author: Grant, O. J.

text:
    VAN ORMAN v. LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY CO.
    1. Appeal and Error — Review—Question of Fact — Liability of Joint Defendants.
    Where, in an action against two railroad companies for injuries to a passenger in a collision at a crossing, there is evidence of negligence on the part of both companies, and the jury were not asked to determine whether one of the defendants was ■guilty and the other not, a general verdict for the plaintiff will be sustained as against both defendants.
    2. Carriers — Railroads—Injuries to Passenger — Collision at Crossing — Negligence—Evidence—Sufficiency.
    In an action against two railroad companies for injuries to a passenger in a collision at a crossing, evidence examined, and held, sufficient to sustain a verdict against both companies.
    3. Same — Crossing Railroads — Care Required — Mechanical Devices — Adoption—Effect.
    It is the duty of railroad companies and their trainmen to take all possible precautions at railroad crossings to protect passengers from injury from collisions and this obligation is hot lessened by the adoption, compulsorily or voluntarily, of mechanical devices tending to obviate such collisions.
    4. Same — Negligence—Railroad Track as Warning of Danger.
    A railroad track is just as much a warning of danger to a train approaching on another road as it is to a traveler upon the highway, and it is.the duty of the trainmen to watch for passing trains, and, if they see danger, to use every precaution to protect their passengers by stopping their own train if it is possible to do so in time to avoid a collision.
    5. Same — Negligence of Joint Employé.
    In an action against two railroad companies for injuries to a passenger in a collision at a crossing, evidence examined, and held, sufficient to go to the jury on the question of the negligence of the towerman in charge of the interlocker, a joint employé of both companies.
    6. Same — Evidence—Order op Railroad Commissioner — Admissibility.
    Error is not assignable by one of the companies on the refusal of the court to permit it to read to the jury the order of the railroad commissioner approving the interlocker and regulating the speed of trains over it, against objection by counseL for the other company whose train was exceeding the speed limit, the evidence being conclusive that both companies customarily ignored the order, and the liability of the complaining company being predicated upon the negligence of its engineer in failing to discover the approaching train on the other road.

      7. Same — Duty at Crossing — Freight Trains.
    Operatives of a freight train are under obligation to use as high a degree of care in approaching a railroad crossing as are those in charge of a passenger 'train, being as likely to collide with a passenger train as with another freight train, and human life being at stake in either instance.
    8. Appeal and Error — Review—Question op Fact — Exoessiveness op Damages.
    A verdict for plaintiff in a personal injury case will not be set aside as excessive where the testimony bearing upon the question of damages is not all before the court, there is evidence of permanent disability and great suffering, and a motion for new trial upon the same ground has been denied by the trial court.
    Error to Lenawee; Chester, J.
    Submitted February-36, 1908.
    (Docket No. 158.)
    Decided March 31, 1908.
    Case by Clayton M. Yan Orman against the Lake Shore & Michigan Southern Railway Company and the Wabash Railroad Company for personal injuries. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Herbert B. Clark, for appellant Lake Shore & Michigan Southern Railway Co.

      Smith, Baldwin & Alexander, for appellant Wabash Railroad Co.

      Charles E. Townsend and Bird & Sampson, for appellee.
    The defendants’ roads cross each other at right angles at Raisin Center, Lenawee county, — the Lake Shore running north and south and the Wabash east and west. On the night in question the Lake Shore was going north and. the Wabash going west. The Wabash train consisted of 19 loaded freight cars and 10 empties, drawn by a 100-ton engine. The Lake Shore was a passenger train, consisting of a combination baggage and express car, a combination mail and smoker and two coaches, drawn by a 50-ton engine. The crossing was a flag station, and the Lake Shore was running from 8 to 5 miles an hour and was intending to stop. The freight train was running at a speed of 22 miles an hour, or more.
    Plaintiff was a passenger on the Lake Shore road and was in the smoking car. He saw the light of the Wabash engine and it seemed to him as though it was coming direct towards the car in which he was. He attempted to move in order to avoid danger, and just as he got into the aisle the impact came, he was thrown onto the back of a seat, hit by flying debris and seriously injured.
    There was a standard interlocking plant at this crossing which is conceded to have been in good condition at the time. This plant had been approved by the railroad commissioner, and by the order of the commissioner freight trains were allowed to pass the crossing at a speed of 8 miles an hour, and passenger trains at 12. There is evidence that the Wabash train was derailed at the derailer located 800 feet from the crossing, and that it passed over the ties and frozen ground until it reached the Lake Shore track, where it was struck by the Lake Shore engine between the cab and the rear of the tender. None of the cars of the Lake Shore were derailed except the front end of the baggage car. The Lake Shore engine, after the accident, lay partly on its side parallel to the Wabash track. Both the engineer and fireman of the Lake Shore were killed.
    Plaintiff sued both roads, claiming that each was guilty of negligence, — the Wabash through its engineer’s failure to observe the signals that the plant was at block against him, and the Lake Shore through its engineer’s failure to keep proper watch for the Wabash train and avoid the accident by stopping before the intersection had been reached.
    Upon the trial it was developed that the Wabash claimed that the signals were first set by the towerman for a clear track to its train. If this was so it must follow that he changed the signals and set the interlocker for the Lake Shore. Plaintiff was then permitted to amend his declaration alleging a third ground of negligence, to wit: The negligence of the towerman in changing the signals, claiming that the towerman was the agent of both roads, and that both were jointly and severally liable for his negligence. A general verdict was rendered against both defendants.
   Grant, O. J.

(after stating the facts). There is no evidence that this interlocking plant was not in good condition. If it was in good condition it could not possibly be set clear for one road and also open as to the other. It follows that some one seriously and negligently blundered, and that one or both of the defendants are liable to the plaintiff for the injuries he received. The plaintiff’s case was easily made. On the trial the contest developed into strenuous efforts on the part of each defendant to cast the blame for the accident upon the other.

