text:
    ONIJI v. STUDEBAKER CORPORATION.
    1. Master and Servant — Workmen’s Compensation Law — Personal Injuries — Intentional or Wilful Misconduct — Evidence — Sufficiency.
    In proceedings under the workmen’s compensation act for compensation for the loss of the first phalange of claimant’s thumb due to accidental burning, subsequent rotting and necessitated, amputation, where it appeared that claimant, a foreigner who spoke English very imperfectly, had the thumb treated by defendant’s physician on.the day of the burning and on the two days following, and did not come back again for two months and the thumb subsequently rotted so as to necessitate the amputation thereof, and the testimony of the physician and of claimant was conflicting as to whether claimant was told to come back again at the time of the second treatment, and the physician testified that no interpreter was present and he had difficulty in understanding claimant, the evidence tended to support the finding of the industrial accident board that claimant was not guilty of wilful or intentional misconduct in failing to procure medical treatment.

    2. Same — Evidence—Sufficienqy.
    Evidence held, insufficient to show that under any treatment the injury could have been healed in three weeks’ time so as to authorize an award for an ordinary infection and not for loss of one-half of the thumb.
    3. Same.
    The real question for the determination of the Supreme Court on appeal in proceedings for compensation under the act is whether there is evidence in the record to support the findings of the industrial accident board, and the question of the weight of the evidence will not be considered.
    Certiorari to Industrial Accident Board.
    Submitted April 5, 1917.
    (Docket No. 45.)
    Decided May 31, 1917.

      John Oniji presented his claim for compensation against the Studebaker Corporation for injuries received in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Affirmed.

      Roy C. Gamble, for appellant.

      Sol Blwmrosen, for appellee.

      On construction and effect of workmen’s compensation acts generally, see note in L. R. A. 1916A, 23.

   Stone, J.

This proceeding is brought here to review a decision of the industrial accident board affirming an award of the committee of arbitration granting claimant as compensation the sum of $9.85 a week for a period of 30 weeks. There is no question that the Studebaker Corporation was in the month of December, 1915, engaged in business in Detroit and was subject to the provisions of Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5423 et seq.). Oh or about the 14th day of said month the claimant, while in the employ of said corporation and working in its heating room, met with an accident arising out of and in the course of his employment. The injury was a burn of the right themb. On or about December 18, 1915, claimant went to the physician at the hospital in the plant of the corporation, and, upon examination, it was found that claimant had a bad infection at the end of said thumb. At that time the wound was opened and dressed, and claimant was instructed to return for further treatment. He went to the said hospital again on December 19th, and again on December 20th, at both of which times the wound was dressed. The testimony shows that on December 20th the wound was draining and showed slight improvement. The foregoing facts are undisputed, but from this'time on the evidence presented by the contending parties is somewhat at variance. It should be stated that the claimant is a foreigner, and it is apparent from the record that he understands the English language very imperfectly. The physician for the appellant testified that on the visit of the claimant on December 20th, at the office of the company hospital, he was instructed to return for further treatment. The claimant testified that he was instructed not to return. The testimony shows that after the failure of claimant to return for further treatment, as it was claimed he was instructed to do by the physician, an investigator of the appellant was sent out to find claimant, but the search was unavailing.

It appears that claimant next appeared at the company hospital for treatment on or about February 22, 1916, at which time the end of his right thumb had practically rotted off, and amputation of the first phalange of the thumb was necessary. The amputation was made by a surgeon at the expense of appellant on February 24, 1916. It is the claim of appellant that, while the claimant did not return to the hospital of the company for treatment between December 20, 1915, and February 22, 1916, he sought the services of no other physician, during which time necrosis of his right thumb was taking place. There was testimony of the claimant, in his broken English, that after he was told not to return by the physician on December 20th that he visited and was treated by another doctor.

The appellant claiming that the loss of the first phalange of claimant’s right thumb was not the result of the injury arising out of and in the course of his employment, but was a result of his refusal of medical services offered by the appellant, has brought the case here for review. The assignments of error are as follows:

“(1) That the said industrial accident board erred in holding that the loss of the first phalanx of claimant’s right thumb is the result of an injury arising out of and in the course of his employment.
“(2) That the industrial accident board erred in allowing compensation for a period longer than the usual length of time for an ordinary infection to heal.
“(3) That the industrial accident board erred in holding that a personal injury was the proximate cause of the loss of the first phalanx of claimant’s right thumb.
“ (4) That the said industrial accident board erred in allowing compensation for one-half of the thumb, for the reason that the loss of one-half of his thumb is the result of his refusal to submit to medical attention.”

1. While the appellant admits that the claimant met with an accident arising out of and in the course of his employment, it is claimed that this accident resulted in a minor injury only; that claimant made no effort to procure medical treatment for a period of six weeks; that during this time the thumb was continually growing worse; and that claimant was guilty of such wilful misconduct as prohibits him from receiving the benefits of the act. It is also urged that no operation should have been necessary in the case.

To this claimant replies that, inasmuch as the findings of fact of the board are conclusive upon this court, if supported by any evidence, it only remains to inquire whether there exists, any evidence which will support the findings of fact. It is said by claimant that the following evidence is to the effect that the company’s physician told claimant not to return for further medical treatment after December 20, 1915, and that this court will not weigh the evidence. The claimant testified, referring to the company’s physician, as follows:

“Q. When did you next see him?
“A. I was four or five times, I think. I was four times; on 20th quit. He says, ‘Don’t come any more.’
“Q. On the 20th he told you not to come any more?
“A. Yes; then me no come no more.
“Q. Did you quit the company then?
“A. Yes; not quit, but don’t go to the doctor, to the company doctor. * * *
“Q. The last time you worked?
“A. Yes; doctor told me don’t come; I don’t come after that. * * *
“Q. Then you did not go to see the doctor any more?
“A. No; because he told me not to come any more.
í $
“Q. Why didn’t you see some one? Why didn’t you go to see the doctor after December 20th? _
_ “A. He told me not to come any more; ‘it is all right.’
“Q. He said your thumb was all right?.
“A. Yes; he said, ‘No come.’ ”

The physician testified that he had no interpreter when talking with claimant, and that he had some difficulty in talking with him — in making himself understood. It seems to us that this evidence tends to support the finding of the board that claimant was not guilty of intentional or wilful misconduct. Bearing in mind the fact that the claimant was a foreigner, and, as appears, unfamiliar with the English language, it cannot be said that there was no evidence supporting the findings. Upon this subject the facts were quite similar to those in Poniatowski v. Stickley Bros. Co., 194 Mich. 294 (160 N. W. 569).

2. It is next urged by appellant that it appears that the infection at the time claimant called at the hospital was only an ordinary localized infection, and that an ordinary infection under the treatment usually administered in such cases continues for about three weeks; therefore, if entitled to any compensation, it should have been only for the period an ordinary infection would incapacitate, and not for the loss of one-half of the thumb.

The record does not show that the thumb would have been saved if the claimant had returned to the company’s physician for treatment after December 20th. Appellant concedes “that no human being can absolutely say that the thumb would have entirely recovered from the original infection in three weeks’ time,” but claims that it is a reasonable and fair assumption that it would have done so. One of the attending physicians testified as follows:

“Q. On the 20th you say you put a note down, ‘Severe infection’ ?
“A. On the 18th. * * *
“Q. His condition had not changed much on the 20th?
“A. No; there was just a slight improvement, all you could expect.
“Q. So that the finger was convalescing?
“A. No; I would not say convalescing; it was draining; the pus has to come out before there can be an improvement.
“Q. Doctor, the science of medicine, like theology, is not an exact science, is it?
“A. It is not. * * *
“Q. You.have known cases where an infection of this sort did not heal in three weeks’ time?
“A. I have known cases where there was some direct injury to the bone like a foreign body or something of that sort where necrosis happened in spite of the best medical care, where there would be a foreign body, a piece of steel or something imbedded in the periosteum, but never a simple infection have I seen treated result in a necrosis of the bone. * * *
“Q.. Doctor, infection, severe infection to necessitate the placing of a drain to draw off the pus, is entirely problematical as to period of disability?
“A. If for any reason you do not get proper drainage, yes. Drainage is an important feature. The initial infection is never in the bone. The secondary infection is liable to be, under poor medical treatment. That is the present theory, and it works out ordinarily well. It is the common sense treatment. * * *
“Q. When you amputated his thumb there was nothing to indicate that the bone had been pierced in any way, or even touched, was there?
“A. It would be impossible to tell that. The bone was just a rotten mass at that time, showing that the infection had traveled into the bone.”

It does not appear from the evidence that the injury would have been healed in three weeks’ time, under any treatment.

