author: Ostrander, J.

text:
    FARRELL v. HAZE.
    1. Trial — Practice—Permitting Jury to Take Exhibits.
    Where a physician had made memorandums of visits to a patient who subsequently brought an action for malpractice, and had made entries in his account books which tended to support the defendant’s testimony, it was within the discretion of the trial court to refuse permission to the jury to take them into the jury room.
    2. Expert and Opinion Evidence — Proximate Cause.
    Amputation of plaintiff’s foot followed a Potts fracture and some time after treatment by the defendant as a physician, in which a plaster cast was used to set the broken bone; in an action for negligent treatment, where the opinions of the expert witnesses as to the cause of amputation did not support the contention that the result more probably came from the method of treatment than from the injury, the jury should have been instructed that defendant could not be charged with the loss of the foot.
    3. Negligence — Malpractice—Physicians.
    The plaintiff, in an action for malpractice, must fail upon a showing equally consistent with negligence, or with reasonable care on the part of his physician.
    4. Evidence — Hypothetical Questions.
    Opinion evidence, based on a hypothetical question as to the propriety of treatment adopted by plaintiff’s physician, whereby the interrogatory conditions were incorrectly assumed to have followed one upon the other, and the length of time intervening between the treatment and subsequent amputation, with other material elements, were omitted, is incompetent.
    5. Same — Effect of Offering Incompetent Evidence.
    Where bones of plaintiff’s amputated foot were offered and rejected as evidence, and the proposed exhibits were incompetent because their condition had materially changed after defendant ceased to treat the foot, the production of the incompetent evidence was prejudicial and improper.
    6. Same — Cross-Examination.
    It is inadmissible to show, on cross-examination, that the defendant had been employed to treat another case, a different surgeon later called in, the treatment changed, and defendant discharged.
    Error to Ingham; Miner, J., presiding.
    Submitted April 30, 1909.
    (Docket No. 27.)
    Decided July 6, 1909.
    Case by Thomas Farrell against Harry A. Haze for malpractice. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.
    Tuttle, McArthur & Dunnébacke (Rollin H. Person, of counsel), for appellant.

      Jason E. Nichols, for appellee.
   Ostrander, J.

Plaintiff, on April 2, 1907, at about 10 o’clock a. m., sustained an injury to his right foot, ankle, and leg. It was what is known as a “Potts fracture.” He fell from a wagon to and upon the pavement. There is some testimony tending to prove that the wagon seat fell upon and across the foot or ankle. The foot was turned outward to a position at right angles to the leg, and perhaps it formed with the leg a more acute angle. The skin was not broken. In a fracture so described the fibula is broken. In this case the tibia was also broken. The extent to which the surrounding tissues were injured, and whether or not the artery or arteries nourishing the particular portion of the anatomy was or were ruptured or otherwise injured, cannot be accurately determined in such a case except by the consequences. He employed the defendant, a physician and surgeon, to treat the injury. Defendant attended him until April 14th, when he was discharged and another surgeon was employed. The foot was opened by still other surgeons on July 23d, at Detroit, and some dead bone was removed. Later, it was found to be necessary to amputate the leg, and the operation was performed August 21,1907. After reducing the fracture with the assistance of another surgeon, the defendant put the injured member in a plaster of paris cast. It is the theory of the plaintiff that the swelling of the limb and foot which immediately ensued, accompanied by pain and by discoloration of the tissue, indicated, and ordinary professional skill and knowledge, demanded, an early cutting of this cast. It is alleged that it was kept in place so that the leg, ankle, and foot had no opportunity to swell, and that the circulation of blood in the limb was cut off and stopped until Sunday, April 7th, at which time the leg, foot, and ankle had become dead and black, spoiled and ruined. Later operations, including the amputation of the limb, are consequences attributed to the strangulation caused by the cast. It is the theory of defendant that the cast was cut —opened—on Wednesday, April 3d, and was thereafter for some time used as a cradle for the injured member, into which, after daily dressing, it was returned; that in any event the diseased condition of the limb, present at the time it was amputated, was due — or was not shown not to be due — to the original injury, aided, perhaps, by the treatment of the surgeon who immediately succeeded the defendant. These theories present the issues which the pleadings and the testimony presented to the court and jury. If defendant cut — opened—the cast on Wednesday, he is admittedly without fault. If he did not cut it until Sunday, and if the foot and leg were then in the condition described by plaintiff and his witnesses, he did not exercise ordinary professional skill and judgment, and for the resulting injury he is liable. What the resulting injury was, is matter of serious dispute. Defendant did not neglect his patient. The qpat was applied about noon on Tuesday. He visited plaintiff at his house three times that afternoon and evening, and after that twice each day until he was discharged.

There is no material difference in the views of the surgeons who gave testimony in this case upon certain propositions. The use of the cast was proper. The longer it was left in place, if no complications developed, the better. The danger to be apprehended was strangulation. To aid observation, the toes were not covered by the cast. Some inflammation of the foot and ankle as a result of the injury was to be expected; how much there would be, could not be known. Whether the cast should be opened, and when it should be opened, depended upon the presence or absence of various symptoms, among them the amount of swelling and the discoloration of the foot. The temperature of the body, the pain experienced, affect the judgment of the surgeon in this behalf. Different surgeons will act differently in cases presenting the same symptoms. There' is great danger, in case of an injury such as was suffered by the plaintiff, that troublesome complications will result from the tearing or lacerating of tissue, the breaking of bones, and injuries to arteries. Necrosis often results from traumatic injuries —from the bruising of the bone. In view of the unanimity of opinion of experts upon these subjects, and the frankness with which defendant admitted that, if he left the cast in position until Sunday and until the limb was in the condition described by plaintiff and his witnesses, he had not exercised skill, we find it unnecessary to discuss many of the errors assigned and relied upon by counsel for appellant. Those which we regard as demanding attention may be disposed of under two general heads. They are: First, those relating to the time when the cast was removed; second, those relating to the injuries consequent upon appellant’s failure, if he did fail, to earlier cut the cast.

First. Defendant testified that he cut the cast on Wed-, nesday, the next day after the injury. He kept books and employed a bookkeeper. It was his practice to make a memorandum of visits to patients upon prescription blanks, and to hand the memorandums to his bookkeeper for entry by her into a daybook. She also kept a ledger. The slips, daybook, and ledger were produced in court, and were offered and received in evidence over the objection that they were all immaterial, incompetent, and self-serving. The purpose in offering them was not to show the state of an account with plaintiff, but to corroborate defendant’s testimony concerning the date of cutting the cast by a memorandum made by him at the time. The particular memorandum, upon the particular slip, was "4-3,” meaning fourth month, third day, “Tom Farrell vt,” meaning visit, “p. m. and cutting cast $1.50.” Various memorandums made under dates from the 5th to the 13th, inclusive, contain charges for redressing the leg. These are supposed to corroborate defendant’s testimony that the cast had been cut, since it is claimed there could be no redressing of the limb if it was not cut. In the argument to the jury, it was claimed on the part of plaintiff that a comparison of the slips, the books, and certain testimony of defendant would and did show that the entry of the charge made for cutting the cast on the day stated was spurious. Much time was devoted in argument to the memorandum slips and the books. They appear to have been exhibited and handed to the jury, or to some of the jurymen. Counsel for the plaintiff in his argument to the jury said that so far as he was concerned the books and slips might be taken to the jury room. One of defendant’s counsel said, “Do we understand it is agreed that the jury may have the books?” and the reply was, “I will say, so far as I am concerned, I don’t think there was any question about my statement. * * * ” Counsel for defendant •said, “All right.” The jury having been instructed and having retired, the court inquired if it was agreed that the books and slips should be taken to the jury room. The attorney of record for plaintiff declined to consent. Upon the claim being made that it had been agreed to, the court said he did not understand there had been any such agreement, and that unless there was such an agreement he should decline to give the books to the jury. Later, the jury, through the officer in charge of them, requested that the exhibits, the daybook and ledger, be sent to them. This the court refused to do. Counsel for defendant thereupon requested that the jury be recalled and be permitted to examine the slips and books in the jury box. This was refused.

It appears from the argument of counsel for defendant that it was understood there was no agreement that the slips and the books might be given to the jury in the jury room. The testimony of Dr. Haze, the defendant, concerning the slips, or memorandums, is:

“There is no handwriting on them not mine. They are the tablets kept by me at the time of my treatment of Mr. Farrell. The entries upon these tablets were made at the dates they bear. I am able to say positively that every visit and all matters on these various tablets occurred at the time as therein stated. I do not think that I could state from memory alone, and without the tablets, just the day when the accident occurred. The girl found these tablets for me about the first of this year, when they were talking about beginning suit against me. It was before the suit was brought. I had never seen them from the time they were made until the time she found them for me.”

Assuming, but not deciding, that the memorandums were evidence to the jury of the facts contained in them (Halsey v. Sinsebaugh, 15 N. Y. 485; Fisher v. Kyle, 27 Mich. 454. Compare Weaver v. Bromley, 65 Mich. 212 [31 N. W. 839]; Collins v. Shaw, 124 Mich. 474 [83 N. W. 146]; Kalamazoo Novelty Manfg. Co. v. McAlister, 36 Mich. 327), it was within the discretion of the court to allow them to be taken to the jury room. Tubbs v. Insurance Co., 84 Mich. 646, 655 (48 N. W.296); Bulen v. Granger, 63 Mich. 311 (29 N. W. 718). We do not find there was an abuse of discretion.

Second. Counsel for defendant requested the court to instruct the jury as follows:

“The question whether the loss of the plaintiff’s foot was attributable to anything that the plaintiff claims the defendant did or omitted to do is a scientific question, which the jury cannot determine for itself, and can only be answered by an expert; and inasmuch as no expert or medical man or surgeon has stated that the loss of the foot in his opinion came from anything the defendant did or omitted to do, therefore I charge you that you cannot take the loss of the foot into consideration in this case or hold the defendant liable therefor.”

This was refused, and upon this point the court instructed the jury, using varying methods of expression, that they must find, by a preponderance of the evidence, that the amputation followed the alleged strangulation of the limb as effect follows cause; that the diseased condition which made amputation necessary was caused by the continued and improper use of the cast. The jury were further instructed:

Several experts have been produced who have given their testimony upon the part of the plaintiff and upon the part of the defendant. This case is a case in which it was necessary that experts should be summoned for the purpose of determining certain of the facts in the case. And where the experts agree upon any fact which is necessary — that is, upon expert evidence — you should take that as true. But where they disagree, then you should determine from all the evidence in the case where the truth lies.”

It is said in the brief for appellee, “ I am challenged * * * to point out in the record any testimony that the cast was to blame for the subsequent amputation,” and counsel directs attention to particular testimony of particular witnesses. The testimony so referred to is here set out:

Dr. La Ferte:

“Q. And if the cast was not removed until the Sunday morning following, what would be the result ?
“A. Well, I suppose it would have resulted in just what we feared it would if it was not opened, mortification of the limb probably. In other words, a deadening of the limb. Yery likely the leg would have to be cut off. Under the conditions you stated, it would be improper to leave the cast on at that time.”

Dr. Barber:

“Q. If the hurt occurred on Tuesday, and on the afternoon of Tuesday there was pain and a swelling of the toes, and that pain increased in intensity and the toes kept swelling, turning blue, and was left there in that condition without opening until Sunday, when the toes were practically black, would it be proper treatment to leave it that length of time in that cast or form ?
“A. It would not. *'* * I would expect a destructive inflammation of the tissues underneath the cast. * * * The object of padding the leg as I have described is for the protection of the circulation of the blood and equalizing the pressure. The greatest danger in applying these casts is in the unyielding nature of the splint. * * * I have never heard of any cases that were not opened at all that you did not have trouble.”

Dr. Shank:

Q■ Suppose a foot was placed in a plaster of paris cast before the injured limb had time to swell except to some extent on the inner malleolus — placed in the cast at about 11 o’clock or at 12, and in the afternoon the patient experienced extreme pain and burning sensations in his limb and foot covered by the cast, and the toes began to swell, and within the next day or so they kept on swelling and turned purple, I want to ask you if it- would be proper treatment to inject morphine and allow that cast to remain without being cut open ?
“A. I do not think the morphine had much to do with the question, but the cast should be cut open at once, because it would be perfectly evident that there was a strangulation of the returning circulation, and if the cast was not cut open the limb would probably become ruined and spoiled; if there is too great pressure with a persistent increase in the swelling of the toes there will be pain.
“Q. Is it not well, in order to avoid undue pressure upon the leg, to split the cast its entire length before it has quite hardened ?
“JL It might be well; I have never seen it done in my life, and it is not the common practice. They are always split by competent physicians as soon as the toes begin to swell and turn blue or show evidence of strangulation.
i‘Q. If the patient was a young man of thirty years of age, strong, healthy, robust laboring man, working at paving brick and the like, and he should have such a hurt as I have described, and the limb be placed in a plaster of paris cast before the swelling other than I have described, the patient experiencing such pain Tuesday afternoon that it becomes practically unbearable, the toes begin to swell and keep on swelling until they become almost solid, and discolored, as some of the witnesses have said, black, and the cast be left there until the following Sunday, would that be proper treatment ?
“A. No.”

Dr. Culver:

“ It would be bad practice not to open the cast under those conditions. I would expect serious results to follow if it were not opened. It would endanger not only the limb, but the life, to let that go on.”

Dr. Thoms:

“Q. It would not be proper to leave the limb there until Sunday morning, would it ?
“A. No, sir.
“Q. It would be bad practice, would it ?
“A. Yes, sir. * * * If left on that long, I would expect trouble.”

The most, if not all, of this testimony assumes the truth of certain hypotheses stated by counsel. None of the seven or eight surgeons who testified expressed the opinion that the diseased bones, the condition which necessitated amputation, resulted from the use of the cast. On the contrary, such an opinion is refused by several of them who saw and who treated the plaintiff after defendant had been discharged. The concensus of opinion, where opinion is expressed, is that, if the cast caused strangulation of the limb, the effects would be visible first in the soft tissues. They would be the first to break down.

Dr. Barber, a witness for plaintiff, who claimed that he had examined the bones of the foot and leg after amputation, and who gave testimony concerning the extent to which portions of the bones had been removed, testified:

“Q. Well, then, I will refer to the hypothetical question I asked you this forenoon as ‘A.’ Now, assuming the facts in {A ’ to be true, that, as you will remember, involved the whole question of this treatment, and I am inclined to think the treatment afterwards and the injury, etc.— I am asking you now if from those facts, and the facts that have been stated to you here in regard to asking you questions regarding the condition of this limb, if from those facts you can form an opinion as to the cause of the condition of the tibia or shin bone just below the place where it was amputated ?
“A. Yes.
“Q. What caused that condition from the premises that I had stated in this former question ? * * *
“A. There was nothing in the conditions of the bone, or the membrane covering the bone in the location in question, that any surgeon could state positively what caused it. * * * I think it was caused by the injury and the interference of the circulation, possibly from the cast, and the absorption or infection that produces periostitis and osteomyelitis.”

Dr. Keane, a witness for plaintiff, who, with Dr. La Ferte, operated upon plaintiff in Detroit, said:

“Q. Assuming that statement of facts to be true that I have read to you in the question put [the manner in which the injury was caused and the dislocation reduced], and supposing that in two or three days the toes began to turn purple and the pain increased, and it continued up until Sunday following the injury, and the cast was opened up, swelling increased, and after the cast was removed the leg quickly filled to a large size with such a pressure that the injured person thought that the skin would burst, after which formations of water blisters occurred upon the limb, and those into ulcers which necessitated their being lanced, what would you attribute that condition to ?
“A. Some interference either of the arterial or venous circulation.
11Q. Would you attribute it to the cast ?
“JL It would be due to interference of „the circulation in some way. I could not attribute it to the cast to the exclusion of everything else, and would not do so. * * * If the cast should remain on a great length of time and the toes should become purple and eventually black, it would be probable that mortification had set in, and if that condition was allowed to remain for some hours or a day it would not be possible to save the toes at all. There was no mortification or gangrenous condition in the toes when I saw them, and from my observation of the toes I would say that there had never been any gangrene or mortification of them. I think if gangrene was present it would have continued and extended further; there might have been blackness due to venous congestion; that would not necessarily be mortification. If there had ever been any blackness of the toes indicating lack of circulation, no harm would have been done if the circulation was restored. * * * The breaking of the bones and the jamming of them, if it took place in the foot, would be likely to injure the arterial circulation in that proximity. If the arterial circulation was injured in the foot, it would not get its proper nutrition, and mortification would be liable to set in. The parts of the foot that were injured in this case would receive part of their supply from that artery; it would be possible for the absorption of the waste in the foot to cause swelling. We found the bones there quite badly diseased; they were soft and almost like sand; this would indicate that they had been diseased for a couple of months; it would be possible for such a state of the bone to come from the original injury due to mortification caused by interference with some of the arterial supply. * * * Where an ankle is dislocated and a Potts fracture takes place, the danger lies in the pressure of the fragments on the circulation — on the artery. The danger where a cast is put on lies in pressure upon the circulation; this is more apt to be true of a solid cast than of a soft one. A cast of this kind becomes solid within half or three-quarters of an hour. Sores are liable to result where there has been undue pressure with a plaster paris cast. These sores would appear at those points where undue pressure was placed. * * * If the posterior tibial artery was shut off, there would still be branches here from the anterior part that would go through those small bones and supply the leg to a certain extent, but it would not be a full circulation. If one of the larger arteries was cut off or stopped up and the other was doing its best to supply the blood, the effect of want of nutrition would first appear in the proximity of the artery that was impaired or stopped. The part farthest from the part where it was stopped would be apt to die quicker; it would be largely a matter of a short time in either instance. If one of those large arteries was stopped up, cut off, or impaired, I would not expect the other artery to supply blood enough to take care of the foot permanently. The posterior tibial artery furnishes the most of the blood to the foot; that is, the one near where there was bad bone and near the internal malleolus, where the fracture of the tibia was. * * * When I cut the foot off there was gangrene on the heel; I don’t believe there was any gangrene there when I first saw the foot. The posterior tibial artery supplies that part of the foot where the gangrene was. Of course, there would be little branches thrown off from the tibial artery that supplies the soft skin parts. In our judgment, the gangrene was due to a pressure and the lower vitality of the tissues at that2 part; this may happen by the patient lying in bed without any cast or splint at all.
“Q. Now, you found that gangrene in August, and this accident occurred in April. There was evidently a gradual decay or impairment going on there for months, wasn’t there ?
“A. Yes, sir.
Q. If there had beep but one artery supplying that foot, if the other had been cut off at the time of the accident, wouldn’t it have caused that sort of a gradual impairment of that foot for four or five months if either one of the arteries had been cut off ?
“A. I think so. I think there was some interference with the circulation which went on longer after the cast was removed. There was some gradual mortification there; this might well have happened if one of the arteries had been impaired in its work; where it once breaks down it travels on and goes into the bone and unless that bone is taken out and got rid of it extends to other bones.”