As to the defendant the Wabash Eailroad Company, there is evidence that the interlocker was at block against its train; that the signals were properly set, and that its engineer disregarded them; that its train was derailed at the derailing point; that there were marks of the wheels over the ties from |he point of derailment to the Lake Shore track; that the towerman saw the Wabash train going off over the derail; that he swung his lantern violently to call the attention of its engineer, but that his warning was disregarded; that the levers in the towerhouse after the accident showed that the plant was set for the Lake Shore to pass, and was at block against the Wabash. The defendant the Wabash Eailroad gave evidence tending to show that it whistled to the towerman for the signals; that the signals were given by the towerman and showed a clear track for its train; that its train was not derailed by the interlocker; that its engine and cars did not leave the rails until its engine or water tank was struck by the Lake Shore engine; and that it was well nigh impossible for the towerman to change the interlocker in so short a time from signals for its train to signals against it and in favor of the Lake Shore. Sixty-five pages of the brief for the Wabash Eailroad is occupie'd with excerpts from the testimony and argument to sustain its claim. It makes a strong but not conclusive case. The evidence is in sharp conflict. There is sufficient evidence to sustain a verdict that each defendant was guilty of the negligence charged against it. The jury were not asked to determine whether one of the defendants was guiltless and the other guilty. Both chose to submit the case to the jury for a general verdict. There being evidence-from, which it can legitimately be inferred that each contributed by its negligence to the accident, the verdict must be sustained against both. This conflicting evidence was sufficient to carry to the jury the question of its negligence.

To hold that the Lake Shore is free from fault would be to hold either that the engineer saw the Wabash train coming and did all in his power to stop his train before the collision, or else that, having the right of way, he was under no obligation to watch for trouble on the other road. His view was clear for a long distance, and he could easily have seen, had he looked, that the Wabash engine was within prohibited territory. The establishment of these interlockers does not operate as a guaranty that the train may pass with absolute safety when the engineer sees signals for clear track. Human contrivances are not absolutely certain to avoid danger, and employes are not always careful. The use of appliances, compulsorily or voluntarily, to avoid danger, does not take away the duty of those using them to take all possible precaution to protect the lives and persons of those they have in charge. This obligation is not lessened by the adoption of mechanical devices which tend to obviate these ' collisions. There is evidence that the Lake Shore passen-' ger train usually stopped to discharge or take on passengers before the engine had reached the Wabash track at the diamond or interlocker. There is evidence that had the engineer seen the Wabash train approaching, he had ample time to stop his train, which was going very slowly, and avoid a collision. He owed to his passengers the highest degree of care.' A railroad track is just as much a warning of danger to a train approaching on another road as it is to a traveler upon the highway, and it is the duty of the trainmen to watch for passing trains, and, if they see danger, to use every precaution to protect their passengers by stopping their own train if it is possible to do so in time to avoid a collision. Pratt v. Railway Co., 38 Minn. 455; Schneider v. Railroad Co., 133 N. Y. 583.

Thompson in his Commentaries on the Law of Negligence, Yol. 2, § 1965, says upon this subject:

* ‘ Clearly, the engineer of the former train will not be justided in driving his train forward upon the crossing, if it becomes reasonably apparent that those in charge of the train approaching on the other road are not going to stop, * * * but in such a case he must stop his own train before it reaches the crossing, if he can do so.”

Under these circumstances the negligence of the defendant the Lake Shore Company became a question of fact for the jury.

The towerman was the joint employéof both defendants. He had the entire control of this interlocker for both roads. His negligence is attributable to both. This position does not appear to be contested by either. The argument on the part of the defendant Lake Shore is that there was no evidence upon which to base a finding that the towerman changed the signals from the Wabash Toad to the Lake Shore road. It is not claimed that the signals did not show a clear track to the Lake Shore. The towerman testified positively that he set the signals at block against the Wabash and to show a clear track for the Lake Shore. Counsel for the Lake Shore strenuously argue that it was impossible for the towerman to change the signals after they had once been set for the Wabash. Either the engineer of the Wabash disregarded the signals or the towerman changed the signal, or the interlocking device was defective and showed a clear track to both trains. I do not think that there is any evidence that it was defective. If the jury believed the testimony of the engineer and fireman of the Wabash, there could not well have been a change; but we cannot say that it was impossible that the towerman first saw the Wabash train and at a glance thereafter saw the Lake Shore and promptly changed the signal. The jury were the proper ones to determine this question. They had the witnesses and all the facts and circumstances before them. This question, however, is of very little importance to the Lake Shore, for whether the towerman did or did not change the signal, the duty of the engineer of its train to look for the Wabash train was the same. The duty to watch and stop its train, if the- danger could have been foreseen, is the same whatever the cause of the approach of the freight train.

Error is assigned on behalf of the Lake Shore in that the court refused to permit them to read to the jury the order of the railroad commissioner approving the interlocker and regulating the speed of trains crossing it. The objection to this was made by counsel for the Wabash road. The testimony conclusively shows that neither road paid any regard to the order of the commissioner of railroads fixing the speed at which their trains could cross this interlocker. A locomotive engineer of the Lake Shore road, with 34 years’ experience, testified that it was the •general custom of the trains upon that road to run over interlockers “just as fast as we were amind to; sometimes 15, sometimes 25, and sometimes 40 miles an hour.” The evidence on the part of both roads conclusively shows that this order of the railroad commissioner was ignored. It follows that the engineer of this train on the Lake Shore road was cognizable of this custom. The order of the commissioner therefore could not have operated as any excuse on the part of the engineer of the Lake Shore to lessen his obligation to watch for approaching trains. The order was inadmissible for another reason. The Lake Shore’s liability on this branch of the case depended upon the question whether, by the exercise of proper care, the engineer could have seen the approaching freight train, should have known that it was violating its signals, was liable to collide with his own train and could have stopped his train in time to avoid it. This question is unaffected by the order of the railroad commissioner prescribing the speed.

It is urged on behalf of the Wabash Railroad that it was not under obligation to exercise so high a degree of care, having no passengers, as was the Lake Shore road with a passenger train. We think this claim is without merit. At these crossings a freight train is as apt to collide with a passenger train as with another freight train. In both human life is at stake. Those in charge of the freight train were therefore under obligation to exercise the same caution and care in approaching this crossing as were those in charge of the passenger train. Both train crews were under the like obligation. Each had the same opportunities for observation. Had the Wabash road complied with the order of the commissioner as to speed no collision would have occurred.

