author: Ostrander, C. J.

text:
    WOODS v. KALAMAZOO PAPER BOX CO.
    Master and Servant — Infants—Dangerous Occupation — Statutes.
    Where a girl of 15 years was employed by defendant in violation of the requirements of Act No. 285, Pub. Acts 1909, as an operator of a box-making machine that was operated by means of a treadle, which, upon being tripped, released a hammer or plunger, and where she tripped the machine while her finger was beneath the plunger, which descended and pinched it, and where there was no necessity for her to place her hand in the machine, she was, as a matter of law, guilty of contributory negligence barring her recovery.

    Error to Kalamazoo; Knappen, J.
    Submitted November 6, 1911.
    (Docket No. 40.)
    Decided December 8, 1911.
    Case by Jessie "Woods by her next friend against the Kalamazoo Paper Box Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      A. M. & O. H. Stearns (Fred L. Vandeveer, of counsel), for appellant.

      Fred A. Mills and Harry O. Howard, for appellee.

       On question, May one employing child under statutory age rely on contributory negligence or assumption of risk, to defeat liability for personal injuries ? See notes in 12 L. R. A. (N. S.) 461, and 20 L. R. A. (N. S.) 876.

   Ostrander, C. J.

Plaintiff was employed by the defendant in the manufacture of paper boxes at a machine called a “stayer machine,” which performed the operation of fastening a gummed tape upon the corners of boxes. The gummed tape was contained in a roll in the machine, and was automatically fed by the machine towards the front thereof and towards the operator as the work pro-grossed; the tape being moistened as it passed from the roll, or coil, to the boxes. At the front of the machine was a small piece of metal which served the purpose of an anvil, and just above it was the orifice, through which the tape was fed. In the process of manufacturing, a corner of the box was placed on this anvil, sufficient of the tape was fed through the orifice over the anvil, and a plunger or hammer, working vertically, descended and struck the tape and the corner of the box, fastening the tape in place; the same motion cutting the tape. Power was supplied by electricity. On the 1st day of October, 1909, plaintiff was injured by having one of her fingers struck and pinched between the descending hammer and the anvil. She brought suit, and recovered a substantial verdict, which the court declined to set aside.

She avers in her declaration that when she was hired by the defendant, and at the time of her injury, she was but 15 years of age, and was employed at work dangerous to life and limb; that the defendant did not keep a register in which was recorded the name, birthplace, age, and place of residence of the plaintiff, and did not have on file in its business office a permit issued by the superintendent of schools for the school district in which plaintiff resided or by the person in charge of any State employment bureau or by the probate judge of the county, all contrary to the provisions of Act No. 285, Pub. Acts 1909. Breaches of statute duties are averred, as well as neglect to properly instruct her in the proper use of the machine.

We find it unnecessary to discuss many of the interesting questions debated by counsel, because we are of opinion that upon her own showing plaintiff was not entitled to recover. Assuming, but not deciding, that her employment violated the statute declared upon, and that the negligence of the defendant which is averred was in other respects established, it appears that plaintiff is herself responsible for her injury. It is conclusively established that the hammer, the blow from which is said to have caused the injury, is in motion only when the operator of the machine sets it in motion, and that it is set and kept in motion by a treadle or lever which the operator presses with her foot. If the machine is at rest for any length of time, that portion of the gummed tape which has passed the point at which it is moistened becomes dry and stiff and useless. In such cases the operator, the machine being at rest, uses a pair of pinchers to take hold of the tape and pull it out sufficiently so that the moistened portion thereof can be applied to the corner of the box. On the day when the plaintiff was injured, she left her machine for a time, and, upon returning, she found the tape dry.

What she then did, and the manner in which she received her injury, was detailed by her upon her cross-examination as follows:

“Q. I wish you would tell me just what you were doing, and how this accident occurred ?
“A. I was fixing a box.
“Q. Show the jury. You told us about the anvil. Show the jury what you did.
“A. I was just putting it up on the anvil.
“Q. Tell us what you did.
“A. That thing came down on my finger.
“Q. Accidentally, you tripped the machine, didn’t you?
‘‘A. I guess so.
“Q. You knew the machine would not plunge down without it was released, didn’t you ?
“A. Yes, sir.
“ Q. You also had to press your foot to have the plunger come down, didn’t you ?
“A. Yes, sir.
“Q. Now, the function of that machine was what, the work it did ?
“A. Just taking a little paper on there and keeping the corners together.
“Q. That was pasting on a piece of paper ?
“A. Yes, sir.
“Q. It has an automatic feed, this stayer machine?
“A. Yes, sir.
“ Q. When this comes down, it is cut off, is that correct ?
“A. Yes, sir.
“Q. And this strip is pasted on the corner of the box ?
“A. Yes, sir.
“ Q• You said in answering some question that that was cut by a knife that was in the machine ?
“A. Yes, sir.
“Q. Now the knife that was in the machine, if it was a box inches deep, would have to be at the extreme end, would it not ?
“A. Yes.
“Q. The knife, to cut that, must at least have been the depth of the box from the front end of the machine, is not that correct ?
“A. Yes, sir.
“Q. It was that knife you got cut on ?
“A. Yes, sir.
“Q. Your finger was not jammed on the anvil was it ?
“A. The end was jammed.
“Q. The end of the finger was jammed ?
“A. Yes, sir.
Q. But it was also cut there ?
“A. I think that way.
“Q. You got cut in that operation. It was a cut, as well as a bruise, I understand you ?
“A. Yes, sir.
“Q. So that at least you must have had your finger straight from the front the full depth of the box you were at that time making to have got it caught ?
“A. The machine came down on my finger.
“Q. When you came there in the morning, what was the first thing you did in the morning or afternoon, after you had been working on the machine ?
“A. I would go right to work.
“Q. What was the first thing necessary to be done ?
“A. Why, run . the paper out so that it would not be dry. When the machine had been standing, the paper that had been gummed would have dried, and it was necessary to pull that paper or tape out far enough so it would get a fresh start so far as the gum was concerned. I had to do that in the morning before starting to work and in the afternoon before starting or at any time when I left the machine for any considerable length of time. This accident occurred about 4 o’clock in the afternoon. It was towards evening. It was not real light or real dark. We didn’t have any electric turned on.
“Q. Now, let me refresh your recollection a little, and ask you whether or not at the time this accident occurred if you hadn’t left the machine for a few minutes, and had come back and was pulling out this tape, preparatory to making a box ?
“A. I think I was making a box when I got hurt. I think I am positive about that.
“Q. Let me see if I can refresh your recollection. How do you get that paper out when you start to work in the morning ?
“A. Take a pair of pinchers and pull it out. These pinchers are furnished and lay there on the machine. When Mr. Smith showed me how to operate the machine, he took those pinchers, and showed how it was done and pulled it out.
“Q. Let me ask you whether or not this accident did not occur after you had left the machine for a short time, and had returned and had got your pinchers, and reached in with this hand, and the accident occurred in that way while you were pulling out this tape, rather than at a time when you were making a box ?
“A. I think I was pulling the paper out. I pulled it out with the pinchers, then took a hold of it after it was out of the machine.
“Q. Was it not then exactly as I have described it to you?
“A. Yes, sir.
“ Q. You started to pull the paper out with the pinchers that were furnished for that purpose, and you reached in to get a further grasp with this finger with this hand and got caught at that time ?
“A. I didn’t reach in there ?
tfQ. What did you do with this hand, you had the pinchers in one hand ?
“A. I had hold of the paper, but didn’t have it in the machine.
“Q. You must have had your finger in the machine at the time of the accident, didn’t you ?
“A. I had hold of the paper, but it was not under that machine part that came down.
“Q. What was it that struck your hand ?
(‘A. I don’t know. All I know is I got my finger in there.
“Q. You had hold of the paper with your hand pulling it out?
“A. I had it pulled out with the pinchers, then took hold with this hand.
“Q. You had taken it out with the pinchers, then took hold with this hand ?
“A. Yes, sir.
“Q. It was that hand, that finger, the middle finger of this hand that the plunger came down upon while you still had hold of the paper ?
“A. Yes, sir.
“Q. Had Mr. Smith showed you how to pull that paper out ?
“A. Yes, sir.
“Q. He had told you that the pinchers were there for the express purpose of doing that, and you used them for that purpose partly, and reached in with this hand and pulled it out and got caught?
“A. I always used the pinchers in pulling the paper out. I don’t know how that finger got in there.
‘‘Q. I understood you to say you put it in there ?
“A. I didn’t put it in the machine.
“Q. You didn’t put the finger in the machine that got hurt?
“A. No, sir.
“Q. How on earth did it get hurt then ?
“A. I don’t know.”

