text:
    PEOPLE v. VANDER HEIDE.
    1. Criminal Law — Intoxicating Liquors — Identity of Defendant —Evidence—Sufficiency.
    In a prosecution for the unlawful transportation of intoxicating liquor in violation of section 38, Act No. 338, Pub. Acts 1917, testimony by a transfer man identifying defendant as the person who delivered to him' checks for trunks containing whisky, shipped as baggage from Chicago, with instructions where to deliver them, held, sufficient to carry the question of defendant’s identity to the jury.
    2. Same — Intent—Evidence—Sufficiency.
    While it could well be contended that, under the law creating the offense charged, motive and intent are not involved, evidence of intent, if essential, held, adequate to support conviction.
    3. Same — Trial—Instructions.
    Where the general charge in substance covered a requested instruction as to proof, it was not error to refuse the latter.
    4. Same — Possession—Evidence—Constructive Possession.
    Where defendant had possession of the baggage checks which entitled him to possession of the trunks, and delivered them to a transfer man for delivery he was constructively in possession; possession in such cases not being limited to manual touch or personal custody.
    Exceptions before judgment from Ottawa; Cross (Orien S.), J.
    Submitted April 16, 1920.
    (Docket No. 121.)
    Decided June 7, 1920.
    John Vander Heide was. convicted of violating the liquor law.
    Affirmed.

      Visscher & Robinson, for appellant.

      Fred T. Miles, Prosecuting Attorney, for the people.
   Steere, J.

Defendant was tried by a jury in the circuit court of Ottawa county and convicted of a violation of the transportation feature of Act No. 338, Pub. Acts 1917, passed by the legislature to carry into effect the prohibition constitutional provision adopted by popular vote at the general State election held in the fall of 1916, which directed the enactment of appropriate enabling legislation for its enforcement. Defendant’s alleged delinquency was in connection with an unlawful transportation of 58 quart bottles of whisky in violation of section 38 of said act, specifically charged in the information filed against him as follows:

“Said original package and bottles containing such intoxicating liquor so consigned to and possessed by him, the said John Vander Heide, not having clearly and plainly stenciled, branded or printed thereon in a conspicuous place or in any place marked in large letters (or any letters) where it could be plainly seen and read the following: ‘This package contains intoxicating liquors,’ nor did the name and address of the consignor nor the consignee, nor the quantity, nor kind of intoxicating liquors, nor the specific purpose for which said liquors were to be used appear thereon printed, branded or stenciled.”

When arraigned defendant pleaded not guilty. Upon the trial no testimony was introduced by the defense. At the close of plaintiff’s testimony both parties rested and defendant’s counsel moved for a directed verdict on two grounds, as follows:

“First, that there has been a failure on the part of the evidence introduced by the people to identify the respondent as being connected in any way with the crime charged; a failure of identification.
“Second, that even if the evidence were sufficient to support an identification and connect the respondent with this crime, that there has been absolutely no proof showing any guilty knowledge or intent on the part of the respondent to connect him in any way, shape or manner with the crime charged in the information.”

This motion was denied. Defendant’s counsel requested the court to charge the jury as follows:

“You are instructed that in order to find the defendant guilty, he must be identified by clear and convincing evidence and that a mere guess or hazy notion that defendant is the guilty party is not that degree of certainty required by law to associate this defendant with the crime.”

Error is assigned on the refusal of the court to direct a verdict for defendant and to give the above instruction as requested.

In outline, the testimony of the prosecution showed that defendant and one Doyle, who were in familiar association together, had been partners in the saloon, ■business in Holland,'.Michigan, until saloons were closed under the prohibition law, and later in the soft drink business for a time; that on Friday evening, January 10, 1919, they were seen by the officer whose beat was at and around the Pere Marquette railroad passenger station in Holland, taking the south-bound Chicago train together, and were not again seen by him until the following Sunday evening when he saw them through the window playing cards “in Dave Blom’s saloon, or soft drink parlor or whatever you. call it,” which place was shown to have been a saloon in Holland before the State went dry.

On Saturday night, January 11th, some time before morning, a baggageman called attention of the policeman whose beat was around the station to a couple of trunks which had arrived on the night train from Chicago emitting a pungent odor of whisky, of which the officer testified: “It was so Strong it almost knocked me over.” The baggageman in charge testified that one of the trunks was leaking whisky when they arrived on the night train, that the baggage checks were the only identifying marks upon them, there being nothing to indicate what they contained, by whom they were sent nor to whom they belonged, and the police department took possession of them. The chief of police was notified and an examination made, in which they found one trunk in such condition that it could be opened by lifting the latches which held the lid. The contents consisted of quart bottles packed in excelsior two or three of which had been broken. Besides those broken, 58 bottles of whisky were found in the two trunks. They were watched at the station and an investigation resulted in finding passenger baggage checks corresponding with the numbers, etc., of the checks on the trunks in possession of a transfer company with a card attached showing where they were to be delivered.

A transfer man named Cook, who worked for the company, testified that on Saturday night about 11 o’clock he was called to Blom’s place to do taxi service for Doyle, whom he found there in an intoxicated condition, and took him, with two other men who went along and cared for him, to Doyle’s rooming house; that just as they were leaving Blom’s place, Doyle called out to some one close by not to forget “those checks,” and was answered, “Never mind the trunks.” He then drove Doyle to his house and took one of the men who had gone along back to Blom’s, as directed.. After he got out of the taxi a man came out of the place and handed Cook the two identified Pere Marquette baggage checks which called for those trunks, with instructions to deliver the small trunk at Doyle’s and the large trunk at Blom’s place, at the back door. He wanted them delivered that night and Cook replied he could not deliver them then as he had other work to do, but it would be done the first thing in the morning, and the man said, “All right.” Cook then went back to the transfer office and put the checks on the spindle with a card showing where trunks were to be delivered.

As to identification of the party who gave him the checks with instructions where to deliver the trunks, Cook was manifestly a reluctant witness. Asked on direct-examination who it was, he replied, “I hardly gave it much thought at the time, but afterwards I was thinking it over, I thought it was Mr. Vander Heide done it.” He admitted he did not then or ever afterwards think it was any other person, but on cross-examination said he was not sure, and would not as a matter of fact swear it was Vander Heide. Emphasizing this reply and reviewing his at times somewhat conflicting answers, it is insisted a verdict should have been directed for the defense because identification, which rests alone on Cook’s uncorroborated testimony, was but a guess not “made at the time,” merely “a conjecture made later” based on “nothing tangible,” which furnished no substantial, legal evidence to sustain a determination by the jury, beyond a reasonable doubt as the law reouires, that Vander Heide was the party.

Cook admitted he had been acquainted with defendant for some time, been employed by him in taxi service and they had “visited quite a bit,” that defendant had a peculiarity in his walk which Cook had noticed when he “done taxing for him”; that it was a clear night when he received the checks at Blom’s place and he saw the party who gave them to him as -he came out of there and walked up to the side of his taxi, and. then noticed his walk and manner. Later he testified: “I didn’t pay any particular attention to him until he started — turned around and started back again. I noticed his walk when he went back in.” Asked on cross-examination: “What was there about this man that made you think he was Vander Heide,” he replied, “Why, the way of his walking put me in mind of him.” Asked if there was anything else besides his walk he said, “Only his stature and build.” He was able to describe with some particularity the peculiarity in defendant’s walk and volunteered the information that it resulted from rheumatism with which he was afflicted.

. Of the identification of Doyle at Blom’s- place on that Saturday night, there is no question. Defendant was an associate and former partner of Doyle in the saloon business. The night before (Friday) they took the train for Chicago together. The man who stepped up beside Cook’s taxi and handed him two checks for trunks which came in as baggage from Chicago that night wanted them delivered the same night, described them by their size, and directed Cook to deliver the small one-at Doyle’s and the large one at the back door of the place from which he had just come out. This man was of the stature, build, and had the peculiar walk of defendant; Cook “thought it was Mr. Vander Heidé done it,” and conceded he did not then or after-wards think it was any other person. It was shown that on the next (Sunday) night defendant and Doyle were together in Blom’s place in a game of cards, that Doyle appeared somewhat under the influence of liquor and defendant in the conversation cautioned him to “look out,” — referring to something which-had happened in Chicago as “last night.” There was abundant evidence, direct and circumstantial, tending to establish defendant’s identity to carry the question to the jury, and we discover no legal reason to disturb their conclusions in that particular. People v. Henshaw, 52 Mich. 564; People v. Stanley, 101 Mich. 93; Underhill on Criminal Evidence (2d Ed.), § 55.

Upon the contention that the prosecution wholly failed to show any criminal intent, it could well be contended that, under the law creating the offense charged, motive and intent are not involved. People v. Hatinger, 174 Mich. 333; People v. Worges, 176 Mich. 685; People v. Emmons, 178 Mich. 126 (Ann. Cas. 1915D, 425). But assuming that it was essential to conviction that intent be shown, with defendant identified as the person in possession of the trunk checks which he gave to Cook with a description of the baggage and directions where to deliver it, taken in connection with other facts and circumstances proven, there was adequate evidence of intent to support the verdict.

The quoted instruction requested by the defense, refusal of which is urged as reversible error, was in substance covered by the general charge. The court early in the charge, after fairly stating the issue and claims of the respective sides, said:

“Therefore it will be your duty as jurors to commence your deliberations in this case with the presumption of the respondent’s innocence uppermost in your minds, and to continue with that presumption of respondent’s innocence in your minds until you become convinced from the evidence and beyond a' reasonable doubt that he is guilty. It is the duty of, the people to establish the offense with which the respondent is charged in every essential element or ingredient of that offense by proof that convinces you of his guilt and the truth of the charge made against him beyond a reasonable doubt.”

This was emphasized with explanations relative to reasonable doubt, etc., as applied to the elements of the offense charged, in plain, careful and impartial instructions. We find no prejudicial error in the omission to give the request tendered.

