author: Grant, J.

text:
    CONVIS v. CITIZENS’ MUTUAL FIRE-INSURANCE COMPANY OF CALHOUN COUNTY.
    Fire Insurance—Ownership of Property—Loss—Liability-Equity Jurisdiction.

       Defendant Forshey was the owner of the life estate in the premises by a deed from her husband to her. By agreement with the reversioners, she insured the house upon the premises, which also constituted her homestead. She took the policy in her name. In the application, in reply to the question, “ Are you the owner of the property ?” she answered, “Yes.” The house was destroyed by fire. Defendant insurance company refused payment. Defendant Forshey claimed that she was entitled to all the insurance money. Complainants ( reversioners ) filed a bill in equity to determine the rights of the parties, and to enjoin the payment of the money to defendant Forshey. Held: (1) That equity had jurisdiction to settle the controversy; (2) that the policy was not void because Mrs. Forshey stated she was the owner of the property; (3) that the company was liable for the full amount of the insurance, and not merely for the value of Mrs. Forshey’s life estate.
    Appeal from Calboun; Smith, J.
    Submitted June 6, 1901.
    Decided July 10, 1901.
    Bill by Harriet L. Convis and others against the Citizens’ Mutual Fire-Insurance Company of Calhoun county, and Delilah Forshey, to determine the rights of the several parties under a policy of insurance. From a decree for complainants, defendants appeal.
    Affirmed.
    Complainants are the heirs of John Forshey, deceased. The defendant Delilah Forshey is his widow. They were married in September, 1894, when he was 86 years old and she was 50. He died three months afterwards. Mr. Forshey, in his lifetime, carried an insurance of $2,000 upon the house and contents situated upon the land described in the bill, and of which he was the owner in fee. It was their homestead. Mr. Forshey made a testamentary disposition of this land by a deed duly signed, acknowledged, and delivered in escrow to one Hopkins, to be delivered to his widow after his death. The deed was delivered and recorded. By its terms the land was deeded to her for life, or while she remained his widow. Complainant William W. Forshey, for and in behalf of the others, for a valuable consideration, made an agreement with Mrs. Forshey by which she undertook and agreed to keep up the insurance on the house. By the terms of section 8 of the by-laws of the company, “an insurance effected by the husband continues to his widow or other representative until a change of title takes place.”
    In November, 1895, Mrs. Forshey took out a new policy in her own name. In her application for that policy was this question: “Are you the owner of the property?” to which she answered, “ Yes.” This question'was followed by this statement: “If not, state your interest.” The application was drawn up in a drug-store by an agent of the company, to whom she paid the insurance. The application was read to, but not by, her. Naturally, the following question was not asked her. The only reference in the policy to the application refers to it as “ No. 3,450, now in possession of said corporation, and to which, for greater ■certainty, reference is hereby, and may hereafter be, made as part of this policy.” The application does not make it a part of the policy, and the sole agreement in it is that the value of the property, at its cash value, is one-third more than the amount issued on the same, and the applicant agrees to pay all just assessments.
    On November 13, 1897, that policy was surrendered, and another taken out, the one now in suit. No application was made for that policy, but the policy refers to the former application, No. 3,450. In this policy the house was insured for $1,350, the full amount that the building was entitled to. Mrs. Forshey, under her agreement, insured the building according to its full value. The house and its contents were destroyed by fire March 4, 1899. The loss was inspected by the company, which was satisfied that it was an honest loss, paid Mrs. Forshey for the loss of her personal property, but refused to pay the insurance on the house. No question of overvaluation is raised, and it appears that it was the duty of the agent to examine and know the value of the property for which the policy was issued.
    Mrs. Forshey claimed the insurance money, and could have instituted a suit at law to recover it. The company denied liability, but also claimed, if liable at all, it was only liable for the value of Mrs. Forshey’s interest in the property as life tenant. Complainants, as remainder-men, claimed an interest in the insurance money, that Mrs. Forshey was only entitled to a life estate in it, and that the company was liable for the full amount. In this condition of affairs, complainants filed this bill to determine the rights of the parties. After this suit was at issue, the corporation made an assessment to cover the full amount of the loss, but with a stipulation that it should not affect the rights of the parties in the controversy; the object evidently being to have the money ready when the rights of the parties were determined. Decree was rendered for complainants.
    . Joel C. Hopkins and Andrew W. Lockton, for complainants.

      John E. Eoley {Louis C. Miller, of counsel), for defendant insurance company.

      0. 8. Clark, for defendant Forshey.

       Head-note by Grant, J.

   Grant, J.

{after stating the facts). 1. The defendant corporation first urges that a court of equity has no jurisdiction to determine the issues involved. Its counsel urge that no contract was made with these complainants, and that it has an absolute right to a trial in a court of law to determine the question of the validity of this insurance. This contention is without force. The complainants had an insurable interest in tbe house. It was a part of the realty. They were the reversioners. It was agreed that Mrs. Forshey should insure the property for the benefit of all. Complainants, therefore, had a lien upon this insurance, and were as much entitled to maintain a suit in equity as would a mortgagee where the property was insured for the benefit of the mortgagee as well as that of the mortgagor. A part of the realty has been destroyed. Mrs. Forshey and the reversioners had the right to have the house rebuilt with the insurance money, so that their interests therein should be protected. They could not accomplish this result in any other than a court of .equity; otherwise, Mrs. Forshey and the corporation could settle for a small amount, and thus deprive complainants of a large share of the value of the property. When a court of equity has jurisdiction for one purpose, it may retain jurisdiction to settle all disputes relating to the same subject-matter between the parties to the suit.

2. It is next urged that the policy is void because Mrs. Forshey falsely stated in her application that she was the owner. The claim is that “owner” means “absolute owner,” or “owner in fee simple of the entire land.” To this complainants first reply that no application was made when this policy was issued, and therefore there was no statement made as to ownership. We think this contention cannot prevail, and that the reference in the policy (which she accepted) to her application -for the previous policy in the same company must be regarded as her application for this.

This application did not state that she was the absolute owner, or the owner in fee simple, of the land. The corporation did not ask that she should. She was the absolute owner of all the property described in the application, except the buildings. The application was not a warranty of title. In order to make an application, or any other paper referred to in the policy, a warranty, it must clearly appear that such was the intent of the parties. Warranties will not be created or extended by construction. 1 May, Ins. § 158; Campbell v. Insurance Co., 98 Mass. 381, 391, and authorities there cited. If the term “owner” in these applications is to be construed as meaning that the applicant is the owner in fee simple of the property, unincumbered, it will be little better than a trap to catch the ignorant and the unwary. The term “owner” is comprehensive, and must be held to include in the application any insurable title or interest which the applicant has, and which entitles him to possession and use. The term is thus defined:

“ One who owns; the rightful proprietor; one who has the legal or rightful title, whether he is the possessor or not; in a general sense, one who has or possesses. When used alone, it does not necessarily imply exclusive or absolute ownership. One who holds subject to a mortgage, or otherwise has only a qualified fee, is generally termed ‘ owner’ if he has a right to possession.” Cent. Diet.

One of the definitions of the word given by another lexicographer is, “To have the legal or rightful title to.” Stand. Diet.

Where the policy provided that any other interest than an absolute fee-simple title would avoid the policy, it was held that an outstanding legal title in a surviving executor and an imperfection in the execution of the deed would not defeat the policy. Phenix Ins. Co. v. Bowdre, 67 Miss. 620 (7 South. 596, 19 Am. St. Rep. 326). The court in that case, at page 634, used the following language:

“By the insertion of those words in the conditions of its policies, can it be successfully maintained that the insurance company meant that every loss occurring under its policies, in which the assured should be unable to show a title indefeasible and good against the world,—a title free from every defect, real or seeming, and on which not the smallest cloud rested,—should be borne by the assured f To tolerate such an opinion would be equivalent to holding that the company had deliberately set a trap to ensnare the simple-minded and unwary. The contract of indemnity in multitudes of cases all over the land would prove only a delusion and a snare to the victims of premeditated cunning. We cannot believe that any honestly directed and fair-dealing company will deliberately undertake the management of its business on such basis.”

This case was approved in Capital City Ins. Co. v. Caldwell, 95 Ala. 77 (10 South. 355).

"Where an insured, in his application, stated that he was the owner of the buildings to be insured, he had no legal title, and the only title he had was dependent upon a parol contract that, if he would move upon the farm, cultivate, improve it, support the family, and pay off the incumbrance, the legal title should be conveyed to him, it was held that he was the owner,' within the meaning of his application. Farmers’ Mut. Fire-Ins. Co. v. Fogelman, 35 Mich. 481. The equitable title in that case was held sufficient to sustain the assertion of ownership. It is not necessary that the precise interest should appear in the application, unless distinctly required. Castner v. Insurance Co., 46 Mich. 15 (8 N. W. 554). So, where a policy provided that false swearing should forfeit all claim under it, and the plaintiff in her answer said, “ I was the owner at the time it was insured,” and referred to the deed, which showed that she only had a life estate, it was held that the insurance was valid. Andes Ins. Co. v. Fish, 71 Ill. 620. That case is instructive in showing how people generally use the word “owner” as descriptive of any interest or title they have in the land. There is no claim in this case of any fraud on the part of Mrs. Forshey or complainants. All acted in entire good faith. The rule approved in Andes Ins. Co. v. Fish, supra, is thus stated:

“ It seems, moreover, to be settled by authority that, in the absence of fraud or mistake, and where not otherwise limited by the policy, the assured is entitled to recover, where he has an insurable interest at the time the policy is obtained, and also at the time of the loss, whether that interest is a title in fee, for life, or only merely equitable, the whole amount of damage done to the property, not exceeding the amount for which it is insured;” citing several authorities.

"Where the applicant stated the property was his own, but it was in fact mortgaged, and the equity of redemption seized upon execution, the statement of title was held sufficient to support the policy. Strong v. Insurance Co., 10 Pick. 40 (20 Am. Dec. 507).