Both defendants made motions for a new trial on which were reargued most of the questions now before us. In addition each asked for a new trial on the ground that the verdict was excessive. We have not before us all the evidence bearing upon the question of damages. Two physicians on behalf of the defendant Wabash Road examined the plaintiff, and testified, but their testimony is not in the record. There was evidence of permanent disability and great suffering. We are entirely satisfied with the statements and conclusions of the circuit judge upon this point.

There are many other assignments of error upon the admission and rejection of testimony, upon the refusal to give requests, and upon the charge of the court. They have all had due consideration. To discuss each question would take many pages, and would not be of service to the profession. The theories of all the parties, which there was evidence to sustain, were explicitly stated by the court to the jury. The requests, so far as applicable, were given to the jury in the oral charge, and the charge very definitely explained to the jury the issues in the case and the law applicable to them. It is sufficient to say that we find no error upon the record, and the judgment is affirmed.

Hooker, Moobe, Cabpentee, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
      In re DOWELL’S ESTATE.
    1. Evidence — Declarations—Res Gestae — Will Contest.
    On the issue whether certain deeds should be admitted to probate as the will of the grantor, testimony as to what was said by him at the time the papers were drawn is a part of the res gestee and is competent.

      2. Same — Opinion Evidence — Mental Capacity.
    Refusal to permit witnesses to express an opinion that a testator was incompetent is proper in the absence of testimony qualifying them to express such an opinion.
    8. Wills — Mental Incapacity — Undue Influence — Evidence— Sufficiency.
    In a proceeding to have certain deeds admitted to probate as the last will of the grantor, evidence examined, and held, in view of the undisputed testimony that the grantor went to the scrivener alone and gave him directions as to what should be done and also went alone and got an old acquaintance to go to the scrivener and act as a witness, that there was nothing to go to the jury on the questions of mental incapacity and undue influence.
    4, Same — Deeds Intended to Operate as Will — Admission to Probate.
    Papers in form warranty deeds but containing a provision that they are not to become operative during the lifetime of the grantor and intended to operate as a will are in fact a will and properly admitted-to probate as such.
    Error to Monroe; Lockwood, J.
    Submitted February-26, 1908.
    (Docket No. 161.)
    Decided March 31, 1908.
    David, William, and Howard Dowell presented three deeds for probate as the last will and testament of Jacob Dowell, deceased. The will was allowed in the probate court, and Francis Dowell appealed to the circuit court. There was judgment for proponents on a verdict directed by the court, and contestant brings error.
    Affirmed.

      Thornton Dixon and Smith, Baldwin & Alexander, for appellant.

      Bird & Sampson, for appellees.
   Moore, J.

Francis Dowell, a son of deceased, on April 7, 1906, presented to the probate court for Monroe county his petition in the usual form for the appointment of himself or some other suitable person administrator of the estate of his father, Jacob Dowell. David, William, and Howard Dowell, the other sons, constituting, with petitioner, the sole heirs of Jacob Dowell, thereafter presented their petition, alleging that Jacob Dowell left three • papers in the form of warranty deeds which they claimed constituted his last will, and which they asked to have allowed as such. The probate court allowed the deeds as the will of Jacob Dowell. Francis Dowell, appellant, appealed from the allowance of these deeds as the last will of his father. Each deed contains the following: “This conveyance is not to become operative during the lifetime of said first party [Jacob Dowell].” The case was tried in the circuit court. After the testimony was all in the judge directed the jury to find a verdict in favor of proponents. The case is brought hereby writ of error.

Testimony was admitted as to what was said by Mr. Dowell at the time the papers were drawn. A motion was made to strike out this testimony. The motion was overruled. This is said to be error. No objection was made to the admission of the testimony. Counsel for contestant examined the witnesses fully in relation thereto. The testimony was part of the res gestee, and was competent; see Leonard v. Leonard, 145 Mich. 563.

The court declined to allow Moses Dowell and his daughter to express an opinion that Jacob Dowell was incompetent. This is said to be error. We have read the testimony of these witnesses with care, and find nothing therein which would qualify them to express such an opinion. See Fraser v. Jennison, 42 Mich., at page 227; O'Con nor v. Madison, 98 Mich. 183; People v. Borgetto, 99 Mich. 337; Buys v. Buys, 99 Mich. 357; In re Estate of Lefevre, 102 Mich. 568.

It is said error was committed in refusing to submit the case to the jury on either the theory of undue influence, or want of mental capacity. The testimony is undisputed that Mr. Dowell went to the scrivener alone and gave him directions as to what he wanted done. He also went alone and got an old acquaintance of his to go to the scrivener to act as a witness. We have had occasion recently to discuss the question of testamentary capacity, and the question of undue influence, in Leffingwell v. Bettinghouse, 151 Mich. 513. It is not necessary to repeat here what was said in that case. We shall content ourselves by saying there was nothing to show want of testamentary capacity, nor was there anything to show undue influence.

The instruments offered for probate though in form deeds under the proofs in the case constituted in fact a will. Bigley v. Souvey, 45 Mich. 370; Lautenshlagerv. Lautenshlager, 80 Mich. 285; Ferris v. Neville, 127 Mich. 444 (54 L. R. A. 464); Lincoln v. Felt, 132 Mich. 49; Clay v. Layton, 134 Mich. 337, and cases there cited.

Judgment is affirmed.

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


author: Hooker, J.

text:
    ASHLEY v. SMITH’S ESTATE.
    1. Work and Labor — Claim Against Decedent’s Estate — Contract — Evidence—Sufficiency.
    On the trial of a claim in behalf of a daughter against her father’s estate for services rendered in caring for him and her mother, evidence examined,' and held, that though no person testified to the terms of .a contract made in his presence between deceased and his daughter, there was testimony-concerning the nature of the illness of the persons cared for, its duration, the protracted services rendered, the circumstances under which they were commenced and continued, and statements of decedent in relation thereto, from which the jury might have inferred that claimant’s services were rendered in performance of an agreement to that end, and sufficient to overcome any presumption that her care was the natural gratuitous service common between parent and child.
    2. Executors and Administrators — Claims—Evidence—Admissibility.
    On the trial of a claim in behalf of a married woman against the estate of a deceased person for services rendered, her husband may be permitted to testify that he gave his consent that she should perform the services and make the contract with decedent therefor.
    3. Husband and Wife — Contract by Wife for Services — Validity.
    Where a husband gave his consent to his -wife to her making a contract to render services to her father, it was not essential to the validity of the contract that her father should know she had such consent.
    4. Witnesses — Competency—Transactions With Persons Since Deceased.
    The son-in-law of a deceased claimant against the estate of her father, who is also her administrator and whose wife is her sole heir, is not personally interested in the claim, and may testify to the condition of the father at a particular time against the objection that the fact was equally within the knowledge of the deceased.
    Error to Lenawee; Chester, J.
    Submitted February-26, 1908.
    (Docket. No. 160.)
    Decided March 31, 1908.

      Ira W. Ashley, administrator of the estate of Hattie J. Bugbee, deceased, presented a claim against the estate of Moses B. Smith, deceased, for services rendered. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. There was judgment for claimant, and defendant brings error.
    Affirmed.

      John L. O'Medley and Smith, Baldwin & Alexander, for appellant.

      Grant Fellows and Bird & Sampson, for appellee.
   Hooker, J.

Moses B. Smith was a farmer, residing near Adrian. His daughter, Harriet, married William Bugbee, who for a time worked Smith’s farm, when they removed to a place of their own. About Christmas, 1894, Mrs. Smith was stricken with paralysis, while she and her husband lived upon this farm. Hattie Bugbee was sent for, and remained there two or three weeks, during which time an arrangement is said to have been made whereby Bugbee and his wife, Hattie, and their two chil-' dren moved to Smith’s farm, Bugbee manáging it on shares, and Mrs. Bugbee caring for her father and mother. Mrs. Smith was a helpless invalid until her death on January 25, 1896, and Mr. Smith required nursing after January 1, 1898, until December 1, 1902, when Mrs. Bugbee sickened and soon died. After Smith’s death Ira Ashley was appointed administrator of the estate of Hattie Bug-bee and filed a claim on behalf of said estate against the estate of Smith for Mrs. Bugbee’s services. The claim was disallowed by commissioners and upon appeal a jury in the circuit court allowed the claim at $520. It is now before us, having been brought here by the representatives of the estate of Smith.

The questions raised on this record may be grouped as follows:

(1) Was there any evidence that a contract was made between Mrs. Bugbee and her father ?

(2) Was there error in the admission of such evidence ?

(3) Were there errors in the charge ?

(4) Other questions arising upon the trial.

Proof of a contract. • No witness has testified to the terms of a contract made in his presence between Mrs. Bugbee and her father. If there was such a contract there may have been no one present, or if present, they may have been precluded from testifying by the statute. There is testimony, however, of the. nature of the illness of Mr. and Mrs. Smith, its duration, Mrs. Bugbee’s protracted services, the circumstances under which they were commenced and continued, and much testimony of statements of Smith in relation thereto from which the jury may have found sufficient to lead them to believe that Mr. and Mrs. Bugbee’s occupation of the premises and her care and labor were in performance of an agreement to that end, and to overcome any presumption that her care was the natural gratuitous service common between parent and child. There was evidence from which a jury might reasonably find that both father and daughter understood and expected that compensation would be made for such services. It is. unnecessary to’ be more specific, and sufficient to add that there was evidence for a jury upon this question, if there was no other reason for withholding such questions from the jury.

Admission of evidence in support of the claim. This claim was the claim of Mrs. Bugbee. It was maintained by defendant that, being a married woman, she could have no such claim, for the reason that her husband was entitled to her services, and she could not make a contract on her own behalf without his consent. He was called to prove such consent and testified to his consent to his wife that she might make arrangement with her father and mother for caring for them.' The many and repeated objections to this were properly overruled. The transaction did not take place in Smith’s presence, and was not within' his personal knowledge. It is urged by defendant’e counsel that such contract would not be good unless Smith did know of this, but we think 'this point is not well taken. If she had the right and was competent to make such contract on her part, and he did make it on his, it would bind him whatever he may have thought about it.

The charge. Enough has been said to indicate that the judge did not err in refusing to direct a verdict for the defendant. Error is assigned on a large number of requests to charge. Of these, some would be more appropriate in counsel’s argument than in a charge, in which a judge is expected to avoid indicating what evidence is particularly important, others were fully and more effectively covered in the charge. Upon the whole, the charge was clear and eminently fair, and much more likely to be understood than as though it had consisted of the requests of counsel. All important points suggested by counsel were covered, and omissions to charge where not requested, if any, do not appear to have been excepted to.

Other questions. Mr. Ashley, the administrator, was Mrs, Bugbee’s son-in-law, the husband of her daughter, who was her heir. He was asked: “What was the condition of Mr. Smith during the time you knew him ? ” An objection that this testimony was inadmissible under the statute as equally within the knowledge of the deceased was overruled, and he answered: “ Well, I knew him, he was a feeble old man.” He then proceeded to narrate conversations with Smith. This was not responsive to the question, but no attempt to stop him was made, nor was there any motion to strike out the testimony. We are of the opinion that this testimony was admissible. The witness had no personal interest in the claim.

It is unnecessary to discuss other assignments as we find nothing in them justifying a reversal or of interest to the profession generally.

The judgment is affirmed.

Grant, O. J., and Moore, Carpenter, and McAlVAT, JJ., concurred.


author: McAlvay, J.

text:
    DETROIT & MACKINAC RAILWAY CO. v. ALPENA CIRCUIT JUDGE.
    1. Statutes — Construction—Legislative Intent.
    Having ascertained that a certain legislative intent extended to all the provisions of a statute, the court will so construe the statute as to make such intent effective as to the whole, if it can do so without doing violence to express terms of the statute.
    3. Replevin — Custody of Property — Person Entitled — Statutory Provisions.
    The legislative intent in enacting the amendment of 1899 (Act No. 246) of the statute (section 10658, 3 Comp. Laws) relative to the custody of replevined property was to put the parties in replevin cases upon equal footing; and the provision therein for an order awarding custody to a party pending suit if the property “has an especial value to him” was intended to be for the benefit of the plaintiff as-well as for defendant, not to be defeated by the filing by defendant within 48 hours after appraisal of the bond therein mentioned.
    3. Mandamus — Certiorari—Propriety—Replevin.
    Mandamus and not certiorari is the remedy to review an order of the circuit oourt awarding custody pendente lite of property the subject of an action of replevin.
    Mandamus by the Detroit & Mackinac Railway Company to compel Frank Emerick, circuit judge of Alpena county, to vacate an order awarding the custody of certain hides pending an action of replevin.
    Submitted March 5, 1908.
    (Calendar No. 22,693.)
    Writ denied March 31, 1908.

      Charles B. Henry (O'Brien & Francis, of counsel), for relator.

      Frank D. Scott, for respondent.
   McAlvay, J.

This application arises from certain proceedings awarding the possession of property in a replevin case pending in the circuit court for Alpena county, wherein the Alpena Hide & Leather Company is plaintiff, and relator is defendant. The suit was brought by plaintiff to obtain possession of three carloads of dry hides, of the value of $7,500, shipped to plaintiff at Alpena from Monterey, Mexico, by rail. There was a dispute between the parties relative to certain advanced charges against the property. Plaintiff claimed that the charges were excessive, made a tender of a portion, and sued out his writ, January 6, 1908, and the sheriff replevined the property. The property was duly appraised and on January 7th plaintiff gave the sheriff the statutory replevin bond. On January 8th, and within 48 hours after the property was appraised, the defendant executed and delivered to the sheriff a bond conditioned as provided by law, with two sureties acceptable to the sheriff. On receiving this .bond, it is claimed by relator that the sheriff surrendered possession of the property so replevined to the defendant. And upon this claim its entire contention in this proceeding rests. The construction of Act No. 246, Pub. Acts 1899, is involved.

Relator has demurred to the answer of respondent upon the grounds:

That respondent did not allow all the amendments proposed by relator to his return.

That the return is not sufficient in law to meet the claims of relief set forth in the petition.

Under the first ground are seven specific complaints relied upon. Upon these we are requested, if we discover disputes of fact, to frame issues for determination. These amendments were all passed upon by the respondent under section 9969, 3 Comp. Laws. If relator was entitled to frame issues of fact (a point upon which we express no opinion), they should have been prepared and proposed by it with notice to the opposite party, and presented to this court for framing, such issues to be tried in the manner provided by section 9971, 3 Comp. Laws.

An examination of the entire record in this case discloses that these are matters entirely immaterial to the determination of the question before us, and if issues had been presented this court would for that reason have refused to frame them. There is no dispute upon this record as to what has been done. The question is purely a question of law.

The statute for construction is section 10658, 3 Comp. Laws, as amended by Act No. 246, Pub. Acts 1899. This section before amendment read as follows:

“Section 11. If the plaintiff shall fail to cause such bond to be executed and delivered to the officer, within twenty-four hours after the appraisal of such property, the officer shall return the same to the person from whom he took it.”

As amended this section reads:

“Section 11. If the plaintiff shall fail to cause such bond to be executed and délivered to the officer within twenty-four hours after the appraisal of such property, or if the defendant or some one in his behalf, at any time before the delivery of the property to plaintiff, shall execute a bond to such officer and his assigns, with the addition of his name of office, with sufficient sureties, to be approved by such officer, in a penalty not less than one hundred dollars, and at least double -the appraised value of such property, conditioned, * * * the officer shall return the property to the same person from whom he took it; and the property shall in no case be delivered to the plaintiff without the consent of the defendant in writing, until the expiration of forty-eight hours after the appraisal thereof, and notice of such appraisal shall be given to the defendant: Provided, That if either party before the delivery of the property by the officer to the opposite party shall make and present to such officer an affidavit setting forth that the property replevied, or any part thereof, has an especial value to him that cannot be satisfied in money, together with a notice in writing that the question of the custody thereof will be submitted to the judge of the circuit, or a circuit court commissioner of the county, at a time and place therein stated, not exceeding five days from the date thereof, and shall serve upon the opposite party, or his attorney, a copy of such affidavit and notice, at least two days before the time of hearing mentioned, the officer shall retain custody of such property until the time mentioned in such notice, and until the order of such judge or commissioner thereon. Such judge or commissioner, on proof of service of said affidavit and notice, shall hear the claims of the respective parties and, by order under his hand, award the possession of such property, pending the suit, to either party, on the execution of a bond as herein required, as he shall deem just,” etc.

In the case at bar the property was taken on the writ and appraised.

The return of respondent shows that:

‘ ‘After the property was taken upon the writ and appraised, both the plaintiff and defendant in due season gave the sheriff the bonds provided for by section 10658, 3 Comp. Laws, as amended by Act No. 246, Pub. Acts 1899.”

The details of such proceedings and the steps taken by plaintiff in replevin to obtain an order from respondent awarding it the possession of the property are stated in the return as follows:

“The property on January 6, when the writ issued, was in three cars of the defendant standing on its tracks in the railway yard in Alpena. These ears were sealed with the general seal of the defendant, and also with the station seal. At the request of the sheriff defendant removed the seals and opened the cars to permit an appraisal to be made. The appraisal was completed at 5 o’clock, and notice thereof given to defendant at 5:30 o’clock on the afternoon of January 6th.

“The cars were then resealed by defendant as before, and remained in the same condition and place undisturbed by any one until January 13th. At noon of January 7th the plaintiff delivered to the sheriff its bond in due form in double the appraised value of the property with sufficient sureties. On January 8th, at 20 minutes before 3 o’clock in the afternoon, the attorney for the defendant delivered to the sheriff its bond in a proper penalty with sureties approved by that officer, and informed him that the railroad company wanted the property and demanded that the sheriff turn the cars back to such railway company, and requested the sheriff to notify Mr. Reeves [the station agent] to that effect. The sheriff then went over and found Mr. Reeves in defendant’s ticket office * * * and then and there said to him, that he had received such bond and, ‘ The hides are yours again — you can do what you like with them.’ Thereupon the sheriff returned up town and not later than 3:30 o’clock informed Mr. Scott, attorney for plaintiff, that such bond had been given by defendant. Mr. Scott thereupon told the sheriff he would prepare the affidavit and give-notice of the present application, at the same time asking the sheriff to go back and inform Mr. Reeves that he would continue to hold the hides in his possession until an order for the custody of the goods could be obtained upon such hearing. The sheriff went immediately back to Mr. Reeves and asked him not to move the hides, saying: ‘ Those hides are to be held here. ’ Whereupon Mr. Reeves informed him that so far as he was concerned personally he had no intention of moving the hides. That the hides would not be moved unless he got orders, and that he didn’t expect any such action. At 5:30 o’clock the notice and affidavit of which copies are annexed to relator’s petition herein, were served upon the sheriff, and about one-half hour later upon Mr. Reeves.”

After stating these facts respondent in his return proceeds :

“ Upon the forgoing facts I did hold that such application was made in time, and was not barred by such an actual delivery of the property by the sheriff to defendant as is contemplated by and within the meaning of Act No. 246, Pub. Acts 1899.

No doubt the defendant may under the terms of this act at once after notice of appraisal tender his bond to the sheriff. He may do this even before the expiration of the 24 hours given the plaintiff in which to deliver his bond to the sheriff, and at any time thereafter up to 48 hours after notice of appraisal.

But it by no means follows that, if he does, the sheriff may quietly turn over the property to defendant, and defeat an application by the plaintiff under this most remedial statute. Under such a construction the statute should be repealed for it may be rendered nugatory by mere trickery. The statute means that plaintiff may make this application at any time during the 48 hours after appraisal in which the defendent may tender a bond.”

The hearing was had, and on January 13th, under his construction^ thestatute, respondent awarded the custody of the property, pending the suit, to the plaintiff. The sheriff on the same date in accordance with such order delivered the property to the plaintiff.

Relator contends that the application for this hearing came too late; that the property had already been delivered to defendant by the sheriff, a proper statutory bond having been received and accepted by him, and therefore the respondent had no jurisdiction to act in the matter.

The amendment of 1899 added certain new features to the law governing actions of replevin in circuit courts. Section 10, which is not amended, requires plaintiff to furnish a bond before the officer shall deliver him the property replevined.

Section 11, before amendment, provided that if the plaintiff failed to furnish the required bond within 24 hours after appraisal the officer should return the property to the person from whom he took it.

Section 11, as amended, provides that if the plaintiff shall fail to furnish such bond within 24 hours after appraisal, or if the defendant or some one in his behalf at any time before the delivery of the property to the plaintiff shall deliver a certain bond to the officer, the property shall be restored to the person from whom it was taken. It also provides that in no case shall the property be delivered to the plaintiff, without the consent of the defendant in writing, until the expiration of 48 hours after the appraisal thereof and notice of such appraisal given to the defendant. It further provides that either party, before the delivery of the property by the officer to the opposite party may by affidavit and notice served on the officer ask for a hearing to determine the custody to the property during the pendency of the suit.

The changes by amendment are given in the order in which they occur in the statute. The legislative intent was to put the parties in replevin cases upon an equality. Formerly a defendant could not retain possession of property by furnishing security if plaintiff delivered his bond within 24 hours. Under the present law defendant may furnish his bond at any time before the expiration of the 48 hours mentioned. Under the old law plaintiff received the property at any time within the 24 hours when his bond was delivered. Under the law as amended in no case may the property, without' defendant’s consent in, writing, be delivered to plaintiff until the expiration of 48 hours after the appraisal and notice thereof to defendant. By these amendments the clear legislative intent was to put the parties in these replevin cases upon such footing that their rights were equally protected so as to give one no advantage over the other, and the presumption is that such intent extended to all the provisions of the section.

The remaining new provision, relative to an application by either party, before the property had been delivered to the opposite party, for an order awarding the custody to the property pending the suit, if it has “ an especial value to him that cannot be satisfied in money,” in terms was intended to be for the benefit of the plaintiff as well as the defendant.

Having ascertained that a certain legislative intent extended to all the provisions of this legislation, it is the duty of the court to make such intent effective as to the whole, if it can do so without doing violence to express terms of the statute. The construction urged by relator surely would not carry out the legislative intent we have pointed out. On the contrary, as expressed by respondent, the defendant can, in every case, by filing his bond at any time within 48 hours after the appraisal, deprive a plaintiff of all benefit of this provision. Such certáinly was not the legislative intent, and such construction can only be based upon the assumption that the officer may at once deliver the property to defendant upon the receipt of his bond. Construing all of the provisions of this section together, we think that it is clear that it was intended that the plaintiff should have the benefit of this last provision, and that after filing his bond within 24 hours he had the entire balance of the 48 hours during which he must wait before possession of the property could be given him, in which to make his application for possession pending suit, and that during this time the property remains in custodia legis. Our construction of the clauses relied upon by relator “at any time before the delivery of the property to the plaintiff,” and “before the delivery of the property to the opposite party,” is that they mean at any time before the property may be lawfully delivered under this statute; that any delivery of the property to either party before the expiration of 48 hours after appraisal, except where defendant consents in writing, is unauthorized. Such construction gives effect to a clear legislative intent. We agree with respondent, that in this case the act of the sheriff did not, and could not, amount to such a delivery of the property as is contemplated by, and within the meaning of, the amended section.

We do not agree with counsel for respondent that certiorari and not mandamus is the proper remedy.

The writ is denied.

Grant, O. J., and Blair, Montgomery, Ostrander, Hooker, Moore, and Carpenter, JJ., concurred.


author: Blair, J.

text:
    FITZGIBBONS v. IONIA CIRCUIT JUDGE.
    Bill of Exceptions —Settlement — Extension of Time — Propriety.
    Where nonresident heirs desired to promptly take an appeal from an adverse judgment on appeal from probate court, but were in good faith advised by their attorney that the administrator de bonis non to be appointed was the proper party, and relied upon his advice, and an order extending the time to settle the bill of exceptions, made on motion of the administrator, who had not been formally made a party to the record, was set aside for want of proper notice, there was no abuse of discretion in treating a further motion by the ad- ■ ministrator as made in behalf of the heirs and extending the time as prayed.
    Mandamus by Sarah J. Fitzgibbons to compel Frank D. M. Davis, circuit judge of Ionia county, to set aside an order granting an extension of time to settle a bill of exceptions.
    Submitted March 17, 1908.
    (Calendar No-22,628.)
    Writ denied March 31, 1908.

