text:
    GRUNST v. CHICAGO & WEST MICHIGAN RAILWAY CO.
    Railroad Companies—Negligence—Accident 'to Trespasser.
    The fact that the plaintiff, a yardmaster of a railroad company, was permitted by the defendant company to visit its yard for the purpose of ascertaining whether there were cars there for his road, is no evidence that he was invited to facilitate his examination by riding on the side ladders of defendant’s trains, and, in assuming such a position without invitation, he became a trespasser, and is precluded from recovering for injuries sustained, while so riding, by being struck by an arm of a switch alleged to have been placed too near the track.
    Error to Wayne; Frazer, J.
    Submitted April 21, 1896.
    Decided May 19, 1896.
    Case by August Grunst against tbe Chicago & West Michigan Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Brooke & Spalding, for appellant.

      William Alden Smith and Frederick W. Stevens, for appellee.
   Montgomery, J.

Plaintiff was a railroad man of several years’ experience, and for eight months prior to February 26, 1891, was employed by the Detroit, Grand Haven & Milwaukee Railway Company as yardmaster at Grand Haven. His duties compelled him to attend to the switching of freight cars, to bring them to the freight house, to load boats, to receive freight cars from the defendant company to his own, and to deliver cars from his own company to the defendant company. For the performance of these duties he had in his charge and under his direction a switching engine and crew. Evidence on the part of the plaintiff tended to show that the defendant had no regular switching engine at this point, but such switching as was done was performed by its local freight crew; so that frequently, in order to get cars destined for his road, plaintiff would go. with his switch engine and crew over upon the defendant’s track, and get the cars out himself. Plaintiff received notice of the arrival of freight cars upon defendant’s track in various ways, —sometimes from his own freight agent; sometimes from defendant’s local agent; sometimes from Kennedy, an employe of defendant; sometimes he would go over to defendant’s yard, and find such cars himself. No objection was ever made by defendant’s local agent to plaintiff’s method of obtaining this information. On February 26th, plaintiff and his crew were engaged in loading a boat for Milwaukee, and late in the afternoon he sent his crew to supper, telling them to report later, to finish loading the boat. Plaintiff desired to know if there were any cars for the Milwaukee boat in defendant’s yard, and jumped upon the side ladder of a passing freight train, and rode towards the switch where he was accustomed to find such cars. None of the crew of defendant’s train knew of the plaintiff’s presence on the side ladder. Plaintiff had nearly reached his destination when he was struck in the head by an arm of a switch which the train passed, thrown to the track and run over, and so seriously injured that it became necessary to amputate his arm and a portion of his foot. Evidence was also introduced tending to show that, two years previously, one Mahan, an employe of defendant, had warned another employé of the danger of this particular switch, the arm of which, when thrown over, projected to within a foot of passing trains. Mahan also testified that he had reported the matter to defendant’s section foreman, but that was done to change it. It was the contention of defendant that plaintiff was a trespasser; that he rode without the knowledge or permission of the train crew; that he was not employed by the defendant in any capacity, and that they owed him no legal duty, express or implied, beyond what a railroad company owes to a common trespasser, where wanton or willful negligence is not pretended to exist; that the plaintiff was an experienced railroad man, and knew'the danger of riding as he did; that he was not in the performance of his duties, but was on his way to supper; and that his injury was due to his own negligence. The trial judge directed a verdict in favor of the defendant company, and the case comes to this court on error.

Plaintiff’s theory, as stated in the brief of counsel, is:

“That what plaintiff attempted to do was what he might reasonably do in the discharge of his duties, and that, in the pursuance of the custom of work between the two companies, he had the right to use such methods and means as were reasonably proper to facilitate his examination.”

The answer to this is that he had no right to use the cars of the defendant as a means of transportation unless invited to do so, and certainly he had no right to use the side of a freight car for that purpose. There is no testimony tending to show, in the slightest degree, an invitation to the plaintiff to occupy any such position as he assumed on the car of defendant, nor did any business which he transacted with the defendant company require that he should do so. The most that can be claimed from plaintiff’s testimony is that he was invited to the yard of defendant by reason of his business relations to the company; and, had the injury occurred by reason of a pitfall in the yard itself, quite a different question would have been presented. But when he chose to attempt to ride on this freight car by means of seizing hold of the rounds of the ladder, he was beyond any invitation which1 was extended to him, and became a trespasser. There is nothing even to show a previous use of the defendant’s cars for the purpose. In the able opinion of Mr. Justice Campbell in Hargreaves v. Deacon, 25 Mich. 5, it was said:

“Cases are quite numerous in which the same questions have arisen which arise in this case, and we have found none which hold that an accident from negligence on private premises can be made the ground of damages, unless the party injured has been induced to come by personal invitation, or by employment which brings him there, or by resorting there as to a place of business, or of general resort held out as open to customers or others whose lawful occasions may lead them to visit there. We have found no support for any rule which would protect those who go where they are not invited, but merely with express or tacit permission, from curiosity or motives of private convenience, in no way connected with business or other relations with the occupant.”

See, also, Pittsburgh, etc., R. Co. v. Bingham, 29 Ohio St. 364 (23 Am. Rep. 751); Severy v. Nickerson, 120 Mass. 306 (21 Am. Rep. 514); Illinois Central B. Co. v. Godfrey, 71 Ill. 506 (22 Am. Rep. 112); Kelly v. Railroad Co., 65 Mich. 186; Planz v. Railroad Co., 157 Mass. 377.

Judgment affirmed.

Grant, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    WALES v. GRAY.
    1. Trusts and Trustees—Alteration of Terms of Trust.
    The grantor in a trust deed of property to be sold, and the proceeds devoted to the payment of certain notes, has no authority to direct the trustee to apply the amount realized from such sale otherwise than in accordance with the terms of the trust.
    2. Same—Sale for Benefit of Creditors — Application of Proceeds.
    A trustee of land to be sold, and the net proceeds to be devoted to the payment of two certain notes, must, in the absence of any direction as to priority in the trust deed itself, apply the proceeds pro rata, if they are insufficient to pay the notes in full.
    Appeal from~Wayne; Adams, J., presiding.
    Submitted April 21, 1896.
    Decided May 19, 1896. .
    Bill by Edwin A. Wales against William J. Gray, Charles P. Toll, the Citizens’ Savings Bank, and Charles Toll, to compel the application of the proceeds of a sale under a trust deed upon a note indorsed by complainant. Prom a decree dismissing the bill, complainant appeals.
    Affirmed.
    On October 10, 1891, defendant Charles P. Toll was indebted to the Citizens’ Savings Bank upon two promissory notes,—one for $2,650, indorsed by the complainant and Charles Toll, and then past due; the other for $1,900, indorsed by Charles Toll alone, and to become due on October 21st of the same year. In order to secure these two notes, Charles P. Toll conveyed certain lands in trust to defendant Gray, who executed a declaration of trust which stated that the land was conveyed to him for the following purpose:

      “1. To sell the same for the best price I can obtain, and to devote the net proceeds to the payment of two certain notes,—one for the sum of $2,650, dated May 26, 1891, and payable in three months from its date, and indorsed by Charles Toll and E. A. Wales; and one for the. sum of $1,900, dated June 18, 1891, and payable four months from its date, and indorsed by Charles Toll,— both notes being made by Charles P. Toll, and now held by the Citizens’ Savings Bank of Detroit, and, after the full payment of said two notes, to pay the remainder of the said proceeds to said Charles P. Toll. Said power of sale shall not become operative until one year from this date, and in the meantime said Charles P. Toll shall be entitled to the possession of said premises. At the expiration of one year, I shall have the right of possession.
    “2. In case of payment in full of said notes prior to any sale by me of said lot, whether within the year or not, then I agree to reconvey said lot to said Charles P. Toll by deed, with covenant against my own acts. It is understood that the conveyance of said lot in no way extends the time of payment of either of said notes.”
    The property was sold by the trustee October 22, 1894, the net proceeds being $2,378.72. February 13, 1893, Charles -P. Toll wrote a letter to defendant Gray, directing him to apply the proceeds from the sale of the lot in payment of the first note, and, when that was paid in full, to apply the balance upon the other note. Mr. Gray declined to do this, and declared his intention to apply the proceeds pro rata. The complainant filed this bill to compel the application of the proceeds of the sale upon the first note, the one indorsed by him.

      Bowen, Douglas & Whiting, for complainant.

      Gray & Gray, for defendant bank.

      Look & Humphrey, for defendant Charles Toll.
   Grant, J.

(after stating the facts). Had the debtor, Toll, the right to direct the application of payments? We think not. The terms of the trust must control. If the debtor alone were concerned, it would make no difference upon which note the payment was applied. Charles P. Toll parted with his right to dictate or control the application when he gave the security. He then agreed and directed the trustee “to devote the net proceeds to the payment of these two notes.” The trust deed stands upon the same footing as a mortgage, securing distinct payments. In the absence, therefore, of any direction as to the priority in the deed itself or declaration of trust, the proceeds must be applied pro rata. Jennings v. Moore, 83 Mich. 231, and authorities there cited.

The court below so held, and the decree is affirmed, with costs.