In Morotock Ins. Co. v. Rodefer, 92 Va. 747 (24 S. E. 393, 53 Am. St. Rep. 846), it is said:

“Applicants for insurance are not generally aware of the necessity of disclosures which long experience in the business of insurance has shown to underwriters to be necessary, or what disclosures it is important to make; while insurance companies can not only protect themselves by making inquiries in regard to such things as they may regard to be material, but, as is well known, are in the habit of doing so.”

The case of Allen v. Insurance Co., 5 Gray, 384, is exactly in point. In answer to the following question, “Do you own the land on which the buildings stand?” she said, “ Yes.” In fact, she only had a life estate under the will of her husband. The policy was held valid.

In 13 Am. & Eng. Enc.' Law (2d Ed.), 230, it is stated that the expression that an insured is owner of the property, or that it is his, “ is the earliest and crudest form of statement. Where no questions which require a more precise disclosure are asked, almost any insurable interest will be covered by those words.”

Mrs. Porshey was evidently not accustomed to business, or to applying for insurance. The application was filled out by the agent of the defendant company at the very place where she resided, and where the property was. He knew that Mr. Eorshey, in his lifetime, owned this property, that it was her homestead, and that she had remained in possession since her husband’s death. They had continued the insurance for some time after his death, without change. An inquiry from the agent would have undoubtedly disclosed the actual state of the title, and have avoided this controversy. She used the term “ owner ” as hundreds of people will who own the same or similar interest in land. It is a natural expression for such persons to use. Those applications are usually made by those unfamiliar with legal terms. They understand and use words in their popular sense. If this company desired more full particulars about the title, it could easily have framed its questions so as to accomplish the result. Mrs. Forshey had an insurable interest, and the policy must be held valid.

3. It is next urged by the defendant corporation that the company is responsible only for the value of her life estate in the building destroyed. This would virtually destroy the use of her life estate, for she could not replace the building for the present value of her interest in money based upon the value of that estate. The company insured this" property knowing that the land of which it was a part, and the principal part in value, was her homestead; that she was entitled to its use; that it would be of little value to her without the house; and that she would be entitled to the full amount of the insurance, to enable her to rebuild, so that she might enjoy and use the property. The insurer has not been deceived. It understood that it was insuring for the full value, and intended to do so. Its defense is technical, and without merit. Andes Ins. Co. v. Fish, supra.

4. The only remaining question is one between Mrs. Forshey and these complainants. She denies making the contract to keep the property insured. We have no doubt that she did make the agreement. Complainant William, representing the other complainants, desired to have it insured. He asked to see the policy, and she produced it. She admits that she talked with William about it, and that she told him she intended to keep it insured, but for her interest alone. The house constituted the principal value of the entire property. It is not reasonable to even suppose that she, knowing that she was entitled only to the use for life, intended to appropriate the interest of the reversioners by insurance to the full amount. Resting upon this agreement, he took no steps to obtain other insurance. This being so, it follows that this money must either be used in rebuilding, or invested so that she shall receive the income therefrom.

The bill prayed that the money be used to rebuild the dwelling-house; that the money be paid into court, to be thus expended upon the order of a trustee to be appointed by the court. The court decreed that the money be paid into court, less the costs of the court helow, to be retained by the register until the further order of the court; and that any interest or income derived therefrom shall be paid over to Mrs. Forshey so long as she shall remain a widow. The decree is affirmed, with costs of this court against the defendant company.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, C. J.

license: Public Domain

text:
    D. M. OSBORNE & CO. v. WIGENT.
    1. Sale—Warranty—Breach—Notice.
    A condition in a written warranty on the sale of a machine, requiring the purchaser to notify the seller, as well as the latter’s local agent, of any defects therein, is not sufficiently complied with by notice to the agent alone, in the absence of a waiver of further notice.
    2. Same—Parol Evidence.
    Where a written warranty was given on a sale of chattels, evidence of previous parol agreements in the nature of warranties is inadmissible.
    Error to Hillsdale; Chester, J.
    Submitted June 6, 1901.
    Decided July 10, 1901.

      Assumpsit by D. M. Osborne & Company against Fred M. "Wigent upon a promissory note. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Chadwick & Weaver, for appellant.

      C. A. Shepard, for appellee.
   Montgomery, C. J.

This action was brought to recover upon a note of $55,-—one of two notes given in payment for a corn harvester purchased of plaintiff by the defendant. The defendant, under the plea of the general issue, gave notice that he would rely upon a breach of warranty as a defense.

The defendant testified that he saw the machine at work at a Mr. Hewitt’s; that later on he gave an order for the machine; that the agent wished to have it left with him until Saturday, and stated that the notes for the machine could be given on Saturday, when defendant came for it; that defendant told the agent that he might not come for the machine, but might send for it; that he did in fact send for it on Saturday; that on Monday he started the machine, found it did not work well, and sent word to the agent, who came, together with another agent of plaintiff; that it was found that a rod was bent, and that this was straightened, and that the machine was then started up; that for the time the agents were there the machine worked all right. At this time the notes were given.

When the order was taken, a written warranty was given, reading as follows:

“ This implement is warranted to be well made, of good material, and, if properly set up and operated, to do good work. If, on starting it, it should occur that the purchaser cannot make it work well, he must immediately notify the local agent who sold it, and D. M. Osborne & Co., Auburn, N. Y., and allow reasonable time for some one to be sent to put it in order. If it is not then made to do good work, it must be returned at once to said local agent at his place of business, and any payments made thereon will be refunded. Failure to give notice or failure to. return the implement as aforesaid will constitute an acceptance of the implement. No variation of this warranty, oral or written, will be recognized by us.

[Signed] “D. M. Osborne & Co.”

The defendant, after the visit of Mr. Bates, the agent, made further trials of the machine, found it did not work to his satisfaction, and returned the machine to the agent’s premises, but gave no notice to the agent or the plaintiff-of any defect in the machine, as required by the terms of the written warranty.

The circuit judge charged the jury as follows:

“You are instructed further that if you find from the evidence that this machine did not fill the warranty, and Wigent did notify the agent, Mr. Bates, and give him a reasonable time in which to fix the machine, and the agent came there pursuant to that notice, whether he was notified personally by Mr. Wigent or some other person, and when he came there the agent insisted that this machine worked all right, and he then notified Mr. Wigent that he need not notify the home company, and this agent insisted at that time that Mr. Wigent should give these notes, and Mr. Wigent claiming that the machine did not fill the warranty, but gave the notes, relying on ■ the warranty, and not accepting the machine as fulfilling the warranty, and he (Wigent) continued using the machine, trying in good faith to make it work, and it did not work, then he (Wigent) had a right to return the machine, and would not be liable on this note.”

The defendant had not notified the plaintiff, at Auburn, N. Y., as required by the terms of the warranty; and, while we do not hold that this notice might not be waived by the agent if the intention were shown, the testimony here shows that the agent did not intend to waive notice and opportunity to repair and put in condition.

The court was also in error in permitting testimony of previous parol agreements in the nature of warranties, which were clearly merged in the written agreement. Zimmerman Manfg. Co. v. Dolph, 104 Mich. 281 (62 N. W. 339).

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    PEOPLE v. RADLEY.
    1. Jurors — Competency —Voir Dire Examination — Liquor Traffic.
    Where, in a prosecution for drunkenness, a juror had stated on his voir dire that he was “ not in sympathy with the liquor business,” and did not “like bad men, who get drunk, and become disorderly and fight,” the question, “You do, then, have some prejudice against a man who drinks? ” placed an unfair construction on the answers given, and was properly excluded.
    2. Disorderly Persons—Drunkards —Suffioienoy of Complaint.
    A complaint under 2 Comp. Laws; § 5923, relative to disorderly persons, which charges respondent, in the language of the statute, with being a “ drunkard,” is sufficient without alleging that he is an “habitual” drunkard.
    3. Same—Evidence of Former Conviction.
    On the trial of such complaint, the fact that respondent pleaded guilty to charges of drunkenness, preferred under a municipal ordinance during the period covered by the complaint, may be shown by the record of such proceedings, as admissions of fact tending to support the main charge.
    4. Same—Instructions—“Drunkard” Defined.
    An instruction in such a case that one is not a drunkard unless the habit be so firmly fixed that he becomes intoxicated as _ often as temptation is presented, is properly refused.

      5. Same.
    And a charge that a drunkard is one with whom drunkenness has become a habit,—one who habitually drinks to intoxication,—is unobjectionable.
    Error to Muskegon; Russell, J.
    Submitted June 7, 1901.
    Decided July 10, 1901.
    Albert Radley was convicted of being a disorderly person, and sentenced to imprisonment for 90 days in the Detroit House of Correction, and to pay a fine of $100 . and costs.
    Affirmed.

      Turner & Turner, for appellant.

      Charles B. Cross, Prosecuting Attorney, and George S. Lovelace, Assistant Prosecuting Attorney, for the people.
   Montgomery, C. J.

The respondent was convicted of being a disorderly person, in that he was, on the 5th of April, 1901, and for six weeks prior thereto, a drunkard. The offense was charged as a second offense. The case is before us for review on error.

The first assignment of error relates to the ruling of the circuit judge in holding that a question put to a juror on the voir dire was not proper. The examination was as follows:

‘ ‘ Mr. Turner (question of a juror): You say you have a prejudice against a man who drinks or gets intoxicated occasionally ?

“A. I don’t know what you might call it. I said I was not in sympathy with the liquor business.

“ Q. Have you a feeling against a man of that character ? 1

“ A. Yes, I don’t like bad men that will throw themselves away, and get drunk, and become disorderly and fight.

Q. You do have, then, some prejudice against a man who drinks ?

Mr. Cross: I object to that question as it is put.

The Court: I don’t think that is a proper question.”

We agree with the circuit judge that the question as put was improper. The question appeared to be an attempt to sum up what the juror had stated, and it did not do so fairly. The witness had not stated that he had a prejudice against a man who drinks. The unfairness manifest in this question could easily have been avoided, and a new question put, which would have given all the light desired.