      R. A. & W. E. Hawley, for relator.

      A. A. & H. A. Ellis,- for respondent.
   Blair, J.

Relator having appealed from a decree of the probate court to the circuit court of Ionia county, secured a verdict in her favor, upon which judgment was entered October 16, 1906. On the 19th day of November, 1906, the court determined that each of the parties should recover their costs out of the estate. April 10, 1907, appellant’s costs were taxed, on notice, at the sum of $106.30. By the decree appealed from, made November 15, 1905, the relator was removed from the office of executrix, determined not to be the legal widow of William Fitzgibbons, and Elvert M. Davis was appointed in her place. Mr. Davis refused to qualify, and, on March 13, 1907, Mr. R. A. Colwell, the present administrator, was appointed administrator de bonis non and qualified.

•The appellees, residents of New York, children and heirs at law of William Fitzgibbons by a lawful wife, whose death is claimed to have validated appellant’s theretofore void marriage to their father, desired, from the time of the judgment in favor of relator, to appeal as quickly as possible to this court, but were advised by their attorney that it was the duty of the administrator to take the appeal and he was the proper person to take it.

A bill of exceptions on behalf of the administrator was prepared and served by the attorney for the administrator on the appellant’s attorneys May 18, 1907, and an order was entered June 1, 1907, extending the time for settlement thereof, which was afterwards set aside for want of proper notice.

July 3d, the attorney for the administrator, who also represented the appellees, made a motion, based on affidavits, for an extension of time to settle the bill of exceptions. Afterwards, the appellees, by said attorney, orally joined in this application for an extension of time. The motion was granted; respondent has refused to set it aside; and relator applies for a writ of mandamus to require respondent to vacate such order.

Respondent returns, amongst other things, the following:

“In addition to what appeared by the affidavit of R. A. Colwell, Mr. Ellis stated that it had always been the intention of the parties to take the case to the Supreme Court; that he had advised the New York heirs that the administrator de bonis non, when appointed, would have full authority to settle the bill of exceptions and take the case to the Supreme Court for review, that he had advised the heirs that it was the duty of the administrator, in the interest of the creditors and said estate, to have the case reviewed in the Supreme Court.

“ That Mr. Hawley had taxed the costs of this court for Mrs. Fitzgibbons in April, and was trying to have the same allowed as the part of her final account. That he had never given notice to tax the costs of appellees because they did not believe that the judgment and finding was correct, and, if reversed, the order would fall; that the heirs called his attention to the matter directly after the trial, and at all times, and at every time, that he had insisted that the administrator should take the case to the Supreme Court, and to show the court that his clients had never thought of dropping the cáse, he read a number of letters from William Fitzgibbons and two letters from Grace Dibble, urging that the case be hurried through the Supreme Court. One of the letters from William Fitzgibbons stating: ‘ I want you to get that case through the Supreme Court right away or get out of the case.’ Mr. Ellis stated that the only delay was occasioned by his advice, that he gave the advice in good faith and had he not been of the opinion that the administrator when appointed was the proper party to act, a bill of exceptions would doubtless have been settled promptly after the trial; that his clients were in no way to blame, and that inasmuch as everybody knew.that he intended to take the case to the Supreme Court, and as there had been no settlement of the estate and couldn’t be any rightfully until the whole proceedings which had been conducted by Jennie Fitzgibbons had been looked over and investigated, and the defendant’s account allowed, and it being insisted by Mr. Hawley that the New York heirs were not parties and had been dilatory in their action. Mr. Ellis, then, in the interest of the heirs of New York, asked that the application be treated as the application of the New York heirs and the administrator.

“After hearing the statement of counsel, hearing the letters and affidavits, examining the assignments of error attached to the bill of exceptions, I was of the opinion that the New York heirs had acted in good faith, and that Mr. Ellis had given his advice in good faith, and it was the wish of the heirs in New York, as well as the administrator, to take the case to the Supreme Court, that the New York heirs had counseled with and relied on Mr. Ellis’ advice, and as there had been no change in the condition of the estate, and that there were questions affecting the estate, that the questions raised were meritorious, and that the bill could be settled in a very short time, and that the case could be heard in the Supreme Court without unnecessary delay to the settlement of the estate, and thereupon this respondent made an oral statement substantially as set forth in relator’s petition.”

The administrator de bonis non was not formally made a party to the record and no applications for extension of time were made previous to that above mentioned.

The circuit judge’s conclusion was as follows:

‘ ‘ I concluded, under all the circumstances appearing to me at the time, that good cause was shown for the delay that had been occasioned, that the application for settling a bill of exceptions was meritorious, and that substantial justice would be done by permitting the case to be taken to the Supreme Court, as appears by this return.”

We think there was a proper foundation for the exercise of the court’s discretion, and that it was not such an abuse of discretion to treat the motion on the part of the administrator as made in behalf of the heirs as to require the granting of the writ. Roach v. Wayne Circuit Judge, 117 Mich. 242; Merriman v. Jackson Circuit Judge, 96 Mich. 603.

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


author: Montgomery, J.

text:
    COMSTOCK v. ALPENA CIRCUIT JUDGE.
    Venue — Change—Application—Time—Court Rule — Construction.
    Circuit Court Rule No. 58, prescribing the time within which applications for change of venue shall be made, is limited in its scope to proceedings in court, and has no application to proceedings taken under sections 10105 et seq., 8 Comp. Laws, which may be taken before a circuit court commissioner of the county where the suit is pending or the judge of an adjoining circuit.
    Mandamus by Andrew W. Comstock and another to compel Main J. Connine, acting circuit judge of Alpena county, to grant a change of venue.
    Submitted March 24, 1908.
    (Calendar No. 22,747.)
    Writ granted March 31, 1908.

      Joseph H. Cobb, for relators.

      Charles B. Henry, for respondent.
   Montgomery, J.

Relator made application to the respondent to order the transfer of a case pending in the circuit court for the county of Alpena to another circuit. The proceedings taken were under the act entitled, “An act to provide for the transfer of causes - from one circuit to another, in certain cases,” and embodied in sections 10105 et seq., 3 Comp. Laws. The showing made was that the circuit judge of Alpena county was within the degree of affinity which would exclude a juror from sitting in the cause, and complied with the requirements of the statute referred to. The application was refused for the reason that it was not made within 10 days from the date of joining issue, and it was held for this reason not to comply with Circuit Court Rule 58.

