author: Fellows, J. Bird, J. Ostrander, C. J.

text:
    HART v. HART.
    Wills — Joint Bequests — Joint Tenancy in Personal Property —Survivorship.
    On appeal from the decree of the court below, finding joint tenancy with right of survivorship in a fund provided for in testator’s will, bequeathing to a son and a daughter mentally afflicted “jointly the sum of $5,500, provided that said sum of $5,500 shall be paid by my executors to my son, * * * to be used or invested by him for the care and support of his said sister, * * * and for their joint use and benefit," where the son died before testator and left a daughter, held, by a divided court, that the decree should provide for the appointment of a trustee to administer the fund; the income, and, if necessary, the principal, to be devoted to the maintenance of testator's daughter; the final disposition of the residue of the fund not being determined.
    Appeal from Eaton; Smith, J.
    Submitted October 15, 1917.
    (Docket No. 121.)
    Decided April 25, 1918.
    Bill by Albert L. Hart, executor of the will of Oscar Hart, deceased, against Belle D. Hart and Myra Hart Abram for a construction of said will. From the decree rendered, defendant Abram appeals.
    Reversed, and decree entered.

      William M. Smith, for defendant Abram.

      George G. Hunter, for defendant Hart.
   Fellows, J.

Counsel in this case should be commended. In a record of 16 pages the issues are concisely presented and the briefs and oral arguments have been most helpful to the court.

The will of Oscar Hart, deceased, executed December 11, 1909 (omitting formal parts), is as follows:

“After the payment of my funeral expenses, expense of last sickness, if any, and any lawful debts which I may have contracted, I give, grant and bequeath to my daughter, Alma Estella Taggert, the sum of one thousand ($1,000).
“To my grandchildren, Laura Taggert, Herbert Taggert and Lester Taggert, I give, grant and bequeath to each the sum of one thousand dollars ($1,000).
“To my son, Albert L. Hart, I give, grant and bequeath the sum of three thousand dollars ($8,000), and to my granddaughter, Myrtle Hart, I give the sum of one thousand dollars ($1,000).
“To my son, Harry Hart, I give, grant and bequeath the sum of one thousand dollars ($1,000) ; and to my granddaughter, Lula Hart, 1 give a like sum of one thousand dollars ($1,000).
“To my son, Rosco Hart, I give, grant and bequeath the sum of three thousand dollars ($3,000).
“To my son, Arthur C. Hart, I give, grant and bequeath the sum of one thousand dollars ($1,000).
“To my daughter, Belle D. Hart and to my son, Almon E. Hart, I give, grant and bequeath to them jointly the sum of five thousand five hundred dollars ($5,500.00), provided that said sum of five thousand five hundred dollars ($5,500.00) shall.be paid by my executors to my son, Almoii E. Hart to be used or invested by him for the care and support of his said sister, Belle D. Hart, and for their joint use and benefit.
“To my daughter, Irene Dunning, I give, grant and bequeath the sum of one thousand dollars ($1,000).
“To my son, Karl S. Hart, I give, grant and bequeath the sum of one thousand dollars ($1,000), and to my granddaughter, Kathryn Hart, I give a like sum of one thousand dollars ($1,000).
“To my beloved wife, Electra Hart, I give, grant and bequeath the sum of two thousand five hundred dollars ($2,500).
“I hereby nominate my sons, Almon E. Hart and Albert L. Hart, as executors of this my last will and testament, thereby giving and granting unto my said sons as executors full power and authority to grant, sell and convey by deed or otherwise any and all real estate of which I may die seized or possessed, hereby intending that they will convert the same into money as rapidly as is consistent with good business judgment for the purpose of distribution according to the tenor of this document.”

This controversy involves the construction of the clause referring to the daughter Belle D. and the son Almon E. Belle D. suffers from a mental affliction. Almon E. predeceased his father ten days, leaving a daughter Myra Hart Abram, his sole issue. The trial court held that Belle D. took the full sum of $5,500 by right of survivorship. . Myra Hart Abram appeals, claiming that the right of survivorship does not apply and that she, as sole issue of Almon E., takes one-half of said bequest of $5,500 under the provisions of section 13793, 3 Comp. Laws 1915; section 11001, 4 How. Stat. (2d Ed.).

Two questions therefore arise on this record:

(1) Does joint tenancy in personal property, with its right of survivorship exist in this State so that by operation of law the survivor takes the whole?

(2) Does this will, properly construed, evidence an intent on the part of the testator to give the entire sum to the survivor?

1. In the consideration of this branch of the case it should be constantly borne in mind that we are not dealing with a grant or devise of real estate, nor with a bequest to a class, nor a bequest of heirlooms whose value consists of their associations, nor with a deposit with a bank or trust company. The property involved is cash, and the question presented whether the right of survivorship attaches as matter of law to a joint bequest to two or more persons.

It is insisted by appellee that joint tenancy in personal property, with its incident of survivorship, existed at common law, and that in the absence of statutory enactment it must be deemed to exist in this State. That joint tenancies are of feudal origin, and were at one time highly favored in England, does not admit of doubt; but long ago they grew in disfavor there as is evidenced by the following language of Lord Chancellor Thurlow, in Campbell v. Campbell, 4 Br. C. C. 14 (decided in 1785) :

“However the court might formerly lean to the construction of wills, so as to create joint tenancy, it has now for many years found the inconvenience of that construction, and has laid hold of any words in a will that will favor the construction of tenancy in common.”

The same learned chancellor, in Perkins v. Baynton (decided in 1781), 1 Br. C. C. 118, declined to recognize the right of survivorship where the will made a bequest of 1,500 pounds to two parties “jointly and between them,” remarking:

“The intent here was to give each an usable interest, as it is a sum of money which resolves between them.”

While as early as 1747 Lord Hardwicke, in the case of Haws v. Haws, 1 Ves. 13, said:

“It is true that joint tenancies are not favored here; as introducing inconvenient estates, and making no provision for families, and now courts of law also lean against them, although it was formerly said by C. J. Holt that they were favored, which was on a technical reason, because the law was averse to multiplication of tenures and services, which being now reduced to socage, and no burthen, the construction is the same in all courts.”

It is said in 7 R. C. L., at page 813:

“The estate in joint tenancy presents some of the most artificial rules of subtle distinctions of the ancient common law. It was once highly favored in England, doubtless for reasons that were feudal in their character and influential in their day, but which have long since ceased to operate. Whatever may have been the causes which led to the origin of this estate, or which recommended it to our ancestors of the feudal period, it is undeniable that at this day it has grown into disfavor in England and America.”