The respondent’s counsel contend that the complaint is insufficient, in that it charges that the respondent was a drunkard, without defining a drunkard. The contention is that the respondent should have been charged with being an habitual drunkard. The complaint follows the language of the statute. The respondent’s counsel, in support of another contention, cite numerous authorities which hold that the word 1 ‘ drunkard ” means one who habitually gets drunk. The single word is, therefore, sufficient to apprise respondent of the offense with which he is charged. Com. v. Boon, 2 Gray, 74.

The prosecution introduced evidence of prosecutions of respondent for being drunk under ordinances of the city of Muskegon. A number of objections were taken to this testimony, but none which meets the purpose for which the evidence was admitted, and, in our opinion, competent. The proceedings in these cases show that respondent was, ■on various occasions during the period covered by this complaint, charged with intoxication, and pleaded guilty to the charge. These records were admissible as in the nature of admissions of fact which tended to support the main charge.

The respondent’s counsel asked the court to instruct the jury that, to constitute a drunkard, it must be one who has the habit so firmly fixed that he becomes intoxicated as often as the temptation is presented. The cases cited by respondent’s counsel do not sustain the ■contention made. There are cases in which an affirmative finding of habitual drunkenness has been made, based upon a showing that the party concerned became intoxicated as often as opportunity offered. Such a case is Magahay v. Magahay, 35 Mich. 210. But it cannot be said, because such a state of facts shows habitual drunkenness, that there may not be a habit of intoxication in •one who may occasionally be able to resist temptation. The circuit judge charged the jury as follows:

“A drunkard is one with whom drunkenness has become a habit; one who habitually drinks to intoxication; a sot. Now, if you find this defendant was drunk on the 5th of April, as claimed here by the people, and, to carry out that definition, on that date and six weeks prior to that date; that is to say, that drunkenness was habitual, that it became a habit, that he habitually drank to intoxication,— why, it will be your duty to say that he is guilty as charged.”

We think this instruction fairly stated the law. Brown v. Brown, 38 Ark. 328; Com. v. Whitney, 5 Gray, 85; Walton v. Walton, 34 Kan. 195 (8 Pac. 110); Mack v. Handy, 39 La. Ann. 497 (2 South. 183); State v. Savage, 89 Ala. 8 (7 South. 183, 7 L. R. A. 426).

We discover no error in the record. The conviction is affirmed.

The other Justices concurred.


text:
    IRWIN v. PHŒNIX ACCIDENT & SICK BENEFIT ASSOCIATION.
    1. Accident Insurance—Conditions—Unnecessary Exposure to Danger.
    A condition in an accident-insurance policy against liability for injuries caused by “voluntary or unnecessary exposure to danger” is limited to cases of intentional exposure to recognized danger, and does not include acts of mere thoughtlessness on the part of the insured.

    3. Same—Negligence—Evidence.
    In an action on a policy so conditioned, it appeared that the insured was at work on a scaffold 30 feet high, laying brick; that the scaffold had been supported by a horse at each end and one in the middle; but that the horse at one end had since been removed, so that, when the insured stepped to that end of the scaffold, he was precipitated to the ground and killed. The contractor testified that, just before the accident, he cautioned the deceased to “look out for those loose ends,’’ but that he was not sure that deceased heard him. Held, that there was no evidence of negligence on the part of the deceased, and that a verdict was properly directed for plaintiff.
    Error to Muskegon; Russell, J.
    Submitted June 7, 1901.
    Decided July 10, 1901.

      Assumpsit by Mary J. Irwin against tbe Pboenix Accident & Sick Benefit Association upon a policy of insurance. Prom a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      George W. Bridgman, for appellant.

      Sessions & Sutherland, for appellee.

       As to voluntary exposure to unnecessary danger within the meaning of such conditions, see note to Fidelity & Casualty Co. v. Chambers, (Va. ) 40 L. R. A. 432.

   Montgomery, C. J.

Plaintiff recovered in an action on an accident policy issued to her son, George P. Irwin, in which policy plaintiff was named as beneficiary in case of death. The defense was that the death of George P. Irwin was caused by voluntary and unnecessary exposure to danger. The policy, by reference to the application, exempted the company from liability in case of either voluntary or unnecessary exposure to danger. It is contended that this language is such as to distinguish it from Johnson v. Accident Co., 115 Mich. 86 (72 N. W. 1115, 69 Am. St. Rep. 549); and counsel cites the case of Shevlin v. Accident Ass’n, 94 Wis. 180 (68 N. W. 866, 36 L. R. A. 52), in which an exception of exposure to unnecessary danger was held to exempt the company from liability for an injury resulting from exposure to unnecessary danger when such exposure was attributable to the negligence of the assured. The facts of that case show a case of gross negligence. We think ‘the language of this contract indicates the purpose of limiting the exception to cases of exposure to recognized dangers, and does not exempt the company from mere thoughtlessness on the part of the assured. The words “unnecessary exposure” are coupled with “voluntary,” and, while the disjunctive is used, we think this is not conclusive of the construction. The word “exposure,” used in this connection, implies an intentional act.- We do not think the case is distinguishable from Johnson’s Case.

Was the court justified in withdrawing the case from the jury ? The deceased met his death while working as a mason. The evidence shows that the support had been removed from one end of the scaffolding, and that, in stepping on the unsupported end of the boards, he fell to the ground and was killed. Alexander McIntosh, the contractor, testified:

“I had been on the scaffold not to exceed two or three minutes before the accident,—it certainly could not have exceeded five minutes,—and had a conversation with George Irwin.”

He went on the scaffold to give Irwin some instructions about the work.

Q. Did you say anything to him about the scaffold ?

“A. I might have remarked just as I got on the scaffold—It struck me very forcibly why that horse wasn’t there. There were previous orders given distinctly to have it there, and, in my coming close to him, I noticed that the horse was out of there. * * * He [George Irwin] just turned around, and he reached me his hand,—gave me a jei’k up. Just as he reached me his hand, I just made a casual remark. I had noticed at that instant that the horse had been removed from there. I says, ‘ George, look out for those loose ends.’ Whether he took any special notice of it or not, is something beyond my comprehension. I supposed at the time he did, but he might not have.

Q. You called his attention to it, and said, ‘ Look out for those loose ends,’ referring to that—

“A. Referring to that particular place.

Q. What was the reason for making the remark to George Irwin, to look out for those loose ends ?

“A. If he stepped out there, there was danger.”

It is doubtful whether deceased heard McIntosh, and it is also doubtful whether he understood what was meant by “loose ends.” My Brethren are of the opinion that there was no evidence of negligence, and that the instruction directing a verdict was authorized.

Judgment affirmed.

The other Justices concurred.


text:
    TAYLOR-WOOLFENDEN CO. v. ATKINSON.
    l: Husband and Wife—Necessaries—Liability of Husband-Evidence.
    Where, in an action for the price of clothing purchased by-defendant’s wife for the use of herself and children, the only testimony on the question of whether defendant furnished his wife with necessaries was that of himself to the effect that, during the 18 months covered by the account in suit, he gave her §1,180 in cash for the purchase of clothing for herself and children; that she had a weekly allowance for the purpose, which he overpaid; and that his income did not exceed §5,000 a year,—there was nothing having any tendency to establish a right on the part of the wife to bin<j defendant for necessaries, and it was error to submit the question to the jury.
    2. Same—Goods Purchased by Wife—Express Authority to Bind Husband—Question for Jury.
    In an action to recover for goods purchased by defendant’s wife, testimony that defendant had instructed plaintiff not to give his wife credit, and afterwards, prior to the running of the bill in suit, informed plaintiff that “the matter had been fixed up,” and that “it was all right,” was sufficient to justify the submission to the jury of the question whether plaintiff was expressly authorized to sell goods to defendant’s wife on his credit.
    3. Same—Books of Account.
    The fact that goods sold to a married woman are charged to her on the books of the seller is not conclusive that they were sold on her credit, rather than that of her husband.

      4. Sale—Books ok Account—Evidence.
    Where, in an action for goods sold, the plaintiff showed that the entries in' his ledger were made from slips, made out in duplicate by the clerks who made the sales, one of which was sent to the bundle counter and the other to the bookkeeper, and that the slips representing the account in question had been destroyed, it was necessary for the plaintiff to go further, and prove that no entries were made in the ledger except from the slips, that no such slips were sent to the bookkeeper except when the goods, accompanied by a duplicate slip, were sent to the bundle counter, and that all goods sent to the bundle counter were delivered, in order to render the ledger admissible in evidence.
    Error to Wayne; Lillibridge, J.
    Submitted January 10, 1901.
    Decided July 19, 1901.

      Assumpsit by the Taylor-Woolfenden Company against James J. Atkinson for goods sold and delivered. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Atkinson & Atkinson, for appellant.

      Frederic T. Harward (Chamberlain & Guise, of counsel), for appellee.
   Montgomery, C. J.

Action for the price of goods claimed to have been purchased by defendant’s wife on his credit.

1. The court submitted to the jury the question of whether the goods were necessaries, and, if so, whether defendant’s wife had a right to bind him for them because of a failure on his part to furnish her with necessaries, or with the money with which to purchase them. The only testimony on the question of whether defendant furnished his wife with necessaries was his own testimony on cross-examination, to the effect that, during the 18 months covered by this account, he furnished his wife with $1,180 in cash for the purchase of clothing for herself and children (which is the class of goods here in question); that she had a weekly allowance for the purpose, which he paid and overpaid; that he had always had trouble with her about running bills without his consent; and that his income did not exceed $5,000 per annum. We think this had no tendency to show such a state of facts as would give defendant’s wife the right to bind him for necessaries, and that the question should not have gone to the jury.

2. It is urged that a verdict should have been directed for .defendant, on the ground that there was no testimony that defendant’s wife had the right to act for him. There was testimony that defendant had gone to Mr. Taylor, plaintiff’s “credit man,” and asked him not to give defendant’s wife credit, and that defendant afterwards, and prior to .the running of the bill here in suit, went to Mr. Taylor, and told him that “the matter had been fixed up;” that “it was all right.” The construction of oral language is for the jury, and we think a jury would be justified in inferring from, this that there was express authority for plaintiff to sell goods to defendant’s wife on his credit. It is difficult to conceive why defendant should object to plaintiff’s giving credit to defendant’s wife individually. It is for the jury to say whether he intended to charge himself by this language. It is true that the goods were charged to Mrs. Atkinson, but there was testimony that, in all cases where the customers of plaintiff were married women, the plaintiff charged the goods to them, and not to their husbands. “ The fact that the goods are charged on the books of the seller to the person to whom they were delivered is not conclusive that they were sold upon his credit.” Larson v. Jensen, 53 Mich., at page 430 (19 N. W., at page 131), citing numerous cases.