In 1905 a statute was enacted, Act No. 309, Pub. Acts 1905, which was amendatory of the statute providing for a change of venue, this act providing in section 10 that for certain causes “courts may change the venue of any criminal action pending therein, * * * and shall change the venue of any civil action pending therein upon the application of either party.” This statute has never been held to have abrogated the statute first above referred to.

In view of the abuses to which Act No. 309, Pub. Acts 1905, was open, the court, in February of 1906, adopted Circuit Court Rule 58 which provided:

“Motion for a change of venue in any civil cause shall be entered and notice of hearing ‘‘served within ten days after the cause shall be at issue, unless the moving party shall make it appear to the satisfaction of the court, that the facts upon which the application is based have come to his knowledge after the time above limited,” etc. 137 Mich, xxxvii.

This rule was not-intended to abrogate the provisions of section 10106, 3 Comp. Laws, nor does it in terms conflict with that section. Circuit Court Rule 58 relates of necessity to court proceedings, and it was adopted under the authority vested in this court to provide rules of practice for the circuit court. It is limited in its scope to proceedings in court, while section 10106 authorizes an application to be made to a circuit court commissioner of the county where the suit is pending or to the judge of an adjoining circuit. Rule 58 therefore has no application to such proceedings, and the circuit judge was in error in refusing the application on this ground.

Mandamus is now asked to require him to take action and to direct a transfer of the cause, and a writ in this form will issue.

Ostrander, Hooker, Moore, and Carpenter, JJ., concurred.


author: Carpenter, J.

text:
    WILLIAMS v. FOX.
    1. Landlord and Tenant — Landlord’s Title — Estoppel op Tenant — Collusion With Adverse Claimant.
    One who obtains possession of land by collusion with the tenant of another is, like the tenant, estopped to deny the possessory right of that other.
    2. Adverse Possession — Tax Title Holder — Collusive Possession.
    The holder of a void tax title cannot invoke the statute of limitations in favor of an occupation of the land following possession obtained by collusion with the tenant of the original owner, such possession not being adverse.
    Appeal from Muskegon; Sessions, J.
    Submitted February 24, 1908.
    (Docket No. 29.)
    Decided March 31, 1908.
    Bill by Orlin D. William^ against Florence M. Fox to quiet title to land. The defendant filed an answer in the nature of a cross-bill for the same relief. From a decree for complainant, defendant appeals.
    Reversed, and decree entered for defendant.

      Cross, Lovelace & Boss, for complainant.

      Philip W. Kniskern (Stephen H. Clink, of counsel), for defendant.
   Carpenter, J.

This is a controversy over the ownership of certain land situated in the county of Muskegon. Each party claims to be the owner. Complainant is in possession. He holds a tax deed which is and which he concedes to be void. His claim is however that he has acquired title by an adverse possession of five years under said deed. Defendant is the holder of the original title. Each party seeks a decree directing a conveyance from the other party. The trial court granted relief to complainant. Defendant appeals. Does the testimony establish complainant’s claim of an adverse possession of five years under his tax deed ?

Complainant’s tax deed was applied for in March or April, 1897. It was executed August 2, 1897. At that time the land in controversy belonged to defendant’s sister (who subsequently conveyed to defendant) and it was in the possession of complainant’s father and mother as tenants of the owner. The owner resided outside the State. She had an agent — a Mr. Hendricks — who lived in the neighborhood. At the time complainant purchased the tax deed he lived in Lowell in this State. He testifies that the latter part of May or the first of June he went to Muskegon county — taking with him some household furniture — for the purpose of taking possession of the land under his tax deed; that his father and mother informed him that they had been notified to leave the premises; that the next day after he arrived they did leave, carrying their household effects with them, and in about eight hours returned as his tenants. They remained on the place until some time the next year when his father died. Complainant himself moved on the place with his family in April, 1898, and has remained there since that time. No notice was given to the owner of the land of this alleged change of possession, and it does not appear that he knew of complainant’s claim until July, 1902. Neither was there any notice given to the agent, Hendricks. But complainant testifies:

“He [Hendricks] saw me that day. My people were moved when he went by. I was cutting some wood when he went by, at the end of the house. My stuff was then unloaded.”

It does not appear, however, that Hendricks knew that complainant’s parents had moved, and in this connection it should be stated that complainant’s testimony respecting the alleged notice to quit was hearsay and had no tendency to prove that the notice was actually given. Nor was the circumstance that complainant was cutting wood of any consequence. For prior to that time, as complainant testifies, he “ would go there and stay a few days and get up some wood.” There is in the foregoing testimony nothing to indicate that prior to July, 1902, the owner had either actual or constructive notice, of the adverse nature of complainant’s possession. In the absence of such notice, was the possession adverse ? We think not.

The arrangement made with his father and mother, whereby complainant acquired possession, was obviously collusive. After the making of that arrangement, as well as before, the father and mother continued to be the tenants of the real owner. They were estopped from disputing the possessory right of the real owner, and so, too, was complainant estopped from disputing that possessory right. Bertram v. Cook, 44 Mich. 396. Under these circumstances, it cannot be said that complainant held possession by virtue of his tax deed. He held possession as tenant, and that possession was in no sense adverse to that of his landlord, the real owner. He could not, therefore, invoke the statute of limitations. That statute did not run in his favor. Pulford v. Whicher, 76 Wis. 555.

Authorities which hold that a tenant may attorn to the real owner have no application. Complainant never was the real owner, and, at the time the alleged attornment took place, had no color of title to the land in controversy. Under no circumstances then can it be said that complainant’s title was adverse until July, 1902. Assuming that it became adverse at that time, complainant is not entitled to relief, for five years from July, 1902, had not elapsed at the time this suit was commenced. It was commenced in February, 1907. We conclude that defendant and not complainant is the real owner of the land in controversy.

The decree of the circuit court must therefore be reversed and a decree entered in this court in favor of defendant.

A' question is raised as to complainant’s right to recover for improvements. This question cannot be adjudicated on this record. Neither the pleadings nor the evidence permit it. We think, however, that complainant should be permitted to have that question adjudicated, and, therefore, the decree in this case will be without prejudice to his right to bring an independent action to enforce his lien for improvements. Defendant will recover costs of both courts.

Grant, O. J., and Hooker, Moore, and McAlvay, JJ., concurred.