Dr. La Ferte said:

“ If the toes were swollen full and black, that would indicate that mortification had set in. If mortification has set in, we try to save them, you understand. If the toes were black and swollen full, they could not be saved; you might save the foot and cut off some of the toes. We would make an effort to save them if there was any part of them the natural color. The part that was black would be dead and would have to be cut off. That would have to be cut off just as soon as we made up our mind that they could not be saved, and we would make up our mind to this just as soon as they were black.
“Q. From the condition you saw when you examined that foot, could they have been black in April and stayed there and been in the condition you saw them, black from strangulation ?
“A. Why, I don’t think they could. Not from April to July.
“Q. Wouldn’t they have been rotted off from their own accord before that, and the man been dead if they were in that condition in April and nothing done with them ?
l‘A. Well, they probably would have shown signs of demarkation there, of course. The toes when I saw them were about the same color as the foot; they were kind of doughy and swollen, and pitten on pressure some. They were not gangrenous then, and I don’t think they were black.
“Q. And you say that from that condition that they would not have been black in April ?
“A. I didn’t say that. It might have been black from venous circulation, return of venous blood from the toes; if there was venous blood above them, that thing is possible. It might have been mortification of the parts over the toes; the cuticle or scarf skin may have been undermined or blisters. I understand there was some blisters.
ltQ. There is no testimony there was blisters on top of the toes ?
“A. It doesn’t make any difference; they might have been black at the time that the bandage would be put on, for instance, and the toes might swell and become black and be blistered, and then if you remove the circulation, soon it might be. done. The cast is put on, a cast of this kind, to hold the foot in shape. The use of the cast is good, well-recognized treatment. It is desirable to leave on the plaster paris cast until the foot has got back into proper shape if you can do so. It is a good way to leave the toes out so that the doctor can keep watch of them and tell. With an injury of this kind the injured party would suffer pain, probably a good deal of pain. In treating a case of that kind, the doctor by his experience watches from what he can see to tell when the proper time is to cut the cast open. Sometimes it is not necessary to remove it at all; it will go clear through without removing. That is desirable if everything is getting on all right. With a Potts fracture of this kind, with the inner malleolus broken off, and the conditions as I found them to be, there is always danger unless the foot is held carefully in shape until it has recovered to quite an extent, or when it is healed it will be out of shape. That is one of the things the surgeon has to guard against. The swelling in this foot might have resulted from absorption of the waste material in the foot due to the condition of the bone resulting from the injury. That would not be at all unlikely to be the situation from the condition that you describe — that is, an injury of the artery or cutting off of the blood supply through that portion of the tibia — the foot would be likely to swell from such an injury without a cast. At the time of the operation by Dr. Keane there was a good deal of dead bone removed from the ankle, so much in fact we didn’t get it all, and I told Dr. Keane that it would have been a good plan to cut it off, and he' told me that the people would not consent to it; that the man said he would rather die than have his foot cut off, but later on he finally consented to the operation. The thing was a mass of dead bone as I remember it, and a great deal of swelling and infiltration of the soft parts, and we removed a part of the astragalus, some of the scaphoid, and this internal cuneiform bone as near as I can get at it. It seems to me the astragalus was tipped over and we took part of that out. I think the part of the internal malleolus which was removed was the part that had been broken off by the injury. Evidently it had not united, but I am not perfectly certain. * * * Strangulation of the venous blood would cause mortification; it would depend upon the length of time it had been obstructed. I do not know as it would depend very much on his health. The blood is sent from the heart to the body; after coming from the lungs it becomes red blood; coming from the lungs it goes into a large vessel in the abdomen, and then gets down into the thigh, and when it gets down just below the knee it divides into the anterior tibial and posterior tibial artery; it goes back through two sets of veins; a superficial set, which are very numerous, and the deep set, which accompanies the tibial arteries. The veins would be more sensitive to the pressure like a plaster pans cast than the arteries. What would obstruct the circulation of the blood on its return might not obstruct the circulation of the blood going to the foot, because the heart propels the blood through the arteries, and they are well covered by muscles and so on.
“ Q. Now, assuming the statement of facts that I have put into the hypothetical question to you to be true, and supposing that on Tuesday, the day he was injured, the doctor came up there about 2 or 3 o’clock in the afternoon and looked at the foot and administered an opiate, and the toes continued to swell, and two or three days after that they begun to turn purple, and on Sunday morning following this they looked black and dark, what would you attribute that condition to ?
“A. To an interference with return circulation.
“Q. And would you or not to the cast.
“A. Well, if there was nothing else that would interfere with the return circulation, it was the cast, I presume. From the examination that I made I could not determine whether the posterior tibial artery was blocked or obstructed. I did not investigate that part at all. A Potts fracture is a quite common fracture. A simple Potts fracture is not considered very dangerous. A compound Potts fracture — that is, a fracture that protrudes through the flesh and skin — is a serious matter. I am not certain that I saw any evidence of a compound fracture. I don’t think there was. A Potts fracture is a fracture of the little bone in the ankle outside the leg, and it is by turning the foot over that sometimes breaks the lower part of the tibia, and sometimes not. My recollection is that in this case the lower part of the tibia was broken. We would call this a simple Potts fracture; possibly we would call it complicated. * * * From my examination it is my recollection that this was a complicated fracture, and not a simple one. With the breaking of the internal malleolus it is complicated. This makes it worse, as there is a tearing frequently of the ligaments here. A complicated fracture is not necessarily attended with an injury to the vessel and the softer parts. It is likely, perhaps, to beso attended.”

Dr. Tyler, who succeeded Dr. Haze, said:

“At the time I was called the foot was swollen about as full as it could up to the toes from the ankle up to the leg. There was one sore around the ankle joint, some general sore condition over the inner part of the instep and down along the hollow of the foot here, quite a large sore just at the base of the toes at the ball of the foot, a sore on the bottom and back of the heel, a long sore up and down the outer side of the foot here, and on the shin bone up about here in this locality. On the outer side of the foot extending along the metatarsal bone was a long sore about three or three and a half inches longandpossibly an inch wide. The surface was black and tough, thick, hard leathery substances on the outside; the border adhered firmly to the healthier flesh along the outside. The skin was not broken in any way. I did not do anything especially with that until the edge of this unhealthy tissue began to let loose. I treated him somewhere near three months before they went to Detroit. The sore that I described commenced to loosen up nearly two weeks after I commenced to treat him. I took it away in pieces. The outer part seemed a hard substance like leather, and when that came away the deeper tissue was a yellow, softer substance. When I got down as far as that went I found healthy flesh. The substance dipped down into the edge of the foot; when it was finally cleaned out the hole that was left was all healthy flesh around it. What we call granulation formed to heal it, and it healed up. The sore on the back of the heel was practically the same as I have just described on the side of the foot, simply a different location; I removed that. This was somewhere two inches across, and possibly three-quarters of an inch deep. The sore on the outer side of the foot was about the same depth. When I examined the limb on April 13th, there was some swelling up more than half way to the knee. The condition of the tibia or shin bone was an open sore; there was no black substance on it, simply an open, raw sore; it healed up and broke out once after that; the side of the foot entirely healed, as I remember it. The inner side of the foot was an open, raw sore over the ankle bone; I treated it with poultices and some antiseptic dressing and washes. The swelling gradually left the upper part of the foot that was swollen full clear up to the toes. In the course of a week and a half or two weeks the swelling was out of the upper part of the foot, so it was nearly normal from the instep up here. So far as the sore of the side was concerned, there was not very much swelling at that part of the foot. The swelling went out of the instep; the swelling on the outer side of the ankle continued until he went to Detroit; the swelling on this side was practically gone, and the foot was healed. The heel was practically all healed, the outer side was all healed, possibly a hair’s breadth was not healed in yet. The sore at the inner. malleolus nearly closed once, but later it seemed to open or sloughed a little bit and opened up again; after that it never closed. The inner ankle bone was diseased; I discovered there was dead bone there, and as soon as I found that I told Mr. Farrell it would have to come out before the ankle would heal; I discovered this the fore part of July — I don’t remember exactly what time.”

Dr. Shank, called for defendant, testified:

“I saw him on the 13th day of April, 1907. Dr. Haze asked me to go in consultation with him, and I did so. I saw plaintiff at his residence a little before noon. Dr. Haze, plaintiff’s sisters and mother, were in the room at the time; if there were others, I cannot remember it. We did not have much conversation there until after he had taken the leg out of the cast and undone it; he had told me about the case going up. He lifted the limb out of the cast, undid the covering, and showed me the limb. The cast had been cut from the top to the bottom, and had a bandage loosely turned around it. It looked as though the circulation of the blood was very sluggish, and I immediately began to examine the foot myself to determine if I could where and what was the cause of the obstruction to the circulation. I felt of the artery that goes down over the metatarsal bones on top of the foot— the lower extremity of the anterior tibia], the artery that supplies the toes — and I could get pulsation in that as you can in the wrist, but not so strong. Then I went down back at the lower angle of the inner malleolus deep and hard, and I could not find any; there was no pulsation in that artery. I immediately understood then, so far as I could comprehend the situation, why the foot had that peculiar appearance. It was not getting a sufficient amount of blood, and I said to Dr. Haze that I thought the foot was in a dangerous condition, and that, if there could not be some means of instituting a re-establishment of the circulation in that foot, I did not think it would live. Then I examined his heart, and found that decidedly weak; and we talked it over, and I recommended a heart tonic to give more force ,to the blood. That is all the conversation that I can recall there. The foot and leg were swollen and had a peculiar reddish condition, not a bright red, but a sort of dusky red. And it was swollen quite considerably. And that is another thing that made me think his artery was at fault, because it was the parts of the foot that are supplied by his artery that showed the dark color. On the outside of the foot, along very close to the back of the little toe, running back there, was a dark colored s pot. I cannot remember the size of it now, but it was quite a considerable sized spot, perhaps as big as my index finger all together, and there was some more discoloration. What I mean by discoloration is a darkening of the skin around the inner malleolus, in front and beneath the ankle bone. Then there had been some breaking of the skin just in front of the ankle, and those spots with the uncomfortable appearance of the foot were all that I noticed. The toes and the back part of the foot were the best appearing by all means. By the back of the foot I mean what you call the top of the foot, as on the hand you call it the back of the hand. That had a most healthful appearance, and there was no discoloration of the toes or anything of the sort at the time I saw it, not so much even as there was in some other parts in the foot.
“Q. Explain what would cause the front of the foot to look natural and get in the condition you have described, and the other portions of the foot have the nasty appearance that you have described.
“A. The way I accounted for it was that this artery on top of the foot was doing some work, taking some blood to the foot, and the parts of the foot that was supplied by that artery were in much better condition than the parts of the foot supplied by the posterior tibial that I could not find. Therefore I attributed the better condition of the top of the foot to the fact that it was getting more nourishment. The place at the front of the foot that I have described was right in front of the ankle joint.”

It was one of the undisputed facts in the case that the bones in the foot and ankle became diseased, and that this condition rendered amputation necessary. What caused the bones to become diseased ? No one assumed that the known facts which were before the witnesses and the jury led to any certain conclusion. Counsel did not and do not make such an assumption. What was the probable cause of the diseased condition of the bones ? This is the precise question to be answered. Plaintiff has proceeded upon the theory that the premises from which the answer of the jury to this question must be given embrace the opinions of persons having extra knowledge. His contention is that it is more probable that the cause was the treatment received from the defendant. The opinions of those having extra knowledge do not support this contention; It is not enough to show a state of facts equally consistent with unskillfulness and negligence and with skillfulness and due care. Pelky v. Palmer, 109 Mich. 561, 565 (67 N. W. 561). The opinions of the experts called by plaintiff rest upon observed conditions, none of them disputed, upon an injury and course of treatment unobserved by them, but the details of which were stated to them in accordance with the theory and the testimony of the plaintiff. They decline to express the opinion that it is more probable that the cause of the diseased condition of the bones was the treatment of defendant. They do not disagree with the expert witnesses called by defendant. We are of opinion that the preferred request should have been given.

As the case must go down for a new trial, it is proper to briefly notice some errors assigned upon the conduct of the trial. The hypothetical question put to Dr. Barber embraced not only plaintiff’s theory of conditions existing before and at the time the cast was cut, conditions observable by defendant and presumably affecting his judgment, but a statement of' subsequent developments and results. His opinion was asked for in these words:

“What would you say, doctor, as to whether the treatment I have described in caring for said leg, ankle, and foot up to the time said cast was opened was proper ?”

The various hypotheses are stated in such sequence as to convey the idea that conditions described followed one upon the other. The length of time elapsing between the cutting of the cast and the subsequent discoveries of the real condition of the bones was not stated, nor the time elapsing between the cutting of the cast and the amputation of the limb. Nothing was said concerning the treatment given the limb after defendant was discharged. Opinions of experts are supposed to be based upon hypotheses stated by counsel. Their value depends upon the truth of the hypotheses stated. The answer to this question was without any value to the jury in determining the question of defendant’s responsibility.

As the record is understood, the plaintiff produced in court, but under covering, what were stated to be the bones of the amputated, limb, and proposed to exhibit them. There was considerable discussion, in the presence of the jury, concerning the right to exhibit the bones to witnesses and the jury, and the objection to their introduction in evidence was sustained. It is said in the brief for appellant that counsel for plaintiff were enabled to parade the dismembered limb in the presence of the jury and to ask various incompetent and irrelevant questions with respect to it. It is contended that the effect of what was said and done was prejudicial to defendant. As has been stated, we do not understand that the bones were exhibited to the jury, and do understand they remained in the covering or envelope in which they were produced. We are of opinion that they should not have been produced or offered in evidence. It is conceivable that if they were in the same condition they were after the injury, and while defendant was treating the limb, the extent and nature of the various fractures produced by the injury being in question, their examination and perhaps their production in court would have been of value. But plaintiff had proved that various portions of the bones were removed before the amputation took place. He had proved that their condition before and at the time the limb was amputated indicated a gradual and continuing disintegration of the bones from some cause which was active long after the defendant ceased to treat the injury. It could not be apprehended that the jury would be enlightened or instructed by an examination of the remains by themselves or by witnesses in their presence. It is often supposed, and in many cases it is probably true, that a party to litigation is prejudiced in jury trials by making and insisting upon proper objections to the introduction of evidence. The point is not likely to be presented upon a new trial.

Dr. Shank, a witness produced by defendant, testified that defendant possessed the skill of the average surgeon. On cross-examination he stated, in answer to interrogatories, that he had heard his skill and his own (witness’) skill questioned. His examination then proceeded as follows :

“Q. Did you know of his treating the Johns girl for a broken limb in which you were called as counsel, living on Hillsdale street ?
“A. I was called in as counsel by Dr. Haze to see a young lady up there who had a broken leg.
“Q. Did you know of his treating a broken leg for Salspaugh ?
“A. No.
“Q. Did you know of his treating John Bohnet ?
“A. Yes, sir.
“Q. Did you know that Dr. Nancrede from Ann Arbor was called ?
“A. Yes, sir.
“Q. Did you know that Dr. Haze was discharged at once and the treatment entirely changed ? (Objected to by counsel for defendant, and objection sustained. And thereupon counsel for defendant took exception to the asking of the question as prejudicial before the jury.)
UQ. There is but one Nancrede in this State, is there, to your knowledge ?
“A. But one. A surgeon in the medical department of the University of Michigan.”

One who is not possessed of the requisite qualifications of a physician and surgeon cannot be exempted from liability on the ground that his mistake was caused by an error of judgment. But want of requisite qualifications is not shown by proving that he was discharged by a patient and another physician hired who changed the treatment. So much is obvious. We can perceive no purpose in asking these questions, except the one of producing by incompetent means and without tendering the necessary issue the impression that defendant was lacking in professional skill because he had failed in other cases to satisfy his patients and the physician who succeeded him.

The judgment is reversed, and a new trial granted.

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


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    BAUER v. TOWNSHIP BOARD OF DENMARK
    Elections — Local Option — Notice—Statutes.
    An election to determine upon the adoption of prohibition in the county of Tuscola, under 2 Comp. Laws, § 5417, is not invalidated by the publication four days late of the required notice of election, when great publicity was given to the question, a full vote was cast, and a large majority of all the voters in the county voted for prohibition; so that a strict compliance with the law could not have changed the result.
    Mandamus by Fred Bauer to compel the township . board of Denmark to approve certain liquor bonds.
    Submitted April 30, 1909.
    (Calendar No. 23,400.)
    Writ denied July 6, 1909.

      Geer, Williams & Halpin, for relator.

      T. O. Quinn (Pelton & McGee, of counsel), for respondent.
    The relator, a saloon keeper in the township of Denmark, Tuscola county, filed bonds with the respondent for its approval under the general liquor law of the State. The respondent refused to accept the bonds, for the reason that at the last election the question.of prohibition under the so-called local-option law was submitted to the electors of the county and adopted. The relator has applied for a writ of mandamus to compel the acceptance of his bonds, claiming that prohibition was not legally adopted in the county. The objection made to the validity of the election is that notices of the election were not published for three successive weeks prior to the election, as required by section 5417, 2 Comp. Laws. The facts established by the petition and answer are as follows:
    “The notices were published in the required number of newspapers on March 19th and 26th and on April 2d previous to the election, which occurred on April 5th. They were also duly served upon the township clerks on March 15th, 16th, and 17th. The total number of votes cast upon the question were 7,229, of which 4,406 were for prohibition. It was the largest vote ever cast in the county, and larger than the total vote cast for any officer, State or local, at that election, which was a general one, for State and township officers. Meetings were held in every township for and against the proposition. It was also discussed for weeks before the election in the various newspapers in the county, and in the churches, and the electors were well informed as to the time, place, and manner of the election.”
    The first publication of notice was four days short of the three weeks required by the statute. Does the failure to publish the first notice three weeks prior to the election invalidate it ?
   Grant, J.

{after stating the facts). «No question is or can be raised but that all electors of the county were as well informed of the time, place, and manner of the election, and of the issue involved, as they would have been if the first publication had been four days earlier. Probably no issue before the people was ever more fully discussed and more thoroughly understood by the electors. The answer of the respondent shows that there were but few of the electors of the county who did not vote on the question, and that those voting in the affirmative constituted a majority of all the qualified voters of the county. The answer of the respondent avers that those voting in the affirmative constituted a majority of all the qualified voters of the county. An examination of previous elections, and of the one now in controversy on State and local offices, establishes beyond doubt the truth of the assertion. It is not questioned in the relator’s brief, and, as the case is heard upon pleadings, the answer must be taken as true. The majority in favor of prohibition was 1,583. No fraud is charged.

If such an election is to be held invalid, and the decisive will of the people thwarted by the mistake of the county clerk in failing to publish the notice for the exact time, it must be because the rules of law are so inexorable that they will never tolerate a harmless error or mistake of a ministerial officer. Probably no case can be found in the books which shows a wider publicity, a more thorough and open discussion, and a more complete knowledge of the issue to be voted upon. A canvass was made in every township to secure the requisite number of petitioners, the requisite petitions were obtained, were presented to the board of supervisors. That board, more than five months preceding the election, duly made proclamation that the requisite number of petitions had been filed, and that the proposition would be voted upon at the next general election to be held on April 5th. This proclamation was duly spread upon the public records of the board of supervisors, and the record thereof published in the newspapers of the county. There were but few, if any, electors who did not vote upon the proposition. There is no showing or claim that any voter in the county did not understand the issue and was not afforded an opportunity to vote. A ministerial officer — the county clerk — failed in his duty to publish the first notice within the exact time required by the statute. It must be conceded that a four days’ earlier notice would have been of no benefit to the electors. A technical violation on the part of a ministerial officer is the sole ground for setting áside the deliberate decision of the people of a county, after the fullest and freest discussion possible.

We choose to rest our decision in this case upon the fact that a strict compliance with the law as to notice would . have made no difference with the result of the election, inasmuch as a majority of all the voters of the county voted for prohibition. Under such circumstances, omissions of duty by ministerial officers in giving notice will not invalidate the election. Seymour v. City of Tacoma, 6 Wash. 427 (33 Pac. 1059); State v. Doherty, 16 Wash. 382 (47 Pac. 958, 58 Am. St. Rep. 39); Irvin v. Gregory, 86 Ga. 605 (13 S. E. 120). See, also, People v. Village of Highland Park, 88 Mich. 653 (50 N. W. 660); Dishon v. Smith, 10 Iowa, 212.

The petition will therefore be dismissed, with costs.

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


author: Montgomery, J.

text:
      In re CAMERON’S ESTATE. APPEAL OF SUSIE SMITH.
    1. Guardian and Ward — Incompetents — Jurisdictional Defects.
    A petition filed in probate court to revoke the letters of guardianship of appellant, on the ground that the order of appointment failed to comply with the law by appointing a guardian of the person only instead of both person and estate, and on the additional grounds of neglect of duty and competency of the petitioner, does not estop the petitioner to question the defective proceedings for appointment on the theory that the petition was based on 3 Comp. Laws, § 8724. Cornett v. Cornett, 122 Mich. 685 (81 N. W. 920), distinguished; juris- . dictional defects being relied on in this petition in probate court.
    2. Same — Order Appointing Guardian of Incompetents — Subjects of Guardianship.
    The order appointing a guardian for an incompetent under 3 Comp. Laws, § 8710, must include both person and estate.
    3. Same — Defacto Guardian — Accounting.
    A guardian appointed under a defective order, who proceeds to administer the estate, becomes a guardian de faeto and is liable to account for property received from the beneficiary’s ' estate, when called upon therefor in a petition for revocation of the appointment and an accounting.
    Error to Newaygo; Palmer, J.
    Submitted May 3, 1909.
    (Docket No. 64.)
    Decided July 6, 1909.
    Petition by Hiram Cameron for the revocation of the appointment of Susie Smith as guardian. An order of the circuit court affirming an order revoking her letters of guardianship on appeal from the probate court is reviewed by defendant on writ of error.
    Affirmed.

      Turner & Turner (Gross, Lovelace & Boss, of counsel), for appellant.

      George Luton (A. G. Day, of counsel), for appellee.
   Montgomery, J.

This is a proceeding instituted by petition of Hiram Cameron, which alleges that he was, at the date of filing the petition, 36 years of age; that on the 11th of March, 1901, he was the owner of a certain description of land in Newaygo county, and was also the ■ owner of certain personal property of the value of $440; that on the 11th of March, 1901, Ida Fortune, a sister of petitioner, filed in the probate court a petition praying that she be appointed guardian of the personal estate of Cameron; that an order was made on the 9th of April appointing one Susie Smith as guardian of the petitioner, and without stating in the order that she was to be guardian of the estate, as he is informed and believes; that on May 25, 1901, the then judge of probate issued an appraiser’s warrant to certain named parties, directing them to appraise the estate; that the warrant and inventory were filed, from which it 'appears that Susie Smith did not verify the inventory of property as required by law; that on the 4th of April, 1901, Susie Smith was required by the order of the court to file a bond with sufficient sureties in the penal sum of $800, and that said Susie Smith filed a bond with only one surety, as petitioner is advised and believes; that said Susie Smith has not since her appointment as guardian rendered an account on oath of the property in her hands which she was required to do once each year after her appointment as such guardian; that said Susie Smith has not furnished the petitioner to exceed the sum of $75, and that during the last three years she has only furnished him with one suit of clothing, a hat, and pair of shoes, and he has had to support himself as a common laborer, and that she makes it so disagreeable and unpleasant that he cannot live with her; that petitioner is not now mentally incompetent, but on the contrary is mentally competent to have the charge, custody, and management of his person and estate. The prayer of the petition is that Susie Smith, as such guardian as aforesaid, be required to render to said court a full and complete account of her receipts and disbursements, and of the manner in which she has performed her said trust; that for the reasons above set forth concerning the same, said Susie Smith be removed as such guardian, her appointment to such trust be vacated, and her letters of guardianship be revoked and canceled. The probate court, and on appeal the circuit court, entered an order that the letters of guardianship to Mrs. Smith be revoked and canceled. From that order an appeal is taken to this court.

It is the contention of the appellant that the proceedings taken by the ward should be construed as instituted under section 8724, 3 Comp. Laws, and that under the case of Cornett v. Cornett, 122 Mich. 685 (81 N. W. 920), no question was open except that of the present mental capacity of the ward. In that case, however, it appeared that the proceeding taken by the ward was distinctly under the section quoted, and 'that no question of the jurisdiction of the probate court was raised, but thereafter the ward filed a bill in chancery to impeach the proceedings in the probate court, regular on their face. What was held in that case was that, having invoked the jurisdiction of the probate court under section 8724, with full knowledge of all the facts, the complainant should be held estopped from complaining of fraud or jurisdictional defects set up in the bill. There was, so far as the record shows, no attempt to raise, in the proceedings instituted by the ward in the probate court, any question of the regularity of the proceedings by which the guardian was appointed. That case differs from the present in this essential particular. In this case it is set out that there was no order appointing Susie Smith guardian of the estate of the petitioner. It was held in North v. Washtenaw Circuit Judge, 59 Mich. 947 (26 N. W. 810), that it was essential that the adjudication concerning both person and estate should appear of record. This was reaffirmed in Re Bassett, 68 Mich. 353 (36 N. W. 97).

