot in Spring Lake, purchased the lot adjoining the property of the complainant on the west.
“Upon the application of the company, the common council of Spring Lake passed an ordinance permitting the defendant to construct a wye in the street, and extending to and upon the lot purchased for depot purposes. The construction of this wye in accordance with the plans as shown by Exhibit A will not place the track of the defendant upon the property of the complainant, but will require the removal of a shade tree which is located in the street in front of the lot of the complainant and about 18 inches east of his west line. The proofs show that the only damage which the complainant will suffer will be the annoyance of the operation of the cars and the removal of the shade tree from the street.
“Trees planted in the public highway by the abutting property owner can remain there only so long as the space occupied by them is not required for public use. The company having secured the permission from the common council to construct this wye, it necessarily follows that the company has the right to remove from the highway any obstruction which interferes with the proper construction and operation of the road. However, the tree is the property of the complainant, and he has the right to transplant it, or to cut it down, as he may decide, after proper notice has been served upon him to the effect that it is necessary that the tree be removed. No notice has been served upon him to remove the tree, and the temporary injunction heretofore issued will be continued until the defendant has given the complainant 30 days’ written notice to remove the tree, at the expiration of which time, and upon filing due proof of the service thereof, the temporary injunction will be dissolved and the bill of complaint dismissed, without prejudice.
“Before the bill of complaint was filed the defendant by its officers informed the complainant that the track would cross the curb and the corner of his lot, but afterwards a survey was made, as shown by Exhibit A, and it was thereby ascertained that the track would not cross the property of the complainant. However, as the facts appeared to the complainant, he was justified in filing his bill of complaint, and he will therefore recover costs.
“A decree may be prepared for signature in accordance with these findings.”

These findings were based primarily upon the fact that the common council of the village of Spring Lake passed a certain ordinance, the material parts of which follow:

“Section 1. The common council of' the village of Spring Lake ordain that section 1 of said ordinance as aforesaid be and the same is hereby amended by adding thereto the following: Permission and authority is hereby given and granted to the said Grand Rapids, Grand Haven & Muskegon Railway Company to lay a single track or wye, as the said railway company may elect, in State street, a public street in said village, to connect with the track now laid in said street, and extend the same in a northerly direction across .State street to, along and upon lot 2, block 10 of Bryant’s addition to the village of Spring Lake, so that section 1 as amended shall read as follows:
“Section 1. * * * Permission and authority is hereby given to the grantee, to the said Grand Rap-, ids, Grand Haven & Muskegon Railway Company, to lay a single track or wye, as the said railway may elect, in said State street, a public street in said village, to connect with the track now laid in said street and extend the same in a northerly direction across State street to, in and upon lot No. 2, block No. 10 of Bryant’s addition to the village of Spring Lake.
“Approved and passed December 16, 1912.”

The decree entered in the court below follows:

“This cause having come on to be heard upon the bill of complaint herein and the answer of the defendant thereto and the replication of the complainant to such answer and upon proofs duly taken in open court, the court, having heard the arguments of counsel for the respective parties, and being fully advised in the premises, does find that the complainant is the owner of lot 3, block 10 of Bryant’s addition to the village of Spring Lake, Ottawa county, Mich., upon which lot is situated, his dwelling house; that the defendant company operates an electric street railway along the street in front of the residence of the complainant, and, being desirous of erecting a depot in the village of Spring Lake, purchased the lot adjoining the property of the complainant on the west.
“The court does further find that upon application of the defendant company to the common council of the village of Spring Lake, said common council passed an ordinance, permitting the defendant to construct a wye in the street extending to and upon the lot purchased by defendant as aforesaid, for depot purposes; that the construction of said wye in accordance with the plans as shown by Exhibit A on file herein will not place the track of the defendant upon the property of the complainant, but will require the removal of the shade tree which is located in the street in front of complainant’s lot, and about 18 inches east of the west line of said lot.
“The court does further find that the only damage which complainant will suffer will be the annoyance of the operation of the cars and the removal of the said shade tree from the street, but that trees planted in the public highway by the abutting property owners can remain there only so long as the space occupied by them is not required for public use, and that, the defendant company having secured permission from the common council to construct its wye, it necessarily follows that defendant has the right to remove from the highway any obstructions which interfere with the proper construction and operation of its railway.
“The court does further find that said tree is the property of the complainant, and that he has the right to transplant it or cut it down as he may decide, after proper notice has been served upon him of the fact that it is necessary that the tree be removed, but that thus far no notice has been served upon him to remove said tree.
“It is therefore ordered, adjudged, and decreed by the court that the temporary injunction heretofore issued herein be continued in force and effect until the defendant has given the complainant 30 days’ written notice to remove said tree; that at the expiration of said 30 days, and upon filing due proof of the service of said noticie in this cause, the temporary injunction will be dissolved and the bill of complaint be dismissed without prejudice.
“It is further ordered, adjudged, and decreed by the court that, as complainant was informed by the officers of the defendant before the bill of complaint was filed herein that the track would cross the curb and the corner of his lot, but afterwards a survey was made, as shown by Exhibit A, and it was thereby ascertained that the track would not cross the property of the complainant, complainant will recover his costs in this cause to be taxed; as the facts appeared to him, lie was justified in filing his bill of complaint.”

Complainant’s position is sufficiently indicated by a short excerpt from the brief of his counsel. After citing the ordinance, he there says:

“This gave the defendant a right to extend a track across State street to lot 2.. It gave the defendant a right to lay that track along lot 2. It gave the defendant a right to lay that track upon lot 2. The defendant could not lay that track anywheres in State street except to lay it along lot 2 and upon lot 2. To lay it along lot 2 it had to start from the west and go east in a northerly direction along and in front of lot 2. This is where it did go. This is where they laid it.
“This is all the authority that the common council gave the defendant. It nowhere gave them authority to start from the east and lay a single track or wye ‘across State street to, along and upon lot 2.’ It could not start from the east and go along lot 2. If it started from the east, it would have to go ‘along’ lot 3 and then upon lot 2. The. common council gave no such authority.
“We presume that some argument will be made upon the fact that when section 1 was amended as authorized by that resolution, it read:
“ ‘The right to lay a single track or wye as the said railway company may elect, in State street, a public street in said village, to connect with the track now laid in said street, and extend the same in a northerly direction across State street to, and upon lot 2, block 10, Bryant’s addition to the village of Spring Lake.’
“But the common council, when it authorized section 1 to be so amended, did, without doubt, make a mistake in leaving out the word ‘along’ in the expression, ‘to, along and upon lot 2, block 10, Bryant’s addition to the village of Spring Lake.’ The only authority there was to amend section 1 was to give the defendant a right ‘across State street, to, along and upon lot 2, block 10, Bryant’s addition to the village of Spring Lake.’ The amendment of the franchise cannot be any greater in effect or force than the resolution which authorized its amendment.
“The testimony shows that it was understood that only the west leg of that wye should be put in, and that was to be put in along and upon lot 2. In our judgment the most that can be claimed for the resolution and the amended section of the franchise is that both are but a part of a single and entire scheme. The scheme was to allow the Interurban to lay it along and upon lot 2 as expressly provided in the resolution authorizing the amendment of section 1. It is true that section 1 was amended at that time, and probably, as said before, by a clerical error the word "along’ was left out.”

We are of opinion that complainant’s position is untenable. A “wye” is a term which necessarily means a track with two legs, one joining the main track from one direction, and the other joining the main track from another direction. The authority granted by the ordinance was “to lay a single track or wye,” thus clearly indicating that the council distinguished one from the other, and empowered the company to select either method of construction it might desire.

The record clearly discloses that in constructing the wye as proposed by defendant company, no portion of the track to be laid encroaches upon the lot of the complainant, or upon that portion of the street lying between the front of his lot and the curb line. At its nearest point the track would be about 18 inches distant from the end of the curb in front of complainant’s lot. As cars pass round the proposed track, however, the overhang of the cars would bring them in contact with the shade tree, which complainant has placed in the street in front of his lot near the curb. To permit construction in the manner proposed, it will necessitate the removal of this tree. Defendant offered to transplant said tree, or plant another of a like character where complainant desired, or to purchase from complainant 10 feet off the west side of his lot. All of these propositions were declined by complainant, and he insisted and insists that he has an absolute right to prevent the construction of the wye in the manner proposed. We think his position is entirely untenable. It has been held in this court that, where an abutting property owner plants trees in the street he does so with the understanding that they can remain there only so long as the space used is not required for public use. Miller v. Railway, 125 Mich. 171 (84 N. W. 49, 51 L. R. A. 955, 84 Am. St. Rep. 569), and cases there cited.

In Mannel v. Railway, 139 Mich. 106 (102 N. W. 633), it was said:

“This court has held repeatedly that the use of the streets of a city for street railway purposes was not an additional servitude, and that the grant of a right to construct and operate a street railway, with all necessary poles, wires, side tracks, etc., along the public streets, was within the powers of the municipality granted by the legislature, and that the location and construction of the road and changes relative thereto within the limits of a city were subject to the control and approval of the municipal authority, provided that the railroad so constructed and operated would not be a public nuisance, or for any special reason require the interference of a court. Detroit City Ry. v. Mills, 85 Mich. 634 (48 N. W. 1007); People v. Railway Co., 92 Mich. 522 (52 N. W. 1010) 16 L. R. A. 752.”

The decree of the court below is affirmed, with costs.

Person, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Bird, J.

text:
    CLARK v. CLARK.
    Master and Servant — Workmen’s Compensation — Course op Employment — Personal Injuries.
    Claimant, a carpenter foreman, in the employ of his brother, participated in an altercation with certain teamsters who attempted to deliver some brick on the premises; the brother, who owned the property where the brick was unloaded, having' directed claimant to prevent the delivery of brick there. Next day the trespasser returned with reinforcements and began another quarrel with the owner who prevailed over his opponent, but claimant was injured by a missile thrown by the attacking party while he was endeavoring to prevent interference on the part of the others with the controversy going on between the brother and his assailant. He volunteered the service he was trying to render. Held, that the injury was not received in the course of his employment so as to entitle claimant to compensation under Act No. 10, Extra Session 1912.
    Certiorari to the Industrial Accident Board.
    Submitted October 27, 1915.
    (Docket No. 173.)
    Decided December 22, 1915.
    Willis M. Clark presented his claim for compensation for injuries received in the employ of David S. Clark. From an award rendered said respondent and the Union Casualty Insurance Company bring certiorari.
    Reversed.

      Walters & Hicks, for appellants.

      Frederick J. Ward, for appellee.
   Bird, J.

Claimant was a carpenter foreman in the employ of his brother, David Clark, who was erecting a dwelling on Churchill avenue, in the city of Detroit. David also owned the adjoining lot upon which he intended to erect a dwelling, and had let the contract to excavate for the cellar. Claimant received instructions from him to permit no building materials for other dwellings being erected in the vicinity, to be deposited on the adjoining lot. On March 23d two men with a wagon load of bricks drove onto the adjoining lot and began unloading them. Claimant advised them that the bricks were not for his employer, and warned them to desist. They refused- to obey the instructions, and then a fight ensued, in which claimant got the better of it. The following day the teamster returned with a reserve force, with the evident purpose of “getting even.” Some intemperate language passed between them and claimant, who was at work on the rear porch. David overheard the talk in the basement, and came out and ordered them away. They refused to go, and he engaged in a fight with them. Claimant, thinking that his brother David needed help, went to his aid and kept back some of the reserve force, but did not himself engage in the fight. While so engaged, one of the assailants threw an iron missile and struck claimant in the eye, thereby permanently destroying the sight. Compensation was demanded by him under Act No. 10, Extra Session 1912. The insurance company refused to respond, and he thereupon made an application to the Industrial Accident Board. The claim took the usual course before the board, and resulted in allowance being made of $10 per week for 100 weeks. Respondents have brought the proceedings here for review, with the claim that the award should be set aside on the ground that the injury did not arise out of and in the course of claimant’s employment within the meaning of said act.

The theory upon which claimant seeks to bring his claim under the statute, is that he received the injury while protecting his master’s property against trespassers. Testifying as to his duties claimant said:

“I was in fact over all of the excavating, and from then on up until the work was finished, representing my brother when he wasn’t there and when he was there.”

Conceding claimant’s authority and duty as are stated, he fails to make a satisfactory connection between them and his acts at the time he received the injury. Had he received the injury on the previous day while he was endeavoring to protect his master’s property against trespassers, the connection would be obvious. That incident happened the previous day, and appeared to be a closed incident except for the ill feeling which it engendered. The following day the same parties reappeared, not for a like purpose as on the previous day, but evidently for the purpose of getting revenge, although they claimed to be in search of a lost work ticket. They assailed claimant with words only, but their attitude toward him was threatening. David overheard it and came out of the basement and took- charge of the controversy himself. After he had •engaged in the fight and appeared to be succeeding, •claimant, who had been an observer, came unsolicited to his brother’s aid by keeping off the reserve force, and while doing so was hit with a flying missile and injured. It may have been commendable in him to volunteer to assist" his brother against such great odds, but that does not satisfactorily answer the question what connection his acts had with his employment. He was not called upon to protect his master’s property, as on the previous day. He was not asked to assist his master in the fight on the second day. His action was purely a voluntary one, and it seems to us no different than as though he had discovered the same men fighting with his brother a week afterward ten blocks away, or as though claimant had observed a fight going on across the street and had gone there to get a better view, and while there had been hit by a flying missile and injured. Had claimant remained at his work he would not have been injured. His presence at the place of fighting was in pursuance of no demand of his employment. Neither was it in aid of any material interest of his master. His presence there and the assistance which he rendered was solely in the interest of his master’s personal safety. An injury received under such circumstances cannot be said, under a fair construction of the act, to have, arisen out of and in the course of his employment. See Collins v. Collins, 2 Ir. R. (1907) 104; Mitchinson v. Day Bros., 6 B. W. C. C. 190.

But claimant says he was in charge of his brother’s work while he was away, and also while he was present. If his brother David were present and did not assume to act, claimant probably had the authority to act, but when the master was present, and took personal charge of the matter himself, it necessarily excludes the idea of claimant’s having charge of it.

The finding of the Industrial Accident Board must be reversed, and the award set aside.

Brooke, C. J., and Person, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


text:
    DEEM v. KALAMAZOO PAPER CO.
    Master and Servant — Industrial Accident Board — Workmen’s Compensation — Evidence—Question oe Pact.
    Where evidence, in a -workmen’s compensation case, had a tendency to show that decedent suffered a severe fall and injury to his head, and later fell a second time and was killed, and the medical testimony was in conflict as to whether the death resulted from concussion of the brain caused by his prior injury, or from heart trouble, from which it was claimed he had previously suffered, the finding and award of the Industrial Accident Board rested on an issue of fact and should be affirmed.
    Certiorari to the Industrial Accident Board.
    Submitted October 21, 1915.
    (Docket No. 160.)
    Decided December 22, 1915.
    Lizzie G. Deem presented her claim for compensation for the death of her husband while employed by the Kalamazoo Paper Company. From the award entered the respondent brings certiorari.
    Affirmed.

      Alfred J. Mills, for appellant.

      Charles H. Farrell, for appellee.
   Bird, J.

William W. Deem, husband of claimant, had been employed by the Kalamazoo Paper Company for nearly 20 years prior to his death. During that time he had been in reasonably good health, and had lost very little time. For several years prior to his death he had acted in the capacity of “beater” engineer. On the morning of June 29, 1914, he was engaged in renewing the screen on one of the “beater” cylinders. To accomplish this he stood on a plank placed across the top of the “beater” tub. The plank extended about 18 inches beyond the edge of the tub. During the temporary absence of his helper he slipped or made a misstep on the wet plank and fell to the cement floor, striking on his head and right shoulder. He was picked up in an unconscious condition .by the superintendent, but he regained consciousness soon after, and complained of being dizzy and of a pain in his right shoulder. Plis face was red and he tried to vomit. Later he was assisted to a street car which carried him to his home. The family physician was called, and found him with a badly bruised head and shoulder. These were cared for by the doctor, and his recovery was rapid enough, so that on July 6th he returned to his work, and continued to.work until his death. On the morning of July 16th he was seen to fall through the' doorway leading from the “beater" room into the engine room. The engineer saw him, and went at once to his assistance, but found upon reaching him that he was dead.

A claim for compensation was filed with the Industrial Accident Board by his widow, alleging that deceased came to his death as a result of injuries received in a fall on June 29th. The matter received the attention of a board of arbitration, and she was given the statutory allowance of $3,000. An appeal to and re-argument before the Industrial Accident Board resulted in an affirmance of the award. The claimant contended before the arbitration board that the deceased came to his death on July 16th as a result of concussion of the brain caused by his fall on June 29th. The claim was contested on the ground that death was caused by heart disease which had no connection with his injury, and, further, that the proofs left it to conjecture as to the cause of death.

It is obvious that the injury arose out of and in the course of deceased’s employment, and, if his death was traceable to this injury, the award should be affirmed. To establish the fact that it was so traceable, claimant offered the testimony of Dr. Henwood, the family physician, who testified in part as follows:

“His death would be possible as the result of the blow he received on the 29th of June. From what I know of his condition, his physical condition on that morning when I examined him, I don’t think there was anything else, as far as I know, that would probably cause that at that time. There was no organic trouble of any kind, to my knowledge. Assuming there may have been, it would be possible for it to have been accelerated by that injury, and death may have been hastened as a result of that injury.”

He also testified that-as a result of his examination and treatment it was his opinion that it was probable he died from the results of the blow, and that a period of two weeks was not an unusual time in which a concussion of the brain might produce its results.

Dr. Paul Butler, in answer to the hypothetical question as to the cause of death, answered that:

“Assuming for the purpose of this case that the facts are that he suffered from sleeplessness, loss of appetite, dizzy spells, I would say that he was suffering from concussion of the brain due to the original blow or injury of June 29th, or due to ah injury, anyway.”

And later this.' witness gave it as his opinion that death resulted from concussion caused by the injury.

Dr. Rush McNair, a witness for the respondent, admitted that from the description given by Dr. Hen-wood he “would judge there was some concussion.”