The machine, or one like it, was produced at the trial, and with it before her plaintiff was recalled and further examined by her counsel, and testified as follows:

“Q. Did Mr. Smith tell you that you must use the pliers in all cases, and not your fingers; that the pliers would he supplied, etc.? Did he tell you all those things I have read in the notice ?
“A. Yes, sir.
“Q. He told you that you must not use your fingers?
“A. Yes, sir.
“Q. Did you use your fingers in the machine ?
“A. No, sir.
“Q. Where were they ?
“A. I just took hold of the paper like you do.
“Q. As I hold them now ?
"A. I don’t think they were so far under. That piece you have your fingers on would come down and hit your fingers, if you had them there.
“Q. You mean the guards ?
“A. No, sir; the other part. The guards were up when I had the machine.
ilQ. Come here on this chair, and we will operate the machine. On your cross-examination you undertook to explain to Judge Stearns, I believe, that if somebody else came along and put their foot on the treadle, and you didn’t know about it when you were out, and the machinery was shut down and you came in and the machinery started up while you were at the machine? that you might get caught, and you might not know about the person being in there ?
“A. Yes, sir.
“Q. Now, when you went out to dinner, the machine was shut down ?
“A. Yes, sir.
“Q. We will concede that you had been out to dinner and did not know, and I will put my foot on the clutch here. Now the machine is quiet. Do you mean that coming after somebody had touched the treadle like that, that the machine would trip without the aid of your foot, was that what you were trying to state ?
“A. Yes, sir; I don’t say they did that. They might have done it. This treadle throws on the power and propels the machine.”

And on cross-examination she further testified:

“Q. Now, this accident occurred, if I understand it right, Jessie, after you had returned from being absent for a time ?
“A. Yes, sir. We had been watching out the window of the third floor, watching a balloon, as it was going up. I had been down and back, talking to one of the girls just before this accident. When I left the machine, I took my foot off the treadle that released it.
“Q. Then you went away and was looking out the window watching a balloon and talking with the girls. About how long were you absent ?
“A. Well, I don’t know. I don’t think over 15 minutes. It was long enough for the paste to dry in my absence, and the tape had to be pulled out when I went to work again. I had to pull it out on this occasion. No one had interfered with the machine on this particular occasion, not that I know of. I didn’t see any one around there. I didn’t find anything to indicate that any one had interfered with it.
“Q. When you came back, if I under stand you correctly, this accident occurred, while you were pulling out the paper ?
“A. Yes, sir. It was not while I was making the box at all. I had the box in my lap, and didn’t have it in my hand. I came back and set down to the machine, and started to pull the paper out, and put my foot on the treadle, and that started it, and it came down and caught my finger. I had the paper out beyond the upright part there. I had it out from the anvil a few inches, about so far (illustrating). I had hold of it with the pliers with the right hand and put my left hand around here (indicating) to pull it out better, because these little pliers would not hold on to the paper real good. They slipped. The paper was very hard to pull out. You would have to take something more than the pliers. They would not hang onto the paper good. When I put my hand around here, I kept it away from this part. I knew that, if I got it under there and touched the treadle, there would be danger.
“Q. How do you explain that the accident occurred, if your finger was not under there ?
“ A. It was done so quick I don’t know how it was done, but I know that I would not stick my finger under there when I knew it was dangerous.
“ Q. Is not this true, were you not a little careless about it, when you were pulling this out, were you not talking with some of the girls ?
“A. No, sir; I was paying attention to what I was doing absolutely.
“Q. You would not put your foot on the treadle there, unless you got it in shape, would you ?
“A. No, sir.
“Q. How did you come to put your foot on there before you got it in shape ?
"A. I had it in shape before I put my foot on there. When I thought I had it out far enough, I put my foot on there. I know I was looking at it, and that I had it out far enough and I put my foot on there and set it to working. I know I was looking right at it at the time. I knew that, if I got my finger under there, I was liable to get caught. I am satisfied that I did not have my finger under there when I pushed down the treadle.
“Q. Is there any possible way you can explain to the jury how your finger got caught, if it was not under there ?
“A. I don’t know.
“Q. Are you sure you were not talking with either one of these girls at the time this accident occurred or immediately before ?
“A. When I was working the machine, I didn’t talk to anybody. If I stopped to talk to anybody, I didn’t work.
Q. My question goes to the identical moment that you had this accident, as to whether or not just at that moment or a moment before you were talking with either of these girls ?
“A. A few moments before, I had been, I own, but then I was looking at what I was doing.
Q. During the time you were engaged in pulling this paper out and starting the machine, during that time, you were not talking with either of the girls ?
“ A. No, sir; and I was not looking over my shoulder, but was paying strict attention to my business. I knew when I put my foot on there, that the machine would start and I knew if I had my finger under there, that I would get caught.
Q- Did you put your foot on there purposely or accidentally ?
“A. I put it on there to cut that paper off.
Q. Did you do it accidentally or on purpose ?
“ A. I guess I did it on purpose.
*' Q. I understood you to say on your examination a while ago that it was accidental ?
“A. No, sir; I didn’t say that. In order to start the machine, I had to put my foot on there to chop off that paper. ”

On further redirect examination, she said:

Q. Do you know whether your finger was anywhere near that anvil or on the anvil ?
“A. I thought it was just pushed far enough so I would not get hurt. The knives are back near the end of the anvil. I do not mean to be understood that I got hurt back there.
“ Q. When the plunger comes down and you have hold of the paper, do you know whether the tendency might be for the paper to draw back into the machine ?
“A. Why I don’t think it would draw back any.
UQ. You think you had your hand clear of it ?
“A. Yes, sir.
“Q. But the finger guards were not down at all ?
“A. I didn’t know what those were then. They hadn’t been explained to me. I have seen them operated here today. This is the first time I ever saw them operated, but one of the girls told me after the accident about them.
“Q. You didn’t mean to say that while you were looking at the balloon somebody may have tripped the machine ?
“A. No, sir. The machine was running' all the time, so that, if any one in my absence had touched the treadle, it would have operated before I got back any way.”

The machine and the method of its operation were exhibited to this court at the argument. The guards referred to in the testimony were attachments on either side of the anvil, designed to protect the hands of operators when holding the boxes in place to receive the gummed tape. Sometimes operators turned these guards up out of the way because they could thus work faster. Whether they were in place on this machine, or whether plaintiff had been instructed to keep them in place, is immaterial. They presented no barrier to the act of putting the pliers or the finger directly into the machine, and their presence, in position, would not have prevented the injury. Giving to plaintiff’s testimony the greatest probative force, it shows' no connection between defendant’s alleged negligence and her injury, unless her employment to operate the machine was a violation of the statute. If it was a violation of the statute, her own conduct may nevertheless *be considered to determine whether she was herself at fault. Upon this question her testimony is conclusive. She tripped the machine — set it in motion — while her finger was in the machine, over the anvil. She was not ignorant of the danger or of the consequences of what she did. Unless the machine moved, she was in no danger. It could not move unless she set it in motion. She had no occasion to place her finger in a position where it could be injured, and none to start the machine when it was in such a position.

The judgment is reversed, and no new trial will be granted.

Steere, Moore, Brooke, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    SULLIVAN v. MODERN BROTHERHOOD OF AMERICA.
    1 Insurance — Accident—Directing Verdict.
    Testimony of plaintiff, who was insured against accidental injuries, that while she was washing clothing water splashed into her eye, and that gonorrheal infection, resulting in. the loss of her eye ensued, was not so improbable, nor was the cause of her injury so conjectural, that the court should have directed a verdict for the insured.
    2. Same — Policy—Disease—Words and Phrases.
    Nor was the loss of the eye the result of disease in such a sense that plaintiff oould not recover.
    3. Same.
    Where the death or injury is caused by a disease not resulting from any bodily infirmity or disease existing at the time of the accident, but is itself caused by the external, violent, and accidental means which produced the injury, the disease is an effeot of the accident, a mere link in the chain of causation, and the insurer is therefore liable.

    Error to Houghton; Streeter, J.
    Submitted November 6, 1911.
    (Docket No. 38.)
    Decided December 8, 1911.
    Assumpsit by Mary E. Sullivan against the Modern Brotherhood of America upon a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      MacDonald & Kerr (Blythe, Markley, Buie & Smith, of counsel), for appellant.

      Galbraith & McGormack, for appellee.

      As to what constitutes an accident within meaning of accident insurance policy, see note in 30 L. R. A. 206.

   Stone, J.

The defendant is a fraternal organization, having, among other features, a life and accident insuranee for its members. It is organized under the laws of the State of Iowa, but has subordinate lodges in Michigan, where it is authorized to do business. Plaintiff became a member of what is known as Laurium Lodge, one of the subordinate lodges of the defendant in Houghton county, on the 11th day of September, 1907, and remained in good standing until after the time of the occurrence upon which this suit is based. On becoming a member of the order, plaintiff received a certificate or policy entitling her beneficiary to the sum of $1,000 in case of death, and, among other things, it provided that:

“One-fourth (£) the amount the beneficiary would be entitled to in case of death, will be paid to said member should she accidentally lose a hand, at or above the wrist, a foot at or above the ankle, or for the total permanent loss of the sight of an eye by accident.”

The plaintiff by this suit claims the loss of the sight of the right eye by accident, and, under the provisions of the policy above quoted, she seeks to recover $250 therefor.