In Gillett v. Needham, 37 Mich. 143, it was held that whatever may be the immunity of letters of administration from attacks from strangers, parties interested may always take advantage of a want of jurisdiction in the court which issued them. This was reaffirmed in Breen v. Pangborn, 51 Mich. 29 (16 N. W. 188). In the present case there is no question that Susie Smith was de facto guardian of this ward. This gave him the undoubted right to have an accounting of her administration, if he saw fit to invoke the aid of the court which had assumed to make the appointment. This he might do without admitting the regularity of the appointment. We see, therefore, no impropriety in the form of the petition which asks that the letters of guardianship be revoked and canceled, and also that an accounting be had. Such order was made, and the accounting has been had, which is before us for consideration in the case of Smith v. Cameron, 122 N. W. 564.

The order in the present case will be affirmed.

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


text:
    OVID CARRIAGE CO. v. PARSILLE.
    1. Sales — Assignments for the Benefit of Creditors.
    A shipment of goods on credit having been refused to the Chippewa Produce & Supply Co., one of the officers of the company directed that the goods be sent to himself and another, who had never authorized the transaction; on arrival the merchandise was turned over to the company, which subsequently made an assignment for the benefit of its creditors and petitioner claimed the consignment. Held, that the title did not pass because the unauthorized order operated as a fraud.
    2. Same — Consignment—Reservation of Title.
    Although the intention may have been to ship the goods on the rejected order, a reservation of title therein was sufficient as against the assignee.
    Case made from Chippewa; Steere, J.
    Submitted May 3. 1909.
    (Docket No. 128.)
    Decided July 6, 1909.
    Petition by the Ovid Carriage Company against William K. Parsille, assignee of the Chippewa Produce & Supply Company, to be declared the owner of certain goods. Prom a decree for petitioner, respondent appeals.
    Affirmed.

      Jfi. S. B. Sutton, for petitioner.

      Davidson & Hudson, for respondent.
   Montgomery, J.

The respondent is the assignee of the Chippewa Produce & Supply Company under a common-law assignment, and is administering the trust under the direction of the circuit court for the county of Chippewa, in chancery. The petitioner intervenes, and asks to be declared the owner of certain carriages in the possession of the Chippewa Produce & Supply Company at the time of the assignment. The relief prayed for was granted by the circuit court, and from this order the respondent appeals.

The facts in the case are that on the 9th of March, 1906, a written order was given by the Chippewa Produce & Supply Company for the buggies in question. ' This order reserved title in all the goods to be shipped in the Ovid Carriage Company until they should be paid for in cash. It appears that, when this order was first tendered to the carriage company, it was refused. But the agent of the carriage company, a Mr. Boughey, being anxious to effect a sale, called upon Charles A. Nelson, the secretary of the Chippewa Produce & Supply Company, and after a conversation with him the goods were shipped. The petitioner asserts that these goods were shipped under the first order, but the respondent contends that, the first order having been refused, it cannot be revived to measure the rights of the parties.

The conversation with Nelson, as testified to by Boughey, was, in substance, as follows: It appears that one Henry H. Wyatt, an entirely responsible person, was to some extent interested in the Chippewa Produce & Supply Company. Mr. Boughey testified that he met Mr. Nelson at Northport, and the latter wanted to know whether the company was going to accept the Chippewa Produce & Supply Company’s order. He replied that it was not.

“Well, then, he said for me to go to work and write the order, and if they would ship the goods to Wyatt & Nelson, that they would look after the payment of the same, and I asked him if he had any such authority from Mr. Wyatt, and he said, T have given you the order for buggies and have signed Wyatt & Nelson’s name to it, which ought to be evidence,’ so I took it that way, and wrote the company to that effect.”

He further testified:

“Q. Well, you gathered that there had been an understanding with Wyatt regarding the Ovid deal ?
“A. Yes, sir; I supposed there had been when the other three orders were signed that way. That is what Nelson was down there for as much as anything.
“Q. When you asked him whether or not he had this authority, he just simply said, ‘ I am signing his name, ain’t I?’
“A. That is the only answer he made.
l‘Q. And you let it go at that ?
“A. Yes; I let it go at that.”

It is not claimed that Mr. Wyatt had in fact given authority to Mr. Nelson to make this purchase in the name of Wyatt & Nelson. The respondent testifies that the goods still on hand are worth $650; that he does not know of any transfer from Mr. Wyatt ór Mr. Nelson, or both of them, to the Chippewa Produce & Supply Company; that he found the goods there when he took possession, and included them in the inventory. The goods were in fact shipped either to Wyatt & Nelson, or to Nelson, just which is not made very clear, were placed in the stock of the Chippewa Produce & Supply Company, and to the amount of $650 were on hand at the time the assignment was made.

It seems to be the theory of the defendant that in some way the title to this property vested in Nelson, and that he turned it over to the Chippewa Produce & Supply Company, and that therefore the provision contained in the original order reserving title in the petitioner is not operative. We are unable to find in the record any evidence whatever of a sale to Nelson of these goods. If the credit was extended to anyone other than the Chippewa Produce & Supply Company, it was extended to Wyatt & Nelson, and this upon the supposition that Nelson had authority to bind Mr. Wyatt in the transaction, which turns out not to have been a fact. Possession thus obtained would be obtained by virtue of legal fraud, and the title would not have passed to the consignee. If, on the other hand, the goods were shipped under the first order, the order itself contained a sufficient reservation of title. So that, in either case, it is evident that there came into possession of this assignee property to the value of $650 or thereabouts, title to which was originally in the petitioners, and which had never passed from them.

The order awarding this sum to the petitioners, to be paid out of the funds of the estate, is affirmed, with costs.

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


author: Hooker, J.

text:
    BUCKHOUT v. WITWER.
    1. Contracts — Restraint of Trade — Statutes.
    In transferring all their interests as stockholders of a corporation to complainant, and in stipulating not to engage in a certain business in the city where the sale was made for five years, the defendant vendors were within the exception of section 6, Act No. 329, Pub. Acts 1905, permitting such restrictions in cases where bad faith or intent to create a monopoly does not exist.
    2. Same — Specific Performance — Equity — Penalty — Liquidated Damages.
    Specific performance of a contract will not be refused where a sum to be forfeited for a breach was fixed by the contract and was in the nature of a penalty.
    Appeal from Kalamazoo; Knappen, J.
    Submitted May 5,'1909.
    (Docket No. 37.)
    Decided July 6, 1909.
    Bill by Oscar K. Buckhout against Benjamin F. Witwer and Roy Witwer for the specific performance of a contract. From an order sustaining a demurrer to the bill, complainant appeals.
    Reversed and remanded.

      Osborn & Mills, for complainant.

      Marvin J. Schaberg (L. T. Flansburg, of counsel), for defendants.
   Hooker, J.

The Witwer Baking Company is a corporation doing business in Kalamazoo. It was organized July 18, 1906, to take over the business of Benjamin F. Witwer, of that place, who had established a lucrative baking business. Its capital stock was $100,000, of which Benjamin F. Witwer subscribed for $39,000, Etta Witwer $1,000, Lorenzo T. Bennett $49,000, and Oscar K. Buckhout, the complainant, $11,000. The good will of said business was put in at $10,000.

On February 36, 1908, Boy Witwer, a son of Benjamin F. Witwer, acquired 100 shares of the capital stock of said company. On March 9, 1908, complainant purchased from Benjamin F. Witwer, who was authorized to and did act for Etta Witwer, and Roy Witwer, his wife and son, respectively, all of the capital stock of said company owned by them, for an agreed price of $14,000. Said Benjamin F. Witwer, with the knowledge and assent and upon the behalf of his said wife and son, as well as himself, esecuted the following writing:

“B. F. Witwer, President,
“ O. K. Buckhout, Vice President,
“L. T. Bennett, Sec’y and Treas.
“Bakers of ‘Buster Brown,’ ‘Mothers’ and ‘Butter
Bread.’
“The Witwer Baking Company,
“ Wholesale Bakers. Corner Church and Eleanor
Streets.
“ Telephone 1639.
“Kalamazoo, Mich., March 9th, 1908. “B. F. Witwer,
‘ ‘ City.
“Dear Sir: I will pay you thirty-five cents (35c.) on the dollar, for $40,000 stock in The Witwer Baking Co., incorporated, which amounts to $14,000, it being understood that the stock above referred to shall be all of the stock now held in your name, also in the name of Etta Witwer and Roy Witwer, said stock shall be indorsed by those whose name it is now in and delivered to me free from all encumbrances within five days from date. In making you this offer and purchasing your interest in this company, it is subject to the condition that the good will of yourself and family follows the purchase; also, that you will not directly or indirectly, in any way, shape or manner engage in the baking business in Kalamazoo for a period of five years. If you do so and do not fulfill on your part both in the spirit and language of this letter, you shall forfeit to me one thousand dollars, $1,000, per annum until the end of the five years from the time you shall not have acted in good faith in performing the terms of this sale.
“You shall resign your position as an officer of this company at once or upon the delivery of stock in this company above referred to.
“Yours truly,
“O. K. Btjckhout.
“ Accepted by “B. F. Witweb.”