Those trunks containing liquor were checked and transported as passenger baggage with no identification marks except the baggage cheeks upon them corresponding in numbers with those given the party who checked them, which were prima, facie evidence of ownership, right to possession and control when the transportation was completed. The trunks had arrived at their destination point, defendant was there in possession of the checks which entitled him to them, he knew the time of their expected arrival, what they were, and by authority of the checks he held assumed to exercise dominion and control over the property as consignee. He turned the checks over to the transfer man engaged as his agent with description of the trunks, and directions where to deliver them in Holland, to which place they were consigned, with particular instructions that the largest should be delivered at the back door of the place where he then was, thus constructively receiving and in possession of them as the consignee. Possession in such cases is not limited to manual touch or personal custody. In that connection the recent case of People v. Hassell, 208 Mich. 236, is illuminating.

The judgment is affirmed, and the case remanded for further proceedings.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    KUTRAMO v. MICHIGAN BONDING & SURETY CO.
    1. Intoxicating Liquors — Civil-Damage Act — Evidence That Plaintiff Had Children Inadmissible.
    In an action by a wife against a saloon keeper and his bondsman for damages under the civil-&amage act, evidence that the plaintiff had children is inadmissible.
    2. Same — Indirect Evidence of Children.
    If it was permissible, for plaintiff to illustrate or emphasize her distress of mind, by reason of her husband’s drinking habits, by the assertion that she contemplated suicide, it was self-evident that she abandoned the project, and it . was not permissible for her to explain that she was restrained because she remembered all of her children, thus getting by indirection before the jury the incompetent evidence that she had children.
    3. Same — Damages—Excessive Verdict.
    Where plaintiff’s husband was not shown to have drunk in defendant’s place within two days of the time of the accident which caused his death, and for which the jury returned no damages were allowed, a verdict for $6,000, held, excessive when eliminating prospective loss and mental anguish “due to the manner and condition” in which he died, and in view of the fact that plaintiff suffered the shame and humiliation of a drunken husband eight years before defendant first engaged in the saloon business.
    ' Error to Houghton; O’Brien (Patrick H.), J.
    Submitted April 9, 1920.
    (Docket No. 37.)
    Decided June 7, 1920.
    Case by Hilda Kutramo against the Michigan Bonding & Surety Company, surety, and Elias Haanpaa, principal, under the civil-damage act. Judgment for plaintiff. Defendants bring error.
    Reversed.

      A. F. Bunting, S. Wesselius and Galbraith & McCormack, for appellants.

      Le Gendre & MacNally, for appellee.
   Steere, J.

On the evening of July 6, 1917, William Kutramo, a miner of Finnish nationality living near Red Jacket, Michigan, went into a Finnish bathhouse to take a bath and while there fell from one of the benches, or shelves, used in the steam room at such places and fractured his skull, from which accident he died some hours later.

Defendant Elias Haanpaa was at that time and had been for some years running a saloon in the village of Red Jacket largely patronized by Finns. Plaintiff Hilda Kutramo, widow of deceased, brought this action against Haanpaa and his bondsman charging that on various occasions said Haanpaa had, against her protest and notice, unlawfully sold intoxicating liquors to her husband who was addicted to the excessive use of intoxicating liquor and an habitual drunkard, specifically alleging in her declaration:

“That because of the intoxicating liquors sold to said William Kutramo by the said Elias Haanpaa, his clerks, agents and servants on the 6th day of July, A. D. 1917, and at previous times thereto during said liquor years, the said William Kutramo became weak, dazed and helpless, and while in a drunken,'* weak, dazed and helpless condition, produced by the liquors furnished by the said Elias Haanpaa, and while taking a bath in a bathhouse in Calumet township on the 6th day of July, A. D. 1917, fell from one of the shelves in said bathhouse and fractured his skull, and as a result thereof died on the 7th day of July, A. D. 1917.”

The case was tried by jury in the circuit court of Houghton county in April, 1919, resulting in a verdict and judgment in favor of the plaintiff for $6,000. Motion was thereafter made for a new trial on various grounds, including the claim that the verdict was contrary to the weight of evidence and excessive, which was denied and the case removed to this court for review on numerous assignments of error.

Briefly stated, plaintiffs testimony to support her claim was in. outline and substance that she married deceased in 1895; that he was then an industrious, able-bodied man not given to the excessive use of intoxicating liquors, but that in 1899 he began to drink some, at first keeping away from his home when intoxicated, and gradually became more addicted to the use of intoxicating liquors, drinking more and working less steadily, until in 1910 his habits were such that plaintiff caused .written notices to be prepared and served by the marshal of the village of Red Jacket upon the saloon keepers of that village, including defendant Haanpaa, forbidding them from selling intoxicating liquors to her husband; that Haanpaa nevertheless permitted deceased to patronize his saloon, and during the three years before his death deceased’s intemperance, with resultant neglect and abuse of plaintiff, increased to a marked degree and he became an habitual drunkard; that plaintiff at different times found him drunk or drinking intoxicating liquors at Haanpaa’s place during the years 1915-1917, remembering and testifying distinctly to four different dates when such was the case. Other witnesses also testified to deceased getting liquor from defendant on different occasions during that period. It was shown that he drank in Haanpaa’s on July 4, 1917, and that he was intoxicated at the time he fell from a shelf in the bathhouse and fractured his skull.

The case was tried for plaintiff on the theory indicated in that portion of her declaration quoted, but the jury seem to have either rejected the theory that Haanpaa was responsible for Kutramo’s death, or that it was no loss to plaintiff, in view of the following special questions and answers submitted to and given by them:

“If you find for plaintiff answer the following questions :
“1. At what sum do you assess plaintiff’s damages? $6,000.
“2. Do you allow to plaintiff any damages arising or growing out of the death of her husband? None.
“3. If so, how much of the total amount do you allow as damages arising or growing out of the death of plaintiff’s husband? None.”

Complaint is made of and error assigned on the mapner in which the court submitted those questions to the jury with instructions as to how to answer them, as claimed. Of them the court charged the jury:

“The burden of proof is upon the plaintiff to establish by a fair preponderance of the evidence that the death of her husband was contributed to by intoxication and that such intoxication was contributed to by the unlawful sales or furnishing of liquor by defendant Haanpaa to her husband. You heard what I said on that, and bear that in mind. If you find in favor of the plaintiff on that proposition, then you can answer the second question ‘Yes.’ If you find in favor of the defendant on that proposition, you can answer the question ‘No.’
“Now, if you answer the second question ‘Yes,’ then, you answer the third question. If so,.how much of' the total amount assessed do you allow as damages arising or growing out of the death of plaintiff’s husband?
“In other words, how much damages do you allow for the future, after the death of plaintiff’s husband, providing you allow any?”

Plaintiff’s most pointed reply to the claimed error in manner of submitting special questions is that, if error, defendants cannot complain as the answer was in their favor. On whose request those special questions were submitted does not appear; but in connection with preceding instructions as to how the jury should view that inquiry and the measure of damages given in portions of the charge, their purpose is not clear. In one paragraph of the quite lengthy charge the jury were instructed as follows:

“I charge you, gentlemen of the jury, that there is no evidence in this case that plaintiff’s husband received any liquor from defendant Haanpaa that contributed to any intoxication that was on at the time he met with the accident which resulted in his death, if he was so intoxicated, and you are therefore directed that you cannot award plaintiff any damages for the death of her husband because of any liquor furnished upon the day that he met with the accident.”

Following this the court further said upon that subject:

“Now the question of whether or not the defendant Haanpaa can be held responsible for the accident which resulted in the death of plaintiff’s husband is a question that I am going to leave to you in this way. It is the theory of the plaintiff that during all these years unlawful sales were made from time to time by defendant to Kutramo; that plaintiff’s decedent’s condition and habits regarding his drinking grew worse from time to time and that on account of his weakened intellect and general run-down condition, that even if no liquor was sold him on the 6th of July, that nevertheless his previous intoxication occasioned in part (according to the claim of plaintiff) or contributed to by the defendant was one of the contributing factors to his death or to the accident that caused his death. * * * If you find by a fair preponderance of the evidence that there is a relation of cause and effect between unlawful sales, * * * and the accident that resulted in the death of plaintiff’s husband, then, gentlemen, you have a right to allow the plaintiff damages for her future loss of support and for injuries to feelings occasioned her by the husband’s death.”

Somewhat in that connection complaint is made of the extent to which the court stressed the manner of death to the jury as possible element of damages by frequent reference to it, which it is claimed was prejudicial and is reflected in the verdict. Running through the lengthy charge the court instructed the jury at different places as to the measure of damages as follows:

“The plaintiff should be allowed reasonable compensation for all loss of support, if any, which she has already sustained, and for all loss of support which it is reasonably certain she will sustain in the future in consequence of the wrongful and unlawful acts of defendant. * * * and also for all such shame, humiliation and worry, if any, as has been brought upon her in consequence of such unlawful acts, either by the drunken condition, public exhibition, or otherwise, also the shame or humiliation she may have had due to the manner and condition in which her husband died. You must be governed by the evidence * * * and take into consideration all of such matters shown by the evidence as tends to show past or future loss * * *_ in means of support, * * * humiliation, worry, if any, which has been brought upon her as a consequence of the intoxicated condition of her husband, and the manner in which he died. * * * The injury to the feelings contemplated by the statute is that resulting from having a drunkard for a husband and not the injury to the feelings occasioned by the accident, * * * on account of there being three liquor years involved there, if during any year or years you are not able to find that liquor was unlawfully sold or furnished by defendant to plaintiff’s husband, but you do find that 'liquor was sold for some other year or years then you find damages accordingly. Your verdict cannot exceed $6,000 if liquor was sold for only two years; it cannot exceed $8,000 if it was only sold during one of the years and a verdict of $9,000 could only be delivered in this case if liquor was sold during the period of 3 years.”