'3. It is urged that the finding of the board was contrary to the weight of the evidence. We have said so often the real question is whether there is evidence in the record to support the finding, and that we are not concerned with the weight of the evidence, that we shall not discuss the matter. Rayner v. Furniture Co., 180 Mich. 168 (146 N. W. 665, L. R. A. 1916A, 22, Am. & Eng. Ann. Cas. 1916A, 386); Bayne v. Storage Co., 181 Mich. 378 (148 N. W. 412).

4. It is here urged by appellant that the refusal to return and take proper treatment injects a new cause for the loss of claimant's thumb, and that the loss cannot be said to be the result of the accident which arose out of and in the course of the employment, but was the result of his refusal of medical treatment.

The appellee replies that the evidence of refusal of medical treatment was a disputed question of fact, which the board passed upon adversely to appellant. We have already referred to the testimony of claimant that he sought treatment of another physician after he claims he had been dismissed by the company’s physician. This testimony is somewhat vague and indefinite, but we cannot say that it was not evidence in the case which the board had the right to consider.

For the reason that there is in the record evidence to support the finding and return of the board that the claimant suffered the loss of one-half of his right thumb, as the result of an accident arising out of and in the course of his employment, and that he was not guilty of wilful or intentional misconduct, the decision of the board is affirmed.

Kuhn, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    HAMPTON v. VAN NEST’S ESTATE.
    1. Appeal and Error — Affidavits—Record—New Trial.
    Affidavits filed on. a motion for a new trial which, were not made part of a bill of exceptions, but extracts from which were printed in the record, are proper to be considered, on appeal, as part of the record, where the trial-court considers and refers to them.
    2. Trial — Jurors—Sheriff in Jury Room.
    Where the evidence tended to show that the sheriff in charge of a jury was not present during their deliberation and only as occasion required for the purpose of replenishing the fire in the room and furnishing water to the jury, the denial of a motion for new trial upon the ground that he was in the jury room with the jury and within hearing while they were deliberating on their verdict, was not erroneous.
    3. Same — Conduct of Officers — Jurors.
    The court should not countenance or tolerate any act or conduct by court officers that might inflúence the conduct of any member of the jury in favor of either party in reaching conclusions in the case they are considering.
    4. Same — Separation of Jury — New Trial.
    The separation of the jury by consent of the parties before arriving at a verdict and going for supper to their respective boarding houses unaccompanied by an officer, is not ground for new trial, where no prejudice is shown.
    5. New Trial — Newly-Discovered Evidence.
    A motion for new trial on the ground of newly-discovered evidence, is properly denied where a showing in compliance with the statute is not made, no witnesses being named nor the proposed testimony or affidavits set out.
    6. Trial — Instructions—Burden of Proof.
    In an action on a claim against an estate, an instruction on the burden of proof that “By the burden of proof as a legal term we understand that the party asserting a claim, the claimants in this ease, must produce to the jury testimony of that weight, character and sufficiency which overcomes in the mind of each juryman any testimony opposed to it,” was not reversibly erroneous.

      7. Executors and Administrators — Claims—Bills and Notes — ■ Burden of Proof.
    Where a claim on a note is filed in the probate court against an estate and appealed to the circuit court, the burden of proof as to the execution of the note is all the time on the claimant.
    8. Same — Claims—Filing Affidavits — Court Rules.
    In an action in the probate court upon a note purporting to have been executed by the decedent, it lies within the discretion of the court to permit the filing in the circuit court, upon appeal to that court, of an affidavit denying the execution of such note by decedent, under Circuit Court Rule 33, if such rule is applicable to cases appealed from the probate court.
    Error to Sanilac; Beach, J.
    Submitted April 9, 1917.
    (Docket No. 111.)
    Decided May 31, 1917.
    Charles S. Hampton presented a claim against the estate of John W. Van Nest, deceased, for the amount of several promissory notes. The claim was disallowed in the probate court, and claimant appealed to the circuit court. Judgment for defendant. Claimant brings error.
    Affirmed.

      Victor H. Hampton, for appellant.

      C, F. Gates for appellee.
   Stone, J.

This case originated in the probate’court of Sanilac county. The claim of the plaintiff having been disallowed by the commissioners on claims, there was an appeal to the circuit court for said county. This case and three others came on to be heard in the circuit court in accordance with a stipulation which provided that the said four cases might and should be tried at one and the same time by the same jury; that a separate verdict might and should be asked and taken for each case and separate judgments entered therein,‘but that the testimony which was competent and admissible in any of the cases should be taken and received at such trial, and its competency, relevancy, and admissibility as to the several cases should be taken care of by the court in its charge. The result is a very bungling and unsatisfactory record. As we understand it, all of the claims of all of the plaintiffs or claimants grow out of promissory notes claimed and purporting to have been made by said J. W. Van Nest in his lifetime. The plaintiff, Charles S. Hampton, was a practicing attorney. He had been employed by one R. H. Evans, and had rendered services for Evans to the amount of $200. On May 4, 1914, said Evans came to Mr. Hampton and exhibited to him seven promissory notes of $30 each, dated June 4, 1913, with interest at 6 per cent, per annum, payable to the Evans Land Company, one of which was due 20 months after date, and the others at successive intervals of one month each, and all purporting to be made and signed by J. W. Van Nest. Evans on that occasion offered to pay plaintiff what he owed him if he would accept said notes in payment.

After making inquiry concerning the notes, and the property owned by the alleged maker, and being informed by said Evans that the Evans Land Company, the payee in the notes, was a partnership composed of himself and brother, and that he had authority to sign the partnership name, and was in full charge of the business, Mr. Hampton consented to accept the seven notes for his services. He accordingly gave a receipt in full for $200 and paid the difference of $10 in cash to Evans, who indorsed the notes in the name of the Evans. Land Company, per R. H. Evans. It appears that Mr. Van Nest had died in January or February, 1914. At the time Mr. Hampton took the notes he was not aware of any defense to them on the part of said estate, and had no knowledge, notice, information, or suspicion that there was anything irregular about the notes or that they were not given for a valid consideration. On October 5, 1915, the case came on for trial in the circuit court before a jury. Before the jury was impaneled one of the attorneys for the plaintiff stated that it appeared to him that an issue of fact ought to be framed in the case. After the jurors had been examined and sworn, and the opening statement had been made by Mr. Hampton, the attorney for the estate said:

“Now, your honor, if that is the issue, it will be necessary to file some things in writing; some are absolutely necessary to file in writing.
“Mr. Hampton: If it was necessary to file them in writing, I should think the time ■‘hese have been pending—
“Mr. Gates: We didn’t know there was to be an issue framed Until this moment.”

After the noon recess the court said:

“Have you filed your pleas?
“Mr. Gates: Yes. (Reads paper.) Our plea is the same as would be the general issue regularly filed at the time, ‘The defendant comes and demands a trial upon the matters claimed by the claimants,’ with an affidavit supplementing the notice denying execution of the notes.
“Mr. BabcocTc: The claimants each object to the filing of the affidavit denying the signatures of the notes at this time. The notes have been filed and delivered to the commissioners on claims, and no affidavit filed denying the execution of the notes at that !time. The affidavit comes too late, and takes claimant by , surprise, and raises an issue that was not raised at the hearing.
“Mr: Gates: In reply to that we will say that there is no rule for filing an affidavit in the probate court; they must prove the execution; under the common law you must prove the execution in all cases.
“The Court: The objection is overruled. The formal issue may be filed, and the trial proceed under it.”

Whereupon, without any exception to the ruling, the affidavit denying the execution of the notes was filed, and the trial proceeded. After the testimony of numerous witnesses pro and con as to the genuineness of the signature of the notes was taken, the case was submitted to the jury, which rendered a verdict disallowing the plaintiff’s claim, and judgment accordingly followed.

At the close of the charge of the court to the jury the following occurred:

“The Court: If the jury does not agree by supper time, is there any objection to their separating and going to their boarding places?
“Mr. Babcock: No.
“Mr. Gates: No.
“The Court: Very well, you may do so in that case, with the caution not to receive any information or talk from any one. If any one desires to talk with you, report it to the court.”

It is undisputed that the jury did separate and go to their respective boarding places before arriving at a verdict, unaccompanied by an officer of the court.

It was the claim of the plaintiff that the sheriff, who was in charge of the jury while deliberating upon their verdict, remained in the same room with the jury during their deliberations; and this claim, as well as the fact that the jury separated, was made, with other reasons, the basis of two motions for a new trial, both of which were denied, and exception^ duly taken. The plaintiff has brought the case here on writ of error, and by appropriate assignments of error the following propositions are argued:

1. That the court erred in refusing a new trial, because the sheriff in charge of the jury was present in the jury room with the jury, and within hearing, while they were deliberating upon their verdict up to, and including the time they reached a verdict. This point was urged upon a motion for a new trial, and there were numerous affidavits filed in support of, and opposed to,, the motion.