3. Plaintiff’s ledger was introduced to prove the account. It was first shown that the entries in the ledger were made from slips, made out in duplicate by the clerks who made the sales, and one of them sent to the bundle counter, and the other to the bookkeeper. Hence it appears that delivery was not a prerequisite to the entry of the items on the ledger. It was shown that these slips were destroyed periodically, because of their bulk, and that those representing this account had been destroyed. In view of a retrial, it is proper to say that, under the rule in Swan v. Thurman, 112 Mich. 419 (70 N. W. 1023 ), plaintiff would be required to prove, to the satisfaction of the jury, that no entries were made except from the slips; that no such slips were sent to the bookkeeper except when the goods, accompanied by a duplicate slip, were sent to the bundle counter; and that all goods sent to the bundle counter were delivered. The original slips are not indispensable.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Moore, J. Grant, J.

text:
    McGANNON v. MICHIGAN MILLERS’ MUTUAL FIRE-INSURANCE CO.
    1. Fire Insurance—Breach of Conditions of Policy— Construction of Statute.
    2 Comp. Laws, § 5180, providing that no policy of fire insurance shall thereafter be declared void by the insurer for the breach of any condition thereof if the insurer has not been injured by such breach, or where a loss has not occurred during or - by reason of such breach, covers all policies issued in this State after the act went into effect, irrespective of whether they are Michigan standard policies or not.
    2. Same—Constitutional Law—Right to Make Contracts.
    Such statute is not unconstitutional as depriving fire-insurance companies of the right to make contracts not immoral or contrary to public policy, since, such companies being creatures of statute, the legislature may prescribe the forms of their contracts, and the limitations in relation to the forfeiture clauses therein.
    3. Same—Obligation of Contracts.
    Nor, being confined in its operation to policies subsequently issued, can it be said to impair the obligation of contracts.

      4. Em® Insurance—Breach oe Condition as to Watchman.
    In view of such statute, a policy conditioned on the keeping of a watchman on the premises continuously is not invalidated by the fact that none is employed on Sundays, so as to prevent a recovery for a loss occurring on a week day.
    5. Same—Warranty—Construction.
    An application for insurance on a mill contained an agreement by the applicant “ to keep a watchman on the premises at all times when not in operation,” and provided that the statements in the application should be regarded as continuing warranties. The policy issued thereon made the application a part of the policy, but did not expressly provide that failure to keep a watchman should render the policy void. Held, that where the insured employed a competent watchman, and charged him with the duty of watching the premises, the fact that the watchman absented himself in the night-time, without the knowledge of the insured, for more than an hour, during which time the property took fire and was destroyed, did not release the company from liability, since the agreement in question should receive a reasonable interpretation, and a substantial compliance therewith was sufficient.
    Grant, J., dissenting.
    Error to Ingham; Wiest, J.
    Submitted January 11, 1901.
    Decided July 19, 1901.

      Assumpsit by John George McGannon against the Michigan Millers’ Mutual Fire-Insurance Company upon a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Crane, Norris & Drew, for appellant.

      Cahill & Wood, for appellee.
   Moore, J.

The defendant is a fire-insurance company organized under the laws of the State of Michigan, with its principal office at Lansing, Mich. The plaintiff is the owner, by assignment from the Yerona Roller-Mill Company, of a policy of insurance issued to said Yerona Roller-Mill Company by the defendant company. In March, 1899, the Yerona Roller-Mill Company made a written application for insurance. Among other things stated in the application are the following:

“ What facilities have you in the way of force-pumps, extinguishers, etc., for putting out fire ?

“A. Waterworks.

“Do you agree to keep a watchman on the premises at all times when not in operation ?

“A. Yes.

“Do you agree to keep at least one cask of saltwater on each floor of the buildings, and one or more buckets to each cask, always in order and ready for use in case of fire?

“A. Yes.

4 4 Do you agree not to use open, movable lights on the premises insured ?

“A. Yes.

4 4 If both water and steam power are used, state what proportion of the time a permit for steam is wanted.

44 Is smoking permitted except in the office ?

“A. No.

44 What is the capacity of the mill in 24 hours ?

“A. 200 bbls.

44 State anything affecting the risk, not otherwise fully explained.

“Through what bank do you prefer to have collections on you made ?

A. Farmers’ Bank.

4 4 And the undersigned applicant hereby warrants that the above is a just, full, and true exposition of the facts and circumstances in regard to the property to be insured, and is and shall be considered as the basis on which insurance is to be effected and continued in force, and the same is understood as incorporated in and forming a part and parcel of the policy as a continuing warranty during the life of such policy. And it is covenanted and agreed that if the situation or circumstances affecting the risk shall be so altered or changed as to render the risk more hazardous, or if there be any change affecting the title, interest, or possession of the property, the assured will notify the secretary of said company forthwith, in writing, of such alteration or change.”

Upon this application a policy of insurance was issued. The provisions of said policy which counsel deem material in this controversy read as follows:

“ * * * Reference is made to assured’s application and survey on file in the office of this company, and which is made part of this policy. * * *

“ This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.

‘ ‘ This entire policy, unless otherwise provided by agreement indorsed hereon and added hereto, shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy; 'or if the subject of insurance be a manufacturing establishment, and it be operated in whole or in part at night later than ten o’clock, or if it cease to be operated for more than ten consecutive days. * * *

“If an application, survey, plan, or description of property be referred to in this policy, it shall be a part of this contract, and a warranty by the insured. * * *

“This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto; and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as, by the terms of this policy, may be the subject of agreement indorsed hereon or added hereto, and, as to such provisions and conditions, no officer, agent, or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any jjrivilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.”

Afterwards a loss occurred, and this suit was brought. A stipulation of facts was filed, the material parts of which read as follows:

“April 17, 1899, at or about 11:30 p. m., fire originated from, an unknown cause in the insured property, and the same was totally destroyed by fire. * * * The mill was generally running from 7 o’clock a. m. until 6 o’clock p. m. It was not running during the night nor on Sundays. The mill company maintained in the mill a small electric-light plant, which furnished electric lights in the village of Verona; said light plant being started up at dusk in the evening, and closing at 10 o’clock p. m. The Verona Roller-Mill Company employed J. U. Robinson, who was also secretary of the company, as one of its engineers and watchmen. He was a competent man to perform the duties_ for which he was employed. He was hired and had agreed to take charge of the machinery as millwright, engineer, and watchman, as follows: To go on duty at 12 o’clock noon of each day, Sundays excepted,, and, so long as the mill was running, to run the engine, do the firing, look after the repairs to the mill machinery, and when the mill ceased running, at 6 o’clock p. m., to-run the electric-light plant above referred to until 10 o’clock p. m., and, while running the plant, to perform the duties of night watchman at the mill, and, after 10 o’clock p. m., to remain on the premises and perform the duties of night watchman until 12 o’clock midnight, when he was relieved by W. B. Taylor, and went off duty. He ran 'the electric-light plant Sundays from dark until 10 p. m., and watched Sunday nights from 10 to 12 p. m.

“W. B. Taylor was employed by the Verona Roller-Mill Company as second engineer and watchman, to perform duties as follows: He was to go on duty every night at 12 o’clock midnight, act as watchman until the mill started up in the morning, when he ran the engine as engineer and fireman until 12 o’clock noon, when he was relieved by J. U. Robinson, and went off duty. On Saturday nights Mr. Taylor went on at 12 o’clock midnight, and watched until daylight, when he went off duty, and no watchman, or other person having the duties of watchman, was in charge of the mill premises on Sundays until the electric-light plant was started up in the evening. The employés and officers of the mill company were-around the mill on Sundays, there being some one of them at the mill once or twice each Sunday, but no one performing the duties of watchman on Sundays during the day. Mr. Taylor was a competent man for his-employment, and was paid by the Verona Roller-Mill Company for performing the duties as above detailed.

“On the night when the fire occurred, J. IT. Robinson ran the electric-light plant until 10.o’clock. At that hour-he shut down the lighting plant, carefully inspected all the stories of the mill, and went home, leaving the mill at about .10:15 p. m.; his wife being quite sick at the time, which was the occasion of his leaving the mill on this occasion prior to 12 o’clock p. m. Robinson went straight home and went to bed, and, at the time the fire broke out, was in bed at his house at the other end of the village of Verona, about 200 yards away from the mill, and out of sight of the mill. The other officers and stockholders of the Verona Roller-Mill Company were not aware that Robinson had left the mill that night. Said Robinson had, on a few occasions prior to the date of the fire, left the . mill alone in a similar way between the hours of 10 and 12 o’clock p. m., but his absence on these occasions was likewise unknown to any of the other officers or stockholders • of the Verona Roller-Mill Company.

“ It is admitted that the officers and stockholders of the Verona Roller-Mill Company used due diligence in the selection of Robinson and Taylor as watchmen at the mill; that Robinson’s absence was occasioned solely by the sickness of his wife, who was quite sick; that the mill property destroyed 'was worth in excess of the total amount of the insurance upon the same; that the company sustained quite a loss not covered by insurance; and that there was no fraud or bad faith upon the part of the plaintiff or his assignor, the Verona Roller-Mill Company.

“It is admitted that all of the conditions and agreements set forth in said application and policy have been fully and literally complied with by the Verona Roller-Mill Company and the plaintiff herein, except as regards the absence of the watchman, as hereinbefore set out, and as to whether this condition of the application for the policy has been complied with is to be determined by the court upon this agreed state of facts; and, if the facts herein set out constitute such a compliance, then judgment is to be rendered for the plaintiff for $2,849.6?, with interest at six per cent, per annum from the 25th day of April, 1899; otherwise, judgment is to be rendered for the defendant.”