Complaint is particularly made of the fact, and manner in which, the jury was informed plaintiff had a family of children, and comment by her counsel in relation to it. This court has repeatedly held it error to introduce before the jury testimony that plaintiff had children. Larzelere v. Kirchgessner, 73 Mich. 276; Johnson v. Schultz, 74 Mich. 75; Thomas v. Dansby, 74 Mich. 398; Boydan v. Haberstumpf, 129 Mich. 137; Manzer v. Phillips, 139 Mich. 61; Montross v. Alexander, 152 Mich. 513; Pearson v. Schoenberg, 167 Mich. 255; Rauhala v. Maki, 172 Mich. 112. The reasons for excluding such testimony have been so often and clearly stated in those decisions that it is unnecessary to repeat them here.

The fact was brought to the attention of the jury in the instant case as follows: While being examined by her counsel plaintiff was asked if she remembered anything that happened “due to his drinking,” in the summer of 1915 while her husband was drinking heavily, and she replied:

“I remember that very well.
“Q. What do you remember?
“A. I was so distracted when I was working, was so nervous, because I never had nothing; no food or no drink and I didn’t know what to do next and I was going to commit suicide.”

Objection to this was overruled and she was then asked:

“Q. What steps did you take to do what you just mentioned?”

Allowed to answer this against objection she replied :

“I was going to jump into the Calumet dam, but I remembered all my children and that prevented me.”

A motion to strike this answer out was denied and error is assigned upon such ruling.

If it was permissible for her to illustrate or emphasize her distress of mind by the assertion that she contemplated suicide, it was self-evident she abandoned the project, but it was clearly not permissible to thus by indirection get before the jury incompetent evidence as to her excuse or reason for changing her mind. Such answer could not be anticipated by defendant’s counsel, and perhaps was not by plaintiff’s counsel, although it is urged for plaintiff as relevant and competent in explanation of why she refrained from the desperate act she contemplated, and the trial court appears to have adopted that view. It stood before the jury with the court’s indorsement as competent for them to take into consideration in estimating damages. In Boydan v. Haberstumpf, supra, the court struck out testimony showing plaintiff had a young child and sought to cure- the error by instructions in the charge, but this court not being satisfied the error was without prejudice the case was reversed. In Manzer v. Phillips, supra, the court said:

“The fact that the testimony was introduced indirectly, instead of directly, in this case, does not alter the rule. The mischief is the same in one case as in the other. * * * We should not be inclined to reverse the case for this error in view of the amount of the judgment — $300—if we were satisfied that the verdict was not affected by the error. But. we are satisfied from the testimony of the plaintiff herself that this verdict could only be awarded properly on the basis of damages for injuries to her feelings and exemplary damages, and we therefore hold the admission of this evidence to have been reversible error.”

In the instant case the amount of the judgment was $6,000, a sum suggested by the court as permissible, “if liquor was sold for only two years” of the three alleged.

That deceased did work steadily for months at a time during the period covered by the declaration is undisputed, and it was shown that while working “he did not drink at all.” Plaintiff testified that after the year 1914, “he was out of work more than he worked”; that beginning May 1, 1915, he drank more than in 1914 and so continued until his death, working- at certain times or seasons, laying off and drinking the balanee. She tells of his working about three months in thé Wolverine in the fall of 1915, that he “then changed from the Wolverine to the Tamarack during the winter of 1916,” and of other times and places when and where he worked. Had he worked the entire periods she makes plain he was laying off during the two and a fraction years before his death covered by the declaration, he could scarcely have earned at the wages she stated he received a total exceeding $1,000. In January, 1916, he was stricken with pneumonia, which his family physician testified “was an extremely serious case,” for which he attended and treated the patient during all of January, subsequently, after the patient could visit his office, having him under his care and office treatment until some time in April.

Bearing upon the subject of damages for injured feelings, plaintiff’s testimony shows that she had suffered the shame and humiliation of a drunken husband not only for many years prior to the period named in her declaration, but some 8 years before Haanpaa first engaged in the saloon business, in 1907. She states her husband began drinking in 1899 while they were living in “Albion Location,” at first being “ashamed to come home drunk.” Like many other miners, he at various times changed his employment and place of residence as wages or other conditions suggested. He went to Butte, Montana, in 1906, returning in 1908, plaintiff being there with him part of the time. In 1911 he went to a mining district in Canada, where she was with him for a time, and returned to the Michigan district in 1918, “a few days after the strike started here,” she then being in “Superior.” He worked at the Wolverine in 1914 and they moved to Ahmeek the latter part of April, in 1915. She testified that while working at Ahmeek in the spring of 1915 he got hurt and went on the sick list “drawing from the club”; they came back from Ahmeek to Wolverine in October, and he went from the Wolverine to the Tamarack mine in the winter of 1916, was away during the summer of 1916 at Ontonagon, and during the winter of 1916 and 1917 worked at the Calumet & Hecla until February. There were no saloons in Wolverine, but Red Jacket, with a trolley line between them, was well supplied.

Kutramo was not shown to have drank in Haanpaa’s place within two days of the time he met his death in a Finnish bath-house, where it is shown some of his compatriots had whisky and to which he went in an intoxicated condition on the evening of July 6th from the back door of a near-by saloon, other than Haanpaa’s. Eliminating his fatal accident, for which the jury returned no' damages were allowed, and making full allowance for all damages shown or claimed in material loss, of support, etc., this record is persuasive that had Kutramo met no untoward accident that day and yet lived, eliminating prospective loss and mental anguish “due to the manner and condition” in which he died, the verdict would not be for the amount shown here, and if so would be manifestly excessive.

We find it unnecessary to consider the other assignments of error, being persuaded that the incompetent testimony of plaintiff relative to “all my children” and the reiterated instructions by the court as to future losses, the condition and manner in which plaintiff’s husband met his death, etc., in connection with what was said to the jury touching their answers to the special questions, are prejudicial errors reflected in the verdict.

The judgment is therefore reversed, with costs, and a new trial granted.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    MOSIER v. AMERICAN RAILWAY EXPRESS CO.
    1. Carriers — Lost Trunk — Evidence—Ad ins sibiiitt.
    In an action against an express company for the value of , a lost trunk, refusal of the trial court to admit testimony as to charges on "shipments collect” on which no value was declared, helé, not prejudicial, in view of the fact that defendant’s expert had been permitted to go fully into the matter of tariffs and classifications, and no claim is made that the term has any different meaning from “charges collect.”
    2. Same — Receipt—Construction—Notice.
    A uniform express receipt issued by an express company for a trunk on which the value was undeclared, limiting the liability of the company in such case to $50, and accepted by the shipper without reading and without notice of its contents, helé, under the rule construing the same most strictly against the maker, not to limit its common-law liability.
    3. Same — Consent—Presumption—Rebuttal.
    The acceptance by-a shipper without objection of a receipt prepared, and handed him by the carrier, while raising a presumption of knowledge of and consent to the .stipulations contained in it, is not conclusive, but, like any presumption of fact, is open to rebuttal.
    Error to Wayne; Dingeman (Harry J.), J.
    Submitted April 21, 1920.
    (Docket No. 77.)
    Decided June 7, 1920.
    Case in justice’s court by Irvin E. Mosier against the American Railway Express Company for the nondelivery of a trunk. There was judgment for plaintiff for less than the amount claimed, and he appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.
    As to limitation of carrier’s liability for passenger’s luggage, see notes in 19 L. R. A. (N. S.) 1006; 34 L. R. A. (N. S.) 818; and L. R. A. 1916A, 1273.

      Campbell, Bulkley & Ledyard (Wilson W. Mills and Charles McV. Willits, of counsel), for appellant.

      Henry C. L. Forler and Sidney S. Cole, for appellee.
   Steere, J.

This case, involving the value of a lost shipment by express, reached the circuit court of Wayne county on appeal from a judgment in justice’s court. Upon re-trial in the circuit court plaintiff had judgment for the sum of $464, and defendant removed the cause to this court for review by writ of error. On August 16, 1918, plaintiff delivered to defendant, at its Detroit office, a trunk containing wearing apparel and other personal effects for transportation to Harbor Beach, Michigan, consigned to himself at that point, “charges collect.” Upon the. trial it was admitted that the trunk was received by the company for transportation and has never been delivered. Plaintiff’s bill of particulars contained an itemized statement of its contents, consisting of wearing apparel, etc., valued at $433.50, and defendant’s counsel stated upon the trial when that, subject was introduced: “We admit the value of the shipment and the items as set forth in the bill of particulars.” At the time plaintiff delivered the trunk to the express company in Detroit nothing was said by either him or the express company’s agent as to the contents of the trunk, its value, or the rate to be charged. On delivering the trunk he was handed a so-called and entitled “uniform express receipt,” a copy of which was introduced in. evidence. It was signed by the company’s agent but not by plaintiff, who was allowed to testify over objection that he never read this receipt and had no knowledge of its contents. The form used is conceded to be the same as the form of express receipt filed by defendant with the Michigan railroad commission. Several different sizes and styles of type are used in printing the form of this receipt. Above the receipt proper appears in small type the following:

“The company will not pay over $50, in case of loss, or 50 cents per pound, actual weight, for any shipment in excess of 100 pounds, unless a greater value is declared and charges for such greater value paid.”

The receipt itself is as follows:

“American Railway Express Co. (3000)
(Incorporated) (1-19)
“Detroit, Mich...............191..
“Received from... .1. E. Mosier... .subject to the Classifications and Tariffs in effect on the date hereof, ...................one trunk................... value herein declared by shipper to be........dollars.
(See footnote.)
“Consigned to ..........I. E. Mosier........... At... .Harbor Beach, Michigan... .Charges . .Collect ............War Tax
Which the Company agrees to carry upon the terms and conditions printed on the hack hereof, to which the shipper agrees, ■and as evidence thereof accepts and signs this receipt.
Shipper.
..............F. Simpson........
“For the Company.”