Montgomery, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.


author: Montgomery, J.

text:
    STOCKMAN v. MICHELL.
    „ „ „ 1. Partnership—Profit Sharing.
    A contract by which a merchant agrees to pay an employe a stated salary and a certain percentage of the profits of the business does not, as matter of law, constitute the parties copartners.
    2. Action—Jurisdiction—Accounting.
    While an employé who, in addition to a stated salary, is to receive a certain percentage of the profits of the business as compensation for his services, has a remedy in equity to secure an accounting as to the profits, such remedy is not exclusive, as a court of law has full power, under 2 How. Stat. § 7386, to appoint auditors to state the account.
    3. Appeal—Absence of Proof—Matters not Considered in Trial Court.
    The Supreme Court will hesitate to determine a case upon the ground of absence of proof of a given fact, where the question was not passed upon in the lower court, and it does not appear to have been there presented.

      Error to Wayne; Hosmer, J.
    Submitted April 22, 1896.
    Decided May 19, 1896.

      Assumpsit by Gustavus Stockman against Carl H. Michell for services rendered. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Sloman, Groesbeck & Robinson, for appellant.

      Atkinson & Haigh, for appellee.
   Montgomery, J.

Plaintiff brought an action of assumpsit to recover for services rendered to the defendant. Plaintiff’s testimony tended to show that defendant, on engaging in the grocery business in 1889, employed the plaintiff, and agreed to pay him a stated salary, and, in addition, 2 per cent. of.the profits of the business; that for the first year the 2 per cent, was paid to the plaintiff; but that after that time no inventory was made showing profits, and no payment on account thereof was made to the plaintiff. The circuit judge directed a verdict for the defendant, holding that the agreement constituted the plaintiff and defendant copartners, as matter of law. We think there was error in this. It was certainly competent for the jury to find, from the testimony, that the parties considered this agreement as one measuring the compensation for services rendered, and that it was not intended that the plaintiff should acquire, by the agreement, a vested interest in the profits as such, or any more than a contract right to insist upon the payment of this sum in consideration of the services rendered. Child v. Emerson, 102 Mich. 39; Beecher v. Bush, 45 Mich. 188; Wilcox v. Matthews, 44 Mich. 192; Canton Bridge Co. v. City of Eaton Rapids, 107 Mich. 613.

It is contended, however, that, as plaintiff failed to show what the profits were, he was not damaged by the ruling. While the proofs do not make very clear the amount of profits, we are not able to say that there was an entire absence of proof, and we would feel great reluctance to determine any case on the absence of proof when the court below has not passed upon the question, and when it does not appear to have been presented to the court.

It is also insisted that, even though the facts do not show a partnership, yet, as the agreement involves an accounting, the remedy is not at law, but in equity. While it is true that the plaintiff might have had a remedy in equity, under the authority of Clarke v. Pierce, 52 Mich. 157, and Warren v. Holbrook, 95 Mich. 185, yet this remedy is not exclusive of .his remedy at law. Id. The court at law has full -power to appoint auditors to state the account. 2 How. Stat. § 7386.

Judgment reversed, and a new trial ordered.

Geant, Hookee, and Mooee, JJ., concurred. Long, C. J., did not sit. *


author: Hooker, J.

text:
    GODSHALK v. AKEY.
    Wills—Construction—Life Estate.
    A bequest to the testator’s wife of “the sum of §2,000, the interest on said sum, at the rate of 7 per cent, per annum, to be paid to her annually during her life, and in case the §140 per year shall not be sufficient for her comfortable support and maintenance, or if, in case of sickness or feebleness of health, she shall need more than the interest on said sum, then she shall use so much of the principal as is necessary for her support and maintenance, and the payment of her needed medical attendance and funeral expenses,” vests in the wife only a life estate in the fund, coupled with a right to use such part of the principal as her needs require.
    Appeal from St. Joseph; Yaple, J.
    Submitted April 23, 1896.
    Decided May 19, 1896.

      Bill by Josiab Godsbalk against Alfred Akey, administrator of the estate of Ellen Godshalk, deceased, to construe the will of Jacob Godshalk, deceased. From the decree rendered, defendant appeals.
    Modified and affirmed.

      David Knox, for complainant.

      H. P. Stewart (Alfred Akey, of counsel), for defendant.
   Hooker, J.

Josiah Godshalk, the son and executor of Jacob Godshalk, deceased, filed the bill in this cause for a construction of his father’s will, which was probated in the county of St. Joseph, in this State, in the year 1881. Letters testamentary were issued to the complainant at that time, and he proceeded with the execution of the trust, seasonably distributing the estate under the order of the probate court, with the exception of the fund of $2,000, which he retained as a provision for testator’s widow, and which sum is the subject of this controversy. The widow, Ellen Godshalk, died on September 16, 1894, in Pennsylvania, where she had resided for some years, and one Akey was appointed administrator of her estate, at Centerville, St. Joseph county, Mich., on December 28, 1894, and demanded from the complainant the payment of said sum of $2,000 as an asset of Ellen Godshalk’s estate. The question turns upon a construction of the will of Jacob Godshalk, of which the first is the important clause. It is as follows:

“First. I give and bequeath to my wife, Ellen Godshalk, the sum of two thousand dollars, the interest on said sum of two thousand dollars, at the rate of seven per cent., to be paid to her annually each year during her natural life; and in case the said sum of one hundred and forty dollars per year shall not be sufficient for her comfortable support and maintenance, or if, in case of sickness or feebleness of health, she shall need any more than the interest on said sum of two thousand dollars, then she shall use so much from the principal thereof as is necessary for her support and maintenance, and the payment of her needed medical attendance and funeral expenses. I further give and bequeath to my said wife, Ellen, so much of the household furniture as she may need, to be selected by her, not exceeding the value of one hundred and fifty dollars.”

The bill alleges the retention and investment of the fund of $2,000 by complainant, and annual payment of $110 to Ellen Godshalk, and avers that, by the death of Ellen Godshalk, it became his duty to close up the estate of Jacob Godshalk, and distribute the amount that should remain, after the payment of proper charges and expenses, including his own compensation for services in and about the trust. It also states the demand and claim made by the defendant, and prays a construction of the will, and a determination of the complainant’s compensation.

The answer of the defendant leaves the complainant to his proofs as to most of the matters stated in the bill, but asserts that there was no limitation upon the bequest of $2,000 to Ellen Godshalk, and that the sum now belongs to her estate; that such sum constitutes her entire estate; that for several years before her death she was old and feeble, and was cared for by her son, who, at the time of filing said answer, had a claim before a court in Pennsylvania, for his services, exceeding in amount this fund; and that such son is not the only heir of Ellen Godshalk. The answer prays a decree that the fund be paid to the defendant, for distribution as the law directs.

Very little testimony appears to have been taken, the oral testimony being summed up in the following:

“ Josiah Godshalk was sworn as a witness for complainant in said cause, and, being examined in open court, gave evidence tending to show that no request or demand was at any time made by Ellen Godshalk, or by any one on her behalf, in her lifetime, on him, as executor and trustee of said fund of $2,000, for any part of the principal of the same, to be used in her support and maintenance, or for any purpose; and also evidence tending to show the presentation to him, as executor of the estate of Jacob Godshalk, after the death of said Ellen Godshalk, by Andrew A. Bruch, a son of said Ellen Godshalk, of the account following, marked ‘ Exhibit A,’ and the modified statement of said account, marked ‘ Exhibit B;’ such evidence being introduced for the purpose of showing how said bequest was treated by Ellen Godshalk in her lifetime, and by Andrew A. Bruch, a son of said Ellen Godshalk, and one of the heirs of her estate, after her ■death.”

The circuit court sustained the complainant’s contention •as to the construction of the will, viz.:

‘ ‘ That the true intent and meaning of said testator, as ■expressed in said will, was to vest, and in legal effect vested, the title to the residue of said fund, that remained upon the death of Ellen Godshalk, in the residuary legatees named in the fourth clause of the will of •Jacob Godshalk, aforesaid; and the same passed, as residue of his estate, under said residuary clause, and to the persons therein named, subject only to the limitations •and restrictions of said fourth clause.”

It was also found that—

“Upon the argument of said cause, no question was raised or submitted, under the pleadings and proofs, as ;to the right of any person or persons to any portion of .said fund on account of care and expense attending the last sickness or funeral of said Ellen Godshalk; such questions •being expressly waived in this proceeding, as not being raised by the pleadings and proofs, the sole purpose of '.the same being a construction, as heretofore found.”

The following order was made as to compensation and ■costs, viz.:

“I further find, and it is ordered, adjudged, and ■decreed, that complainant is entitled to compensation out ■of said fund for his care and management of the same, and, upon consideration of the premises, hereby fix such ■compensation, up to the date of this decree, at the sum of ■one hundred and seventy-five dollars, and that said fund is also chargeable with complainant’s solicitor’s fees, ¡and .the costs and expenses of this proceeding, and of all such further proceedings as may be had or taken to secure a final legal distribution of said fund.”

And it was ordered:

“That the foregoing stand as the true construction of said will, and that said fund be distributed in accordance therewith. And it is further ordered, adjudged, and decreed that complainant pay the register’s fees in this cause, to be taxed, and that the amount thereof, together with the amount herein fixed as his compensation, and such sums as may be required for reasonable solicitor’s fees, and for costs and expenses attending this proceeding and the final distribution of said fund, and his discharge from the trust relating thereto, shall be allowed to him, as having been legally paid out of said fund.”

Under the uniform decisions in this State, we must look for the intent of the testator. The clause in question convinces us that Jacob Godshalk intended that the sum of $2,000 should be so used as to be made productive, and, if feasible, maintained without diminution, if consistent with the comfortable support and maintenance of his widow, in sickness or in health. It is manifest that he intended some one besides the widow to have the custody of the fund, for he provided for payment of the interest to her. Under the will, there is no opportunity for saying that any one but the executor should perform . that duty. Had the testator intended an absolute gift of $2,000, which should, if not expended, belong to the estate of his widow, after her death, the provision for funeral expenses would probably have been omitted, as it would, in that view, be superfluous, as her own administrator would be the natural person to adjust and settle such claim. We are satisfied that this bequest was of a life estate only, though coupled with a privilege of using from the principal if occasion required, and therefore that the circuit court was correct in holding that the fund in complainant’s hands does not of right belong to the estate of Ellen Godshalk. We also think the order of the circuit court in relation to compensation of the complainant, and costs, a reasonable one, which ought not to be disturbed, and upon the testimony we find no warrant for passing upon the claim of Andrew A. Bruch.

The will provides for the payment of necessary sums for support, maintenance, and needed medical attendance and funeral expenses. Apparently Ellen Godshalk never asserted a claim for any sum beyond the interest, and we have doubts about the justice of allowing a claim by others which she did not choose to make during her lifetime, and while she was able to do so. Other provision may have been made by her for the expenses upon her last sickness and death. If not, they would seem to be a proper subject of a claim by the defendant against the fund, if he should be requested to pay them, subject, necessarily, to the conditions of the trust. But there is nothing upon this record warranting their recovery, and we cannot, therefore, determine the validity or amount of such claim. We think, however, that the trustee should hold the fund for the period of three months from the filing of the decree of this court, to afford an opportunity for the presentation and prosecution of such a claim, and until the determination of such claim if it be so prosecuted. If not so presented and prosecuted, the fund shall, at the expiration of said period, be distributed in accordance with the decree of the circuit court.

In other respects the decree of the circuit court will be affirmed, with costs.

Grant, Montgomery, and Moore, JJ., concurred. Long, O. J., did not sit.


text:
    WELBON v. WELBON.
    1. Mortgage—Foreclosure—Decree for Deficiency.
    A decree for a deficiency on the foreclosure of a mort.gage, against one not personally liable for the payment of the mortgage debt, is erroneous.

      2. Same—Interest—Tenant for Life.
    A grantor of property incumbered by a mortgage, who reserves a life estate therein in himself, is bound, as between himself and the grantee, to pay the interest on the mortgage during the existence of the life estate.
    3. Same—Deed—Covenants of Warranty.
    A grantor in a deed covenanted that the premises conveyed were free from all incumbrances whatever, except a specified mortgage, and that be would warrant and defend the same against all lawful claims whatsoever. Held, that the previous mention of the existence of the mortgage did not take it out of the general covenant of warranty.
    Appeal from Washtenaw; Kinne, J.
    Submitted April 24, 1896.
    Decided May 19, 1896.
    Bill by Isaac Welbon against Mary Jane Welbon and others to foreclose a mortgage. From a decree for complainant, defendants appeal.
    Reversed.
    The object of this suit is- to foreclose a mortgage executed by the complainant to one Joseph M. Thompson. The material facts are these: Complainant was the husband of defendant Mary Jane, and the father of the other defendants. Mr. and Mrs. Welbon became involved in trouble, resulting in her filing a bill of divorce against him. This trouble was then finally arranged, and resulted in complainant’s executing a deed of this land to his children, who were then minors. The land was a farm, and the family moved and lived upon it for a while. Previous to the execution of this deed, complainant had executed this mortgage for the sum of 1200. His wife did not join in the mortgage. It is claimed that the family did not know of the mortgage until some years after-wards. Mr. and Mrs. Welbon again became estranged. She left him, and, with the children, went to Detroit. She again filed a bill of divorce against him, and obtained a decree. In 1885 complainant paid Mr. Thompson the amount of the mortgage debt, and the mortgage was returned to him. Shortly after, Mr. Welbon presented a paper for Mr. Thompson’s signature, saying that he wanted something to show that the mortgage was paid. Mr. Thompson executed the paper, which was an assignment, instead of a discharge. Decree for the full amount and interest was entered.

      John P. Kirk, for complainant.

      John H. Powell, for defendants.
   Grant, J.

{after stating the facts). The decree, we think, cannot be sustained for several reasons:

1. The defendants were not personally liable for the debt secured by the mortgage. It was therefore erroneous to enter a decree against them for any deficiency. Complainant alone was personally liable for the debt, and had paid it.

2. In the deed to his children complainant reserved a life estate in himself. It was his legal obligation to-pay the interest upon the mortgage during the existence of the life estate. The decree was erroneous in including interest.

3. The deed contains the following covenant:

“The said party of the first part, for himself, his heirs, executors, and administrators, does covenant, grant, bargain, and agree to and with the said parties of the second part, their heirs and assigns, that at the time of the en-sealing and delivery of these presents he is well seized of the above granted premises in fee simple; that they are free from all incumbrances whatever, except a certain mortgage given by him to Joseph M. Thompson, dated October 1, 1883; and that he will, and that his heirs, executors, and administrators shall, warrant and defend the same against all lawful claims whatsoever.”

The covenant of warranty contains no exception, and the previous mention of the existence of this incumbrance does not take it out of his covenant of warranty to defend the title against all lawful claims whatsoever. In other words, there is no limitation placed upon this covenant. Sandwich Manfg. Co. v. Zellmer, 48 Minn. 408.

The decree must be reversed, with costs of both courts, and the bill dismissed.

Montgomery, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.


text:
    PEOPLE v. KOOB.
    Intoxicating Liquors — Sunday-Closing Law — Restaurant Connected with Saloon.
    A front room having on its door the signs “Lager Beer” and “Wines and Liquors,” and connected by double doors with a room having a bar where liquors are stored, though nominally an eating room, is such a part of the saloon, where liquors are served indiscriminately in it or in the rear room during week days, as to warrant a conviction for keeping it open on Sundays.
    Exceptions before judgment from Berrien; Coolidge, J.
    Submitted May i, 1896.
    Decided May 19, 1896.
    George Koob was convicted of keeping his saloon open on Sunday.
    Affirmed.

      Hammond & Hammond (James O'Hara, of counsel), for appellant.

      N. A. Hamilton, Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted of keeping his saloon open on Sunday. The facts were agreed upon and admitted in open court, and were that the respondent kept a restaurant and' saloon, connected with double doors; the eating room being in the front portion of the building, and the bar, where liquors were stored, in the rear room. Liquors were, however, served indiscriminately in either room on week days. On the front door of the front room were signs, “Lager Beer,” “Wines and Liquors.” On the Sunday in question the front door was kept open, and meals were served therein. The sole question is whether the front room was part of the saloon, within the meaning of the statute. We think the question clearly ruled by People v. Cox, 70 Mich. 247; People v. Hughes, 97 Mich. 543.

Conviction affirmed.

Grant, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.


text:
    PEOPLE V. BOWKUS.
    1. Intoxicating Liquors—Violation op Sunday-Closing Law —What Constitutes.
    In a prosecution for keeping a saloon open on Sunday, it was proper to instruct the jury to the effect that respondent had no right to let persons into his saloon on that day, and that, if he did so, he was guilty qf the offense charged, whether he sold them liquor or not.

    2. Same—Serving Liquor in Room Adjoining Saloon.
    A saloon keeper who serves liquor upon Sunday in a room adjoining and connected with his saloon is guilty of a violation of the law against keeping saloons open on Sunday, even though he receives no pay for the liquor so furnished.
    3. Same—Instructions to Jury.
    An instruction in a prosecution for keeping a saloon open on Sunday,.that “if a saloon is kept open on one of the forbidden days, for any purpose, or for any business, or for any length of time, no matter how short, it will be a violation of the statute,” is not prejudicial to the respondent, where he admits having served liquor upon the day in question in a room alleged to constitute a part of his saloon.
    Error to superior court of Grand Rapids; Burlingame» J.
    Submitted April 30, 1896.
    Decided May 19, 1896.
    William Bowkus was convicted of keeping his saloon open on Sunday.
    Affirmed.

      McKnight & McKnight, for appellant.

      Fred A. Maynard, Attorney General, and Alfred Wolcott, Prosecuting Attorney, for the people.

       For a summary of the legislation and a collection of the cases bearing upon the subject of closing of saloons on Sunday, see People v. James, 100 Mich. 524.

   Grant, J.

The respondent was convicted of keeping his saloon open on Sunday. The next room back of his saloon proper was a sitting room, connected with the saloon by a door. Back of the sitting room was his dining room. The sleeping rooms of his family were upstairs. The evidence on behalf of the people was direct and positive that he entered his saloon on the day in question from the sitting room, through this door, drew beer by means of a pump from the kegs of beer in the cellar, and served it to customers in the sitting room. He admits serving beer in this room, but denies that he got it from the saloon, but says that he got it from the dining room. Two errors are assigned.

It is alleged that the court was not impartial in its charge, in that it was argumentative. We do not think that the charge is open to this construction. It is very evident that the portions of the charge complained of were called forth by the argument of counsel for respondent, which does not appear in the record. The defense was that this sitting room was not a portion of the saloon, and that he had not been in the habit of serving liquors in it. The court very fully instructed the jury as to the provisions of the law and their purpose as interpreted by the numerous decisions of this court. We find no error in this.

Under the second alleged error it is urged that the court laid down too stringent a rule as to the right to open a saloon upon Sunday. The court very properly instructed the jury that it made no difference whether the respondent sold any liquor or not; that he had not the right to let persons into his saloon. This part of 'the charge-is sustained by numerous decisions. The precise objection urged is that it assumed that respondent did let persons into his saloon. Considering the whole charge, no such conclusion can fairly be assumed.

The court said to the jury:

“If a saloon is kept open on one of the forbidden days, for any purpose, or for any business, or for any length of time, no matter how short, it will be a violation of the statute.”

Again :

“If a man, renting an entire building, and occupying it, and having a saloon in one room, opening into another room next back of it, on prohibited days, as Sunday, admits to that room persons who call to get beer and persons who call ostensibly for other purposes, and he deals out beer to them in that room, I care not what he calls it, —what name he gives the room,—and I care not where he gets his liquor from, that room, to all intents and purposes, is a part of that saloon.”

This last portion of the charge was called out by a question from the jury “whether a room connected to the barroom, and used as a private or residence room, should be considered as a part of the saloon under the law.”

The latter instruction was correct. Saloon keepers cannot evade the law by taking liquor from their saloons on a week day to a room adjoining the saloon, and there serve it upon Sunday, with or without pay. People v. Whipple, 108 Mich. 587. Under the rule in People v. Minter, 59 Mich. 557, the instruction as to opening on forbidden days may have been too strict, although the court used the expression “kept open,” implying, perhaps, a different condition from that of simply opening the door and entering for a necessary purpose. But this part of the instruction could not have prejudiced the respondent, because he admitted serving liquor in the room. The jury could not have convicted except upon this fact.

The conviction is affirmed.

Montgomery, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.


text:
    FLETCHER v. CHICAGO & NORTHWESTERN RAILWAY CO.
    1. Malicious Prosecution—Advice oe Counsel.
    It is a complete defense to an action for malicious prosecution that, before preferring the charge on which the plaintiff was arrested, the defendant fairly laid all of the material facts connected with the affair before the acting prosecuting attorney, a lawyer of 18 years’ experience, and acted entirely upon his advice; and this, although such attorney was at the time the local attorney for the defendant, a railroadcompany.
    2. Same—Damages.
    The plaintiff in an action for malicious prosecution, prior to his arrest, had undergone a surgical operation. On the trial he claimed that, in going from the train to the justice’s office, a distance of about 100 feet, he got his feet wet, and caught cold, that his injured parts became affected, and that he suffered therefrom. It appeared that he was addicted to the use of intoxicating liquors; that he was not at any time placed under actual restraint; that, on the same day, he went to saloons at least.twice, and, in doing so, waited in the snow; and that he otherwise voluntarily exposed himself. His own physician testified that his condition, when examined by the witness after the arrest, might have been the result of the use of intoxicating liquors alone. Held, that the element of damage claimed to result from physical suffering should have*been eliminated from the consideration of the jury.
    3. Same—Evidence—Newspaper Articles.
    In° an action for malicious .prosecution, a newspaper article which merely states the fact of plaintiff’s arrest is admissible; but a further statement therein that the defendant proposed to “push the matter to the limit” is inadmissible, unless shown to have been prompted by him, especially where his responsibility for the prosecution is disputed. In .such case, if the article is so framed that the admissible part cannot be read without introducing the objectionable matter, the whole should be excluded; but it would be competent to have it appear before the jury that the fact of the arrest was pub-, lished in the paper.

      4. Same—Docket Entries.
    In such an action, the emeries in the docket of the justice before whom the plainoid: was examined after his arrest are admissible, in so far as they state those things which the law requires to be there entered; but a statement therein that the case was discontinued by the complainant, “representing” the defendant in the civil suit, a corporation, is inadmissible.
    5. Same—Admissions—Authority ok Agent.
    In an action against a railroad company for malicious prosecution in causing the arrest of the plaintiff for knowingly receiving stolen property, statements made by the local attorney for the road, that there had been considerable feeling over the stealing from the company, that they thought plaintiff had been at the head of it, and that they wanted to put a stop to it, are inadmissible, where the attorney had no general authority, and had not been employed in the matter in question.
    6. Same—Probable Cause.
    In an action against such company, evidence that plaintiff was seen with one who stole goods from the company, that such goods were afterwards found upon the train with parcels belonging to the plaintiff, and that they were taken to his house by one who accompanied him, sufficiently shows probable cause for instituting the prosecution.
    Error to Gogebic; Haire, J.
    Submitted January 15, 1896.
    Decided May 19, 1896.
    Case by Lennell C. Fletcher against the Chicago & Northwestern Railway Company for malicious prosecution. From a judgment for plaintiff, defendant brings error.
    Reversed.

      R. C. Flannigan, for appellant.

      Button & Norris, for appellee.
   Grant, J.

A Mr. Houle made complaint before a justice of the peace of Interior township, county of Ontonagon, charging that a jar of butter had been stolen from the defendant company, and that he had good reason to suspect that plaintiff received said jar of butter, knowing it to be stolen. Plaintiff appeared before tbe justice on the following day, and his examination was postponed. This suit was discontinued, and a similar complaint made by Mr. Houle before a justice of the peace in Bessemer, Gogebic county, on January 22, 1894. An examination was held, the justice found probable cause to believe the plaintiff guilty, and held him to the cireuit court for trial. In the circuit court a nol. pros. was entered by the prosecuting attorney. Plaintiff then instituted this suit for malicious prosecution, and had verdict and judgment.

The larceny of the jar is conclusively established, and that it was stolen by one Ole, who, with the plaintiff and two men by the name of Hier, passed together over the platform to the caboose of the.train, which plaintiff and the Hiers took for conveyance to Paulding, where plaintiff lived. Ole carried the jar into the caboose, which he entered at the same time with the plaintiff. . The jar was placed, with some packages which plaintiff had purchased at Watersmeet, upon the floor of the cupola of the caboose. Ole did not accompany the train. Within a few minutes after the jar was taken, the trainmen discovered its loss. One Johnson had seen Ole carrying the jar, from which the tag had been torn, into the caboose. Upon investigation it was discovered with the plaintiff’s packages. Upon arriving at Paulding, plaintiff requested Mr. Hier to assist him in carrying them .out. They stood together when Hier took some of them, including the jar. Plaintiff took the rest of his things, and the two left the car, .and went to plaintiff’s saloon. The jar, with other things, was there placed upon the bar. Plaintiff went behind the bar, dealt out some liquor to those present, and then requested Hier to take the things to his house, about 300 feet distant. The conductor saw Hier take the jar from the car, and carry it away. Not knowing him, he inquired his name of some one. This person went immediately and informed Mr. Hier of the inquiry made by the conductor. Thereupon Mr. Hier went immediately to the conductor before the train went out, and asked if anything was wrong with the jar of butter, to which the conductor replied, “You will find out in a day or two.” On the next day Hier returned the jar to defendant. Soon after this Houle appeared at Watersmeet and Paul-ding, investigating into the alleged theft. He and the conductor appeared before Justice Shields, and stated the case to the justice, before whom the first complaint was then made. The justice testified that he issued a warrant, which, however, was not produced upon the trial. The further facts, so far as material, will be stated in connection with the points discussed and determined.

I think that the court should have instructed the jury that there could be no recovery for the second arrest, because Mr. Houle fairly laid all material facts before Mr. Riley, an attorney of 18 years’ experience, and acting prosecuting attorney of the county, upon whose advice the complaint was made and the warrant issued. Mr. Riley was a witness for the plaintiff, and testified to the facts communicated to him by Houle, and it conclusively appears from his testimony that all the material facts were placed before him by Mr. Houle. This defense was not weakened because Mr. Riley was the local attorney for the company. Even if Mr. Riley had not been the prosecuting attorney, but the private attorney of the company, and all the material facts had been placed before him, such advice, acted upon, would constitute a complete defense. Perry v. Sulier, 92 Mich. 72; Le Clear v. Perkins, 103 Mich. 131.

I think one element of damage was improperly submitted to the jury. In December, before the first alleged arrest, plaintiff had had an operation performed in a hospital in Ashland, Wis. After it was performed, and before leaving for home, his physician cautioned him to be careful about any extraordinary exertion, and about taking cold. At neither arrest was the plaintiff actually imprisoned, or even put under restraint. He was allowed to go and come as tie chose, upon his promise to appear before the justice for examination. He claims that in going from the train to the justice’s office January 16th’, a distance of about 100 feet, he got his feet wet, caught cold, and that about five days thereafter his injured parts were affected, and that he suffered therefrom. He wore cloth shoes, as he said, to prevent his slipping. He admitted that he was addicted to the use of intoxicating' liquors; that he was frequently under the influence of liquor; that he had had two fights, not far from the time of his arrest, in one of which he knocked a man down, and in the other he threw a man out of his saloon,- among some beer kegs; that on the 16th of January he went to saloons in Interior at least twice, and in doing so he walked in the snow; that the weather on the 14th and the 15th was the same as on the 16th, the condition of the snow the same at Paulding as at Interior; that .he walked many hundred feet in the snow on these two days, wearing the same cloth shoes. He had no appearance of sickness, and made no complaint to the-officer. His own physician testified that his condition, when he examined him after the arrest, might have been the result of the use of intoxicating liquors alone. There was no necessity of his wearing cloth shoes which would wet through in walking upon the snow. He exposed himself while at Interior, awaiting examination before the justice, unnecessarily, in walking through the snow on his way to saloons, and in remaining outdoors when there was ample opportunity for him to be indoors. The injury from which he claimed to be suffering was a peculiar one, which might -naturally excite the sympathy of a jury. Upon no other basis can the large verdict of $2,500 be accounted for. A person cannot recover for the alleged wrong of another, when it clearly appears, from his own admissions, that his own indiscreet and negligent conduct has contributed to the injury, or when such injury can, with more reason, be attributed to the latter than, to the former. The court should have eliminated these elements of damage, claimed to result from physical suffering, entirely from the consideration of the jury; and, in view of a new trial, it is proper also to remark that all evidence of this operation and his physical suffering should be excluded from the consideration of the jury.

Objection was made to the admission of a certain newspaper article upon the arrest of plaintiff and Hier. It reads as follows:

“The Northwestern Tracing Department is going to make it decidedly hot for certain light-fingered people who live on the Interior branch. For some months past a series of petty robberies have been committed against the company, the climax being reached when two men, named Fletcher and Hier, were placed under arrest, at the instance of the company’s detective, charged with stealing merchandise from the platform of the Waters-meet depot. Conductor Lyon, Messenger Reid, and Brakemen Lavigne and Durke went to Watersmeet Wednesday to appear as witnesses against the alleged robbers, but the hearing was postponed until next Tuesday, January 30th. The company propose to push the matter to the limit.”

So far as this article stated the fact of the arrest, it was admissible, under the authorities; but, in so far as it stated what the company proposed to do, it was clearly incompetent. There was nothing to show that the article was prompted by the company, or by an agent thereof. It may have furnished the entire reason for the jury to find that Mr. Houle was authorized by the company to make the complaint. If such an article be so framed that it cannot be read without introducing the objectionable matter, it must be excluded; but it would be competent to have it appear before the jury that the fact of his arrest was published in the paper. Anderson v. Keller, 67 Ga. 58.

The docket entry of Justice Shields, in the case of People v. Fletcher, was introduced in evidence, and read to the jury. In so far as it stated those things which the law requires to be there entered, it was admissible, but the statement that the case was “ discontinued by S. S. Houle, representing the Chicago & Northwestern Railway Company,” was inadmissible.

Mr. George, the justice, was permitted, under objection, to testify that Mr. Riley, the acting prosecuting attorney and local attorney for the company, said to him, the morning after the issuing of the warrant:

“To the best of my recollection, Mr. Riley said there had been considerable feeling over the stealing from the railroad company between Watersmeet and Paulding, and they thought Fletcher had been at the head of it, and that they wanted to put a stop to it.”

As local attorney Mr. Riley had not been authorized to act or speak for the company, except as to those matters which were specially intrusted to him. He had no general authority. He had not been employed by the company in this matter, and therefore this testimony should have been excluded.

I also think that the court, as the record now stands, should have directed a verdict for the defendant, for the reason that there was probable cause to believe that plaintiff was guilty of the crime with which he was charged, and there is no scintilla of evidence upon this record to show any malice, either on the part of Mr. Houle or any officer of the defendant company. The people at large are interested in the suppression of crime. While the advice of the justice of the peace is no defense to an action for malicious prosecution, yet in this case it is of importance in determining the question of malice, without which plaintiff is not entitled to recover. Mr. Shields, the justice of the peace before whom the first complaint was made, a witness for the plaintiff, testified that Mr. Houle and the conductor placed all the facts and circumstances in regard to the larceny, and plaintiff’s connection therewith, before him, and that he acted thereon. There was no haste in making the complaint against the plaintiff. No desire is shown on the part of any one to do otherwise than to accomplish the arrest of the guilty parties. There is no evidence of bad faith. Stealing from the railroad company had been going on for some time. Mr. Ole had left the country,, and could not be found. Immediately after the larceny* the property was found in plaintiff’s possession. It was taken to his saloon, and from thence to his house. Mr. Hier, who evidently was with Ole and the plaintiff when the jar was stolen, upon being told that the conductor was inquiring his name, immediately sought him, and asked if anything was wrong about the jar of butter. This clearly showed his knowledge of how it was obtained. No reasonable person can reach any other conclusion than that the plaintiff saw it among his things in the caboose; that he saw Hier take it from the caboose; that he saw it upon his bar; that he knew Hier took it to his house; that he knew that Ole stole it; and that he knew that it was not his. The only defense he sets up is that he had drunk a good deal that day, and was in a state of partial intoxication. If parties, under these circumstances, cannot make a criminal complaint without being subjected to an action for malicious prosecution, then it is hardly safe for any man whose property has been stolen to make such complaint.

It is unimportant to consider the several other allegations of error.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


author: Moore, J.

text:
    DETROIT & ERIN PLANK-ROAD CO. v. MACOMB CIRCUIT JUDGE.
    1. Plank-Road Companies—Construction op Roadbed—Injunction—Parties—Police Power over Highways.
    An injunction will lie, at- the suit of a township and its highway commissioner, to restrain a plank-road company from using in the construction of its roadbed material which will render the same dangerous, unsafe, and impassable with loaded teams; and this, independent of any provision in the company’s charter, but as a means of enforcing a police regulation.
    2. Same—Modification of Injunction.
    A circuit judge, who has issued an injunction restraining a plank-road company from using upon its road material other than that prescribed by the terms of its charter, may modify such injunction, if he is satisfied that to do so will be advantageous to the public, and will not result in the creation • of a public nuisance.

      Mandamus by tbe Detroit & Erin Plank-Road Company to compel James B. Eldredge, circuit judge of Macomb county, to dissolve an injunction restraining relator from “placing or using in the construction of its roadbed any material except plank or gravel, or stone so broken as to subserve the purposes of gravel, or any material from which the dirt, sand, and stones one and one-half inches in diameter or more have not been sifted or removed.”
    Submitted April 21, 1896.
    Writ denied May 19, 1896.

      Byron B. Erskine (Charles M. Swift, of counsel), for relator.

      Canfield & Spier, for respondent.
   Moore, J.

This is an application for a writ of mandamus to compel the circuit judge of Macomb county to dissolve an injunction. The facts, the questions involved, and the legislation in reference thereto, are fully stated by Judge El dredge in his opinion, which reads as follows:

“The Gratiot road or turnpike was laid out and constructed as a military road, pursuant to an act of Congress approved March 2,1827-, entitled ‘An act to authorize the laying out and opening of certain roads in the territory of Michigan.’ 4 U‘. S. Stat. at Large, 231. In 1830, by an act of the legislature of Michigan approved July 21 (Laws 1830, p. 7; 3 Terr. Laws, p. 820), it was provided that ‘ the military roads constructed, after acceptance by the government, shall be taken, used, and occupied as public highways.’ Section 2 of said act is as follows: ‘ Sec. 2. That the commissioners and overseers of highways in the several districts and townships through which the said roads may or shall lead, be laid out, constructed, and accepted, shall have and possess the same authority over such roads as they now have or may hereafter have and possess over the public highways within their districts or townships.’
“ In 1848 the legislature passed ‘An act relative to plank roads,’ approved March 13, 1848 (1 How. Stat. § 3566 et seq.), and the same year passed ‘An act to incorporate the Detroit & Erin Plank-Road Company,’ approved April 3, 1848, by section 6 of which the act of March 13, 1848, is made a part of the act of incorporation, which was given immediate effect. These two acts constitute the original charter of the company. By the same the company was authorized to enter upon and take possession of so much of the Ft. Gratiot road, so called, as lies between the city of Detroit and the township of Erin, in the county of Macomb, and proceed to construct thereon a plank road. It was undoubtedly the intention to grant the right to possession of the Gratiot road to the point in Erin hereafter called the ‘Junction,’ mentioned in the second section of the act, from which a branch was authorized to run to Utica. In. 1850 a like charter was given to the Erin & Mt. Clemens • Plank-Road Company, and with like provisions, by which this company was authorized to take possession of so much of the Gratiot road ‘as lies between the termination of the Detroit & Erin Plank Road, to wit, a point 12 miles from Detroit, and the township of Mt. Clemens.’ ' This act was approved March 20, 1850, and given immediate effect. In 1855 an act was passed (No. 102) amending the act of March 13, 1848, by adding a new section (section 31) permitting all corporations that had been or .should be organized under that act to ‘substitute gravel instead of plank where plank is now used, or stone so broken as to subserve the purposes of gravel: Provided, that said gravel portion of said road shall in all cases be not less than nine feet in width, and the gravel of which the same is constructed be not less than ten inches deep, which shall be properly screened: And provided, said companies shall be subject to all the provisions and penalties in regard' to keeping said gravel road in'repair as are provided for in said act in relation to plank roads.’ This act was approved February 12, 1855, and given immediate effect. By an act approved February 7, 1857, the Detroit & Erin Plank-Road Company and the Erin & Mt. Clemens Plank-Road Company were authorized to consolidate under the name of the former company, which it was provided should hold the road and property of said company, subject in all respects to the charter of said company as amended from time to time, ‘ and to the provisions of the act relative to plank roads,’ approved March 13, 1848, and to any amendments thereof, -with ‘full power and authority to exercise all the powers, privileges, and franchises granted in their said charter, or by any law of this State, over the whole line.’ This act was given immediate effect, and provided for the purchase by the Detroit & Erin Plank-Road Company of the property, etc., of the Erin & Mt. Clemens Company, and that the consolidation should go into effect when accepted by the respective boards of. directors, and assented to by two-thirds of the stockholders of each company. Ten days thereafter, an act was approved (Act No. 184, Sess. Laws 1857) amending the act of February 12, 1855, permitting the substitution of gravel for plank, changing the first proviso so that the gravel was required to be only seven inches in depth, and omitting the words, 1 which shall be properly screened.’ This provision-was again amended in 1879 by Act No. 221, approved May 23d, changing the said first proviso so that it required the gravel used to be not less than nine inches deep, ‘ and the dirt, sand, and stones over one and one-half inches in diameter shall' be sifted out and removed from the same.’ 1 How. Stat. § 3594. It does not appear just when the actual consolidation of the two companies was effected, nor does it appear just when the portion of the Gratiot road from the junction to Mt. Clemens—the part constructed by the Erin & Mt. Clemens Plank-Boad Company—was graveled. The allegation of the bill relative thereto is that ‘ several years ag0 * * * the plank was removed from said extension by said company in accordance with an adoption by said company of Act No. 102 of the Laws of 1855 of said State, as amended in 1857 and 1879, being section 3594, 1 How. Stat.’ The defendant plank-road company demurred to the bill, thus admitting the truth of this allegation.
“It was contended on the hearing of this motion that the amendment of section 31 (the section added to the act of March 13, 1848, by the act of February 12, 1855) attempted to be made by the act of May 23, 1879, requiring the dirt, sand, and stones of one and a half inches to be sifted out and removed, when substituting gravel for plank, is void as to the defendant plank-road company; that it is an attempted change of its charter, imposing additional burdens upon the company that had not been assented to by the company, as is required to effect a change in its charter, by section 30 of the act of March 13,1848. At the date of the passage of the act authorizing the consolidation of'the two companies, February 7,1857, the act of February 12,1855, was in force, as a part of the act of March 13, 1848. This required the gravel used as a substitute for plank to be ‘properly screened.’ Under the provisions of section 2 of the consolidation act of February 7, 1857, at least the requirements of the act of February 12, 1855, must be held to have been accepted by the company, and to be a part of.the contract between the State and the company. It is one of the amendments that had been made to the charter of the company (the act of March 13, 1848), and consolidation was a sufficient acceptance thereof. The act of February 17, 1857, was given immediate effect, and whether it became an amendment of the charter of the company before actual consolidation, or not, does not appear; nor does it appear that it was ever accepted by certificate of assent filed as required by section 30 of the act of March 13, 1848. There may be a question whether this amendment,—the one of February 17, 1857,—or the one of May 23, 1879 (1 How. Stat. § 3594), is included in the term ‘any amendment thereof’ (i. e., of the act of March 13, 1848), as used in section 2 of the consolidation act of February 7, 1857. Even if the act of May 23, 1879, is not ‘an amendment thereof,’ expressly, by the terms of the consolidation act, contemplated and provided for, is it not such a future police regulation that the charter of the company must be regarded as subject to? In Carver v. Plank-Road Co., 61 Mich. 584, and 69 Mich. 616, it is held that the provisions of the act to protect travel on public highways, approved May 17, 1877, practically re-enacted in chapter 5 of the act of June 8, 1881 (1 How. Stat. § 1365 et seq.), providing for barriers in certain dangerous places in public highways,, were such a future police regulation that the charter of a dike company, made in 1848, must be, when made, regarded as subject thereto. The act of February 12, 1855, was not an attempt on the part of the legislature to change or impair the contract between the company and the State. It was the proffer of a privilege to substitute gravel for plank, with certain conditions as to the quality of the gravel the company might use. It required no written assent on the part of the company. Its action in making the substitution was an acceptance of the conditions as to the quality of the gravel contained in the proffer of the State. So far as the company acted under the proffer, it must comply with the conditions. Why should not the same rule apply to the act of 1857 and that of 1879 ? Under neither act was the company, in any respect, deprived of any of the privileges or rights granted by the original charter. It was in no wise required to substitute gravel for plank.
“ But it was said on the argument of the motion that the company did not accept or assent to the amendment made by the act of February 12, 1855, but that it did accept of the act of February 17, 1857; and it is insisted that thereby the contract between the State and the company became one wherein the company was granted the privilege of substituting gravel for plank, without its being screened,—a privilege to continue during its existence, unless it assented to a change in the contract,— and therefore the amendment in 1879 as to the quality of the gravel to be used was the imposition of an additional burden, and therefore void as to the company, until the company certifies its assent thereto, pursuant to section 30 of the act of March 13, 1848. It is to be noted that the amendment of 1879 was more than 30 years after the original charter of the company. By the original charter, the provisions of the act of March 13, 1848, were made a part thereof. The two are to be read as one act. Section 5 of the special charter of April 3, 1848, and section 30 of the act of March 13, 1848, are to be harmonized. The former section provides that the legislature may not amend in 30 years unless it shall be made to appear that the company has violated its charter, but after 30 years, impliedly, it may amend, save it shall not reduce tolls unless the net annual profits of the company exceed 10 per cent, on the capital stock. Section 30 of the act of March 13, 1848, provides that the company shall be subject to amendments whenever the company assents. It was clearly not the purpose of the legislature to leave the company the sole determiner of what amendments should have force during its whole life of 60 years. The legislature intended to make the charter unamendable without the consent of the company for 30 years, and it excepted from its power to amend for the remaining 30 years all alteration or reduction of toll, until the annual profits exceed 10 per cent, of its capital stock, but to provide that any amendments made with the consent of the company should have effect, though made within 30 years. The presumption is that the act of 1879 was passed by a vote of two-thirds of each house, in pursuance of section 8 of article 15 of the Constitution. It follows that the act of 1879 is not void as to the defendant plank-road company.
“It was suggested that the court, in its discretion,, might modify the injunction so as to avoid the restraint upon the company from the use of pure gravel from which the dirt and sand was sifted. It is evident that the object sought by the legislature in qualifying the quality of gravel to be used as a substitute for plank was to secure a good, hard roadbed in all seasons of the year, in the place of plank. The action of the legislature has been erratic. In 1855, the gravel must be properly screened. In 1857, it need not be screened. In 1867, where used on roads organized under the general act of 1851, it need not be screened, but must be at least seven inches deep, and must be of sufficient depth to make, at all seasons of the year, a good, firm, and hard road. In 1879. roads existing under the act of 1848 can only use gravel from which the dirt, sand, and stones are sifted and removed. In 1885, roads acting under the law of 1851 must put the gravel at least a foot deep, and in all cases of sufficient depth to make a good, firm, and hard road. In the acts relative to this matter from 1855 to 1885, the language of the section is practically the same, varying only in the proviso as to the quality of the gravel. I am impressed by the affidavits .of the experts with the idea that gravel from which all the dirt and sand are wholly sifted could not be used to make a road speedily without great expense. It is evident from the history of the legislation on this subject that the judgment of the members of the various legislatures has varied. But, as the statute applicable to this road is clear and explicit, I doubt the power of the court to so modify the injunction as to waive in any respect full compliance with its provisions. The determination as to the quality of the gravel to be used is the exercise of a legislative function, and not a judicial discretion.
“But it is contended that the complainants are not the proper parties to file the bill; that they are not interested in or affected by the alleged injuries; and, further, that there is a full and adequate remedy at law, wherefore there was no legal authority for granting the injunction; that the township authorities have no authority or power of supervision of the Gratiot road; that by its charter the company was given exclusive-possession of the road in the township of Erin. For some 18 or 20 years prior to the year 1848, under the act of July 21, 1830, the township authorities had control and supervision over this road, the same as they had over other roads laid out by the town authorities. It was a public highway. Congress passed no act regarding it after the act of 1827. The possession of this road given the company in 1848 was for the purpose of constructing and maintaining thereon a plank road. It did not thereby cease to be a public highway. People v. Jackson, 7 Mich. 432; People v. Beaubien, 2 Doug. (Mich.) 256; Horn v. People, 26 Mich. 221; Flint & Pere Marquette R. Co. v. Gordon, 41 Mich. 426. It is the settled policy of this State that the care and supervision of all public highways be in the hands of the highway commissioner. Delta Dumber Co. v. Wayne County Board of Auditors, 71 Mich. 572. In Sharp v. Township of Evergreen, 67 Mich. 443, the rule is applied to State roads. In 1855 ‘ An act relative to plank road companies ’ was passed (No. 122), approved February 12,1855, to take effect in 30 days, in section 5 of which the act of March 13, 1848, is amended by the repeal of parts thereof. In 1875, by Act No. 222, approved May 3d, the act of March 13, 1848, was amended by the addition of a new section (section 32), wherein the supervisory powers of commissioners of highways over plank roads is recognized. At the same time, by Act No. 232, sections 2, 3, and 4 of the act of February 12, 1855, were amended. Section 2 was so amended as to require that plank-road companies which had or might substitute gravel for plank should cause the said gravel or broken stone of proper quality and quantity to be placed upon the road, and kept, in a uniform manner, of the width and depth required by law, and providing that the prosecuting attorney, on complaint of the highway commissioner, in case of default, might institute proceedings in the circuit court, in chancery. In 1877, by Act No. 144, approved May 17, 1877, entitled ‘An act to protect travel on the public highways,’ in section 8, it is made the duty of the commissioner of highways to see that all plank or gravel road companies maintain their roads in as safe a condition as he is by this act required to keep the public highways of his township. This section 8 was amended by Act No. 103 of the Laws of 1895 so as to require the commissioner ‘ to see ’ that the said companies ‘ maintain their roads in a good and safe condition at all times. ’. The provisions of section 8 of the act of May 17, 1877, are incorporated or re-enacted in section 5, chap. 5, of the act of June 8, 1881 (1 How. Stat. § 1369), but so changed as to require the commissioner to see that said companies keep their roads in as good and safe condition as he is required to keep the public highways of his township. At that time the township was required to keep the public highways in good repair. Act of May 29, 1879, § 4 (1 How. Stat. § 1445). The requirement was changed in section 3 of Act No. 264 of the Laws of 1887 so as to require the public highways to be kept in reasonable repair, so that they shall be reasonably safe and convenient for public travel.
“I am of the opinion that the provisions of the act of 1877 (No. 144), and the subsequent enactments affecting the provisions of that act, imposing duties upon the highway commissioner and township, should be held police regulations applicable to the defendant plank-road company. They are reasonable and proper, and for the protection of the people, and to prevent injury thereto, such as the charter of this company should be held subject to, within the rule laid down in Carver v. Plank-Road Co., supra. They cast upon the township a duty relative to said road, a neglect of which may subject the township to liability for injuries resulting to persons and property from defects therein; and, upon the commissioner, duties, a neglect of which-may subject him to a penalty, and prosecution by information or indictment, under 1 How. Stat. §§ 1399, 1400. All public officers, even if not expressly authorized by statute, have a capacity to sue, commensurate with their public trusts and duties. Berrien Co. Treasurer v. Bunbury, 45 Mich. 79; Auditor General v. Railroad Co., 82 Mich. 429. The bill is not filed to decree a forfeiture of the franchises of the company. It is filed to enjoin it from using on said road, and constructing a roadbed thereon of, material not such as the statute requires, but such as, if used in the construction of a roadbed, as it is alleged they threaten to, will render said roadbed dangerous, unsafe, and impassable ioith loaded teams. In other words, it is filed to enjoin the creation of a threatened nuisance, dangerous to the traveling public. I cannot assent to the claim of the defendant plank-road company that a court of equity may not enjoin it from rendering the road dangerous and unsafe, at the instance of officers charged with the duty of seeing that it is maintained and kept in good repair, safe for travel. The allegations of the bill as to the effect on the road of the acts threatened are, by the demurrer, admitted. A court of equity, in virtue of its general jurisdiction over trusts, and to afford remedies in cases where courts of law are inadequate to grant relief, has jurisdiction to grant relief against a corporation upon the same terms it might against an individual under similar circumstances. Stamm v. Benefit Association, 65 Mich. 317. And in my opinion, the township and its authorities, upon whom is charged the duty of seeing that the road is kept safe for the traveling public, have such an interest in the matter as makes them proper complainants to the bill, and that the remedy provided by 1 How. Stat. § 3586 (section 23 of the act of March 13, 1848), is not at all adequate. High, Inj. § 1555; Town of Burlington v. Schwarzman, 52 Conn. 181; Craig v. People, 47 Ill.
496; Easton & A. R. Co. v. Inhabitants of Tp. of Greenwich, 25 N. J. Eq. 565; Inhabitants of Springfield v. Railroad, Co., 4 Cush. 63. In view of the pleadings, the admission by the demurrer of the truth of the allegations of the bill as to the effect of the use of' the material or gravel threatened to be used upon the-road by the company in the construction of a roadbed,, and in place of gravel,—that it will render said roadbed dangerous, unsafe, and impassable with loaded teams,—I think the motion to dissolve must be denied.
“In view of the importance of this matter, both to the parties and to the public, the questions whether the material threatened to be used will make the road dangerous and unsafe; whether this court, in the exercise of its discretion, can waive any of the requirements of the act of 1879 as to the quality of the gravel used as a substitute for plank in the construction of a roadbed, in case it should be satisfied that thereby a good, firm, and hard road can be made,-—-I think the court ought to adopt such a course as will tend to have these questions, as well as the one as to the power of the court to enjoin finally, determined as speedily as is consistent with due regard for the rights of those interested; and to that end I will hear, upon settlement of the order now made, the suggestions of counsel.
• “My attention has been called to the fact that the injunction issued on the amended bill restrained the use, if literally applied, of any material, including plank, ‘except gravel, or stone so broken,’ etc., ‘ from which the dirt, sand, etc., shall be sifted and removed.’ This was a clerical error, and- not in accordance with the prayer of the bill. The injunction should be so modified as to permit the use of plank in the construction of any i’oadbed. ”

We do not deem it necessary to determine just how far the amendment of 1879, that required the gravel used to be not less than nine inches deep, and that “the dirt, sand, and stones over one and one-half inches in diameter shall be sifted out and removed from the same ” (1 How. Stat. § 3594), affects this company. Before doing that, we should desire more time for the examination of the-authorities than is now available. However, in view of the allegations of the bill of complaint that the proposed action of the defendant will make the roadbed dangerous, unsafe, and impassable with loaded teams, which bill was demurred to by the defendant, and which had the effect of admitting the allegations of the bill to be true, we have no doubt that, under the police power given over public highways, it was competent for the commissioner of highways, and the township of Erin, to commence this proceeding, and for the circuit judge to issue the injunction. Neither have we any doubt that the circuit judge has a right to modify the injunction, if he is satisfied, from the showing made before him, that to do so would be to the advantage of the public, and would not Result in the 'creation of a threatened nuisance, dangerous to the traveling public. We place his right to issue the injunction and to modify it, in view of the pleadings and the affidavits accompanying them, upon the ground that it is a proper exercise of the power of the court to see that the police regulations given by the statute over highways are enforced. See authorities cited by Judge Eldredge.

The writ is denied.

Grant, Montgomery, and Hooker, JJ., concurred. Long, C. J., did not sit.

       This section was added to the act of Ig48 by Act No. 44, Laws of 1853, approved February 9, 1853.


text:
    SMALTZ v. BOYCE.

    1. Invalid Jury Lists—Authority op Circuit Judge.
    Under Act No. 201, Pub. Acts 1893, authorizing the circuit judge to direct the return of new jury lists when the current lists are declared- illegal for any reason, it is competent for the circuit judge to make such determination on his own motion, and to order the return of new lists.
    2. Jury—Challenge to Array—Instructions op Clerk to Returning Oppicers.
    A jury list is not rendered invalid by the fact that the county clerk instructed the returning officers not to return the- names of persons over 60 years of age, since by section 7571, 2 How. Stat., such persons are exempt from jury duty, and section 7555 forbids the listing of persons so exempt. Whether even an erroneous instruction by the .clerk would support a challenge to the array,—qucere.

    3. Same—Validity op Order por New Lists.
    The fact that an order for the return of jury lists directs the lists to be made by the aldermen and “supervisors,” instead of aldermen and “assessing officers,” of wards in cities, is not ground for challenge to the array, when it does not appear that any of the supervisors who returned the lists were not assessing officers.
    4 Same—Validity op List.
    It is not ground for challenge to the array that the jury list from a given ward was returned by the supervisor and one alderman, where it does not appear that they did not constitute a majority of those charged with the duty of making the return.
    5. Same.
    The fact that jury lists do not show that the names were taken from the proper assessment roll is not ground for challenge to the array, where it does not appear that any of such jurors were persons who were not assessed on the roll.

      6. Same.
    A jury list for a given ward is not void merely because it is certified by the supervisor alone.
    7. Master and Servant—When Relation Exists.
    Men employed to work in a logging camp by the owner’s agent, and upon the owner’s credit, are the servants of the owner.
    8. Same—Scope op Employment.
    Whether the foreman of a logging camp, in causing the men under his supervision, when not otherwise employed, to burn the brush on the land, for the purpose of clearing it, was acting within the scope of his employment, so as to render the owner liable to a third person for damages sustained by reason of the setting of the fires, is a question for the jury, where the time of the men while so employed was kept and paid for by the owner, and he received the benefit of the crops thereafter raised.
    9. Opinion Evidence—Origin op Fire.
    A witness cannot give his opinion that the fire by which plaintiff’s property was destroyed came from fires set on defendant’s land.
    Error to Bay; Maxwell, J.
    Submitted April 22, 1896.
    Decided May 19, 1896.
    Case by Michael Smaltz and others against Jonathan Boyce and another for the loss of property by fire, alleged to have been caused by defendants’ negligence. From a judgment for plaintiffs, defendant Boyce brings error.
    Reversed.