It is urged by the appellee that this question is not properly before the court, for the reason that the affidavits are not made a part of the bill of exceptions signed by the circuit judge, but that extracts from such affidavits have been printed in the record, forming no part of the bill of exceptions, and reference is made to section 68 of chapter 18 of the judicature act (Pub. Acts 1915, Act No. 314, 3 Comp. Laws 1915, § 12635), which provides:

“The party appealing the same may incorporate in the bill of exceptions a record of all proceedings had on said motion for a new trial, including the reasons given by the trial judge in refusing to grant said new trial.”

The affidavits appear to have been considered by the trial court, and we are disposed to treat them as a part of the record as they are referred to by the court below.

A question of fact was here presented to the circuit judge as to whether the sheriff was actually present with the jury during their deliberations. The affidavits are contradictory. The affidavits of the sheriff and a number of the jurors were to the effect that the sheriff was called into the jury room, which was a town hall consisting of one room, to replenish the fire and furnish water for the jurors, and that he heard no part of their deliberations, and entered into no conversation with them. The circuit judge in denying the motion said:

“The presence of the sheriff, from the showing made, was within the line of his duties and required, under the circumstances, the county building having been destroyed, and the city hall was designated. It is a single room with a small lobby, the evening was wet and cold, and the rooms were heated by a single coal stove, and the court is satisfied that the sheriff in charge of the jury violated no part of the spirit of his oath.”

It is urged by appellant that the cases of People v. Knapp, 42 Mich. 267 (3 N. W. 927, 36 Am. Rep. 438), People v. Hoffman, 142 Mich. 531 (105 N. W. 838), and Goby v. Wetherill [1915], 2 K. B. 674, are controlling of this case. An examination of People v. Knapp, supra, will show that in that case when the jury retired to consider of their verdict an officer accompanied them, and remained in the room during their deliberations. The same may be said of the English case, the court saying:

“The town sergeant went into the retiring room with the jury, and remained there for about twenty minutes while they were considering their verdict.”

Those cases are distinguished from the instant case, as the facts were found by the circuit judge from the affidavits filed. We are not disposed to disturb the finding of the circuit judge upon the question of fact here presented; there being evidence that the sheriff was not present during any of the deliberations of the jury.

The doctrine is well established that the court should not countenance or tolerate any act or conduct by court officers that might influence the conduct of any member of the jury in favor of either party in reaching conclusions in the case they are considering. This subject is treated in 38 Cyc. p. 1826, where the following cases are referred to: Williams v. Railway Co., 11 S. D. 463 (78 N. W. 949); Edward Thompson Co. v. Gunderson, 10 S. D. 42 (71 N. W. 764).

2. It is next urged that the court erred in not granting a new trial because the jury, before arriving at a verdict, were allowed to separate and go to their respective boarding houses to eat supper, unaccompanied by an officer. Bearing in mind that this course of conduct was expressly assented to by counsel for appellant in open court, as appears by the record, we do not think that the court erred in denying a new trial upon this ground. The subject is treated in 38 Cyc. pp. 1820, 1821, and numerous cases are cited, among others, Iowa Savings Bank v. Frink, 1 Neb. (Unof.) 14, 26 (92 N. W. 916), holding that separation of the jury after submission of the case by consent of counsel will not warrant a reversal where it appeared that neither party was prejudiced by such action. Other cases are cited in the note to the same effect. Relating to a similar irregularity see Miller v. Young, ante, 276 (162 N. W. 160).

It is a well-known fact that in the Federal courts held within this State it is the usual practice to permit jurors to separate and go to their lodgings and meals after their deliberations to consider of their verdict in the case are entered upon. There is nothing in this record to indicate that either party was injured by the course here adopted, but it is a practice not to be commended under our system.

Spencer v. Johnson, 185 Mich. 85 (151 N. W. 684), is referred to by appellant, and some of the language used by this court is quoted in the brief. We find nothing in the record raising any presumption that the appellant was prejudiced by this conduct of the jury.

3. It is further urged that the court erred in denying the motion for a new trial because of newly-discovered evidence, which would result in a different verdict on a retrial of the case. We are content upon this subject to quote the language of the trial judge wherein he said:

“The showing of newly-discovered evidence is not in compliance with the practice, no witnesses are named, nor is the proposed testimony or affidavits of witnesses set out, and the court is left to simple conjecture as to the materiality of the proposed evidence.”

It may be said in passing that the last motion for a new trial was denied by the circuit judge upon the same grounds as stated in the denial of the first motion.

4. The next assignment of error which is argued by counsel is to the effect that the court erred in its charge to the jury with reference to the burden of proof, and required the plaintiff to prove his case by a greater degree of proof than the law required.

It appears that the portion of the charge complained of was the following:

“The same rule applies to the claimants in this case as would to the ordinary plaintiff in commencing a suit in this court. Parties that bring their claims into court and assert that they have a valid claim, the burden of proof is put upon them, upon the claimants, to show the validity of their claims, the merits of their claims; more especially so in these cases because the estate, the administrator defending, has caused an affidavit to be filed denying the genuineness of the signatures of the various notes belonging to the various parties who bring the claims into court. Filing that affidavit placed upon the claimants the burden of proof, as we call it, to show that the signatures to those notes, each of them, are the genuine signatures of John W. Van Nest, deceased. By the burden of proof, as a legal term, we understand that the party asserting a claim, the claimants in this case, must produce to the jury testimony of that weight, character, and sufficiency, which overcomes in the minds of each juryman any testimony opposed to it. That is what we understand by the burden of proof. The testimony of the claimants in this case must be of that character that it overcomes in your minds all testimony opposed to their claim.
“Now, you have heard the testimony in the case on the part of the claimants and on the part of the estate. It is your duty to weigh the testimony when it is introduced and to say what weight and character you will give each item of testimony as it is introduced before you; that is your peculiar duty as jurymen, to weigh the testimony and find for yourselves where the truth of the testimony is and whether the burden has been sustained or not.”

Special stress is laid upon the following language appearing in the above excerpt:

“By the burden of proof, as a legal term, we understand that the party asserting a claim, the claimants in this case, must produce to the jury testimony of that weight, character, and sufficiency, which overcomes in the minds of each juryman any testimony opposed to it. That is what we understand by the burden of proof. The testimony of the claimants in this case must be of that character that it overcomes in your minds all testimony opposed to their claim.”

When taken in connection with the other language used, we doubt if the court intended or can be held to have here required any greater degree of evidence than that of preponderance in favor of the claimant. When the testimony of a plaintiff preponderates in his favor, it is not improper to say that it overcomes the evidence upon the other side. Manifestly it must overcome it in weight in order to preponderate in favor of the plaintiff. The evidence must be heavier, and may be said to overcome by weight the evidence upon the other side. Many of our cases are referred to by appellant, but we do not think any of them controlling ,of the question here presented, and we find no reversible error in the charge.

5. The next question that is discussed is that the affidavit of nonexecution of the notes was filed too late and should not have been allowed. At the time of the trial old Circuit Court Rule No. 8 was in force, which we find to be precisely like the present Circuit Court Rule No. 33. We doubt if it is applicable to cases appealed from the probate court. We think the burden was upon the claimant all the time to make his case and prove the execution of the instruments claimed to have been executed by the deceased. If, however, the rule or the spirit of it did apply, it was certainly, under our ruling, within the discretion of the court to permit the amendment to be made; for the rule expressly provides that:

_ “The court may, upon proper showing, enlarge the time for filing such affidavit.”

There was no error in the ruling of the court upon this subject.

We find no other question presented which in our opinion requires discussion. There being no reversible error in the record, the judgment of the court below is affirmed.

Kuhn, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


text:
    CULLEY v. BADGLEY.
    Divorce — Attorney’s Pees — Contracts—Waiver—Allowance by Court.
    Under section 8628, 3 Comp. Laws (3 Comp. Laws 1915, ■ § 11404), providing that in a suit for divorce the court may, in its discretion, require the husband to pay any sums necessary to enable the wife to carry on or defend the suit during its pendency and may decree costs against either party, the rights of an attorney for a wife as complainant in a divorce suit under a contract for prosecution of the case for what his services are reasonably worth, are ^ not waived by the allowance by , the court, and acceptance of, a sum less than the reasonable value of such services, where the order is on account of “attorney’s fees” and not to “relieve” the wife from the cost of attorney’s fees.

      Case-made from Jackson; Parkinson, J.
    Submitted April 5, 1917.
    (Docket No. 55.)
    Decided May 31, 1917.
    Case by Estella Culley against Forrest C. Badgley for the conversion of certain moneys. From a judgment for plaintiff for less than the amount claimed, she appeals.
    Affirmed.

      Grove H. Wolcott, for appellant.

      Forrest C. Badgley (Wilson & Cobb, of counsel), in pro. per.

      On liability of married woman for legal services in divorce suit, see notes in 24 L. R. A. 634; 34 L. R. A. (N. S.) 1080.
      As to liability of husband on wife’s contract for attorneys’ fees in divorce proceedings, see notes in 24 L. R. A. 629; 13 L. R. A. (N. S.) 244.

