author: Stone, J.

text:
    JENDRUS v. DETROIT STEEL PRODUCTS CO.
    Master and Servant — Personal Injuries — Workmen’s Compensation Act — Refusal to Allow Operation.
    Where a servant of. defendant received internal injuries which resulted in peritonitis and he refused to permit an operation which his physician advised, until his condition became too serious to operate successfully, but it was not established conclusively that an operation would have effected a cure or that the peritonitis caused his death, and where it was shown that decedent probably died of pneumonia contracted as a result of the operation when he finally submitted to it, 15 or 16 hours later, the court could not determine, as matter of law, that his conduct was so unreasonable as to forfeit the right to compensation under Act No. 10, First Special Session 1912 (2 How. ¡ Stat. [2d Ed.] § 3939), especially in view of the fact that he was unable to speak or understand English well, and was suffering at the time the operation was proposed.
    Certiorari to the industrial accident board.
    Submitted October 16, 1913.
    (Docket No. 52.)
    Decided December 20, 1913.
    Helen Jendrus presented her claim to the industrial accident board for compensation for the accidental death of her husband while he was employed by the Detroit Steel Products Company. From the allowance of the claim, defendants bring certiorari.
    Affirmed.

      Beaumont, Smith & Harris, for appellants.

      William W. MacPherson, for appellee.
   Stone, J.

The claimant and appellee is the widow of Joseph Jendrus, who died on February 19, 1913. Joseph Jendrus, a native of Poland, was on February 14, 1913, an employee of the appellant Detroit Steel Products Company, which was then insured under the workmen’s compensation act by the appellant Michigan Workmen’s Compensation Mutual Insurance Company. Joseph Jendrus was at the date last named also subject to the compensation act. On Friday, February 14, 1913, at about 2 o’clock in the afternoon, Jendrus, while in good health and vigor, was at work for his said employer polishing a spring Scroll, when the end of the scroll caught on a belt of a machine, and swung around and struck him violently in the abdomen. Jendrus was immediately placed on a stretcher and sent to Harper Hospital. The insurance company was notified, and its surgeon, Dr. W. H. Hutchings, reached the hospital before the ambulance arrived. He looked at Jendrus before he was taken into the hospital. Before Jendrus was taken into the ward, samples of his urine and his blood were taken, and he was then put to bed. As soon as this was done,/ the surgeon examined him, and found “a tenderness, very slight, almost no sign of contusion on the outside, just a little redness.” This was on the right side between the ribs and the hip. This was at 2 p. m. A delay was necessary for the blood examination. At 4 o’clock Dr. Hutchings saw Jendrus again. He then complained of much pain, and there was marked muscular rigidity over the area where the blow appeared to have struck. At 8 o’clock p. m. another examination was made. The area of hardness was then spreading. The blood examination had shown no internal- hemorrhage, the urine no blood, and the surgeon, with this information, diagnosed the case as that of a ruptured intestine. At this hour Jendrus’ temperature was rising. The surgeon, to confirm his diagnosis, asked Drs. George McKean and Angus McLean to see the injured man. They each examined him at about 8 o’clock, and confirmed Dr. Hutchings’ opinion, and they joined him in saying that an mediate ^operation., was necessary. At this time the claimant and an elderly man were at the bedside of the patient. Jendrus spoke very little English and Dr. Hutchings could not speak Polish. He and thé man spoke German, and the doctor explained to him the necessity for an operation. Upon this subject Dr. Hutchings testified before the committee of arbitration as follows:

“I told him that if my diagnosis was correct, that without an operation he was, in my opinion, sure to die; that if he was operated on at that time, he had about nine chances out of ten of getting well. I thoroughly explained that “the longer he delayed the \ operation, the so much worse it was for his chances; \ that if he delayed long enough, there would be no use j of operating. Dr. McLean and Dr. McKean said the same thing. I was not satisfied from the attitude of the man I talked with that he had told him what I said. I was not sure that he did. So I sent down and got one of the maids there who spoke English very well, and who is Polish also, called her in and said to her, T want you to tell this man what I say to you.’ This was around 8 o’clock. ‘You tell him that, if our ] diagnosis is correct, that if he is not operated on, he will surely die.’ I said, ‘If you are operated on now, as soon as we can, your chances of getting well are S about nine out of ten; the longer you delay this, so much you take away from your chances of recovery; if you delay it until you are pretty near dead, probably an operation will do you no good.’ This Polish girl explained this to the man, and he said, ‘No.’ I could see him shake his head. It was apparent from his general attitude that he would not have it, so I went away. * * * I went away leaving instruc- * tions, if they changed their minds, they were to call1, me.”

While the doctors were there in consultation, the patient vomited a little fluid. Dr. McLean testified:

“It was fecal in odor, but was not of a poisonous nature.”

Dr. McKean testified:

“It was almost a fecal vomit, due to reverse acting of the peritalsis. It was just the beginning,.o.f peritonitis. * * * It was approaching the fecal vomiting- time.”

The patient was kept quiet during the night. The next morning when Dr. Hutchings again saw him he was worse. The doctor testified:

“His pulse was rapid, the whole abdomen was distended and tender, and the typical signs of advanced peritonitis; that is, he was vomiting considerable quantities of fecal matter, which by that time had become markedly fecal.”

The patient would not consent in the morning to? an operation. Dr. Hutchings went to attend to somej. other operations. Between 11:30 a. m. and 12 o’clock another physician had been called by the Jendrus j\ family, and he testified that when he arrived Jendrus [\ had consented to be operated upon. Dr. Hutchings testified that it was about 12:30 p. m. when he was told by the nurse that Jendrus had consented to an operation. A room was ordered prepared, and the patient was operated upon at 1:30 p. m. This was as soon as the arrangements could be made. The house staff was present and assisted. There was testimony that the vomiting had grown worse, and it had been persistent all the morning, and the distended condition of the abdomen had developed about 9 o’clock. Because of the vomiting Dr. Hutchings directed the assistants to use nitrous oxide as the anaesthetic as being less likely to produce vomiting. Just as the patient was going under the influence of the anaesthetic a large quantity of fecal vomitus came up, and some of it went down in his lungs. They turned his head over in the endeavor to rid him of this. The surgeon testified that there was no way that this vomitus getting into the lungs could be avoided. Dr. Hutchings proceeded with the operation, which took about ten minutes. He made the ordinary incision and found a compíete peritonitis. The intestines were so congested that he did not attempt to remove them and find the perforation. He inserted drainage in the abdomen, and began transfusing a salt solution subcutaneously. Following the operation Jendrus’ condition improved. His temperature went down; the vomiting became less, but his breathing remained rapid. There was trouble about washing out his stomach. He had refused to have this done, but finally consented.

Two days after the operation pneumonia developed, and Dr. Ernest Haass was called. He found the patient suffering from aspiration, or “swallow” pneumonia. This was on Monday. The next two days the lungs solidified, and the patient died of pneumonia, in the opinion of most of the physicians. Dr. McLean, however, testified that, while he saw him but a few times, he did not think he died of pneumonia; heV thought it was the peritonitis that was the cause of | his death, but testified that he did not see the patient * after he had pneumonia. After Jendrus’ death a post mortem was performed by Dr. Sill, and it confirmed the diagnosis of the surgeon. The lungs were found to be solidified, and Dr. Sill testified, among other things, as follows:

“I think that the pneumonia process discovered was as potent a factor in causing the death as the peritonitis. I would call that what we term the immediate cause of death.
“Q. Was there any way for you to determine whether or not the pneumonia was caused by inspiration of material, of vomitus?
“A. Simply that it was a disseminated bronchial pneumonia. * * * The pneumonia process was still active. I mean that the inflammation was going oil. I think the man died from toxsemia. I hold from my post mortem findings that the pneumonia process was the most active toxic process going on at the time of his death. I form that opinion from the fact that the peritonitis was beginning to localize, beginning to subside. I do not think I could say that the pneumonia was sufficient to have caused death without the complicated inflammation of the peritonitis. The peritonitis and the pneumonia together were sufficient to cause death; but whether the pneumonia alone would have caused death I could not answer. * * * I think the pneumonia was the immediate cause of death. _ If he had not had pneumonia, he would not have died when he did die, and he might 'have recovered from his peritonitis.
“Q. Nothing certain about that, about him recovering from the peritonitis ?
“A. I could not swear that he would recover; no.
“Q. Are you able to tell from your post mortem findings, or are you able to state, which was the greatest factor in his death production, eliminating the fact that his pneumonia came, as stated by Dr. Hutchings, from the inspiration of material vomited?
“A. No; I don’t think I can state that. I don’t think I can state which was the greatest factor in his death, eliminating the fact that his pneumonia came from inspiration of material vomited.”

The perforation of the intestine was located at the post mortem. On separating the coils of the intestines a perforation the size of a Canadian five-cent piece was found in the ileum 2% feet from the caput coli. None of the physicians testified that Jendrus would surely have recovered from the operation if it had been performed Friday night; but there was testimony that an early operation presented the only! chance for saving his life. V~-J

After the death of Jendrus the claimant here made claim for compensation. A committee of arbitration was appointed, testimony taken, and the award was in favor of the claimant for the sum of $10 per week for a period of 300 weeks from the 14th day of February, 1913.

Thereafter a review of this award was had, and the industrial accident board affirmed it, filing an opinion and finding of facts, as follows:

“In this case the deceased, Joseph Jendrus, was injured by a severe blow on the abdomen. The doctors attending the injured man diagnosed the injury as a probable rupture of the intestine, and advised an operation. The accident occurred about 1 o’clock in the afternoon on February 14th. At about 8 or 8:30 in the evening the doctors sought to operate on the injured man. It appears that he could not talk English, and communication was had with him through an interpreter. The injured man shook his head, indicating a refusal to be operated on. The matter of an operation was again brought up by the doctors on the following morning, February 15th. Jendrus, at that time, refused to submit to the operation, but consented at about 11:30 a. m. The operation was performed about 1:30 p. m. on February 15th. It seems that during the operation the patient vomited, and the vomit was drawn into the lungs, causing pneumonia, and resulting in his death a few days later. The operation disclosed a rupture of the intestines which was not sutured, and the post mortem examination showed the same to be in process of healing at the time of death. All communication with the deceased after the injury was through an interpreter. The board is of the opinion that the refusal to bej? operated on when first requested and the further!, action of deceased in delaying consent to the opera-| tion until nearly noon on the day following the acci-ij dent was not so unreasonable and persistent as to defeat the claim for compensation in this case. He did submit to the operation after being convinced that it was absolutely necessary. It seems that nearly two hours elapsed from the time he gave this consent until the operation was performed. It is by no means certain that an earlier operation would have saved his life, nor is it certain that the operation actually performed would not have resulted in his recovery were it not for the fact that he vomited while under the anaesthetic, and inhaled some of the vomit, causing pneumonia. It seems clear that the operation was not too late to remedy the abdominal injury caused by the accident. The vomiting and resulting pneumonia came as an incident to the operation. The fact that the deceased was unable to speak English and was unaccustomed to the ways of this country should be given some weight. The judgment and decision of the arbitration committee is affirmed.”

There was a motion to amend the findings, which was refused except in one instance, to which action there was no exception or error assigned, and the matter of refusal to amend is not before us.

The case is here upon certiorari to review the action of the industrial accident board.

The following grounds of error are assigned by appellants in the affidavit for the writ of certiorari:

(a) “The industrial accident board erred in affirming the said judgment and decision of the said arbitration committee.”
(b) “The industrial accident board erred in deciding that the refusal of said Joseph Jendrus to be operated on when first requested and further action of the deceased in delaying consent to the operation was not so unreasonable and persistent as to defeat the claim for compensation.”
(c) “The said industrial accident board erred in holding that the refusal of the said Joseph Jendrus to be operated on was not so unreasonable as to defeat the claim for compensation.”
(d) “Said industrial accident board erred in deciding that the refusal of the said Joseph Jendrus was not so persistent as to defeat the claim for compensation in that the refusal to submit to an operation if unreasonable need not be persistent to defeat the claim for compensation.”
(e) “Said industrial accident board likewise erred in their conclusion of law that the said refusal was not so persistent as to defeat the claim for compensation in that, as a matter of law, the said refusal need not be persistent to defeat said claim.”
(f) ‘‘Said industrial accident board .erred in its conclusion of law that the said refusal was not unreasonable.”
(g) “That said industrial accident board erred in their decision, because it appears from the testimony that the said Joseph Jendrus did not come to his death as a result of the said injury for which compensation was claimed, but he came to his death by reason of his refusal to permit the medical attention offered him by said respondents, Michigan Workmen’s Compensation Mutual Insurance Company and the Detroit Steel Products Company.”
(k) “The said industrial accident board erred in holding, as a matter of law, that the death of the said deceased was not a result of his intentional and wilful misconduct.”
(i) “The industrial accident board erred in holding, as a matter of law, that the claimant was entitled to compensation as widow of the said Joseph Jendrus; he having refused to consent to the medical attendance offered by the said employer, the Detroit Steel Products Company and the Michigan Workmen’s Compensation Mutual Insurance Company, petitioners herein.”

Section 12 of part 3 of the act (Act No. 10, Pub. Acts 1912) provides that the finding of fact made by the said industrial accident board, acting within its powers, shall, in the absence of fraud, be conclusive, but the Supreme Court shall have power to review questions of law involved in any final determination of said industrial accident board. No question is raised in this case involving the validity or constitutionality of the act in question. No claim of fraud is here presented.

The appellants state in their brief that the questions involved are:

(l) Did the injury arise out of and in the course of the employment?
(2) Was the employee guilty of intentional misconduct?

It is said that these questions are closely related, since it is clear that, if the employee had been guilty of intentional and wilful misconduct, he could not be acting within the course of his employment. We quote from appellants’ brief as follows:

“Manifestly, the original injury — the striking of the spring against the abdomen of Jendrus — arose in the course of the employment, and arose out of the employment, and there is no showing that it was caused by the wilful misconduct of Jendrus. But the claim here is for compensation by reason of the death of Jendrus. The question then is, did the death occur from that injury, or was it caused by some other accident, act, or injury? * * * Here Jendrus had entered into an agreement by which he had undertaken to accept from his employer reasonable medical treatment and hospital services. The employer had undertaken that for a limited period of time it would furnish this service. That agreement was offered to the employee as a part consideration for his yielding up his right of action at common law. But it rests as well upon another theory, which is that the employer, by reason of the fact that it undertook to pay the injured employee a percentage of his earnings during the period of his disability, should have the right, as it was its duty, to furnish the medical attendance to that employee in order to minimize the injury and the consequent compensation.”
“When, therefore, Jendrus refused the medical attendance offered by his employer, he refused that which the employer had undertaken to give him, and he refused a service that it was important for the employer to render by reason of the relation which it bore to the compensation that the employer must pay for disability or death. * * * The workmen’s compensation statute specifically provides that the injury must arise out of the employment, and specifically negatives a recovery where there is intentional and wilful misconduct. It is true that the statute disregards negligence; but there still must remain, before there can be a recovery, a showing that the injury did result from an accident arising out of the employment, and not from any other cause.”
“It would be a harsh rule that bound an employee who had been injured to accept in all cases the dictum of a surgeon who advises an operation. Manifestly the employee cannot be called upon at all times and under all circumstances to place himself absolutely in the hands of the employer’s surgeon; but, where there is no dispute amongst his medical advisers, and the course suggested presents the only opportunity for the saving of the life, we insist that that refusal is a new and controlling cause for the injury for which recovery is sought.”

Counsel for appellants call attention to the English act which provides, as ours does, for the payment for injuries arising out of and in the course of the employment, but that that act does not provide for medical care by the employer; and it is urged that in Michigan, if the employee refuses the reasonable medical services tendered by the employer, he is refusing compensation, and should not be permitted to compel the employer to pay the money compensation, while, at the same time, he is refusing to accept the medical compensation. It is urged that under the English decisions the rule has been universally laid down that, if the employee unreasonably refuses to accept the medical attention offered by the employer, he forfeits his compensation. And our attention has been called to the following English cases: Donnelly v. Baird & Co., Ltd. (Court of Sessions, Scotland, 1908), reported in 45 Scottish Law Reporter, 394; 1 Butterworths’ Workmen’s Compensation Cases, 95.

In that case a workman in the course of his employment had suffered injury to his left hand, in respect of which he was receiving compensation. On application by the employers to stop the payment of compensation on the ground that the continued incapacity for work resulted from the workman refusing to undergo surgical treatment, the sheriff’s substitute found that the operations suggested by the doctors were simple or minor operations, not attended with appreciable risk or serious pain, likely, if submitted to, to restore the workman’s capacity for work, and that the workman was of good constitution and sound general health; he thereupon ended the payment of compensation. The court of sessions, two justices dissenting, held that upon the findings of the sheriff’s substitute his decision was right.

In the course of his opinion, Lord Justice-Clerk said:

“The question whether a refusal to submit to skilled treatment for the restoration, whole or partial, of capacity for work is an unreasonable refusal, is necessarily a question of degree. For it cannot be maintained that no matter what be the severity of the operation recommended, or how great soever the risk to life or general health of the treatment, the workman loses right to compensation unless he brings himself to undergo the treatment and to take the risk. I think the sound view on this matter is well expressed by Lord Adam in the case of Dowds v. Bennie & Son [40 S. L. R. 239], when he laid it down that a workman who has been incapacitated is not bound in every case to submit to any medical or surgical treatment that is proposed, under the penalty, if he refuses, of forfeiture of his right to a weekly payment — e. g., in the case where a serious surgical operation is proposed with more or less probability of a successful cure.
“On the other hand, I hold it to be the duty of the injured workman to submit to such treatment, medical or surgical, as involves no serious risk or suffering, such an operation as a man of ordinarily manly character would undergo for his own good, in a case where no question of compensation due by another existed. In preparing this opinion I find that I have used almost the terms which are to be found in the case of Anderson v. Baird & Co., Ltd. [40 S. L. R. 263]. These two cases which I have referred to seem to me to practically rule this case.”

Lord McLaren said:

“There is of course no question of compelling the party to submit to an operation. The question is whether a party who declines to undergo what would be described by experts as a reasonable and safe operation is to be considered as a sufferer from the effect of an injury received in the course of his employment, or whether his suffering and consequent inability to work at his trade ought not to be attributed to his voluntary action in declining to avail himself of reasonable surgical treatment.
“In order to test the principle of decision I will suppose a more simple case. A workman whose trade requires the perfect use of both hands — a watchmaker or an instrument-maker for example — has the misfortune to break one of the bones of a finger, and from want of immediate assistance, or it may be from neglect, the bone does not unite in the proper way. The hand is disabled, but he is advised that by breaking the bone at the old fracture and resetting it the use of his hand will be completely restored. I am supposing a case where the operation is not attended with risk to health or unusual suffering, and where the recovery of the use of the hand is reasonably clear. If in such a case the sufferer, either from defect of moral courage, or because he is content with a disabled hand and is willing to live on the pittance which he is receiving under the compensation act, refuses to be operated on, I should have no difficulty in holding that his continued inability to work at his trade was the result of the refusal of remedial treatment, and that he was not entitled to further compensation.
“Passing to the other extreme, it is easy to figure a case of internal injury where an operation if successful would restore the sufferer to health, but where the surgeon was bound to admit that the operation was attended with danger. In such a case it would be generally admitted that there was not only a legal but a moral right of. election on the part of the injured person; and if he preferred to remain in his disabled condition rather than incur the risk of more serious disablement or death, it could not be said that his inaction disentitled him to further compensation.
“In view of the great diversity of cases raising this question, I can see no general principle except this, that if the operation is not attended with danger to life or health, or extraordinary suffering, and if according to the best medical or surgical opinion the operation offers a reasonable prospect of restoration or relief from the incapacity from which the workman is suffering, then he must either submit ^to the operation or release his employers from the obligation to maintain him. In other words, the statutory obligation of the employer to give maintenance during the period of incapacity resulting from an accident, is subject to the implied condition that the workman shall avail himself of such reasonable remedial measures as are within his power.”

Our attention is also directed to the case of Warncken v. Moreland & Son, Ltd. (Court of Appeal, England, 1908), 100 Law Times, 12, 2 B. W. C. C. 350. There it was held that, where a workman was injured by an accident in respect of which he was otherwise entitled to receive compensation, and refused to submit to a surgical operation of a simple character involving no serious risk to life or health, and which, according to the unanimous professional evidence, offered a reasonable prospect of the removal of the incapacity from which he suffered, that under those circumstances he had debarred himself from any right to claim further compensation under the act for his continued disability, as such continuance was not attributable to the original accident, but to his unreasonable refusal to avail himself of surgical treatment. In that case the claimant had injured his foot and had had two toes removed. He still suffered pain, and the X-rays showed that a piece of bone was loose in the big toe. The doctors advised an operation; but the man refused. Moulton, L. J., said:

“To hold, the contrary would lead to this result, that a workman who had an injury, however small, might refuse to allow it to be dressed and let a trivial burn, say, become a sloughing sore, and lead to partial or total incapacity. * * * The distinction is between being reasonable and not being reasonable.”

This case was followed by the case of Tutton v. Owners of Steamship Majestic (Court of Appeal, 1909), 100 L. T. 644, 2 B. W. C. C. 346. It was there held that a workman injured by an accident arising out of and in the course of his.employment within the meaning of the act, who refuses, on the advice of his own doctor, to submit to the surgical operation which, in the opinion of such medical man, involved some risk to his life, is not acting unreasonably in such refusal, and is not thereby precluded from claiming compensation from his employer under the act in respect of his continued disability to work. There the court said:

“The test is not really whether on the balance of medical opinion the operation is one which might reasonably be performed. The test is whether the workman in refusing to undergo the surgical operation acted unreasonably. I altogether decline to say that, in a case of an operation of this kind, a workman can be said to act unreasonably in following the advice of an unimpeached and competent doctor, even though on the balance of medical evidence given at a subsequent date the learned county court judge might hold that the operation was in its nature one which might reasonably and properly be performed.”

Here the applicant was a sailor on board the steamship Majestic, and met with an accident which resulted in double rupture. He went to the hospital at Southampton, .where the doctor advised an operation. The applicant then consulted another surgeon, who advised him not to undergo an operation, as he was suffering from Bright’s disease of the kidneys, which would, in his opinion, render it dangerous for him to have an anaesthetic administered; the physician saying that it would be barbarous for him to undergo an operation without an anaesthetic. With kidney disease an anaesthetic would be a risk to his life.

The appellee has called our attention to. the case of Marshall v. Navigation Co. (1910), 1 K. B. Div. 79, to the effect that, where an injured party refuses to undergo a surgical operation, the employer has the burden of showing that the operation would have accomplished its purpose.

Attention is also called by appellee to the case of Proprietors of Hays’ Wharf, Ltd., v. Brown, 3 B. W. C. C. 84, to the effect that the burden is upon the employer to show that the refusal of the workman was unreasonable.

In none of the cases cited by appellants’ counsel was the operation anything more than a minor operation for a trifling injury. We think the cases clearly distinguishable from the instant case, which involved a .major operation of a serious nature. None of the tes- j timony in the case goes to the length of showing that Jendrus’ life would have been saved had the operation j been submitted to at 8 o’clock on the evening of February 14th, which was the first time that Dr. Hutchings had reached the conclusion that an operation was necessary. Peritonitis had already set in, and the vomiting had commenced, and vomitus of a fecal nature was then being expelled. That it was the injury which caused the peritonitis is not questioned; that it was the peritonitis which caused the vomiting of fecal matter is not questioned; that it was the taking of fecal matter into the lungs which caused the pneumonia is claimed by all of the surgeons who testified. There is testimony that he might have recovered without any operation, although that result could not have been reasonably expected.

Under all the circumstances of the case, including the fact that Jendrus was a foreigner, unable to speak or understand the English language, that he was suffering great pain on the evening of the 14th, that he \ was unacquainted with his surroundings, and that he, did consent to, and did submit to, an operation within | 15 or 16 hours after it was first found necessary, in I the judgment of the surgeons, we cannot hold, as matter of law, that the conduct of Jendrus was so unreasonable and persistent as to defeat the claim for compensation by his widow. Neither can we hold that Jendrus by his conduct in the premises in causing a delay in the operation was guilty of intentional and wilful misconduct. We cannot say, as matter of law, that the industrial accident board erred in its conclusions of law in affirming the action of the committee on arbitration. No other questions of law are presented by the record.

The judgment and decision of the said board is therefore affirmed, with costs against appellants.

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


source: Caselaw Access Project

author: Steere, C. J.

license: Public Domain

text:
    McQUILLAN v. ECKERSON.
    1. Bills and Notes — Presumption—Consideration—Estates of Decedents — Claims.
    Where a claimant introduced in evidence a promissory-note signed by decedent, as the testimony established, the presumption arose that it was signed on the date which it bore and was given for a valuable consideration; and the burden rested on the defendant to prove that there was no consideration or the note was executed on Sunday.
    2. Same — Directed Verdict.
    And it wag error to direct a verdict for the defense, upon testimony that inferentially tended to show want of consideration or that the instrument was executed on Sunday: inferences from circumstantial evidence are for the jury.
    3. Same — Negotiable Instruments — Trial—Charge.
    The trial court also erred in assuming as established that certain witnesses must have known about the facts and that the claimant should have produced them; his ruling invaded the province of the jury.
    Error to Jackson; Parkinson, J.
    Submitted November 20, 1913.
    (Docket No. 111.)
    Decided December 20, 1913.

      Margaret McQuillan presented her claim against the estate of Nicholas McCann, deceased. On appeal to the circuit coui;t, a verdict was directed for the defendant. Claimant brings error.
    Reversed.

      Price & Whiting, for appellant.

      James J. Noon (Wilson & Cobb, of counsel), for appellee.
   Steere, C. J.

Claimant’s father, Nicholas McCann, aged 84 years, died on his farm in Jackson county on October 17, 1910, leaving an estate which was probated in Jackson county; defendant being appointed -administrator. Appellant filed a claim against the estate for the sum of $500, with interest from October 14, 1910, based upon a promissory note reading as follows:

“$500. October 14th, 1910.
“On demand after date I promise to pay to the order of Margaret E. McQuillan five hundred and 00/100 dollars, at ...... Value received with use.
“No.........
“Due on demand.
“Nicholas McCann.”

This claim was contested and an appeal taken from the action of the commissioners on claims to the circuit court, where, at the trial, in support of her claim, appellant introduced the testimony of two witnesses, her husband and daughter, to prove the signature of deceased to the note, introduced the same in evidence, and rested her case. On cross-examination of one of appellant’s witnesses, the writing in the body of the note was identified as that of her son, an attorney residing in Ann Arbor.

On the part of the defense two witnesses, Margaret McCann, daughter-in-law of deceased, and Ethel Mc-Cann, his granddaughter, who resided with him on his farm at the time of his decease, testified under objection: That on Sunday, the 16th day of October, 1910, claimant, who was residing in Jackson with her husband and had frequently visited her father during his last illness, came to his home to see him and while there was with him in his bedroom at different times. That on one of those occasions she came out of his room and asked Mrs. Margaret McCann, in the presence of her daughter, “for a pen and ink for Pa to sign a note.” These were obtained from a customary depository and handed to her, whereupon she returned to deceased’s room, closing the door. After being in his room in the neighborhood of ten minutes, she came out and handed the pen and ink back to Mrs. McCann. That deceased died in the afternoon of the next day.

The defense also, against objection, introduced testimony relative to deceased’s business matters and financial circumstances, tending to show that he was out of debt and had been so for some three years previous to his death; that he owned a good farm, well equipped with stock and tools; that when he died he had in his possession a check for $140 recently received; and that the claims against his estate, except claimant’s note, were a few small items of current expenses, totaling $133.26, being for labor, threshing, the use of some machinery, subscription to a paper, etc.

At the conclusion of the testimony both parties requested the court for a directed verdict. Defendant claimed that it appeared from the testimony the note in question was signed on Sunday; that there was no consideration for the same, and it was therefore void.

Appellant claimed that there was no legitimate testimony tending to show that the note was signed and delivered on Sunday; that even though signed on Sunday it would not be void if not also delivered to the payee on that day; that deceased’s signature to it was undisputed and it was presumed to be signed on the day it bore date; that it read, “For value received,” was presumptively for a valid consideration; and that there was no competent evidence to overcome such presumption.

The court directed a verdict for defendant, holding it to be established by undisputed evidence that the note was executed on Sunday and was given without any valuable consideration.

The principal reasons impelling the court to these conclusions are disclosed by the following excerpts from the charge to the jury:

“The evidence shows it was drawn by a son of the claimant here and that he was a lawyer in Ann Arbor. There is no evidence he was in Jackson on the 14th, or that he or his mother went to Mr. McCann’s on the 14th, or that Mr. McCann did any business on the 14th or on the 15th calling for the use of any paper or any pen or transacted any business whatever. * * * The evidence is undisputed in this case that on Sunday, the 16th, Mrs. McQuillan went to her father’s, getting there about noon. After she had been there a short time and had talked a few moments with her father, she came out and asked Mrs. McCann, the daughter-in-law of decedent, for a pen and ink, saying that it was ‘for Pa to sign a note.’ * * * She went in there alone with her father, with the door shut, and after a time brought back the ink and pen and made no remark that father finally didn’t sign it after all; they didn’t need it; didn’t sign it; nothing of the kind said and no evidence of it.”

Commenting again on the fact that the note was drawn by claimant’s son, the court said:

“If the young man was in Ann Arbor and drew the note on the day it bears date, which would be an equal presumption; yet, if drawn in Ann Arbor on the 14th, there was some question whether it could reach the old gentleman on the same day. There is no evidence anything reached him on that day, or that anybody asked him to do any business, or that he did any business or sought to do any business or talked of doing any, business.
“So, gentlemen, I think that no other reasonable conclusion can be drawn from the evidence in this case than that this note was made on Sunday. It cannot be accounted for under the evidence in this case in any other way in my judgment. If it was not the thing that was done on Sunday, then it springs into being without any evidence in my judgment to account for it or explain it.”

As to a want of consideration, the court said:

“The evidence is that this old gentleman had been out of debt for three years. He was sick. There is no evidence he was contemplating any investment or venture or building enterprise or anything of that kind requiring any money. There is evidence he had a check for over $100 in his possession at the time he died, which had been carried for a couple of weeks or thereabouts at least without getting it cashed. No evidence that he was wanting money. There is no proof that he ever had a business deal with his daughter, Mrs. McQuillan, or any transaction at any time of any kind in which anything valuable, money or other property, passed from her to him. There is no proof there was any antecedent debt for which the note was given. There is no proof she had $500 or any other sum of money at this time, or that she took and started from home with $500 in money.
“It is true the statute will prevent a party who presents a claim against the estate of a dead person to testify to anything which was equally within the knowledge of the deceased. * * * But, gentlemen, this is only as to those matters that are equally within the knowledge of the two. If Mrs. McQuillan had $500 before she went, that was not equally within the knowledge of Nicholas McCann and could have been proved. If she had $500 or more deposited in a bank, it could be proved. * * * If it related to some old deal that had taken place years before, even so long before that -it was outlawed, the fact that she had some deal and arranged with him she was to have something valuable for it, I think it could be shown by somebody, the fact she had it; she could swear to it herself. The fact she had money in the bank she could swear to herself. * * * Therefore, I think under what is undisputed here, notwithstanding the fact the note reads 'value received,’ that the inference or conclusion is irresistible that there was not in fact any consideration. It was a mere promise to give. A promise to give is not worth anything. A gift consummated is. * * * But for a promise there must be a valuable consideration. A gift consummated is good. A promise to give is not worth anything. I think this note was a promise to give, without valuable consideration. * * * There certainly was not then any present consideration, and, if there had been a preceding consideration which anybody else on earth knew anything about, it could be proved. It isn’t proved here. If there was such, the husband evidently didn’t know of it and he didn’t tell us anything about it. Under the circumstances and the fact her husband has been on the stand and is silent in that regard and everything as I have heretofore explained to you, I think the duty is imposed upon me of directing your verdict and directing your verdict in favor of the estate, and, so believing, that duty must be discharged.”

It is to be borne in mind that when she rested claimant had proven her case and was, in the absence of anything further, entitled to a verdict in her favor as a matter of law. The proven note, produced by her and shown to have been signed by deceased, was presumed to have been given on the date it bore and for a valuable consideration. That presumption held good until overcome by competent counterproof. That burden was then on the defendant, and to prevail it was necessary for him to establish, by competent evidence, his claim that the note was not only signed on Sunday but delivered and accepted by claimant on that day, or that it was a naked gift without valuable consideration.

The evidence offered for that purpose was not in the nature of direct testimony, but circumstantial and inferential. This was within the realm of facts and inferences, the argument from a fact proven to a fact inferred, by presumptive evidence “afforded by - circumstances, from which, if unexplained, the jury may or may not infer or presume other circumstances or facts.” Black’s Law Dictionary.

It was for the jury to exercise the processes of presumptive reasoning which the testimony authorized and decide the ultimate facts sought to be proven. In holding as a matter of law that the inferences deduced and stated in the charge were conclusive, the court invaded the province of the jury.

The court was also in error in assuming without proof that claimant’s husband or others knew and could testify to material facts, if they existed, which she was by law precluded from testifying to because they were equally within the knowledge of the deceased, and that it was incumbent upon her to produce the evidence of other competent witnesses to such facts, failing in which all presumptions in favor of the validity of the note vanished. At most the court’s deductions are inferences on inferences, inferring that the husband or others must have known certain facts if they existed and inferring either that they did not exist or were in defendant’s favor because the inferred witnesses were not produced. Her failure to produce witnesses shown to' know relevant facts or to testify as to material facts necessarily known to her and not precluded because within the knowledge of the deceased might be a legitimate matter for the jury to consider and give such weight as they deemed it entitled to, but the inferences were for the jury.

We cannot, however, sustain claimant’s contention that a verdict should have been directed for her. We think there was competent testimony along the lines heretofore referred to bearing on the issue urged by defendant, and, without discussing the objections in detail, that its admission was not error. As presented by this record the case should have been submitted to the jury, with proper instructions as to the issues raised and the rules by which they should be guided in passing upon the testimony and deciding the facts.

The judgment is reversed, and a new trial granted.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


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    PATTERSON v. STANDARD ACCIDENT INSURANCE CO.
    1. Insurance — Automobiles—Accident Policy — Interpretation.
    Provisions of an automobile accident policy stipulating that the insurer should defend any suits brought against the owner of a car on account of automobile accidents, did not relate to a prosecution for manslaughter arising out of the negligent operation of the car so as to require the insurer to defend against that kind of proceeding.
    2. Same — Suits—Words and Phrases.
    The word “suit,” as applied to legal controversies, strictly or technically, means proceedings in equity, as distinguished from an action at law, but it is used in a broader sense to include the prosecution or pursuit of a demand or claim generally where the party suing claims to obtain something to which he has a right. If it is properly employed to include criminal actions, a construction of the policy as a whole leads to the conclusion that indemnity against civil liability only was intended by the parties.
    Error to Branch; Knowlen, J.
    Submitted November 25, 1913. '
    (Docket No. 89.)
    Decided December 20, 1913.
    Assumpsit by James R. Patterson against the Stand» ard Accident Insurance Company. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Joseph L. Hooper and Bernard'J. Onen, for appellant.

      Keena, Lightner, Oxtoby & Oxtoby, for appellee.
   Steere, C. J.

This action was brought on a certain so-called accident policy of insurance, issued to plaintiff by defendant, for his protection from specified losses which might result to him in connection with the use of two designated automobiles within a stated period of time.

Within the period covered by the policy, a young man named Reagan was killed in a collision with one of the automobiles mentioned, while plaintiff was driving it. An inquest held over the remains of the young man resulted in a finding of the coroner’s jury that he came to his death through plaintiff’s negligence in operating his automobile, and criminal prosecution was recommended. An agent of defendant, experienced in that class of work, made an investigation of the accident, viewing the premises and taking the statements of witnesses, and attended the inquest. He informed plaintiff that the company would defend him in any civil action brought against him for damages, but that the insurance did not cover criminal cases.

Plaintiff was subsequently arrested and prosecuted for manslaughter. He requested the insurance company to defend him, which it declined to do on the ground that its policy did not include criminal prosecutions. He then employed his own counsel, being ultimately tried for the offense and found not guilty by the verdict of a jury. An action, entitled Reagan v. Patterson, was also begun against him in the Branch county circuit court by the father of deceased, in which plaintiff claimed $10,000 damages for the death of his son; the case involving the same facts as the criminal prosecution. At the time this case was argued here, the insurance company was defending that civil case for damages, under the requirements of its policy. Plaintiff expended $2,258.46 in attorney fees and other expenses in his defense in the criminal prosecution against him for manslaughter. This action is to recover from defendant those expenditures.

Defendant’s obligations as stated in the policy in question were as follows:

“(1) To indemnify the assured named and described in the declarations against loss from the liability imposed by law upon him for damages on account of bodily injuries, including death, at any time resulting therefrom, accidentally sustained by any person qr persons, by reason of the maintenance or use of any of the automobiles enumerated and described in said declarations, provided such bodily injuries are suffered within the policy period therein defined. This policy shall also cover such bodily injuries if caused by means of loading or unloading goods carried on automobiles used for transportation and delivery of materials or merchandise and so specified in said declarations.
“(2) To serve the assured upon notice of such injuries by such investigation thereof, or by such negotiation or settlement of any resulting claims as may be deemed expedient by the company.
“(3) To defend in the name and on behalf of the assured any suits which may at any time be brought against him on account of such injuries, including suits alleging such injuries and demanding damages therefor, although such suits, allegations or demands are wholly groundless, false or fraudulent.
“(4) To pay all costs taxed against the assured in any legal proceeding defended by the company according to agreement 3 above, and all interest accruing after entry of judgment upon such part of same as is not in excess of the company’s limit of liability as hereinafter expressed; and
“(5) To reimburse the assured for the expense incurred in providing such immediate surgical relief as is imperative at the time of the accident.”

It is claimed by plaintiff that the criminal prosecution instituted against him for manslaugther was a suit brought against him on account of bodily injuries alleged to have been sustained by reason of the use of one of the automobiles described in the policy; that under the agreement in said paragraph 3 the insurance company was obligated to defend such suit; that, having refused to do. so, it is liable to him on breach of the contract for expenditures actually and necessarily made by him in employing counsel and assuming the defense of said criminal case.

The two general grounds of defense urged and argued are:

“(1) That the word ‘suit’ does not include criminal prosecutions brought on behalf of the people of the State of Michigan; and
“(2) That it would be against public.policy to permit an insurance company to agree in advance to defend a criminal proceeding.”

The word “suit,” unqualified by adjective or context, has possible meanings foreign to this inquiry. When used with reference to courts, it necessarily implies a lawsuit, defined by the Century Dictionary as “a suit at law or in equity; an action or a proceeding in a civil court; a process in law instituted by one party to compel another to do him justice.” It would be a forced and unnatural construction to hold that the word as used in this accident policy is intended to comprehend criminal prosecutions instituted and conducted by public officials in the name of the people, presumably for the punishment and suppression of crime.

It must be conceded that the word “suit,” as applied to legal controversies, both by the legal profession and others, is now used and recognized as a generic term of broad significance, often understood and used, even by legislatures and courts, to designate almost any proceeding in a court, even, though rarely, being applied to a criminal prosecution in certain connnections. Commonwealth v. Moore, 143 Mass. 136 (9 N. E. 25, 58 Am. Rep. 128). In its strict, technical meaning, more particularly where the distinction between law and chancery is retained, as in this State, is,“a proceeding in equity, the proper word for a litigation in chancery, a usual and technical designation of a proceeding in equity,” as distinguished from an action at law. 37 Cyc. p. 524.

But, irrespective of lexicographers and precise technical definition, the expression “criminal suit” is unnatural and awkward to the professional ear and is seldom used, even in common parlance. “Suit,” in its general unqualified use in legal documents, such as the one before us, naturally means, and should be construed as intended to include, the mode or manner authorized and adopted by law to redress civil injuries. Such is the view expressed by able authorities when carefully considering and directly treating the question. Many of these authorities are cited in 37 Cyc. p. 522. In the lengthy and exhaustive case of Cohens v. Virginia, 19 U. S. (6 Wheat.) 264, Chief Justice Marshall says:

“What is a suit? We understand it to be the prosecution, or pursuit, of some claim, demand, or request. In law language, it is the prosecution of some demand in a court of justice. The remedy for every species of wrong is, says Judge Blackstone, ‘the being put in possession of that right whereof the party injured is deprived.’ The instruments whereby this remedy is obtained, are a diversity of suits and actions, which are defined by the Mirror to be ‘the lawful demand of one’s right;’ or, as Bracton and Fleta express it, in the words of Justinian, ‘jus prosequendi in justicio quod ctlicui debetur.’ Blackstone then proceeds to describe every species of remedy by suit; and they are all cases where the party suing claims to obtain something to which he has a right.”

Furthermore, the two essentials of a contract of insurance which aré to be considered together in this inquiry are the subject-matter and the risk insured against. The two automobiles constitute the subject-matter in relation to which the risk was assumed. Construing the various provisions of, the policy together, we think it clearly evident that the controlling thought as to indemnity, the thing contracted for, was protection against risk of liability for injury resulting from accidents in the operation of the automobiles, not risk of public prosecution for crimes or misdemeanors committed in the use of them; and we conclude from the context that in this policy the word “suits” must be taken to mean civil suits which would determine the pecuniary liability of defendant for injury to person or property; suits which, because of its promised indemnity, defendant was necessarily interested in defending.

The learned circuit judge rightly held—

“That the provisions of said policy, read together, exclude any construction making it the legal duty of defendant to defend plaintiff on the criminal charge of manslaughter, and that consequently the defendant is entitled to an instructed verdict.”

As these views dispose of the case, it becomes unnecessary to consider the other interesting question raised by defendant.

The judgment is affirmed.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


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    PETERSON v. SWENNINGSTON.
    1. Attachment — Stipulations — Appeal and Error — Construction — Motions.
    In. attachment proceedings upon the intervening petition of a third party who claimed to own the attached premises by virtue of an unrecorded deed, the plaintiff was not barred from defending the case on appeal upon other grounds than those presented in defendant’s and intervener’s motions, by a stipulation agreed to by his counsel, whereby, in consideration of plaintiff’s extending the time of redemption, the intervener consented to confine his objections to those already presented to the court and would file no further objections or motions, and that either party might exhaust all his remedies by appeal in any form he might select.
    2. Same — Intervention—Statutes.
    In the absence of a statute permitting the claimant of real property to intervene in an attachment case to establish his title, no authority exists for such procedure.
    3. Same.
    In the case of substituted service in attachment, and judgment by default thereon, the proceeding is in rem and reaches the property only: final execution cannot be levied on other property of the defendant.
    4. Motions — Attachment—Parties.
    Where the defendant in attachment had absconded to escape a criminal prosecution, and plaintiff, his bondsman, who had been required to pay the bail as fixed, caused the writ to be levied on realty which stood on the records in the name of defendant who claimed to have sold the property and to have parted with any interest that he may have had, he was not entitled to move to quash the writ, and set aside a sale of the real property, having disposed of the premises, the controversy was between plaintiff and his grantee.
    Error to Muskegon; Sullivan, J.
    Submitted November 17, 1913.
    (Docket No. 128.)
    Decided December 20, 1913.

      Attachment by Fred Peterson against Lawrence G. Swenningston. Defendant and Almon B. Lee, an intervening petitioner, bring error from an order denying their several motions to quash the writ and vacate a sale under the writ.
    Affirmed.

      F. E. Wetmore, for appellants.

      Sutherland, Johnson & Sessions, for appellee.
   Steere, C. J.

This contention involves an attack by motion upon the validity of a judgment rendered in an action begun by attachment against defendant Swenningston. wherein substituted service was had by publication. The abundant reasons for plaintiff suing out the writ and not making personal service upon -defendant arose from defendant absconding the county and country for parts unknown shortly before his presence was required at the September, 1910, term of the circuit court of Muskegon county to answer to an information there filed against him charging an act of gross indecency, thereby forfeiting his recognizance on which plaintiff was a surety. As a result the recognizance was estreated and plaintiff compelled, in liquidation of his obligation thereunder, to pay into the public treasury the sum of $500, which expenditure he now seeks to recover in this attachment proceeding. Under a writ of attachment sworn out by plaintiff, on February 20, 1911, the sheriff seized some land located in said county which it was understood Swenningston owned and which was found standing on the records in his name. The cause progressed to judgment by default, followed by an execution and levy upon said land and a sale of the same under said execution. Almon B. Eke, one of appellants, is not a party to the action, but figures in the case as a petitioner asking leave to intervene and move the court to vacate the attachment proceedings on various grounds, claiming to be the owner of the land attached, having in good faith purchased the same from Swenningston on September 29, 1910, and received a deed therefor, which deed, however, was not recorded until July 28, 1911. About the time Lee filed his petition, a motion was also made in the name of defendant Swenningston, through his attorney, asking the court to quash the writ and set aside the judgment on the ground that the court never obtained jurisdiction to render the same. The motion seems to have been amended, but the printed record does not clearly disclose the date of its original filing nor of Lee’s petition. An affidavit in support of the motion, which we infer from the record as the two were argued together was in support of both, made by one counsel who represented both parties, bears date August 20, 1912, and was filed two days later.

It was, and now is, the contention of plaintiff that neither of the appellants is entitled to be heard, for the reason that Lee is a third person, not a party to the action, and as such has no right to intervene, and that Swenningston, being a fugitive from justice in the court to which he now appeals, stands in contempt and cannot be recognized. The trial court denied petitioner Lee’s motion for leave to intervene, and states in the record that before the argument of defendant’s motion plaintiff objected to his being heard for various reasons stated, filing an affidavit in support of the objection, concluding, “However, I decided the motion on the merits as above.” Prior to submission of the matter to the court, a stipulation had been entered into between counsel, by which it was agreed that, in consideration of plaintiff extending the time to redeem the land from execution sale until 80 days after final disposition of the motions, appellants would not file any further or different motions in said cause, and would confine their objections to the two propositions that the judgment was void because the affidavit for attachment was defective and no inventory and appraisal of the land were shown by the sheriff’s return. Those questions the trial court considered and decided in plaintiff’s favor, denying defendant’s motion. Appellants have removed the proceedings to this court for review on a writ of error, and their counsel now contends that, under the stipulation filed in the court below, the only questions for consideration here are their two objections heretofore mentioned. We do not so construe the stipulation. The only concessions made by plaintiff, except the recited facts, are extension of time to redeem and full privilege of either party to appeal by any remedy available. The stipulation concludes:

“It being the intent of this stipulation that either party hereto may exhaust all his remedies by appeal in any form he may wish to proceed, and that the said- Almon B. Lee may have 30 days after decision of the final appeal in which to redeem from said sale heretofore made by the sheriff, if it should be held that the lien established by the said lien was a valid one, but it is further understood that it is admitted by the said Almon B. Lee and the said defendant that all proceedings after judgment are legal and valid and will not be questioned. In signing this stipulation, plaintiff does not waive any defense he may have to said motion or the filing of it except as herein stated.”

The trial court correctly denied Lee’s motion for leave to intervene. Whatever the rule may be in other jurisdictions having different rules of practice or enabling statutes, it is the rule in this State that a third person not a party to the action cannot directly intervene to establish ownership of property levied upon by execution.

“At common law, a third person cannot intervene and claim property levied on, and there is no statute in this State authorizing such procedure.” 2 Green’s Michigan Practice (Nichols’ Ed.), p. 1106.

In Gott v. Hoschna, 57 Mich. 417 (24 N. W. 123), where the assignee of an insolvent sought to protect the property by a bill to set aside an attachment levied on lands of the debtor, this court said:

“The statute which forbids attachment levies, points out. no way whereby the assignee can move in the attachment suit to dissolve the attachment; and, in the absence of such provision, a third party cannot intervene in a common-law- action. Neither could the assignee avail himself of the special proceeding to dissolve attachments before circuit court commissioners or judges at chambers, under section 8026 of Howell’s compilation. The right to make such application is confined to a defendant; and he must be entitled to a return of the property.”

The trial court could have also rightfully denied defendant Swenningston’s motion without consideration of the two questions referred to.

As to plaintiff’s claim of contempt, it may well be regarded as a serious question whether one who has defaulted his recognizance and fled from a criminal prosecution, in violation of his obligation to appear, can, while a refugee from justice out of the jurisdiction of the court, demand, from afar, through counsel, a hearing before such court upon the question of a substituted service which was occasioned by his flight. It is true the contempt was in a criminal prosecution and this is a civil action; but the latter arose from the former. His bondsman in the one is seeking in the other to recover what defendant’s contempt compelled him to pay.

Beyond this, defendant claims to have sold this property and parted with all title to it before he absconded. He is therefore not the owner of the land, is not entitled to possession of it, and has no interest in it. This action, with substituted service by publication and judgment by default, is essentially a proceeding in rem and only reaches the property attached. The judgment is not against defendant as on personal service, and final execution can only be levied on the property seized. Drake on Attachment (7th Ed.), § 5; 3 Comp. Laws, § 10577; Bliss v. Tyler, 159 Mich. 502 (124 N. W. 560). The attachment levy did not affect the previous possession, use, or enjoyment of the land. He having sold the same before this action was begun, its title and ownership are matters between defendant’s grantee and plaintiff to be litigated in independent, appropriate proceedings between themselves, in which both are parties to the record.

The action of the trial court in denying said motions is affirmed.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


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    COOKES v. LYMPERIS.
    1. Appeal and Error — Saving Questions eor Review — Exception to Charge.
    But for the provisions of 8 Comp. Laws, § 10247, as amended (5 How. Stat. [2d Ed.] §12960), exceptions would be essential to tbe review, on writ of error, of tbe trial court’s instructions to the jury: under tbe express language of tbe statute error may be assigned on tbe charge without excepting to it.
    2. Partnership — Actions—Equity and Law — Jurisdiction.
    A single item of account between partners remaining unadjusted can be settled in an action at law.
    3. Same — Compromise and Settlement — Dissolution.
    On tbe purchase of one partner of tbe other’s interest, the relationship became that of debtor and creditor, and neither was afterwards entitled to an accounting, and upon the matter thus changed from a copartnership an action at law might be based.
    4. Same — Wages—Master and Servant.
    Where the partners wound up their joint enterprise and one of them took over the business, agreeing to pay the other a part of the purchase price on the basis of the wages which the other might earn in a specified period, the action was'properly brought at law: the term “wages” referring to a hiring; compensation to be paid by master to a servant by the day, week, etc., as the case might be.
    Error to Wayne; Murphy, J.
    Submitted November 26, 1913.
    (Docket No. 173.)
    Decided December 20, 1913.
    Assumpsit in justice’s court by George .Cookes against Lazeros Lymperis. From a judgment for plaintiff, defendant _ appealed to the circuit court, where judgment was rendered for plaintiff. Defendant brings error.
    Affirmed.

      William D. Ellsworth, for appellant.

      McHugh, Gallagher, O’Neil & McGann, for appellee.
   Steere, C. J.

This case is between two former partners, wherein one, after dissolution of their partnership, brought an action to recover from the other “wages and damages” which he claims the other promised, at the time they closed their partnership relations, to pay. The action was commenced in justice’s court, where a verdict and judgment were obtained against defendant for $400, from which he appealed to the circuit court of Wayne county, where, on trial by jury, a verdict and judgment were rendered against him in the sum of $300. He has now removed the case to this court by writ of error, on jurisdictional grounds, assigning error only on the charge of the court, relying, as counsel states in his brief, on assignments of error 3 and 4, which are as follows:

“(3) That the court erred in assuming jurisdiction of the matters in controversy in the above-entitled cause.
“(4) That the court erred in submitting the matters in controversy in the above-entitled cause to the jury.”

The facts are undisputed that in November, 1910, plaintiff and defendant entered into an oral contract of partnership, under which they opened, and for a time ran, a restaurant on Michigan avenue, in the city of Detroit, known as “The Star Restaurant.” Plaintiff was a professional chef, and devoted his time and skill to the enterprise while connected with it, acting both as chef and manager, defendant being absent in Chicago during the early history of the business, joining plaintiff later, and assisting at the restaurant in some capacity not clearly shown by the record. Without going into details, it is sufficient to state that differences arose between the parties, resulting in a dissolution of their partnership on March 14, 1911, in which defendant bought plaintiff’s interest. A written agreement was then prepared and signed by them, which is not set out at length in the record, but by stipulation of counsel shows that plaintiff—

“Sold, assigned, and transferred to Lazaros Lymperis all of the right, title, and interest in and to the goods, chattels, and utensils used in the running and operating of a restaurant at 272 Michigan avenue, said restaurant being known as the Star Restaurant.”

Defendant then paid plaintiff $100, which plaintiff claims was simply for the goods, chattels, utensils, etc., connected with the business, it being expressly agreed in the contract of dissolution, which was oral except as above indicated, that defendant would also pay him a reasonable sum for “wages and damages.” This is denied by defendant, who claims that the $100 paid was in full payment of all interest, of every kind, name, and nature, which plaintiff had in the partnership. This issue of fact was submitted to the jury by the court under appropriate instructions, the court holding, and so instructed the jury, that there could be no recovery for “damages” other than wages, and if they found in plaintiff’s favor, their verdict must be confined to wages for services as chef during the period mentioned. There was abundant testimony for the jury as to the value of such services.

The record contains no objections or exceptions, made or taken during the trial, and nothing to disclose that the question of jurisdiction was raised in the trial court. Plaintiff’s brief states that a motion for a new trial was denied, but the ground of the motion is not stated. The record is silent upon that subject. The case was tried on January 23, 1912. The declaration was upon the common counts in assumpsit, and the plea was the general issue, there being nothing in the pleadings to suggest want of jurisdiction. A verdict was then rendered,'and judgment entered thereon as stated. The next step, as shown by the record, was a stipulation dated May 12, 1913, extending the time to issue a writ of error. On May 8, 1913, the defendant’s counsel filed his assignments of error.

Plaintiff’s counsel contend that defendant has no standing in this court, and the judgment should be affirmed, because the bill of exceptions contains no alleged errors based upon exceptions, and it is so thoroughly established that the court will not consider questions raised for the first time in the appellate court that citation of authorities is súperfluous. As a general rule, this contention is sound. In the absence of statutory provisions, it would dispose of this case beyond a shadow of misgiving, but section 10247, 3 Comp. Laws, providing that exceptions to the charge are not necessary, amended in 1901 (Act No. 52, Pub. Acts 1901), says that it is not necessary to except to the charge, or refusal to charge—

“But any party aggrieved by any such charge, or refusal to charge, may assign errors upon such charge, or refusal'to charge, in his assignments of error, the same as if exception had been made to such charge or refusal to charge.”

The criticism of this statute found in Just v. Porter, 64 Mich. 568 (31 N. W. 444), seems to be fully justified by the situation disclosed in this record.

Irrespective, however, of the foregoing question, defendant’s contention that the court was without jurisdiction to try the case, because plaintiff’s claim grew out of partnership relations, and one partner cannot bring an action at law against another for such a claim, is not tenable under the facts admitted or in issue here. It stood undisputed that the previous partnership between the parties was dissolved, and all matters fully settled and satisfied, except plaintiff’s claim for wages and damages. The court instructed the jury that there was no competent testimony for them to consider except wages. That was the one matter at issue. Plaintiff claimed a distinct contract that defendant would pay him, not for the partnership, but for himself, wages for his services, as a part of the purchase price of his interest in the business. This defendant denied, insisting everything was settled.

Where only a single item of account between partners remains unadjusted, it can be settled by an action at law. Purvines v. Champion, 67 Ill. 459; Ryder v. Wilcox, 103 Mass. 24; Whetstone v. Shaw, 70 Mo. 575; Wheeler v. Arnold, 30 Mich. 304. According to the testimony of both of these parties a new contract was entered into by which plaintiff closed out and transferred all his right, interest, and title in the business to defendant and simply became a creditor of the purchaser. Neither thereafter was entitled to any accounting. The only matter unadjusted, if any, was a claimed item of the purchase price, the exact amount to be determined on the agreed basis of what wages plaintiff would have earned while working in the restaurant provided he had been paid wages.

“Where partners have seen fit to deal with each other without reference to the final accounting, the transaction is not subject to the necessity or delay of such an accounting.” Carpenter v. Greenop, 74 Mich. 664 (42 N. W. 276, 4 L. R. A. 241, 16 Am. St. Rep. 662).

The rule which, under the circumstances of this case, determines the jurisdiction is succinctly stated in Mechem on Partnership, § 142, as follows:

“Generally, the partners may, by express agreement, transform a partnership transaction into the individual one of one of the partners, and upon matters thus separated from the partnership affairs an action at law may be maintained.”

The whole partnership transaction here was by contract transferred to defendant, adjusted and closed between the parties, according to plaintiff’s claim, except an item of deferred payment of the purchase price which was to be computed, not on any accounting, but on an agreed basis of wages in a certain employment for a certain length of time. “Wages” means a hiring; compensation given or to be given by a master or employer to a hired person or employee, by the hour, day, week, or month, the amount to be ascertained by agreement or the proven going rate or market value of the same at the time and place rendered.

We conclude the trial court properly submitted the issues of fact involved to the jury, and did not err in assuming jurisdiction of the matters in controversy.

The judgment is affirmed.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: McAlvay, C. J. Kuhn, J.

text:
      In re LANGELL.
    1. Injunction — Equity—Contempt Proceedings.
    In contempt proceedings for the violation of an injunction against picketing by striking laborers, the order restraining members of a labor union from interfering with the employees of complainant, by way of threats, intimidation, violence, or from congregating or loitering about the complainant’s premises, or from in any manner interfering with the free access to complainant’s premises, was valid.

    2. Same — Strikes—Violation oe Writ — Contempt.
    Where the members of a labor organization were enjoined from picketing, loitering near the premises of the employer, or interfering with those who continued to work, respondent, who stationed himself opposite one of the entrances of the factory grounds while employees were passing and entering, was guilty of contempt.
    3. Strikes and Lock-Outs — Picketing—Equity.
    There may be a moral intimidation by strikers, which is illegal, and peaceable picketing, unaccompanied by threats, abusive language or violence, may be restrained by the court of chancery.

    Kuhn, Ostrander, and Bird, JJ„ dissenting.
    Certiorari to Ingham; Collingwood, J.
    Submitted November 20, 1912.
    (Docket No. 120.)
    Decided January 5, 1914.
    Harry Langell was adjudged guilty of contempt of court.
    Affirmed.

      C. P. Black and S. B. Roe, for appellant.

      Raudabaugh & Person (Cummins & Nichols, of counsel), for respondent circuit judge.

       On the question of injunction against strikes, see note in 28 L. R. A. 464.

       For authorities on the law as to picketing, see note in 4 L. R. A. (N. S.) 302.

   McAlvay, C. J.