The circuit judge rendered a judgment in favor of plaintiff for the full amount of his claim. The case is brought here by writ of error.

The circuit judge held that section 5180, 2 Comp. Laws, applies to this policy of insurance, and the policy did not become void for failure to keep a watchman upon the premises on Sundays;the loss not having occurred during such times, or by reason of the absence of the watchman on Sundays. This policy was issued in March, 1899, nearly two years after the provisions of section 5180, 2 Comp. Laws, took effect. Counsel insist that the provisions of that section apply only to a Michigan standard policy, and that the policy sued upon is not a Michigan standard policy. We do not need to decide whether this policy, issued by a Michigan company, with an indorsement on the back, “Standard Policy,” is a Michigan standard policy or not. Section 5180 reads as follows:

“That no policy of fire insurance shall hereafter be declared void by the insurer for the breach of any condition of the policy if the insurer has not been injured by such breach, or where a loss has not occurred during such breach, or by reason of such breach of condition.”

This language is broad enough to cover the policy in suit, whether it is regarded as a Michigan standard policy or not, and we think it was intended to cover all policies issued in this State after it became a law. Though there is no direct adjudication to that effect, we think the opinion of the court in this respect is foreshadowed in Niles v. Insurance Co., 119 Mich. 252 (77 N. W. 933); Cronin v. Wire Ass’n, 123 Mich. 277 (82 N. W. 45); Shelden v. Insurance Co., 124 Mich. 303 (82 N. W. 1068); Boyer v. Insurance Co., 124 Mich. 455 (83 N. W. 124).

Counsel say:

“The act in question is unconstitutional. It puts an unconstitutional limit on the right of parties sui juris to make contracts for themselves. The legislature has no authority to deprive a party of his right to make contracts not immoral or contrary to public policy. Any limitation which transgresses this private right is unconstitutional and invalid. Also this statute as now set up by plaintiff impairs the obligation of contract, and is for that reason invalid.”

We cannot agree with counsel in this respect. The defendant corporation is a creature of the statute. It could not engage in the business of insurance except by virtue of the statute. It is entirely competent for the legislature to prescribe the forms of its contracts, and the limitations in relation to forfeitures therein. It, of course, would not be competent to impair the obligation of contracts already entered into, but that is not what is attempted to be done here. The idea of the legislature, doubtless, was to protect policy holders, and to see that their insurance did not fail because of any breac'h in the terms of the policy or the application which did not result-in injury to the insurance company. See note a, section 156, p. 308, 1 May, Ins. (4th Ed.) and cases there cited.

The court also held that the act of Robinson, the watchman, in leaving the mill the night of the fire at 10:15 p. m., and remaining away from there during the time he was to act as watchman, under the facts stipulated, did not constitute a breach of the warranty which avoided the policy. It is insisted upon the part of the defendant that the application is the basis of the insurance, and the agreement to keep a watchman is a warranty, and the failure to do so avoids the policy. It is said:

“There is no room for construction; no latitude; no equity. If the warranty be a statement of facts, it must' be literally true; if a stipulation that a certain act shall or shall not be done, it must be literally performed.” 1 May, Ins. (4th Ed.) § 156.

On the part of the plaintiff it is said the agreement to keep a watchman is a promissory agreement, and not a warranty, the literal observance of which is necessary to keep the policy in force, inasmuch as there is no express provision in the policy that a failure to keep a watchman at all times shall make the policy void.

The authorities upon these several propositions are very conflicting. The old rule as to warranties fully sustains the contention of counsel for defendant, but there has been a' tendency, of late years to hold that the substantial fulfillment of an agreement like that contained in the application is sufficient. In 1 May, Ins. (4th Ed.) § 156, it is said, after the language before quoted:

“A learned judge and author declares it to he unfortunate that so strict a rule has been established, and intimates —what is no doubt entirely true—that courts are not at all inclined to go beyond the precedents to support a warranty. There are even authorities to the effect that, in dealing with warranties, common sense is not to he lost sight of, and that the fair, practical intent of the parties is to be sought, not the hair-splitting of a college of wit crackers, and that substantial fulfillment of a warranty is enough.”

In the policy sued upon it is provided the policy shall be void for any one of 17 different reasons; it also provides the company shall not be liable for loss occasioned by invasion, or for loss resulting from a number of other causes; but it nowhere provides the policy shall be void if a competent watchman is hired by the insured, and is temporarily absent from his post, or if one or more of the buckets to each cask of salt water should be temporarily removed. If it had been intended to avoid the policy for these reasons, it would not have been difficult to say so. The following illustrations will serve to show the tendency of the courts: The case of Hanover Fire-Ins. Co. v. Custin, 40 Neb. 828 (59 N. W. 375), was much like the one at bar. We quote from the opinion:

“ ‘ Watchman.—Is one kept on the premises during the night, and at all other times when the works are not in operation, or when the workmen are notpresent?
‘A. Yes.
“ ‘ Q. Is any other duty required of the watchman than watching for the safety of the premises ? ,
“‘A. Yes; cleaning the floors and premises.’

“The evidence shows that the fire occurred about half-past seven o’clock, and that the watchman, with Mr. Gustin, left the premises about 6:15 o’clock. Before their departure, however, the watchman had. inspected the different parts of the mill, and found everything apparently safe from fire. He locked up the building, and went to the business part of tbe city of Kearney to buy a padlock with which to secure a door of an outside building. While he was gone he went to the depot of the Burlington & Missouri River Railroad Company and purchased a ticket for a lady friend of his, and in the interval between his leaving the planing-mill and returning thereto he ate his supper. While on his way to the planing-mill to resume his duties of watchman, the alarm of fire was sounded. It is insisted that the absence of the watchman for the purposes named, with the assent of Mr. Gustin, necessarily avoided tk© policy. To this doctrine we cannot assent. Even giving the statements of the application ‘that a watchman is kept on the premises during the night, and at all other times when the works are not in operation,’ the effect of a warranty,—a claim not necessary now to be settled,—±he language should receive a reasonable construction. We are aware that on this proposition there is not accord of authorities; possibly in number they are adverse to this view; yet it is believed that the language of Judge Shaw in Crocker v. Insurance Co., 8 Cush. 79, is reasonable and just. He said:

“ ‘The stipulation, “a watchman kept on the premises,” inserted as it is in the body of the policy immediately after the description of the property insured, is in the nature of a warranty, and must be substantially complied with by the assured; but the terms are not explicit as to the time and manner of keeping a watch. It does not stipulate for a constant watch. It therefore requires construction, as matter of law, to determine what is meant in this policy by keeping a watch. It relates to a factory, to its safety against fire ; and this depends upon a habit or practice in this respect, and upon the fact whether that usage has been followed. When there is an express stipulation that a thing shall be done, but the contract is silent as to the time and manner, the law holds that it must be reasonable in this respect, having regard to the object and purpose of the stipulation,—in this.case, to the safety of the building. If it is done in the manner in which men of ordinary care and skill in similar departments manage their own affairs of like kind, this is one strong ground to hold it reasonable, and to warrant the admission of evidence of usage.’

“The same principle requiring a reasonable construction of the language used is recognized and enforced in Sheldon v. Insurance Co., 22 Conn. 235 (58 Am. Dec. 420); Frisbie v. Insurance Co., 27 Pa. St. 325; Houghton v. Insurance Co., 8 Metc. (Mass.) 114 (41 Am. Dec. 489); Percival v. Insurance Co., 33 Me. 242; Stout v. Insurance Co., 12 Iowa, 371 (79 Am. Dec. 539). These views have quite directly received the sánction of this court in Springfield, etc., Ins. Co. v. McLimans, 28 Neb. 846 (45 N W. 171).”

It was held the company was liable.

In Phœnix Assurance Co. v. Coffman, 10 Tex. Civ. App. 631 (32 S. W. 810), the application contained an agreement to have a watchman on the premises constantly at night and at all times when work was suspended. It was held that the insured, by employing a reliable watchman, and charging him with the duty of watching the premises, substantially complied with the contract in that respect, though the watchman may have been asleep at the time of the fire. The court used the following language:

‘ ‘ Appellee testified:

“ ‘ At the time of the fire I had a watchman at the mill, named Dean. I employed him as a watchman. I assigned him the duty to be at the mill at a certain hour in the evening, when the hands left, and to stay there until the hands came back in the morning, and to watch the mill to see that nobody bothered anything or stole anything.5

“In the absence of any testimony pointing out more clearly the duties required of a watchman’, we must hold that the appellee complied with the contract by placing on the premises a reliable watchman, charged with the duties of watching the property during the night, even though such watchman may have been asleep when the fire began. Sierra Milling, etc., Co. v. Insurance Co., 76 Cal. 235 (18 Pac. 267); Au Sable Lumber Co. v. Insurance Co., 89 Mich. 407 (50 N. W. 870); Houghton v. Insurance Co., 8 Metc. (Mass.) 123 (41 Am. Dec. 494). In the last-named case the question was asked:

“‘Is a watch kept constantly in the building? If no watch is constantly kept, state what is the arrangement respecting it.
'A. No watch is kept in or about the building, but the mill is examined 30 minutes after work.5

“ In that case Chief Justice Shaw said:

“‘Two questions were made at the trial: First, whether this representation of the usual practice amounted to any condition or stipulation that it should be continued. It was ruled at the trial, and the whole court are now of opinion, that as this examination was manifestly intended as a substitute for a constant watch; as it was one which the assured had it in their power to make or cause to be made; as it was one of the precautions tending to secure the property against danger of fire, and tending to its safety,—it was one which, as a general practice, the assured were bound to follow, although an occasional omission, owing to accident or to the negligence of subordinate persons, servants, or workman, not sanctioned nor permitted by the assured, or by their superintendent, manager, or agent, might not be a breach or noncompliance.’ ”

See Hovey v. Insurance Co., 2 Duer, 554; Crocker v. Insurance Co., 8 Cush. 79; London, etc., Ins. Co. v. Gerteson, (Ky.) 51 S. W. 617; Burlington Fire-Ins. Co. v. Coffman, 13 Tex. Civ. App. 439 (35 S. W. 406).