We are, however, most concerned in the former holdings of this court. If the question has been settled for this jurisdiction we should follow such holdings. In the early case of Cote v. Dequindre, Walk. Ch. 64, the question of the right of the surviving owner of a mortgage to foreclose arose. The court sustained such right but recognized the equitable interest of the personal representatives in nearly all cases in the money when collected from the debtor of two or more persons part of whom were deceased. In the case of Martin v. McReynolds, 6 Mich. 70, the question again arose. It was there held that, due to the exception of mortgages in the statute (being now section 11568, 3 Comp. Laws 1915), the survivor was the proper party to a foreclosure suit, and Cote v. Dequindre was cited to that effect. In the case of Teller v. Wetherell, 9 Mich. 464, it was held that after the death of one of two parties, a suit upon a cause of action which survives must be brought in the name of the survivor. But the court in that case was dealing with a partnership. Each of these three cases involves the right to sue on joint obligations and does not involve the rights of the parties inter sese. However, the question did arise between the parties in Wait v. Bovee, 35 Mich. 425. In this case securities were held in the joint name of the husband and wife. The husband predeceased the wife and the case arose between their estates. It was said by this court, speaking through Mr. Justice Graves:

“As the case stood, the question was upon the bare legal effect of the husband’s death in the lifetime of the wife upon the right to the securities taken by them jointly. Our own decisions relative to the rights of husband and wife in case of united holdings of real estate, afford no argument here. They were grounded upon the statutory preservation of the common-law doctrine, and which originated in and was developed by a policy not pertinent to cases of taking and holding of personal securities. * * *
“The drift of policy and opinion, as shown by legislation and judicial decisions, is strongly adverse to the doctrine of taking by mere right of survivorship, except in a few special cases, and it should not be applied except where the law in its favor is clear.”

In the case of Luttermoser v. Zeuner, 110 Mich. 186, the question again, arose. The property involved was a mortgage, then and now (but not in earlier days) considered personal property. The mortgage ran jointly to Carl Frederick Zeuner, the defendant, and Johanna Rebecca Zeuner. They were husband and wife. The action was brought by Mrs. Zeuner’s executor against the surviving husband for one-half of the proceeds of the mortgage which had been collected by him. It was held that he was entitled to recover. This court, speaking through Chief Justice' Long, saying:

“The executor of the estate of Johanna Rebecca Zeuner was not made a party to the chancery proceeding, but defendant contends that at her death the title to the mortgage passed to him as survivor. Counsel is in error in this contention. During the life of Mrs. Zeuner, one-half of the mortgage was her sole property. It is claimed that the mortgage as drawn expressly declared a title in the husband and wife in joint tenancy; that each held an undivided one-half interest therein. At the death of Mrs. Zeuner, the title to her one-half was vested in the executor of her estate for the benefit of any creditors and her heirs at law. Wait v. Bovee, 35 Mich. 425; In re Albrecht, 136 N. Y. 91. This being so, and the executor not having been made a party defendant in the chancery suit, the court below was not in error in directing verdict and judgment in favor of the plaintiff.”

In the case of Burns v. Burns, 132 Mich. 441, a .bank deposit was involved. The deposit was originally in the name of Michael Bums, who instructed the teller to put his wife’s name opposite his name so that she would have the right to draw from the account, remarking “that it was as much her money as it was his money.” Shortly before Michael’s death the wife withdrew the money. The action was one brought by his administrator to recover the full sum. This court failed to find a gift inter vivos and held that plaintiff was entitled to recover, saying:

“We are also of the opinion that there was no proof from which a gift inter vivos can be inferred. The testimony does not indicate that the testator ever deprived himself of authority over the fund, and, while the testimony of Schmiel, Dempsey, and the bank teller tends to show an intention to allow her to use the fund, such authority was terminated by testator’s death. The case of Brown v. Brown, 23 Barb. (N. Y.) 565, is in .point.”

In the case of State Bank of Croswell v. Johnson, 151 Mich. 538, this court found, as matter of fact, that a gift had been established, the transaction partaking of both a gift inter vivos and a gift causa mortis. The certificate of deposit had been endorsed with an order to issue a new certificate payable to “Thomas Parker and Alice Parker or the survivor of them.” But this court there expressly recognized that under our decisions the right of survivorship does not obtain in personal property held in joint ownership, saying:

“Our decisions that the law of survivorship does not apply in the case of joint ownership of personal property does not affect the right of a donor to make a gift to his surviving wife.”

Much reliance is placed by appellee’s counsel on the case of Mann v. Hyde, 71 Mich. 278, and it is thought by counsel that the holdings in that case as to the library, and the residuary clause are controlling here. As to the library, the question does not appear to have been a litigated one, one' “seriously disputed,” and no discussion of legal principles is found in the opinion on that subject. As to the residuary clause, the case is not as applicable to the question being considered under this head as the one we shall next discuss, but upon either question we think the case is clearly distinguishable from the instant case. Here the bequest involved is a, specific one, there the clause involved was the residuary clause of the will. The residue of the estate was divided into seven parts. As to one of these sevenths a provision was made for disposition in case of the death of the legatee, but no such provision was made as to the other six-sevenths, a fact thought significant by this court. It was also thought by the court that, the one-seventh having been given to Mr. and Mrs. Hyde and their son, showed an intent that the Hyde family should take this seventh, and, Mrs. Hyde being deceased, the surviving members of the family took what this court was impressed the testator intended to give the Hyde family. But, as we have already stated, the clause construed was the residuary clause and any other construction than that given would have resulted in a lapsed legacy and partial intestacy. Partial intestacy is not favored; all intendment is required to be made to prevent such result. Toms v. Williams, 41 Mich. 552, 562; Foster v. Stevens, 146 Mich. 131; Des Grand Champ v. Duflo, 169 Mich. 104. The case cannot be regarded as authority on the branch of the case under consideration, or as casting doubt on the case of Wait v. Bovee, supra. It is authority to be considered upon the other branch of the case, but for the reasons stated we do not regard it as controlling.

From an examination of the authorities we conclude that it is the fixed and settled law of this jurisdiction that the right of survivorship does not attach, as matter of law, to personal property held in joint ownership, nor that bequests to two or more persons by operation of law pass to the survivor; in other words, joint tenancy, in personal property, with its right of survivorship, does not obtain in this jurisdiction. The authorities from other jurisdictions are in hopeless conflict. We will not discuss them. The rule has been established in this State. It is a rule of property. We have no inclination to change it.