It was the claim of the plaintiff at the trial that on March 26, 1909, while doing her family washing, with a washtub and washboard, and while washing some flannels, some water from the tub was accidentally splashed into her right eye; that she rubbed her eye at the time; that it became and continued painful, and that it became much inflamed; that she called a physician, who found the eye badly inflamed, and he advised her that she consult a specialist. The specialist came and took charge of the case, and very soon sent the plaintiff to a hospital, where she remained between two and three weeks, and finally suffered the total loss of the eye. The physician diagnosed the case as inflammation of the mucous membrane of the eye caused by gonorrhea infection.

After proving her membership, about which there is no question, the plaintiff testified, in substance, that on the day named, between 10 and 11 o’clock in the morning, while she was washing, some of the suds got in her right eye; that at the time she was washing flannels, underwear ; that she did not know how the suds got into her eye, it just splashed as she was washing; that she was not washing with a machine, but by a board; that, when the water splashed into her eye, it burned as soap would naturally do, and that she kept rubbing her eye; that shortly afterwards the eye pained her; that during the afternoon and evening her eye was quite sore, and that it pained worse the next day, which was Saturday; that she called a physician, Dr. Kerr, on Sunday morning. At that time her eye was inflamed. He advised her to get Dr. MacNaughton, an eye specialist. The next day she went to Dr. MacNaughton’s office, and from there to the hospital, where she remained 18 days, and that she has no sight remaining in the right eye; and that she was then claiming the amount stated in the policy for the accidental loss of an eye.

Upon cross-examination she testified as follows:

“On Friday, March 26th, I was washing flannels which belonged to my own family. I had no outside washing. I never took in washing. To my knowledge there was no member of my family afflicted with gonorrhea at that time, nor has any member undergone treatment for gonorrhea since then. If any member of my family at that date had been afflicted with gonorrhea, I would have known it. I realized that there was something wrong with my eye shortly after the water splashed in it. It commenced to trouble me shortly after, and it pained me more and more. I consulted á physician Sunday morning. I did not consult a physician Saturday morning. Dr. Kerr was the first physician I consulted. At the time I did not know what was wrong with me. I knew it was my eye, but I did not know just what it was. I did not know just what would have caused it. Dr. Kerr did not tell me what was wrong with my eye. He just said it was quite bad, and advised me to see Dr. MacNaughton. Dr. MacNaughton saw me the same day about 2 o’clock. He never told me what was the matter with my eye. He always said it was a bad eye every time I asked him, and the fourth day I was in the hospital he told me the sight was practically gone. I never found out that I had gonorrhea of the eye until it was brought up here the other day.
“Q. I want to find out when you found out first that you had gonorrhea of the eye ?
“A. I never found out until it was brought up here the other day. I never heard about it until the other day because Dr. MacNaughton never told me anything of that.
“Q. Didn’t you sign a sworn statement that you presented to the company stating that you had gonorrhea of the eye ?
“A. No, sir; I did not.
“Q. You just testified to that.
“A. I stated I had lost sight of the eye, but not of such a thing.
“Q. Then you never knew this until a short time ago, that you had gonorrhea of the eye?
“A. No, sir; I didn’t. That’s about all I done that day, except I went out in the afternoon a few blocks from home to Ryckman & Minnear’s store. I did not do any other housework that day except getting supper. Nothing else that I know of got in my eye that day. I did not do any sweeping on that day. I did the day before. Nothing got in my eye then.
“Q. Where did this gonorrhea come from that infected your eye ?
“A. I couldn’t say.
“Q. If there was no one in your family infected with gonorrhea, where would it come from ?
“A. I don’t know. I couldn’t say. I am positive that the injury I received was received by water splashing in my eye. I remember distinctly. I put washing liquid in the water. I am positive of that. I am positive that the injury occurred Friday, March 26th. I swear to that positively. I am just as positive that it occurred on March 26th as that it occurred to me. The statement of proof of claim that I made to the Modern Brotherhood of America was correct in all its parts and statements.”

Dr. M. M. Kerr, a witness produced and sworn on behalf of the plaintiff, testified as follows:

“ My name is M. M. Kerr. I am a regular practicing physician in Laurium, and I have been a physician about 11 years. I was called to treat professionally Mary E. Sullivan, the lady who was just on the witness stand, the latter part of March, 1909. I don’t remember the day of the month. It was on Sunday morning about 7 or 8 o’clock. I found the eye in a condition that we know as hyperemia, a highly inflamed condition of the surface of the eye. Í diagnosed the case from a clinical standpoint. I thought I knew what the trouble was. It appeared to me to be a case of gonorrheal ophthalmia or an inflammation due to gonorrhea. I didn’t give it any treatment. It seemed too severe for me, and I thought it would be better for a specialist to examine her. I called a specialist over Mrs. Sullivan’s telephone. I had nothing further to do with the case except seeing it on one or two other occasions at the hospital. I did not at any time tell Mrs. Sullivan that she was suffering from gonorrheal infection of the eye.”

Cross-examination by Mr. Kerr:

“ I could not tell definitely how long the eye had been suffering from the injury when I examined it, possibly 48 hours, possibly longer. Gonorrhea of the eye could not be contracted unless there were gonorrheal germs in the washing water, but the germs would have to be somewhere and brought in contact before the disease could be contracted. Mrs. Sullivan told me that she injured her eye while washing clothing a couple of days before, and that the water in the tub came in contact with her eye, either from splashing or rubbing her hand over the eye. I treated Mrs. Sullivan once before about 8 or 10 years ago. I never treated her for gonorrhea.”

The foregoing constitutes all the evidence in the case.

The defendant moved the court to direct a verdict in its favor, for the reason that the injury alleged was a disease, and not an accident, that the plaintiff had failed to establish a case, and that the plaintiff had failed to establish by professional testimony the loss of the sight of the eye. The motion was overruled and the defendant excepted.

The court charged the jury, in substance, as follows:

“The plaintiff having brought this action into court, the burden of proving the case rests upon her, and she is obliged to satisfy you by a fair preponderance of the testimony that she has suffered the loss of an eye by accident. The particular allegation on which the plaintiff rests is that she became afflicted with a disease through an accident which happened at the time that she was doing washing in her own house. Now, the plaintiff must prove by a preponderance of the evidence the fact alleged, that the plaintiff contracted a gonorrheal infection of the right eye while doing the family washing on the date alleged. Unless you believe from the evidence that the plaintiff contracted the gonorrheal infection of the eye by the splashing of the water from the washtub in the eye, you should find for the defendant.
“ If you believe the probabilities are as great that the plaintiff received the gonorrheal infection in the eye, as her. hand came out of the water in a wet condition, and that she rubbed her eye in the wet condition, then you should find for the defendant. If you believe from the evidence that she contracted the infection by having the germs transmitted to her by an outside agency, such as being transmitted through the air, or coming from any other person infected with such disease, then you should find for the defendant. The question is solely for you, gentlemen, to determine that one question from a fair consideration of this testimony. If you are convinced that the water splashed in the eye, and the infection was received in that way, taking into consideration the circumstances which immediately followed, and the development of the disease as testified to by the plaintiff, you would be justified in finding a verdict for her. If she has not sustained that by a fair preponderance of the evidence, find for the defendant.”

The jury returned a verdict for the plaintiff for $260.40, and a judgment for the plaintiff was entered.

There was no motion for a new trial, and the defendant has brought the case here for review. There are a number of assignments of error.

In their brief and argument defendant’s counsel have presented two propositions that may be said to be covered by the assignments of error:

“First. The plaintiff’s theory, that plaintiff received a gonorrheal infection of the eye by reason of the splashing of the water therein from the washtub during her ordinary occupation of washing clothes for the family, was based wholly upon improbable circumstances, and that there is no proof of such fact, and consequently no question for the jury.
“Second. That, even admitting the infection of the eye to have been caused by the splashing of water, such infection and accompanying injury to the eye should properly be classed as the effect of disease, and not by accident within the meaning of the clause of the policy under which plaintiff claims indemnity.

Referring to the first proposition of counsel, can it be said, as claimed, that the facts in evidence are as consistent with the theory of the defendant as with the claim of the plaintiff? We should not lose sight of the facts that the defendant offered no evidence, and that no motion for a new trial, claiming that the verdict was contrary to the evidence, was made. The testimony on- the part of the plaintiff stands alone. It is to the effect that water was accidentally splashed from the tub in which plaintiff was washing flannel clothing into her eye, that her eye became inflamed immediately thereafter, and that as a result of such inflammation she lost the sight of the eye. Can we say as matter of law that this testimony was so improbable, or that the presence of the germ in the water was so improbable or conjectural, that the case should not have been submitted to the jury? We think not. The evidence of the physician was to the effect that the sight of the eye was destroyed by inflammation due to gonorrhea; that gonorrhea of the eye could not be contracted unless there were gonorrheal germs brought in contact with it, and the splashing of the water as testified to by the plaintiff was the only explanation given. We cannot say that the testimony was inconsistent with the theory that the injury was accidental. Nor can we hold that the court should have determined that the germ came into the eye in some way other than as claimed by the plaintiff. Furbush v. Casualty Co., 131 Mich. 234 (91 N. W. 135, 100 Am. St. Rep. 605); Grimme v. Fraternal Aid Ass’n, ante, 240 (132. N. W. 497). By the testimony of the physician the cause of the trouble is shown, to wit, the presence of the germ in the eye, and the manner in which this germ was introduced is rendered probable by the testimony of the plaintiff. We think that the case was one for the jury, and that the defendant cannot justly complain of the charge.