In Kansas Mill-Owners’, etc., Ins. Co. v. Metcalf, 59 Kan. 383 (53 Pac. 68), in the application the question was asked, “ Do you agree to keep a watchman on the premises at all times when the mill is not in operation ? ” The answer was, “Yes.” A watchman was employed, who was in and about the mill until 10 o’clock, when he went to a tent occupied by his family, about 200 feet away, and remained until the fire occurred, nearly two hours later. The company was held liable.

In Rankin v. Insurance Co., 89 Cal. 203 (26 Pac. 872, 23 Am. St. Rep. 460), under the facts in that case it was held the company-was not liable, but in the opinion the following language is used:

“ If a loss is occasioned by the mere fault or negligence of the watchman, unaffected by fraud or design on the part of the insured, it is within the protection of the policy; but, to entitle the insured to recover, it must appear that he has in good faith employed a watchman to perform the duties required by the terms of the warranty. Trojan Mining Co. v. Insurance Co., 67 Cal. 27 (7 Pac. 4); Wenzel v. Insurance Co., 67 Cal. 438 (7 Pac. 817); Cowan v. Insurance Co., 78 Cal. 181 (20 Pac. 408); Waters v. Insurance Co., 11 Pet. 219.”

In King Brick Manfg. Co. v. Insurance Co., 164 Mass. 291 (41 N. E. 277), attached to each of the policies of insurance was a rider containing, among other things, these words: 4 4 Situated on east side of Pleasant river, in Columbia Falls, Maine. Steam pump, with -sufficient hose to cover buildings. Constant watch.” The watchman was absent when the fire occurred, without the knowledge of the insured. It was claimed the words 44 constant watch” were a warranty, and nota representation, and that the company was not liable. The court said:

“Was there a breach of any of the terms of the policy by the insured ? This depends upon whether the insured absolutely promised that there should be 4 a constant watch;’ in other words, whether it warranted this, or whether the words constitute a representation, merely, andaré governed by the familiar rules applicable to representations. Unless they amount to a warranty, there is no breach of the agreement. In this part of the case we assume, of course, that the first clause of the section is not broad enough to include a statement as to the future.

44 It is a familiar rule of construction that a promise in regard to the future, which is not clearly made a warranty, is a representation only, and not a warranty. Houghton v. Insurance Co., 8 Mete. (Mass.) 114 (41 Am. Dec. 489); Daniels v. Insurance Co., 12 Cush. 416 (59 Am. Dec. 192); First Nat. Bank v. Hartford Fire-Ins. Co., 95 U. S. 673; Garcelon v. Insurance Co., 50 Me. 580. On the principles laid down in these cases, we cannot regard the words 4 constant watch ’ as constituting a condition precedent to the right to recover, and consider them as a representation that a constant watch would be kept. The duty was thus imposed upon the insured to use all reasonable care, and to take all reasonable means, to see that a constant watch was kept. This was done by making a rule to that effect, and providing a watc-h. No negligence or fraud is imputed to the insured. The loss was caused by the negligence of a servant, and this is a risk covered by the insurance. There was therefore no breach of the terms of the policy by the insured. Shaw v. Robberds, 6 Adol. & E. 75; Dobson v. Sotheby, Moody & M. 90; Houghton v. Insurance Co., 8 Mete. (Mass.) 114 (41 Am. Dec. 489); Daniels v. Insurance Co., 12 Cush. 416 (59 Am. Dec. 192); Loud v. Insurance Co., 2 Gray, 221; Insurance Co. of North America v. McDowell, 50 Ill. 120, 131 (99 Am. Dec. 497); Aurora Fire-Ins. Co. v. Eddy, 55 Ill. 213, 219; Mickey v. Insurance Co., 35 Iowa, 174 (14 Am. Rep. 494).”

In East Texas Fire-Ins. Co. v. Harris, 7 Tex. Civ. App. 647 (25 S. W. 720), the assured agreed to keep correct books and the last inventory locked in a fireproof safe, or in some place not exposed to fire, and in case of loss to produce the books and inventory. They were kept as required, but, when the store was on fire, the bookkeeper, fearing the safe was not fireproof, took the books and inventory to remove them to a safe place. As he ran out of the building he dropped some of them, and they were destroyed by fire. The company claimed, by way of defense, that plaintiff must literally comply with his covenant, and produce the books and inventory after the loss, before he could recover. The court declined to so hold, and the company was held liable.

The case of Liverpool, etc., Ins. Co. v. Kearney, 36 C. C. A. 265, 94 Fed. 314, was much like the last case. Among other things, the court said:

■ ‘ ‘ Counsel for the defendant company direct our attention, however, to the last paragraph of the ‘iron-safe clause,’ and urge, in substance, that the stipulation therein contained bound the plaintiffs, in any event, to produce the inventory after the fire, and that, even though it was lost and cannot be produced, they are not entitled to recover. This argument proceeds upon the theory that the last paragraph of the ‘ iron-safe clause ’ must be read literally, that it admits of no exceptions or qualifications, and that the failure to produce the books or inventory for any reason vitiates the policies. We cannot assent to this view of the case. Like all contracts made between private parties, and like all statutes, for that matter, they must recieve a reasonable niterpretation, which will not work injustice or lead to absurd consequences. U. S. v. Kirby, 7 Wall. 482; Heydenfeldt v. Mining Co., 93 U. S. 634; Church of Holy Trinity v. U. S., 143 U. S. 457, 460, 461 (12 Sup. Ct. 511); Scott v. Latimer, 33 C. C. A. 1, 89 Fed. 843; Thurber v. Miller, 14 C. C. A. 432, 67 Fed. 371, 32 U. S. App. 209; Davis v. Bohle, 34 C. C. A. 372, 92 Fed. 325.”

See, also, First Nat. Bank v. Hartford Fire-Ins. Co., 95 U. S. 673; Au Sable Lumber Co. v. Insurance Co., 89 Mich. 407 (50 N. W. 870); Spies v. Insurance Co., 97 Mich. 310 (56 N. W. 560).

Judgment is affirmed.

Montgomery, C. J., and Long, J., concurred with Moore, J.

Grant, J.

(dissenting). I cannot concur with my Brethren in this case. Plaintiff agreed to keep a watchman upon the premises at all times when the mill was not in operation. The watchman.whom plaintiff employed left his post in the night, went to his home, and retired to his bed. Who assumed the duty to keep the watchman ? The plaintiff. Who assumed the risk of neglect of that duty by him ? Clearly, it seems to me, the plaintiff. It was not contemplated that the defendant company should undertake to see that the watchman performed his duty or should be responsible for such neglect. Under the holding of my Brethren, the premises might be unwatched night after night, and still the defendant would be liable. While there is an apparent conflict in the authorities on the question of warranties, I think the following rule is in harmony with the great weight of authority:

“The courts are reluctant to import terms of warranty contained in the application for insurance into the completed agreement, when the policy does not clearly disclose the parties’ agreement to the union of the two papers in one contract. Phœnix Life-Ins. Co. v. Raddin, 120 U. S. 183 (7 Sup. Ct. 500). But when there is a distinct agreement that the application is a part of the contract, and the statements in the application, upon which the contract is based, are expressly declared to be warranties, the insured’s intent to bind himself to the exact truth in his answers, even as to immaterial facts, is adequately manifested, and the parties themselves thereby agree upon' the materiality of the things warranted. Burritt v. Insurance Co., 5 Hill, 188 (40 Am. Dec. 345); Armour v. Insurance Co., 90 N. Y. 450; O'Shaughnessy v. Co-operative Ass’n, 28 N. Y. Supp. 761; American Credit In demnity Co. v. Manufacturing Co., 36 C. C. A. 671, 95 Fed. 111; Mutual Life Ins. Co. v. Nichols, (Tex. Civ. App.) 24 S. W. 910.” 1 May, Ins. (4th Ed.) § 159, p. 319, note a.

Applying this rule to the facts of this case, I am compelled to hold that the agreement to keep a, watchman upon the premises at all times when the mill was not in operation was a warranty to do so, and that its breach avoided the policy. See American Ins. Co. v. Gilbert, 27 Mich. 433; Hoose v. Insurance Co., 84 Mich. 317 (47 N. W. 587, 11 L. R. A. 340).

I think the judgment should be reversed.

Hooker, J., did not sit.


author: Long, J.

text:
    WEST MICHIGAN FURNITURE CO. v. DIAMOND GLUE CO.
    1. Justices of the Peace—Appeal—Change of Issue—Breach of Warranty.
    Where a declaration in justice’s court set up a warranty that certain glue sold by defendant to plaintiff was “ as good as the glue plaintiff was then using,” it was error to permit plaintiff on appeal to introduce evidence that defendant’s agent stated at the time of the sale that he was familiar with plaintiff’s needs, that the glue would do his work, and that defendant would stand by the result in damages.
    2. Sale—Implied Warranty.
    The rule that, on the sale of an article for a particular purpose by the manufacturer, there is an implied warranty that the article is reasonably fit for the purpose for which it is bought, is applicable to a sale of glue for use in the manufacture of furniture.
    Error to Kent; Grove, J.
    Submitted January 10, 1901.
    Decided July 19, 1901.

      Assumpsit by the West Michigan Furniture Company against the Diamond Glue Company for a breach of warranty on a sale of chattels. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Charles B. Blair (William J. Strong, of counsel), for appellant.

      Peter Doran, for appellee.
   Long, J.

This suit was commenced in justice’s court.

Plaintiff declared orally on the common counts in assumpsit, adding a special count for breach of contract, “in which defendant represented certain glue it was selling to be as good as the glue plaintiff was then using.” The plaintiff filed a bill of particulars, as follows:

For tlie value of two barrels of glue sold and guaranteed by defendant, and invoiced under date of
February 13, 1897. Amount paid for glue________ §66 36
Labor and damages in rejoining and regluing materials, which were caused by reason of bad quality of glue................................. 75 00
$141 36

Defendant pleaded the general issue. On the trial in justice’s court, plaintiff had judgment for the amount claimed, $141.36, and $10 costs of suit. Defendant appealed to the circuit court, where the cause was tried before a jury, and plaintiff had judgment for $106.04. Defendant brings error.

