text:
    SMITH v. HUBBELL.
    1. Libel — Action—Evidence.
    In an action for libel plaintiff may show that he has children, that he went to the place of his residence a poor man and without outside assistance has built up a profitable business.
    2. Trial — Examination of Witnesses — Objections—Questions Raised.
    An objection to a question as incompetent does not raise the point that to permit it to be answered would admit secondary evidence without a proper, foundation.
    3. Libel — Malice—Evidence—Subsequent Publications.
    In an action for libel in defaming plaintiff in his office of village attorney and in his profession as an attorney at law, an article published eight months later, opposing his candidacy for prosecuting attorney and containing an express reference to his official acts previously criticised, is admissible to show malice, against the objection that it is too remote.
    4. Municipal Corporations — Public Buildings — Contractors’ Bonds — Liability of Officers.
    The omission of a village council erecting a public building to require and take from the contractor the bond prescribed by section 10743, 3 Comp. Laws, renders the members liable to materialmen for damages sustained by them through failure of the contractor to pay them for materials furnished for the » building.
    5. Same —Officers —Claims Against Municipality — Allowance — Interest of Officers.
    Members of a village council, who by reason of the neglect of a statutory duty are personally liable for a claim for materials furnished for a village hall, are legally disqualified from voting on the allowance of the claim when presented against the village.
    6. Same — Village Attorney — Allowance for Services.
    The claim of a village attorney for his services in applying for a mandamus against the president and clerk to compel payment of a claim against the village allowed by the council, is not a valid claim against the village, where the councilmen at whose request the services were rendered were personally liable for the original claim.

      7. Libel — Action—Trial—Request to Charge — Instructions Given.
    In an action by a village attorney for libel, a request to charge preferred by defendant that, when an attempt was made to enforce payment of a certain claim against the village, it was the attorney’s duty to make a full investigation and advise the council that the claim was invalid, if it was so disclosed, held, sufficiently covered by an instruction given that if plaintiff knew, or on investigation might have discovered, that the claim was invalid, then his services in attempting to enforce payment thereof would not constitute a legal charge against the village.
    8. Municipal Corporations — Village Attorney — Duties—Ordinances.
    A village ordinance providing that the village attorney shall prosecute and defend actions by or against the corporation or any officer thereof who may have incurred any penalty or forfeiture under the charter and ordinances, or by breach of the conditions of any official bond, when directed by the council so to do, does not, as a matter of law, absolutely disqualify such attorney from appearing against the president and clerk of the village in proceedings to compel them to issue and sign an order for the payment of a claim against the village.
    9. Libel — Action—Instructions.
    Where village councilmen were personally liable for a materialman’s bill which they allowed as a claim against the village, and plaintiff, as village attorney, at their request sought to compel the president and clerk to issue an order for the payment of such claim, it was error for the court, in an action for libel consisting of publications criticising plaintiff’s act in presenting a claim against the village for his services in such proceeding, to refuse to charge explicitly that the village trustees were personally liable on the material-man’s bill, and for that reason their allowance of the bill was invalid, and th6 attempt to bind the village for plaintiff’s services was futile.
    10. Perjury — False Oath — Intent.
    A village attorney does not commit perjury in swearing to a bill against the village for services, performed at the instance of the village council, to compel the village president and clerk to execute and sign an order for the payment of a claim against the village, which as a matter of law is not a valid claim against the village, and on which the members of the council are individually liable, provided he believes in good faith that his bill for services is a legal claim against the village.
    11. Libel — Statements Libelous Per Se.
    Publications concerning plaintiff, as attorney for a village, stating that he is a pettifogger and incompetent, criticising his conduct for filing a claim against the village for services in a mandamus proceeding to compel the village president and clerk to execute and sign an order for the payment of a claim, for which the village was not liable, and charging plaintiff with dishonesty and perjury in swearing to his claim, are libelous per se.
    13. Same — Damages—Evidence.
    Where, in an action for libel, no evidence is offered to prove pecuniary loss, plaintiff is not entitled to recover for injuries to his business.
    Error to Lapeer; Smith, J.
    Submitted January 5, 1906.
    (Docket No. 13.)
    Decided January 23, 1906.
    Case by Herbert W. Smith against Albion W. Hub-bell for libel. There was judgment for plaintiff, and defendant hirings error.
    Reversed.

      Elmer Shumar and B. L. Campbell, for appellant.

      Oeer, Williams & Halpin, for appellee.
   Hooker, J.

The defendant has appealed from a judgment against him, in an action of libel. He was the owner and publisher of a newspaper in the village of Imlay City, and published some editorials reflecting upon the plaintiff, who was village attorney. The first of these was under the caption, “An Imlay City Graft,” and grew out of the following facts: The village council let .a contract for the building of a village hall, without requiring the statutory bond to protect materialmen and laborers. The contractors were paid a large proportion, perhaps all, of the contract price, while the work was unfinished to a substantial degree, and some materialmen presented claims to- the council. These claims were allowed by the council; four aldermen voting in favor of allowance, and two against it. The village president and clerk refused to give orders for the amounts állowed. Thereupon the council passed a resolution directing plaintiff to commence mandamus proceedings against the president and clerk to compel them to sign the orders. This was done, and the circuit judge denied the writ. Thereafter plaintiff presented a bill to the council for about $70 for his services in the mandamus case and one or two other matters connected with the transaction. The bill was allowed. The following quotations from its editorials will serve to show the substance of defendant’s alleged libel:

“ AN IMLAY CITY GRAFT.
“ OUR VILLAGE DADS APPARENTLY WANT TO FOLLOW THE LATEST FASHIONS.
“ At the meeting of the common council Tuesday evening our village attorney, Herbert W. Smith, presented a bill for his services in the mandamus proceedings recently commenced against the village president and clerk to compel them to sign an order for the payment of a claim against George D. Hulburt & Company, and which the village of Imlay City was not in any sense responsible for. In his decision the circuit judge said that the village is not liable for the costs incurred, and the contention of the Record is that the account of Mr. Smith is for work done for private citizens, and is no more a claim against the village treasury than any other private account. We give herewith an itemized statement of the account, together with the accompanying affidavit of Mr. Smith as presented to the council: [Here followed an itemized statement of the account.]
“ ‘ State of Michigan, )
County of Lapeer. j ss'
“ ‘ Herbert W. Smith, being duly sworn, says the services mentioned in the above statement has actually been performed for the. village of Imlay City and that the sums charged therefor are reasonable and just, and that to the best of his knowledge and belief no set-off exists nor payment lias been made on account thereof except such as are indorsed or referred to in such account.
“ ‘ Herbert W. Smith.
“ ‘ Subscribed and sworn to before me this 1st day of December, A. D. 1903. ' “ ‘ Elmer Shtjmar,
“ ‘Notary Public, Lapeer County, Michigan.’
“ Now, as Mr. Smith knew before making that affidavit that not one cent of the bill was a valid claim against the village, we would like to inquire if he did not commit perjury when he made the affidavit. With the knowledge that the bill was not a valid claim against the village, the council by a vote of 4 to 2 allowed it.
“ The vote of the members of the council on this looting of the village treasury is as follows: Yeas — Trustees Rathsburg, Taylor, Johnson, and Egglestone. Nays— Trustees Hyman and Large.
“Mr. Smith apparently considers our council easy picking, and proposes to work the graft he has for all there is in it. Ever since he has held the position of village attorney he has, on points raised, advised our council in such a way as to make legal complications and probable lawsuits, and thus make more work and also more fees for himself. His actions as village attorney convinces many thinking people that he is either wofully incompetent for the place or is a consúmate pettifogger, and the wonder is that the members of our village council are chumps enough to be misled by such advice. It is to the credit of president Doty that he refuses to sign the order for the payment of this bill, and in this position he deserves the backing of all citizens who favor honesty and economy in the financial affairs of our village.”

The second editorial appeared soon after:

“ NOW WOULDN’T THIS JAR YOU ?
“On Tuesday afternoon we received through the post-office the following communication, which is self-explanatory :
“ ‘ Imlay City, December 8fch, 1908.
“ ‘Mr. Albion W. Hubbell,
“ ‘ Editor Imlay City Record,
“ ‘Imlay City, Miob.
‘Dear Sir: You are hereby notified to publish a retraction of the statements made by you in the issue of your paper of December 4th, 1908, a copy of which is hereto annexed and marked “exhibit A.”
“ ‘Yours truly,
“‘Herbert W. Smith.’
“ ‘Exhibit A’ referred to is a clipping from last week’s Record containing the article headed ‘An Imlay City Graft.’ After carefully reading the article again, we fail to find anything in it to retract, as we consider it a plain statement of fact expressed in very mild language. A correction in the spelling of a word is called for, as we observe an ‘m’ was omitted from the word ‘consummate,’ and if necessary we are willing to apologize to our subscribers for this faulty proof reading; but as Mr. Smith is not a subscriber to the Record we consider this little omission is none of his business. Mr. Smith’s letter has been placed in a frame and hung among the works of art that adorn the walls of our editorial sanctum.”

The articles sufficiently show the claim of the defendant as to the plaintiff’s connection with the transaction. It is fair to say that the plaintiff claimed to be unaware that a bond was required, that he and the members of the council did not intentionally omit to comply with the statute, that they thought that justice required the allowance and payment by the village of the claims presented, and that the council had authority to allow them; that plaintiff believed and advised the council that a mandamus proceeding was the proper one to test the question. The defendant’s counsel have alleged many errors. We will endeavor to discuss the important points, giving the necessary facts in connection with the respective questions.

Upon the trial, the plaintiff was asked, “Have you any children ?” He answered that he had a girl and a boy. Again he was asked:

“ What property did you have when you settled in Imlay City ?
“Mr. Campbell: Now, your honor, we object to all this line of examination as not admissible.
“Mr. Williams: I believe it is competent. This young man went to Imlay City poor, after working himself through the school, and by his industry has built up by his own efforts a business there that has been injured by this defendant.
“Mr. Campbell: We object to that statement.
The Court: I think you may take it. (Exception for defendant.)
“A. I did not have any property, and did not have any assistance from any outside source since that time.”

In aggravation of actual damages, a plaintiff may prove his own rank and. condition in life. Thus in Morey v. Morning Journal Ass’n, 123 N. Y. 207 (9 L. R. A. 621), it was held competent for a plaintiff to show that he was a married man, as bearing upon the hurtful tendency of the libel and the general damage to which he was exposed. In another case it was held proper to permit a plaintiff, in an action of libel based upon a charge of immoral conduct, to prove that she had a family of young children. Enos v. Enos, 135 N. Y. 609; Townshend on Slander and Libel, § 391; Myers v. Malcolm, 6 Hill (N. Y.), 292; Eastland v. Caldwell, 2 Bibb (Ky.), 21; Hayner v. Cowden, 27 Ohio St. 292; Bennett v. Hyde, 6 Conn. 24. See, also, Press Publishing Co. v. McDonald, 63 Fed. 239 (26 L. R. A. 531). This case contains an exhaustive discussion of the question, showing that the rule prevails in Massachusetts, Connecticut, Pennsylvania, Illinois, Virginia, Kentucky, West Virginia, Ohio, and Washington. Klumph v. Dunn, 66 Pa. 141. See, also, 3 L. R. A. Cases as Authorities, 901, citing Morning Journal Ass’n v. Duke, 128 Fed. 657, approving Press Publishing Co. v. McDonald.

Referring to the claims presented to the council by materialmen, counsel asked:

“Q. How were the bills presented' — in whose name? (Objected to as incompetent. Objection overruled. Exception for defendant.)
“A. Why, the hills were presented, as I found them in the files of the clerk; some of them simply Selden New-berry & Son.”

It is now said that this was the admission of secondary evidence without a proper foundation. It is sufficient to say that the objection contains no suggestion of such a point and we cannot consider it.

The following article was admitted in evidence?, in opposition to the objection that it was too remote from the time of publication of the alleged libel, incompetent, and immaterial:

“Herb Smith is putting forth almost superhuman efforts to secure the republican nomination for prosecuting attorney of this county. It is to be hoped that before giving him support for the nomination every person will acquaint himself with the record Herb made as village attorney of Imlay City and ask himself if similar methods are desirable in the office of prosecuting attorney. ‘ By their fruits ye shall know them.’ ”

It was published August 26, 1904, while the alleged libels were published in December, 1903. The plaintiff claimed that it was admissible to prove malice, and, in sustaining this claim, we think that the trial court did not err. 2 Current Law, p. 724; 4 Current Law, 427; Simons v. Burnham, 102 Mich. 189; Long v. Tribune Printing Co., 107 Mich. 207; Owen v. Dewey, 107 Mich. 67; Thibault v. Sessions, 101 Mich. 279. This article contained an express reference to his official acts previously criticised.

Error is assigned upon the refusal to give defendant’s fifth and seventh requests.

“5. I charge you that as the plaintiff, at the time of the allowance of this Michaels. bill, was the attorney for the village, it was his duty, when an attempt was made to enforce payment of this bill, to make a full investigation of the matter, and that, if a full investigation would have disclosed to the plaintiff that the bill was an invalid one, then it was his duty to so advise the village council. * * *
“ 7. As the ordinance under which the plaintiff held the office of village attorney provided that the village attorney should represent the village officers in all legal proceedings, it became the duty of the plaintiff to appear in behalf of the president and clerk in any proceedings that might be instituted to compel them to issue and sign the order in payment of the Michaels bill, and his services in appearing in opposition to those officers did not and would not constitute a legal charge against the village; he being absolutely disqualified by his office to appear against them.”

It is true that the omission by the council to require and take the bond was contrary to law. It is also undeniable that this omission made the members liable to material-men for damages. 3 Comp. Laws, § 10743; Owen v. Hill, 67 Mich. 43; Plummer v. Kennedy, 72 Mich. 295; Wells v. Board of Education, 78 Mich. 260; Staffon v. Lyon, 104 Mich. 249. Being liable personally, it is evident that the councilmen who thus omitted the duty and were liable to Michaels had a direct pecuniary interest in the allowance of Michaels’ bill, and were legally disqualified from voting to- allow it. Stockwell v. Township Board of White Lake, 22 Mich. 341; Wilson v. Township Board of Burr Oak, 87 Mich. 240; Locke v. Wyoming Township Highway Com'r, 107 Mich. 631. A question regarding the validity of such allowance was raised by the president and clerk. Thereupon the council applied to the plaintiff for advice. It is claimed that he advised them to test the question by applying for a mandamus, and they directed him to do so, and the application was made by and on behalf of the village through its attorney, not on behalf of a private person against the village. The council and the executive officer were in a dispute about the validity of this action. If all were honest in their convictions and action, the dispute was one which it was proper to have settled. The only questions in that regard are whether the council should, or lawfully could, treat this as a proceeding for the village, instead of themselves, in view of their personal interest in payment, and whether the village attorney violated his duty in appearing and prosecuting the case against the president and clerk. But, if we determine both of these questions in favor of the plaintiff, we must face the further question, viz.: Was the allowance of plaintiff’s bill for the services rendered in the mandamus case valid in view of the personal interest of the members of the council? We had a somewhat similar question before us in Smedley v. Kirby, 120 Mich. 253. There the mayor had employed counsel on behalf of the city to compel recognition of his right to veto a resolution passed by the council. He was successful. See Baaer v. Kirby, 118 Mich. 392. The city attorney had espoused the cause of the council and clerk. Subsequently Smedley filed his bill for services, and to a resolution regarding it an amendment to allow $349.50 to the mayor, with which to pay his attorney fees, was offered. It was declared carried by the mayor’s vote, as also was the adoption of the amended resolution. This action was sustained, upon the ground that the mayor had no pecuniary interest in the matter; it appearing that he had not bound either the city (which he had no power' to do) or himself (which he was Careful not tó do) in hiring counsel. We are of the opinion that the village was not bound by the action of the council in either instance to pay compensation for these services, because the councilman were disqualified by a pecuniary interest, if for no other reason.

The questions last discussed have a relation to defendant’s requests. As to the fifth request, above quoted, we think that it was substantially covered by the sixth, which was given, viz.:

“6. If the plaintiff knew, or if an investigation such as he might have made would have disclosed*, that the Michaels bill was not a valid claim against the village, then I charge you that his services in attempting to enforce payment of said bill would not constitute a legal charge against the village.”

Section 4 of the ordinance referred to in defendant’s, seventh request provides:

“ He shall prosecute and defend all actions which may be brought by or against the corporation, or any officer thereof, and who may have incurred any penalty or forfeiture under the charter and ordinances, or by reason of the breach of the conditions of any official bond, when directed by the council so to do.”

We think the court did not err in refusing this request. Defendant’s counsel say that they were entitled to have the ordinance construed; but, if that be conceded, he was not entitled to the construction embodied in the request.

Two other requests upon which error is assigned are as follows:

“8. For the purpose of this case, I say to you that Trustees Ryman, Rathsburg, and Taylor were personally liable for the amount of unpaid labor and material bills furnished George D. Hulburt & Co., including the Michaels bill, on account of their being members of the council at the time the contract was made with Hulbert & Co.; and their failure to require the bond specified in the statute (3 Comp. Laws, § 10743), and because of their interests these trustees were disqualified from voting on the question of the allowance of the bill of Michaels Bros., and the allowance of the bill by the aid of their votes was illegal, and such an allowance would in no way make the village liable.
“9. For the reason above given the passage of the res-solution authorizing plaintiff to begin proceedings against the president and clerk, by the aid of the votes of Trustees Ryman, Rathsburg, and Taylor, was invalid, they being disqualified to vote thereon by reason of their interest; and the proceedings based on such resolution were invalid so far as making the services of the plaintiff in the matter a legal charge against the village.
“10. If you find that, at the time the plaintiff swore to the bill for $69.87 and presented it to the council, he knew that the services, or any part of the services, mentioned in the bill were rendered by him in attempting to enforce payment of an illegal bill, or that those services, or any part of them, were not rendered on behalf of the village of Imlay City, then the defendant was justified in writing and publishing the article upon which this suit is based, and the plaintiff cannot recover.”

This last request was given down to and including the words “Imlay City;” the court adding the following:

“ Then the defendant had a right to criticise his action in presenting the bill. Now I am asked, gentlemen, to say to you by a request that the defendant had a right to publish the article, but I am not able to say that; at least, I think I am not. He had a right, though, to criticise if the bill was presented and was an illegal one — and Mr. Smith knew it was — because in that event the bill would not have been presented in good faith. But when he did criticise the plaintiff, if he did so, he must confine himself to statements of truth, and he must have made the statements that he printed in the articles he printed in good faith. Then, too, the article contains other statements than that of perjury in connection with this bill, and it is for you, gentlemen, to say, rather than the court, whether he was justified or not in criticising Mr. Smith for presenting this bill. All the court thinks he should say to you is: If'he did criticise the plaintiff in this case, he must confine himself to statements of facts that were true, or to legitimate arguments or reasons based upon a correct and true statement of the facts. It is for you to say whether he was justified in making these statements in these two articles, after considering all the circumstances shown by the evidence in this case and after considering all the .language contained in both articles themselves.”

It is said that these points were covered by the sixth and tenth requests, but we think not. The charge nowhere informed the jury explicitly that the village trustees were personally liable on the Michaels bill, and that for that reason the allowance of that bill was invalid, or that for the same reason the attempt to bind the city for plaintiff’s services was futile. As the learned judge intimated, these questions would not be conclusive of plaintiff’s right to recover, but they were facts which entered into the question, and if the • jury found that the action of the council in one or both cases was valid, it is not improbable that it affected the verdict to defendant’s injury.

Error is assigned upon the following language of the charge:

“ One of the charges contained in the first article (I am not trying to quote the exact language, but only in a-general way) charges the plaintiff, Herbert W. Smith, with perjury, and at first glance, and as I shall leave the case, you might possibly think that were true if you believe that the bill was an illegal one; but that does not necessarily follow. The bill may not have been a legal charge against the village of Imlay City — not one that the village was bound to pay as a legal proposition — and still Mr. Smith would not be guilty of perjury. Perjury is the willful making of a false statement or a false affidavit, knowing the same to be false. Now, Mr. Smith may have supposed in good faith that the bill was a legal charge against the village, and, if he did so, then it would not be perjury to swear to it, even if in truth and in fact the village was not liable; or if he were notified or told by all the officers to present the bill as a charge against the village, so that the village could be liable in that way, why then, it would not be perjury to swear that the bill was a claim against the village. So that, gentlemen, you will bear that question in mind, carefully considering whether it has been proven whether he is guilty of perjury.”

Of this defendant’s counsel say:

“The error alleged in the twenty-first assignment is manifest. The village trustees, by their own neglect of duty, had made themselves personally liable for the payment of certain bills. These trustees, with the assistance of the plaintiff, proposed to relieve themselves of this liability by paying the bills out of the village treasury. The services of the plaintiff in trying to compel payment of these bills were not rendered in behalf of the village, and, if the plaintiff swore to the bilL^it would be none the less perjurv if he were told by the village-officers to present the bill.”

We do not agree with the defendant in this, as all of his premises may have been true, and yet plaintiff have been innocent of perjury.

This ruling will dispose-of the alleged error in permitting the following cross-examination of the defendant, which is said to have been erroneously permitted:

‘ ‘ I learned, at the time the contract was entered into between the council and Hulburt & Co., that there had been no bond given. I was in the clerk’s office the next day after the council meeting* and saw the contract, and inquired about it of the clerk, and also Mr. Smith, who was in there at the time. I learned that they concluded that they would not have a bond. Mr. Smith said that he didn’t think it was necessary to have a bond. Until after this suit was brought, I never heard that Hulburt & Co. would not take the contract as cheap as they were taking it if they were required to pay the premium on the bond. I had in mind an indemnity bond, and not the statutory one. I did not know about a bond being required by statute until several months after that.
‘ c Q. Have you any doubt that the councilmen acted in good faith when they entered into that contract with Hulburt & Co. ? (Objected to as immaterial, irrelevant, and incompetent. Objection overruled. Exception for defendant.)
“A. No, I don’t know as I have any doubt. I understood that those people who had furnished material that had gone into that building had been unable to,get their pay from Hulburt & Co., and that, failing to get their pay from Hulburt & Co., they had filed these claims with the village council.
Q. Now, how" did you suppose these people were going to get their pay, if it was not paid either by the village council or by the trustees ? (Objected to as immaterial and incompetent. Objection overruled. Exception for defendant.)
A. I thought their only legal way to get it was out of Hulbert & Co. or the old trustees.
Q. In taking the position that you do, you drew a distinction between legal liability and moral liability, did you? (Objected to.)-
‘ ‘ Mr. Campbell: One objection and exception will cover all this examination. (Objection overruled. Exception for defendant.)
“A. I did not consider that the village was morally liable for it.
Q. Your idea was that, although the village had received the material in the construction of the building and the building stood there, an ornament to the village, and that the trustees would be obliged to pay it if the village didn’t; that there was no moral liability — moral obligation — on the part of the citizens there to pay that bill for that lumber ? (Objected to as incompetent. Objection overruled. Exception for defendant.)
“A. I felt tnat the village had no moral obligation to pay for it, if the village paid the contract price to Hulbert & Co.”

The court also said to the jury that:

“ The court instructs the jury that the charges in the articles complained of (meaning the first and second) read in your hearing are libelous per se — that is, in themselves. And if the defendant has failed to prove that the plaintiff was guilty of perjury, or of endeavoring by fraudulent means to obtain from the village treasury #69.87 for which the village of Imlay City was not responsible, or has failed to establish that the plaintiff attempted to loot the village treasury, or that he used his position of village attorney for the purpose of exacting illegal fees from the village of Imlay City, or that he was incompetent as an attorney, or has failed to show that he is a pettifogger, or that the plaintiff misled the council by means of dishonest advice, your verdict will be for the plaintiff, because each and every one of these statements, gentlemen, enumerated in this request, are held by this court to be libelous in themselves. So that unless the defendant satisfies you that they are true, all of them true, then your verdict must of necessity be for the plaintiff of at least nominal damages. Now, do not misunderstand me, gentlemen. It would not be sufficient for the defendant to convince you that one of those charges were true. Unless he satisfies you by proof that all of them are true, then the plaintiff is entitled to a verdict at your hands, because the plaintiff might have brought suit based upon any one of these particular statements alone, instead of bringing them all before you. Each and every one of these statements that are enumerated in this request are in themselves libelous, if untrue.”

There was no error in this.

The record shows that no evidence was offered to prove pecuniary loss, and defendant’s counsel requested the court to charge that:

“3. As the plaintiff in his proofs has not shown any pecuniary loss to himself as the result of the alleged libel, he cannot recover any damages in respect to his property, business, or profession.”

This was refused. The jury found a verdict of $400. Of this $300 was for injury to feelings and $100 for injury to character and business. It is conceded that plaintiff was not entitled to recover for damages to his business; but'the record shows that upon the day that the bill of exceptions was signed, and previous thereto, the plaintiff, through his counsel, filed an offer to remit the $100 item, and consented and requested an amendment of the judgment accordingly. This paper was filed against the protest of defendant’s counsel, who objected to any amendment and to the filing of the offer. No amendment was made. It is admitted that the request should have been given, but claimed that the error was cured. We need not determine this question, as the question is unlikely to arise again.

We are constrained to reverse the judgment and order a new trial. Ordered accordingly.

Blair, Montgomery, Ostrander, and Moore, JJ., concurred.


source: Caselaw Access Project

author:
Grant, J.
      Montgomery, J. Carpenter, C. J. Grant, J.

license: Public Domain

text:
    TONEY v. KNAPP.
    Licenses — Revocation—Operation op Law — Transfer of Servient Estate — Easements—Adverse Possession.
    In this case, involving the existence of a private right of way, which had its origin in a personal license, and which defendant claims by prescription because of adverse user for more, than the statutory period after transfer of the title of the servient estate by the original licensor, Mr. Justice Grant, with whom concur Justices Blair and Ostrander, writes for reversal, on the ground that the finding of the trial judge that the user was adverse after the transfer, was based solely upon the revocation of the license by the transfer, and the unauthorized presumption that the plaintiff’s grantors knew the legal effect of the transfer upon the license; Mr. Justice Montgomery writes for affirmance upon the ground that the transfer of the title operated to revoke the license and make further use of the right of way adverse, there being no presumption that the parties did not know their rights; and Mr. Chief Justice Carpenter, with whom concur Justices Moore, MoAlvay, and Hooker, writes for affirmance on the ground that the finding of the trial judge on the fact of adverse user is conclusive upon this court, and that the plaintiff’s intermediate grantors, on taking the title from the original licensor, were bound by the law to ascertain the fact and character of defendant’s possession.

      Error to Berrien ; Coolidge, J.
    Submitted January 20, 1905.
    (Docket No. 95.)
    Decided January 24, 1906.
    Trespass quare clausum fregit by George Toney against Ered Knapp. There was judgment for defendant, and plaintiff brings error.
    Affirmed.
    This case was tried before the court without a jury, and the following finding of facts and law made:
    “ In 1859 Wright Buzzard owned 80 acres in section 26, Berrien township. William P. Weed then owned 91 acres directly west of said 80 acres. Buzzard had no means of going from his farm to the public highway, running north and south'on west side of Weed’s land; and on March 3, 1859, he obtained a written license from Weed, by which the latter granted to Buzzard the right to use the south 20 feet of said 91 acres as a private road, leading from the Buzzard farm to the public highway. A few years later a public highway was built on the north side of the Buzzard and Weed farms, which connected with the north and south road mentioned above.
    “ Buzzard and his successors and grantees used said 20-foot strip as a private way from the Buzzard farm to the public highway continuously from 1859 to 1895.
    “ The plaintiff is the owner of the east 31 acres of said 91 acres, and derives his title from William P. Weed. Mrs. Sarah Knapp, the mother of defendant, became the owner of the Buzzard farm of 80 acres in 1872, and derived her title from said Buzzard through his grantees.
    “ Weed, the owner of the 91 acres over which the private way runs, died some time prior to 1876, and in that year his heirs conveyed the land to plaintiff’s grantor. The plaintiff has title to the east 31 acres of said 91-acre piece.
    “ In 1864 Buzzard conveyed his farm of 80 acres to one Tuttle, and from that time to 1895 Tuttle and his successors and grantees were in possession of said private way. This road appears to have been used openly, continuously, and exclusively by the said Buzzard and his successors and grantees from 1859 to 1895. The following concession is made :
    “ ' It is also conceded that Wright Buzzard and his grantees had possession, open, visible, and under claim of right, of the premises in dispute continuously until the highway was laid in 1884, and that they used it some from that time up to the time the fence was huilt in 1895, but did not use it as much as they did previous to 1884.’
    “ Sarah Knapp became the owner of the Buzzard farm in 1872 as a successor of Buzzard, and has since owned it.
    “ In 1895 the plaintiff, being the owner of the 31 acres referred to, closed up said right of way by building a fence across the same, and also built a fence along his south line inclosing said right of way with his land. Kingsley Knapp, acting for Sarah Knapp, shortly thereafter tore down such fence across the right of way. Toney then sued Kingsley Knapp in an. action of trespass, which is still pending in this court. The fence was rebuilt by plaintiff in 1895, and the right of way was not used afterwards by defendant, or those under whom he acted. The plaintiff maintained the fence, and was in the continuous, open, and visible peaceable possession of the land in question under color and claim of right, hostile to defendant and the parties under whom he held, and grubbed out the so-called right of way and raised crops on it, and was in such peaceable possession as aforesaid, from 1895 till the time of the alleged trespass in the spring of 1903, when defendant tore down the fence running east and west on the south line of plaintiff’s land, inclosing said right of way with his lands.
    “In the spring of 1903 the defendant, acting for Sarah Knapp, tore down the fence and removed it to the land of plaintiff. This is the act of trespass alleged by the plaintiff and for which suit is brought.
    “I find the following conclusions of law:
    “1. I find that the writing of March 3, 1859, entered into between Weed and Buzzard, was a personal license, and conveyed no rights running with the land.
    , “2. I find that such license became revocable by the death of Weed, and that consequently it was revoked as early as 1876.
    “3. I find that such license became revocable by the conveyance of Buzzard to Tuttle in 1864, and that Tuttle acquired no right to use said right of way by such deed.
    “4. I find that the use and possession of the private way from 1872 to 1895 by Sarah Knapp was open, visible, continuous, and adverse; that such possession was under a claim of right at least from the time of Weed’s death in 1876; and that, having continued for more than 15 years, the right to use such private way became vested in Sarah Knapp by prescription.
    “5. I find that the possession of said Sarah Knapp was not permissive, but hostile, under a claim of right, and that no written or express notice was necessary from Mrs. Knapp to the plaintiff or his grantors of such claim, as the plaintiff and his grantors must have known the character of her possession and acquiesced in it.
    “6. I find, therefore, that the defendant is not guilty of the trespass alleged in plaintiff’s declaration, and judgment is therefore rendered in favor of defendant and against the plaintiff for his costs of suit, to be taxed.”

      Coy W. Hendryx, for appellant.

      Charles E. White, for appellee.
   Grant, J.

(after stating the facts). The requisites of an adverse possession sufficient to transfer the title to land from one to another are well understood. .The facts found must clearly show a use nonpermissive and directly, openly, and notoriously hostile to the rights and possession of the original owner. Buzzard in 1859 obtained a license to pass over the land of Weed. It was revocable by notice or by operation of law. No notice was ever given. It is contended that the license was revoked by operation of law. Defendant contends that at the moment of revocation the continued use of the right of way by the licensee became open, hostile, and notorious, although no notice was given by the licensee, or act or word said to indicate to the licensor that the licensee intended to at once convert a permissive use into a notoriously hostile one. While everybody is presumed to know the law, it is not to be presumed that revocation by operation of law ipso facto transforms at once a permissive and rightful possession into a hostile one which may ripen into a title.

“A manifest intention to oust the real owner must clearly appear in order to raise an act, which may be only a trespass, to the bad eminence of a disseisin.” 4 Kent’s Commentaries, p. 487.

“A disseisin is when one enters, intending to usurp the possession and to oust another of the freehold. Therefore ‘quserondum est a judice quo animo’ he entered.” 1 G-reenleaf’s Cruise on Real Property, p. 51.

While it is true that the license was revoked by operation of law, it is also true that there is nothing in the finding of facts to justify the conclusion that either party supposed or understood that he was doing any more than continuing the use under the license. The transfer of title by the licensor, or his death, of course, operates in law as a revocation of the license. Probably few laymen in fact know this to be the law. If the licensee and the grantees of the licensor, or his heirs in case of death, supposed that the licensee was using the land under his license, and he made no other claim, can it be that such use and occupancy instantly became hostile, so that the licensee by such user acquired title by adverse possession ? This court said, in Eyer v. Beck, 70 Mich. 179, 181, that abstruse rules “ are often not much known to even the legal fraternity who have not had their attention called to them, and the unprofessional world is not familiar with law books.”

The maxim that “ every one is presumed to know the law ” applies to one’s acts which the law has made criminal, and to one’s liability upon his contract. It does not apply to cases where actual knowledge must be found as a fact. This court said, in Black v. Ward, 27 Mich. 191, at page 200:

“No man can avoid a liability, as a general thing, because he is ignorant of the law. This is an essential rule of society. But the law is not so senseless as to make absurd presumptions of fact. In Reg. v. Mayor of Tewksbury, L. R. 3. Q. B. 628, this supposed maxim was very clearly explained, and it was held that, where an actual knowledge was in question, the legal presumption could not supply it. Blackburn, J., uses this language:
“ ‘From the knowledge of the fact that Blizzard was mayor and returning officer, was every elector bound to know, as matter of law, that he was disqualified ? I agree that ignorance of the law does not excuse. But I think that in Martindale v. Falkner, 2 C. B. 719, Maule, J., correctly explains the rule of law. He says:
“ ‘ “ There is no presumption in this country that every person knows the law. It would be contrary to common sense and reason, if it were so.”
“‘In Jones v. Randall, 1 Cowp. 38, 40, Dunning, arguendo, says:
“ * “The laws of this country are clear, evident, and certain. All the judges know the laws, and, knowing them, administer justice with uprightness and integrity.”
“ ‘ But Lord Mansfield, in delivering the judgment of the court, says:
“ ‘ “ As to the certainty of the law mentioned by Mr. Dunning, it would be very hard upon the profession if the law was so certain that everybody knew it. The misfortune is that it is so uncertain that it costs much money to know what it is even in the last resort.”’”

In Reg. v. Mayor of Tewksbury, L. R. 3 Q. B. 628, B. was -the mayor and was a candidate for re-election, and presided at the election. He was disqualified for election, on the ground that he, a returning officer, could not re: turn himself. He had a majority of the votes. The claim was that the votes cast for him were absolutely void, as if they had been cast for a dead man, or with knowledge on the part of the voters that he was disqualified, and therefore the one having the next highest number of votes was elected. The court held that, while the voters were presumed to know that B. was mayor and returning officer, there was no presumption of knowledge that he was disqualified in point of law, and therefore the votes cast for him were not thrown away, so as to make the election fall on another candidate.

The defendant, in order to maintain his title, must prove that his possession was intentionally hostile to the title of the plaintiff, and his act of possession on which he relies must have been so open and notorious as to show knowledge in the plaintiff. Defendant’s claim rests entirely upon the presumption that he had in fact changed a permissive and rightful possession into a wrongful and hostile one, and that plaintiff knew of the change, when in fact there is nothing to indicate that either party even supposed that there was any change in the original conditions under which the defendant and his grantors had occupied the property. The presumption that every one knows the law cannot, in my judgment, be held to convert a permissive and rightful use into a wrongful and hostile one, without some act to indicate that the parties understand the changed conditions and their consequences, and either do or say something to clearly indicate a hostile intent. It does not appear that Buzzard or any of his grantees ever inclosed this right of way. If they did not, it was a part of the close of Mr. Weed and his grantees, who had no occasion to use the passageway. Only Buzzard and his grantees had occasion to use that. Therefore their use was open, continuous, and exclusive, but no more so after the death of Weed than before. Under such circumstances, we think it clear that there was no adverse possession, such as the law requires. President, etc., of Worcester Bank v. Insurance Co., 11 Cush. (Mass.) 265; Smith v. Hitchcock, 38 Neb. 104; Ann Arbor Fruit & Vinegar Co. v. Railroad Co., 136 Mich. 599 (66 L. R. A. 431); Hill v. Hagaman, 84 Ind. 287; 1 Cyc. pp. 1026-1030; City of St. Joseph v. Seel, 122 Mich. 70.

The defendant cites and relies mainly upon Eckerson v. Crippen, 110 N. Y. 585 (1 L. R. A. 487). The facts in that case are that one Caryl in 1837 obtained from one Crippen, in consideration of $10, the privilege to take water from a spring on Crippen’s land sufficient for all domestic purposes through a pipe to Caryl’s house. Caryl entered upon Crippen’s land, dug a ditch, and laid his pipe, through which' he took the water from the spring. Before the ditch was completed one La Moure, who contemplated building a dwelling house on land next to Caryl, agreed with Caryl for a part of the water, on agreeing to pay Crippen the $10 Caryl had agreed to pay, and to contribute towards the ditch and the pipe; but it does not appear that this agreement was carried out. Caryl and his grantees continuously used water from the spring for domestic purposes from 1837 to July, 1880. On August 20, 1839, La Moure purchased from Crippen one-third of an acre of land adjoining Caryl’s. The deed conveyed to La Moure the right to bring water from this spring sufficient to fill a three-quarter inch pipe, La Moure built his house, and in 1840 continued the pipe, laid by Caryl, into his (La Moure’s) house, where the same ever thereafter ran and was used for domestic purposes. The defendant was the owner of the La Moure .house, and succeeded to all the rights which La Moure .had in the water. Without entering further into the facts found by the referee, which are somewhat lengthy, the referee found that the use of the water by Caryl and his •grantees had been open, notorious, visible, and under a claim of right, adverse and continuous for 40 years, as against the defendant and all former owners of the La Moure house, and that such right had been acquiesced in by La Moure and his grantees for that period. The court in its opinion said:

“ There was no explanation found by the referee on the part of La Moure showing, or tending to show, that this user by Caryl was by virtue of any license from him (La Moure), and the acquiescence in such use by him and his grantees for 40 years shows a recognition on their part of the right of Caryl as exercised and claimed by him. This user was injurious to the property of La Moure in the water from the spring, because the size of the pipe which he was authorized to use in order to conduct the water would take all the water from the spring, and hence every particle thereof taken under a claim of right adverse to La Moure by any one else was an invasion to that extent of the rights of La Moure., Such a continued use of the water for more than 20 years, unexplained, gives a right to its continuance. No such explanation is found to exist. This adverse user, so long acquiesced in by those against whom it was claimed, and whose property in the water was thus and thereby injuriously affected, makes out a complete defense to the claim of La Moure and his grantees as now made to the sole and exclusive property in the whole water under the deed to La Moure. And this conclusion seems to us to be more consistent with the justice of the case than if, after so long an acquiescence in this adverse user, the right to take all the water should be found to still remain in La Moure or his grantees to the entire exclusion of the grantees of Caryl.”

The court further found that the revocation of the license to Caryl by Crippen became known to Caryl, and that thereafter the open, notorious use of the water, under a claim of right, as well against Crippen as all others, would inaugurate an adverse user as against the world. The decision of the court is based upon the fact, as found by the referee, that the use of the water by Caryl and his grantees had been “open, notorious, visible, under claim of right, adverse, and continuous for 40 years.” The relation of licensor and licensee never existed between Caryl and La Moure. La Moure did not claim any right to use this water by virtue of his arrangement with Caryl, but by virtue of his deed from Crippen. As between the plaintiff and defendant in that suit, therefore, there was no license to revoke, and consequently the question now before us.was not, as between them, involved. The referee found as a fact from the evidence, which is not all reported, that Caryl’s use and possession were adverse from the beginning. Where the facts are conceded or undisputed, adverse possession is a question of law for the court to determine. In this case the learned circuit judge did not find as a fact that the use was hostile and adverse, but found this as a matter of law from his finding of facts. If he had found as a fact that the use was hostile and adverse, without stating the evidence upon which the finding was based, that finding would be conclusive in this court. The sole finding upon this point is: “This road appears to have been used openly, continuously, and exclusively by the said Buzzard and his successors and. grantees, from 1859 to 1895.” Buzzard had the right under the license to use it openly, continuously, and exclusively, and, as above stated, there is no fact to indicate any element of hostility in such use to the plaintiff’s title. I do not think the findings of fact justify the conclusion of law that defendant’s use was hostile and adverse to the plaintiff’s title.

Judgment should be reversed, and entered in this court for the plaintiff for 6 cents damages and costs.

Blair and Ostrander, JJ., cóncurred with Grant, J.

Montgomery, J.

The facts as found by the circuit judge are set out in full in the opinion of Mr. Justice Grant. Under this finding, the question presented seems to be this: Where one enters upon land of another under a license, may such licensee set up a claim of title by adverse possession continued for the statutory period, after a revocation of the license by means of a conveyance by the licensor, without also showing distinct notice of an adverse claim to the owner of the seiwient estate,? The contention made on behalf of the appellant is that the owner of such servient estate has the right to assume that the occupant is in possession in recognition of his title. In my judgment, this contention does not take due account of the effect of the conveyance under which this plaintiff claims'. It is well settled that a conveyance of the land by the licensor operates ipso facto as a revocation of a license previously granted. Maxwell v. Bay City Bridge Co., 41 Mich. 467; Minneapolis, etc., R. Co. v. Marble, 112 Mich. 10; Eckerson v. Crippen, 110 N. Y. 585 (1 L. R. A. 487). The plaintiff and his grantees, when they derived title immediately or mediately through grants by the licensor, took title to the land free from any license, and must, if they are to be presumed to know the law, have known that any occupancy by defendant and his grantors was not in subserviency to plaintiff’s title. If the case were to depend upon notice of adverse claim to be implied by a transfer of the license by the licensee, the question presented might be somewhat more doubtful, as in such case an acceptance of a transfer of the license as such might imply a recognition of the title of the owner and of his right to terminate such supposed license at any future time by notice. Not so in case of a transfer by the licensor. Such transfer is, as we have seen, a revocation. The grantee knows thence that the licensee is occupying without right under the license, and that if he is (as in this case) occupying under a claim of right, his possession must be adverse to the true owner.

The case of Eckerson v. Crippen, supra, is, in its reasoning, quite instructive and quite in point. It is true the referee found, in that case, an adverse user by defendant as a fact, but it is manifest that he found such adverse user from the fact that the license had by the licensor been revoked to the knowledge of the licensee. In that case it was held that a transfer by deed of a right to take a quantity of water from a spring, which would constitute all that would flow therefrom, operated ipso facto to revoke a previous license to defendant to take a lesser quantity from the same spring. The court says:

“As there was only water enough to fill one pipe of three-quarter inch size, every drop taken by Caryl under his claim of right was a direct adverse user of that quantity of water belonging to La Moure under his conveyance.”

It is suggested by Mr. Justice Grant in his opinion that the. relation of licensor and licensee never existed between Caryl and La Moure in that case. So in the present case the relation of licensor and licensee never existed between the plaintiff and his immediate grantors and the defendant and his grantors; but it is a mistake to say that the question before us was not there involved. In that case Crippen’s license to Caryl was held revoked by Crippen’s conveyance to La Moure. In the present case Weed’s license to Buzzard was revoked by Weed’s conveyance to Knapp.

. But it is suggested that the parties might not know their legal rights, and that the rule that every one is presumed to know the law should be reversed in this casé, and not only this, but an inference not founded upon any finding be drawn that the parties did not know the law, and are to be presumed to entertain a belief that the license still continued. Such speculation leads us far afield. If we are to speculate as to the probable belief of the parties, why may we not as readily believe that the defendant understood that he had a perpetual right as to believe that plaintiff’s grantor undérstood that defendant was occupying under a license which did not, in fact, exist.

It is contended that, even though the defendants had acquired title by adverse possession, they cannot defend against this action, because they invaded the plaintiff’s possession. We agree with the circuit judge that one having title to property, and wrongfully denied possession, may enter if he can do so without committing a breach of the peace.

The judgment should be affirmed.

Carpenter, C. J.

I agree with my Brother Montgomery that the judgment in this case should be affirmed. I base this conclusion, not on the ground that there is any legal presumption that laymen actually know the law, but on the ground -that it is to be inferred from the findings of fact that Sarah Knapp, defendant’s mother and employer, acquired a right by prescription to use this way. It appears from the finding of fact that Mrs. Knapp and her grantors used this way “ openly and continuously and exclusively * * * from 1859 to 1895, * * * that Wright Buzzard [the original licensee] and his grantees had possession, open, visible, and under claim of right of the premises in dispute continuously until the highway was laid in 1884, and that they used it some from that time up to the time the fence was built in 1895.” The finding that the way was used “under a claim of right ” clearly implies to my mind that it was not used under the claim of the license, but, on the contrary, was used under a claim independent of the license. The proper construction of this finding, then, warrants the inference of a hostile user of the way for a period longer than is required to gain a prescriptive right.

My Brother Grant argues that this construction of the finding is wrong, because the learned circuit judge who tried the case in the lower court based his conclusion ‘ ‘ solely upon the revocation of the license by death and the transfer of title.” I think it is a sufficient answer to this argument to say that the circuit judge placed upon this finding the construction I place upon it. This is proved by the following quotation from his opinion:

It seems to be conceded that possession was held of this way under a claim of right. It is difficult for me to see what is meant by this concession, except that Mrs. Knapp was really in possession from 1876 to 1895 under a claim of right in herself which amounted to adverse possession.”

Neither does this construction impugn the intelligence of plaintiff’s counsel. It is to be presumed that he conceded only what he knew could be easily proved. Counsel displayed intelligence as well as candor by making such a concession. After making it, he could still contend, and did contend, that, the user having originated in a license, the statute of limitations did not commence to run, because the owner of the servient tenement had no knowledge of a hostile user. This contention is answered by saying such knowledge was acquired by plaintiff’s grantors, who, it appears from other findings, purchased the servient tenement in 1876 at a time when this way was 'continuously, exclusively, and adversely used. The law compelled these purchasers to acquire knowledge of the adverse claim of the user of the way. Howatt v. Green, 139 Mich. 289. The statute of limitations, therefore, commenced to run as early as 1876. A right by prescription was acquired long before the interruption of the user in 1895. Nothing has transpired since that time to defeat that right.

Moore, McAlvay, and Hooker, JJ., concurred with Carpenter, C. J.

Grant, J.

My Brother Carpenter has written an opinion for affirmance, the reason for which he states as follows:

“It appears from the finding of fact that Mrs. Knapp and her grantors used this way ‘ openly and continuously and exclusively * * * from 1859 to 1895, * * .* that Wright Buzzard [the original licensee] and his grantees had possession, open, visible, and under claim of right of the premises in dispute continuously until the highway was laid in 1884, and that they used it some from that time up to the time the fence was built in 1895.’ The finding that the way was used ‘ under a claim of right ’ clearly implies, to my mind, that it was not used under' the claim of the license, but, on the contrary, was used under a claim independent of the license.”

As I have already stated, the court' below did not find as a fact an adverse holding. . He found it only as a conclusion of law from the facts found. A possession open, continuous, and exclusive is not of itself hostile and adverse, especially where the original entry and possession are permissive. If I read the' findings of law correctly, the opinion of the learned circuit judge is based solely upon the revocation of the license by death and the transfer of title. The finding of fact by the judge makes no distinction between the possession of Buzzard and his grantees. The finding reads:

“ This road appears to have been used openly, eontinu-' ously, and exclusively by the said Buzzard and his successors and grantees from 1859 to 1895.” .

The judge does not find as a fact that the possession of Buzzard’s grantees was any more open, continuous, or exclusive than was the possession of Buzzard, or that it was based upon any other right or claim of right. Certainly Buzzard’s possession was not hostile or adverse. There is no finding that any grantee of Buzzard even supposed that he was occupying the land upon any other claim or right than that obtained and enjoyed by Buzzard.

The only other finding of fact upon this point is the concession, made by counsel for the plaintiff at the trial, that “Wright Buzzard and his grantees had possession, open, visible, and under claim of right,” etc. Counsel for plaintiff must be conceded to have the intelligence and common sense of at least a layman. The possession and claim thereunder conceded began with Wright Buzzard, and clearly, in my opinion, can be construed to mean nothing more than that Buzzard’s grantees continued apparently in the same possession and under the same claim that did Buzzard. Buzzard’s possession was open, visible, and under claim of right, based solely upon the license. If the defendant and her grantors claimed possession based upon any other claim of right than that obtained by Buzzard, it was her duty to show it, unless we hold that death or transfer of title ipso facto changed a peaceful and permissive possession into a hostile and adverse one.

Blair and Ostrander, JJ., concurred with Grant, J.


author: Blair, J.

text:
    SUPREME LODGE ORDER OF MUTUAL PROTECTION v. DEWEY.
    1. Insurance — Mutual Benefit Insurance — Beneficiaries.
    A stepfather, who was not a member of his stepdaughter’s household at the time of her death, though at a previous time he had boarded with her for a time, was not a member of her family, within chapter 73, § 1, Hurd’s Rev. Stat. 111. 1903, and the provision of a benefit certificate issued to her permitting the payment of the death benefit to a member of her family.
    2. Same.
    Where a benefit certificate provided that the rights of the beneficiary should be determined by the laws of the order in force at the death of the member, and at that time the laws of the order provided that, if the beneficiary designated proved to be an unlawful one, the wife or husband of the member should be recognized as the first claimant for the benefit, and the policy named as beneficiary the member’s stepfather, who was not a member of her family, her husband had a direct interest in the contract which he was entitled to enforce, though the association was willing to pay the benefit to the stepfather.

      Appeal from Muskegon; Russell, J.
    Submitted February 8, 1905.
    (Docket No. 112.)
    Decided January 24, 1906.
    Bill of interpleader by the Supreme Lodge, Order of Mutual Protection, against Theodore B. Dewey and Joseph W. Ducheney to determine title to the proceeds of a benefit certificate. From a decree for defendant Ducheney, Melvin J. Nevins, administrator of the estate of defendant Dewey, deceased, appeals.
    Affirmed.

      Cross, Lovelace & Boss, for appellant.

      William Carpenter, for appellee.
   Blair, J.

Complainant, a fraternal benefit society, organized under the laws of Illinois, filed its bill of inter-pleader against the defendants to determine the proper party to receive the amount, conceded to be due, of a benefit certificate issued to Myrtle M. Ducheney, who, at the time of her death, was the wife of defendant Ducheney.

The defendant Dewey was stepfather to Mrs. Ducheney, having married her mother in November, 1894. At the time of her marriage, Mrs. Dewey owned a home on Apple street in the city of Muskegon, where she, her husband, and her daughter Myrtle lived together as a family till some time in 1897, when Myrtle married a Mr. Folsgraf and removed with him to a house on Williams street in the same city, where they resided till the death of Mrs. Dewey in October, 1900. After the death of Mrs. Dewey, Mrs. Folsgraf and her husband moved into the Apple street home and Dewey boarded with them for about a month, when he moved into rooms in the Landreth block in said city. Mr. and Mrs. Folsgraf continued to reside in the house on Apple street till the death of Folsgraf, March 11, 1902, when Mrs. Folsgraf also moved into rooms in the Landreth block, where she remained for about two months, when she married the defendant Ducheney and removed with him to Chicago, where she remained until she died. The relations between defendant Dewey and his stepdaughter were very affectionate, as much so as though they were father and daughter, and she visited him very frequently after leaving his home, and, while living in the block, they went out to their meals together and she took a large part of the care of his rooms.

On July 13, 1900, Mrs. Folsgraf presented to Muskegon Lodge of complainant an application containing, among other things, the following:'

“ I hereby apply for a $1,000.00 Benefit Certificate, to be made payable to
Name of Beneficiary. Amount- of Relationship. Benefit.
William A. Folsgraf 38 Husband §500.00
Theodore B. Dewey 87 Stepfather 500.00
[Signed] “ Myrtle M. Folsgraf,
“ Applicant.
“Signature witnessed by R. G. Cavanaugh,
“ Medical Examiner.
“Residence of applicant, 159 Apple St.
“No. 17,813. Accepted as a beneficiary member, July 31, 1900.”

On April 5, 1902, Mrs. Folsgraf presented a request for a change of the certificate, as follows:

“ Application to be signed by every member who for any cause desires new certificate issued, including for a change of occupation or residence.
“To the Supreme Lodge, Order of Mutual Protection:
“I, the undersigned, to whom Benefit Certificate No. 17,813 was issued, do hereby cancel the same and request that a new one be issued to me for the sum of one thous- and dollars and payable to
Full name of Beneficiary Age Relationship to Member. Amount
Theodore B. Dewey 80 Father. $1,000.00
“Witness my hand and seal this 5th day of April, 1902.
“ Myrtle M. Folsgraf.
‘ ‘ I hereby certify to the signature and that the required fee was paid.
“--, Secretary of Lodge No.-.” ,

A policy was issued, the material portions of which are as follows:

“That upon satisfactory proof of the death of the within named member (Myrtle M. Folsgraf) being made to the order and in the manner required by its laws, provided he was on the date of his death in good standing and had while a member complied in every particular with the law of the order, there would be paid, subject to all conditions, provisions and restrictions of the laws of said order in force on the date of said death to her father, Theodore B. Dewey, one assessment upon the membership not exceeding the sum of one thousand dollars.
“ The express conditions upon which this certificate is issued are:
. “First. That the rights of the above-named beneficiary or beneficiaries shall be determined by the laws of the order in force on the day of the death of the member, and it is agreed that the order shall have the right to enact, amend, or repeal any of the laws of the order, and that the rights and benefits of said member and of his beneficiary shall be subject in all respects to any and all enactments, amendments or repeals of said laws hereinafter made, even though said rights or benefits, as they are now or may hereinafter be, are thereby affected.”

On February 11, 1903, Mrs. Ducheney wrote to Mr. Dewey from Chicago. The following are extracts from her letter:

“Chicago, III., Feb. 11, 1903.
‘ ‘ Dear Dewey: I received your letter and am glad to hear from you and to know you are better. You don’t know how I worried, for if anything should happen you I don’t know what I would do, for you are all I have left to stand by me now, and I know you always will, let come what will, and the day may not be so far away that’ I might need you. You don’t know what I would give to be home once more. It is just eleven months ago today that Will died and I have cried all day. Oh, you don’t know what I would give if I had him back. Dewey, life is almost unbearable to me. I have worried until I look as old as Aunt Hat. How I would like to see you, and you must come as soon as the boats begin to run. * * * Say, Dewey, about that policy, I went down with it Tuesday and they told me there wasn’t anything to do to it unless I wanted it changed in some one else’s name, and I don’t. I will keep it up in your name, and, Dewey, if anything should happen me promise that no matter where I am you will come and get me and have me buried with the rest. There will be enough to do that and have some left, and if you outlive me, there is more besides that, for when I am through with my home, it is yours, and when I come home this summer, I will have it fixed so I know you will ,get it after me; it belongs to you. And now about paying the insurance; there isn’t any use in me sending the money over there every month as long as Ella has it from the rent, so you go up there and take out what you want to. You can take one month at a time or two or three, just to suit yourself. I will write her about it so she will know it is all right, so let me know what to do with the policy, whether I shall send it back to you or not. * * * Well, I guess I have wrote all I can for this time, so I close, hoping to hear from you soon. I remain as ever your loving
“Myrtie.
“ Now don’t forget to tell me about that policy.
“ 1053 Robey and Fifteenth Street.”

Defendant Dewey paid all of the premiums on this policy except two after Folsgraf’s death; before that event he had paid one-half and Folsgraf the other half.

The benefit certificate was executed and issued in the State of Illinois. The provision of the Illinois statute applicable to this case is section 1 of chapter 73 of Hurd’s Revised Statutes of 1903, and reads as follows:

“Payment of death indemnities shall only be paid to the families, heirs, blood relations, affianced husband or affianced wife of, or persons dependent upon the member; provided that a member having no wife or children living may, with the consent of the society, make a charitable institution his beneficiary. ”

The by-laws of the complainant applicable to this case are as follows:

“ Sec. 191. Each certificate shall be made payable for the benefit of such member or members of the applicant’s family or for such person or persons dependent upon him, as he may designate by name.
44 Sec. 192. Should a member die without designating a beneficiary, or should the designated beneficiary die or prove to be an unlawful one, or should more than one person claim the same benefit, then the claimants for the benefit shall be recognized in the following order and no other: (1) Wife or husband; (2) children; (3) mother; (4) father; (5) brothers and sisters who are minors; and (6) brothers and sisters who are of age.”

The benefit certificate provides that all the laws of the order are made a part of the certificate, and that the rights of the beneficiary shall be determined by the laws •of the order in force on the day of the death of the member.

The lower court, after hearing the proofs and arguments -of counsel, made a decree determining that the defendant Ducheney was entitled to the entire fund; and, the defendant Dewey having died, his administrator prosecutes this appeal to this court.

The law is well settled that no person who is not of the class for whose benefit the association was authorized can be a beneficiary. The defendant Dewey, therefore, although named as the beneficiary in the benefit certificate, was not entitled to receive the fund, unless he belonged to the authorized class. His counsel claim that he did belong to such class, because he was a member of the applicant’s family, and cite in support of their contention: Carmichael v. Benefit Ass’n, 51 Mich. 494; Simcoke v. Grand Lodge A. O. U. W., 84 Iowa, 383 (15 L. R. A. 114); Spear v. Robinson, 29 Me. 531; Klotz v. Klotz, 15 Ky. Law Rep. 183; Folmer’s Appeal, 87 Pa. 133; Danielson v. Wilson, 73 Ill. App. 287; Carpenter v. Insurance Co., 161 Pa. 9 (23 L. R. A. 571). These authorities hold that the term 44 family,” in such statutes as the •one under consideration, is an expression of great flexibility.

4 4 It may mean the husband and wife having no children and living alone together, or it may mean children, or wife and children, or blood relatives or any group constituting a distinct domestic or social body.” Carmichael v. Benefit Ass’n, supra.

It may apply to blood relatives, even though living apart from the applicant and having families of their own. It may apply to those who are neither relatives by consanguinity or affinity, provided they are of the household of the applicant and maintaining the relations usual in families united by the ties of blood. Such was the Carmichael Case above cited. It may well be held that blood relationship makes one a member of the family having the common blood, regardless of his actual relations to the family and whether a member of the particular domestic circle or not, although there is high authority to the contrary. Elsey v. Relief Ass’n, 142 Mass. 224. But it would be going to an unwarrantable extreme to hold that a relative by marriage becomes a member of the family when not a member of the household nor maintaining the usual family relations. The Carmichael Case is not authority for such a holding. Other decisions of this court are opposed to it: Supreme Lodge Knights of Honor v. Nairn, 60 Mich. 44; Michigan Mut. Benefit Ass’n v. Bolfe, 76 Mich. 146; Cowin v. Hurst, 124 Mich. 545. At no time after the marriage of his stepdaughter in 1897 down to the time of her death was the defendant Dewey a member of the same household, except in 1902 when, according to his own testimony:

“I continued to live at 166 Apple street until Mrs. Dewey died. I remained there and boarded with Eolsgraf and his wife about a month after she died, and then took rooms in the Landreth block.”

Under such circumstances, we think the court below correctly held that Mr. Dewey was not a member of Mrs. Folsgraf’sfamily when either of the certificates was issued.

Counsel for appellant further contend that the association admitted its liability and was willing to pay the fund to Dewey, and that Ducheney had no such legal interest in the fund as to authorize his interference, since only the company can complain of a want of insurable interest, citing: Standard Life & Accident Ins. Co. v. Catlin, 106 Mich. 138; Hosmer v. Welch, 107 Mich. 470; Cowin v. Hurst, 124 Mich. 545; Supreme Tent K. O. T. M. v. McAllister, 132 Mich. 69; Johnson v. Van Epps, 110 Ill. 551, 562; John Hancock Mut. Life-Ins. Co. v. Lawder, 22 R. I. 416. If the contract in question were void as a wager policy, and when construed with the laws of the association simply provided for payment to the beneficiary named in the policy and no one else, we should concur in the proposition that the defendant Ducheney had no standing in the case, and that, if the company was willing to pay under its agreement, no one else could complain. But by the express provisions of this policy: “The rights of the above-named beneficiary or beneficiaries shall be determined by the laws of the order in force on the day of the death of the member,” etc. The laws of the order in force at the time of Mrs. Ducheney’s death provided, amongst other things, as follows:

“ Sec. 192. Should a member die without designating a beneficiary, or should the designated beneficiary die or prove to be an unlawful one, or should more than one person claim the same benefit, then the claimants for the benefit shall be recognized in the following order and no other: (1) Wife or husband; (2) children; (3) mother,” etc.

This by-law was a part of the contract of insurance as much as though its terms were written into the certificate. The policy provided in legal effect that the sum of $1,000 should be paid to Theodore B. Dewey; but, in case it should be determined that the money could not lawfully be paid to him, then it should be paid to Joseph Ducheney, her husband. The defendant Ducheney has a direct interest in this contract, which he is entitled to enforce.

The decree is affirmed.

Carpenter, C. J., and McAlvay, Grant, and Moore, JJ., concurred.


author: McAlvay, J.

text:
    WILKINSON v. HUTZEL.
    1. Licenses — Easement—Way of Necessity.
    A driveway established by the owners of adjoining lots for mutual convenience, one-half of the driveway being on each lot, is not a way of necessity, but a license revocable by either party.
    2. Easement — Adverse User — Effect.
    Where the owners of adjoining lots for mutual convenience established a driveway between the same, one-half thereof being on each lot, their acquiescence for a long term of years in such mutual user of the way did not create title in and to the land of the other in either party; there being nothing hostile or adverse in such user.
    3. Licenses — Revocation—Operation of Law —Transfer of Estate.
    Where the owners of adjoining lots for mutual convenience established a driveway between the lots, and thereafter the husband of the owner of one of the lots became the owner of the other, and his wife joined with him in a conveyance thereof, the conveyance operated as a revocation of the license to use the driveway as to purchasers from her of her lot. .
    Appeal from Washtenaw; Kinne, J.
    Submitted June 21, 1905.
    (Docket No. 45.)
    Decided January 24, 1906.
    Bill by Emma O. Wilkinson against Charles J. Hutzel, Matilda A. Hutzel, and William Copeland 'to restrain an encroachment upon a right of way. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Frank F. Jones, for complainant.

      Frank A. Stivers, for defendants.
   McAlvay, J.

Complainant, who is the owner of lot 12 in block 5, south of Huron street, range 7 east of Ann Arbor Land Company’s addition to the city of Ann Arbor, and claims a private right of way 10 feet wide between said lot and lot 11 next south thereof, one-half of which right of way is over and upon the north 5 feet of said lot 11, filed her bill of complaint asking that defendants Hutzel, who own and occupy lot 11, and defendant Copeland, their contractor and builder, be enjoined from obstructing, •excavating, and building upon the north 5 feet of said lot, thereby destroying said right of way. She claims that said way was established by agreement between the then owners of said adjoining lots, more than 30 years ago, and for that time has been continuously, openly, and notoriously used by her and her grantors, and the owners of said lot 11 in common, in connection with the building situated on said lots.

In Angust, 1859, Conrad Krapf, owner in fee of these lots, conveyed by warranty deed lot 11 to Asenath Amsden and lot 12 to Polly Ann Otis. These lots are located in the interior of the block facing Thompson street on the east. These grantees by an oral agreement for mutual convenience at once located a driveway 10 feet in width between these lots, one-half on each lot, running from Thompson street on the east, back to the west end of the lots, the same to be used in common by them. Pences were put up on each side of the way which flared out north and south at the west end so as to afford easy access to the adjoining barns which each owner built, at the west ends thereof. Gates were placed in these fences for the convenience of the owners. Prom 1859 to 1903 said driveway remained as then located and was used continuously' and uninterruptedly by all the occupants and owners of both lots for all purposes for which such a way would serve their convenience. There was a gate at the Thompson street end. These fences were maintained at least until 1877. There was also a cobblestone crossing at the entrance which was replaced by a cement crossing, after defendants’ grantor Sauer purchased, half of the expense of which was paid by complainant’s grantor. Mrs. Otis built upon lot 12 in 1859 and occupied the same personally or by her tenants until October 8, 1902, when she conveyed it by warranty deed to complainant, who is her daughter. In 1868 Mrs. Otis married Aretas Dunn. Dunn, through warranty deed, purchased lot 11, July 26, 1890. ■ On April 18, 1891, he sold and conveyed the said lot by warranty deed to George Henion; his wife, Polly Ann Otis Dunn, joining with him in the conveyance. By Henion’s representatives after his death, it was sold to Adam Sauer, who in May, 1903, by warranty deed, conveyed to defendants Hutzel and wife the north 33 feet in width of said lot. In none of these conveyances of these lots is there any grant or reservation of a driveway between them. After the sale by Sauer to defendants Hutzel and wife of the north part of lot 1Í, they proceeded to. excavate within 18 inches of the line between 11 and 12 for the purpose of building a house, destroying and obstructing all of the south half of this driveway in dispute. Notice was at once given to them to desist from such claimed trespass. Defendants disclaimed complainant’s right to interfere. She then filed this bill of complaint and secured a temporary injunction. Defendants answered and moved to dissolve the temporary injunction. This motion was granted, on the ground that the way was not one of necessity, and that complainant’s grantor by joining in the deed to Henion conveyed all her interest and was estopped from asserting any right or title to any part of lot 11. Upon the hearing of the case, the court took the same view and dismissed the bill of complaint.

It clearly appears from the proofs that this way was used by the owners of these adjoining lots in common for all the years since Krapf sold, up to 1903, but from the beginning it was an accommodation agreement between the parties for their mutual convenience. There was no hostile and adverse use by either owner as against the other. Nor does it appear that after the sale to Henion any claim was ever made by complainant or complainant’s grantor of any hostile or adverse interest or right in lot 11 by reason of the driveway. This right of way was not a way of necessity. It was simply a license revocable at any time by either pary. An acquiescence for a long term of years between adjoining owners in such mutual user of a way would not create title in and to the land of the other in either party for the reason that there was nothing hostile or adverse in such user. The deed to Henion would operate as a revocation of the license.

The decree of .the circuit court is affirmed with costs.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    MURPHY v. GRAND RAPIDS VENEER WORKS.
    1. Master and Servant — Safe Place to Work — Elevator Shafts.
    Act No. 113, Pub. Acts 1901, requiring in section 5 that hoisting shafts and well holes in manufacturing establishments be properly closed and secured, imposes a duty on manufacturers to protect their employés from the danger of falling down elevator shafts from the inside, and not merely a duty to prevent people from accidentally falling down an elevator shaft from the outside.
    2. Same—Assumption of Risk—Violation of Statute.
    A servant does not assume the risk due to an omission by the master of a statutory duty imposed on him for the protection of the servant. Sipes v. Michigan Starch Co., 137 Mich. 258, followed.
    3. Same—Contributory Negligence—Question for Jury.
    In an action for the death of a servant caused by his falling down an elevator shaft while moving a truck onto the elevator, whether the servant was guilty of contributory negligence; held, under the evidence, a question for the jury.

      Error to superior court of Grand Rapids; Newnham, J.
    Submitted June 22, 1905.
    (Docket No. 46.)
    Decided January 24, 1906.
    Case by Maggie Murphy against the Grand Rapids Yeneer Works for the negligent killing of plaintiff’s intestate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.
    , B. M. Ferguson (Taggart & Taggart and McKnight 6 McAllister, of counsel), for appellant.

      Bundy, Travis & Merrick, for appellee.
   McAlvay, J.

Defendant owned and operated a veneer manufactory in the city of Grand Rapids. In the four-story building known as “ Mill No. 1,” in which this business was conducted, was an elevator used in connection with the business, located in a brick shaft outside and on the south side of the factory. The south wall of this shaft is built thicker at the base than at the top. The elevator platform is 14 feet in length north and south, and 7 feet in width east and west. At the first floor this platform fills the entire shaft. At the third floor, on account of the wall being not so thick, there is a space between the south end of the platform and the south wall 14 inches wide by 7 feet long. Thirty-three inches above the platform of the elevator when at this floor, there is fastened, as a stay upon the top of the sides of a sliding door frame which project up from the story below, a board 4 feet 9 inches long, and 3f to 5 inches wide. It extends east and west, and its south edge is 8 inches north from this south wall. This sliding door closes an opening in the south wall of the elevator shaft in the story below. The shaft was well lighted. The elevator platform was smooth, matched flooring.

Plaintiff’s decedent had worked for defendant company three months. He had charge of and operated this elevator for about six weeks, and, with another man, during this time, worked in taking stock up and down the elevator from one floor to another to and from the dry kilns. A truck was used to carry the material. It was 17 inches high, and upon the top or body, which was 61 inches long by 39 inches wide, were laid two boards about 10 feet in length and 9 inches wide, placed two feet apart. Plaintiff’s decedent was within a few days of 20 years old, weighed 140 pounds, and was of slender build. He was a steady and ordinarily intelligent workman. On April 20,1903, while engaged in this work with the elevator at the third floor, the accident occurred. The elevator was locked, and this young man was starting to go down after another load of stock, and was drawing the truck onto the elevator with his back towards it. He whistled to his partner to go down with him. He was stooping over with his hands holding the boards on the truck, pulling it. He was backing slowly and carefully. He suddenly disappeared, falling through this opening on the south side of the shaft about 50 feet to the bottom. He died in a few hours from the injuries received from the fall. Nobody saw exactly how the accident occurred. The witness Post, who was coming toward the elevator, was looking directly at him, and was the only one who saw him at the time he fell, and, after describing what decedent was doing and locating him about two feet from the opening, he testified:

“He seemed, as near as I noticed as he was getting toward the back of the elevator, as though he was shortening his steps, more kind of sliding his feet along, instead of walking back as he started. I saw him start to fall; that is, I saw him disappear.”

This witness had come from Mill No. 2 upon the bridge connecting it with No. 1, and at the time was about 10 feet away from the elevator. Another witness, Prank Leslie, who was on this third floor at the time of the accident, described the elevator and this opening. He said that the opening through which Murphy fell was of no use or benefit in carrying on the business; that it was the custom to either push or pull the truck onto the elevator, just as happened to be most convenient, according to where the person stood who was doing it. At this time witness was standing 10 or 12 feet away from the elevator. He saw Murphy pulling the truck onto the elevator. He says Murphy whistled for his partner, Smith, who was about 60 feet away; that he took hold of the ends of the boards on the truck which were ■ 8 or 10 feet from the elevator, and pulled it on; that the elevator was'locked at the time of the accident. He said:

“ Mr. Murphy was about two feet from the opening through which he fell when I last saw him, and was pulling the truck on the elevator very moderately. He was a cool, deliberate worker. * * * I heard him whistle, and I turned to his partner and whistled to call his attention, * * * turned my head, whistled, and turned my head back again, not more than 15 or 20 seconds. He was gone. I heard no cry from him or any one.”

As to the construction and dimensions of this elevator shaft and platform, and the size and location of this opening through which Murphy fell, there is no dispute. At the close of plaintiff’s case, defendant by its counsel requested that the court direct a verdict for defendant, on the ground that deceased, as appeared from the evidence, had assumed the risk of his employment, and was guilty of contributory negligence. Such verdict was accordingly directed, upon the ground that Murphy had assumed the risk of the employment.

In determining the question as to whether the doctrine of the assumption of the risk by the servant is to be applied in this case, we must first consider whether or not a statutory duty, under section 5 of Act No. 113 of the Public Acts of 1901, was imposed upon defendant, a neglect of which duty resulted in the injury to plaintiff’s decedent. That part of section 5 of this act which is claimed to impose this duty provides:

“Sec. 5. It shall be the duty of the owner, agent, or lessee of any manufacturing establishment where hoisting shafts or well holes are used, to cause the same to be properly inclosed and secured. ”

The other provisions of the section relate to the requirement of automatic doors or gates at all elevator openings, and for the annual inspection by State officers of elevator apparatus. The contention of defendant is that this statutory duty imposed was clearly for the purpose of preventing people from accidentally falling in from the outside. May it not be said that the legislature considered the safety of employés whose duty brought them continually in contact with these dangerous places on the inside as well as on the outside of elevators ? That the legislative intent was to protect everybody who might be in danger of injury ? If the construction insisted upon by the defendant is given, then this elevator shaft built out.side the building with doors opening into it from the different floors was properly inclosed and secured, and no further duty was imposed upon defendant. No argument is necessary to show that an opening 14 inches wide and 7 feet long between the edge of an elevator platform and the wall of the shaft, if not inclosed, is an unsafe and dangerous place to every person who goes up or down on that elevator. If the statute requires only such inclosure and security as will prevent people from the outside from falling in, then this space between the platform and the wall might be of any dimensions. In the case at bar it may be well said that this shaft on the south side was never inclosed and secured. This space was left by building a lighter wall for the upper stories. It was of no use or necessity for the conduct of business. But whether a shaft is built within or without a manufactory, our construction of the statute is that it required such shaft to be properly inclosed and secured to protect all who had occasion to use it, and that in this case that statutory duty had not been performed by defendant.

This court has held that the assumption of risk by the servant arises from the contract of employment, and the doctrine cannot be applied where a statutory duty has been neglected, for the reason that a master cannot legally contract to violate a statute. Sipes v. Starch Co., 137 Mich. 258, citing Narramore v. Railway Co., 37 C. C. A. 500 (48 L. R. A. 68). Upon this question these cases-rule the case at bar. The court took the case from the jury upon this question, and was in error.

It is urged that the plaintiff was guilty of contributory negligence, and could not recover in any event. As this question will be raised again upon a new trial, it is given consideration. Whether Murphy’s feet slipped upon the smooth floor of the platform, or whether in his stooped position he bumped against the board fastened to the top of the sliding door frame and his feet slipped back, or exactly how the accident occurred, does not appear. No evidence was introduced by defendant, and, from the evidence in this record of the acts of Murphy immediately preceding the accident, we cannot determine as a question of law that he was guilty of contributory negligence. There was sufficient evidence in the case to warrant the submission of that question to the jury.

The judgment of the superior court is reversed, and a new trial ordered.

Blair, Montgomery, Ostrander, and Hooker, JJ.„ concurred.