The last three lines of the receipt and the footnote below it are close lined in yet finer print, the latter reading as follows:

“NOTE. — The Company’s charge, except upon ordinary live ■stock, is dependent upon the value of the property, as declared, or released by the shipper. If the shipper desires to release the value to $50 for any shipment of 100 pounds or less, or not exceeding fifty cents per pound, actual weight, for any shipment in excess of 100 poufids, the value may be released by inserting ■“not exceeding $50,’ or ‘not exceeding fifty cents per pound,’ in which ease the company’s liability is limited to an amount not •exceeding the value so declared or released.”

The “terms and conditions” cover the back of the paper with 12 paragraphs of close lined matter in fine print. Paragraph No. 2 being as follows:

“2. In consideration of the rate charged for carrying said property, which is dependent upon the value thereof, and is based upon an agreed valuation of not exceeding fifty dollars for any shipment of 100 pounds or less, and not exceeding fifty cents per pound, actual weight, for any shipment in excess of 100 pounds, unless a greater value is declared at the time of shipment, the shipper agrees that the company shall not be liable in any event for more than fifty dollars for any shipment of 100 pounds or less, or for more than fifty cents per pound,, actual weight, for any shipment weighing more than 100 pounds, unless a greater value is stated herein. Unless a greater value is declared and stated herein the shipper agrees that the value of the shipment is as last above set óut and that the liability of the company shall in no event exceed such value.”

Defendant was permitted, against the objection that such evidence was incompetent, irrelevant and immaterial, to introduce the classifications and tariffs filed with the State commission and in force at the time of this shipment, by which it appeared that the so-called “primary rate” between Detroit and Harbor-Beach was 99 cents per 100 pounds. A portion of a paragraph of the classification introduced reads as follows:

“Rates named in tariffs governed by this. classification, except as to ordinary live stock, are dependent upon and vary with .the declared or released value of the property, and except as to * * * [immaterial], are based upon property declared to be of, or released to, a value not exceeding $50 for any shipment of 100 pounds or less, or not exceeding fifty cents per pound actual weight for any shipment in excess of 100 pounds. When the declared or released value exceeds that above stated, except as to paintings, * * * the rates are 10 cents greater for each $100 or fraction thereof in excess of the value stated above.”

A witness of defendant, familiar with tariffs, testified that the rates as shown by the tariff and classification increased 10 cents for each $100 additional valuation, and the primary rates from Detroit to Harbor Beach being 99 cents on a 100-pound package not exceeding $50 in value, the tariff on the same package valued at $150 would be $1.09. He also testified that the primary rate was customarily charged unless a higher value was declared. It was admitted by the respective parties that a proper claim in writing was made by plaintiff within 4 months, and that defendant to liquidate the same had made proper tender of $50 with costs.

At close of the proofs defendant admitted liability of $50 and moved the court for a directed verdict against it to that amount, counsel having stipulated that the weight of the shipment was unascertainable and the uniform express receipt as applied to a shipment in excess of 100 pounds was inapplicable. At the time of making this motion counsel for defendant stated he would concede plaintiff did not read the receipt and the court said:

“Your position, Mr. W......... is simply this: It makes no difference whatever whether plaintiff knew anything about the receipt; whether he read it or did not read it, but the fact that he accepted it, made it a contract, and he assented to everything in the receipt?
“Mr. W.....: Yes. * * *
“The Court: In other words, it is a question of $50 for plaintiff, or $433.50?
“Mr. W.----; Yes, with interest.”

After some further discussion the case was taken under advisement by the court and the jury excused. An opinion was thereafter delivered by the court and judgment for plaintiff entered in the sum of $464. In its opinion the court states:

“The case was tried before the court and a jury, but on stipulation in open court, it was agreed that the jury be discharged, the questions presented to be disposed of by the court, the defendant stipulating that if it ultimately appears that any question of fact for the jury was involved it should be treated as established by the evidence and resolved in favor of plaintiff.”

Defendant’s assignments of error are concentrated in its counsel’s brief as follows:

“In failure of the circuit judge to direct a verdict against it in a sum not in excess of fifty dollars; in holding that the plaintiff was not bound by all the terms of Exhibit A (its uniform express receipt) ; for the refusal of the court to hold that the contents of the filed tariffs and classifications were not conclusively presumed to have been known to the plaintiff, and the refusal of the court to take testimony as to charges upon ‘shipments collect’ where no value was declared.”

Counsel do not discuss the last assignment of error in their briefs. It relates to the following question asked of one of defendant’s express agents: “Q. What charges are collected on ‘shipments -collect’ on which no value is declared?” A formal objection to this as incompetent, irrelevant and immaterial was sustained. No claim was or is made that this term has any different meaning from “charges collect.” The question was asked after defendant’s expert had been permitted against plaintiff’s objection to go fully into the matter of tariffs and classifications, explaining the rates between Detroit and Harbor Beach and the method by which they were arrived at, giving the amounts and stating that the primary rate was always charged unless a higher value was declared. No claim was made or suggested by any one that a higher or different tariff was collected when goods were sént “charges collect.” Counsel do not advise us in what way the ruling was prejudicial and we see little force in the assignment of error. We infer and it may be assumed, so far as this controversy is concerned, that the charges were the same at whichevér end of the route collected.

The other assignments of error all center to defendant’s contention that the receipt given plaintiff constituted a special binding contract limiting its liability to $50 irrespective of the value of the shipment or the circumstances attending it. The undated receipt relied on by defendant was scantily filled out by its agent and handed to plaintiff at the time he shipped his trunk, without explanation, request that he sign it or any intimation of its nature. Had he taken time and pains to read the abundant printed matter appearing on both sides of that paper, on and between lines in type varying in size from large capitals to exceedingly fine print, he would have found at the top above the receipt proper the statement that defendant would not pay over $50 in case of loss unless a greater value was declared, with charges for such greater value paid, and in the body of the receipt under the blank left for inserting the value reference to a footnote which stated that if the shipper desired “to release the value to $50 or less for any shipment of 100 pounds or less * * * the value may be released by inserting ‘not exceeding $50’ or ‘not exceeding fifty cents per pound,’ in which case the company’s liability is limited to an amount not exceeding the value so declared or released.” Even before he reached the 12 paragraphs of solid set, fine printed matter which cover the back of the paper,- he would be confronted with a question of legal construction of the language already quoted, upon which learned counsel in this case disagree. It is said for defendant that both the headnote and footnote are mere notices of limit of liability and not part of the contract proper, citing McMillan v. Railroad Co., 16 Mich. 79; and the notice at the top is emphasized as “clear and free from ambiguity,” while counsel for plaintiff emphasize the footnote as made a part of the contract by special reference in the body of the receipt, and say:

“That footnote, if it means anything, means that the shipper, if he so desires, may release to the value of $50 by inserting ‘not exceeding $50.’ The inference being that, if the insertion is not made, the liability will not be limited. The value of the goods was not inserted in the body of the receipt, and under those circumstances, disregarding the notice at the top of the receipt, it certainly could not be held that a special contract limiting liability had been entered into without doing violence to the language in the footnote at the bottom of the receipt.”

The trial court took the view that the headnote was a mere notice, and said:

“Construing the footnote as a part of the contract, we find that the shipper, if he so desires, may release to the value of $50 by inserting ‘not exceeding $50 * * * in which case’ the carriers’ liability is limited; otherwise, the alternative — common law liability. Any other construction does violence to the language employed.
“A contract relied on as limiting the carrier’s common law liability must be unequivocal and unambiguous. Restrictions of a carrier’s liability in receipts or bills of lading drawn by them, are for their benefit, are interposed for the purpose of escaping liability which would otherwise be imposed by law, and they should be construed strictly as against the carrier and in favor of the shipper.”

As applied to the paper and circumstances under which it was delivered; we fully agree with the rule of construction stated by the trial court in the last paragraph quoted. In the early case of Michigan Cent. R. Co. v. Hale, 6 Mich. 243, it was stated, on the ground of public policy, that the right of a common carrier to limit its liability by mere notice should not exist.

“The public has a right to insist upon the full common law liability of carriers, unless a contract releasing a company from such liability be clearly shown.”

Defendant’s contention is that such a contract is clearly and irrefutably established by the undisputed physical fact of reception and retention of the receipt without objection, from which fact alone a conclusive legal presumption arises that all its terms were known to and accepted by plaintiff as a binding contract between the parties fixing their rights and liabilities.

Plaintiff’s contention is that no such presumption arises "in this jurisdiction from mere acceptance of such a receipt under such circumstances as shown here, but the burden still rested upon defendant to show by further evidence that it was understandingly received and accepted as a binding contract, or, if any presumption arose from its delivery to plaintiff and retention without protest, it was but a refutable presumption subject to rebuttal, and the undisputed facts of this case clearly establish that it was not so received and accepted. Abundant decisions are to be found in other jurisdictions more or less strongly sustaining both contentions, many of which are cited and discussed by counsel, which we do not review here as we think the rule in this jurisdiction is fairly determinable from our own decisions.

Defendant cites and particularly emphasizes as sustaining its contention McMillan v. Railroad, Co., supra, Smith v. Express Co., 108 Mich. 572, and D’Arcy v. Express Co., 162 Mich. 363, while plaintiff cites and mainly relies upon Michigan Cent. R. Co. v. Hale, supra; McMillan v. Railroad Co., supra; Farnsworth v. Express Co., 166 Mich. 676; Crowley Bros. v. Railway Co., 185 Mich. 482; Thurston v. Navigation Co., 205 Mich. 278.

Both parties cite as supporting authority the Mc-MiUan Case with quotations from it, which seem in the abstract more or less favorable to the side quoting. In volume of quotation and perhaps in substance, the excerpts as culled from that case may be said to predominate in defendant’s favor. The dominant question there was, however, whether defendant was liable as a warehouseman or a common carrier and a decision of the trial court in its favor on the ground that its liability as a common carrier had ceased was affirmed on review by an equally divided court.

In Smith v. Express Co., supra, which in certain statements favors defendant’s contention, the court cites the McMillan Case as authority for the proposition that receipt of a bill of lading “without objection or insistence upon the common law liability of the carrier, is a contract between the parties,” but further states that plaintiff, who did not “pretend he was ignorant of this condition,” and his agent, who delivered the package and took the receipt, both testified “that they had frequently, for years, shipped packages by the defendant, and received similar receipts. Both were witnesses and neither testified that he did not know what the receipt contained.”