2. The purpose of construction of wills is to ascertain the intent of the testator. If the intent is clearly expressed, the will is not open to construction — there is nothing to construe; if ambiguous, rules of construction must be applied. That Oscar Hart might, if he desired, give the sum here involved to his son and daughter, or to the survivor of them, is beyond controversy. The task for our undertaking is to determine whether such was his intent. The language used is ambiguous, the task one of difficulty. That the rules used to aid in the construction of the language of wills cannot be arbitrary and unbending is apparent from the fact that the language used differs in different wills, and seldom, if ever, are two wills in all respects alike. Substance rather than form must be considered, and a rule that will aid in one case may be of little assistance in another. In no case may technical rules of construction be persuasive against the intent fairly ascertainable from the instrument itself.

One of the rules to assist in the construction of ambiguous clauses of a will is that the law favors that construction which will make a distribution as nearly comformable to the general rule of inheritance as the language will permit. Rivenett v. Bourquin, 53 Mich. 10; In re Lamb’s Estate, 122 Mich. 239; Murdoch v. Bilderback, 125 Mich. 45; Long’s Estate, 228 Pa. 594; Kilgore v. Kilgore, 127 Ind. 276. In the case of Rivenett v. Bourquin, supra, the testatrix gave her property to her four children by name, “in equal proportions to each, share and share alike,” and then added the following clause: “and in the event of either of my said sons or daughters dying before my death, then and in that case my said estate shall be divided among the survivors,' or their legal representatives, share and share alike.” This court laid hold of the expression, “legal representatives,” and giving force to that expression and the rule that the law favors that construction making a distribution as nearly conformable to the general rule of inheritance as the language will permit, held that the property passed to the issue of the deceased children under the statute passed to prevent the lapsing of devises and legacies, being the one here invoked. Had this court in that case laid hold of the expression “my said estate shall be divided among the survivors” and disregarded the expression “legal representatives” and the rule to which attention has been called, the result would have been a joint tenancy with survivorship, an estate not favored in the law.

In the case of Kilgore v. Kilgore, supra, the court recognizes the rule that:

“The law favors a distribution of estates under the rule giving to the child or children of a deceased such share as his parent would have taken if living.”

The court theretofore having well said:

“The paramount object to be reached in the construction of a will by a court is to so construe it as to express the true intention and meaning of the testator. In many instances it is very difficult to accomplish this object to a degree approaching absolute certainty. Language is often used upon which there can very plausibly be placed different constructions, hence a court must adopt such construction as, under the rules of law governing the construction of wills, seems to it most reasonable.”

Another rule brought into play in the construction of wills of doubtful meaning is that if two constructions of a will are permissible, one consistent and the other inconsistent with the law, the presumption that the testator intended to comply with the law will compel the adoption of that construction which is consistent with the law. Foster v. Stevens, 146 Mich. 131; Hull v. Osborn, 151 Mich. 8. While this rule is most frequently invoked where a construction inconsistent with the law will render the will, or some parts of it, invalid, still may it not also apply where two constructions are equally permissible, one creating an estate favored in the law and one creating an estate disfavored in the law?

This will bears- evidence upon its face of -having been drawn by one with legal experience. This is a fact which we may consider in its construction. Overheiser v. Lackey, 207 N. Y. 229. May we assume, under such circumstances, that it was intended by the language used to create an estate which does not arise, as matter of law, in this State? Had the terms “joint” or “jointly” been used in a bill of sale it would not have created an estate in joint tenancy with right of survivorship. Had the terms been used in any instrument dealing with personal property, other than a will, it would not be seriously contended that under our decisions an estate in joint tenancy, with its incident of survivorship, had been created. May we then assume that in this instrument the testator by the use of these terms intended to create an estate favored in feudal times, but now in disfavor, both in England and in this country? The following language of Justice Spear, in Webster v. Insurance Co., 53 Ohio St. 558, answers the inquiry:

“Should the word ‘jointly’ receive construction in accordance with strict legal ideas? If so, does it mean that the plaintiffs were joint tenants as defined by Blackstone, giving right of survivorship? An Ohio lawyer, even, would hardly have that in mind, for joint tenancy does not exist in Ohio.”

So we say here joint tenancy in personal property does not exist in this State, and we ought not to assume that the testator intended and the scrivener by the language used, designed to create such an estate. We are not now dealing with real estate and therefore do not determine whether the language used would be sufficient under section 11562, 3 Comp. Laws 1915. What we are dealing with is personal property which is not governed by the section cited. The following cases may be considered upon the effect to be given the terms “joint” and “jointly.” Langmaid v. Hurd, 64 N. H. 526; Overheiser v. Lackey, supra; Mustain v. Gardner, 203 Ill. 284; Haven v. Haven, 181 Mass. 573; Gorman v. Gorman, 87 Md. 338; Webster v. Insurance Co., supra; In re Albrecht, supra. In the case of Langmaid v. Hurd, supra, it was said by the court:

“The bequest ‘unto Frank Hurd and family, jointly,’ is not a clear expression of an intention to create a joint tenancy. The testator seems to use the word ‘jointly’ in its ordinary sense, to signify such a collective body as ‘joint heirs,’ who are ‘deemed tenants in common.’ ”

We have carefully considered the cases cited by appellee. Those from this court are distinguishable from the case at bar, and, as we have said, those from other jurisdictions are in hopeless conflict. To consider all the cases cited, or examined by us, would make this opinion unnecessarily prolix, without benefit to the parties or the profession.

Another difficulty encountered in construing this clause of the will, one not urged by counsel, grows out of the words “use and benefit,” found in this clause. If this will contained a residuary clause our former decisions tend to the construction that these words imported a life estate, but there is no residuary clause in this will. Each of the bequests, is for a specific sum of money. It is clear that testator thought and intended to dispose of his entire estate and made no provision for any residue. Taking this fact and applying the rule heretofore adverted to, that partial intestacy is not favored and that all intendment is required to prevent such result, we conclude that it was not the intent of the testator to create a life estate, leaving a residuary estate undisposed of.

Taking the will in its entirety, and we must consider it from its four corners, we find that each grandchild, save only the defendant Myra Hart Abram, was given a thousand dollars; each daughter, save the unfortunate one, was given a thousand dollars, and she was given more; three sons were each given a thousand dollars; two sons were given three thousand dollars each. All of these bequests were absolute. There is nothing to indicate that he did not desire his son Almon to have an absolute bequest, no evidence of ill feeling against him. Indeed, on the contrary, he made Almon one of the executors of his will and trustee for the amount given his unfortunate daughter Belle. He directed the payment of the entire $5,500 to Almon ; but it was to be for the use of both. Taking the instrument itself, applying to it the rules of construction which we are bound to apply in case of ambiguity, we conclude that the $5,500 bequest to Almon E. and Belle D. was not intended by the testator to be held by them as joint tenants with the right of survivor-ship. but that they were made tenants in common of this fund and each entitled to an equal share.

Almon E. having predeceased the testator, it follows that under the provisions of section 13793, 3 Comp. Laws 1915, his issue Myra Hart Abram takes the estate given by the will to her father. Rivenett v. Bourquin, supra; Strong v. Smith, 84 Mich. 567.

The decree of the court below should be reversed and one here entered in accordance with this opinion. Defendant Myra Hart Abram should recover her taxed cost to be paid by the estate.

Moore, J., concurred with Fellows, J.

Bird, J.

“To my daughter, Belle D. Hart and to my son, Almon E. Hart, I give, grant and bequeath to them jointly the sum of five thousand five hundred dollars ($5,500.00), provided that said sum of five thousand five hundred dollars ($5,500.00) shall be paid by my executors to my son, Almon E. Hart to be used or invested by him for the care and support of his said sister, Belle D. Hart, and for their joint use and benefit.”

It is said that the foregoing bequest cannot be construed as a joint bequest because the'common-law doctrine that a conveyance of personal property to two or more persons creates a joint interest has never been adopted in this State. While it is true that this doctrine has never prevailed in this State (Wait v. Bovee, 35 Mich. 425), and that such a conveyance will be construed in this State to be an interest in common rather than a joint interest, this construction is indulged in only where there is nothing beyond the naming of two or more beneficiaries to indicate the kind or quality of interest intended to be conveyed, or where the question is doubtful as to whether an interest in common or a joint interest was intended. To this effect are the cases cited by Mr. Justice Fellows.

There are no statutory provisions against creating a joint interest with the incident of survivorship in personal property in this State, and there has never been any refusal upon the part of the courts to enforce such an interest when the testator made it clear that it was his intention to create it. In the paragraph in question the testator has made it clear in language easily understood that he intended to create a joint bequest. “I bequeath to them jointly, * * - * for their joint use.” This language leaves no doubt as to his intention, and it appears to me that his reasons for desiring it lie upon the surface. The daughter Belle was afflicted with a mental malady, and he wanted to leave her in the care of his executor — his trusted son — believing he would care for her, and that the income from the bequest would aid him in so doing. When Belle was gone Almon would take the entire fund, as survivor, as a reward for his services. If perchance Belle should outlive him the fund would be none too large to care for her in other hands. It is quite evident that one-half of the income from $5,500 would be a rather meager sum to support a girl whose mind was so ajar that she could not take care of herself.

It is further stated that if this, construction prevails it will deprive the appellant, Almon’s daughter, of any participation in her grandfather’s estate; that the testator gave his other grandchildren $1,000 each, and no reason appears why he should have excepted the daughter of his trusted son. One answer to this argument is, the testator did not by the terms of his will give her anything. May it not be probable that his failure to give her anything was due to the fact that he had given her something during his lifetime? Or may he not have thought that Almon would in the end get the entire sum, and that sum would be large enough to suffice for both? But whatever may have been his reason for not doing the same by her as he did by the other grandchildren, I do not understand it to be the province of this court to guess what he wanted to do, or what he ought to have done for this granddaughter, and then enforce that guess at- the expense of directly overruling his express instruction with reference to the joint fund and its joint use. Had testator given them the fund and directed that Almon should keep it invested for their joint use and in case of the death of either the residue should go to the survivor, this court, without hesitation, would have enforced it. What was directed to be done was the equivalent of this in the law if we give to the words “to them jointly” and “for their joint use” their legal meaning.

The parental, solicitous love of testator for this unfortunate daughter prompted him to make extra provision for her protection and care after he was gone, and it seems improbable that he intended her income should be reduced by half in the event that she survived Almon who had been chosen to care for her. I am of the opinion that the chancellor properly construed the provision.

The decree should be affirmed.

Kuhn, J., concurred with Bird, J.

Ostrander, C. J.

It is clear, I think, that the testator desired, and, by the language employed, intended, to provide a fund of $5,500, in the hands of Almon, to be by him used and invested primarily for the care and support of Belle. The testator’s use of the word “jointly” and the term “their joint use and benefit” may be referred, not to the particular estate intended to be created, but to the desire that one or other, or both, of those children should have all of the fund and its accumulations. He did not leave $2,750 to Belle and $2,750 to Almon, nor $5,500 to either of them. He did not limit the amount to be used for Belle to the income derived from the fund. He assumed that the income and principal might be used jointly, that is, in common, by both of them; which is only saying that the common use of it might operate to care for and support Belle. Both of them might be warmed by the same fire, replenished out of the fund. There is evident no idea that Belle will have children to take in her place, while it is evident that Almon might have issue. This from the situation of each. It turns out that Almon does not, while Belle does, survive the testator. Almon cannot act as trustee of the fund created for their joint — common—benefit. This fact furnishes no reason for dividing the fund as if the testator had given $2,750 to each child. It may still be invested and the income and, if necessary, the principal, used for the care and support of Belle. Other heirs are excluded from participation at any time in the fund. These two use it, and all of it. Upon the decease of Belle, the children or representatives of Almon will take whatever sum remains. This, I think, is what the testator intended, and there appears to be no legal objection to carrying out the intention. As nearly as may be, a trustee may carry out the intention of the father, paying over any residue to the heirs of Almon. ■

Steere, Brooke, and Stone, JJ., concurred with Ostrander, C. J.

Two justices only voting for affirmance of the decree, it is reversed. A majority of the Justices are of opinion that the use of the income from the fund of $5,500, and, if necessary, the principal thereof, shall be devoted to the maintenance of Belle D. Hart during her life: It is so ordered, and the decree will provide for the appointment of a trustee by the court below to administer the fund accordingly. The disposition of the residue of the fund, upon and after the decease of Belle D. Hart, is not determined.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    HAIRE v. CHARLEVOIX CIRCUIT JUDGE.
    1. Mandamus — Pleading—Conclusiveness—Statutes.
    Odl mandamus to review an order of the court below granting a preliminary injunction, all material facts not specifically denied by the plea must be taken to be admitted as true, under section 13440, 3 Comp. Laws 1915.
    2. Injunction — Bond—Pending Suit — Abuse oe Discretion.
    Where a former proceeding for an accounting, based on the ground of a copartnership, was decided by the Supreme Court against plaintiff, and the injunction dissolved, it was an abusé of discretion of the court below to grant another injunction, on the theory of a joint adventure, without requiring of plaintiff a sufficient bond to protect defendant, who would thereby suffer great damage; the allegation that plaintiff was financially irresponsible not being denied; and there being no claim that defendant was -not able to pay any amount that might be decreed against him.
    Mandamus by Clark Haire to compel Frederick W. Mayne, circuit judge of Charlevoix county, to vacate an order granting a preliminary injunction.
    Submitted April 9, 1918.
    (Calendar No. 28,142.)
    Writ granted April 26, 1918.

      Harris & Euegsegger (H. Geer, of counsel), for plaintiff.

      Clink & Williams, for defendant.
   Stone, J.

This proceeding is before us upon petition of the plaintiff herein, for a, writ of mandamus requiring the defendant circuit judge to vacate an order granting a preliminary injunction made on August 20, 1917, in a cause wherein Stanley A. Bush is plaintiff, and this plaintiff and his wife are defendants, and the return of the circuit judge made in pursuance of the order to show cause why such order for an injunction should not be vacated, or a bond given by the plaintiff in said cause conditioned to pay the parties enjoined such damages as they may sustain by reason of the injunction, if the court shall eventually decide that the plaintiff was not entitled to such injunction. This litigation has been pending in this court, and in the circuit court for the county of Charlevoix, in chancery, nearly all the time, since May 14, 1915. On that date Stanley A. Bush filed his bill of complaint in said circuit court, in Chancery, against Clark Haire and his wife, setting forth a contract of copartnership and asking for a dissolution thereof, and for an accounting. This bill was answered, and the issue formed was heard at the circuit, and a decree was entered sustaining the bill of complaint, from which the defendants therein appealed to this court, where, after an argument, an opinion was filed July 26, 1917, reversing the decree of the court below and dismissing the bill of complaint, “but without prejudice to the plaintiff to institute such proceedings as he may deem proper to obtain relief on the theory of joint adventure,” and a decree was entered accordingly. Bush v. Haire, 197 Mich. 85.

At the time of the filing of the bill of complaint of May, 1915, a temporary injunction was issued restraining the defendants therein named and the Boyne City Handle Company, from in any way disposing of their property described in said bill as belonging to either of the defendants, or to said company. The defendants therein — being the plaintiff herein and his wife — answered the said bill denying the material allegations therein, and set forth that the Boyne City Handle Company was a corporation, and that the said Clark Haire was the principal owner of the stock of the said corporation.

Upon a motion to dissolve or modify said injunction, this plaintiff made an affidavit in which he stated, among other things, that he was owing large sums of money to the First National Bank of Boyne City and others, and that he had assigned his stock and logs for the purpose of securing credit to the Boyne City Handle Company; and upon the hearing thereof the circuit court made an order modifying the said injunction, recognizing that said debts, logs and stock were the property of the Boyne City Handle Company, which order is made a part of the return of the said circuit judge, and which modification was, in substance, as follows:

“That the Boyne City Handle Company, of which said Clark Haire was manager, may continue the business of operating the mill described in the bill of complaint in the manufacture of the logs therein described into lumber, broom handles and other products, and the disposing of the same in the ordinary course of trade, conditioned that the invoices for products sold shall be delivered to the First National Bank of Boyne City, Mich.; and the said First National Bank is hereby authorized to collect the payments of said invoices and pay the necessary labor bills incurred by the said handle company in and about the manufacturing of said logs as aforesaid, and selling of said products until further order of this court.”

This injunction, as modified by the foregoing order, remained in full force and effect until July 26, 1917, when it was dissolved by the dismissal of the bill of complaint in this court.

On the '31st day of July, 1917, the said Stanley A. Bush filed another bill of complaint in the said court in chancery, setting forth in substance the same contract that was set forth by him in his bill of complaint filed May 14, 1915, and asking for the same relief, excepting that in his first bill of complaint he stated that the agreement was a copartnership, and gave its name and its purposes and asked for its dissolution and an accounting. Whereas, in his bill of complaint of July 31,1917, he stated that it was a contract of joint adventure, and prayed for an accounting and also for an injunction. The property in which he sought to obtain an interest was substantially the same as that set forth in the first bill of complaint, which he described as belonging, a part to the Boyne City Handle Company, a part to Flora U. Haire, and a part to this plaintiff; and on filing this bill a temporary injunction was issued and served upon this plaintiff, purporting to restrain him and his wife and the Boyne City Handle Company from selling, assigning, or disposing of any of the property named and described in the said bill of complaint; and also containing an order directed to this plaintiff to show cause why the injunction should not issue during the pend-ency of this suit, according to the prayer of the bill of complaint.

On the 20th day of August, 1917, this plaintiff filed his affidavit for the purpose of showing cause, alleging, among other things, as reasons why said injunction should not be granted the following: That he owned a majority of the stock of the Boyne City Handle Company; that the Boyne City Handle Company owned the mill described in the bill of complaint, which was situate upon leased ground in the city of Boyne City; that said handle company during the winter of 1914-1915 had acquired a large quantity of hardwood timber and cut a quantity of hardwood logs for use in the manufacture of broom handles and other products; that it had built up for itself a valuable trade in its handles and other products; that its mill was in good running order at the time; that it had a crew of expert men, skilled in the manufacture of the products; and that it had a substantial credit with banks and others, and was in a position to operate to advantage the property. Said affidavit also set forth the proceedings in the previous case and the injunction issued therein, and its continuation as herein-before set forth; that its business and credit had been damaged or destroyed by reason of the injunction in the first case, in that its assets were put in the hands of said First National Bank and were not made available for the payment of the debts of the handle company in due course, but could only be used to satisfy the debts which were a lien upon the property described in the bill of complaint; that the property was disposed of by the said trustee under the order of the court at a time when market conditions were not favorable; its inability to provide stock for continuing its operations for the ensuing year; the injury to the business by closing it down and requiring the sale of the property under conditions when it was not a going concern, but one being liquidated, as appeared to the trade; that its skilled crew was dispersed; and that the sale of a large part of this stock was under conditions which amounted.to a forced sale, and which condition was known to a large percentage of the buyers of this stock; that the mill stood idle and had become greatly depreciated in value, and the loss of all the credit which it had at the time of issuing said injunction, and which had enabled him in the past to conduct the business and manage its affairs; also the allegation that no security had been given to him, or to his wife, or to' the handle company by which they could be protected or reimbursed by reason of the loss sustained by them through said injunction, and that he had been subjected to expense in caring for- the property, paying of taxes, insurance and watchman, while the interest on such of its debts as had not been liquidated by the sale of the stock had continued; and averring the financial irresponsibility of the plaintiff Bush.

An examination of the second bill of complaint shows that there is no claim that the said Clark Haire is financially irresponsible.

In disposing of the motion upon the showing made, the said circuit judge, after discussing the first case and the opinion rendered by this court therein, used these words:

“Without prejudice to the rights of the parties this motion is denied. If the Supreme Court say they will not rehear the case, counsel may upon four days’ notice present this motion.
“Mr. Harris: The motion is denied; do I understand that that means that the injunction will be maintained?
“The Court: Yes, for the purpose of mandamus or any other remedy you may have.”

Subsequently, and after the filing of the petition herein, the said Stanley A. Bush, plaintiff in the original suit, applied to this court for a rehearing, or, in case that was denied, for leave to amend the original bill of complaint in this court by alleging a joint adventure, instead of a copartnership, and a rehearing upon such amended bill; or that the case be remanded to the court below with leave to apply for an amendment, and a hearing upon the testimony already taken in the original cause. These motions were denied by this court.

This writ is asked for upon the grounds that the denial of the motion to dissolve the injunction, or at least to require the .plaintiff Bush, under the circumstances, to give security sufficient to compensate said Clark Haire and his wife for any damage that might accrue to them by reason of the existing injunction, was an abuse of the discretion of the circuit judge upon the grounds stated.

It is strongly urged, by the plaintiff here, that it is inequitable and unjust and an abuse of the court’s discretion to continue said injunction upon said Bush’s second unsupported statement, without requiring him to secure the said Haire and wife against damage. This matter is before this court upon the petition and return of the circuit judge. In other words, there is no plea filed to such return, and our present statute provides that all material facts stated in said return that are not specifically denied by the plea shall be' taken as admitted to be true. (Section 4, chap. 36, judicature act, 3 Comp. Laws 1915, § 13440.)

We have examined the return of the defendant circuit judge with considerable care, and while many of the allegations of said petition are denied by the circuit judge, we think that he does not meet the claim that a bond should have been filed before the issuance of this injunction in view of the affidavit of Clark Haire and his wife, and the answer, which appears to have been filed upon August 20, 1917. The learned circuit judge seems to have considered the evidence in the original case, which was not before him, and to have held as follows:

“And where the evidence shows, as in the case at bar, that the property was purchased and improved with the money made by them in their joint dealings and that a decree could not be otherwise enforced, that the property so purchased and improved should be held under an injunction until the settlement of any decree that may be rendered in said cause. If this were not so it would give the party committing a wrong an advantage inconsistent with equity and justice;”
■ — and he expresses no doubt that upon the claim of a joint adventure the plaintiff Bush would be entitled to recover in said suit. A motion to vacate the order is not now necessary. (Section 2, chap. 36, judicature act, 3 Comp. Laws 1915, § 13438.)

From aught that appears in this record, if Bush should sustain his bill of complaint, there appears to be no reason why Haire is not amply able to pay any amount that may be decreed against him. It also appearing that Bush is financially irresponsible,'we are of the opinion that the circuit judge should have required a bond.before the issuing.of the injunction in said second suit. The following language of Justice Campbell, in Torrent v. Muskegon, 47 Mich. 115, 120, is applicable:

- “We also feel it our duty to refer to the danger of interfering in the outset of a case, by injunction, with interests, where delay may work great damage, without making full provision for redress by an adequate injunction bond. Defendants ought not to be subjected by the machinery of the law to irreparable mischief.”

That rule is especially applicable where property rights are involved.

In our opinion the writ of mandamus should issue to the circuit judge directing him to forthwith make an order requiring the said Stanley A. Bush to execute a bond to the defendants in the penal sum of $10,000, with two or more sufficient sureties to be approved by the circuit judge, conditioned to pay the parties enjoined such damages as they may sustain by reason of the injunction, if the court shall eventually decide that the plaintiff Bush was not equitably entitled to such injunction; and if such bond is not filed in said cause within 30 days after the filing of this opinion, that said injunction be dissolved. It will be so ordered, and the plaintiff herein will recover his costs in this proceeding against the said Stanley A. Bush to be taxed.

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


author: Steere, J. Ostrander, C. J.

text:
    COSTON v. ANN ARBOR RAILROAD CO.
    1. Railroads — Crossing Accident — Death — Negligence — Question eor Jury.
    In an action against a railroad company for the negligent Rilling of plaintiff’s decedent by a collision at a crossing between defendant’s engine and a buggy in which decedent was riding, evidence as to defendant’s negligence in failing to ring the bell on the engine, in failing to keep electric crossing bell in proper repair, and the excessive speed of the train, in view of all the surroundings, field, to present a question of fact for the jury.

    2. Same — Contributory Negligence — Reliance Upon Electric Alarm Bell — Question eor Jury.
    In such action, where' defendant had for several years maintained an electric alarm bell at the crossing, and deceased had knowledge of the existence of the bell and-was familiar with the crossing, having driven over it daily to his work for about a year, in the absence of any evidence that deceased had knowledge that the bell was out of order on the night of the accident, or that it • had ever failed to ring when a train passed, the question of his contributory negligence in failing to stop, look and listen, and the extent to which he might rely upon the warning of the bell, field, for the jury, under proper instructions. Ostrander, C. J., and Fellows, J., dissenting.
    3. Same — Orders oe State Railroad Commissioner — Presumptions.
    Where an electric alarm hell was installed at a railroad crossing as part of a signal system under an order of the State commissioner of railroads, the order would be presumed to continue in effect, in the absence of proof to the contrary.
    4. Same — Highway Crossing — Protection oe Traveling Public.
    Where two railroads crossed each other at a highway crossing, it cannot be contended that an electric alarm bell, installed by order of the State commissioner of railroads, was intended solely for the protection of the railroad companies and their passengers, since orders of this nature in reference to crossings on highways concern the general public using tbe highway on foot or by private conveyance.
    Error to Gratiot; Searl, J.
    Submitted April 11, 1917.
    (Docket No. 171.)
    Decided June 3, 1918.
    Rehearing denied July 18, 1918.
    Case by John Coston, administrator of the estate of Loren Barnes, deceased, against the Ann Arbor Railroad .Company for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Gusta/ous Ohlinger and O. G. Tuttle (Alexander L. Smith, of counsel), for appellant.

      Edwin H. Lyon and John W. Myers, for appellee.

      See notes in 3 L. R. A. (N. S.) 391; 8 L. R. A. (N. S.) 1063.

   Steere, J.

Plaintiff brought this action as administrator of the estate of Loren Barnes, deceased, to recover damages for the latter’s death caused by one of defendant’s trains striking a conveyance he was driving over its crossing at Corunna avenue in the city of Owosso on the evening of February 4, 1911. The corporate limits of Owosso extend about four blocks east of this crossing'beyond which Corunna avenue continues as a country highway in a southeasterly direction for about a mile, when it reaches the westerly corporate limit of the village of Corunna which is the county seat of Shiawassee county. At the crossing where the accident occurred it is an ordinary unpaved suburban dirt street. That portion of the city is sparsely settled, there being no building to the west of the crossing, towards Owosso, nearer than 155 feet, which is a church on the south side of the avenue, while to the east, on the same side of the street, the first building, called the Burns’ house, is 316 feet east of the crossing. The next house east of Burns’ on the same side is 360 feet beyond the crossing. An electric railway connecting Owosso and Corunna runs along the south side of the main traveled portion of Corunna avenue, with an hourly service each way between the two places. A so-termed “half interlocking switch and signal system” had been maintained for some years at this crossing of the two lines under an order of approval and conditions imposed by the State commissioner of railroads. The derailing devices were connected with the electric line tracks and on defendant’s line an electric alarm bell was installed at the crossing which would automatically begin to ring on the approach of a train from the southeast when it reached a semaphore 809% feet from the center of the crossing. Plaintiff’s testimony showed this electric bell had several times been out of order during the winter, sometimes continuing to ring after the train passed and at other times not ringing at all; that it was out of order so it did not ring when trains passed on the evening of the accident nor two days before; that the train which struck Barnes’ buggy had not reduced its speed on coming into the city but was running from 25 to 35 miles an hour and did not ring its bell or sound its whistle on approaching the crossing.

Barnes had resided in or near.Owosso 14 years, and was at the time of his death 33 years of age, married but without issue. For two years prior to the accident he resided near a mile east of this crossing and about a block from Corunna avenue. He was regularly employed at a factory in Owosso and during that time passed over this crossing daily in going to and returning from his work. For about a year before his death he rode, using a horse and single seated top buggy. This horse was a gentle animal 15 years old, “a steady driver” and would stop readily on pull of the reins. The night of the accident was dark and cold, with the wind blowing sharply from the northwest. In the evening after supper deceased started to drive from his home into the' city with his wife and a young girl named Najel Swarthout, then 10% years of age, who resided with them. She testified that it was cold and they were bundled up, the top of the buggy being up, with the side curtains on and the back closed. Barnes’ wife sat on the left, or southerly side of the buggy as they approached Owosso, the girl on the right, and he sat between them on their knees leaning forward as he drove along, the horse sometimes walking and sometimes trotting but she could not tell just where or when; that Barnes was a little in front of her and appeared to be looking straight ahead, although she could not tell the way he was looking from where she sat; that she knew he was awake because they talked more or less as they rode along and she recalled his talking with his wife about curtains and carpets for the house; that she did not remember the horse stopping at any time or his using the whip on it; that he appeared to be looking straight out of the front of the buggy as they approached the crossing and she simply knew the buggy kept right on going all the time until the accident ; that nothing unusual occurred to attract her attention, she heard no alarm bell, whistle nor other sound or signal of an approaching train and thus describes the event as known to her:

“The first thing I knew of this train I was on the pilot. I do not know what became of Mr. Barnes when the train struck the rig. I knew Mr. Barnes was killed. * * * The thing I knew about the engine was when I found that I was on the cow-catcher. Mrs. Barnes was on the cow-catcher too.”

This girl is the only direct witness to the accident and what Barnes did or failed to do in avoidance of it. Neither deceased’s wife nor any of the train crew were called as witnesses.

The train was stopped with its rear about 400 feet beyond the crossing and the engine standing a little northwest of the north semaphore, which is 735 feet from the crossing. The girl and Mrs. Barnes had been thrown upon the cow-catcher, where they rode until the train stopped, and sustained little if any injury. Barnes was found dead under the engine, wound around the axle just back of the drive-wheel. The train which struck deceased was defendant’s northbound passenger train No. 3, consisting of four cars and the engine, due at Owosso at 7:30 p. m. and was over 20 minutes late at the crossing.

The case was submitted by the court to the jury on the issues of negligence and contributory negligence, resulting in a verdict for plaintiff. While numerous assignments of error are urged and argued on various phases of the case, the basic question most meriting consideration is defendant’s contention that plaintiff’s testimony shows deceased to have been guilty of palpable contributory negligence precluding recovery.

The charges of negligence against defendant submitted to the jury were, as stated by the court:

“First. The failure to ring the bell on the engine; second, the question of the electric bell being out of order and the knowledge which the defendant railroad company had that the electric bell was out of order; third, the speed of the train and the manner in which the train was handled by reason of the fact that the electric bell was out of order, if it was out of order, and by reason of all the surroundings at the crossing there.”

While various features of defendant’s alleged negligence are debated at length in the briefs of counsel, it clearly appears there was abundant testimony to carry the question of defendant’s negligence to the jury as an issue of fact in the particulars stated by the court.