The bill in this cause is filed to specifically enforce said contract, to recover damage for an alleged breach, and to restrain further breaches of said contract by Benjamin F. and Roy Witwer, for five years.

In addition to the foregoing facts, the bill alleges that before said sale to the complainant the defendants were secretly arranging to enter into a new business similar to that carried on by the Witwer Baking Company in competition with it, and with the design and intention of undermining it for their own benefit and profit, contrary to their contract, and that in furtherance of such design have entered upon such a business, contrary to their said contract, and are now conducting it, to the injury and serious damage of complainant. The defendants demurred to said bill, and, the demurrer having been sustained, the complainant has appealed.

Two important questions arise upon this record:

First. Was the contract a violation of sections 1, 6, Act No. 829, Pub. Acts 1905, which provide:

“Section 1. All agreements and contracts by which any person, copartnership or corporation promises or agrees not to engage in any avocation, employment, pursuit, trade, profession or business, whether reasonable or unreasonable, partial or general, limited or unlimited, are hereby declared to be against public policy and illegal and void. * * *
“ Sec. 6. This act shall not apply to any contract mentioned in this act nor in restraint of trade, where the only object of the restraint imposed by the contract is to protect the vendee or transferee of a trade, pursuit, avocation, profession or business, or the good will thereof, sold and transferred for a valuable consideration in good faith and without any intent to create, build up, establish or maintain a monopoly.”

Second. Does the contract by its terms provide for stipulated damages to the exclusion of a right to specific performance ? It is contended by the appellees that this statute expressly forbids all contracts in restraint of trade, except in favor of the transferee of a business, and that the corporation was the only transferee of the business here, complainant being only a purchaser of stock, hence that he is not within the terms of the statute. We should have no doubt of the validity and binding effect of this contract in the absence of the statute under the cases of Hubbard v. Miller, 27 Mich. 15 (15 Am. Rep. 153); Beal v. Chase, 31 Mich. 490; Doty v. Martin, 32 Mich. 463; Timmerman v. Dever, 52 Mich. 34 (17 N. W. 230, 50 Am. Rep. 240); Up-River Ice Co. v. Donler, 114 Mich. 303 (72 N. W. 157, 68 Am. St. Rep. 480); S. Jarvis Adams Co. v. Knapp, 121 Fed. 34, 58 C. C. A. 1; Davis v. A. Booth & Co., 131 Fed. 31, 65 C. C. A. 269; Kronschnabel-Smith Co. v. Kronschnabel, 87 Minn. 230 (91 N. W. 892); Bradford v. Furniture Co., 115 Tenn. 610 (92 S. W. 1104, 9 L. R. A. [N. S.] 979). All of them appear to turn upon the common-law rule. The present case involves a statute, which has changed the common-law rule, and made invalid all such contracts, with certain exceptions, and this case must turn on the question of its being within the exception, and as said in Merchants’ Ad.-Sign Co. v. Sterling, 124 Cal. 429 (57 Pac. 468, 46 L. R. A. 142, 71 Am. St. Rep. 94):

“ It is not a question whether the holder of shares of a corporation should be permitted to enhance their vendibility, by agreeing to abstain from carrying on business similar to that of the corporation, * * * but it is a question whether such agreement is not by law (i. e., statute) declared to be void.”

The corporation succeeded to all of the defendant Benjamin F. Witwer’s rights in this business, after which he had no right to the good will except as a stockholder. His wife and son never had any except as owners of stock. At the time of complainant’s purchase of stock, he was not thereby technically made a transferee of a trade, pursuit, avocation, or business or the good will thereof, but he was made a transferee of the same, so far as a stockholder could have such interest, for the defendants did make a sale of their interest in the corporation and the good will of themselves in the business, and defendants promised to refrain from engaging in such business upon a consideration which was adequate.

Technically, the sale to the corporation did carry the good will to it, but the stockholders who constituted the corporation became the real owners of the business and good will in proportion to their shares, for they were the owners of the artificial body which they were permitted to erect. That this may have been a qualified right, so far as control is concerned, may be admitted, but such as it was they attempted to sell it to the complainant, and we are of the opinion that it was within the exception of the statute, reasonably construed. In this we are aware that we are at variance with the view taken by the learned court of California, and it is not without hesitation that we have felt constrained to reach a different conclusion. Counsel seek to distinguish that case from the present, but we think that it cannot fairly be distinguished. We cannot disapprove of the logic of that opinion, if its premises be admitted, but we think that it may reasonably be said that a stockholder in a corporation has such an interest in its business and good will within this statute, as to make a purchaser of such interest and good will a transferee of the same, which appears inconsistent with the view taken in that case.

We are of the opinion that the provision in the contract, “ If you do so and do not fulfill on your part both in the spirit and language of this letter, you shall forfeit to me one thousand dollars, $1,000, per annum until the end of the five years from the time you shall not have acted in good faith in performing the terms of this sale,” should be construed to provide for a penalty, and therefore that it does not preclude complainant from filing a bill for specific performance. It is within the rule stated in Daily v. Litchfield, 10 Mich. 29, followed in Powell v. Dwyer, 149 Mich. 145 (113 N. W. 499, 11 L. R. A. [N. S.] 978).

The other points discussed by counsel do not require elaboration. It is enough to say that we cannot sustain them upon this record.

The order is reversed, with costs, and the cause is remanded for further proceedings.

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


author: Blair, C. J.

text:
    KENNEDY v. LONDON & LANCASHIRE FIRE INSURANCE CO.
    1. Insurance — Title—Liens for Taxes.
    A statement by the husband of the insured to defendant’s agent that there were some back taxes on the property which he intended to clear up, was not notice of the fact that two years later, when a policy of insurance was written, the land had been sold for taxes to a third person.
    3. Same.
    Want of notice as to the state of the title is not a defense to an action on a policy of insurance where no representations were made to secure the policy, and the agent transferred the insurance from another company which he had represented to the defendant under instructions to keep the property insured ; the risk of tax liens being thereby assumed by the defendant.
    3. Taxation — Date of Sale — Void Degree.
    A decree of sale for delinquent taxes fixing a date earlier than that prescribed by statute, invalidates the proceedings, when the sale was held on the earlier day.

      4. Judgments — Taxation—Writ of Assistance.
    Upon an application for a writ of assistance by a purchaser at a delinquent tax sale, the insurer of buildings on the premises is not a necessary party, and the judgment denying the writ and declaring the tax sale void is conclusive.
    5. Evidence — Insurance—Proof of Loss.
    The proofs of loss relating to the insurance policy on which suit was brought are incompetent to show the ownership, fact of loss or amount thereof; but the error in refusing to so charge is not prejudicial where the facts were shown by other uncontradicted evidence.
    6. Same — Conclusions—Opinion Evidence — Title.
    Testimony that plaintiff owned the insured real property is incompetent, but not reversible error when the ownership was otherwise established.
    Error to Wayne; Donovan, J.
    Submitted May 6, 1909.
    (Docket No. 67.)
    Decided July 6, 1909.
    Assumpsit by Marion Kennedy against the London & Lancashire Eire Insurance Company on a policy of insurance. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Lehman, Biggs & Lehman, for appellant.
    Maybury, Lucking, Emmons & Helfman, for appellee.
   Blair, C. J.

Plaintiff brought suit upon an insurance policy issued by defendant April 1, 1906, to recover her loss upon her hotel property, known as the Astor House, in Bay City. Defendant’s local agent, Ames, had been carrying insurance on this property in other companies for a long time under an arrangement with plaintiff’s husband, who represented her.

“He left it to me to carry $4,000on that property, and to place it in whatever company I wanted to, and I did so. I think it had been carried in the Atlas, and, when that policy expired on the first of April, I renewed it in the defendant company, because I did not then have the Atlas in my issues, and to keep it in my business I transferred it to this company. My letter accompanying the policy would notify Mr. Kennedy of the change. My letter was dated the second of April. I did not notify him what company I was in. It was all right so long as it was in some good, reliable company.”

Mr. Ames had been familiar with the Astor House property since 1876. He usually kept plaintiff’s policies in his own safe. The policy in suit was forwarded to plaintiff’s husband at Detroit April 2,1906. Since 1902 plaintiff and her husband had lived in Detroit. No written application was made.