As opposed to this, there was testimony which tended to show that the deceased had been troubled about three years prior to his death with a cardiac disturbance, and testimony was offered and received from which an inference might have been drawn that the deceased came to his death from that cause. The testimony of claimant, however, brought the question as to the cause of death into the domain of fact, and, as the Industrial Accident Board has passed upon the question of fact, and found that her claim was established, there is nothing left for us to do but to affirm the award.

Brooke, C. J., and Person, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


author: Moore, J.

text:
    COLLINS v. COLLINS.
    Divorce — Extreme Cruelty — Alimony.

      Helé, in a suit for divorce, that the complainant’s testimony showing cruelty of her husband sustained the granting of a divorce, and that an award of alimony of $4,000 worth of realty, out of property worth $11,000, and $800 cash, with a solicitor’s fee of $150, was not excessive.
    Appeal from Van Burén; Des Voignes, J.
    Submitted October 19, 1915.
    (Docket No. 161.)
    Decided December 22, 1915.
    Bill by Jennie Collins against William H. Collins for divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      James E. Chandler, for complainant.

      W. J. Barnard, for defendant.
   Moore, J.

From a decree of divorce with alimony in favor of the complainant, an appeal is taken to this court by the defendant. Defendant claims:

(1) There was no ground for divorce; and (2) that, if there was, the amount of alimony is excessive.

In his oral opinion the trial judge described the condition of the plaintiff as follows:

“She is now an invalid. She is afflicted with a rheumatic trouble wherein her arms are crippled. Her limbs or lower extremities are drawn back. She cannot raise her body on her feet. ‘ She is brought in this courtroom in a wheel chair, an invalid’s chair; and that has not been done for effect. Any one looking at her hands can see their shriveled condition and all that. Outside of that she is a woman in apparently fair health.”

The parties were married in October, 1874, and. lived together until September, 1912, when complainant says she was afraid to live with defendant any longer. The complainant bore to the defendant nine children, eight of whom were living at the time of the trial. At the time of the marriage neither of them had any property. They began married life in one room. The defendant had employment in a rolling mill. Later they moved to South' Chicago, where defendant was employed in the steel mills until 1909 or 1910. In 1911 he began to draw a pension of $81.25 a month from the steel company which it is expected will continue during life. In 1910 defendant bought 8 acres of land on the shore of a lake in Van Burén county, and built a house on it, at a cost of $3,500, which has been used as a home and a summer resort. Later 40 acres in the same township was bought at a cost of $1,000. The parties were hard-working, frugal people, and seem to have prospered financially and to get along very well together until after they moved to Van Burén county, although before that it is claimed defendant sometimes drank too heavily. Nearly ten years ago the plaintiff became an invalid, and was obliged to be lifted up and down and got about in a wheel chair. It is her claim that after they came to Van Burén county defendant tired of her and became enamored of one Jennie McDonald, and that his relations with her had become the subject of common talk. She testified in part as follows:

“I heard he was making visits to Mrs. McDonald. He was there pretty nearly all of the time they told me. I went to Chicago. I was sick the winter before, and went to Chicago to doctor, and while I was gone to Chicago she stayed in my house, her and her two children, with him, and her horse and cow was there. Mrs. McDonald stayed at my house; yes, sir. I know it because my daughter was there who was only a little over 17 at that time. * * *
“Q. During the time that you were living at Grand Junction on the place did your daughter Marie ever tell you anything that she had observed between your husband and Mrs. McDonald?
“A. Yes; she did tell me. I discussed the matter with my husband. Just before I left I told him about it. He had her in South Chicago for a week, too, across the lake. At the time I talked this matter over with my husband there was present of my children Stella and my son James and my husband. He was going to murder us, shoot us. I told him what he had been doing, and he had been with her all the time. And he wanted to know if I had proof of it, and I told him I did. I told him about being in the city with her, and he wanted me to name one, and I told him what Marie said. ‘Your own daughter had seen things/ And he said, ‘Well, she did, did she?’ ‘Why/ I says, ‘You have got to leave Mrs. McDonald alone and keep away from her, or I can’t live with you/ He says he will ‘leave both of us/ he says; ‘but/ he says, ‘before I go, I will shoot the top of the head of John, the top of John’s head off/ He has threatened me time and again, too. On the occasion of those threats he said he would get rid of us. He said he would come Bob on us; that is his brother. And his brother shot his wife and shot himself in Detroit. My husband had a shotgun — no revolver. The next day he went and got a revolver. * * * After he got in thick with her he went upstairs to sleep, and he would make out he was going to bed, and I would see Mm take his hat and coat and shoes after he took them off in the dining room and carry them in the front hall and leave them there, and get up and go out, because we have got up and seen him he wasn’t in bed. That happened quite a few times. * * * His threats of violence towards me and other members of the family caused me to leave in dread and fear. I was always afraid of him since we come to the country here. Since he got in with her I was always afraid of him. I left the 7th of September, 1912. The next year I come back to Grand Junction and lived there during the summer; kept boarders.
“Q. Where was your husband at that time?
“A. Well, I heard he was down South; and she was with him, I heard.
“Mr. Barnard: I object to that, about her being with him down South.
“Q. Was she there about Grand Junction?
“A. No; she was gone the biggest part of the time. * * * I have been a wife to him right along. He didn’t have to go, notwithstanding my ailment. Mrs. McDonald went to my house, and her daughter, and he pulled out a roll of money, and was counting it out, you know, and he stuck that under my nose and says, ‘Smell that; that is your share of it.’ And it was my share, too. They were getting all of his money. That was in the spring before I left in 1912. It was after getting his pension and getting the interest, you know, and he had all that money together, and he was showing what he had, and he rolled it up and stuck it under my nose and said, ‘Smell that; that is your share of it.’ John and Stella was there, Mrs. McDonald and her daughter.”

She also testified to other threats.

One of his daughters testified in part:

“I heard my father say his brother Bob could use the gun, and he could, too. He would clean out the bunch of us. Robert was the man who killed his wife and himself in Detroit. By that I understood my father was going to shoot up the crowd there. At that time Stella, my sister, Jim and I and mother and a few resorters were there. That was the fall that mother left. I never had heard him make any threats before that. The day we left he went to Kalamazoo. The day that we were afraid of him he said he was going to get what he called heavy artillery, and mother was afraid, so that is the day we left. The night before we left he was up all night and searched around, and didn’t go to bed at all. I heard him say he was going to get rid of three or four. My mother was talking with him about his intimacy with Mrs. McDonald, and told him about what Marie had seen; that Marie had reported that she had seen him coming out of the barn together. Ma told Daddy that the night before she left, and he says: ‘You should not believe what a child says; you have got the child scared into saying that.’ That is the time he made threats and kicked the' chairs around. My sister Stella, my brother James, and some resorters were there at that time. John took mother away at that time, and the rest of us all went. We took her away because of the threats that had been made there and what had happened, because we were afraid to leave her there. She wanted to go. She said she was afraid.”

A grandson testified, in substance, that while he was at work in South Haven he saw the defendant come off the Chicago boat.

“I saw Mr. Collins and Mrs. McDonald go from the boat dock towards the Michigan. Central depot, and Mr. Collins was carrying two grips.”

A daughter testified:

“In August, 1912, I remember my father being in Chicago about a week. He said he was going to Chicago. Mother asked him. He said he was going for a good time. I heard afterwards from Harvey Collins that my father and-Mrs. McDonald had been seen together on the streets of South Haven, and that was the time of his return from his week’s absence. Yes.”

A daughter testified:

“I lived with my father and mother at Grand Junction. I know my father used to stop at Mrs. McDonald’s quite often, and when he took us to town he would go and buy groceries to the store and take them in to her, and I never saw him take any change from her there.”

Another witness testified he had seen defendant at the McDonald premises several times, and that defendant paid him for chickens which by the order of defendant he delivered to Mrs. McDonald.

Another witness testified that after Mrs. Collins went away he saw Mrs. McDonald and defendant' go towards the Collins place four or five times, that they would be gone a half hour or longer, and that he had seen defendant at Mrs. McDonald’s place a number of times.

A paper was produced in the handwriting of defendant addressed to his brother, in which, after making reference to his family troubles, the following occurred :

“Now, I have not written this to cover up any of my shortcomings, but will say that my Creator has given me passion that may have led me along paths I should not go, but, if I did not have an invalid wife, I might not have wandered away along strange paths.”

At the close of the testimony offered on the part of complainant counsel for defendant said: “I don’t care to introduce any defense.”

When the judge was delivering an oral opinion indicating what he intended to do, counsel said:

“I want it to appear on this record now that the answer denies any stock in the United States Steel Corporation, and we offered, if the court thought we owned any stock, to make a decree giving her part of it, and that we also offered to have all the property sold and equally divided.”

We think the court was justified in granting a decree of divorce. Briggs v. Briggs, 20 Mich. 34; Palmer v. Palmer, 45 Mich. 150 (7 N. W. 760, 40 Am. Rep. 461); Nicholas v. Nicholas, 50 Mich. 162 (15 N. W. 64); Hoyt v. Hoyt, 56 Mich. 50 (22 N. W. 105); Bailey v. Bailey, 121 Mich. 236 (80 N. W. 32).

We now come to a more troublesome branch of the case, and that is the question of alimony. We have already shown the physical condition of the complainant and that defendant is assured a monthly pension of $81.25, presumably during life. The bill of complaint charges that defendant owns the Saddle Lake property, worth, with the buildings upon it, $4,000, and 40 acres of land worth $1,000, two lots on Avenue L, Chicago, worth $4,000, and three lots on Ewing avenue worth $3,000, and $4,000 of stock of the Illinois Steel Company. The answer avers he has turned over two lots to complainant worth $3,000, admits the property on Avenue L is worth $3,000, and admits the Van Burén county real estate is worth $4,000. He denies he owns any steel stock. This denial is not under oath.

The complainant testified- that defendant had not turned over to her any real estate, and that she wanted the Van Burén county property as a home, and also because, with the assistance of her son, she could earn with it a living. She also testified to the ownership of the steel stock by defendant, and that as late as in 1912 she knew of the defendant drawing dividends on the steel company stock.

In September, 1910, the South Chicago Savings Bank wrote defendant acknowledging the payment of a $2,-000 note, the letter closing:

“We hold collateral consisting of 35 shares United States Steel Corporation Pfd. stock subject to your order.”

. November 8, 1911, defendant made another loan at the same bank, and pledged 35 shares United States Steel Company’s, stock as collateral, and this note was paid February 5, 1912. While defendant made in his unsworn answer a denial of owning this stock, he did not come into court and tell the judge when and for what price he sold it.

Under all the circumstances shown by this record we think we will not disturb the decree awarding the complainant the Van Burén county property, including the equipment of the summer resort property, alimony in the sum of $800, and a solicitor’s fee of $150.

It is affirmed, with costs.

Brooke, C. J., and Person, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.


author: Per Curiam.

text:
    KEARNEY v. BOARD OF STATE AUDITORS. HORTON v. SAME.
    1. Public Officers, — Constitutional Law — Increase of Salary— Term of Office — State Tax Commission.
    Act No. 331, Pub. Acts 1913, requiring the State tax commission to devote their entire time to the duties of their respective offices, and increasing the salary of each commissioner from $2,500 to $3,500 per annum, adds no new duties to the official obligations theretofore existing, and, even if it did, could not lawfully provide for additional compensation in violation of Art. xvi, § 3, of the State Constitution.
    2. ' Constitutional Law — State Tax Commission.
    Under the constitutional prohibition against increasing salaries of public officers after election or appointment, interpreted in the light of the Constitution of 1850 and the debates in the constitutional convention, which indicate the intention to re-enact a clause contained in the former Constitution without substantial modification, the salaries of the State tax commissioners could not be increased during the term of office for which they were elected, and the provision could not be evaded by their resigning and securing a new appointment to the commission during the period for which the appointments were originally made. The office of tax commissioner has a fixed term of six years, to which this constitutional measure was intended to be applicable.
    Mandamus by Thomas D. Kearney and by George B. Horton against the Board of State Auditors to compel respondents to audit payrolls of relators in accordance with an act increasing their salaries.
    Submitted October 28, 1915.
    (Calendar Nos. 26,841, 26,842.)
    Writs denied December 22, 1915.

      Shields & Silsbee, for relators.

      Grant Fellows, Attorney General, and L. W. Carr and Clare Retan, Assistant Attorneys General, for respondent.
   Per Curiam.

Relators in the above-entitled eases are members of the State tax commission of Michigan by gubernatorial appointment. The office is appointive, with a full term of six years. Each first became a member of the commission by appointment for a full term. Relator Horton was appointed and entered upon the duties of his office January, 1911, and relator Kearney two years later. Except as hereafter stated, they have been continuously members of said commission ever since. Their respective terms will expire in January, 1917, and January, 1919. When each entered upon the duties of his office, his salary, as fixed by statute, was $2,500 per annum. Other than the dates of their first appointments, the facts and questions of law involved are substantially alike in both cases, which are briefed and submitted together.

In 1913 the legislature passed an act (Act No. 331, Pub. Acts 1913) entitled:

“An act to fix the salary and provide for the expenses of the board of State tax commissioners.”

The material part of said act is as follows:

“Section 1. Hereafter the members of the board of State tax commissioners shall each receive an annual salary of three thousand five hundred dollars, which shall be paid out of the general fund in the State treasury. The members of said board shall also receive all expenses actually and necessarily incurred in the performance of official duties, all of which shall be audited and allowed by the board of State auditors and paid from said general fund: Provided, however, that the members of said board shall devote their entire time to the duties of their respective offices.”

While it may imply more time than formerly should be devoted to those which exist, this act adds no new duties; and, if it did, extra compensation cannot be provided for additional duties within the scope of and germane to the office without violating a constitutional provision forbidding increase in salary after election or appointment, or during the then term of office. Moore v. Nation, 80 Kan. 672 (103 Pac. 107, 23 L. R. A. [N. S.] 1115, 18 Am. & Eng. Ann. Cas. 397); United States v. King, 147 U. S. 676 (13 Sup. Ct. 439); Evans v. City of Trenton, 24 N. J. Law, 764.

Until April, 1915, relators continued to draw their salaries at the rate of $2,500 per annum. On April 27, 1915, both presented their resignations to the governor, which were accepted upon the day they- were presented. On the following day, April 28th, both relators were reappointed to the same respective terms and offices from which they had resigned. Their appointments were thereafter confirmed by the State senate, and commissions were at once issued to them under their reappointments. Relator Kearney again took and filed the constitutional oath of office on April 29 and relator Horton on April 30, 1915. Both thereafter claimed that during the balance of the terms to which they were originally appointed, and reappointed to fill vacancies created by their resignations, they were entitled to the annual salary of $3,500, as provided by said Act No. 331, Pub. Acts 1913. Having asked and received from the attorney general an opinion unfavorable to this claim, the State board of auditors declined to audit and allow relators’ salaries at the increased rate, taking the position that they were not entitled to the benefit of such increase until the expiration of the terms for which they were originally appointed, -for the reason that section 3, art. 16, of the State Constitution of 1909 prohibits increasing salaries of public officers after their election or appointment. The board did, however, audit the salaries of relators at the rate of $2,500 per annum, as before. After due demand and refusal, these petitions for mandamus were filed to compel the State board of auditors to audit and allow relators’ salaries at the rate of $8,500 per annum after the dates they qualified under reappointment, according to the pay roll of said commission as prepared and presented. Orders to show cause were granted and answers filed properly putting the question involved at issue.

It is conceded that members of the board of State tax commissioners are public officers, within the meaning of the Constitution, and, had relators continued in office under their original appointments for the terms they are now filling, the constitutional prohibition would preclude their receiving an increase of salary. It is urged, however, that when they resigned and their resignations were accepted, their tenure ended, and there was an absolute vacancy in the office, which the governor could fill by the appointment of any incumbent he chose; that, when he saw fit to appoint them, and they accepted, they began a new tenure of office as independent of and distinct from their former tenure as though other persons had been appointed, entirely free from the constitutional restriction urged by respondent. The ground for this contention is the less lucid phraseology of the prohibition in our present Constitution than that found in the preceding one, or generally in the legislation and Constitutions of other States restricting changes in salaries of incumbents of office. Section 3, art. 16, of the Constitution of 1909, so far as material, provides:

“Salaries of public officers, except circuit judges, shall not be increased nor shall the salary of any public officer be decreased after election or appointment.”

The prohibition in our former Constitution of 1850 (Schedule, § 20) is as follows:

“And it shall not be lawful hereafter for the legislature to increase or diminish the compensation of any officer during the term for which he is elected or appointed.”

Restrictive provisions of this nature are very common in the Constitutions, and legislation of the several States and the general attitude of the courts sustaining them as obviously wise and beneficial restraints which may not be evaded by any subterfuge has become text-book law based upon abundant decisions. Mechem on Public Officers, § 858; Throop on Public Officers, § 465; 29 Cyc. pp. 1427, 1428. The prevalent form of such restrictions prohibits change of compensation during the term for which the officer was elected or appointed or, in some cases yet more specific, after election or appointment and during the term for which the incumbent is elected or appointed.

It is pointed out that the restrictive clause in our present Constitution makes no mention of any term, and that the omission to adopt familiar phraseology, including the term, which has frequently been construed by various courts, permits the course pursued in this case, and by fair construction indicates an intent to apply the restriction only to an incumbent while he continued in office under a particular election or appointment, regardless of any term for which he was elected or appointed; it being said:

“It is therefore very evident that the constitutional convention made a distinct change in the phraseology, and necessarily must have intended to make a distinct change in the provision.”

It is evident that the phraseology in the present Constitution is changed from the well-seasoned and often construed wording of our former Constitution, harmonizing with that most commonly found in other constitutional provisions or legislation upon this subject, and it may be conceded that the change has rendered the provision, unaided by context, less complete and more obscure in substituting “after election or appointment” for “during the term for which he is elected or appointed.” While the occasion for this change in wording is not readily apparent, neither is it apparent from the language used, construed in the light of the éontext and convention debates, that there was any intention to limit the scope of the former inhibition, except as to circuit judges. No one would accept strict construction and the literal meaning of this provision, if it has a meaning standing alone and exactly as it reads. If, as it reads, the salary of any public officer cannot be increased or decreased “after election or appointment,” then by it, at the time of their first appointment, the status of relators was fixed in that particular for life, or so long as and whenever they might hold that office.

It is a maxim that the object of construction, as applied to a written Constitution, is to ultimately ascertain and give effect to the intent of the people in adopting it. The language here used calls for implications, being neither sufficiently precise nor complete in itself to make plain the intent without them. Implied constitutional restraints upon the legislative power are sometimes ascertained to be as manifest and effectual as those directly expressed in the language employed. Rathbone v. Wirth, 150 N. Y. 459 (45 N. E. 15, 34 L. R. A. 408). Resort may therefore be had not only to the indicated object sought to be accomplished and the mischief to be guarded against, which has been too often and abundantly reviewed by courts of last resort to need discussion here, but it is also permissible to examine the proceedings of the convention which framed the Constitution. The convention debates disclose that the member who introduced the clause made reference to, and manifestly was moved by, the prohibition in the Constitution of 1850, expressing himself as advocating some provision of like kind in the organic law “to prevent that tampering with salaries,” referring in subsequent remarks upon the subject to increasing or decreasing salaries of officers during their terms. The only matter relating to this clause discussed at any length was a proposed exception from its provisions in favor of circuit judges, there being a diversity of opinion upon that question which delayed its passage. Otherwise we find no suggestion of opposition to the clause or manifestation of an inclination to modify the restrictions of the former provision which it was to succeed. That such was the understanding of its meaning and intention of those who framed the Constitution is confirmed by their official address to the people of the State upon the subject. The act under which the constitutional convention was convened required that before adjournment it should prepare and adopt an address to the people of the State “explaining the proposed changes in the present Constitution, and the reasons for such changes, and such other matters as to the convention shall seem advisable.” A committee “On Submission and Address to the People” prepared and submitted the required address to the convention, which approved and adopted it. Of section 3, art. 16, the address to the people says:

“This revises section 21 of article 4 and section 20 of the Schedule of the present Constitution making no material change, except as indicated by the words in italics.”

In the clause under consideration here the only words in italics are “except circuit judges.” Convention Debates, vol. 2, p. 1441.

While the Constitution derives its force from the people who ratify it, rather than from the convention which framed it, it is fairly inferable under such circumstances that this clause was accepted by the electors with the understanding and intent that the inhibition of the former Constitution should be and is retained in substance and with the same meaning, except as to circuit judges.

An attribute of the office to which relators were appointed is a fixed term. The statute creating the office gives appointees a vested right as incumbents for a stated period, and provides that, when appointed and qualified, they “shall hold office six years,” and until successors are appointed and qualify. Relators were first appointed for the full term in which they are yet serving, and, after their resignations, were at once reappointed for the “unexpired term” of the period of time included in their earlier appointment. While the word “term” applies to the office, rather than the person holding it, after his election or appointment the right of tenure for the term attaches to him, and in common thought and parlance the office and term together become an attribute of and characterise the incumbent during the time for which he is entitled to the office. To hold that he may acquire added rights by simply withdrawing from and again resuming his incumbency for that term, through whatever agency, is subversive of the spirit, if not the letter, of this constitutional provision and contrary to the fundamental principles of public policy underlying constitutional and statutory restrictions of this character.

In construing constitutional provisions where the meaning may be questioned, the court should have regard to the circumstances leading to their adoption and the purpose sought to be accomplished. With due regard to the generally recognized purpose of such provision, and in view of the circumstances attending its framing and adoption, we think it can fairly be interpreted as indicating an intent on the part of those adopting the new Constitution to make “no material change” in restrictions from the provisions contained in the old, except as to circuit judges; that the intent and purpose sought to be accomplished were the same as the old indicated and provided for, and the clause reasonably may and should be so construed. If so, the incumbent, after his appointment to an office with a fixed term, cannot evade its provisions by resigning and being again appointed for the remainder of such term, thus accomplishing by indirection what cannot be done directly and what it was intended by the prohibition to prevent. Greene v. Freeholders of Hudson County, 44 N. J. Law, 388.

In support of the contention that our Constitution, as now worded, permits a change of salary whenever a new appointment is made, though the same incumbent is appointed, Smith v. City of Waterbury, 54 Conn. 174 (7 Atl. 17), is cited, and attention is directed to the constitution of that State (Const. Amend, art. 24), which prohibits extra compensation or increased pay to any public officer “to take effect during the continuance in office of any person whose salary might be increased thereby.” In the case cited the salary of a city attorney was involved, and the statute was silent as to his term of office, but the judge by whom he was appointed held his office for two years, and, in making the appointment, fixed the term of the city attorney for two years, at the expiration of which period a new appointment was made.’ The court adopted the view that the appointee, when so appointed, would hold office for at least the same time as the judge who appointed him, and that “his term of office was practically the same.” Thus viewing the nature of his tenure, the court held that a city attorney who, “in fact, under such an appointment, had held his office for two years,” and when that term expired was again appointed for two years, held by virtue of his last appointment, and thereafter was entitled to an increase of salary previously provided. That proposition is not, as we construe the decision, open to dispute or in point here. The court held the incumbent’s term was, in fact, under the circumstances shown, for two years, and when reappointed at the end of that time for two years more he entered upon a new term holding “under that appointment, and not under the appointment previously made,” the limit of which was past. Were he claiming increased compensation for the unexpired balance of a two-year term, on the strength of having resigned and been immediately reappointed, the case would nearer quadrate with this, and it is possible to infer from the views expressed by that court in Garvie v. Hartford, 54 Conn. 440 (7 Atl. 723), that under such a state of facts a different result might have been reached.

The constitution of Pennsylvania contains a restrictive clause that “no law shall extend the term of any public officer, or increase or diminish his salary or emoluments after his election or appointment,” being identical with the present Michigan provision in the particular upon which relators rely — not in express, words prohibiting change during the term for which the officer was elected or appointed. In Guldin v. Schuylkill County, 149 Pa. 210 (24 Atl. 171), an act of the legislature changing the compensation of county coroners was before the court. The coroner’s term of office was two years. It was held that the constitutional provision above quoted protected the coroner after his election from reduction of his emoluments by law during the term for which he had been elected. Conversely, by the same construction, the State is entitled to the same protection against increasing his emoluments.

We are well satisfied that by fair implication and manifest intent of those who framed and adopted the constitutional provision under consideration, it comprehends in application both officer and term, considered together, where the term is fixed by law, and after his election or appointment for a specified term his relation to that term, in the matter of compensation while an incumbent, cannot be evaded by resignation and reappointment.

The writs of mandamus applied for in these cases are therefore denied.


text:
    KENNEDY v. VAN BUREN COUNTY DRAIN COMMISSIONER.
    1. Drains — Necessity—Duties op Township Clerk — Deputy.
    The office of deputy clerk of a township is one authorized by the statute, and unless his powers are limited by the statute he may perform any act which his principal may perform. And, hence, in a suit to enjoin the deepening and widening of a drain and preserve the level of an inland lake, the determination of the deputy clerk, acting with the justices of the peace as town board, that the drain was a necessary public improvement, was lawful and sufficient, as he was the representative of the township clerk.
    2. Same — Inland Lakes — Necessity for Improvement.
    Under Act No. 202, Pub. Acts 1911, the drain commissioner is not without authority to perform his duties and to deepen and widen a public drain because it would affect the level of an inland lake, the statute containing no provision against the lowering of such waters and the provisions thereof being optional rather than mandatory.
    Appeal from Van Burén; Des Voignes, J.
    Submitted April 24, 1914.
    (Docket No. 122.)
    Decided January 3, 1916.
    Bill by Ellis Kennedy and others against George Mutchler, drain commissioner of Van Burén county, and others, for an injunction and other relief. From a decree dismissing the bill of complaint, complainants appeal.
    Affirmed.

      Thos. J. Cavanaugh, for complainants.

      Earl L. Burhans, Prosecuting Attorney, and Lynn J. Lewis, Assistant Prosecuting Attorney (Glenn E. Warner, of counsel), for defendants.
   Bird, J.

The bill in this case was filed to restrain the drain commissioner of Van Burén county from acting favorably on a petition to clean out, deepen, widen, straighten, and extend School Section Lake drain. It is asserted that if the work contemplated under this petition were carried to completion it would lower the normal water level in School Section Lake two feet and ten inches. Complainants are owners of lands adjoining the lake, and therein lies the reason for their opposition to the proceedings.

The points raised against the proceedings by complainants question the jurisdiction of the drain commissioner on two grounds:

1. The petition was filed with the drain commissioner and was afterwards, in accordance with Act No. 185, Pub. Acts 1911, referred to the township board to determine the necessity for the improvement. At the meeting of the board which considered the matter, there were present two justices of the peace and the deputy township clerk. It was decided that the improvement was necessary. The claim is made that the deputy clerk could not legally act for his principal in passing upon this matter, because it was in its nature a judicial proceeding; that when the law designates the clerk to act in such a capacity, it means the clerk, and not the deputy clerk.

The office of deputy clerk is one authorized by the statute (1 Comp. Laws, § 2342), and unless his powers are limited by the statute, he may perform any act which his principal may perform. Dorr v. Clerk, 7 Mich. 310; Andres v. Circuit Judge, 77 Mich. 85 (43 N. W. 857, 6 L. R. A. 238); Tower v. Welker, 93 Mich. 332 (53 N. W. 527); Yale State Bank v. Fletcher, 173 Mich. 585 (139 N. W. 1028). It was doubtless well understood by the legislature that the township clerk could not always be at his office to serve the public in his official capacity, and by reason thereof, he was authorized to appoint a deputy clerk to act in his stead in order to expedite public business, with no limitations on his powers to represent his principal. In view of this we must hold that the deputy clerk was qualified to sit as a member of the township board to consider and pass upon the application in question.

The case of Dubois v. Riley Township Board, 126 Mich. 587 (85 N. W. 1067), is cited as being opposed to this view. It is true that case denied the right of the deputy to act in the place of his principal, but it was placed upon the ground that the clerk himself was disqualified from sitting by reason of his having sat in the same matter on a former appeal. 'Had it been conceded in that case that the clerk was qualified to sit, then it would have raised the question here presented.

2. The jurisdiction of the commissioner is again challenged on the ground that the township board had no power to find the necessity for an improvement, which, if carried to completion, would affect the normal level of an inland lake such as the one in question. The basis of this contention is Act No. 202, Pub. Acts 1911. The title provides:

“An act to authorize boards of supervisors in certain counties to determine the natural height and level of the waters in navigable inland lakes, to_ maintain the waters in navigable inland lakes at their natural height and level, to build dams and embankments and acquire for such purposes by condemnation, or otherwise, lands, easements or other property, to appropriate moneys therefor, and to assess the expenses of such improvements on property benefited thereby.”

Section 1 reads:

“The board of supervisors of any county in which the whole or major part of the waters of any inland navigable lake is situated, may, in order to improve or maintain navigation thereon, or to promote the public health or welfare, determine the natural height and level of the waters in such inland navigable lake, and construct and maintain sufficient dams or embankments upon and along the shores of such lake to keep and maintain the wáter in such lake at its natural height and level.”

Section 2 reads:

“Such board of supervisors may acquire, in the name of the county, by gift or purchase, or by condemnation proceedings, any existing dam which may affect the level of the waters in such lake, and any or all sites for dams or embankments or other lands, easements, property, or interests therein, or appertaining thereto, needful or convenient in order to fully carry out the purposes of this act.”

The remaining sections of the act set forth the machinery by which such property or rights may be purchased or acquired by condemnation. Act No. 202 confers upon boards of supervisors of the several counties the authority to establish the normal water level of inland lakes, and to purchase or condemn property and rights needful to maintain such level. The act does not appear to be mandatory, but merely optional with the several boards whether they shall assume jurisdiction in any particular case. Had the legislature provided that the waters of inland lakes should remain at their present level, unless changed by the board of supervisors, or had it used some language indicating an intention to place the whole subject-matter at once under the jurisdiction and control of the board, the construction contended for by counsel would have more force. Our conclusion is that the act does nothing more than to confer upon the board of supervisors the authority to act in any given case where, in its judgment, it is necessary or expedient.

Under this view, the act will not stand in the way of proceedings under the drain law, where it affects the waters of an inland lake, unless the board has previously exercised its jurisdiction with respect to that particular lake.

The decree of the trial court dissolving the injunction and dismissing the bill will be affirmed, with costs to the defendants.

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

The late Justice McAlvay took no part in this decision.