   Stone, J.

This action was brought to recover certain moneys in the defendant’s possession alleged to belong to the plaintiff. The plea was the general issue, with notice of claim of lien for attorney’s fees and tender.

The case is brought here by the plaintiff upon case-made, and from the statement of facts we glean the following:

The plaintiff, having trouble with her husband in the summer of 1911, employed the defendant, a practicing attorney, to institute proceedings against her husband to dissolve the marriage, and obtain permanent alimony. At the time of defendant’s employment, according to his testimony, plaintiff asked him what he would charge her for his services. He told her that, inasmuch as the services he might be called upon to perform were a matter of great uncertainty, he could not in advance advise her as to the amount he would charge. He further stated to her that he might be able to effect a settlement with her husband; and, if so, the charge would be small. On the other hand, if litigation ensued, he could give her no assurance on the subject, beyond saying that he would expect such compensation as his services were reasonably worth; that, with this understanding on his part, defendant undertook to negotiate a settlement with her husband, but, this proving unavailing, in September, 1911, the defendant, acting as plaintiffs solicitor, prepared and filed a bill of complaint to dissolve the marriage relation and obtain permanent alimony.

The plaintiff made the claim in her testimony that the defendant from the outset, with reference to his employment, assured her that her husband would have to pay all of the expenses of the divorce suit, including his fees. On July 17, 1911, according to defendant’s testimony, plaintiff wrote him a letter, in which she said that she was going to get another attorney, and that her attorneys would have to get their pay out of her husband, as she had no means. Defendant testified that the first time plaintiff came into his office after the letter was received he asked her what she meant by it, to which she replied:

“What I meant by that was all I had was this 40 acres of land out there, and if we get into a law suit with Mr. Culley, and if we don’t win the case, I don’t know how I could pay my lawyers; I wouldn’t have anything to pay with.”

To which defendant replied:

“Of course, if we don’t win this lawsuit, my charge to you will be very reasonable and very small. If we do succeed in this case, I shall expect you to pay what the service is worth.”

A hearing of the divorce case was had, which resulted in a decree in favor of the plaintiff. The trial, with the hearings later held for the purpose of determining the value of the property of the defendant in the divorce case, covered a period of 14 days. The decree in the divorce case required the defendant therein to pay the plaintiff herein $2,600 in cash, and also to convey to her 80 acres of land, or at his option pay complainant $4,400, and also a solicitor’s fee of $300 and the taxed costs.

The husband appealed to this court. The stenographer’s transcript of testimony covered 1,136 pages, making a printed record of 531 pages.

After the case had been appealed to this court, the plaintiff filed her petition, in which she stated that she was informed by her solicitors that they should be paid at that time at least $750 to apply on their services already rendered, and to be rendered in the preparation of the case for hearing in this court, and the final argument thereof, and in addition thereto an allowance of $50 to cover the expenses of printing briefs. In both petitions filed in the circuit court for temporary alimony and in the petition filed in this court the plaintiff stated that the only property she had was 40 acres of land, subject to a life estate of her mother, and also subject to a lien of a mortgage upon which there was due $1,600; that she had no income, and would be unable to prosecute the case and defray the costs and expenses attending the same without assistance from the defendant therein.

Upon a hearing of the petition filed in this court an order was made requiring the said Culley to pay a solicitor’s fee of $100 and $50 to cover the cost of printing briefs. This money was paid to the defendant herein, who immediately paid one-half of the solicitor’s fee to Mr. Noon, an attorney who was employed by the plaintiff, after the divorce suit was pending, to assist in the litigation.

The decree of the circuit court was affirmed by this court with costs. Culley v. Culley, 189 Mich. 496 (155 N.W. 401).

After the. decree of this court some controversy arose, the plaintiff herein claiming that Mr. Culley had forfeited his option to, pay the sum of $4,400 in lieu of conveying to her the land. In the meantime there had been turned over to the defendant herein $7,460, in which amount was included the attorney’s fee allowed by the circuit court and this court.

Afterwards the present counsel for the plaintiff, having satisfied himself that the plaintiff was not entitled to the land in question, requested the defendant herein to turn over to him the $4,400 paid by Gulley in lieu of such land, which was done, and the plaintiff thereupon conveyed the land to Culley. This suit was brought to recover the money in defendant’s possession, $2,610, less $400 awarded by the courts as solicitor’s fees, being $2,210.

While the controversy about the land was on the plaintiff made inquiry as to the charge which her attorneys, the defendant, and Mr. Noon, would make against her for services. She was then informed by the defendant that he had received some money for expenses, and $75 of the attorney’s fee, being $25 allowed by the circuit court, and one-half of the amount allowed by the Supreme Court, and $300 allowed by the circuit court, and that his charge would be $1,000, giving her credit for $400 solicitor’s fees allowed by the court. Mr. Noon informed her that his charge would be $500, less a credit of $50 which he had received from the defendant, being one-half of the solicitor’s fee allowed by the Supreme Court. Upon receipt of this information plaintiff replied: “I understood you would get your pay out of Mr. Culley.”

Before the date on which settlement was to be made plaintiff consulted Mr. Wolcott, her attorney in this suit, and, through him, made written demand upon defendant for the money in his possession, less $400 solicitor’s fees allowed by the court, and gave notice to him that he was discharged as her attorney. A few days later defendant paid to Mr. Noon $450 from the funds in his hands, but without any authority from the plaintiff, and deducted from the balance the amount of his charge of $1,000, less $400, and tendered to Mr. Wolcott, who was authorized to receive the money, the balance of the money in his hands, in gold, the amount of the tender being $1,610, which was refused, and suit was brought.

Upon the trial the plaintiff claimed and testified that she had a bargain with defendant which in effect was that he should represent her in said litigation, and take as payment for his services such sums as were allowed by the court for attorney’s fees. The defendant denied that such agreement was ever made, and testified that an agreement was made with the plaintiff that he would charge her what his services were worth. The trial court submitted the controversy to a jury .to find what the bargain was. The instructions were plain and specific that, if the bargain was as claimed by the plaintiff, the tender was not sufficient, and the plaintiff would be entitled to a verdict for $2,210; that, if the contract was as claimed by the defendant, the tender was sufficient, and the plaintiff would be entitled to a verdict for $1,610. The jury found the contract to be as claimed by the defendant, and returned a verdict for the plaintiff in the latter sum.

That defendant’s charge for services was reasonable was not disputed at the trial; the plaintiff contending that, the courts having awarded certain sums of money in the way of solicitor’s fees, the defendant was obliged to accept such awards in full payment and satisfaction of his services, regardless of the value of such services or .any contract between the parties.

At the close of the evidence plaintiff moved for a directed verdict in favor of the plaintiff for the sum of $2,210, on the ground that, the defendant having had an allowance for solicitor’s fees, conceded to be $400, out of the property of the defendant in the divorce case, and the defendant having received the same, he could not claim anything further of the plaintiff. The court, under the statute, reserved decision thereon, and the jury rendered the verdict above stated. Plaintiff’s attorney also requested the court to charge the jury that the defendant, having had solicitor’s fees allowed by the court, conceded to be $400, could not claim anything further from the plaintiff. This request was refused. Later plaintiff brought up for hearing said motion for judgment thereon in favor of the plaintiff for $2,210 notwithstanding said verdict, which motion was denied, and judgment was rendered for the amount of the verdict, with costs to the defendant.

Under appropriate assignments of error counsel for appellant says:

“The sole question of law for consideration by this court, upon the agreed facts, seems to be whether or not a solicitor employed by a married woman in a divorce case, after having had an allowance for his fees made by the court out of the husband’s estate, can make any further claim for compensation by the wife. The question has never been directly raised in this court before, to the knowledge of plaintiff’s counsel.”

Our attention is called to section 8628, 3 Comp. Laws (3 Comp. Laws 1915, § 11404), and its construction in Wolcott v. Patterson, 100 Mich. 227 (58 N. W. 1006, 24 L. R. A. 629, 43 Am. St. Rep. 456), and Jordan v. Westerman, 62 Mich. 170 (28 N. W. 826, 4 Am. St. Rep. 836). It is urged that, when an attorney receives the allowance made by the court out of the husband’s estate, his entire compensation is provided for, and he has no right to insist that the wife shall turn over to him a part of her alimony to make good what he considers inadequate for his services. We understand counsel for appellant to claim that, no matter what the contract was, when the application was made to the court for this compensation, and it was allowed and paid defendant, he thereby waived any other or further claim against the plaintiff. The facts are that the plaintiff applied to the courts for relief under the statute cited, and not the defendant. We do not think that by such application the plaintiff could be relieved of her contract with the defendant, as found by the jury. We have read the cases cited by appellant with care, and do not think that they support the position claimed. In the Wolcott Case this court said:

“The statute clearly indicates that such proceedings are to be maintained at the cost of the wife, unless the court shall relieve her of such cost by an order for expense money to be paid by her husband.”

In this court the. order was made on “account of” attorney’s fees, and we do not think that this record shows that the sums ordered paid were to “relieve” her from such cost, or from her contract with defendant. In the Wolcott Case we also said:

“It would seem to follow logically that, having the power to bring suit, and being in such suit responsible for costs, she must be held competent to contract for the services of an attorney to represent her rights. We think the right to contract for such services is necessarily incident to and included in her right to bring suit.”

We think it was the defendant’s duty, in representing his client, to obtain, in the way of costs and expenses, what he in fairness could obtain at the hands of the court, to the end that his client might to that extent be relieved. Did he, by performing this duty, vitiate his contract with the plaintiff, which entitled him to a fair compensation for the services rendered? We think not. It would be unfortunate for the client if this were so; for no married woman would be able to have a contract with her counsel, and be at liberty to apply to the court for aid under the statute, without thus abrogating the contract.

In McCurdy v. Dillon, 135 Mich. 678 (98 N. W. 746), it was held that a contract between an attorney and a married woman by which the attorney should receive as compensation for his services a certain per cent, of the alimony, to be allowed in the case, is void, as contrary to public policy, following Jordan v. W ester man, supra. This holding rendered it necessary for this court to pass upon the rights of the parties, as the service had been performed. Chief Justice Moore, speaking for the court, said:

“It is the law of this State that a married woman may make herself chargeable for the services of an attorney employed by her in a divorce suit. Wolcott v. Patterson, 100 Mich. 227 (58 N. W. 1006, 24 L. R. A. 629, 43 Am. St. Rep. 456). If a valid contract for retainer fees was in fact made, it would not be abrogated because an attempt was made to merge it in a void contract. * * * On the other hand, if no contract was made as to how Mr. McCurdy should be paid, except the void contract, then he would be entitled to recover what his services were reasonably worth. Cadman v. Markle, 76 Mich. 448 (43 N. W. 315, 5 L. R. A. 707).”

See, also, In re De Spelder’s Estate, 181 Mich. 153-160 (148 N. W. 179).

In State, ex rel. Arthur, v. Superior Court, 107 Pac. 876 (58 Wash. 97), the supreme court of Washington considered statutes similar to ours in a divorce suit by the wife. We quote from the headnote:

“Section 988, authorizing the court in an action for divorce to make, as between the parties, such orders as it deems- proper for the disposition of the property and the children of the parties, and relative to the expenses of the action, does not give the court jurisdiction to determine questions arising solely between the litigants and their counsel; but section 474, providing that the measure of compensation of attorneys shall be left to the agreement of the parties, applies to an action for divorce.”

The code provisions there referred to are quite similar to our sections 8628, and 11254, 3 Comp. Laws (3 Comp. Laws 1915, §§ 11404, 12079).

We find no error in the record, and the judgment of the circuit court is affirmed.

Kuhn, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


author: Ostrander, J.

text:
    MILLER v. GILLESPIE.
    Equity — Jurisdiction—Records—Police Records.
    Equity will not compel the surrender by a city police department of an accurate record containing a statement that a certain person has been arrested on a criminal charge, his address, occupation, personal description, and the result of the trial, indicated as “dismissed,” for cancellation, as such report does not expose such person to ridicule, obloquy or disgrace.
    Appeal from Wayne; Bridgman, J., presiding.
    Submitted April 3, 1917.
    (Docket No. 4.)
    Decided May 31, 1917.
    Bill by Francis. J. Miller against John Gillespie, commissioner of the Metropolitan police force of Detroit, and others, for the surrender for cancellation of certain records in said police department. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      James H. Pound, for plaintiff.

      Allan H. Frazer and Gillette Wastell, for defendants.

      Owing to what seems to have been either the ignorance or malice of the complaining witness, a warrant was issued by one of the police justices, of the city of Detroit for the arrest of the plaintiff, upon a charge of feloniously embezzling and converting to his own use an article of personal property. The warrant wqs delivered for service to one of the policemen of the city. Learning that in his absence an officer or officers had visited his home, plaintiff called police headquarters to find out what was wanted, and was told to present himself at the police court and that a warrant for his arrest had been issued. Presenting himself, he was told by the officers that he was. under arrest, and, while awaiting the calling of his case, he was asked by a policeman certain questions, which he answered; the officer making a memorandum in writing. Being arraigned, he pleaded not guilty, gave his personal recognizance for appearance for trial, and, the cause being at a subsequent day called for trial, a jury impaneled, and testimony taken, he was dismissed by order of the court. It seems to be clear that he had committed no offense and that the trial ought to have been concluded with a verdict of acquittal. The entry made in the docket of the court is: “Testimony taken and case dismissed.”
    Plaintiff is a man of affairs, has a family consisting of a wife and nine children, was never before arrested or charged with having violated the criminal laws. The police department of the city of Detroit requires a report to be made when an arrest is made by a police officer. It is made and preserved in the form of a card, and in the particular case the card record contains the plaintiff’s name, residence, the nature of the charge, which is given as “simple larceny,” the names of the 'officers who made the arrest, and the result of the trial, which is stated in the single word “dismissed.” ¡Upon the face of the same card — the whole card being a printed form with blank spaces — appears the following:
    “Date and time Aug. 13, 1914. Hour 10 a. m. Age 44. Sex M. Color W. Nationality U. S. M. or S. M. R. and W. Yes. Height 5 ft. 8 1/3 in. Weight 170 lbs. Hair black. Eyes brown. Build stout. Complexion dark. Occupation contractor.”
    Plaintiff, testifying, said:
    “I don’t believe I asked the judge or any police officers in the courtroom that day for the card. I asked them that later on, that I would like the records destroyed. * * *

      “Q. Did you get the card back?

      A. No. I don’t just remember whether it was a card or not.”
    The bill in this cause is filed to obtain a decree requiring defendants, who are respectively described as the commissioner of the Metropolitan police force of the city, its superintendent, and its secretary and record keeper, “to surrender for cancellation, all statements claimed to have been made in the enforced statements from your orator, also that all reference to your orator upon the books, blotters, statements, histories, and in the records or written memoranda of the police department of the city * * * be decreed to be given up for destruction to the register of this court,” and for other and general relief. The bill was dismissed, and plaintiff has appealed.
   Ostrander, J.

(after stating the facts). It may be assumed, I think, that two purposes are supposed to be served by making and by preserving in the police department a record such as the one in question here. There may be other reasons and purposes; but two, at least, appear to be fairly obvious ones. The responsible superior police officials are thereby furnished with definite and authoritative data of the activities of the department. This is, I assume, one purpose. The other is the preservation, for future reference and use, of the data so secured. The form of the record before us serves both purposes, and that it was intended to do so is evidenced by the form of the report. It gives information, not only that a person giving a certain name has been arrested, but information also of the personal appearance of the prisoner as well as his nationality and some of his acquirements.

It is not complained that the record is a false one. It has not been claimed, in argument, that it is improper, or a violation of private or property rights of the person arrested that such a report should be, in the first instance, made. Indeed, the statute sanctions it.

“In every case of arrest the same shall be made known to the captain or sergeant on duty in the precinct wherein such arrest is made, by the person making the same; and it shall be the duty of said captain or sergeant, as soon as practicable after such notice, to make written return thereof, according to the rules and regulations of the department, together with the name of the party arrested, the offense and place of arrest, and the place of detention.” Charter, Act to Establish a Police Government for the City of Detroit, approved April 17,1871, § 20; Charter and Laws 1904, par. 677.

It is not contended either that the plaintiff has in the premises any actionable right at law, or that the report, resting in the files of the police department, is a libel. It is contended that, having served the purpose of a report, it appearing that plaintiff is innocent and a good citizen, preservation of the report in a place where future use can be made of it, where it can advertently or inadvertently be published, in a group of records of criminals, cannot be for a lawful purpose or justifiable end, but is a distinct, personal, continuing wrong, for which a court of equity should afford a remedy.

Once it is conceded that the rule of the police department is unreasonable and that plaintiff has the right to have this record destroyed, the conclusion is inevitable that the officers, of the department have committed a wrong which may be redressed at the suit of an individual. The right of the individual to privacy, to be let alone so long as he does no wrong, is in law, when no resulting pecuniary injury or injury to property rights is involved, rather intangible. Alleged invasions by an individual of this alleged right and the jurisdiction of a court of equity to amend the alleged wrong have been considered by the courts, particularly in the cases of Corliss v. Walker, 57 Fed. 434, 64 Fed. 280 (31 L. R. A. 283); Schuyler v. Curtis, 15 N. Y. Supp. 787, 147 N. Y. 434 (42 N. E. 22, 31 L. R. A. 286, 49 Am. St. Rep. 671); Roberson v. Rochester Folding Box Co., 171 N. Y. 538 (64 N. E. 442, 59 L. R. A. 478, 89 Am. St. Rep. 828); Atkinson v. Doherty & Co., 121 Mich. 372 (80 N. W. 285, 46 L. R. A. 219, 80 Am. St. Rep. 507). See In re Sawyer, 124 U. S. 200 (8 Sup. Ct. 482). None of these cases involve the wrong of exposing the person complaining to disgrace, ridicule, or obloquy, and none of them sustain the right of the complaining party to injunctive or other equitable relief.

On the other hand, it has been held (Itzkovitch v. Whitaker, 115 La. Ann. 479 [39 South. 499, 1 L. R. A. (N. S.) 1147, 112 Am. St. Rep. 272]; Schulman v. Whitaker, 115 La. Ann. 628 [39 South. 737]), that an injunction will be granted to restrain a police officer from placing in the “rogues’ gallery” the photograph of a prisoner not convicted of crime, who alleged that he was innocent and an honest citizen. In the first of these cases, it was said by the court:

“Every one who does not violate the law can insist upon being let alone (the right of privacy). In such a case the right of privacy is absolute. It must be said that there is some limit to this right, which it is not necessary to discuss in this case. A person may be arrested, imprisoned, and acquitted, without right to damages. All of this is true, but it bears no application to the issue in hand. Where a person is not guilty, is honest (and that is the only light upon which to consider this case with the issues before us), he may obtain an injunction to prevent his photograph from being sent to the rogues’ gallery. He has the personal right to the restraining order, at least for the time being. The theory in opposition to this view is substantially that the picture should be taken and exhibited for the public good. There can be no public good subserved by taking the photograph of an honest man for the purpose before mentioned. The court had jurisdiction to issue the preliminary injunction, and to make it perpetual if the evidence justifies the decree.”

The opinions in some of the cases I have cited exhaustively review the subject. None of them is authority for granting relief in the case at bar, unless it can be said that the mere preservation in the files of the police department of a report proper to be made in the first instance — a true report — exposes plaintiff to ridicule, obloquy, or disgrace. I am of opinion that it does not, and, without denying the jurisdiction of a court of equity to afford a remedy for a wrongful invasion of privacy, conclude that the plaintiff is not entitled to the relief asked for, and that the decree must be affirmed, without costs.

Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


author: Per Curiam.

text:
    COUPLE-GEAR FREIGHT WHEEL CO. v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    Appeal and Error — Court Rules — Review.
    Under Supreme Court Rule 40, providing that appellant in his brief must show, distinct from argument, a statement of the errors relied upon, the questions involved and the manner in which they are raised, the court will not search the record to discover whether errors have been committed by the trial court in the trial of a case without a jury, in rendering its findings, as counsel must point out the errors claimed to have been committed in such a manner that the Supreme Court may find particular exceptions well grounded and particular errors well assigned.
    Error to Kent; Brown, J.
    Submitted April 4, 1917.
    (Docket No. 35.)
    Decided May 31, 1917.
    Rehearing denied September 28, 1917.
    Assumpsit by the Couple-Gear Freight Wheel Company against the Lake Shore & Michigan Southern Railway Company for breach of a carrying contract. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Clapperton, Owen & Hqtten (Samuel H. Kelley, of counsel), for appellant.

      Thornton, Fuller & Starr, for appellee.
   Per Curiam.

Plaintiff’s declaration contains two special counts and the common counts in assumpsit. It is alleged in the special counts, in substance and effect, that plaintiff, a Michigan corporation, delivered to defendant at Grand Rapids, Mich., certain goods and chattels to be transported to Marathon, Tex., there to be delivered upon the order of plaintiff; the Texas Motor Transportation Company to be notified. Before delivering the goods for shipment plaintiff had been informed by the defendant’s agent that the charges for transportation would be approximately $178.80, and avers that the total freight charges, according to rates agreed upon, should have been $178.80. The goods were delivered for transportation April 16, 1910, and an order bill of lading was issued by defendant to plaintiff, the consignor and consignee in said bill of lading. The duty of defendant and connecting carriers to transport and within a reasonable time to deliver the said goods and chattels at Marathon, Tex., and not to demand or require of plaintiff, or its representative or assignee, payment of charges in excess of those agreed upon, is averred. The goods, it is alleged, arrived at Marathon, Tex., on or about May 6, 1910; the terminal carrier being the Galveston, Harrisburg & San Antonio Railway Company, which company notified the Texas Motor Transportation Company of their arrival, and of freight charges thereon of about $600, but afterwards, after considerable efforts had been made to reduce the said demand, on or about June 27.1910, admitted that its demand was erroneous, and offered to accept $227.88, which it claimed was the legal charge. Plaintiff had contracted to sell said goods and chattels at Grand Rapids, Mich., for the sum of $3,987.10 to the Texas Motor Transportation Company, which said company was to pay the freight, and plaintiff had sent the order bill of lading, issued by defendant, with a draft attached, to a bank at Marathon, Tex. When notified of the arrival of said goods and chattels at Marathon, the Texas Motor Transportation Company was then, and until on or about June 14.1910, ready, willing, and able to take the said goods and chattels from said terminal carrier, honor the said draft, and pay legal freight charges; but it refused to honor the draft, accept the goods, and pay the charges demanded by the said final carrier. On June 27, 1910,' when the said freight charges were reduced, said Texas Motor Transportation Company had become - insolvent and unable to take the goods and pay the freight charges thereon. Unable to dispose of the goods at Marathon, they were ordered by plaintiff to be returned to, and were returned to, Grand Rapids, Mich., on or about September. 1, 1910. Plaintiff lost a sale of the goods and a profit on them; the goods were deteriorated; it had to pay freight charges both ways. Defendant knew that the plaintiff had sold and contracted to sell the said goods “to parties in the said city of Marathon, Tex.,” and had notice that the sale had been made of them “to the said Texas Motor Transportation Company, as and upon the terms aforesaid.” The amended declaration was filed November 7, 1914. The plea is the general' issue. The cause came on to be tried March 15, 1915, before the court without a jury. Testimony was introduced, and a finding of facts and of law was made and filed. The conclusion of the court was that plaintiff ought to recover the sum of $3,031.50, with interest from September 27, 1912, and a judgment for plaintiff for $3,548.37 was entered.

How many days were occupied in the trial does not appear. The finding of the court is'dated May 9,1916. When it was filed does not appear. Certain amendments to the finding were proposed and refused. They are six in number: five of them in the form of a finding of fact, and the sixth in form a conclusion of law. What particular finding, or findings, of fact made by the court these, or any of these, proposed findings amend, whether they, or any of them, are proposed in place of and as a substitute for some finding or findings of the court, is not indicated in their proposal, is not pointed out in the brief for the appellant, and is not discoverable, except by comparison and analysis. The printed record does not show the time of proposing or refusing the amendments. Exceptions were filed August 17, 1916, and as to the findings of the court the exception is that “they are contrary to the clear weight of the evidence.” The record contains, certain exceptions to rulings admitting testimony, and upon these are based assignments of error, 19 in number, followed by assignments 20 and 21, which are, respectively, as follows:

“The court erred in rendering the judgment rendered for the plaintiff.
“The court erred in refusing to amend the findings of fact and law as requested by the defendant, and in the several conclusions of fact and law found by the court.”

Act No. 314, Public Acts of 1915 (3 Comp. Laws 1915, § 12004 et seq.), was in force January 1, 1916. The Michigan court rules, adopted January 21, 1916,' went into effect March 1, 1916, as to all causes begun on or after that date, and as to causes earlier begun were in effect to regulate proceedings therein after the date when the same were at issue. When this cause was begun and tried, Circuit Court Rule No. 26 of the rules of 1897 was. in force. That rule differs little, if any, from Rule No. 45, adopted in January and going into effect in March, 1916. There is in Act No.. 314, Pub. Acts 1915, chap. 18, §§ 14,15 (3 Comp. Laws 1915, §§ 12586, 12587), the following provisions, affecting the trials of issues without a jury:

“SEC. 14. In giving the decision in actions at law, the court shall specify in writing the facts found and the conclusions of law therein, upon the request of either party. Such findings shall be forthwith filed with the clerk of the court and judgment entered thereon, and notice of the entry of such judgment shall be given to the parties, or their attorneys, by said clerk.’
“Sec. 15. In such cases, either party may file exceptions to the findings of facts, that such findings are against the clear weight of evidence, and may assign error upon such exceptions, and if an appeal be taken, the same shall be reviewed by the Supreme Court.”

Defendant did not, as it might have done under this rule, present to the trial court points of law, deemed to be material, to be passed upon specially; it has not alleged that the facts found by the court do not support the judgment; it has not-alleged that the findings of fact, which are in the nature of special verdicts, are not supported by evidence. What questions are then presented for decision? Appellant’s main brief does not answer this question, although in it one should find, distinct from argument, a statement of the errors relied upon, the questions involved, and the manner in which they are raised. Supreme Court Rule No. 40. The brief refers to no assignment of error, and specifically, in argument, to but one page of the record, an examination of which shows that no exception followed the ruling of the court, which was a tentative ruling only, made subject to the right to later move to strike out the testimony. No other reference is made in the main or the reply brief of appellant to any of the first 19 assignments of error. NO' exception is alleged to any matter of law embodied in the finding. It is not asserted that the facts found do not support the conclusion of law and the judgment. No effort is made in either brief for appellant to point out why, upon what testimony, the proposed amendments to the findings of fact should have been adopted, and no argument is made to support the proposition (twenty-first assignment of error as explained and amplified by the exceptions filed to the findings) that the findings are contrary to the clear weight of the evidence.

This court will not search the record to discover whether error has been committed by the trial court. It is for counsel to point out the errors claimed to have been committed in such manner'that this court may find particular exceptions well grounded and particular errors well assigned.

There being no question presented for decision, the judgment is affirmed.


author: OSTEANDEE, J.

text:
    PAUL v. DE CARRIE.
    1. Appeal and Error — Evidence.
    Where it was undisputed and plaintiff had testified repeatedly that defendant had occupied plaintiff’s premises for several years without a written lease, the exclusion of his similar testimony on redirect examination did not destroy the effect of his previous testimony.
    2. Trial — Argument of Counsel — Statement of Fact.
    The statement of an undisputed fact by counsel for defendant in his argument, over exception, was not error.
    3. Same — Instructions.
    The charge as to the making of an alleged contract between the parties was not erroneous where cautionary, only, and not calculated to exalt the contentions of either party or be prejudicial to plaintiff.
    Error to Wayne; Mandell, J.
    Submitted April 6, 1917.
    (Docket No. 64.)
    Decided May 31, 1917.
    Assumpsit in justice’s court by John P. Paul against Annie E. De Carrie for rent. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      James É. Pound, for appellant.

      Albert E. Sherman, for appellee.
    In justice’s court plaintiff filed a written declaration, averring:
    That he was owner of certain premises and rented the same to defendant and one Oliver De Carrie by the month, “and they remained there for a time.” “That defendant became the tenant of said premises, and promised to keep the same in good repair, and that she, the said Annie De Carrie, and the said Oliver De Carrie, being tenants thereof by the month. That upon a certain day, to wit, May 1,1915, the defendant, who claimed to own all the furniture in the said building, came to plaintiff, and proposed to him to allow her (defendant) to sell the furniture in the said building No. 103 Montcalm Street East, to a Mrs. Gallagher,' she (defendant), Annie E. De Carrie, then and there offering plaintiff, if he would consent to said transfer, and accept the said Gallaghers as tenants, and consent to said transfer of possession to pay him,'said plaintiff, the sum of $200 for the transfer of said holding, so that defendant could sell her property in said house as a going concern, as a rooming house, also to compensate plaintiff for certain property connected with the said rooming house, to wit, the spindles of the stairways, and the lamps, in front of building, and for general dilapidation above reasonable wear and tear. * * *
    “And plaintiff avers that he, being tendered such an offer by the defendant, accepted the same, and agreed to, and did, consent to the transfer of such tenants, whereby he avers that defendant made large gains in her own property, and that he (plaintiff) became entitled to claim of and from the defendant the full sum of $200 for and in consideration of his consenting to said transfer or exchange of tenants, and for, and in full, to the injuries of his property, and its loss of reputation, purposely caused by defendant to said building.”
    In the circuit court, when plaintiff rested his case, he had offered testimony tending to prove that he owned the particular premises; that he rented them when they were new to Mr. De Carrie, defendant’s husband, from month to month; that the building had been erected five or six years, during all of which time, with the exception of a few months, the De Carries had occupied it, paying rent therefor; that defendant, in the month of May, 1915, applied to him, stating that she had a party who wanted to buy her out and as to what was said and done he personally testified, upon direct examination, as follows:
    “I told her then that it was all right to make the change, and we got talking, and I said, ‘Mrs. De Carrie,’ I said, ‘that house is in pretty bad shape there now, and, when you got it, it was a brand new house, and it will cost me between $300 and $400 to fix it up,’ and I said, ‘You ought to be able to give me something out of it to help pay the expenses of- repairing the house.’ And she said she was to get $1,100, and I told her, T think $200 would be a fair profit,’ and we agreed upon it. And she told me that she would pay me the next day. And the next day came, and she telephoned my daughter and said she was called out of the city, and in a few days she would be back. I never got the money, neither did I see her the next day. I never got ány part of it. She never come to see me, nor make any explanation to me afterward about the money. I think this talk took place in May.

      “Q. As a matter of fact, how long did she remain in the house after she agreed to give you the money?

      “A. I think about a week.
    “Q. And she put in her place who?

      “A. A lady by the name of Mrs. Gallagher.

      “Q. Was that the person she was talking about at that time to you?

      “A. Yes.

      “Q. During the time that she was having this conversation with you, who else was in the room with you, if any one?
    “A. My daughter, Nettie. I have two. There was none of the rest of the family in the house at the time that I know of.”
    On cross-examination he said:

      “Q. You had a conversation in which she agreed to pay you $200. Is that what you testified?

      “A. Yes, sir; she agreed.

      “Q. What was the $200 for?

      “A. She agreed to give me $200 the next day.

      “Q. Was not that $200 what they call a bonus?

      “A. No, nothing said about a bonus at that time.

      “Q. Didn’t you testify in the lower court that this $200 was a bonus?

      “A. No.

      “Q. Are you positive about that?

      “A. Yes, sir; that I know.

      “Q. Wasn’t the question asked you, if you did not consider that a bonus, and you said, ‘yes’?

      “A. No, you tried to make it appear that way, and I said it was not a bonus.

      “Q. Have you anything in writing for this $200 that you say she promised?

      “A. No. I took her word for it. * * *

      “Q. What was the $200 for?

      “A. Part pay for the decorations and repairing the building.

      “Q. Did you have any agreement with the De Carries, either with Mr. or Mrs. De Carrie, about decorating or repairing.

      “A. I did with De Carrie when he first entered the house. * * *

      “Q. When De Carrie occupied this house, as far as the repairs on the interior they were to make, they did make practically all the repairs?

      “A. Partly. I made some repairs, on and off. Mr. De Carrie was my tenant.

      “Q. This suit was brought against Mrs. De Carrie?

      “A. Yes, sir; she owned the furniture and .Mr. De Carrie owned the tenancy of the house.

      “Q. You did not know that?

      “A. Mrs. De Carrie told me this, and Mr. De Carrie told me the other.

      “Q. Mr. De Carrie was the one who rented the house from you?

      “A. In the first place, yes.”
    On redirect examination he said:

      “Q. When she came and told you about selling out, was it a simple transfer of the tenant, or a transfer of her furniture?

      “A. A transfer of the tenancy. I had nothing to do with her furniture and I told her she could sell out the furniture or move it out, if she wanted. I had another party who wanted the house, and she told me if she had to take the furniture out she would lose it all, because her furniture was so bad, and she agreed to give $200, and come down the next day. * * *

      “Q. Will you state whether or not the house was injured, or was in a good condition, when Mrs. De Carrie turned it over?

      “A. It was brand new when the De Carries got it.

      “Q. How was it when the De Carries got out of it?

      “A. The house was in an awful bad condition.”
    Plaintiff’s daughter testified with reference to the alleged arrangement:

      “Q. What took place, if you know, between your father and Mrs. De Carrie, in the dining room?

      “A. Mrs. De Carrie came out and said she had a tenant in the other room, and wanted to see my father. She had a tenant that would take her furniture if father would accept her as a tenant, and she hoped that he would not stand in the way of her selling the furniture to the tenant; that she had to get out of the house. And my father said the house was in pretty bad condition, and ‘it will cost me quite a bit to put it in shape again for the tenant,’ and he said, T have several that want the house.’

      “Q. Did she sav anything about what the price was to be?

      “A. Yes, sir. She said, T will give you $200 if you will accept the tenant.’

      “Q. What was said by her, if anything, what she was to sell the place for — her furniture?
    “A. For about $1,100.

      “Q. What did your father say when she made the proposition?

      “A. He said, ‘All right, all right, he would accept her proposition.’ And with that Mrs. De Carrie said she would send the money the next morning.

      “Q. After she got your father’s consent, what was done, if anything more? .

      “A. They went into the room and met Mrs. Gallagher. Into the sitting room. It was not the adjoining room, but two rooms apart.

      “Q. Did you go along with them into the sitting room, or did you stay back?

      “A. I went as far as the door with my father, and he was introduced to Mrs. Gallagher, as the lady that wanted the house, and I went out to the dining room again.

      “Q. Did your father accept her as a tenant there?

      “A. Yes, sir.”
    On cross-examination she said:

      “Q. What was the $200 for?

      “A. That was for allowing Mrs. De Carrie to sell out to this party.

      “Q. To sell out to Mrs. Gallagher?

      “A. Yes, sir.

      “Q. You know your father did not give Mrs. De Carrie a lease?

      “A. No, sir.

      “Q. You know that $200 was what was ordinarily called a bonus?
    No sii*

      “Q. Tell what was said?

      “A. Mrs. De Carrie asked my father if he would allow her to sell her furniture and accept this tenant, this party that she brought as a tenant to buy her out.

      “Q. What did he say?

      “A. He said the house was in such a bad condition; that he had other parties that would give a good deal more rent for the house; and he would have to fix it up, the place was in such a bad condition. And Mrs. De Carrie said she would give him $200.

      “Q. For what?

      “A. If he would accept- this party as a tenant and allow her to get rid of the furniture, which would be a heavy loss to her, if she had to move .it out and put it in storage.

      “Q. What did Mrs. De Carrie say?

      “A. She said she would be over the next morning and bring the $200.

      “Q. Nothing put in writing at that time?

      “A. No, sir.”

      A son of plaintiff testified, in substance, that nothing was spent by plaintiff to put the house in repair for Mrs. Gallagher, but he said it would have cost about $300 to put the house “in ordinary shape.”
    Defendant was a witness, and as to the particular interview testified:
    “I went in and sat down, and said I had a tenant for them, and as far as I knew they looked like responsible people, and nice people to get along with, and he understood that my health was failing, and he said as long as they were nice tenants, and capable of taking care of the house all right, and he went in and accepted the woman’s rent, $150, and gave a receipt for it, and.bid us — said good-bye. and we went out.

      “Q. Did you say at any time that you would pay $200?

      “A. Certainly, I did not.”
    This she reaffirmed on cross-examination. It appeared further that Mrs. Gallagher moved into the house May 13th. The record shows the following:
    “During the argument of the counsel for the defendant, Mr. Sherman, arguing that plaintiff ‘De Carries had been in there about four or five years, and there has been no question about that.’

      “Mr. Pound: T take an exception to that.’
    “It was stricken out.
    “And again, further, Mr. Sherman said, ‘They got up; they got together and fixed up a story to get her to pay for the privilege of selling her own furniture; if there was to be any money to pay, it should be the other way.’

      “Mr. Pound: ‘An exception.’ ”
    Plaintiff requested the court to charge the jury:
    “I. Under the pleadings and evidence in this case, you are directed to render a verdict for the plaintiff for the sum of $200 and interest at 5 per cent, per annum since.
    “II. It is agreed that the plaintiff is the owner and landlord of the premises No. 103 Montcalm street east with no fixed tenure, except month by month; that. being so, at the end of each month defendant’s tenancy terminated.
    “III. That the rent being paid monthly, the longest defendant and her husband could stay was 80 days from notice, and defendant having said that she had given 30 days’ notice, 2 months in fact, her time was up May 15, 1915.
    “IV. That it was then at plaintiff’s pleasure whether he would renew or permit a change of tenants, and, if he did so, upon what terms he would agree so to do.
    “V. He, the plaintiff, had the right to refuse to consent to the change of tenants or defendant and her husband remaining any longer there. This was his privilege, and it was a valuable privilege which he could sell or keep, insist upon or waive, as he pleased. It was his right and property, and defendant had no right whatsoever to complain thereof.
    “VI. It is undisputed that plaintiff consented to the change. Why did he do so? If you find that the defendant, to obtain the consent of plaintiff, promised to pay him $200, as he claims, for stated damages or bonus, that is a contract which they had a right to make, and is legally enforceable, and plaintiff is entitled to recover of defendant the sum of $200 and 5 per cent, interest thereon for nine months interest, or a total of $207.50.
    “VII. You are to determine this case upon the evidence and nothing else. You are not to make contracts for these people, but you are sworn by your verdict to enforce those which you find they made.
    “VIII. You are to survey and consider the evidence. What did Mrs. DeCarrie say to John P. Paul in the dining room of Paul’s house? If you find that she offered plaintiff $200 for his consent to the transfer of her property by agreeing to pay him $200 therefor, then she is bound to pay that sum, and you should so find by your verdict.
    “IX. The fact that one of these parties litigant is a woman, and the other a man, you are not to allow to influence your verdict, but you are to decide this case as though it was between two women or two men, as a matter of commerce.
    “X. This case rests in a narrow compass. Did defendant promise plaintiff to pay him $200 to accept Mrs. Gallagher as his tenant, and did he so accept her? If you believe she did so promise, then she is bound by it, and your verdict should be for the plaintiff.”
    The court submitted to the jury whether the agreement relied upon by plaintiff was made, saying that if it was made plaintiff should recover the sum of $200 and interest. In doing this the court referred to some of the testimony, calling attention to the fact that plaintiff, his daughter, and defendant, were not in agreement concerning what was said when the alleged arrangement was made. The language of the charge in this respect is:
    “Mr. Paul says that he made the proposition that it would be $200 for the privilege of letting Mrs. Gallagher, the new tenant, take possession. The daughter says that proposition of $200 came from the defendant. The defendant says that there was no proposition that was made and accepted for the payment of $200, so, gentlemen of the jury, the three who it is claimed were present at that time do not agree as to what occurred at that interview, and it is for you to study all of the testimony in the case to see whether or not there was an understanding that was mutual. Not a proposition that was made, not an understanding on the part of one or the other of the parties to the proposed contract, but whether or not there was a meeting of the minds, or an understanding that was mutual between the plaintiff and the defendant, by which the defendant promised to pay $200 to the plaintiff in case the plaintiff permitted Mrs. Gallagher to become a tenant in place of the defendant’s husband. Not only should you study the testimony that has been given with regard to what was actually said, but because there is a contradiction among the witnesses as to what was said, you may study the probabilities of the truth of either the claim of the plaintiff or the defendant from a determination of the general situation. The general situation is, as disclosed by the evidence, that Mr. De Carrie was-the tenant, and that Mrs. De Carrie was the real proprietress of the house, and had charge of the furniture, and that Mr. De Carrie was a tenant from month to month, and on 30 days’ notice could have been evicted, or could leave the premises on 30 days’ notice. Those facts and circumstances may be taken into consideration by you in determining the truth of the controversy here.”
    The jury returned a verdict for defendant, and the court refused to set it aside and order a new trial. There are 26 assignments of error.
   OSTEANDEE, J.

(after stating the facts). The first assignment is based upon a ruling stinking out testimony elicited on redirect examination of plaintiff. He had testified, more than once, that defendant had occupied the premises in question for several years, without á written lease, holding from month to month. The fact was not in dispute. The recross-exámination and redirect examination of plaintiff, as appears by the record, and the ruling complained about, are as follows:

“Recross-examination:
“Q. Who did you say occupied the place at 103 Montcalm street after the De Carries left it?
“A. Mrs. Gallagher.
“Q. Did you give Mrs. Gallagher any lease?
“A. No, sir.
“Redirect examination:
“Q. What is the fact, whether or not you gave any one any lease?
“A. No, sir.
“Q. And they staid with you for years?
“A. Yes, sir.
“Mr. Sherman: I move that the last question and answer be stricken out.
“The Court: It may be.
“Mr. Pound: Note an exception.”

Whatever the value to plaintiff of the fact of defendant’s continued occupancy may have been, it was not lost by this ruling. The fact remained proven and undisputed.

The second, third, fourth, fifth, and sixth assignments are likewise based upon rulings excluding answers to questions and are plainly without merit.

The seventh assignment is based upon the argument of counsel for defendant hereinbefore referred to. Under repeated rulings, the assignment is entitled to no notice. Furthermore, the fact stated by counsel in his argument to which the first exception was taken was, as I have already indicated, an undisputed fact in the case.

The remaining assignments relate to the refusal of the court to charge as requested, to alleged misdirection in the charge given, to the refusal of a npw trial. It is especially contended that prejudicial error resulted from the statement made by the court, above set forth, in which the testimony of certain witnesses upon the vital question in the case is contrasted. A fair analysis of the charge shows no misstatement of facts. It must have been evident to an intelligent juror that whether the alleged contract was made depended upon what was said at the interview at which three witnesses were present, two of them being the parties to this suit. With or without the advice of the court, the jurors were bound to analyze the testimony of. each witness and consider which would be believed. It seems to me that the advice to the jury was cautionary only and not calculated to exalt the contention of either party. The court, in substance, gave the instructions requested, excepting the first one, and I am not able to find any misdirection in the charge. The motion for a new trial is based upon no point not already considered, and it follows it was not error to refuse it.

The judgment is affirmed.

Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.