From an order made by respondent in the case of the Seager Engine Works, complainant, against the International Molders’ Union No. 225, the petitioner Langell and others, members of said union, defendants, then pending in the circuit court for the county of Ingham, in chancery, adjudging petitioner guilty of contempt of court in violating the terms of an injunction issued in said cause, petitioner seeks by a writ of certiorari to review said contempt proceedings. The said cause was not at issue, and this record does not contain a copy of the bill of complaint, which was filed July 5, 1912, or the showing made for issuing the injunction in question. The petition in these proceedings, however, give a sufficient résumé of the bill to show it charged that complainant, in the manufacture of engines at its foundry and plant in Lansing, Mich., employed a large number of men; that on May 18,1912, many of these employees, including petitioner, being members of this molders’ union, went on a strike and, acting in concert, had been guilty of illegal acts with intent to injure the business of complainant and compel it to accede to their demands as to a scale of wages and hours of work and by acts of violence towards its employees had intimidated them and caused many of them, who desired to do so, to refrain from working for complainant and picketed its premises for the purpose of intimidating its employees and injuring its business, thereby causing its employees to refrain from work; that such picketing and other unlawful conduct and violence had continued for a long time before the filing of its bill of complaint, and such picketing was then being maintained continuously about its premises, and intimidated its employees and others from coming to work or transacting business with it.

The said injunction restrained all of the defendants, including petitioner, as follows:

“(a) From in any manner interfering with the employees of the complainant * * * by way of threats, personal violence, intimidation, or any other unlawful means calculated or intended to prevent such persons from entering or continuing in the employment of the complainant or calculated or intended to induce any such person or persons to leave the employment of the complainant.
“(b) From congregating or loitering about or in the neighborhood of the premises of the complainant with intent to interfere with the employees of complainant or from picketing said premises or the approaches thereto, or from in any manner interfering with the employees of complainant * * * or
from in any manner interfering with or obstructing the business or trade of complainant.
“(c) From in any manner interfering with the free access of employees of complainant to complainant’s premises in the city of Lansing and their place of work, and from in any manner interfering with the free return of said employees to their place of business or to their homes or elsewhere.”

Copies of the restraining order were, on July 5th, duly served upon the defendants, including the petitioner in these proceedings. On July 8th following, the petitioner, who resided about two miles from complainant’s premises, at 5:30 o’clock in the morning, stationed himself in the highway directly opposite to one of the entrances to complainant’s premises and remained there while its employees were passing and crossing the street to enter complainant’s premises to go to work. Three or four other members of the molders’ union also were present in the vicinity standing 50 feet or more from petitioner. They said nothing to the workmen as they passed and made no physical attempt to interfere with them. They were standing at or about the same places occupied by pickets on the preceding Saturday and at other times, when petitioner and other strikers were present as pickets, and some of them hooted and called “scab” at the workmen entering complainant’s plant.

On July 9th complainant filed its petition in said cause, asking for an order against petitioner and five others to show cause why they should not be punished as for a contempt for a violation and disobedience of the restraining order. The order to show cause was granted and duly served. The matter in due course came on to be heard before the respondent, Hon. Charles B. Collingwood, circuit judge. All of the evidence taken on such hearing, together with the petition and supporting affidavits thereto attached, and the order to show cause, the answer of the respondents thereto, is contained in the record returned to this court.

The contentions of petitioner which require consideration are: That the court had no jurisdiction to issue the restraining order against picketing; and that there was no evidence in the case tending to show a violation of the restraining order by petitioner in any respect. This court has held that a circuit court, in chancery, has jurisdiction to issue an injunction restraining interference by labor organizations, and the members of the same, during a strike, with the rights of an employer by picketing his premises. Beck v. Protective Union, 118 Mich. 497 (77 N. W. 13, 42 L. R. A. 407, 74 Am. St. Rep. 394); Ideal Manfg. Co. v. Wayne Circuit Judge, 139 Mich. 92 (102 N. W. 372). The first contention, therefore, requires no further consideration.

The principal dispute in the case is as to whether there was any evidence tending to show that petitioner wilfully and knowingly disobeyed and violated the terms of the restraining order and to support the finding of the court that the acts and conduct of petitioner, as disclosed by the evidence, constituted picketing and was a wilful violation of the order in question.

From our examination of all of the evidence in the record, we are satisfied that there was evidence in the case tending to support the finding of the circuit judge. The testimony of petitioner shows that he was a person having some authority in the molders5 union; that he understood that the restraining order prohibited picketing and that in his opinion the court had no authority to issue such an order; and that if any one went there, without saying anything to the employees or making any disturbance, it would not be punishable. It is clear, from his testimony, that he went there because he thought that he could do it with more discretion than the ordinary members; that he went there wilfully and in defiance of the order, under the impression that a silent picketing was not unlawful. It appears from the evidence that he had been active and present on former occasions when there was open interference with the employees. It is urged that because petitioner stationed himself at this place and said nothing and did no overt act of interference that his acts, if found to be picketing, were lawful. Such a contention is supported by many authorities. The later and more reasonable rule, however, holds that all picketing is illegal.

“The doctrine that there may be a moral intimidation which is illegal, announced by the Supreme Court of ■ Massachusetts, was among the first judicial steps taken in this country toward overturning the rule permitting peaceable picketing * * * and was a forerunner of the later rule that there can be no such thing as peaceable picketing, and consequently that all picketing is illegal.” 24 Cyc. p. 836, citing Vegelahn v. Guntner, 167 Mass. 92 (44 N. E. 1077, 35 L. R. A. 722, 57 Am. St. Rep. 443); Franklin Union v. People, 220 Ill. 355 (77 N. E. 176, 4 L. R. A. [N. S.] 1001, 110 Am. St. Rep. 248); Atchison, etc., R. Co. v. Gee (C. C.), 139 Fed. 582; Beck v. Protective Union, supra.

This court has repeatedly held that it will not consider mere irregularities, technicalities, or matters of practice upon certiorari. The other matters presented by petitioner, being within these decisions, require no consideration.

The proceedings are affirmed.

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

Kuhn, J.

(dissenting). After a careful reading of the record in this case, I am not convinced that the petitioner should have been found guilty of contempt. The circuit judge found the following:

“It appearing from the evidence taken upon said hearing that said Harry Langell was formerly a workman at the Seager Engine Works, and that he was a member of the molders’ union, and that a copy of the said restraining order had been served upon him that on the morning of the 8th day of July, 1912, before 6 o’clock in the morning, and while the workmen were entering the employment of said Seager Engine Works, he (the said Harry Langell) did place himself near the entrance of said works for the purpose of watching the said workmen to determine among other things how many were members of the union; that he (the said Harry Langell) stood near the entrance of said works at that time in the morning for the purpose of watching and annoying said workmen, who were attempting to work at said works, against the wishes of said molders’ union; that such conduct on the part of said Harry Langell constituted and constitutes an intimidation of the employees of said Seager Engine Works and an interference calculated and intended to annoy and to prevent such persons from entering the employment of said Seager Engine Works; that such conduct on the part of said Harry Langell constituted and constitutes picketing; and that such watching and such annoyance and such interference and such picketing was done by said Harry Langell in wilful violation of said order lawfully issued out of this court on the 5th day of July, 1912.”

In the case of Beck v. Protective Union, 118 Mich. 497, 520 (77 N. W. 13, 42 L. R. A. 407, 74 Am. St. Rep. 421), in defining a picket, this court said:

“As applied to cases of this character, the lexicographers thus define the word ‘picket:’ ‘A body of men belonging to a trades’ union sent to watch and annoy men working in a shop not belonging to the union, or against which a strike is in progress.’ Cent. Diet.; Webst. Diet. The word originally had no such meaning. This definition is the result of what has been done under it and the common application that has been made of it.”

It has also been defined as “relays of guards in front of a factory or the place of business of the employer for the purpose of watching who should enter or leave the same.” Cumberland Glass Manfg. Co. v. Glass Bottle Blowers’ Ass’n, 59 N. J. Eq. 49 (46 Atl. 208). Also “as the establishment and maintenance of an organized espionage upon the works and upon those going to and from them.” Otis Steel Co. v. Local Union (C. C.), 110 Fed. 698. Under these definitions, it is necessary, in order to have picketing, to have a deliberate, organized- action on the part of at least more than one person. No organized action is shown by this record. This petitioner went on the street of his own motion. He was not a part of a body of men sent to watch and annoy, within the definition in the Beck Case. He was only in the immediate vicinity of the plant for a few minutes. He interfered with no one; made no‘ threats. I find nothing in the record to warrant the finding that he annoyed the workmen; in fact, the workmen who were sworn testified that he did not talk to them nor interfere with them in any way.

The order of the circuit judge finding the petitioner guilty of criminal contempt should be vacated and set aside, and the petitioner discharged.

Ostrander and Bird, JJ., concurred with Kuhn, J.