The defendant is an Illinois corporation, engaged in the manufacture of glue. The two barrels of glue were sold by its agent, one George E. Allison, to be used by the plaintiff in its furniture factory. The claims of the respective parties were very fully and fairly set forth in the charge of the court. Exceptions were taken to the charge, and certain exceptions taken to the introduction of evidence, and to the refusal of the court to give a certain request to charge.

The warranty set up in the declaration in justice’s court was that the defendant represented * ‘ the glue it was selling to be as good as the glue plaintiff was then using; ” yet the court permitted the plaintiff to introduce testimony showing that the defendant’s agent said at the time he was selling «the glue: “I am thoroughly familiar with what your needs are. This glue will do your work; and you put it right in, and I will stand by the result, and, if there is any damage, we will take care of it.” There was no attempt made by the plaintiff to prove any express authority of the defendant’s agent to make the warranty, nor a general usage of trade from which such authority could be inferred. It is settled that the warranty and breach set up in justice’s court cannot be changed, and a new and different warranty and breach be set up in the circuit court on appeal there. Loranger v. Davidson, 110 Mich. 605 (68 N. W. 426). It was said in Hatzenbuhler v. Lewis, 51 Mich. 585 (17 N. W. 67, 273), that the issue made in justice’s court cannot be substantially changed in the circuit court on appeal.

Defendant asked the court to charge:

“ In the absence of affirmative proof that, at the time the glue was sold, a general usage existed in the glue trade that glue sold to furniture manufacturers is warranted to be suitable to the buyer’s requirements, there is no implied warranty of the fitness of the glue, or that it was suitable for plaintiff’s work.”

This was refused. "We think the court was not in error in refusing this request. A similar question arose in Bird v. Mayer, 8 Wis. 362. The plaintiff was a manufacturer of varnish, and sold to the defendant certain carriage varnishes. Suit was brought to recover'the price, and was defended on the ground that the varnishes were warranted of good quality, and well adapted to the purpose for which they were bought. The court, in deciding the case, said:

“ This was a sale of manufactured articles designed for a particular purpose by the manufacturer, and the law implies a warranty that the articles so manufactured and sold should be adequate to the purpose for which they were sold and purchased.”

This is the rule that has been laid down many times by this court. McCray Refrigerator Co. v. Woods, 99 Mich. 269 (58 N. W. 320, 41 Am. St. Rep. 599); Little v. G. E. Van Syckle & Co., 115 Mich. 480 (73 N. W. 554).

We find no error in the case, except the first here noticed. For that error, the judgment must be reversed, and a new trial granted.

The other Justices concurred.


author: Montgomery, O. J.

text:
    HOUSDING v. SOLOMON.
    1. Conditional Sale—Construction of Contract—Satisfaction of Buyer.
    Where plaintiff purchased horses of defendant under a written agreement that, if they should not suit, defendant would give other horses in place of them, the sale was conditional on the horses finally furnished suiting pláintiff, of which question he was the sole judge.
    2. Same—Rescission—Offer to Return.
    It was not necessary,-to entitle plaintiff to rescind, to offer to return the horses; notice that they were unsatisfactory being sufficient.
    3. Same—Reasonable Time—Instructions.
    Where, in an action for the breach of such contract, there was evidence that defendant knew from the day after the sale until the commencement of suit, some seven months thereafter, that the horses were not satisfactory, and that plaintiff wanted a new team, an instruction that, if the horses did not suit after a reasonable trial, it was plaintiff’s duty to notify defendant w.ithin a reasonable time, giving sufficient reasons therefor, and give defendant an opportunity to furnish other horses, was sufficiently favorable to defendant.
    4. Same—Acceptance of Substituted Property.
    Plaintiff was not concluded by his acceptance of a horse offered by defendant in exchange for one of the originals, if the acceptance was conditional on the horse proving satisfactory, and with the understanding that the original agreement should remain in force.
    5. Same—Damages—Instructions.
    If the sale was regularly rescinded, plaintiff was entitled to recover the purchase price; anda judgment therefor, based on a finding of rescission, will not be disturbed because of an erroneous instruction as to the measure of damages.
    Error to Grand Traverse; Mayne, J.
    Submitted January 30, 1901.
    Decided July 19, 1901.

      Assumpsit by William L. Housding against Leo Solomon for tbe breach of a contract of sale. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Pratt & Davis, for appellant.

      Manly G. Dodge, for appellee.
   Montgomery, O. J.

On May 8, 1899, plaintiff purchased of defendant’s agent a span of horses, giving in payment therefor one horse, at an agreed price of $50, and two promissory notes, of $75 each. Defendant’s agent at the same time gave plaintiff a paper writing as follows:

“Traverse City, Mich., May 8, 1899.

“I sold this day to William L. Housding one pair of horses. Those horses are good in the wind; good to work; no spavin or ringbone. If either of those two horses should not suit, I will exchange, and give him another horse in place of them.

“Herman Hyman.”

Plaintiff testified that he stated to Hyman the following day that the horses did not suit him. Fourteen days later, Hyman brought to plaintiff a gray mare, which he exchanged for one of the horses. Plaintiff testified that he objected to this horse, and told Hyman that their agreement would stand, and that Hyman either nodded his head or gave no answer; also that plaintiff told Hyman at this time that the other horse did not suit. Plaintiff also testified that he notified defendant personally some time in July that the horses did not suit, and asked for another team; and again some time before the commencement of this action, at which time defendant showed him a pair of small ponies, which he did not want, as they were too small. On the day upon which this action was begun,— November 27, 1899,— plaintiff drove the team to Mr. BrodhageiTs barn, and had a conversation with defendant, in which he offered to return the horses, and demanded another team. Defendant refused to furnish him another team unless he would pay the difference. Plaintiff thereupon unhitched the team and took them to his home.

■The jury answered the following questions, submitted by defendant, in the affirmative:

“1. Did the plaintiff, at any time after May 22, and before November 27, 1899, offer to return the horses in controversy to the defendant ?

“ 2. Did the defendant ever refuse to furnish a team to plaintiff ? ”

The declaration is in assumpsit, counting upon damages arising out of the alleged breach of contract by defendant in delivering a different team than represented. Plaintiff recovered a judgment of $200. '

Defendant contends that a verdict should have been directed for defendant, on the ground that plaintiff did not offer to return the horses within a reasonable time; that “plaintiff could not use the horses after he had had a reasonable time in which to try them, and speculate at our expense.” That part of the agreement which was put in writing is construed by defendant as a warranty against the particular defects mentioned, while plaintiff contends that it renders the transaction a conditional sale; the condition being that the horses finally furnished should suit plaintiff.

If the last sentence of the paper writing was intended to have any effect at all, it meant that defendant would give in exchange horses which should prove satisfactory. Certainly it did not mean that defendant would give in exchange such horses as he pleased. The exchange must at least be assented to by plaintiff at the time of making it. It follows that the two horses originally received became the property of plaintiff subject to his right to rescind until he waived his right to declare them unsatisfactory, either by delay, in notifying defendant that they did not suit, or otherwise; nor would any horses offered in exchange become his until he accepted them. So construing the contract, it is clear that the plaintiff is the sole judge of the question of whether the horses suit or not. Walter A. Wood Machine Co. v. Smith, 50 Mich. 565 (15 N. W. 906, 45 Am. Rep. 57); Plano Manfg. Co. v. Ellis, 68 Mich. 101 (35 N. W. 841); Platt v. Broderick, 70 Mich. 577 (38 N. W. 579). And he need not return the team. Notice that it was unsatisfactory was sufficient. Phelps v. Whitaker, 37 Mich. 77; McCormick Machine Co. v. Cochran, 64 Mich. 641 (31 N. W. 561).

, There was plenty of evidence from which the jury might have found that defendant, through his agent, and later personally, knew during the entire period, from the day after the trade until the commencement of the suit, that the horses were not satisfactory to the plaintiff, and that he wanted a new team, according to the terms of the writing. There was also evidence tending to show that the gray mare was accepted only on condition that she should suit plaintiff,—that “the agreement would stand.” The circuit judge instructed the jury that, if the horses did not suit after a reasonable trial, it was the duty of the plaintiff to notify defendant of the fact, giving his reasons therefor, and give defendant an opportunity to furnish another horse; and that “there must exist some sufficient reason why the horse didn’t suit him, and the claim must have been made within a reasonable time.” He also left to the jury the question of whether it was understood that the contract should remain in force as to the new horse. These instructions were sufficiently favorable to defendant.

Defendant excepted to the following instructions:

“ ‘If you should find from the evidence, that plaintiff did not accept said horses, or waive or release his right to have a team that suited him,’—that is, under the law as I have given it to you,—‘ and that he was not suited with said horses, and that defendant or his agent, Herman Hyman, knew before the commencement of this suit that said horses did not suit, and had an opportunity to furnish a team that did suit, or take back said horses and surrender the notes given therefor, and refused to do so, then you are instructed that your verdict should be for the plaintiff.’ This whole instruction, gentlemen, is to be taken by you in connection with the charge given on my own motion. ‘ And, if you do so find, I charge you further, in connection with the question of damages, that the plaintiff would be entitled to recover against the defendant all that he has lost or suffered by reason of the failure of the defendant to furnish plaintiff with a team that suited him, as shown by the evidence in this cause. As a part of such damages, it would be your duty to allow to plaintiff whatever he paid to the defendant, namely, $50 allowed for the horse received as part of the purchase price, and $150 paid by the two notes given by the plaintiff, and whatever the evidence may convince you the plaintiff has suffered in addition thereto.’ The only evidence in addition: to this, gentlemen, would be the sum of $11 for farm work. It is for you to say whether or not he is entitled to that sum of $11, under the evidence in the case, just the same as whether he is entitled to this $200 or not.”