In support of defendant’s second proposition counsel cite the following cases: Fidelity & Casualty Co. v. Stacey’s Executors, 143 Fed. 271, 74 C. C. A. 409 (5 L. R. A. [N. S.] 657); Bacon v. Accident Ass’n, 123 N. Y. 304 (25 N. E. 399, 9 L. R. A. 617, 20 Am. St. Rep. 748); Dozier v. Casualty Co. (C. C.), 46 Fed., 446 (13 L. R. A. 114); Feder v. Traveling Men’s Ass’n, 107 Iowa, 538 (78 N. W. 252, 43 L. R. A. 693, 70 Am. St. Rep. 212). The ease of Fidelity & Casualty Co. v. Stacey’s Executors, supra, was decided in the circuit court of appeals, fourth circuit. There the holder of a policy insuring him against disability or death “resulting directly, and independently of all other causes, from bodily injuries sustained through external, violent and accidental means,” committed an assault and battery on a person who made no resistance, injured his hand, and, in striking such person in the face, injured his hand, and a few days later died from the effects of blood poisoning which developed in the wound. It was held that such injury was not “accidental” within the meaning of the policy, and that plaintiffs could not recover. It clearly appeared there that the injury, which was the direct means causing the death, was the natural result of a voluntary act committed when Stacey was in full possession of his mental faculties. Pritchard, C. J., the writer of the opinion, said:

“ The immediate cause of the insured’s death was disease, to wit, blood poisoning. The company did not undertake to insure against blood poisoning or any other disease. But the fact that it had not insured against disease would not be a good defense in this case, if it * * * was the direct result of accidental means. * * * Unless it could be shown that the original cause to which the disease can be traced was ‘ accidental means,’ then the disease from which the insured died would be a subject against which the company did not insure.”

We think that the case is readily distinguished from the instant case. In Bacon v. Accident Ass’n, supra, the court was divided, two judges dissenting. The majority opinion distinctly holds that the deceased died from the disease within the meaning of the language used in the policy sued upon, and not from an accident causing the disease. It did not appear how the animal virus (the cause of the malady known as malignant pustule) came in contact with the body of the deceased. In the majority opinion the court distinctly adheres to its former opinion in Paul v. Insurance Co., 112 N. Y. 472 (20 N. E. 347, 3 L. R. A. 443, 8 Am. St. Rep. 758), where the deceased came to his death by accidentally inhaling illuminating gas, and where the plaintiff recovered. We think that the Bacon Case is not applicable in the instant case. In Dozier v. Casualty Co., supra, it was held that “sunstroke or heat prostration ” contracted by the'decedent in the course of his ordinary duty as a supervising architect was a disease, and did not come within the terms of a policy of insurance against bodily injuries, sustained through external, violent, and accidental means, but expressly excepting “any disease or bodily infirmity.” The case of Sinclair v. Assurance Co., 3 El. & El. 478, is cited with approval. We do not think that these sunstroke cases are in point.

We have also examined the case of Feder v. Traveling Men’s, Ass’n, supra, where it was held that death of the insured will not be held accidental merely because it results from the rupture of an artery, as he reaches to close a window, it not appearing that anything was done or occurred which he had not foreseen and planned, except the rupture. The court said:

“The evidence"shows that the cause was the ruptured artery; but that was not accidental if it was the natural result of an act voluntarily done by Feder. That he did anything but what he intended to do in attempting to close the shutters is not shown nor claimed. It is not even shown that he made any unusual exertion in what he did. Had the artery been ruptured while decedent was sitting quietly in his chair, or while walking at a moderate pace, there would be no ground for claiming that the rupture was accidental.”

While we cannot undertake to reconcile all of the authorities upon this subject, it seems to us that the case last cited differs materially in principle from the instant case. We are of opinion that the position and claim of the plaintiff find support in the case of Western Commercial Traveler's Ass'n v. Smith, 85 Fed. 401, 29 C. C. A. 223 (56 U. S. App. 393, 40 L. R. A. 653). This case was in the United States circuit court of appeals, eighth circuit. The opinion was written by Sanborn, C. J. It was there held that an abrasion of the skin of a toe, unexpectedly caused without design, by unforeseen, unusual, and unexpected friction in the act of wearing a new shoe, is an accidental injury within the meaning of an insurance policy; and that blood poisoning caused by an accident, and which is a mere link in the chain of causation between the accident and the death which it produces, is not an intervening and independent cause of death which will prevent liability on insurance against accident. This is a well-reasoned opinion, and many cases are cited. We quote the following language appropriate in the instant case:

“ If the death was caused by bodily injuries effected by external, violent, and accidental means alone, the association was liable to pay the promised indemnity. If the death was caused by a disease which was not the result of any bodily infirmity or disease in existence at the time of the accident, but which was itself caused by the external, violent, and accidental means which produced the bodily injury, the association was equally liable to pay the indemnity. In such a case the disease is an effect of the accident, the incidental means produced and used by the original moving cause to bring about its fatal effect, a mere link in the chain of causation between the accident and the death, and the death is attributable not to the disease, but to the causa causans, to the accident alone. Traveler’s Ins. Co. v. Robbins, 27 U. S. App. 547, 560, 65 Fed. 178, 185, 12 C. C. A. 544, 27 L. R. A. 629; Union Pacific R. Co. v. Callaghan, 12 U. S. App. 541, 550, 56 Fed. 988, 994, 6 C. C. A. 205, 210; Milwaukee, etc., R. Co. v. Kellogg, 94 U. S. 469, 475; National Masonic Accident Ass’n v. Shryock, 36 U. S. App. 658, 73 Fed. 774, 20 C. C. A. 3-5.”

In the following cases it was held that there was liability: In Hamlyn v. Insurance Co., 1 Q. B. Div. 750, a person sustained an injury to his knee in attempting to catch a rolling marble, it being found that the injury resulted from an unnatural position or movement of the leg, which was not intended by the person injured. In North American, etc., Ins. Co. v. Burroughs, 69 Pa. 43 (8 Am. Rep. 212), the injury was caused by the unintended slipping of a pitchfork in the hands of the person injured, in such a manner that it struck him in the bowels, causing peritonitis. In 4 Cooley’s Briefs on the Law of Insurance, p. 3159, there is a collection of cases in which the causes of injury or death have been held to be accidental: Asphyxiation by gas in well. Pickett v. Insurance Co., 144 Pa. 79 (22 Atl. 871, 13 L. R. A. 661, 27 Am. St. Rep. 618). Blood poisoning resulting from cutting a corn. Nax v. Insurance Co. (C. C.), 130 Fed. 985. Blood poisoning from use of hypodermic needle. Bailey v. Casualty Co., 8 App. Div. (N. Y.) 127 (40 N. Y. Supp. 513), affirmed without opinion, 158 N. Y. 723 (53 N. E. 1123). Poisoning by sting of insect. Omberg v. Accident Ass’n, 101 Ky. 303 (40 S. W. 909, 72 Am. St. Rep. 413). Poison taken by mistake. Mutual Accident Ass’n v. Tuggle, 39 Ill. App. 509; Hill v. Insurance Co., 22 Hun (N. Y.), 187; Pollock v. Accident Ass’n, 102 Pa. 230 (48 Am. Rep. 204). See, also, upon the general subject the following authorities: Fidelity & Casualty Co. v. Johnson, 72 Miss. 333 (17 South. 2, 30 L. R. A. 206); Equitable Accident Ins. Co. v. Osborn, 90 Ala. 201 (9 South. 869, 13 L. R. A. 267); 1 Cyc. pp. 249-251, and cases cited; Richard on Insurance Law, §§ 385, 386; Niblack on Accident Insurance, § 376 et seq. See note to White v. Standard Life, etc., Ins. Co., 5 Am. & Eng. Ann. Cas. 87. See, also, note to the English case of Brintons v. Turvey, 2 Am. & Eng. Ann. Cas. 140, 141.

We find no prejudicial error in the record, and the judgment of the circuit court is affirmed.

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


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    TITLE GUARANTY & SURETY CO. v. ÆTNA INDEMNITY CO.
    1. Equity — Jurisdiction to Restrain Aotion at Law.
    In a suit to enjoin an aotion at law, the complainant’s bill averred that one Frank P. Glazier was elected treasurer of the State of Michigan for the years 1905 and 1906, for which term defendant surety companies executed his official bonds; that upon his re-election to office complainant became the treasurer’s official surety for one year by a separate instrument; that the treasurer settled his accounts as treasurer for his first term giving a receipt in usual form to himself for all balances due the State, but having defaulted in the use of State funds during 1907, resigned; that the attorney general brought an action at law against complainant on its bond, and that an accounting is necessary as to the other defendants, and that complainant has equitable defenses which could not be made in an action at law. Held, that the averments are insufficient to confer jurisdiction upon the court of equity.
    2. Same.
    Since the bond given by complainant as surety was for the first year of the treasurer’s second term, it is liable only for a defalcation occurring during that term, — an issue triable on the law side of the court.