In D’Arcy v. Express Co., supra, it was found:

“The plaintiff had been in the habit of shipping articles and merchandise by the defendant express company, and defendant had furnished him with a book of receipts to facilitate such shipments. The plaintiff himself filled out the receipt covering the shipment in question in this case and a copy of the same is attached to these findings.”

While language found in some of the older decisions of this court can fairly be urged as in harmony with defendant’s full contention, we think it may be safely said from the qualifying facts in those cases and the general trend of our decisions that in this jurisdiction the acceptance by the shipper without objection of a receipt prepared as in the instant case and handed him by the carrier, while raising a presumption of knowledge of and consent to the stipulations contained in it, is not conclusive, but, like any presumption of fact, is open to rebuttal. To hold otherwise would in principle necessitate overruling the more recent case of Farnsworth v. Express Co., supra, and repudiating tb.e clear conclusion upon that subject in Crowley Bros. v. Railway Co., supra, in effect overruling that case also. While in the latter case a question of pleading was involved and given importance in the opinion, it was said:

“We think the case is controlled by Farnsworth v. Express Co., 166 Mich. 676, where reference is made to the proviso in section 40 of Act No. 300, Pub. Acts 1909 [2 Comp. Laws 1915, § 8148], being the last clause of said section, which reads as follows:
‘Provided, That nothing herein contained shall be so construed as to abridge or in any wise lessen the liability of such common carrier as it now is under existing laws.’ * * *
“Unless we are to overrule the Farnsworth Case, it must be held to be controlling of this question, notwithstanding the rulings of the Supreme Court of the United States in Boston, etc., Railroad v. Hooker, 233 U. S. 97 (34 Sup. Ct. Rep. 526, L. R. A. 1915B, 450, Ann. Cas. 1915D, 593), and kindred cases relating to the interstate commerce act and its amendments, which latter act differs materially from the Michigan act, above referred to, and contains no such proviso as that above quoted.”

As to this defendant points out that section 20 of the interstate commerce act (38 U. S. Stat. p. 1197, chap. 176) contains a proviso of somewhat similar wording, but that proviso has reference to an entirely different subject, limiting itself to “this section” which is devoted exclusively to making the initial carrier liable to the holder of a bill of lading for loss caused by a connecting carrier.

In the Farnsworth Case this court said:

“Defendant had and has, under Act No. 300, the right to ascertain the value of the package to be carried, and it became its duty thereupon to charge its regular schedule rates for transportation. Its failure to do this cannot be permitted to defeat plaintiff’s right to recover the full value of the package, in the absence of any showing of limitation of liability in the contract of carriage, or of fraud or deceit on the part of the plaintiff in making the shipment.”

A like view is stated in Adams Express Co. v. Stettaners, 61 Ill. 184, as follows:

“If common carriers desired to deal fairly with the public, it would be very easy for them to require the shipper to specify the value of the merchandise and insert the amount in the receipt, making their charges in proportion to their liability. If the shipper should falsely state the value he could not complain at being held to his own valuation.”

We do not regard as of controlling importance the difference in facts urged by defendant, and an examination of the briefs in those cases, as well as the opinions filed, shows that most of the questions raised here were then before the court with the same statutes and largely the same authorities cited.

The judgment of the circuit court is therefore at-. firmed.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: Brooke, J.

text:
    WHALEN v. GALY.
    1. Landlord and Tenant — Lease—Agreement for Lease Vests No Estate.
    An agreement'to execute a lease vests no estate in the pro* posed lessee, and is no defense to an action against him. in summary proceedings for possession, but it gives him a right of action for the breach of the contract.

      2. Same — Evidence—Directed Verdict.

      Held, that the testimony of defendant and the concession of his counsel showed an agreement for a lease, and not an actual leasing of the premises, and that a verdict for plaintiff was properly directed.
    Error to Kent; Davis (Prank D. M.), J., presiding.
    Submitted April 21, 1920.
    (Docket No. 13.)
    Decided June 7, 1920.
    Summary proceedings by Martin Whalen against Joseph Galy for the possession of leased premises. There was judgment of restitution, and defendant appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      Frank J. Powers, for appellant.

      John J. McKenna, for appellee.
    On November 8, 1915, plaintiff entered into a lease with one Elias A. Fraam. The lease covered three stories and the basement and expired by its terms on November 1, 1918. The lease contained a provision against assignment without the written assent of the lessor — plaintiff.
    On February 7, 1917, Fraam sold his interest in the lease to defendant Galy and attempted to secure from plaintiff a consent to its transfer, which was refused. An arrangement was thereupon made between Fraam and Galy to operate the restaurant together, rent to be paid by Galy to Fraam, and by Fraam to Whalen. This arrangement continued until August, 1918, when Fraam left. He was told by the plaintiff that plaintiff would hold him responsible for the rent for the balance of the term.
    Galy continued in possession of the premises and on November 23, 1918, plaintiff served upon him a notice to quit. No attention was paid to this notice by defendant and on December 5, 1918, he tendered the plaintiff the sum of $160 as rent for the month of December, 1918, and demanded a receipt, which, it is said, would have recognized his tenancy. Plaintiff refused the $160 but offered to accept $150 upon condition that defendant would move out on or about January 1, 1919.
    In the meantime, and on November 8, 1918, plaintiff executed a new lease of the premises to one Nicholas Praam for a period of five years, commencing January 1, 1919. Defendant, having refused to quit and deliver up possession, this action to recover possession of the building was brought before a circuit court commissioner, where plaintiff had judgment of restitution. An appeal was taken therefrom to the circuit court, where said judgment was affirmed.
   Brooke, J.

(after stating the facts). Upon the trial defendant testified that plaintiff, some time in August, agreed to give him a new lease for three years, commencing December 1, 1918, at $160 per month, plaintiff to furnish the heat; or $150 per month, each party to furnish half of the heat. He further testified that on October 8, 1918, plaintiff told him that he could not have the lease for three years but that he would give him a lease for one year. His exact' testimony is as follows:

“Q. He promised you he'would give you a lease, didn’t he?
“A. Yes.
“Q. And he never gave it to you, did he?
“A. He didn’t give it to me. I was waiting for it.
“Q. You were waiting for it?
“A. Yes.
“Q. And you are waiting for it yet, aren’t you?
“A. Yes.
“Q. You never got it, did you? You haven’t got any lease now, have you?
“A. No, sir.”

In a colloquy between court and counsel, the following occurred:

“The Court: It simmers right down to this then, as to whether there was a new lease or not.
“Mr. Powers: Yes. * * * Our claim is now, that in October, 1918, they made an agreement for a lease to begin on December 1, 1918, fixing the length of time and fixing the amount to be paid, $160, the amount that they agreed upon.
“The Court: Do you claim that to be an actual lease?
“Mr. Powers: An agreement for a lease, beginning at that time.
“The Court: Now, do you think that an agreement to execute a lease at that time is a defense in a summary proceeding?
“Mr. Powers: I do.
“The Court: If he did actually make an agreement to give a lease and failed to perform, you are entitled to recover your damages in some sort of action; but, is that a defense in this form of action? Have you looked up on that question?
“Mr. Powers: No, I have not, especially.”

The court thereupon directed a verdict for the plaintiff. A judgment was entered upon said verdict and the case is now here for review, under five assignments of error, all of which are argued together and go to the propriety of the court’s action in directing a verdict. The only question argued at length by counsel for appellant is that based upon the alleged error of the court in deciding a controverted question of fact in favor of the plaintiff. It is the claim of counsel for defendant that, taking the testimony of defendant and his supporting witnesses together, it showed, not an agreement to execute a lease thereafter, but an actual leasing of the premises by plaintiff to defendant for the term of one year, citing Whiting v. Ohlert, 52 Mich. 462 (50 Am. Rep. 265); Waldo v. Jacobs, 152 Mich. 425 (15 Ann. Cas. 343); Rooks v. Booth, 160 Mich. 62. Counsel for plaintiff concede the authority of the cited cases, but contend that by the undisputed testimony as well as by concession of counsel, there was, at most, an agreement for a lease on October 8th, commencing December 1, 1918, and that said lease never was actually executed.

The authorities recognize a clear distinction between an agreement to execute a lease and an actual lease, the first vesting no estate in the proposed lessee while the latter conveys an estate. In the first class of cases, the proposed lessee has his remedy through an action for the breach of the contract. Tillman v. Fuller, 13 Mich. 113; Whiting v. Ohlert, supra; Billings v. Canney, 57 Mich. 425. See, also, 24 Cyc. p. 899, and cases cited. Upon the testimony of defendant and the concession of his counsel, we are of the opinion that the verdict was properly directed for the plaintiff.

The judgment is affirmed.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    TOWNSHIP OF AVON v. DETROIT UNITED RAILWAY.
    Contempt — Injunction—Violation—Statutes.
    On. certiorari to review an order of the court below holding officials of an interurban railway company guilty of contempt for putting into effect a schedule of rates authorized by Act No. 382, Pub. Acts 1919, passed subsequent to the issuance of an injunction restraining said railway company and its agents from charging the rates fixed hy the interstate commerce commission because in excess of the rates fixed in its franchise contract, said order must be set aside and held for naught, since said statute gave them ample authority to do what they are alleged to have done.
    Certiorari to Oakland; Rockwell (Kleber P.), J.
    Submitted April 8, 1920.
    (Docket No. 29.)
    Decided June 7, 1920.
    Bill by the township of Avon and others against the Detroit United Railway to enjoin the collection of illegal rates. From an order adjudging defendant’s agents guilty of contempt, defendant-brings certiorari.
    Reversed, and order vacated.

      Bernard F. Weadock (James H. Lynch and Donnelly, Hally, Lyster & Munro, of counsel), for appellant.