The judgment was for the purchase price of the team: Taking that portion of the above charge which relates to the circumstances under which the verdict should be for the plaintiff, in connection with the other portions of the charge referred to above, it seems clear that the jury, to reach this verdict, must have found such facts as would prevent the conditional sale from being completed. If the sale was rescinded, the verdict should be for the purchase price. It is clear, therefore, that the result reached was correct. Hence the balance of the instruction as to the measure of damages was not prejudicial.

The judgment is affirmed.

The other Justices concurred.


text:
    BALDWIN v. ERIE SHOOTING CLUB.
    1. Highways — Navigable Waters — Great Lakes —Swamp Lands.
    Where territory some 4,000 acres in extent, lying within the meanders of one of the Great Lakes, and forming a bay or an arm thereof, being covered by water of an average depth of two feet, was surveyed by the general government, and patented to the State as swamp land, and was by the State conveyed to private persons, the same thereby became private property, and a right of passage over it could not be maintained on the ground that it was a public highway.
    2. Same—Way of Necessity.
    One whose land is entirely surrounded by the submerged lands of another is entitled to a way of necessity over the latter, which should not be restricted in its use to the daytime, or so as to exclude his guests.
    Appeal from Monroe; Kinne, J.
    Submitted February 12, 1901.
    Decided July 19, 1901.
    Bill by Willis Baldwin to enjoin the Erie Shooting Club from interfering with his passage over certain submerged lands of defendant. From the decree rendered, both parties appeal.
    Modified.

      Ira G-. Humphrey {Willis Baldwin, in pro. per.), tor complainant.

      De Forest Paine, for defendant.
   Long, J.

The bill in this case is filed to restrain defendant from interfering with the passage of complainant over the waters of Maumee Bay to reach his own premises, otherwise inaccessible. The complainant is the owner of an undivided one-half of 80 acres of land situate in Maumee Bay, Monroe county; and defendant owns, or is in possession of under leases of, about 4,000 acres of land, which entirely surround the land of complainant. The lands of defendant are almost entirely covered by water, and it is complainant’s contention that these waters are navigable waters, and free for the public use as a highway.

This identical question in reference to these same lands of defendant was in controversy in the case of Toledo Liberal Shooting Co. v. Erie Shooting Club, in the United States court of appeals, and is reported in 33 C. C. A. 233, 90 Fed. 680. The testimony in the present case was taken in open court, and is returned in the record here. We find that the Conclusions to be drawn from the testimony correspond exactly with the facts found by the Federal court in that case, and, as the facts áre set out fully in that case, it will be sufficient to refer to them. It was there found:

“The contention that the waters covering the submerged part of the lands claimed under lease by the Erie Shooting Club are navigable, and therefore subject to the public right of navigation, is not supported by the evidence in this record. The fact that this so-called bay was surveyed and platted as swamp land by the government affords a strong presumption against the navigability of the water thereon. This survey was under the authority of the government, which subsequently conveyed the lands so platted to the State of Michigan as swamp lands, under the act of September, 1850, known as the ‘ Swamp-Land Act.’ That the State subsequently conveyed them is a further circumstance tending to establish that no public easement had or could exist therein by reason of the navigability of the waters thereon. Just where the so-called bay opens into the lake, at its southeast end, there is water navigable for ordinary commercial purposes. This channel rapidly shallows as the bay is penetrated. From a line drawn east and west through the center of sections 34 and 35 to the extreme northern end of this bay, a distance of over three miles, the average depth of water will not exceed two feet. There are places in which it is deeper, but in these it rarely exceeds three feet. There are large sections within the area mentioned where the water does not average twelve inches; and considerable parts, especially in section 27, where it is not six inches in depth, except under unusual winds or freshets. An effort has been made to show that there are deeper and navigable channels permeating this shallow marsh. Several small creeks empty into this bay. The channels of one or more . of these may be traced with difficulty in parts of the marsh. They soon cease to have any defined banks, and are lost in the wider waters, whose level is affected by the fluctuations of the lake. It is impossible, upon this evidence, to say that any one of these so-called channels is navigable. Their continuity is insufficient, and the proof as to their course and depth is altogether too slender and contradictory to justify a reversal of the' decree below. From June to October this body of water is covered with a mass of aquatic vegetation, such as wild rice, rushes, etc. It is then impenetrable, save by the laborious method of punting. At no time is the greater part of this marsh susceptible of supporting ‘commerce,’ in any reasonable sense of the term. That the water stands permanently, and that it has a deep opening into Lake Erie, does not establish that this shallow body of water is capable of sustaining commerce, or is burdened with a public use. It is nothing more or less than a marsh opening into the lake.”

Upon those findings, the court found, as a matter of law, as follows:

“ To he navigable in law, it must be navigable in fact;' that is, capable of being used by the public as a highway for the transportation of commerce. None of the characteristics of commercial navigability are shown here. It is the natural feeding ground of the duck and other waterfowl. In their pursuit by canoe and fiat-bottomed ducking boats, the water may be navigated. That is not commerce, and proves nothing. The same test would convert every pond and swamp capable of floating a boat into a navigable stream or lake. This bay is not a highway, never has been, and can never be. At the common law the term ‘ navigable’ had a technical meaning, and was applied to all streams or bodies of water in which the tide ebbed and flowed. All such waters were public. That definition is not applicable in this country, and all waters are héld navigable in law, and subject to a public use, which are by their character capable of use as highways for purposes useful to trade or agriculture. It is the capability of being navigated for useful purposes which is the test. Gould, Waters, § 54, and cases cited; Barney v. Keokuk, 94 U. S. 324; The Daniel Ball, 10 Wall. 557, 563; The Montello, 20 Wall. 430, 441; Moore v. Sanborne, 2 Mich. 519(59 Am. Dec. 209 ); Chisolm v. Caines, 67 Fed. 285; City of Grand Rapids v. Powers, 89 Mich. 94 (50 N. W. 661, 28 Am. St. Rep. 276); Hall v. Alford, 114 Mich. 165 (72 N. W. 137, 38 L. R. A. 205); Rowe v. Granite Bridge Corp., 21 Pick. 344; Attorney General v. Woods, 108 Mass. 436 (11 Am. Rep. 380). In the case of The Montello, cited above, the court said i

“ ‘The capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river, rather than the extent and manner of that use. If it be capable in its natural state of being used for purposes of commerce, no matter in what mode the commerce may be conducted, it is navigable in fact, and becomes in law a public river or highway. Vessels of any kind that can float upon the water, whether propelled by animal power, by the wind, or by the agency of steam, are or may become the mode by which a vast commerce can be conducted; and it would be a mischievous rule that would exclude either in determining the navigability of a river. It is not, however, as Chief Justice Shaw said in Rowe v. Granite Bridge Corp., 21 Pick. 344, “every small creek in which a fishing skiff or gunning canoe can be made to float at high water which is deemed navigable, but, in order to give it the character of a navigable stream, it must be generally1 and commonly useful to some purpose of trade or agriculture.’”

“ If this is a private property, it must follow that appellants bave no right to trespass thereon. Their own property being inaccessible, save by going over that of appellee, entitles them to a way of necessity. That they obtained by the decree below. Decree affirmed.”

The court below in the present case held in accordance with the rule laid down in that case, and we think very properly, though we do not adopt the language employed in that case. We had occasion to examine the question here involved in the case of Brown v. Parker, ante, 390 (86 N. W. 989); and we there held those lands, which are identical in character with those in suit, to have passed to the State under the swamp-land act of 1850.

The court below in the present case entered a decree holding that the waters covering the defendant’s lands were not navigable waters, and did not constitute a public highway, but that complainant was entitled to a way of necessity, and decreed as follows:

“It is ordered, adjudged, and decreed that the, said complainant, Willis Baldwin, his heirs, assigns, grantees, and lessees, and necessary workmen for the purpose of making improvements on said premises (but not licensees or guests), shall, for the purpose of going to the said east half of the southeast quarter of section 22, town 8 south, range 8 east, be allowed to go in the daytime over the following property of the said Erie Shooting Club in a boat, entering upon said property out of Bay creek, on section 15 in said township, continuing in a southeasterly direction across sections 15 and 23 in as direct a course as practicable, in view of the depth of water necessary for such purpose, reaching the said east half of the southeast quarter of said section 22 by as direct a route as may be practicable; and they shall be permitted to return, and shall return, in the daytime, from said section 22, by the same route, and in going and returning shall do so in such a manner as shall disturb the wild birds and game upon the said property of the Erie Shooting Club as little as possible.”

The decree also enjoined complainant from going over any other of defendant’s premises, and granted costs to complainant. Both parties have appealed, the defendant claiming that, under the pleadings, the court was in error in granting a way of necessity. We think the pleadings were sufficient for that purpose.

The court below was not in error in this decree, except in the limitations put upon complainant’s right of passage to and from his premises. The decree must be modified in that respect, giving complainant the right to take his « guests to and from his premises at any time, night or day, over the route fixed in the decree. The complainant will recover costs of this court.

The other Justices concurred.


author: Hooker, J.

text:
    SMITH v. CUDDY.
    Appeal—Evidence—Review.
    A decree setting aside a deed on the grounds of mental incompetency and undue influence was reversed on the facts.
    Appeal from Kent; Perkins, J.
    Submitted March 6, 1901.
    Decided July 19, 1901.
    Bill by Alonzo L. Smith against Thomas Cuddy to set aside a deed. From a decree for complainant, defendant appeals.
    Reversed.

      Wylie & Clapperton, for complainant.

      David Stockdale and Wilkes & Hoffman (Howard, Boos & Howard, of counsel), for defendant.
   Hooker, J.

The parties to this suit were respectively husband and brother of Rebecca J. Smith, deceased, and her only heirs. The complainant filed the bill in this cause to set aside a deed made by Rebecca J. Smith to the defendant upon the grounds' of incompetency and undue influence, and obtained a decree in the circuit court, from which the .defendant has appealed. The question is one of fact merely, and a discussion of the evidence would be profitless. We are satisfied that the deceased was neither insane nor incompetent when the deed was made, and that it was not obtained through undue influence.

The decree is reversed, and bill dismissed, with costs of both courts.

Montgomery, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit.