author: Hooker, J.

text:
    TOWNSEND v. JACKSON CIRCUIT JUDGE.
    1. Practice — Discontinuance—Costs.
    Upon the discontinuance of a cause as to one defendant, at the time of trial, under Circuit Court Rule 27, subd. b, the right to an immediate payment of costs may be waived by suffering an order of discontinuance to be entered and the trial to proceed.
    2. Same — Statutes.
    The rights of such defendant to taxable costs are not depend-ant upon 3 Comp. Laws, § 11236, requiring a certificate of the circuit judge that the joinder was unnecessary or unreasonable.
    3. Judgments — Conditional Order Vacating.
    An order vacating the judgment obtained by plaintiff against the other def ndant, unless the costs awarded on the discontinuance were paid within 24 hours, is unauthorized.
    4. Mandamus — Orders Review able.
    In Michigan the practice prevails of reviewing the taxation of costs on mandamus.
    5. Same.

      Queere — Whether a conditional order vacating a judgment may be reviewed on mandamus.
    Mandamus by Lemuel C. Townsend to compel James A. Parkinson, circuit judge of Jackson county, to vacate an order awarding costs.
    Submitted April 27, 1909.
    ( Calendar No. 23,345.)
    Writ granted June 7, 1909.

      Frank L. Blackman, for relator.

      Grove H. Wolcott, for respondent.
   Hooker, J.

Relator brought assumpsit against Lewis K. Kent and Lou Edda Kent, husband and wife, by attachment; the affidavit alleging the existence of an express contract. Upon the trial, and after the conclusion of the proof, relator moved that he be allowed to discontinue against Lou Edda Kent, under Circuit Court Rule 27; the proof failing to show that she was a party to said contract. An order of discontinuance was thereupon entered in her favor, and, the cause being submitted to the jury, a verdict and judgment were rendered as against Lewis K. Kent. Circuit Court Rule 27, subd. b, provides:

“ (6) When an action is brought against several persons, the plaintiff shall, at any time before the final submission of the cause, be allowed to discontinue as against any of the defendants, upon the payment of costs to them, as in case of nonsuit, and upon such other terms as the court shall-direct, and the plaintiff may thereupon amend his declaration, and proceed against the other defendants in like manner, as if the action had been originally brought against them alone.”

Relator was afterwards served with a motion to set aside the judgment against Lewis Kent because no costs had been paid to Lou Edda Kent, and at the same time with a bill of costs, with notice of taxation, and at the proper time and place he appeared and objected to such taxation upon the ground that no certificate that the joinder of Mrs. Kent was “unreasonable and unnecessary” had been made by the judge in accordance with 3 Comp. Laws, § 11263, which provides:

Sec. 8. If in any action founded upon a contract, the plaintiff fail to recover against one of several defendants on the trial, or if judgment on a plea in abatement, or on demurrer, be rendered in favor of one of several defendants ; or if, by the plaintiff’s discontinuing as to such defendant, he be acquitted; such defendant shall not be entitled to‘recover costs, unless a certificate be given by the judge or court before whom the trial shall be had or the judgment shall be given, and be entered in its minutes, that such defendant was unreasonably and unnecessarily made a party to such action.”

After the costs had been taxed in favor of Lou Edda Kent, relator moved the circuit court for an order setting aside and disallowing the taxation of costs of Lou Edda Kent, and this motion and that of Lewis K. Kent were heard together. The court overruled relator’s motion, and entered an order confirming the taxation made by the clerk, and providing further that the verdicts and judgments theretofore rendered he vacated and set aside, unless the plaintiff (relator) ‘ ‘ shall within 24 hours pay said costs and an attorney’s fee of $5.” Relator thereupon obtained an order to show cause why a mandamus should not issue to require the circuit judge to vacate said order, and the cause is before us on the answer of the judge. The answer shows that neither defendant asked payment of costs before amendment or trial.

Defendant Lou Edda Kent had a right to ask payment of costs before discontinuance, but she did not insist upon it; her counsel permitting the entry of the order of discontinuance the amendment and trial, without protest. This was a waiver of the condition of immediate payment, and she must depend upon her execution for the collection of her judgment. On the other hand, the ' learned circuit judge did not err in refusing to hold that the defendant was not entitled to costs. It is true that, had plaintiff proceeded under 3 Comp. Laws, § 11263, he would have been protected by its provisions; but he chose to proceed under the rule which gave him the right to discontinue upon the trial with a right to amend. The statute has no application under the circumstances. We must therefore deny the prayer of relator’s petition as to the vacation of defendant’s order, but we are constrained to hold that the order vacating the judgments cannot stand, and the same must be vacated.

It is urged that mandamus is not a proper remedy for the reason that the order is final and reviewable on error. It has been usual to review the action of the circuit courts on retaxation of costs by mandamus. As we said in Schmidt v. Wayne Circuit Judge, 136 Mich. 658 (99 N. W. 877), the practice is anomalous, and might in some cases be productive of some unnecessary proceedings. The practice is settled, however, and will be followed, unless hereafter changed by rule. There is perhaps more doubt of the remedy in relation to the conditional order of the judge in relation to the judgments. If it can be considered final, and perhaps it ought to be, error should be the remedy, for the record seems to show the facts upon which the alleged error is based. In view of the peculiar situation, we dispose of both questions without determining the latter question of practice, leaving that for future consideration if opportunity shall offer in another case.

The writ will issue as indicated.

Blair, C. J., and Moore, McAlvay, and Brooke, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    NICHOLLS v. BOYNE CITY LUMBER CO.
    Equity — Adequate Remedy at Law — Ejectment.
    Equity has no jurisdiction to eject the claimant of lands in possession under a disputed claim of ownership, although the bill of complaint prays the determination of riparian rights and incidental relief.
    Appeal from Charlevoix; Mayne, J.
    Submitted April 28,1909.
    (Docket No. 121.)
    Decided June 7, 1909.
    Bill by John Nicholls and Mary R. Morgan against the Boyne City Lumber Company to determine the boundary and riparian rights of certain real estate. From an order overruling a demurrer to the bill, defendant appeals.
    Reversed, and bill dismissed.

      .Henry A. Jersey and George E. Nichols, for complainants.

      J. M. Harris, for defendant.
   Brooke, J.

In this cause the complainants filed their bill of complaint, averring that they and their grantors by mesne conveyances had in 1879 become the owners of the southwest fractional quarter of section 35, town 33 north, range 6 west, bordering upon the shore of Pine Lake; that they proceeded to plat that portion of it lying along the lake shore and east of the section line between sections 84 and 35, and that portion of said plat adjoining immediately said section line was described as “block J that the defendant owns block J, and by reason thereof is entitled to and owns all that accretion added to said water front of said block J since 1882, and immediately northeast of the said northeast boundary of said accretion of complainants, and adjacent thereto very nearly north 117 feet on the present shore line, and do own 309.55 feet of the present shore line measured from the said section line southeast, and that these complainants own, to wit, 188 feet on the present shore line mediate the said 117 feet and 309.55 feet of said defendants; that the defendants in 1903, without the knowledge of the complainants, unlawfully entered upon the premises above described and erected thereon a sawmill and railroad tracks, and a large tank, and placed thereon logs and lumber, and drove piles into the ground beneath the water of said appurtenant water rights, and put booms and logs thereon, and are now continuing said acts.

The relief prayed is:

“ (1) That said particular description of land be decreed to belong to complainants, and that they are entitled to said appurtenant water rights.
‘ ‘ (2) That the said boundaries of these complainants’ lands and water rights, as described and defined herein, be determined and decreed to be the proper and lawful boundaries thereof.
“ (3) That the court fix and determine the extent of said line of navigability, and that the court fix, define, and determine the boundaries and extent of all navigable and wharfage rights and privileges of said complainants appertaining to their said lands so herein described as aforesaid.
“(4) That a mandatory injunction issue commanding and compelling the said Boyne City Lumber Company to remove the said mill and railroad tracks and said tank and all structures, objects, logs, lumber, and forest product which have been, or may be, placed therein by said defendant from said lands, and to remove all said piles, booms, docks, logs, timbers, and like objects which have been, or may be, placed in and upon said appurtenant water.”

To this bill defendant interposed a demurrer for the following reasons:

“ (1) There is no equity in the said amended bill of complaint. (2) The complainants by their showing in the amended bill have an adequate and complete remedy at law. (3) The allegations contained in said amended bill of complaint fail to disclose that the said complainants, or either of them, have any title, legal or equitable, to the lands therein described. (4) For the reason that the allegations in said amended bill fail to disclose that the complainants, or either of them, are entitled to possession of the property described in the amended bill of complaint.”

From an order overruling said demurrer, defendant appeals.

It is apparent from the allegations of the bill that, by reason of the recession of the waters of Pine Lake, certain accretions have become appurtenant to block J, and likewise to the land immediately adjoining and to the west thereof. The complainants invoke equitable jurisdiction upon the ground that the bill is filed to determine the riparian rights of the parties, and to fix the boundary line of navigability, claiming that ejectment of the defendant from the premises in dispute by the mandatory injunction of the court is a mere incident.

We are of opinion that this claim cannot be sustained. The bill of complaint describes by metes and bounds a particular piece of land. It avers ownership thereof in the complainants. It likewise avers that the defendant has taken and is now in possession of the same under a claim of ownership. Under such averments, we think equity has no jurisdiction, and the rights of the parties should be determined by a suit at law in ejectment. See Kilgannon v. Jenkinson, 51 Mich. 240 (16 N. W. 390), where this court said:

“A full review of the proceedings makes it entirely clear that the fundamental dispute is about the correct position of the line between lots 3 and 7and the conclusion reached by the court “is that the case in the record is not one of which a court of equity is authorized to take cognizance. The grievance implies legal remedies, and there are no elements to divest the jurisdiction at law and entitle equity to deal with the controversy.”

To the same effect, see Wykes v. Ringleberg, 49 Mich. 567 (14 N. W. 498); Andries v. Railway Co., 105 Mich. 557 (63 N. W. 526); Dolan v. Smith, 147 Mich. 276 (110 N. W. 932); Simmons v. Day, 151 Mich. 1 (114 N. W. 853); Warren v. Warren, 151 Mich. 96 (114 N. W. 867).

The order overruling the demurrer is set aside and the demurrer sustained.

Blair, C. J., and Montgomery, Hooker, and Mc-Alvay, JJ., concurred.


text:
    NICHOLLS v. W. H. WHITE CO.
    Equity — Adequate Remedy at Law — Ejectment.
    This case is ruled by the case of Nicholls v. Boyne Gity Number Co., ante, 284.
    Appeal from Charlevoix; Mayne, J.
    Submitted April 28, 1909.
    (Docket No. 122.)
    Decided June 7, 1909.
    Bill by John Nicholls and Mary R. Morgan against W. H. White Company and the Boyne City Lumber Company to determine the boundary and riparian rights of certain real estate. From an order overruling a demurrer to the bill, defendants appeal.
    Reversed, and bill dismissed.

      George E. Nichols, for complainants.

      J. M. Harris, for defendants.
   Brooke, J.

This case is ruled by the case of Nicholls v. Boyne City Lumber Co., ante, 234 (121 N. W. 742).

The order overruling the demurrer is set aside, and the demurrer sustained.

Blair, C. J., and Montgomery, Hooker, and Mc-Alvay, JJ., concurred. •


text:
    PEOPLE v. BEEBEHYSER.
    1. Criminal Law — Embezzlement—Statutes.
    The conversion by an employé of transfer checks of a street railway company is not an embezzlement of railroad tickets within the terms of 3 Comp. Laws, § 11627.
    2. Same — Information.
    The offense should be ■ charged in the information under the terms of 3 Comp. Laws, § 11565, as amended by Act No. 102, Pub. Acts 1905.
    3. Statutory Construction — Legislative Interpretation.
    By re-enacting a statute which applies to railroads so as to mention interurban railways, the legislature construes the original act as intended to apply only to steam roads, and its construction is entitled to consideration by the courts.
    Exceptions before judgment from the recorder’s court of Detroit; Phelan, J.
    Submitted April 30, 1909.
    (Docket No. 120.)
    Decided June 7, 1909.
    Edward Beebehyser was convicted of embezzlement.
    Reversed, and respondent discharged.

      Sellers, Kelley & Sellers (Cassius Hollenbeck, of counsel), for appellant.

      Philip T. Van Zile, Prosecuting Attorney, and Fred H. Aldrich, Assistant Prosecuting Attorney, for the people.
   Brooke, J.

The respondent was convicted in the recorder’s court for the city of Detroit on an information charging him with fraudulently and feloniously embezzling and converting to his own use 37 passenger railroad tickets, the property of the Detroit United Railway; said railroad tickets being in fact undated, unpunched transfer checks, of the Detroit United Railway, Cross Town Line West. The information was based on section 11627, 3 Comp. Laws, which reads as follows:

“If any officer, agent, clerk or employé of any incorporated railroad company shall fraudulently embezzle, dispose of or convert to his own use, any passenger railroad ticket or tickets, whether such tickets are fully prepared for use, or not so fully prepared, or use tickets which have been once used and which have come to his hands or charge by virtue of his office or employment, he shall be punished by imprisonment in the State prison not exceeding five years, or by fine not exceeding one thousand dollars, or both, at the discretion of the court. In any prosecution under this section it shall be lawful to include in a charge, as one offense, all acts constituting such offense committed between certain days set forth, and it shall be sufficient to set forth by general description the tickets alleged to have been unlawfully taken; and it shall be sufficient to maintain the charge if it shall be proved on (the) trial that any such ticket or tickets were within the period set forth, embezzled, disposed of or converted by the defendant charged in said posecution as alleged.”

The principal error alleged by the respondent is that the court erred in failing to direct a verdict for the respondent upon the ground that the transfers set forth in the information were not passenger railroad tickets within the meaning of section 11627, 3 Comp. Laws, above quoted. The title of the act containing this section is as follows:

“An act to define certain offenses affecting railroads, and to provide punishment for the same.”

It was passed in 1869. Act No. 164, Laws 1869. Two years prior to that time, 1867, the legislature passed an act (Act No. 35, Laws 1867) entitled:

“An act to provide for the formation of street railway companies.”

In the act of 1869 no reference whatever is made to street railways, but throughout the act the word “railroad ” is used. In 1897 the legislature enacted section 6467, 2 Comp. Laws, which is almost identical with section 11623, 3 Comp. Laws, which is the first of the six sections of the act of 1869, entitled: e'An act to define certain offenses affecting railroads, and to provide punishment for the same,” making the same applicable to suburban railways. If the contention of the people is the correct one, section 11623 needed no re-enactment in order to bring suburban roads within its terms. If, on the contrary, it was necessary to re-enact it to make it applicable to suburban roads, it is obvious that section 1162? — a portion of the same act — was never intended by the legislature to affect street railways. It is therefore clear that the legislature itself has construed sections 11623-11628 as applicable to steam railroads only, and its construction of the statute should receive due consideration. See Endlich on Interpretation of Statutes, § 528; State Line, etc., R. Co.'s Appeal, 77 Pa. 432.

This court has recognized the distinction between street railways and a railroad proper. See Nichols v. Railway Co., 87 Mich. 371 (49 N. W. 538, 16 L. R. A. 371); City of Monroe v. Railway, 143 Mich. 321 (106 N. W. 704). See, also, Lincoln Street R. Co. v. McClellan, 54 Neb. 676 (74 N. W. 1074, 69 Am. St. Rep. 736). A further ground for distinction is found in the fact that in Michigan railroads and street railways are kept separate for the purposes of taxation. City of Detroit v. Railroad, 149 Mich. 531 (113 N. W. 365)! It has been held that criminal statutes cannot be enlarged by construction. See People v. Caton, 25 Mich. 388. In McDade v. People, 29 Mich. 52, this court said :

“ It is a well-settled general rule, and one specially applicable in the interpretation of statutes which define crimes and regulate their punishment, that general words are to be restrained to the matter with-which the act is dealing, and that, if it be dealing with specific things or particular modes only, the general words must be limited to such things or modes, except when it is apparent that the legislature intended by the general words to go further ” — citing many cases.

We think the information should have been brought under the general embezzlement statute, section 11565, 8 Comp. Laws, as amended in 1905 (Act No. 102, Pub. Acts 1905).

Judgment reversed, and respondent discharged.

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


author: Mooke, J.

text:
    PEOPLE v. WOLFF.
    1. Criminal Law — Embezzlement—Title.
    Although the respondent charged with embezzlement claimed that he retained funds of his employer in his hands to secure his compensation, it was not error to submit the case to the jury, under the testimony that no compensation was payable until the funds were turned over.

      2. ^ame — Argument of Counsel.
    In the absence from the record of counsel’s argument, the court cannot say that error was committed in instructing the jury that defendant’s counsel need not become excited or bring before the jury their personal opinions.
    3. Same — Embezzlement—Intent.
    The court’s instructions to the jury were not erroneous, instating that an intent to defraud is necessary to constitute embezzlement, when the jury were also instructed that the defendant was guilty if he converted funds of his employer to his own use with felonious intent.
    4. Same — Complaining Witness.
    Failure of the complaining witness, who was engaged in business under a fictitious name, to register in the county clerk’s office as required by Act No. 101, Pub. Acts 1907, does not constitute a defense to a criminal charge.
    Exceptions before judgment from the recorder’s court of Detroit; Phelan, J.
    Submitted April 30, 1909.
    (Docket No. 119.)
    Decided June 7, 1909.
    Maxmillian Wolff was convicted of embezzlement.
    Affirmed.

      Sellers, Kelley & Sellers (Cassius Hollenbeck, of counsel), for appellant.

      Philip T. Van Zile, Prosecuting Attorney, and Fred H. Aldrich, Assistant Prosecuting Attorney, for the people.
   Mooke, J.

An information was filed charging respondent with the embezzlement of $67 from Charles B. Wagstaff, doing business as the City Coffee & Spice Mills. The respondent was convicted of the embezzlement of $37.95. The case is brought here before judgment.

The respondent was in the employ of Mr. Wagstaff, who claims that during the employment the respondent embezzled the money as charged in the information. The respondent claims that Mr. Wagstaff did not allow him commissions to which he was entitled, particularly on a sale of peanuts made to the manager of Bennett Park, and that respondent withheld the money to obtain a settlement with Mr. Wagstaff, and that he had no intention to embezzle the money. It is claimed the court should have directed a verdict for the respondent because the fund in respondent’s hands was one in which he had a joint interest. This claim ignores the testimony of Mr. Wagstaff, to the effect that the respondent “was to receive his pay from me after the bills were collected and the money turned over to me.”

Complaint is made as follows. We quote from the brief:

“ In the introductory portion of the charge of the court to the jury, after criticising the closing argument of counsel for defendant at some length, the court said:
“‘The people of this State have charged this defendant with a crime, and there is no necessity for any person connected with the trial of this case to become excited or to become angered, or to endeavor to force or bring before you their personal opinion of whether he is guilty or not guilty.’ ”

It is said the accused had a right to be represented by counsel and to have his case argued in the style of said counsel, and that the counsel had the right to impress the jury with his belief in the innocence of his client. The record does not contain the argument of counsel, but it may be said as a general statement that it is the duty of the judge to direct and control the progress of the trial. We cannot say the language used by the court was no¿ proper language for him to use in view of the argument made by counsel. We again quote from the brief:

“The court erred in charging the jury: ‘In other words, the gist of the offense of embezzlement is the breach of trust.’ A mere breach of trust is no crime, there must be coupled with it the intent to defraud to make it a crime. ‘ In embezzlement, as in most crimes, the essence of the offense or that which makes it criminal is the intent with which the act is done’” — also citing other authorities.

A fair impression of the charge is not given by taking the isolated sentence quoted above. In that connection the jury were instructed:

“ In order to constitute the offense of embezzlement, it must distinctly appear, gentlemen of the jury, that Wolff acted with felonious intent and made an intentional wrong disposal of the money that he collected for Mr. Wag-staff while in Mr. Wagstaff’s employ. An intent to convert funds to one’s own use is a necessary element in embezzlement, and as such is a question of fact for you to find from all the evidence, with all the circumstances attending or surrounding the case. * * * I charge you that the mere failure, to pay over money by an agent to his principal after the agent has collected or received it for and on account of his principal does not of itself constitute the crime of embezzlement, nor does the conversion of it by the agent to the agent’s own use after reception or collection by the agent and failure to pay it over to his principal constitute the crime of embezzlement under the law of the State. There must be a felonious intent, as I said in the opening of my charge; There must be a felonious intent upon the part of the defendant at the time of the conversion to appropriate it to his own use to deprive the owner of it.”

The same proposition was stated in various forms.

We again quote from the brief:

“ Complaint is made that the court did not bring to the attention of the jury the necessity of the prosecution showing complaining witness, Wagstaff, who was doing business under the assumed name of the City Coffee & Spice Mills, was from February 1, 1908, to June 1, 1908, legally registered in the county clerk’s office as required by Act No. 101, Pub. Acts 1907. No such proof was made. It was a part of the people’s direct case to show the complaining witness a legally constituted prosecutor, and not a violator of the law, guilty of a misdemeanor, in the right he was endeavoring to enforce.”

We do not think this contention is well .taken. Even though Mr. Wagstaff may have failed to comply with the law, it would not justify the respondent in violating the law or excuse him from its penalties.

Complaint is made of other portions of the charge. It may be said that some of the language quoted by counsel might well have been omitted, but the theory of the respondent and his counsel was fully and at great length submitted to the jury. We do not find any reversible error. The case will be remanded and the trial judge will proceed to judgment.

Affirmed.

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


author: McAlvay, J.

text:
    DUSAW v. STATE VETERINARY BOARD.
    Mandamus — Veterinary Medicine and Surgery — Statutes.
    Failure to state, in the affidavit of an applicant to be admitted to practice veterinary medicine and surgery, that the applicant has practiced the same in their various branches for five years, etc., and a failure to show by letters of recommendation the facts, although conclusions of the writers were stated, justifies the board of registration in refusing to register him. Act No. 244, Pub. Acts 1907.
    Mandamus by Fred Dusaw to compel the State veterinary board to register relator under the provisions of Act No. 244, Pub. Acts 1907.
    Submitted May 4, 1909.
    (Calendar No. 23,325.)
    Writ denied June 7, 1909.

      Clayton C. Golden and Willis Baldwin, for relator.

      John E. Bird, Attorney General (Henry E. Chase and Arthur P. Hicks, of counsel), for respondent.
   McAlvay, J.

Relator asks for a writ of mandamus against respondent board to compel it to issue to him a certificate of registration as an existing practitioner of veterinary medicine and surgery under section 4, Act No. 244, Pub. Acts 1907. The material portion of this section reads as follows:

“ Any person who has practiced veterinary medicine or surgery in their various branches in this State for five years prior to the passage of this act shall be eligible to become registered as an existing practitioner, and entitled to receive a certificate of registration from the State board as such: Provided, That any such person shall, on or before the first day of January, nineteen hundred eight, file with the secretary of State veterinary board, an affidavit, showing that he has been continuously so engaged, and shall also present letters of recommendation from ten reputable freeholders and stock raisers of this State, who shall have employed him, showing him to be qualified to practice veterinary medicine or surgery as above set forth.”

His application was refused on the ground that his affidavit, and the letters of recommendation accompanying it, did not conform with the requirements of the statute above quoted, and did not show that for five years prior to the passage of this act he “ has practiced veterinary medicine and surgery in their various branches in this State.”

He was so informed by respondent, and blanks were sent him drawn in conformity with the requirements of the law. He refused to act upon the suggestion of respondent, and wrote that under the advice of his attorneys he would rely upon the showing he had made. His affidavit attached to his application, which states that it is made under this statute, reads (omitting the formal parts):

“ Fred Dusaw, of said county, being duly sworn, deposes and says that he has been a resident of the State of Michigan for five years prior to the 27th day of June, 1907, and that during that time he has been continuously engaged in the practice of veterinary medicine and surgery. ”

The merit of brevity in this affidavit is to be commended, but in omitting the words “in their various branches” it falls short of statutory requirements. The 10 letters of recommendation filed with his application are chargeable with the same infirmity. They speak of animals treated generally as “stock,”and state conclusions. The time of the employment does not cover the statutory period, or indicate dates or character of the services rendered, or that relator had practiced veterinary medicine and surgery in all its branches. Respondent had nothing before it which would shed any light upon the applicant’s statutory qualifications, and its offers of assistance to bring relator within the statute were not accepted. Respondent board was correct in denying the application for the reasons given.

The writ is denied.

Blair, C. J., and Grant, Montgomery, and Brooke, JJ., concurred.


author: Blair, C. J.

text:
    BUELL v. ADAMS.

    1. Contracts — Estates of Decedents — Consideration.
    Where it conclusively appears that deceased agreed to compensate claimant for caring for his sister, either by giving her a life estate in certain land and a conveyance of the fee after the sister’s death, or by a payment of a certain sum yearly, it was a question for the jury to determine which contract was made, and either was supported by good consideration.
    2. Same — Breach—Executors and Administrators.
    Refusal by the administratrix to carry out an oral contract for the conveyance of lands operates as a breach, if it was intended to bind the executors and administrators of deceased.
    3. Implied Contract — Work, Labor and Services.
    Upon the failure to perform an oral contract to convey lands of the deceased, in payment for services rendered, an agreement is implied by law to pay the fair value of the services.
    4. Trial — Instructions to Jury.
    It is error for the court to intimate to the jury his opinion that they should find the issue of fact against the claimant.
    Error to Marquette; Stone, J.
    Submitted May 5, 1909.
    (Docket No. 56.)
    Decided June 7, 1909.
    Lucy P. Buell presented a claim against the estate of Sidney Adams, deceased, for services rendered. The claim was disallowed in the probate court, and claimant appealed to the circuit court. A judgment for defendant is reviewed by claimant on writ of error.
    Reversed.

      J. L. Heffernan, for appellant.

      Hill & Smith, for appellee.

       Rehearing denied November 5, 1909.

   Blair, C. J.

Claimant filed in the probate court for Marquette county the following claim against the estate of Sidney Adams, deceased, viz.:

To eight years’ care of sister of deceased, Mary J. Warren, from June, 1893, to August, 1901, in a particular manner, according to written agreement, signed by Sidney Adams, agreeing
to pay $200 per year..........................$1,600 00
Less payments on same as follows:
June, 1893............................$200 00
July 10, 1895 ......................... 6 80
October, 1897 ........................ 50 00
May 14, 1901 ......................... 20 00
March 1, 1906 ........................ 200 00 476 80
Leaving a balance of........................ $1,123 20

Mary J. Warren is the mother of claimant, and was a sister of Sidney Adams. The probate judge heard and. disallowed the claim, and claimant appealed to the circuit court. The case was tried before a jury in the circuit court, who returned a verdict of no cause of action, and claimant brings the record to this court for review, upon the following assignments of error:

“ (1) The court erred in holding that an implied agreement could not be shown, under the circumstances of this case, in case a special or express contract was not proven under the decision in Van Fleet v. Van Fleet, 50 Mich. 1 (14 N. W. 671).
“ (2) The court erred in respect to the request of appellant (bracket 5 of charge) by qualifying it as in bracket 6 of charge. The other assignments of error are to charge, brackets Nos. 1, 2, 3, 4, 7, 8.”

Claimant’s husband testified that the agreement was contained in a letter which had been lost:

“Q. What did it say ?
“A. It stated that Mr. Adams was to give this $200 a year as long as we would take care of ‘ Mother.’ He always worded it ‘Mother ’ or ‘ Mary Jane.’
“Q. That was in the letter, was it ?
“A. Yes, sir.”

Mrs. McCormick, a sister of claimant, testified to a conversation with Mr. Adams, in which he said, referring to claimant:

“It will pay her to put up with a great deal from her mother, to get $300 a year.’ £ Well,’ I said,£ if that is the case, I have nothing more to say.’ * * *
“Q. Did he ever say anything further about the $300 a year at any time ?
“A. Yes; once afterwards. That was somewhere in 1899, when he was making an agreement with me to take my aunt.
“Q. What did he say about this matter ?
“A. He said he had her settled, and he was to give my sister $300 a year, and of course that was along in the conversation with what he would do for me because I took my aunt.”

Claimant testified that the letter containing the agreement was received in May, 1893. She and her husband testified to an exhaustive search for the letter, and inability to find it. Numerous letters from Mr. Adams to claimant, and several from claimant to Mr. Adams and to his wife, the contestant herein, were received in evidence. Mr. Adams went to California in September, 1903, and remained in that State until he died, December 16, 1906. The evidence tended to show that claimant assisted her sister, Mrs. McCormick, in caring for her mother and her aunt, as requested by Mr. Adams.

First assignment of error: The undisputed evidence in this case shows that Mr. Adams was very solicitous to arrange with claimant to take care of his sister, and we think it appears with equal clearness that he expressly agreed to compensate her therefor. The question of fact on this branch of the case is as to the character of the agreement. The testimony of claimant’s husband and sister tended to show a written agreement, in accordance with the claim filed, to pay claimant for taking care of his sister $300 per year. The documentary evidence tended to show an agreement between the parties that complainant should care for her mother as long as she lived, for the use of a certain 40 acres till her mother’s death, with such reasonable amount of money as probably would be needed, and then a deed thereof, which agreement was subsequently modified by providing that claimant should assist her sister, Mrs. McCormick, in taking care of both of Mr. Adams’ sisters. In our view of this record an agreement in writing, signed by Sidney Adams, to compensate, conclusively appears, and, aside from the question of claimant’s performance of the agreement, the only question for the jury was whether Mr. Adams agreed to compensate claimant by a yearly cash payment, or by the use of the 40 acres during his sister’s life and a deed upon her death. Either phase of the agreement was supported by a good consideration, and was binding upon the parties, if made. Grimm v. Taylor’s Estate, 96 Mich. 5 (55 N. W. 447). If- the jury found from the evidence that the agreement was for compensation by deed, etc., which had been performed by claimant, and performance of which had been refused or rendered impossible on the part of Mr. Adams, they would be'entitled to find, and it would be their duty to find, an implied agreement to pay her the value of her services. Van Fleet v. Van Fleet, 50 Mich. 1 (14 N. W. 671); Dickerson v. Dickerson, 50 Mich. 37 (14 N. W. 691); In re Williams’ Estate, 106 Mich. 490 (64 N. W. 490); Sammon v. Wood, 107 Mich. 506 (65 N. W. 529); Rhea v. Meyers’ Estate, 111 Mich. 140 (69 N. W. 239).

The circuit judge instructed the jury that claimant could not recover anything:

‘ ‘ Unless you find by a preponderance of evidence that there was a special agreement upon the part of Mr. Adams to pay this $200 a year. Why ? He was under no legal obligation to support this woman, Mrs. Warren. True she was his sister, but she was also the mother of claimant. We have not been shown any law of the State of Wisconsin as to what the law of that State is as to the duty of Mrs. Buell to support her own mother. We simply leave it there, I say, and there was no legal obligation on the part of Mr. Adams to do it. And she cannot therefore come into court and say that, because she has taken care of Mrs. Warren, she has a just claim against Mr. Adams’ estate for it, unless she shows there was an agreement to that effect. And right there, gentlemen, you are up against the proposition: Has the claimant shown you by a preponderance of evidence that there was such an agreement, made in perhaps the month of May, or possibly June, in 1893 ? The letters bearing date during May of that year do not- express any such agreement. They refer to another transaction. They refer to a proposition of buying a 40 acres of land, and holding it for the benefit of these parties, the use of which they seem to be contemplating to have. But there is a claim before the court, gentlemen, that one letter is missing. There has been evidence offered here sufficient to permit the evidence to reach you at least tending to show the loss of a letter, and I invite your attention to that. It is claimed really here by the claimant that in a letter written about the time that I have mentioned, Mr. Adams stated to the claimant that he would give |200 a year to her for the support of Mrs. Warren as long as she and the family would take care of her. That is the claim here. ”

After referring to the testimony of claimant’s husband and sister, the court proceeded:

c< I have called your attention to the only two items of testimony which I think tend to show any agreement on the part of Mr. Adams. You have listened to the testimony as adduced in these letters, this correspondence back and forth. Is there anything else, gentlemen, in all this correspondence, at least after 1901, that in any way indicates that Mr. Adams was to pay a specific sum ? * * * But notwithstanding anything that Mr. Adams stated in these letters in 1888, 1889, or 1901, unless you shall find that he made the express promise to pay $200 a year, for the support of Mrs. Warren in 1893, just before she went down to Wisconsin, then you ought not to find in favor of this claimant, for the other letters in evidence are contradictory of this claim. They all seem to bear on the question of buying the 40 acres of land and giving Mrs. Buell the use of it until the death of Mrs. Vfarren, when, as I understand it, the property was to be Mrs. Buell’s. Mrs. Warren is still alive. There can be no claim, therefore, based upon that proposition, and the fact that Mr. Adams did buy a piece of land and deed it, or caused it to be deeded, to Mrs. Buell, and had paid the interest upon some portion of it for a time and still seems to hold a mortgage upon this property, as I understand it — the mortgage is undischarged, or has it been discharged ?
“Mr. Hill: No; in 1901 the Buells took it up and carried the mortgage in Wisconsin.
The Court: Very well. That mortgage is out of the way, as I understand it.”

The fact that Mrs. Warren is still living would not, in our opinion, interfere with claimant’s right of action if the jury should find, as the evidence tended to show, that it was understood between Mr. Adams and claimant that, if he had not carried out the agreement on his part at the time of his death, Mrs. Adams, the administratrix, would do so, and she refused so to do. While the 40 acres was deeded to claimant in the first instance, she gave a mortgage for the purchase price to Mr. Adams, which he assigned to Mrs. Adams, and which claimant raised the money to pay by giving another mortgage. Mr. Adams’ letters tend to prove that he was to pay the mortgage. However, claimant’s counsel appear to have put this question out of the case in their brief, saying, after quoting the language of the court:

“Claimant, contending that she did not enter proceedings for the ‘ 40 acres ’ of land, did not at any time make an issue of it, and because she always owned it herself, said Adams never having had title, the court thereby misstating the testimony, and giving an issue to the jury unwarranted by the evidence. Another misstatement that is prejudicial is that ‘ All the letters seem to bear on the question of buying 40 acres of land ’ (bracket No. 4), as only three letters out of the 38 in evidence refer to it, namely, those of May 21, 1903, May 24, 1903, and July 15, 1900.”

Second assignment of error: The court instructed the jury in part as follows:

“To determine whether there was an express agreement made, you ought to take into consideration all the surrounding circumstances; all these other letters. And the only reason why the court did not take this case from you on the ground that this claim, this oral testimony, is so inconsistent with writings that it ought not to be considered is because it is claimed by the claimant that this very promise itself was in writing, and of just as high a character as any of the other correspondence, and therefore we have to submit to you the question of fact as to whether that is true — whether you find the testimony of the husband of the claimant is true — that there ever existed such a letter, whether it is probable that any such letter was ever written, in the light of all this other correspondence. Now, it is true, gentlemen, in cases of this kind, where one of the parties’ mouth is closed, as our Supreme Court has said:
“ ‘The exclusion of the testimony of claimant by the statute makes the proof of the facts in the case more difficult, and the jury have a right to take into consideration the surrounding circumstances to a greater extent than if both parties to the suit were alive, in arriving at the proof of the disputed matters in issue.’
“ Now that is true. But the real matter in issue here is as to whether such a promise was made by Mr. Adams in 1893; and, as bearing on the probability of that, you may look at all the other correspondence, and the letter of this claimant to Mr. Adams, even after this claim was filed, and ask yourselves, Is there any statement in these letters that would indicate that she had a claim for $200 against him? I must say, gentlemen, those letters are inconsistent with that claim. They are here in writing. They were viewed by the court. They are inconsistent with that claim.”