      3. Same — Accounting.
    That the accounts of the State and its depositories are to be examined in determining defendant’s liability is not a ground of equitable cognizance without a showing of contractual or other relations between the sureties authorizing an accounting.
    4. Same — Setting Aside Instruments and Transactions — Receipt as Evidence.
    There could be no occasion for equitable interference to set aside the receipt given by the treasurer to himself, because it is merely evidence that could be contradicted or explained by parol testimony in an action at law.
    5. Same — Multiplicity op Actions — Principal and Surety.
    Nor does such a bill lie to avoid a multiplicity of suits between the sureties whose liability is of a distinct or severable nature arising upon separate instruments covering different periods of time.
    Appeal from Ingham; Wiest, J.
    Submitted November 6, 1911.
    (Docket No. 50.)
    Decided December 8, 1911.
    Bill by the Title Guaranty & Surety Company against the State of Michigan, the ¿Etna Indemnity Company, and others, to restrain an action at law, for an accounting and other relief. From a decree overruling the demurrer of defendant the ¿Etna Indemnity Company, said defendant appeals.
    Reversed and bill dismissed as to appellant.

      human W. Groodenough (Bollin H. Person, of counsel), for complainant.

      Moore & Moore, for defendant ¿Etna Indemnity Co.
   Stone, J.

This is an appeal by defendant ¿Etna Indemnity Company from an order overruling a demurrer to the bill of complaint.

In November, 1904, Frank P. Glazier was elected State treasurer of this State for the calendar years 1905-1906. The defendants ¿Etna Indemnity Company, Fidelity & Deposit Company, Federal Union Surety Company, Bankers’ Surety Company, and Empire State Surety Company signed his official bonds for those two years, which constituted his first term. In 1906 Mr. Glazier was elected a second time to serve during the calendar years 1907-1908. The complainant, the Title Guaranty & Surety Company, signed for him another entirely distinct and separate official bond, by which the complainant guaranteed the integrity of Mr. Glazier for the year 1907, which constituted by his re-election the first year of his second term. Mr. Glazier, at the close of his first term, seems to have settled all of his accounts as first term treasurer of the State, and after giving the last-described bond, and entering upon the duties of that term, he receipted in the usual form to the preceding treasurer (himself) for all balances, thus, in form at least, closing his treasurership for the first term.' Mr. Glazier, during each term, deposited large amounts of money, at different times, in the Chelsea Savings Bank, and this bank, on December 5, 1907, was declared insolvent by the State bank examiner, and the circuit court for the county of Washtenaw, in chancery, on application of said bank examiner, put the affairs of the bank in charge of the defendant W. W. Wedemeyer, as receiver, who is still acting. It was discovered that Mr. Glazier was a defaulter, and, on January 23, 1908, he resigned, and his successor was appointed. The attorney general brought suit in the Ingham county circuit court, in the name of the State, against complainant on its official bond, and the case was about to come up for trial.

At this stage, the complainant filed its bill of complaint in the circuit court for the county of Ingham, in chancery, stating the foregoing facts, and alleging that a large part of the defalcation occurred during the first term; that the sureties for the first term were liable for so much of the defalcation as occurred during that term. It is also alleged that the State has a claim against the other surety defendants for a part of Mr. Glazier’s shortage.

Equitable jurisdiction is claimed on the ground:

(a) That an. accounting is necessary between the sureties for the first term and the second term; (6) that complainant has equitable defenses which it cannot make in a suit at law; and (c) because if equity does not take jurisdiction complainant will be compelled to bring several suits to enforce its equitable rights against the sureties for the first term.

The relief asked for is (1) that the State be enjoined temporarily and permanently from prosecuting the suit at law which it has already instituted against the complainant; and (2) that the State and other defendants may be brought into court, compelled to come to an accounting, and be bound by the decree.

To this bill of complaint, the attorney general filed an answer for the State. Defendant Wedemeyer, receiver, and the Fidelity & Deposit Company each filed a separate answer, ’ghe other surety companies have demurred. The demurrers were argued together and overruled by the circuit judge. A decree having been entered, overruling the demurrer, the defendant ¿Etna Indemnity Company alone has appealed.

By its demurrer, the appellant claims the following propositions: ,

“ (1) The State is a necessary party.
“(2) The State cannot be sued without its consent.
“ (3) The legislature alone has the power to consent for the State, and it has not consented.
“ (4) The attorney general has no power to consent for the State, and his appearance and answer conferred no jurisdiction upon the court.
“ (5) The bill is multifarious.
“ (6) Equity has no jurisdiction.”

Passing by the first five propositions, we shall first consider the sixth proposition, and inquire whether equity has jurisdiction in the case. It is very clear to us that the State cannot recover against the complainant, except for a defalcation occurring during the first year of the second term. It is equally clear that the State can recover against the surety defendants only for a defalcation occurring during the first term. It seems to us that these are separate, distinct, and independent legal issues, to be tried out at law. The claims set up in the bill, in our judgment, have no equitable nature; they are proper foundations for actions at law, .and nothing else. The remedy sought in the bill is a legal remedy. The bill calls for a money judgment, and does not show that the equity powers of the court are necessary in supporting it. The mere fact, if it be a fact, that the accounts of the bank and the State are to be examined does not give equity jurisdiction.

Counsel for the complainant admit that the sureties for the first term are not liable for the defalcations in the second term, and vice versa, and they cite the following authorities in support of the position: Township of Paw Paw v. Eggleston, 25 Mich. 36; City of Detroit v. Weber, 29 Mich. 24; City of Grand Haven v. Fidelity & Guaranty Co., 128 Mich. 106 (87 N. W. 104, 92 Am. St. Rep. 446). Counsel for complainant say:

"This is a bill for an accounting by the surety for the second term against the State, the sureties on the bond for the first term, the receiver of the bank, whose books alone will show with accuracy the transaction out of which the loss of the State arose, a bill by which complainant seeks to avoid the effect of the receipt, given by the State treasurer to himself at the beginning of his second term, which it alleges to have been false in fact, and a fraud, and the existence of which is the main, if not the only, ground for the State charging complainant with any considerable part of its loss; a bill which sets out that the transactions necessary to be examined extend over a long period, and can best be investigated in a court of equity, and which seeks to have determined the amount equitably due to the State from it and from the sureties upon the official bond for the first term.”

Our reply to this is that there are no contractual relations, mutual dealings, or other condition which would authorize an accounting between them. The two issues are separate, distinct, and independent, and cannot be joined in one suit.

Counsel for complainant also claim that the bill is filed to avoid the effect of the receipt given by the State treasurer to himself at the beginning of his second term. This receipt is not set forth; the bill does not show for what amount it was given, nor for what amount it should have been given; nor does the bill ask any rélief for or on account of the receipt. It does not ask that it be declared void, or canceled, or reformed. The prayer of the bill makes no reference whatever to the receipt, and asks no relief in that regard. We do not understand why there is any occasion for equitable interference because of the receipt. The receipt was not given by complainant, and its effect can as well be determined at law as in equity. While the receipt, unexplained, might be evidence of the amount received, it is mere evidence, and can be contradicted or explained by parol testimony. Johnson v. Insurance Co., 39 Mich. 33; Vyne v. Glenn, 41 Mich. 112 (1 N. W. 997); Powell v. Powell, 52 Mich. 432 (18 N. W. 203); Hart v. Gould, 62 Mich. 262 (28 N. W. 831).

In 2 Brandt on Suretyship and Guaranty, § 799, it is said:

“ The entries made by an officer in public books while in discharge of his duty, or returns made by him to the public authorities, are generally prima facie but not conclusive evidence against his sureties of the facts thus stated. The returns of a receiver of the government to the treasury department, showing the receipt of money by him, were held to be prima facie but not conclusive evidence in an action by the government against the sureties on his bond. The court said the sureties might show that he received no money, or less than he reported. The accounts rendered to the department of money received, properly authenticated, are evidence, in the first instance, of the indebtedness of the officer against the sureties, but subject to explanation and contradiction. They are responsible for all the public moneys which were in his hands at the date of the bond, or that may have come into them afterwards, and not properly accounted for; but not for moneys which the officer may choose falsely to admit in his hands in his accounts with the government. Entries in the books of a State treasurer, showing the amount which ought to be in the State treasury, are not conclusive evidence against his sureties that such amount was in the treasury.”

Many cases are cited in the notes. These explanatory facts are all admissible in a suit at law.

Counsel claim that the bill would save a series of suits by the State; but it is very clear to us that complainant has to defend its own liability only. It is not concerned with any other suit.

"The suggestion that a suit in equity will save a multiplicity of suits has no force. It only adds one to the suit before instituted.” Beecher v. Mead, 49 Mich. 162 (13 N. W. 498).

It is also urged that the bill will avoid suits between the different surety companies for an accounting; but we think it is a complete answer that there can be no accounting between the different sets of surety companies. Each company must stand upon its own footing. Counsel also say that complainant wishes to investigate in one suit the general course of misconduct of both terms. But it is very clear that the surety defendants are not interested in anything done during the second term. Nor is complainant liable for any default in the first term. Litigants ought not to be compelled to come into court and litigate matters with which they are not concerned.

In the instant case, the claim of the State is against different parties, on different contracts, made at different times, and for different amounts and liabilities. The sole question in each case is the liability of the surety on an official bond for a specified time, and we think that each surety company is entitled to defend in a suit at law, and to a trial by jury. The views above expressed finds support in the following cases in this court: Bonebright v. Pease, 3 Mich. 318; Bennett v. Nichols, 12 Mich. 21; Torrent v. Booming Co., 22 Mich. 354; City of Detroit v. Board of Public Works, 23 Mich. 546; Cole v. McFall, 48 Mich. 227 (12 N. W. 166); Pittman v. Burr, 79 Mich. 539 (44 N. W. 951); Detroit Trust Co. v. Old Nat. Bank, 155 Mich. 61 (118 N. W. 729); Pulezer v. Kucharzyk, 116 Mich. 92 (74 N. W. 304); Mack v. Village of Frankfort, 123 Mich. 421 (82 N. W. 209); Warren v. Warren, 151 Mich. 95 (114 N. W. 867); Harris v. Bow, 156 Mich. 28 (120 N. W. 17); Gault v. Gault, 158 Mich. 303 (122 N. W. 639).

We have examined the numerous cases in this State cited by complainant’s counsel. They are cases where, the relief in an action at law was both difficult and inadequate, and are readily distinguishable from the cases above cited.

We conclude that the decree of the circuit court should be reversed, and the bill dismissed as to the appellant, with costs.

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


text:
    WHITE v. DUNSMORE.
    1. Taxation — Notice to Redeem — Statutes.
    A notice to the owner of land given by the purchaser of State tax lands under Act No. 142, Pub. Acts 1905, and Act No. 270, Pub. Acts 1909, is ineffective if it describes only part of the land, or is improperly addressed, or if it fails to state that the sum demanded may be paid to the register in chancery; and a notice not signed by or on behalf of the tax purchaser is insufficient.
    '2. Same — 1Trespass—Redemption.
    A tax title purchaser who, without giving notice to the owner to redeem, enters upon land and cuts wood or timber is a trespasser. Act No. 142, Pub. Acts 1905.

      8. Same.
    While the State might have complained of the trespass before parting with its interest to the tax purchaser, it had no interest in the land thereafter.
    4. Trespass — Actions—Tax Title.
    The owner of the record title of land sold to the State for unpaid taxes and thereafter deeded by the State to a purchaser cannot maintain trespass for the wrongful entry of the holder of the tax interest before tendering the .amount required to redeem and obtaining a reconveyance from the purchaser. Act No. 270, Pub. Acts 1909; Act No. 142, Pub. Acts 1905; 1 Comp. Laws, § 3961 et seq.

    Case-made from Missaukee; Lamb, J.
    Submitted November 6, 1911.
    (Docket No. 51.)
    Decided December 8, 1911.
    Trespass quare clausum fregit for treble damages by Thomas White against Mark T. Dunsmore. Judgment for defendant. Plaintiff brings case-made.
    Affirmed.

      Gaffney & Miltner, for appellant.

      Sawyer & Penny, for appellee.
    The cause having been tried by the court without a jury the court found:
    “ It is conceded that Thomas White, the plaintiff; became the owner of the original title to the south half (|) of the southwest quarter (J) of section 28, town 21 north, of range 5 west, on the 10th day of July, 1906, and that the conveyance was duly recorded August 18, 1906, in Liber 37 of Deeds, on page 356.
    “ It is conceded that said Thomas White, from the said 10th day of July, 1906, until the present time, has claimed to be the owner of the original title to said lands.
    “ It is conceded that said Thomas White has never been in actual possession of said lands, either in person or by tenants, and that the lands are wild and uncultivated.
    ‘ ‘ It is conceded that said Thomas White has never paid any taxes on said lands since he became the owner of the title in the year 1906.
    “ It is conceded that the lands were sold for the delinquent taxes for 1906, bid in to the State, and that the time for redemption had expired prior to the 25th day of February, 1910.
    “ It is conceded that on the 25th day of February, 1910, the defendant, Mark T. Dunsmore, purchased said lands from the State for the taxes of 1906, and that he paid as a condition of the purchase some taxes on the southeast quarter of the southwest quarter of said section for the years 1905, 1907, and 1908, and that he has paid the taxes since.
    “ It is conceded that on or about the 15th day of March, 1910, before serving the statutory notice, the defendant entered upon the lands in question, and cut and removed some timber.
    “ It is conceded that on or about the 6th day of May, 1910, the return of service of the statutory notice of tax sale was filed in the office of the county clerk. This notice is claimed to be objectionable. In any event, from the view the court takes of the matter, the notice is of little, if any, moment.
    “ It is conceded that the said Thomas White has never redeemed or taken any steps to redeem from the sale to the defendant.
    “The plaintiff, Thomas White, commenced this action May 26, 1910. The action is trespass under the statute for treble damages.”
    Findings of Law.
    “1. The sale of the lands in question for the delinquent taxes vested in the State, after the period of redemption had expired, all the right, title, and interest of the original owner. As between the State and the original owner, the title of the State was absolute.
    “2. The State, in selling to the defendant, Mark T. Dunsmore, parted with all the title and interest it had to the land, but coupled the transfer thereof with a condition which the law imposes, viz.: That the purchaser shall give the original owner an opportunity to get a reconveyance of the title.
    “3. The condition for reconveyance, which the law imposes, confers no title or interest upon the delinquent owner of the original title, but does confer upon him a privilege of obtaining a reconveyance of his title on specified terms.
    “4. The privilege conferred by the statute upon the original owner is not sufficient upon which to base an action for trespass under the statute. It was incumbent upon the plaintiff before bringing suit to first proceed to take advantage of that privilege by depositing with the .. register in chancery the amount necessary to obtain a re-conveyance. This he had a right to do under section 141 of the general tax law, as amended. He was not compelled to wait for notice from Dunsmore. In fact, whether defendant, Mark T. Dunsmore, served a notice or not, in my judgment, is not a controlling element in the case. The gist of it is the plaintiff must first become reinvested with something more than a naked privilege, which is entirely optional with him to accept or reject, before he can maintain an action for trespass under the statute.
    “ It follows that judgment should be entered for the defendant, and it is so ordered.”
   Ostrander, C. J.

(after stating the facts). Upon the findings of law, and each of them, plaintiff assigned error. No error is assigned upon the findings of fact, nor upon a failure to find other or further facts. It does appear in the record, and we understand the fact is not disputed, that the statutory notice served upon plaintiff April 6, 1910, did not contain the statement that the sum demanded might be paid to the register in chancery, nor was it properly addressed. Act No. 142, Pub. Acts 1905, § 140 (tax law); Act No. 270, Pub. Acts 1909. It was therefore an ineffective notice. Weller v. Wheelock, 155 Mich. 698 (118 N. W. 609). See, also, Dolph v. Norton, 158 Mich. 417 (123 N. W. 13). This notice described 40 acres only. On May 27, 1910, another notice, describing all of the land, was served on plaintiff, but it was not signed by the defendant, or by any one for him.

The statute (3 Comp. Laws, § 11204) makes every person who shall cut down and carry off any wood, trees, or timber on the land of any other person, without the leave of the owner thereof, liable to the owner of the land in three times the amount of damages assessed therefor, in an action of trespass. Plaintiff, relying upon this statute, sues as owner of land, treating defendant, who cut the timber, as a trespasser. That defendant was a trespasser is clear. The statute (section 142 of the tax law; 1 Comp. Laws, § 3961), as amended by Act No. 142, Pub. Acts 1905, forbids the tax title purchaser to enter into possession until six months after he has given notice to the parties in interest, or has acquired the title of such parties? In Corrigan v. Hinkley, 125 Mich. 125 (83 N. W. 1020), such a purchaser, who entered into possession of the land, was held to be a trespasser, entitled to no pay for improvements made by him upon the land, and a decree, vacating the tax decree, but imposing upon the owner of the land, as a condition precedent, repayment of the taxes paid by the purchaser, and the value of improvements made by him, was reversed, and a decree entered, vacating the tax decree. In Huron Land Co. v. Robarge, 128 Mich. 686 (87 N. W. 1032), the action was replevin by the owner of land for timber cut thereon by a tax title holder, who had failed to give the statute notice. A judgment for plaintiff, entered upon a directed verdict, was affirmed. It is said that defendant was a trespasser; and that:

“The serving of this notice is a condition precedent to vesting the title under the tax proceedings in the tax purchaser.”

In Hickey v. Rutledge, 136 Mich. 128 (98 N. W. 974), the action was replevin. The plaintiff had cut ties upon land held by the State as State tax land. The ties were seized by the State trespass agent. Plaintiff afterwards acquired the State’s title to the land, and sought to recover the ties. His right to do this was denied. It was said:

“ When this timber was severed, the right of the State to pursue it became fixed. It was no longer a part of the land. The purchaser of the land would not take the timber by purchase from the State. In whom, then, is the title to be vested ? In a naked trespasser ? Clearly, the rights of this plaintiff are no greater under his purchase than they would have been had the trespasser been a third party. The State having a title at the time he committed the trespass, and the right to seize and pursue the timber, it does not lie in his mouth to say that that right has been defeated by a sale of something other or different, whether such sale be to another or to himself.”

See, also, Holmes v. Loud, 149 Mich. 410 (112 N. W. 1109).

Assuming that the defendant cut the timber without right — was a trespasser — who may complain ? The State alone might have done so, if the trespass had been committed before defendant, the trespasser, acquired the State’s title. Hickey v. Rutledge, supra; Blake v. Grondin, 141 Mich. 104 (104 N. W. 423). The State had no interest in the land at the time the trespass was committed. The learned trial judge held, agreeably with defendant’s contention, that the owner, at least before he obtained a reconveyance of the land from the tax title purchaser, could not maintain the action. It is attempted to support the ruling by decisions of this court that, after a regular sale of land for taxes, and after the period of redemption has expired, the State possesses the absolute title to the land; the owner has been divested of all interest therein, but acquires, upon a sale of the land by the State, opportunity and privilege of securing a reconveyance. The question of the value and extent of the interest, if any, remaining in the owner of land after sale of the land for taxes was somewhat discussed in the opinions filed in the case of Morse v. Auditor General, 143 Mich. 610 (107 N. W. 317). See, also, Haney v. Miller, 154 Mich. 337 (117 N. W. 71, 745); Haney v. Auditor General, 165 Mich. 681 (131 N. W. 386). In Griffin v. Kennedy, 148 Mich. 583 (112 N. W. 756), many of the previous decisions of the court are referred to and to some extent reviewed, and in the majority opinion it is said:

“After the expiration of his right to redeem from a regularly conducted sale, at which the State has purchased —and that is the case with the land in question — it (the State) owns and can dispose of the land as it pleases; and this is true, though the former owner of the land continues in possession, for he is in possession without the right of possession.”

The ruling thus announced was necessary to support the conclusion arrived at by the majority of the justices, and has been considered authoritative and controlling. In the same opinion, the force and effect of Act No. 229, Pub. Acts 1897, is considered, and it is said that by the act, which is the one providing for notice to the owner, and for securing a reconveyance of the land by him, the legislature intended—

“ Merely to give owners the right to redeem after the State tax lands formerly owned by them were sold by the State to private purchasers under the general tax laws. * * * It is undoubtedly true that said Act No. 229 has the effect of giving to the former owner of the State tax lands a title which formerly he did not possess. See Adkin v. Pillen, 136 Mich. 682 [100 N. W. 176]. But this title does not come into existence until the sale described in said act has been made. That, it seems to me, was the legislative intent, and I see no difficulty in giving it effect. It may be said that a sale under the general tax laws transfers all the title of the State; part of the title so transferred passes to the purchaser, and part to the original owner of the land, his mortgagee, or grantee. I shall not undertake to give a technical name to each of these different titles. We can give effect to the legislative intent without performing that undertaking.”

This and the other decisions referred to necessarily affirm the right of the State to sue the original owner of the land, as well as a stranger to the title, for injuring the freehold during the period of State ownership of the title.

There is nothing in the statute which imports the intention of the legislature to reinvest the original owner of the land with such title or right of possession as will support an action of trespass. The purchaser from the State is forbidden to make an immediate entry, and therefore he may not lawfully disturb an original owner, who is in possession. And it was pointed out, in the minority opinion in Griffin v. Kennedy, that the tax law contains no provision for dispossessing an owner by the State after the State has acquired its absolute title. But if, as was held, the former owner has no right of possession, and if the State as owner may prevent waste by the former owner in or out of possession, it is difficult to construct a theory of title in such former owner which will support his action for injury to the land so long as he has not secured a re-conveyance thereof from the purchaser from the State. Plaintiff here has not even actual possession of the lands, which are wild and uncultivated. Whether he intends to acquire the lands from the defendant, we do not know. He had the right to do so when the trespass was committed, and when the suit was instituted.

In two cases, namely, in Huron Land Co. v. Robarge, supra, and Holmes v. Loud, supra, the right of the landowner to recover against such a trespasser has been affirmed. In both of these cases, it appears to have been assumed by counsel that if the defendant was held to be a trespasser the original owner of the land could maintain the action — in the first case, the action of replevin, in the other, the action of trespass. The record in Huron Land Co. v. Bobarge does not disclose the fact that plaintiff, the landowner, had paid or tendered the sum necessary to secure a reconveyance of the land. It is to be inferred from the record that he had not done so. In Holmes v. Loud, it appeared that defendants acquired the State tax deed to certain lands, and notified the person who appeared of record to be the original owner. The notice was served July 25, 1902, and it was assumed by defendants that the six months’ period would expire January 25, 1903. Cutting of timber on the land began January 26, 1903. Reckoning from the date of filing proof of service of the notice, the six months expired February 23, 1903. The action was brought for the injury to the freehold, resulting from the cutting of timber, begun in January. It appears that the tax title holder conveyed the land in February to the one in whose right the action was begun, who held an unrecorded deed from the owner of record. But in neither case was it contended that the original owner had not such a title to or interest in the land as would support the action.

If the owner may maintain trespass at all, his right of action accrues when the trespass is committed, and cannot be affected by his subsequent refusal to obtain a re-conveyance of the State’s title. If he does not secure a reconveyance of the land, and is out of possession, he has in fact lost nothing by the injury to the freehold, unless he has the right meantime to deal with the land as an owner — to cut and sell timber, for example. On the other hand, if the original owner, in or out of possession, injures the freehold, and fails to pay for a reconveyance, the tax title purchaser is injured, because he does not finally secure what the State, as absolute owner, sold to him. The former owner may obtain a reconveyance of the land, and if he does he is entitled to have reconveyed the property which the State conveyed by its deed, unchanged and undiminished in value by any acts of his vendor. And if he does not redeem, the purchaser from the State is entitled to the land, uninjured by acts of the former owner thereof, committed after the State acquired the title. We are necessarily brought to this conclusion by the language of the statute and the decisions of this court. If the purchaser from the State acts promptly, or if the former owner pays, as he may, to the register in chancery, the sum necessary to secure a reconveyance, the interval of time is short. And we perceive no reason for saying that, once the rights of the parties are determined, an action may not be maintained by the proper party to recover damages for any injury to the freehold by the other party, or that meantime threatened injury to the freehold may not be restrained by either, by the process of the court of chancery. But we are of opinion that the trial court was right in holding that the former owner could not, before securing reconveyance of the land, maintain this action.

The judgment is therefore affirmed.

Steers, Moore, Brooke, and Stone, JJ., concurred.


author: Steers, J.

text:
    HAMILTON v. WILCOX.
    1. Appeal and Error — Degrees—Equity Praotioe.
    Objections to the correctness and sufficiency of a case proposed, for settlement on appeal must be raised by proposing amendments to the same, and a wrongful refusal to grant proper amendments might be reviewable; but in the absence of such proposed amendments the objection is untenable that the appeal related only to a part of the decree, and that only portions of the testimony were included in the record.

      2. Homestead — Creditors’ Suits — Dividing Lots Oooupied as Homestead — Husband and Wife.
    Though a homestead consisting of a house and other buildings on a single lot is capable of physical division, in a suit by the executor of an estate to have property that was voluntarily transferred by deceased to third parties, who reconveyed the property to the grantor and his wife jointly, applied on the claims of creditors, it is inequitable to divide the homestead, leaving to the widow a parcel including the home, worth $1,500, when the effect of such a division is to decrease the value of the parcel remaining by requiring it to be sold separately.
    3. Same — Equity—Jurisdiction —Sale of Homestead — Creditors’ Suits.
    Chancery has jurisdiction, in a suit brought by the executor to set aside conveyances of decedent of his property, to order a sale of the homestead subject to the rights of the widow, and the statutes applying to a homestead not platted or set apart, and to levies on execution or sales upon foreclosure, do not affect the question. 3 Comp. Laws, § 10364; Act No. 218, Pub. Acts 1899.
    4. Same — Probate Courts — Debtor and Creditor.
    The fact that the widow claimed absolute title to the premises by the entireties, under a deed executed by her deceased husband to third parties, who conveyed to the husband and wife jointly, conferred jurisdiction on the court of equity to dispose of the respective claims; and, having obtained jurisdiction, equity will dispose of the entire controversy.
    5. Same — Estates op Decedents.
    Where the question is solely the setting apart of or selling the homestead of decedent the probate court would be the proper forum. 3 Comp. Laws, §§ 9134, 9363 et seq.

    Appeal from Eaton; Smith, J.
    Submitted November 6. 1911.
    ( Docket No. 45.)
    Decided December 8, 1911.
    Bill by Herbert H. Hamilton, as executor of the estate of Daniel P. Wilcox, deceased, against Anna Wilcox and others to set aside as fraudulent conveyances of real property held by decedent. From a decree for complainant ordering a division of defendant’s homestead, complainant appeals.
    Modified and affirmed.

      Horace 8. Maynard and Joseph B. Hendee, for complainant.

      Elmer N. Peters and Garry O. Fox, for defendants.
   Steers, J.

In this suit complainant appeals only from that portion of the decree directing division, instead of sale, of a city lot with a residence and other improvements thereon, which exceeds in value $1,500, and is claimed by defendant Anna Wilcox as a homestead.

A preliminary objection is made by counsel for defendants that the case cannot be reviewed upon a single point —“upon a partial and garbled appeal detrimental to the rights of the defendant.” It appears that such objection was made before the trial court upon settlement of the case.

It is stated in the printed record, and not disputed, that certain amendments prepared by solicitors for defendant were incorporated in the proposed case by complainant’s solicitors, and at the hearing for settlement no further amendments were presented; the solicitors for defendant only filing written objections to the judge settling and signing the case. The objections were, in substance, that there was no law authorizing a partial appeal, and that the testimony covered only a part of the issues involved in the controversy.

Appeals in chancery are governed by Act No. 299, Pub. Acts 1909 (amended as to sections 4 and. 6, Act No. 160, Pub. Acts 1911), and Chancery Rule 37. Under said rule the party desiring to appeal prepares and presents to the court for settlement such portion of the testimony and records in the case as he deems necessary to present fairly the points he desires reviewed. Notice is given to the opposite party, who has opportunity to then prepare and present such amendments as are desired. The way to raise objections to the correctness and sufficiency of a case proposed for settlement is to propose amendments thereto. Any unjust refusal by the court to consider or incorporate any proper set of amendments in the case might be reviewable. In the absence of such amendments being proposed, the case certified and signed by the trial judge is taken as the case on appeal before this court.

The defendant Anna Wilcox is the widow of Daniel P. Wilcox, who died testate in the city of Eaton Rapids on the 17th day of October, 1905. His will was probated in Eaton county on December 14, 1905; the complainant being appointed executor of the estate. The commissioners on claims reported as allowed against the estate: First-class claims, $108.25; fourth-class claims, $1,913.89— making a total of $2,022.14. The assets of the estate, as shown by the inventory, were a farm, three certain city lots, and personal property appraised at $85.40. Upon one of these lots was the home of the deceased, being the property involved in this appeal. The executor procured license to sell the real estate of the deceased to pay debts and expenses of administration. The farm proved to be heavily mortgaged, and he was only able to obtain $500 for the equity, including the dower interest of the widow, for which she was paid $88.24.

At the time of the death of Daniel P. Wilcox, there stood in his name unincumbered on the records in the office of the register of deeds certain real estate described as lots 1, 6, and the north 97 feet of lot 7 of block 2, Thompkins’ addition to the city. On October 31, 1905, two deeds were recorded which placed the title in defendant Anna Wilcox. One of these deeds was from Daniel P. Wilcox and Anna Wilcox, his wife, grantors, to the two defendants Smalley, dated December 21, 1904, and the other deed was of the same date, conveying the premises back to Daniel P. Wilcox and Anna Wilcox, as husband and wife, evidently designed for the purpose of creating a title by entirety in said Daniel Wilcox and his wife, Anna Wilcox. The Smalleys simply figured as mediums in this transfer of title, had no interest in the controversy, and an order pro confesso was entered as to them.

This suit was instituted by complainant in behalf of the estate to set aside these two deeds as void, on the ground that Daniel P. Wilcox was mentally incompetent at the time he made the deeds, that they were procured by fraud and undue influence, and were also void as against creditors, being without valid consideration. The court set the deeds aside upon the latter ground, holding them fraudulent and void as against creditors, being voluntary and without valid consideration. It was conceded by the defense that the last contention was well founded, and no opposition was urged against that proposition. Lot 6 and the north 97 feet of lot 7 were separated from lot 1 by a partition fence and a barn; they being bought by the deceased some time after the purchase of lot 1, upon which he resided at the time of his death. Lot 1, conceded to he the homestead of deceased and his wife, defendant Anna Wilcox, was found by the court to be worth a substantial sum more than $1,500.

In his first findings the court directed that lot 1 be offered for sale, and, if it brought more than $1,500, that that sum be paid to the widow and the balance turned in to the estate to satisfy creditors, giving the widow, however, the option of paying the estate the excess above $1,500 and taking the property.

Subsequently a petition was filed in behalf of the widow to reopen the case and modify the finding as to lot 1, and, instead of directing it to be sold, that a partition be ordered, giving her the dwelling house and sufficient ground to make a homestead not exceeding in value $1,500.

The case was reopened, and various proceedings had, all bearing upon the disposition of lot 1, a final decree being ultimately signed by the court setting aside the deeds as to lot 6 and the north 97 feet of lot 7, and lot 1 except as to the homestead interest of the widow therein.

As to said lot 1, the court, having found that it had a value materially exceeding $1,500, held that it was physically capable of such a division as to carve out a homestead consisting of a dwelling house and the west 106.7 feet of said lot, not exceeding in value $1,500, which he assigned to said Anna Wilcox as her homestead right “ free and clear from all claims of creditors and heirs at law of said Daniel P. Wilcox, deceased.” This left to the estate the east 41 feet of said lot with a barn thereon.

Complainant appeals only from that portion of the proceedings and decree which relate to a division of said lot, claiming that under the pleadings and proofs such division destroys values, and the court should direct a sale of the property as a whole; $1,500 of the proceeds to go to the ' widow, and the balance to the estate.

The homestead is a single lot of block 2 of Thompkins’ addition to the city of Eaton Rapids. It has upon it a dwelling house and barn, with other appurtenances. It is a corner lot 66.4 x 147.7 feet in dimensions. The annexed diagram gives a general outline of the location, with adjacent streets, and the relative position of the improvements. River street, on which the house fronts, is one of the best residence streets in the city. Holmes street, on which the bam and barnyard are located, has been little improved. There are comparatively few houses along it and it is without sidewalks.

The testimony returned in this case relates chiefly to the value of this property, both divided and taken as a whole. Its chief value is in the dwelling, which is a well-constructed frame house with some modern conveniences. A builder and contractor of many years’ experience, who figured out in detail the material and labor, estimated its cost as $3,380.60. A former owner of the property, who built the house and made the other improvements on the property for a home for himself, testified that it cost him $4,000. He later, during a panic, and as a result of a business failure, sold the same to Daniel P. Wilcox for $1,625 subject to a mortgage of $400. The executor of the estate was offered $2,600 for the property. While there is considerable conflict of testimony as to its value, we think it clearly shown that this homestead as an entirety has a safe market value in the neighborhood of $2,500, and as a whole would sell for that price at least. The testimony seems equally conclusive that the rear 41 feet with the barn, which it was proposed to exclude from the homestead in order to reduce the homestead value to $1,500, is undesirable and mainly valuable as a part of lot 1 as a home, and separated from it would be worth from $200 to $300 only.

It is undoubtedly true that the property is physically capable of such division as to carve out a homestead consisting of a dwelling house and part of a lot, not exceeding in value $1,500, but to do this is destructive of the value of the single city lot as a whole, and loads the reduction on the remaining portion at the expense of the estate. Such a course is manifestly unjust and inequitable. The rights of both parties must be considered and protected. This is not a case where the premises can be “divided without material loss or injury.” The lot should be sold as an entirety.

The real controversy in this case is between the creditors and the widow. There are no minor children. Defendant Anna Wilcox when a widow of 38 years of age married Daniel P. Wilcox, the deceased, a widower 71 years of age. They were married in December, 1900, and he died in October, 1905. During their married life they occupied the premises in question as a home. In this property she has an unquestioned homestead interest amounting to $1,500. The right of the creditors to what said premises, as a whole, are worth in excess of that amount is also equally beyond question.

We cannot agree with the contention that a chancery court has no jurisdiction to pass upon values or order a sale of a homestead in a case of this nature. It is not, in our opinion, controlled by the statutes on that subject. Chapter 287, §§ 10364, 10365, 3 Comp. Laws, as amended by Act No. 218, Public Acts of 1899, limits the proceedings to levy under execution, or decree upon foreclosure of a mortgage, on lands where the homestead has not been platted or set apart by metes and bounds.

Had no litigation arisen over the title of this property, and had the question been solely one of setting apart or selling land in which a homestead interest was claimed, the probate court would have been the proper forum to-dispose of the matter, under 3 Comp. Laws, § 9134, and following, or sections 9363 et seq.j but, in this instance, the defendant Anna Wilcox claimed absolute title to the-lot in question, together with other city property of her husband, as against the estate and its creditors. The suit was therefore properly planted in the chancery court to litigate the title and the rights of the respective parties in that connection. Having once acquired jurisdiction of the subject, equity will retain it to give full relief and. make final disposition of the questions involved. George v. Electric Light Co., 105 Mich. 1 (62 N. W. 985);. Rhoades v. McNamara, 135 Mich. 644 (98 N. W. 392).

The one question brought before this court by appeal is whether the decree of the court shall stand as it is touching the cutting out of a homestead from lot 1, or be modified to directing that it be offered for sale as an entirety; the proceeds up to $1,500 to go to the appellee for her homestead interest, and the balance to the estate for creditors.

In that particular the decree should be modified as heretofore indicated, with costs to complainant.

Ostrander, O. J., and Moore, Brooke, and Stone, JJ., concurred.