On the 20th day of April, 1904, the circuit court for the county of Bay, in chancery, made a decree and order of sale on account of delinquent taxes for the year 1901. The property covered by such decree included the insured property. On the 25th day of May, 1905, Mary L. Farley of Flint purchased the State’s interest in the property, and received a deed thereof from the auditor general on June 26, 1905. Proof of service of notice for reconveyance was filed November 13, 1905. Petition for writ of assistance was filed by Mrs. Farley on November 22, 1906, to which Mrs. Kennedy filed her answer, claiming that the decree relied upon was void. The matter came on tobe heard on pleadings and proofs in open court on January 7, 1907, and a decree was entered, holding the decree and original sale void and dismissing the petition upon condition that Mrs. Kennedy pay to the petitioner the taxes of 1901,1902, and 1903 and interest at 12 per. cent, to date, and all costs and charges paid by petitioner as a part of the purchase price. Mrs. Kennedy complied with the condition of the decree, and received a quitclaim deed from Mrs. Farley on the 8th day of January, 1907. The fire occurred on April 9,1906. On the 7th day of June, 1906, plaintiff made and served proofs of loss which were returned to her on July 24th by defendant’s attorney, with notice that the company declined to pay said loss, for the reason that the policy was void for various reasons specified.

On the subject of the taxes, Mr. Kennedy testified:

“Q. Did you ever tell Mr. Ames that the taxes for 1901, 1902, and 1903 had been unpaid, so as to become a lien in favor of the government ?
‘A. He knew that was so at the time he took out this policy. I did not take out the policy. * * * After the fire, I found out about five days after the fire that Mrs. Farley was carrying $1,300 on the same property. * * * I says: ‘Ames, I have cleared up the mortgage of $4,500, and there is some back tax which was some time previous to this.’ * * *
“Q. How long before this policy was made ?
“A. A couple of years.
“Q. What did you tell him about the taxes ?
“A. I told him that there was some back taxes, and as soon as I could get around to that, I would clear them up.
“Q. Did he ever ask you anything more about taxes?
“A. I do not remember of ever seeing him after that.
“Q. So that the last time you had a talk with him you discussed- the question of some back taxes that were unpaid?
“A. Yes, sir.-
“Q. You told him you would soon pay them. You were a little short in paying the mortgage ?
“A. Yes, sir.
“Q. You would clean them up soon ?
“A. Yes, sir; something like that.
<CQ. That was how many years? Give us your best estimate the years before you got this policy.
“A. I think two years.
“Q. Will you swear it was not four years before ?
“A. I would not.”

Mr. Ames testified:

“At the time I issued this policy, ‘Exhibit 1,’ I did not know there were any back taxes on the property. I did not know at that time the taxes for the years 1901, 1902, and 1903 had not been paid. I did not know at the time the policy was written that Mary L. Farley had, or claimed to have, any title upon that property and I did not know at the time of the fire or any time before the fire. I first found out after the German of Peoria had paid a claim to the Farley people of Flint when Mr. McLean was making an estimate of the building. I think I found it out then. * * * I had some conversation with Mr. Kennedy about the mortgage and some taxes. He simply told me that the mortgage was all straightened out. He did not at that time tell me about some back taxes. He told me about the back taxes some time before that, when he was speaking of the taxes and the mortgage, and the amount due, etc., but at the time that he told me the taxes were paid, I simply congratulated him on the fact that everything was straightened up. I knew of the tax titles, not any back taxes. It might have been a year or four or five months before that he told me there were some back taxes. * * * It was about the time he paid this mortgage, or shortly after the mortgage was paid, he told me that the taxes and the mortgage and everything had been paid, but the year or to previous to that I know that there were some back taxes, whether 1901 or 1888, or 1890, I did not know.”

The following special question was submitted to the jury, and answered by them in the affirmative, viz.:

‘ ‘ Do you find that Kennedy prior to the issuance of the policy in suit notified defendant’s agent Ames that these taxes were delinquent and unpaid ? ”

The jury found a verdict in favor of plaintiff. Defendant made a motion to vacate and set aside the answer to the special question for the reasons that there was no competent evidence to warrant its submission, and the answer was against the weight of evidence. The motion was also for a new trial for other reasons. The court denied the motion, filing his reasons therefor, to which exceptions were taken and errors assigned thereon. Defendant brings the record to this court for review upon writ of error.

It is undisputed that Mr. Kennedy spoke to Mr. Ames about the taxes either two or three years before the issuance of the policy and said that he expected to pay them soon; and the serious conflict between them is as to whether he told Ames that he had paid them. This presented a question of fact for the jury, and by their answer to the special question they found that Kennedy did not tell Ames later on that he had paid them. We agree, however, with the contention of defendant’s counsel, that the facts as stated by plaintiff’s husband were no notice to Ames of the condition of the title to the property on April 1, 1906, but, under the peculiar circumstances of this case, the question of notice to Mr. Ames is not very important. No application was made for this policy in writing or otherwise than by the general direction to keep the property insured. Plaintiff had never had a policy in defendant company before, and Mr. Ames transferred the policy to defendant company because he had lost the Atlas, in which it had been. Neither plaintiff nor her husband made any representations whatever for the purpose of procuring this insurance, and, under such circumstances, the company took the risk of undisclosed taxes when it issued the policy. O’Brien v. Insurance Co., 52 Mich. 135 (17 N. W. 726); Brunswick-Balke-Collender Co. v. Assurance Co., 142 Mich. 29 (105 N. W. 76).

The decree of sale for the taxes in question fixed the date of the sale for a day earlier than .that prescribed by the statute and the sale was actually made upon the day fixed by the decree. The same court that entered the decree held, and we think correctly, in the proceedings for writ of assistance, that the decree and the sale made under it were void. Defendant had no right to be made a party to the proceedings. The proper parties were before the court and the decree must be held conclusive in this cause. Spaulding v. O’Connor, 119 Mich. 45 (77 N. W. 323); Peninsular Sav. Bank v. Ward, 118 Mich. 87 (76 N. W. 161, 79 N. W. 911); Youngs v. Clark, 120 Mich. 528 (79 N. W. 803); Napper v. Fitzpatrick, 139 Mich. 139 (102 N. W. 642); Watts v. Bublitz, 99 Mich. 586 (58 N. W. 465).

The failure to disclose these outstanding taxes did not avoid the policy nor did the liens created thereby. Brunswick-Balke-Collender Co. v. Assurance Co., supra; Alkan v. Insurance Co., 53 Wis. 136 (10 N. W. 91); Phenix Insurance Co. v. Pickel, 119 Ind. 155 (21 N. E. 546, 12 Am. St. Rep. 393); Read v. Insurance Co., 103 Iowa, 307 (72 N. W. 665, 64 Am. St. Rep. 180); Hosford v. Insurance Co., 127 U. S. 404 (8 Sup. Ct. 1199); Baley v. Insurance Co., 80 N. Y. 21 (36 Am. Rep. 570).

The seventh and eighth assignments of error are to the effect that the court erred in receiving the proofs of loss in evidence as competent for all purposes, and in refusing defendant’s request for an instruction that they were not ¿ competent as tending “to prove the ownership of the property or the fact of loss or the amount of the loss.” We think the court erred in refusing this request, but that such error could not have prejudiced the defendant. The plaintiff was not sworn upon the trial, and it is apparent from the record that she had very little to do with the matter. Her husband and Mr. McLean, both of them being building contractors of long experience, testified fully as to the amount of the loss, and ‘one witness testified for defendant. The jury found in accordance with the testimony of plaintiff’s witnesses and against the testimony of defendant’s witness, and it would be unreasonable to hold that the statement of loss in the formal proofs of loss could have affected their verdict. Plaintiff’s husband testified, against objection that the evidence was incompetent, that she was the owner of the property in question, and had been for 25 years. Defendant assigns error upon the admission of this testimony, citing, in support of the assignment, Hiram Jennison v. Haire, 29 Mich. 207, and Luman Jennison v. Haire, 29 Mich. 220. In those cases an objection was sustained to the following question:

“State whether all the logs were not subject to a lien of the Bendon Lumbering Company for the stumpage, and whether that company was not the owner of the lands from which the timber was cut by you.”

The exclusion of the testimony was sustained by this court upon the ground that so much of the proposed question as required the witness to swear that the company owned the lands was subject to the objection of incompetency. See Jennison v. Haire, supra, at page 215.

Defendant’s agent testified that he had been in the real estate business for 20 years, and had been familiar with this particular property for about the same length of time and had carried insurance on it ever since he had been in the insurance business, for 12 or 13 years. Defendant put in records showing that the property was assessed to plaintiff, had been sold by the State for delinquent taxes under a court decree, and deeded by the auditor general to Mrs. Farley. The heart of the defense was that Mrs. Kennedy had been the owner of the property, but that her title had been divested by the tax proceedings, of which it had no notice, and that thereby her policy was avoided. Under the circumstances disclosed by this record, we think there can be no doubt that plaintiff was the owner of the property, and it would be a reproach to the courts to reverse the case for the error in admitting the testimony of plaintiff’s husband.

We have considered the other errors assigned, but do not find any of them so prejudicial as to warrant a reversal of the judgment.

The judgment is affirmed.

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