We think the charge clearly intimated to the jury the opinion of the court that they ought to disallow the claim, and was erroneous. Perrott v. Shearer 17 Mich. 48; Letts v. Letts, 91 Mich. 596 (52 N. W. 54).

The judgment is reversed, and a new trial granted.

Montgomery, Hooker, McAlvay, and Brooke, JJ., concurred.


author: Grant, J.

text:
    TOWNSHIP OF BURDELL v. GRAND RAPIDS & INDIANA RAILWAY CO.
    Railroads — Highways—Bridges.
    No duty rests on a railroad company to maintain in repair a highway bridge across its right of way because from the time the track was built under the bridge, which already existed, and which it became necessary to raise, the company voluntarily maintained it.
    Certiorari to Osceola; Rose, J.
    Submitted May 25, 1909.
    (Calendar No. 23,158.)
    Decided June 7, 1909.
    Mandamus by the township of Burdell to compel the Grand Rapids & Indiana Railway Company to repair and maintain a bridge in a public highway. An order denying the writ is reviewed by relator on writ of certiorari.
    Affirmed.

      Charles A. Withey, for relator.

      James H. Campbell, for respondent.
    Plaintiff in certiorari filed a petition in the circuit court praying for the writ of mandamus to compel the respondent to repair, and keep in repair, a bridge over a ravine in a public highway. The facts were stipulated, and are in substance as follows: The highway and bridge across the ravine had been in existence for a long time prior to 1885, and had been constructed and maintained by the township. That year the respondent constructed a spur track through this ravine to reach business beyond the highway. The bridge was too low to admit the safe passage of trains. The respondent elevated the bridge, constructed approaches to it, and did all the work at its own expense. It owned, and still owns, the fee to its right of way. It occupied and used this spur track for the carriage of passengers and freight until October, 1906. It then removed its rails, and has not since operated or used this branch or spur. During the time respondent operated this track it voluntarily maintained said bridge, and kept it in proper repair at its own expense. It has not repaired it since, and refuses to repair it. It has become dilapidated and unfit for use.
    The respondent claims the right to maintain and keep said right of way so that it may use it in the future if occasion requires. It denies the right of said township to obstruct said right of way by making a filling in place of said bridge. No agreement was made between the township and the respondent relating to the change of the elevation of the bridge or its future maintenance and repair. The trial court held that there is no liability on the part of respondent to repair or rebuild the bridge.
   Grant, J.

{after stating the facts). Upon the above statement of facts the court is asked to determine whether it is the legal duty of the respondent to maintain the bridge and keep it in proper repair for travel. Counsel for the plaintiff concedes that no such question has before been submitted to the courts, and that he is unable to find that it has been discussed in the text-books. He seeks to base respondent’s liability upon the grade-crossing cases which hold that, both at common law and under the statute, it is the duty of the railroad company to restore the highway to its former condition, as near as may be, and to maintain and keep sidewalks and crossings in reasonable condition for public travel. He cites the following cases: Maltby v. Railway Co., 52 Mich. 108 (17 N. W. 717); Retan v. Railway Co., 94 Mich. 146 (53 N. W. 1094); Jeffrey v. Railroad Co., 108 Mich. 221 (65 N. W. 755, 31 L. R. A. 170); Tobias v. Railroad Co., 103 Mich. 338 (61 N. W. 514); Kaiser v. Railway, 131 Mich. 506 (91 N. W. 752). These cases all involve grade crossings, with the railroads in actual operation. They have no bearing, either upon the question in this case, or even upon grade crossings where the road has been abandoned, the track taken up, and the highway left in proper condition for travel.

There is no obligation in this case resting upon contract. The township evidently acquiesced in the elevation of the bridge. The respondent properly fixed it and its approaches, made it safe, and left it in good condition. Manifestly no obligation would have rested upon the respondent if its cars could have been run under the bridge with safety. There is no evidence that the public are inconvenienced by the change, or that it will cost the township any more to rebuild or repair the bridge at its present height than as it formerly existed. The mere elevation of this track (whether a foot or more does not appear) cannot be held to transfer from the township to the railroad the legal duty to forever thereafter rebuild and repair the bridge.

The judgment is affirmed.

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


text:
    BLISS v. CAILLE BROTHERS CO.
    l. Appeal and Error — Practice on Motion eor Dismissal op Writ.
    On motions to dismiss writs of error, affidavits showing the dates of judgment are sufficient without attaching certified copies of the judgments.
    2. Same — Statute op Limitations.
    Writs of error issued more than 18 months after judgment are subject to dismissal without any plea of the statute of limitations.
    3. Same — Costs.
    An order dismissing such writs, with oosts, is proper, although an attempt was made by appellant to dismiss after learning of the proposed motions.
    Garnishment proceedings by Allaseba M. Bliss and Lorenzo T. Durand, executors of the last will and testament of Aaron T. Bliss, deceased, against the Caille Brothers Company, Wilber W. Steele, and A. Arthur Caille, copartners as the Caille Company, and Wilber W. Steele, A. Arthur Caille and Adolph A. Caille, as garnishee defendants of Silas W. Tyler and Fred B. Tyler: On motion to dismiss writs of error issued by garnishee defendants.
    Submitted May 25, 1909.
    (Calendar Nos. 23,393, 23,394, 23,395.)
    Motions granted June 14, 1909.

      John A. McKay ( William J. Gray and Lorenzo T. Durand, of counsel), for the motion.

      Jonathan Palmer, Jr. (Elbridge E. Bacon and George W. Weadock, of counsel), contra.

   Hooker, J.

The plaintiff filed motions to dismiss writs of error in the above-entitled three cases, showing by affidavit that the judgments were rendered and entered on July 3, 1906, and September 12, 1906, respectively. Writs of error issued April 23, 1909, over two years after the judgments were entered. The time for issuing writs ■ of error is limited to one year, with a possible extension of six months after judgment. 3 Comp. Laws, § 10492.

The defendant has raised the following technical questions ;

(1) That there having been no return to the writs, and no certified copies of judgment entries being attached to the affidavits, we cannot know, and should not accept the statements in the affidavit as proof of the dates when the judgments were rendered.
# (2) That it is only upon a plea of the statute of limitations that the question of dates can be raised and considered.
(3) That it appearing by counter affidavits that plaintiff in error directed the dismissal of his own writs of error and the issue of new ones before being served with notice' of this motion, there is no occasion for the order of dismissal asked in this case.

A complete answer to the first two propositions is found in the case of Teller v. Willis, 12 Mich. 268, where we held that the proof of the necessary facts by affidavit is sufficient to warrant action, if such affidavits are not disputed. That case seems to have settled the practice. It has been followed ever since, and, so far we are able to learn, has never been questioned before.

The last point necessarily implies that plaintiff’s motion to dismiss was meritorious when made, and apparently he was ignorant of defendant’s attempt at a voluntary dismissal of these writs. We understand that such attempt was made after learning that plaintiff had already made, or would soon make, this motion.

Whatever the fact, we think the motions should be granted, with costs of the motions, and it is so ordered.

Grant, Moore, McAlvay, and Brooke, JJ., concurred.


author: McAlvay, J. Hooker, J.

text:
    PEOPLE v. CONNELLY.
    Homicide — Evidencie—Character.
    Testimony of the respondent’s immoral character before marriage is not competent, upon a prosecution for murder, to rebut her testimony, elicited upon cross-examination, that she led a virtuous life prior to her marriage, as she alone could put her character for chastity in issue. Hooker, Grant, and Montgomery, JJ., dissenting.
    Error to the superior court of Grand Rapids; Stuart, J.
    Submitted May 8, 1908.
    (Docket No. 131.)
    Re-argued October 6, 1908.
    (Docket No. 1.)
    Decided July 6, 1909.
    Clara Connelly was convicted of manslaughter, and sentenced to imprisonment for not less than two nor more than fifteen years in the Detroit house of correction.
    Reversed.

      A. A. & H. A. Ellis and Bert Hayes, for appellant.

      John E. Bird, Attorney General, John W. Powers, Prosecuting Attorney, and Colin P. Campbell, Assistant Prosecuting Attorney, for the people.
   McAlvay, J.

From a conviction of manslaughter respondent seeks a reversal upon several alleged errors, but one of which is considered necessary to discuss. The altercation, during which the shooting which resulted in death occurred, commenced by an unjustifiable assault by deceased upon respondent, his wife. She claimed that he knocked her down twice, and that she crawled on her hands and knees to her bed, where she got a revolver, and, when he violently assaulted her again, she was put in fear of great bodily injury, and shot in self-defense. There was evidence besides her testimony which raised an issue of fact as to whether or not the shooting was justifiable. In the submission of this question to the jury, an examination of the record satisfies us that no error was committed.

The details of the lives these people had led since a short time after their marriage are of such a character that in this opinion they are omitted as much as possible. Her testimony shows that at her husband’s solicitation she received men who were procured by him, and that both were supported from the proceeds of such traffic. She claims that, having been seriously sick for several days and still in that condition, her refusal to receive a man procured by her husband was the real cause of their last quarrel.

On rebuttal by the prosecution, the court, over the objection of respondent’s counsel, admitted the testimony of several witnesses tending to prove that respondent was a common prostitute before her marriage to Connelly. It was admitted by the court, as is claimed on behalf of the people, to meet respondent’s claim that prior to such marriage she had led a virtuous life. The record does not show that on direct examination she made any such claim. On cross-examination, in answer to questions propounded by the prosecutor, and which were objected to by her counsel, she did so testify. This testimony, which was brought out by the prosecution, is made the basis for the introduction of the testimony of these witnesses to contradict her. The testimonv objected to, if not admissible upon the ground claimed for it, was not material to the issue. As already stated, it was admitted upon a false assumption as to what respondent’s direct examination contained, and for the purpose of contradicting it. Respondent had not made her character for chastity before her marriage to Connelly an issue in the case. The rule in this criminal prosecution is that she alone could make that issue. To allow the prosecutor to make it by improper cross-examination would abrogate the well-settled rule above stated. We conclude that both the cross-examination above referred to, and the testimony of the witnesses introduced to contradict such cross-examination, were improperly admitted. This testimony was prejudicial to respondent, and could have been offered for no other purpose. The court was in error in not sustaining respondent’s objections to all this testimony.

There are some minor propositions which do not require consideration. Upon a new trial they will doubtless be avoided.

For the error pointed out, the conviction and judgment are reversed and set aside, and a new trial is ordered.

Blair, C. J., and Ostrander and Moore, JJ., concurred with McAlvay, J.

Hooker, J.

(dissenting). The defendant was convicted of manslaughter upon an information charging murder. The testimony offered on behalf of the prosecution showed that the defendant and her husband engaged in a quarrel, and that he had knocked her down; that she lay there groaning, and said that, “when she should get up, she would fix himthat she soon got up and went to the bed and procured a revolver. He turned around, apparently to see what defendant was doing, and the witness, “seeing them stand close together, and (as she stated) knowing that there was going to be something doing, was just going to run out of the door, when she heard a shot fired, and when she got nearly a block off she heard two more.” Death of the husband soon followed from the effect of the shots.

The defendant testified on her own behalf, claiming provocation and shooting in self-defense. Her counsel saw fit to introduce, through her testimony, evidence that the defendant’s husband had induced her to engage in prostitution to support them; that, of course, she did not want to do this, but, after discussing it two or three days, she consented, and apparently she continued the practice up to the time of the shooting. On cross-examination she practically admitted being arrested and fined as a prostitute in Jackson, but denied many questions designed to show that she was a common prostitute before her marriage to the deceased, among other testimony, evidence that she kept a house of bad repute while she lived with a former husband, who secured a divorce from her. The prosecution admitted that this testimony was admissible only to meet defendant’s claim that she was a moral woman until corrupted by her husband’s influence. On cross-examination she was interrogated at length upon her conduct, and with regard to having and threatening her husband and other people with a revolver, and denied having a revolver or doing so. Much of this testimony came in without exception. Moreover, the whole subject was introduced without its having any close connection with the altercation, which apparently arose over the breaking of the whisky bottle. Counsel evidently thought it was important and competent testimony for the defendant, and, if so, it was proper to show that the claim that deceased was responsible for her immorality was untrue.

Counsel allege error upon the prosecutor’s refusal to examine a witness who was subpoenaed at defendant’s request. No exception was taken to the refusal. The prosecutor produced the witness, who was fully examined by counsel for defendant. She was not present at the shooting, though she heard some of the quarrel and testified to it. The defendant was not injured, even if the prosecutor should have been required to do more than to produce the witness, which we do not decide.

As to remarks of the prosecuting attorney, they will compare favorably with those of defendant’s counsel, and do not call for a reversal of the case.

Counsel contend that the learned judge of the superior court omitted necessary instructions relating to justifiable or excusable homicide. We think otherwise. After instructing the jury regarding murder and manslaughter, he discussed at some length counsel’s claim of self-defense, and he used this language:

“It must appear that the circumstances were sufficient to excite the fears of a reasonable man or woman, under the circumstances in the case, and that she acted under the influence of those fears. But, if you find that the respondent honestly believed, at the time that she fired this shot, that Sweeney intended to assault her and do her grievous harm, or that her life was in danger at that moment, and, acting under that belief as the circumstances appeared to her, fired the shot which killed the deceased, then it would not be murder, but justifiable or excusable homicide.
‘ ‘And it is not a question in this case whether Sweeney ought to have been killed on general principles or not. But did the respondent honestly believe, at the time she fired the shot, that he fully intended to kill her or do her great bodily harm, and was in a position to do it, and, if you find that she did so honestly believe, and acted under that belief, then it would be justifiable homicide. You must take the facts and circumstances as they appeared to her.
“ I have a request on that point, on the part of the defendant, that I will give: ‘The danger or apparent danger is that that appeared to the defendant at the time, and not the danger or lack of danger that might appear to one afterwards. She was to be the judge, and all that the law required of her was to act honestly. And, if you find she honestly believed that she was in danger of great bodily harm or death, she had a right to .protect herself, and, if it was necessary for that purpose to resort to the use of the revolver, if she honestly believed at that time that she was in danger of death or other bodily harm, she had a right to do so.’ ”

This was quite as broad a statement of the rule as defendant was entitled to. We think that he also made all necessary explanation of the subject.

We are asked to reverse the cause for the reason that the trial judge neglected and refused to charge the jury that there was no evidence of murder. Counsel do not point out such a request or a refusal, and, if there was such, we do not find it. We do find, however, that assignment of error No. 40, under which the statement in the brief is made, omits to claim the refusal of such a request. The brief is therefore misleading, and has compelled a search to ascertain the true situation. We point it out because statements of that degree of inaccuracy inevitably make much unnecessary labor unless relied upon without question, in which case they may easily lead to improper reversal. An unreliable brief should have no place in a court of justice, and care should be taken to avoid such mistakes as that pointed out. The defendant was convicted of manslaughter, and might, under the testimony, have been convicted of murder in the second degree if not the first. She has no reason for complaint upon the ground mentioned.

Complaint is made of the statement that, when a homicide is committed by the use of a dangerous weapon, malicious intent may be presumed. With the qualification which accompanied the statement made, there was no error.

We have found no error in the record, and the conviction should be affirmed.

Grant and Montgomery, JJ., concurred with Hooker, J.


text:
    ROBINSON v. HARMON.

    1. Statutes — Constitutionality—Title.
    Section. 6234, 2 Comp. Laws, regulating the transportation of freight and fixing a maximum charge, is constitutional as amended, the purpose being sufficiently expressed in its title.
    2. Same — Certainty—Railroads.
    The provision that in transporting freight by the car, the rate should not exceed the amount fixed, is not void for uncertainty, since the phrase “by the car” does not refer to the transportation of cars, but to freight in car load lots, and the fact that a car load is not'a fixed quantity creates no uncertainty.
    3. Same — Reasonableness of Rates — Franchise.
    The railroad company, of whose franchise and property the defendant is receiver, cannot complain of the reasonableness of rates fixed by a statute to which its franchise was subject when granted.
    Error to Berrien; Coolidge, J.
    Submitted June 15, 1908.
    (Docket No. 11.)
    Decided September 15, 1908.
    Rehearing denied December 21, 1908.
    Assumpsit by John Robinson against Judson Harmon, receiver of the Pere Marquette Railroad Company for certain overcharges for the transportation of freight. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Affirmed.

      Stevens, McPherson & Bills {Victor M. Gore, of counsel), for appellant.

      G. M. Valentine and E. B. Valentine, for appellee.

      John E. Bird, Attorney General, and George S. Law, Assistant Attorney General, amici curiae.

      This opinion was withheld from publication pending the rehearing in Robinson v. Harmon, post, 272, 276 (117 N. W, 664, 122 N. W. 106).

   McAlvay, J.

Plaintiff brought suit against defendant receiver to recover what was claimed by him to be an overcharge for freight, demanded of plaintiff and paid by him to defendant for transporting certain car loads of freight between different points in this State upon the line of the Pere Marquette Railroad Company, of which defendant was receiver, contrary to the provisions of subdivision 7, section 6234, 2 Comp. Laws. Plaintiff recovered a judgment in the justice’s court, where the suit was brought. Defendant appealed to the circuit court for Berrien county, where the court instructed a verdict for plaintiff. Defendant brings the case to this court by writ of error.