      Glenn C. Gillespie, Prosecuting Attorney, for appellees.
    On August 9, 1918, the defendant company, operating an interurban railway from Detroit to Pontiac and Flint, filed an application with the interstate commerce commission at Washington, requesting authority to file tariffs to fix the rates of fare for the carriage, of passengers upon its lines of railway. This application was granted August 23, 1918. The interstate commerce commission’s order authorized the filing of tariffs showing a two-cent per mile rate. Such tariffs became effective October 1, 1918.
    On September 11th, several townships in Oakland county, including plaintiff township, filed their bill of complaint against the defendant, praying for a temporary injunction restraining it from charging or attempting to charge the rate fixed by the interstate commerce commission, that rate being different from and higher than the several franchise contract rates between the townships and the defendant. A temporary injunction was granted. On October 21, 1918, defendant filed its' answer and moved for a dissolution of the injunction and to dismiss the bill. This motion was denied on December 27, 1918.
    The rate provided in the interstate commerce commission’s order was never placed in effect by the defendant because of the pendency of the injunction.
    The legislature of 1919 passed Act No. 382, *Pub. Acts 1919. This act has lately received construction by this court in the case of Attorney General v. Railway, 210 Mich. 227. By such construction it was held that the defendant corporation had the right, under its terms, to disregard the franchise contract rates and to collect the rates provided in said act. The act became effective August 13, 1919, and on August 14, 1919, defendant attempted to put into effect the rates provided for in such act, whereupon the various executive officers of the defendant company were cited for contempt before the circuit judge who had issued the restraining order. Upon the hearing in contempt proceedings, it was made to appear that the rates which defendant sought to place in effect were those provided for in Act No. 382 of the Public Acts of 1919. Nevertheless, the court adjudged the several agents of defendant guilty of contempt of court and ordered them into the custody of the sheriff, to be confined until such time as they should direct a change in the tariffs then in effect. Thereupon, the defendant obtained a writ of certiorari for the purpose of reviewing said order.
   Brooke, J.

(after stating the facts). We are of the opinion that the order must be set aside and held for naught. The case is, in principle, exactly like that of the State of Pennsylvania v. Bridge Co., 18 How. (U. S.) 421. In that case the Supreme ’ Court of the United States had issued an injunction restraining the defendant company from constructing a bridge over the Ohio river. Subsequent to the issuance of the injunction, the congress had authorized the construction of the identical bridge complained of in the injunction suit. On a hearing in contempt proceedings based upon the disobedience of the injunction by the defendant company, the court, in its majority opinion, said:

“A majority of the court are of opinion, inasmuch as we have arrived at the conclusion that the act of congress afforded full authority to the defendants to reconstruct the bridge, and the decree directing its alteration or abatement could not, therefore, be carried into execution after the enactment of this law, and inasmuch as the granting of an attachment for the disobedience is a question resting in the discretion of the court, that, under all the circumstances of the ease, the motion should be denied.”

And in the minority opinion it was said:

“The court may properly consider, if they are not bound to do so, that the defendants, in making application to congress, and in procuring the passage of the act, as having acted in good faith. And although the law, if it has been passed in violation of the Constitution, cannot be held valid, yet it may save the defendants from the contempt charged. On its face, it gave to the bridge company all that it could desire or ask against the decree of this court. It legalized what the court held to be illegal.”

See, also, The Clinton Bridge, 10 Wall. (U. S.) 454; Bartholomew v. Town of Harwinton, 33 Conn. 408; Newton Rubber Works v. De Las Casas, 198 Mass. 156 (84 N. E. 119).

On August 14, 1919, the. defendant, through its responsible officers, attempted to comply with the terms of Act No. 382. Under the authorities- cited they could not be held guilty of contempt in so complying, as the statute, enacted after the issuance of the injunction, gave them ample authority to do all that they are alleged to have done.

The order holding the agents of defendant guilty of contempt is set aside and vacated.

Moore, C. J., and Steere, Stone, Clark, and Sharpe, JJ., concurred with Brooke, J.

Bird, J. In view of the conclusion of this court in Attorney General v. Railway, 210 Mich. 227, I concur in the result reached herein.

Fellows, J., concurred with Bird, J.


text:
    DEVEREAUX v. TOWNSHIP BOARD OF GENESEE TOWNSHIP.
    1. Injunction — Municipal Corporations — Townships—Parties— Licenses — Dance Halls.
    The township board of the township in which plaintiff’s dance hall was located was a proper defendant to proceedings begun for the purpose of enjoining, on the ground of its uneonstitutionality, the enforcement of Act No. 97, Pub. Acts 1919, providing for the issuing of permits by the township board for the conducting of pool rooms, dance halls, etc., where plaintiff had been notified by the peace officers of the county that he would be subjected to arrest if he operated without a permit.

      2. Constitutional Law — Licenses—Arbitrary Power.
    The attempt to confer upon the township hoard the arbitrary power to grant or refuse a license, according to its whim or caprice, to conduct pool room's, dance halls, etc., by Act No. 97, Pub. Acts 1919, renders said act unconstitutional and void.,
    S. Injunction — Equity—Jurisdiction—Constitutional Law.
    Equity has jurisdiction to restrain the enforcement of an unconstitutional statute providing for the licensing of pool rooms, dance halls, etc.
    Appeal from Genesee; Brennan (Fred W.), J.
    Submitted April 7, 1920.
    (Docket No. 6.)
    Decided June 7, 1920.
    Bill by Orson R. Devereaux against the township board of Genesee township and others to enjoin the enforcement of Act No. 97, Pub. Acts 1919. From a decree for plaintiff, defendants appeal.
    Affirmed.

      James S. Parker and Clay W. Wilber, for plaintiff.

      Roy E. Brownell, Prosecuting Attorney, and Harry G. Gault. Assistant Prosecuting Attorney, for defendants.
   Brooke, J.

The bill filed in this case brings into question the validity of Act No. 97 of the Public Acts of 1919, which follows:

“An act to provide for the issuing of permits by the township board for the conducting of public billiard and pool rooms, dance halls, bowling alleys and soft drink emporiums outside of incorporated cities and villages.
“The People of the State of Michigan enact:
“Section 1. No public billiard or pool room, public dance hall, bowling alley or soft drink emporium shall be operated in any place in this State outside of an incorporated city or village, without first obtaining an annual permit therefor from the township board of the township wherein such billiard or pool room, dance hall, bowling alley or soft drink emporium is situated.
“Sec. 2. The township board shall have the right to revoke any license once granted, or any annual renewal thereof, when it appears to their satisfaction that any billiard or pool room, dance hall, bowling alley, or soft drink emporium is being conducted in such manner as to be inimicable to public morals.
“Sec. 3. For the purposes of this act, billiard and pool rooms, dance halls, bowling alleys and soft drink emporiums shall be defined as those establishments whose principal business is the sale of the commodities indicated or use of the facilities furnished for the aforesaid purposes.
“Sec. 4. Any person or persons operating or attempting to operate any such billiard or pool room, public dance hall or bowling alley without the permit herein provided for shall be deemed guilty of a misdemeanor, and upon conviction, shall be punished by a fine of not to exceed one hundred dollars or by imprisonment in the county jail for not to exceed three months or by both such fine and imprisonment in the discretion of the court.
“Sec. 5. The provisions of this act shall not apply to any fraternal, religious, or other organization which maintains billiard or pool tables, a dance hall, bowling alley or soft drink emporium for the use of its members as merely incidental to its principal activities.
“Sec. 6. All acts and parts of acts inconsistent herewith are hereby repealed.”

It is averred in the bill that the plaintiff, on the 27th day of August, 1919, purchased a lot upon which a dance hall and soft drink parlor was erected, located in the township of Genesee, county of Genesee, this State, lying just outside the corporate limits of the city of Flint, the purchase price being $6,000; that he went into possession of said premises intending to operate the same as a dance hall, and soft drink parlor, but was notified by the peace officers of Genesee county that if he attempted to operate said business without a permit, under the act in question he would be subjected to arrest. It is further averred that he made written application to the township board of the township of Genesee for a license under said act but was notified by them that they had decided not to license any dance halls or soft drink establishments in their township outside of the limits of incorporated cities or villages. It is further averred that the enforcement of said act and the refusal of said board, arbitrarily, to license plaintiff renders his property valueless for any purpose and practically amounts to confiscation thereof, and that oppressive criminal prosecution would be instituted if plaintiff continued to operate said business.

Plaintiff prayed for a temporary and permanent injunction against the township board and the peace officers of the county, restraining them from enforcing the provisions of said act. To the bill so filed the defendants interposed a,motion to dismiss in the nature of a demurrer, based upon three grounds—

First. That the bill does not state a case for equitable jurisdiction;

Second. That the township board cannot be compelled, by a mandatory injunction, to issue a permit to petitioner, because mandamus is the adequate and proper legal remedy;

Third. Because the act referred to in said bill is not unconstitutional.

The motion was argued and a decree entered by the learned circuit judge, permanently restraining the enforcement of the act upon the ground of its unconstitutionality.

The first proposition argued by counsel for appellants is that even if it be said that the statute is unconstitutional and void, the township board was not a proper defendant to the proceedings begun for the purpose of obtaining a mandatory injunction, and, therefore, that the motion to dismiss on the part of the township board should have been allowed. Even if this contention is sound, it seems to us unimportant; but an examination of the prayer of the bill indicates that no mandatory injunction was sought against the township board, but an order was prayed restraining by injunction the board and the peace officers “from enforcing in any manner the void statute heretofore specifically referred to.”

It is next urged on behalf of defendants that it is very important that there be some authority in territory outside of incorporated cities and villages for control over such meeting places as billiard and pool rooms, dance halls, bowling alleys and soft drink emporiums. This proposition may well be admitted, but it does not answer the specific objections made to the act in question.

Counsel for appellants further say:

“It will be noted that section 2 gives the township board:
“ ‘the right to revoke any license once granted or any renewal thereof when it appears to their satisfaction that any billiard or pool room, dance hall, bowling alley or soft drink emporium, is being conducted in a manner as to be inimicable to public morals.’
“It is from this section that we must gather the intent of the act. If this section had been made to read that—
“ ‘the township board shall have the right to refuse to■ grant a permit when first applied for and to revoke any license once granted or any annual renewal thereof, when it appears to their satisfaction that any billiard or pool room, dance hall, bowling alley or soft drink emporium will he conducted, or is being conducted in such manner as to be inimicable to public morals,’
“the validity of the statute could not be questioned as regards arbitrary power being placed in the hands of the township board. The question is, then, Can the matter above, inserted in this section 2, be said to be impliedly a part of it? If it is impliedly a part of section 2, then the statute has the same force and effect as if section 2 had originally read as it is believed the legislature intended it to read.”

And it is urged that under the well known principle that every intendment is to be taken in favor of the constitutionality of legislation, we should, by construction, bring the act in question into harmony with the Constitution so that the legislative intent may be carried out. We find ourselves unable to agree with this contention. The statute in question provides no method for the application for licenses, contains, no qualifications which the applicant must possess, provides no standard of fitness, makes no provisions as to the character of the structure or equipment to be used in the business regulated. It, in fact, attempts to confer upon the township board the arbitrary power to grant or refuse a license, according to its whim or caprice. Under all the authorities, we think this cannot be done. Robison v. Miner, 68 Mich. 549; Yick Wo v. Hopkins, 118 U. S. 356 (6 Sup. Ct. Rep. 1064); Mayor, etc., of Baltimore v. Radecke, 49 Md. 217; Grundling v. City of Chicago, 177 U. S. 183 (20 Sup. Ct. Rep. 633); Darling v. City of St. Paul, 19 Minn. 389. An interesting case passing upon and upholding a dance hall ordinance in the State of Wisconsin is. Mehlos v. City of Milwaukee, 156 Wis. 591 (146 N. W. 882, 51 L. R. A. [N. S.] 1009. Ann. Cas. 1915C, 1102). A comparison of the statute there considered with the act here in question will at once serve to distinguish the two cases.

We are of the opinion that equity has jurisdiction under the following authorities: Michigan Salt Works v. Baird, 173 Mich. 655; State v. Cunningham, 81 Wis. 440 (51 N. W. 724, 15 L. R. A. 561); Kerr v. Trego, 47 Pa. St. 295; 22 Cyc. p. 884. See, also, as to chancery jurisdiction, Andrews v. Auer, 177 Mich. 244.

The decree is affirmed.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


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    PEOPLE v. GARNER.
    Rape — Criminal Law — Issues—Assault—Instructions—Trial.
    In. a prosecution for statutory rape, the trial court was in error in restricting the verdict to guilty or not guilty, and in refusing to submit the issues of whether defendant was guilty of assault with intent to commit the crime of rape, or of assault and battery, although the testimony of complaining witness and another showed a completed act of sexual intercourse.
    Error to Oakland; Rockwell (Kleber P.), J.
    Submitted April 16, 1920.
    (Docket No. 123.)
    Decided June 7, 1920.
    Robert Garner was convicted of statutory rape and sentenced to imprisonment for not less than 2% nor more than 5 years in the State prison at Jackson.
    Reversed.

      Charles S. Matthews, Pelton & McGee, and Doty & Cram, for appellant.

      Glenn C. Gillespie, Prosecuting Attorney, for the people.
   Brooke, J.

Defendant stands convicted of the crime of statutory rape upon the complaining witness, one Virginia Stoekwell, who, at the time of the commission of the offense charged was about 15 years and 2 months old. The testimony of the complaining witness, together with the testimony of Grace Strong, who was in the bed with the defendant and the complaining witness at the time of the alleged commission of the offense, shows unquestionably a completed act of sexual intercourse. Defendant was sworn in his own behalf and positively denied the commission of the crime charged.

Under 20 assignments of error, appellant argues under the .following heads; relating:

(a) To the admission of circumstances, doings and offenses taking place subsequent to the date of the crime charged in the information.
“(b) To the indorsement of the name of G. W. Coatsworth on the information, and admitting his testimony after the close of the people’s case.
“(c) To the admission of testimony of Charles Larion, people’s witness, and the manner of his examination by the prosecuting attorney.
“(d) To the remarks of the counsel for the people in argument to jury.
“(e) To refusal of the court to charge as requested.
“(f) To the charge of the court.
“(g) To the refusal to grant a new trial.” |

We may disregard the assignments argued under (a), (b), (c) and (d), as the matters there considered are not likely to arise upon a new trial.

(e) Defendant’s first request to charge was as follows:

“The defendant in this case is charged with what is known in law as the crime of rape. Under this; information there are four possible verdicts that maybe rendered in this case:
“First: A verdict of guilty of the crime of rape.
“Second: A verdict of guilty of assault with intent to commit the crime of rape.
“Third: A verdict of guilty of assault and battery.
“Fourth: A verdict of not guilty.”

This request was refused and the court charged as follows:

“As I have said before, there are two questions in the case for you to consider: First, Was the girl under sixteen years of age on the 6th day of July, 1919, and if so, did the respondent have sexual intercourse with her? If you find that the girl was under the age of sixteen years and the act of intercourse took place as testified to by Virginia Stockwell, then your verdict should be that the respondent is guilty. Upon the other hand, if you find that the girl was over the age of sixteen years on that date, or that the respondent did not have sexual intercourse with her as claimed, then, of course, he is not guilty and you should so report through your foreman, one of two verdicts, either that of guilty or one of not guilty.”

We are constrained to hold, under the authorities in this State, that the court was in error in refusing the request, as proffered, and in the charge as given. In the case of Hall v. People, 47 Mich. 636, the identical question was passed upon and the omission to charge as here requested was held to be reversible error. In People v. Miller, 96 Mich. 119, the court said:

_ “It is true that upon this record the proof upon one side shows the completed act of sexual intercourse with a girl under the age of 14 years, while upon the other a denial of any offense is made. Under such proof it cannot be denied that a verdict of assault with intent to rape is illogical. But an assault with intent to commit rape is necessarily included in every rape. The defendant’s counsel are alleging, not an injurious error, but one which, if it could be called an error, has resulted to defendant’s advantage.”

We have so recently passed upon this question that further discussion is unnecessary. People v. Lupu, 208 Mich. 44; People v. Martin, 208 Mich. 109.

The judgment is reversed, and a new trial awarded.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


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    JACOBS v. WEISSINGER.
    1. Witnesses — Attorney and Client — Testimony oe Attorney eor Client Not Commendable.
    While the testimony of an attorney of record in a case is competent, his testifying in behalf of his client is not to be commended, since its consideration by the court is always a matter of embarrassment, because it is difficult to distinguish between the zeal of the advocate and the fairness and impartiality of a disinterested witness.
    2. Cancellation oe Instruments — Deeds—Want oe Capacity.
    In a suit to set aside a deed on the ground of the mental incapacity of the grantor, evidence held, sufficient to sustain the action of the court below in setting aside said deed.
    Appeal from Wasiitenaw; Sample (George W.), J.
    Submitted April 20, 1920.
    (Docket No. 105.)
    Decided June 7, 1920.
    Bill by Kate Jacobs and others against Fred J. Weissinger and another to set aside a deed on the ground of mental incompetency. From.a decree for plaintiffs, defendants appeal.
    Affirmed.

      Arthur Brown and George J. Burke (E. R. Sunderland, of counsel), for plaintiffs.

      Frank B. De Vine and Andrew J. Sawyer, for defendants.
   Brooke, J.

The bill of complaint in the case is filed for the purpose of setting aside a deed and is based upon two grounds, mental incapacity and undue influence. Upon the trial, the second ground was abandoned, but relief was granted upon the first ground stated and the instrument in question set aside.

The maker of the deed, J. George Kuster, died on January 8, 1919, and was at that time about 59 years of age. He was a widower without children, his heirs-at-law consisting of 4 sisters and 2 brothers and several children of a deceased brother and sister. The aggregate value of his - estate- was about $5,000, included in which was a house and lot on Hiscock street in the city of Ann Arbor, worth about $2,200. It is this property which is in dispute.

It appears from the record that Kuster had been sick a great deal of the time during the last 3 or 4 years of his life. On November 24,1918, he was taken to the Maplehurst hospital, where he remained for about 6 weeks, when he died. He was suffering from a complication of diseases — a heart lesion, Bright’s disease, hardening of the liver and dropsy. The deed in question was executed about 3 weeks after his entrance into the hospital and about 3 weeks before his death.

A great mass of testimony was introduced bearing upon the competency or lack of competency of Kuster at the time he executed the deed. Sixteen competent witnesses were called by the plaintiffs and 10 by the defendants. Testifying to the lack of mental capacity to make the deed in question, plaintiff called 2 doctors, 2 nurses and 12 personal friends and acquaintances of the deceased, while defendants, to sustain the deed, called 3 doctors, 1 nurse and 6 personal friends and acquaintances, including defendants’, attorney. Of the medical testimony, that of Dr. Gates (who was in charge of the hospital in which deceased spent the last 6 weeks of his life) would appear to be entitled to greater consideration and credence, for the reason that during, Kuster’s last illness Dr. Gates was in constant attendance upon him, visiting him 3 or 4 times each day. Other physicians who testified had no such opportunity for observation as that enjoyed by Dr. Gates. Dr. Gates testified, without reservation, that in his opinion—

“At no time was he in a condition to transact any business whatever while he was in the hospital. * * * I considered him incompetent all the time he was there.”

The strongest testimony in support of the mental capacity of the deceased at the time the deed was executed was given by Mr. De Vine, who had for some years acted as legal adviser for the deceased, and who, upon the occasion of the making of the deed, acted as scrivener and witness. He testified:

“Q. Was he competent or incompetent to execute a deed?
“A. Absolutely, if he was not competent on that day, he was never competent in his. lifetime.”

He went into the circumstances surrounding the execution of the deed and the conversation had with deceased at that time with great particularity and unhesitatingly affirmed that at the time of the execution of the deed deceased was in full possession of all his mental faculties. It is but fair to say that the evidence given by Mr. De Vine receives very considerable support from that of others introduced by defendants upon the same point.

It is, we think, to be regretted that an attorney of record in the case should find it necessary to support the contention he is bound to make with his own testimony. It is a practice not to be commended, and, while such testimony is competent, its consideration by the court is always a matter of embarrassment, because it is difficult to distinguish between the zeal of the advocate and the fairness and impartiality of a disinterested witness. The practice has received judicial attention in many cases and has found scant approval. Harkins’ Succession, 2 La. Ann. 923; O’Don oghue v. Trust Co., 79 Ill. App. 263; Granon v. Hartshorne, 10 Fed. Cas. No. 5,689, at page 966; Ross v. Demoss, 45 Ill. 447; Edwards v. Edwards, 63 N. J. Eq. 224 (49 Atl. 819); Finlay v. Ritchie, 12 Ont. L. Rep. 368.

It would profit no one to enter into a long discussion of the evidence contained in this rather voluminous record. It is sufficient to say that its .perusal convinces us that the learned circuit judge reached the proper conclusion.

The decree is affirmed, with costs.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


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    PEOPLE v. DAVID.
    Criminal Law — Indictment and Information — Assault With
    Intent to Rape — Included Lesser Offenses.
    In a prosecution for assault with intent to commit rape, the trial judge was in error in charging the jury that, included within the charge of “assault with intent to commit rape” there is a lesser offense, to wit, “attempted rape,” since the only included lesser offense is assault and battery.
    Exceptions before judgment from the recorder’s court of Detroit; Jeffries (Edward J.), J.
    Submitted April 16, 1920.
    (Docket No. 113.)
    Decided June 7, 1920.
    Wladyslaw David was convicted of “attempt at rape.”
    Reversed.

      August Cyrowski, for appellant.

      Matthew H. Bishop, Prosecuting Attorney, and Robert T. Speed, Assistant Prosecuting Attorney, for the people.
   Brooke, J.

By the information, defendant was charged with an assault with intent to commit rape on a female above the age of 16 years. The evidence is not returned and but one question is presented upon the record, which arose as follows: In the course of his charge, the court inquired:

“The Court: Is attempted-rape a lesser offense than assault with intent to rape?
“Mr. Kent (the prosecutor): I don’t think so, your honor. I looked at the statute yesterday.
“The Court: Now, gentlemen of the jury, at common law rape was the carnal knowledge of a female over the age of 10 without consent and under the age of 12 with or without consent. In this State rape is defined to be the carnal knowledge of a female child without consent over the age of 16 and with or without consent under the age of 16.
“Now, gentlemen of the jury, this is assault with intent to commit rape. An assault is an offer by violence to do corporeal hurt to another, coupled with the present means or ability to carry it in effect.
“ (Now, this charge is assault with intent to commit the rape. In this, gentlemen of the jury, is also the charge of attempted rape, which is a lesser offense than that of assault with intent to commit rape). * * * If you have (a reasonable doubt), give him the benefit of it and acquit him. If not you may convict him of the charge in the information, which is assault with intent to commit rape.
“(And, gentlemen of the jury, this also contains a lesser charge, this information does, — an attempted rape. If you do not find him guilty of assault with intent to commit rape, you may find him guilty of an attempted rape, if you believe him guilty of that beyond a reasonable doubt.
“In other words, gentlemen of the jury, you have three possible verdicts. One is guilty of assault with intent to commit rape, and the other is guilty of attempted rape, and the other is not guilty.)”

The jury returned a verdict of guilty of “attempt at rape.” A motion in arrest of judgment having been denied, defendant now reviews the case in this court on exceptions before sentence.

It is asserted on behalf of the defendant that he was convicted of a crime not known in the law of the State of Michigan and that the court was in error in instructing the jury as set out above. Section 15212, 8 Comp. Laws 1915, provides:

“If any person shall assault any female with intent to commit the crime of rape, he shall be deemed a felonious assaulter, and shall be punished by imprisonment in the’ State prison not more than ten years, or by fine not exceeding one thousand dollars.”

Section 15616 is as follows:

“Upon an indictment for any offense, consisting of different degreés, as prescribed in this title, the jury may find the accused not guilty of the offense in the degree charged in the. indictment, and may find such accused person guilty of any degree of such offense, inferior to that charged in the indictment, or of an attempt to commit such offense.”

In the case of People v. Abbott, 97 Mich. 484, this court said:

“The court also erred in instructing the jury that they must convict the respondent of rape, if at all. The information for rape necessarily embraced the offense of an assault with intent to commit the crime of rape, and an assault and battery, and the jury should have been instructed that they might convict him of either of the lesser offenses.” Citing People v. McDonald, 9 Mich. 150; Hanna v. People, 19 Mich. 316; Campbell v. People, 34 Mich. 351; Hall v. People, 47 Mich. 636; People v. Courier, 79 Mich. 366.

In the case of People v. Harrington, 186 Mich. 482, where the information was the same as in the case at bar, it was held:

“The court charged the jury that, under the information filed in this case charging respondent with an assault with intent to commit rape, the respondent might be found guilty either of an assault with intent to commit rape or of a simple assault.”

We are of the opinion that the learned trial judge was in error in charging the jury that, included within the charge of “assault with intent to commit rape,” there is a lesser offense, to wit: “attempted rape.” Under the authorities cited, the only included lessér offense would be assault and battery.

The judgment is set aside, and a new trial awarded.

Moore, C. J., and Steere, Fellows, Stone, and Bird, JJ., concurred. Clark and Sharpe, JJ., did not sit.


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    FISHER v. GRANDFIELD.
    Trusts — Pleading—Equity—Jurisdiction.
    A prayer in a bill by an administratrix that defendants be decreed to bold certain property in trust for tbe estate, held, sufficient to establish tbe jurisdiction of a court of equity,
    Appeal from Muskegon; Vanderwerp (John), J.
    Submitted April 15, 1920.
    (Docket No. 76.)
    Decided June 7, 1920.
    Bill by Fannie Fisher, administratrix of the estate of Florence B. Grandfield, deceased, against Walter Grandfield and another to enjoin the disposal of certain jewelry, and for other relief. From a decree dismissing the bill, plaintiff appeals.
    Reversed.

      John G. Anderson, for plaintiff.

      R. J. Macdonald (D. A. Macdonald, of counsel), for defendants.
    One Florence B. Grandfield died seised of certain personal property, consisting principally of jewelry set with diamonds. She disposed of this by will, bequeathing to her mother one four-carat diamond ring, one diamond brooch, two small diamond rings, and all other jewelry belonging to her, except one tie pin set with three diamonds and one locket set with eight diamonds, which she bequeathed to her husband, the individual defendant herein. It is set out in the bill of complaint that said jewelry, at the time of the death of Florence B. Grandfield, was in a safety deposit box in the National Lumberman’s Bank at Muskegon, held in the joint names of Florence B. Grand-field and her husband, Walter Grandfield; that shortly after the death of Florence B. Grandfield, Walter Grandfield took sole charge of said box; that the defendant National Lumberman’s Bank has refused to deny Walter Grandfield access to said box to take said diamonds and jewelry therefrom; and that said Walter Grandfield has repeatedly stated that he would not give up or deliver said diamonds to any person or authority; and that said defendant Walter Grandfield is financially irresponsible. The prayer is for an injunction, restraining both defendants from removing said jewelry from said box or disposing of the same and that said jewelry be decreed to be the property of the estate of Florence B. Grandfield and that the said diamonds and jewelry be decreed by the court to be held by the said Walter Grandfield in trust for the said estate of Florence B. Grandfield, deceased. It appears that a preliminary injunction was issued, but upon the hearing upon the bill and answer and proofs (in part) taken in open court, the court dismissed the bill upon the ground that a court of equity “has no jurisdiction to hear and determine the matter in controversy between the parties, because the plaintiff has an adequate remedy at law in the premises.” From this decree plaintiff appeals.
   Brooke, J.

(after stating the facts). We are of the

opinion that the case at bar is fully controlled by our decision in the case of Chamberlain v. Eddy, 154 Mich. 593. There, the sister of the decedent had come into possession of two certificates of deposit, amounting to $2,400, two promissory notes, and an uncollected claim. She had reduced these to her possession and claimed the same as her individual property. The bill of complaint was filed by the administrator for a discovery and to establish a trust. The court said:

“It is contended that the bill should be dismissed, for the reason that there was an adequate remedy at law, and it is said that the case is one peculiarly adapted to trial by jury. We are of the opinion that equity has jurisdiction in this case, first, to declare that the property received was a trust fund, and to follow the fund and enforce payment against property purchased by it second, to restrain by injunction the further disposition of the unexpended portion of the property. We are not impressed with the importance of a jury to decide any question in the case. A chancellor can do it as well. Where the jurisdiction of equity is clear, as in this case, there is no obligation to send questions of fact to the jury, and if it be thought expedient to do so, it should be by sending an issue to a jury, and not by dismissing the bill upon the hearing.”

It is asserted by counsel for the appellee that the Chamberlain Case is readily distinguishable from the case at bar for the reason that—

“* * * there was no bill of discovery; there was no attempt to establish a trust; there was no demand for an accounting. The bill of complaiht was to make an-injunction permanent. In other words, the action was an auxiliary one, a dependent action on another and separate action at law. The plaintiff, so far as is . shown by his bill, had an adequate remedy at law, and one that he ignored.”

We have already shown that the prayer for relief includes the prayer that defendant be decreed to hold said property in trust, and, under the authority of Chamberlain v. Eddy, supra, that ground alone is held sufficient to establish the jurisdiction of a court of equity. See, also, Lane v. Traction Co., 135 Mich. 70; Davis v. Sullivan, 141 Mass. 76 (7 N. E. 32).

The decree is reversed and the court below directed to proceed to a hearing upon the merits.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.