      Simonson, Gillett & Courtright, for appellant.

      McDonell & Hall, for appellees.

       Rehearing denied July 8, 1896.

   Hooker, J.

The most important legal question in this cause relates to the jury; a challenge to the array having been interposed, to which a demurrer was filed. The record shows that upon November 2i, 1894, at a time when no jury cases were pending before said court, an order was made, upon the court’s own motion, as follows:

“In the Matter of the Returns of Lists of Grand and Petit Jurors.
“It appearing to the court that, in making the selections of persons to serve as grand and petit jurors in this county, the returning officers have disregarded the provisions of law, it is therefore ordered that all such returns for the year 1894 be set aside, and altogether held for naught.
“It is further ordered that the supervisors and town clerks of the various townships, and the supervisors and aldermen of the various wards of the cities, in Bay county, make new lists of persons competent and qualified to serve as grand and petit jurors in this court, as provided by law, and cause the same to be filed with the clerk of this court within 30 days.
“Read, approved, and signed in open court.
“A. C. Maxwell,
“Circuit Judge.”

A letter containing some directions in relation to the return of jury lists, accompanied by a copy of the order, was sent to the several supervisors and clerks of the townships, and aldermen of the wards in cities, within said county of Bay, by the county clerk.

The order determined that the lists were returned illegally. Act No. 201 of the Public Acts of 1893 permits the circuit judge to direct the return of new lists when the current lists are declared illegal for any reason. We have no means of knowing whether this determination was based upon valid reasons or not, and the question is not before us. We are not convinced that such declaration cannot be upheld because made by the circuit judge of his own volition. When it appears that, if a jury be drawn, it cannot stand, if challenged, it would seem to be a proper thing for the judge to take steps to procure a lawful jury, and that litigants have not a right to insist upon drawing from jury lists known to be invalid, merely because some party to an action has not raised the question. Robinson v. Mulder, 81 Mich. 77; Atkinson v. Morse, 63 Mich. 279.

This case seems to have been tried at a term subsequent to that at which the order was made, and before a jury which, for aught that appears, consisted wholly of eligible persons, against which jury only technical reasons are urged. Among other reasons given in support of the challenge is the fact that the clerk sent a notice containing some directions to the officers whose duty it was to return the lists, in which they were directed not to return the names of persons over 60 years of age. This was in strict conformity to section 7555 of 2 How. Stat., which forbids the listing of persons exempt from jury duty'. 2 How. Stat. § 7571. We do not, however, mean to imply that the fact that the clerk gave erroneous advice as to the selection of persons would necessarily justify a challenge to the array.

Again, it is claimed that the order directed the supervisors and aldermen of wards in cities to make the lists, instead of aldermen and assessing officers. Usually assessments are made by supervisors, where there are such officers, and we are not informed that any lists were returned by supervisors who were not assessing officers, or that there are any cities in Bay county that have supervisors who are not assessing officers. It is true that we might run the question down, by investigating the several charters of such cities, but we assume that counsel would point out such cases, if there were any. The fact that the order contains the word “supervisors,” instead of “assessing officers,” we do not consider important, if they both mean the same officer.

We are told that the lists were returned from several wards by the supervisor and one alderman, but we are not informed that in such wards such officers did not constitute a majority of those upon whom the duty was imposed by law. People v. Fuhrmann, 103 Mich. 597.

It is said that in one ward the supervisor alone certified the list, and that “several of the lists do not show that the names were taken from the proper assessment roll.” It does not appear that any of them were persons not assessed on the assessment roll, and, if it did not, it “would not be ground for challenge to the array; and the same may be said of the return from the ward where the supervisor alone certified the list. See Niles v. Schoolcraft Circuit Judge, 102 Mich. 328; People v. Coffman, 59 Mich. 1; Wise v. Lumber Co., 86 Mich. 40. The challenge was properly overruled.

A short review of the facts is necessary to an explanation of the other points: The plaintiffs were the owners of a shingle mill, and defendant Jonathan Boyce owned and lumbered a tract of land adjoining said mill. The other defendant was his son and bookkeeper, but, as a verdict was directed in his favor, he need not be mentioned further. Jonathan Boyce lived in Grand Rapids, and conducted his lumbering operations through one Manker, his foreman, who was on the ground. Manker took charge of one camp and gang of men personally, and sent a man named Bonneyville as foreman to take charge of another camp near by, from which the fire is said to have come which destroyed plaintiffs’ mill. There was evidence tending to show that, when the men were out of work, Bonneyville employed them in clearing the land; several acres being cleared, and afterwards used to raise potatoes, which were subsequently used in the camp. On the day in question the fire was burning in the brush, having been set that day, or the day before. The defendant claims that there is no evidence that he authorized his men to clear this land or burn the brush, and that Bonneyville was not within the line of his employment in causing it to be done, and, therefore, that the court should have directed a verdict for the defendant. It must be admitted that there is no evidence that the defendant instructed his men to set fire, or knew of an intention upon their part to do so; but the fires were set by men employed through Bonneyville, who had authority from Manker, who in turn had authority from the defendant to hire men for the defendant, who paid them for their labor. We are asked to hold that these men were not servants of the defendant, but we think they were clearly such servants; being employed by his agent, and upon his credit. Manker appears to have been the person in charge of the defendant’s business. The men were engaged in clearing and burning and plowing. They had shovels and grub hoes, and other tools. Their time was kept, and payments were made by the defendant for this labor. We may properly infer that he furnished the tools used in clearing and planting this land. He is shown to have had the crops afterwards. We find no evidence indicating that he was surprised or disappointed that his men should have been kept busy at clearing up this land when out of other work. We cannot say that such was or was not generally expected of men engaged in running lumber camps for landowners, and think it was a proper question to leave to the jury, upon the proof.

It is claimed that the opinion of one witness as to the origin of the fire should not have been admitted. One of the vital questions in this cause was whether the mill was burned by fire that came from the defendants’ burning. The witnesss mentioned said that in his opinion it did, in answer to the question, “What can you say as to what fire it was that burned the mill, taking all the circumstances?” This was a question for the jury, and not for the witness, and should have been'excluded.

The record contains a large number of assignments of error which we think it unnecessary to discuss.

The judgment is reversed, and a new trial ordered.

Montgomery and Moore, JJ., concurred with Hooker, J. Grant, J., concurred in the result. Long, O. J., did not sit.


text:
    WAGAR v. BOWLEY.
    Vexatious Appeal—Damages.
    Where a cause, upon being remanded by the Supreme Court, lias been disposed of by the circuit judge in accordance with the opinion then rendered, a second appeal, based upon the same state of facts, and raising only the questions previously determined, is within 2 How. Stat. § 8982, authorizing an award of damages for a vexatious appeal.
    Appeal from Osceola; McMahon, J.
    Submitted April 10, 1896.
    Decided May 26, 1896.
    Bill by Warren A. Wagar and another against Gideon Bowley and others to quiet title under a tax deed. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      M. A. Lafler, for complainants.

      C. H. Rose, for defendants.
   Moore, J.

This, case has been here before, and is reported in 104 Mich. 38. The proceeding is a bill to quiet title, complainants claiming to be the owners of the lands described in the bill by virtue of tax deeds. Defendants claim to be the owners of the original title, and also claim the tax deeds are void, because of irregularity in levying the tax. The case was sent back for trial, because the pleadings were not so framed as to admit the testimony offered on the part of defendants. In the •opinion rendered by Mr. Justice Montgomery, it was said:

“It is unnecessary to discuss at length the evidence offered to show the invalidity of the tax. There was testimony which tended to show that there was included in the tax levy $200, illegally added to the salary of the judge of probate. If this should be proven on a new trial, it would be sufficient to avoid the tax deed of 1875. Douvielle v. Board of Supervisors, 40 Mich. 585; Silsbee v. Stockle, 44 Mich. 561; Hammontree v. Lott, 40 Mich. 190; Lacey v. Davis, 4 Mich. 140; Case v. Dean, 16 Mich. 12; Edwards v. Taliafero, 34 Mich. 13. The deeds for the other years are admitted to be void. The case will be remanded, with leave to defendants to amend their answer, setting up defects claimed to exist in the proceedings taken to spread the tax. The testimony taken may stand, provided the complainants shall be given the right to cross-examine defendants’ witnesses.”

The pleadings were amended in the court below. The same proofs were, introduced in evidence on this trial as in the former trial. The defendants produced in court, for cross-examination, their witnesses. The complainants declined to cross-examine them. No new proofs were taken. The circuit judge dismissed the bill, for the reason that the tax deed of 1875 was void, as stated in the opinion of Justice Montgomery. The complainants appealed.

It is difficult to say why they have appealed, unless it is to vex and worry the defendants. They have not cited an additional authority, or suggested a new argument. The solicitor for defendants asks for damages because of a vexatious appeal, as provided by 2 How. Stat. § 8982. We think the, case comes within the provisions of that statute. Campau v. Campan, 25 Mich. 131; Heath v. Waters, 40 Mich. 473.

We therefore affirm the decree of the court below, with the costs of both courts, and with $30 damages against complainants for their vexatious appeal.

Grant, Montgomery, and Hooker, JJ., concurred. Long, O. J., did not sit.