It is agreed that the amount of the judgment recovered is the correct amount, provided plaintiff is entitled to a judgment in his favor. The statute relied upon by plaintiff for a recovery is a subdivision of an important section of the general railroad laws of the State. The section deals with the general powers of railroad corporations, and liabilities and restrictions to which they are subject. Such general powers are granted, and such liabilities and restrictions are imposed, under nine subdivisions of section 9 of article 2, entitled, “Corporate Powers and Duties of Directors,” of our general laws relative to the incorporation of railroad companies. Subdivision 7 of this section is the one before us for consideration. The part material to this case reads:

“ (6234) Sec. 9. Every such corporation shall possess the general powers and be subject to the liabilities and restrictions following; that is to say: * * * Seventh. To take, transport, carry, and convey persons and property on their said road, or through such tunnel, by the force and power of steam, animals, or any mechanical power, or by any combination of them, and to receive tolls and compensation therefor-: Provided, That in transporting freight by the car, loaded by the shipper, and unloaded by the consignee, no railroad company shall charge for transporting each of said cars more than eight dollars for any distance not exceeding ten miles, nor more than fifty cents per mile for the second ten miles, nor more than twenty-five cents per mile for the third ten miles; and for distances exceeding thirty miles, in no case shall the charge between any two points on the said railroad exceed the minimum charge on the entire line. This provision shall not apply to the upper peninsula, nor to any company operating less than fifteen miles of railroad.”

It is contended by the appellant that this rate-making statute is unconstitutional, unreasonable, and uncertain. The attack is not directed against the power of the legislature to regulate freight charges within this State. Such power is admitted.

The first contention is that this statute was not enacted constitutionally. The general railroad laws of the State were revised by Act No. 198 of the Laws of 1873. This act has from that time remained upon our statutes as the foundation of our general railroad legislation. Article 2 of this revision was entitled as in the present law, and also contained section 9, with its nine subdivisions. This section 9 was first amended by Act No. 177, Pub. Acts 1877. This is the amendment which is claimed to have been invalid, as far as the seventh subdivision is concerned, for the reason that it was not included in the title of the act. This section was again amended by Act No. 116, Pub. Acts 1883, when all the constitutional requirements for valid legislation were complied with. Amendments to the section were afterwards made as follows: Act No. 230, Pub. Acts 1887; Act No. 202, Pub. Acts 1889; Act No. 90, Pub. Acts 1891; Act No. 54, Pub. Acts 1907. In each case no constitutional requirement has been omitted. In none of these amendments has subdivision 7 been altered or changed since 1883, except that in 1889 the words “or through such tunnel” were added to its third line. The infirmity, if any existed in 1877, was cured by subsequent enactments.

It is urged that this statute is void for uncertainty. Evidently the legislative intent in enacting this statute was to provide for the transportation of freight by the car load for shippers who would load the cars and ship the freight to consignees who would unload them. It is apparent, also, that the shipments in view were to be made for comparatively short distances, and that the rate for such transportation was to be a fixed maximum rate. This much may be gleaned from a general view of the statute. The authority of the legislature to confer powers upon corporations created by it necessarily involves the authority to regulate and restrict the exercise of such powers. The power to fix, regulate, and establish in this State rates for the transportation of freight by railroad corporations has been sustained by this court, and is admitted by defendant. It appearing that legislation has been undertaken with the intent to exercise that power, it remains for the court to determine whether such attempt at legislation has been constitutionally expressed in language clear and certain. Much time and argument has been spent to convince the court that this statute is void for uncertainty.

We are unable to find the alleged ambiguity and uncertainty claimed by defendant to be contained in this seventh subdivision in the words “freight by the car” and “ each of such cars” in the following sentence:

“ Provided, That in transporting freight by the car loaded by the shipper and unloaded by the consignee, no railroad company shall charge for transporting each of such cars more than eight dollars for any distance not exceeding ten miles.”

Defendant contends that this may fairly be construed to mean 4 4 the transportation of cars independent of their contents or loads,” affirming “that at the outset the statute in terms applies to the transportation of cars.’* As usual, where a premise assumed is incorrect, the correct conclusion cannot follow. The statute at the outset does not in terms apply to the transportation of cars, but in terms clear and unambiguous applies to “transporting freight by the car.” Counsel for defendant have overlooked the controlling word of the clause, and consequently have missed its significance. It has the same meaning as if it read “freight by the car load.” This is evident from the context. A familiar rule of statutory construction is that, if possible, effect will be given to every word and clause of the statute. Our construction is the application of this rule, by which no uncertainty appears. The section is dealing with freight by the car, and fixing a maximum rate of charge by the car load for transporting such freight. The record shows that all the expert witnesses of defendant, who were asked, understood that this statute fixed the rate for transporting freight by the car load.

Defendant urges that if this is the correct construction, the uncertainty still remains, by reason of the fact that a ear load of freight is not a fixed quantity. If there is anything certain in the testimony in the case, it is that the practical railroad men who were defendant’s witnesses established the maximum and minimum car load of freight of every class referred to. The legislature, in fixing these rates, necessarily took into consideration the common knowledge that freight for shipment differs in weight and bulk, that cars differ in capacity, and that the load in pounds which each car could carry with safety was fixed and certain. This statute treats of but one certain kind of rate fixing, for transporting freight by the car load, loaded by the shipper and unloaded by the consignee within the State and over the line of the receiving company only. What would constitute a car load would in each instance be determined by the article tendered for transportation, and the sáfe load in pounds of that article fixed by the size and strength of the car furnished. That cars differ in size, and therefore the car load would not be the same for all cars, is obvious, but is not for a court to attempt to equalize. Under the Constitution the legislature has been vested with authority to fix freight rates, and, having exercised that authority, there is no call, as far as this case is concerned, to question the legislative judgment.

Under the authorities the question of the reasonableness or unreasonableness of the statutory rate for the transportation of freight by the car is not involved in this case. The Pere Marquette Railroad Company was organized November 1, 1899, under the general railroad law of Michigan. The statute under discussion in this case (section 6234, 2 Comp. Laws), fixing the rate for transporting freight by the car, was included in the general railroad law at the time of such organization. The rule invoked, that courts will interfere to prevent the enforcement of unreasonable rates fixed by the legislature, has no application to the case at bar. It will therefore not be necessary to consider the argument of defendant, and the authorities cited in the consideration of that proposition, and the questions related to it. This railroad corporation was created subject to all the provisions of the law then in force. In Commissioner of Railroads v. Railway Co., 130 Mich. 248 (89 N. W. 967), Mr. Justice Montgomery, speaking for this court, said:

“It cannot admit of doubt that corporations formed under an existing law will not be heard to question the rates fixed by the statute. They cannot avail themselves of the provisions of the law which give them the right to do business, and disregard those provisions which are onerous. This was the view taken by this court in Jackson & Suburban Traction Co. v. Commissioner of Railroads, 128 Mich. 164 (87 N. W. 133), and has the support of authority in other jurisdictions. See 4 Thompson on Corporations, § 5257, and cases cited.”

See, also, Grand Rapids, etc., R. Co. v. Osborn, 193 U. S. 17 (24 Sup. Ct. 310).

This disposes of all questions raised by the assignments of error necessary to be passed upon in the disposition of this case.

The judgment of the circuit court is affirmed.

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


author: McAlvay, J. Ostrander, J.

text:
    ROBINSON v. HARMON.
    Statutes — Construction—Railroads—Receivers.
    A receiver, operating a railroad under an order of the Federal court, is liable for the penalty imposed by 2 Comp. Laws, § 6235, upon railroad companies, who make overcharges in freight rates; the Federal statutes requiring such receiver to operate the same according to State law, in the same manner as the owner would be bound to do; and the provision of the State statute is held not to be strictly penal, but remedial. 25 U. S. Stat. chap. 866, §§ 2, 3.
    ON REHEARING.
    1. Penal Statutes — Receivers.
    No recovery of the penalty fixed by statute will be allowed against a receiver operating a steam railroad, when the statute does not, by its express provisions, include such receivers. 2 Comp. Laws, § 6234. MoAlvay, J., dissenting.
    3. Same — Construction.
    A statute creating a private right should be liberally construed as to the remedy, but in so far as it creates a penalty, requires a strict construction as against the offender. MoAlvay, J., dissenting.
    Error to Berrien; Coolidge, J.
    Submitted June 15, 1908.
    (Docket No. 12.)
    Opinion filed September 15, 1908.
    Rehearing granted December 31, 1908;
    reargued February 10, 1909;
    former opinion reversed July 6, 1909.
    Debt by John Robinson against Judson Harmon, receiver of the Pere Marquette Railroad Company, for the amount of a penalty provided by section 6335, 3 Comp. Laws. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Reversed, and no new trial ordered.

      Stevens, McPherson & Bills (Victor M. Gore, of counsel), for appellant.

      G. M. Valentine and E. B. Valentine, for appellee.

      John E. Bird, Attorney General, and George S. Law, Assistant Attorney General, amici curice.

   McAlvay, J.

This case involves the same transactions and the construction of the same statute as in the preceding case. The decision in that case (ante, 366 [117 N. W. 661]), is controlling in this upon all the questions therein passed upon. The cases were heard and submitted together, and are designated in the records as the “Overcharge Case” and the “Penalty Case.” Our disposition of the Overcharge Case leaves but one question , to be considered in this, the Penalty Case.

Section 6335, 3 Comp. Laws, provides that every such railroad corporation shall, on the due payment of freight legally authorized, transport property to and from regular stopping places established therefor, “under a penalty for each violation of this provision, of one hundred dollars, to be recovered by the party aggrieved, in an action of debt against such corporation.” The contention is that the defendant receiver is not liable for the penalty imposed by the statute upon railroad corporations, and that the trial court was in error in directing a verdict for plaintiff and refusing to direct a verdict for defendant. The Federal statutes (35 XT. S. Stat. chap. 866, §§ 3, 3; 4 Fed. Stat. Ann. 386) provide that a receiver in possession shall manage and operate the property in charge “according to the requirements of the valid laws of the State in which such property shall be situated, in the same manner that the owner or possessor thereof would be bound to do if in possession;” also “ that every receiver * * * may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such re- • ceiver * * * was appointed.” It is not disputed but that under this Federal statute civil suits for damages may be maintained against receivers arising from the management or operation of the road in charge, in violation of the State laws. The contention is:

“A receiver appointed by a court of chancery and operating a railroad under an order of the court, is not liable for a penalty imposed by a statute upon railroad companies or corporations.”

Defendant relies upon the case of United States v. Harris, 177 U. S. 305 (20 Sup. Ct. 609). This was an action brought against the receiver of a railroad company to recover a penalty for confining certain animals without food and water, contrary to the provisions of a Federal statute. The penal provision is as follows:

“Any company, owner or custodian of such animals, who knowingly and wilfully fails to comply with the provisions of the two preceding sections shall, for every such failure, be liable for and forfeit and pay a penalty of not less than one hundred nor more than five hundred dollars.” 17 U. S. Stat. chap. 252, § 1; 1 Fed. Stat. Ann. 447.

The section following provides that such penalty shall be recovered by civil action in the name of the United States. This was purely a penal action. The penalty was solely for purposes of punishment. The case was disposed of upon the strict construction of this penal statute, the court holding that the words of the statute, “any company, owner or custodian of such animals,” in the section quoted, did not include receivers. The court said:

“ It is claimed that the effect of such legislation [referring to the statutes requiring receivers to manage and operate railroads in their charge according to the valid laws of the State where situated] is to place receivers upon the same plane with railway companies as respects their liability to be sued for acts done while operating a railroad. * * *
“ It may be conceded that it was the intention of congress to subject receivers of railroad companies, appointed such by courts of the United States, to the valid laws and regulations of the States and .of the United States, whose object is to promote the safety, comfort, and convenience of the traveling public. But we are not now concerned with the general intention of congress, but with its special intention, manifested in the enactments under which this suit was brought. * * * Can we fairly bring receivers within the penal clause by reasoning from a supposed or an apparent motive in congress in passing the act ? * * *
“ It is not permitted to courts, in this class of cases, to attribute inadvertence or oversight to the legislature when enumerating the classes of persons who are subjected to a penal enactment, nor to depart from the settled meaning of words and phrases in order to bring persons not named or distinctly described within the supposed purpose of the statute.”

We think that the case at bar is distinguishable from United States v. Harris, supra, in that this is not a penal statute, strictly speaking, but is remedial in its effect. An examination of the original record and briefs in the Harris Case shows that the distinction between the two classes of cases was recognized. The right of action in the case at bar is limited to the person injured. The act complained of is not made a crime, and the statute is no more penal in its nature than those which provide for the doubling of damages in cases of stock injured by railroad corporations which have neglected to properly fence their rights of way. Such statutes have been enforced against receivers. ’ Central Trust Co. v. Railway Co., 26 Fed. 12.

The following is taken from the brief for the receivers in the Harris Case:

“ It is an old and unshaken rule in the construction of statutes that the intention of a remedial statute will always prevail over the literal sense of its terms, and therefore when the expression is special or particular, but the reason is general, the expression shall be deemed general.”

And again:

tc It may be stated in general terms that any statute which gives a remedy or means of redress where none existed before, or which creates a right of action in an individual, or a particular class of individuals, is remedial within the meaning of this rule. Black on Interpretation of Laws, pp. 307, 308.”

This is the view taken by this court of this statute under consideration, and we hold that the case at bar is not within the rule laid down in the Harris Case, supra. It follows, therefore, that the circuit court was not in error in instructing a verdict for plaintiff.

The judgment is affirmed.

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

ON REHEARING.

Ostrander, J.

The former opinion of this court in this case is reported ante, 272 (117 N. W. 664). A rehearing was granted, and the case has again been carefully considered. The statute (2 Comp. Laws, § 6234, subd. 7) establishes a maximum rate for transporting freight by the car. A violation of this provision is asserted by plaintiff, whose right to maintain this suit is based upon the succeeding section of the statute, which reads:

(6235) Sec. 10. Every such corporation shall furnish sufficient accommodation for the transportation of all such passengers and property as shall, within a reasonable time previous thereto, offer or be offered for transportation at the place of starting, and the junctions of other railroads, and at siding and at stopping places established for discharging and receiving way passengers and freight; and shall take, transport, and discharge such passengers and property at, from, and to such places, on the due payment of toll, freight, or fare, legally authorized therefor; and every such corporation shall transport merchandise, Wood, lumber, and other property, and persons from the various stations upon said road, without partiality or favor, when not otherwise directed by the owner of said property, and with all practicable dispatch, and in the order in which such freight and property shall have been received, under a penalty for each violation of this provision, of one hundred dollars, to be recovered by the party aggrieved, in an action of debt against such corporation: Provided, That perishable or explosive freight and property shall have the preference over all other classes of merchandise. In case of the refusal by such corporation or agents so to take and transport any such passenger or property, as aforesaid, or to deliver the same, or either of them, without a legal or just excuse for such default, such corporation shall pay to the party aggrieved all damages which shall be sustained thereby, with costs of suit, or the penalty prescribed in this section, at the election of the party aggrieved.”

The defendant is a receiver of the railroad appointed by a Federal court. We are satisfied that no legal or just excuse for the overcharge complained about was made, and that the single question presented is whether the receiver is liable to the penalty imposed by the statute. It is said in the former opinion that this “isnot a penal statute, strictly speaking, but is remedial in its effect;” and this is held to distinguish the case at bar and United States v. Harris, 177 U. S. 305 (20 Sup. Ct. 609). It is also said in the opinion that “ the statute is no more penal in its nature than those which provide for the doubling of damages in cases of stock injured by railroad corporations, which have neglected to properly fence their rights of way.”

It was said by this court of a statute doubling damages:

< “ The language and spirit of the act exclude the supposition that the legislature intended compensation or anything of the nature of recompense to the injured party in allowing the extra amount, since the single damages provided for were ‘all the damages done,’ and if, as single damages, the party obtained ‘all the damages,’his recovery beyond that must embrace something not strictly damages at all. The name given, therefore, to this excess by the statute cannot alter its intrinsic character and transform a penalty for punishment into a mere recompense; neither can the circumstance that the amount above the whole damages, when recovered, would pass to the plaintiff, and not to the public, alter its nature and convert it into a private personal claim absolutely inextinguishable by repeal before judgment.” Bay City, etc., R. Co. v. Austin, 21 Mich. 390, 411.

And in Crosby v. Railroad Co., 131 Mich. 288 (91 N. W. 124), and in Van Camp v. Railroad Co., 137 Mich. 467 (100 N. W. 771), the statute we are considering is called, and treated as, a penal statute. It is evident that the sum of $100 which may be recovered for violation of the statute may bear no relation whatever to the actual damage suffered by the plaintiff. The case is unlike United States v. Harris, supra, in this: In that case the penalty was imposed by a statute entitled "An act to prevent cruelty to animals while in transit by railroad or other means of transportation within the United States.” It was recoverable by the United States from "any company, owner or custodian of such animals who knowingly and wilfully fails to comply with the provisions. * * * ”

It was held that receivers were not within the letter of the statute, and not necessarily within its purpose or spirit. The statute we are considering is the charter of the company which the receiver managed and controlled. The penalty is recoverable by, and is for the benefit of, a party aggrieved. The statute gives a private right enforced by a private civil action. In this respect it is remedial as well as penal. The public is not concerned. A liberal construction for the purpose of the remedy may be indulged, but to the extent that it operates against the offender it must be construed strictly. 2 Lewis’ Sutherland on Statutory Construction (2d Ed.), § 532 et seq. The penalty is by the terms of the statute imposed upon the corporation, and is recoverable in an action of debt brought against it. The receiver is not the corporation nor its agent, but is, upon the theory of the plaintiff, the one who has incurred the penalty. It cannot be said, as matter of law, that the receiver may charge the amount of this penalty in his accounts, and have the same allowed by the court appointing him. An act of congress provides that a receiver appointed by a Federal court shall operate property committed to his charge according to the requirements of the valid laws of the State in which such property shall be situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof. A penalty is provided for violating this provision which is made a misdemeanor. We are unable to distinguish the case in principle and the case of United States v. Harris, supra. We reach the conclusion that the receiver is not liable, and that the judgment against him should be reversed, and no new trial granted. This conclusion is supported by authority. Missouri R. Co. v. Stoner, 5 Tex. Civ. App. 50 (23 S. W. 1020); Campbell v. Wiess (Tex. Civ. App.), 25 S. W. 1076; 16 Enc. Pl. & Pr. p. 263.

Blair, C. J., and Grant, Montgomery, Hooker, Moore, and Brooke, JJ., concurred with Ostrander, J.

McAlvay, J. I adhere to my former opinion for affirmance.