On reaching the question of contributory negligence the court instructed the jury:

“The plaintiff must go further and show that Barnes himself was free from any negligence which contributed- to the accident in question, to bring about his death. It ordinarily is the duty of a person driving upon the highway, as Barnes was driving on that night in question, in approaching a railroad track, to stop and look and listen for approaching trains, and ordinarily, if a man does not do all these three things, he is held to be guilty of contributory negligence and cannot Recover. But there are some exceptions to this general rule, and I charge you in this case that if the electric bell had been stationed there, and Barnes knew of the fact that it had been — and there seems to be not much dispute about that — and if you- find that it had gotten out of order and the company knew that and Barnes didn’t know it, then Mr. Barnes had a right to rely to some extent upon the fact that the electric bell would give warning to him and he would not necessarily be guilty of contributory negligence because he didn’t entirely stop his horse before driving across the track. But it would still be his duty, gentlemen, to approach the track in a careful manner, even if he didn’t stop, and at a reasonably slow rate of speed so that he might keep a look-out for trains that were coming upon the track, and it would still be his duty to look and to listen for approaching trains, even though he was relying upon the ringing of the bell, because one may not approach a railroad track even though he expects a warning bell to ring, without using his senses and using reasonable care, such care as a reasonably prudent man would exercise under the circumstances, before crossing it, and unless he does that, he cannot recover even though the company may have been guilty of some act of negligence upon their part.”

After discussing certain related features of the question including deceased’s familiarity with the locality, the court further said:

“I will charge you, now, gentlemen of the jury, that if you should find that Mr. Barnes -knew this bell was out of order on the night in question, there can be no recovery in this case. Because if he knew-the bell was out of order, he didn’t use reasonable diligence in approaching that crossing. He should have done more than the evidence shows that he did do in this case.”

In submitting the case to the jury under this instruction, the trial court was apparently governed by the ruling in Tobias v. Railroad Co., 103 Mich. 330, where, as here, a fatal accident resulted from plaintiff’s intestate driving upon defendant’s track without stopping to look or listen at a crossing near his house, which he was accustomed to pass frequently, where an electric bell had been installed and maintained to give warning of an approaching train, but was claimed to have been out of order on the night in question. It is there said the whole evidence indicated that if deceased had looked he could have seen the train in time to avoid it and the court should have directed a verdict in favor of defendant, but for the question of the maintenance of an electric bell, by reason of which it was held error for the trial court to refuse plaintiff’s request to submit the case to the jury under an instruction that if the bell did not sound its usual alarm on approach of the train and deceased did not know of any fault in the condition of the bell, that fact could be taken into consideration by the jury, together with all other facts in the case as bearing upon the question of his contributory negligence.

It is contended by defendant that the Tobias Case is not controlling, being distinguishable in the particulars that it was not there shown the bell had been out of order on previous occasions and deceased, being alone, was presumed to have exercised ordinary care and caution, while in the instant case there were eyewitnesses to the accident and it was shown the bell was frequently out of order to deceased’s knowledge, plaintiff’s testimony showing that he had observed and spoken of it.

The trial court charged the jury here, as was held by this court in the Tobias Case, that in the absence of knowledge the bell was out of order and inferable dependence upon its giving warning, the party killed was conclusively shown to be guilty of contributory negligence as a matter of law, because he could have seen the approaching train had he stopped, looked and listened, and as to the physical facts of the accident, aside from the question of the electric bell, the presumption of freedom from negligence was overcome by evidence to the contrary. The facts which eyewitnesses might observe at either accident would not disclose decedent’s previous knowledge as to the electric bell being out of order, or whether he depended upon its ringing to warn him of an approaching train. Why that element carried the question of contributory negligence to the jury is thus explained in the Tobias Case:

“It cannot be said that the deceased would have no right to rely upon the ringing of this electric bell to warn him of the approach of the train. If the electric bell had rung, it would have given him warning. That he expected it to ring might make him less cautious in looking for the coming of a train.”

It was shown that the bell in the instant case had been out of order and did not operate as intended at different times prior to this accident and that deceased had noticed it ringing when no train was passing, for which reason defendant urges the court should hold as a matter of law that he had no right to rely upon its giving warning, and the fact that it was maintained there could not be considered by the jury as a mitigating element in excuse or justification of his otherwise shown contributory negligence. As to the testimony upon that feature of the case, although it appears Barnes customarily passed over this crossing in going to and returning from his work it is nowhere shown that he did so at a time when trains regularly passed there, neither are we able to find any direct testimony that he ever knew of this signal bell failing to ring when a train passed. His brother did testify that about two months preceding the accident, and prior to that, they drove over the crossing together when the bell was ringing continuously with no train passing or standing there, and they both noticed the fact. What notice or knowledge Barnes had that the bell ever remained silent when a train passed the crossing is a matter of inference upon a question of fact as to which different minds might honestly draw from the testimony different conclusions.

This electric alarm bell was installed as part of a signal system under an order of the State commissioner of railroads, made February 23,1905, and the installation was approved after inspection by a supplemental order of July 11, 1905, subject to the condition that if the signals were clear trains of defendant’s road might pass the crossing at a speed not exceeding 20 miles an hour, and the further condition that —

"If from any cause the said interlocking switch and signal system shall become inoperative and cease to work satisfactorily, the signal shall at once be set to danger and a flagman stationed to signal approaching engines or cars on both of said railroads, which engines or cars must in all cases be brought to a full stop at the said crossing before passing over the same, as required by law, until the said appliance has been restored to perfect working order.”

It is now urged that defendant so habitually violated and persistently ignored this order that Barnes must be conclusively presumed as a matter of law to have known it and therefore had no right to rely on the bell sounding a warning or, in case it was out of order and failed to ring; of a flagman being stationed there to signal approaching engines or cars.

Counsel for defendant objected to and assigns as error the admission of this order in evidence on the ground it was not shown to be in effect when the accident occurred. Having been promulgated and put into effect, and the installation made in compliance with it having been inspected and approved by the commissioner, such an order would be presumed to continue in effect, in the absence of proof to the contrary. It is also seriously contended that this order was made solely with reference to the traffic of the two railways crossing each other at that point, for the protection of their property and passengers only, for which reason those using the highway and about to cross defendant’s track had no right to take it into consideration or in any manner rely upon its being complied with. Orders of this nature in reference to crossings on highways do concern the general public as well hs the railways and their patrons. They establish a particular system of safety alarm which if not a protection to those using thq highway tends to divert from the customary signals and mislead. This intersection of the railways was on the main thoroughfare between Owosso and Corunna, the county seat of the county in which both were located. Defendant’s line approached it from the south on a curve and crossed it diagonally; it was within the power of the railroad commission to make this order, and when the systém was installed with an alarm bell to give warning of an approaching train which all approaching the crossing could hear, it cannot be said that it was not intended to and did not mean anything to that portion of the public using the highway on foot or by private conveyance. Such warning bells are not required or customary at ordinary highway crossings and when installed are inevitably a notice to the general public that the ordinary means of warning at a highway crossing are inadequate for that particular place, which would naturally tend to divert the vigilance of those regularly using the highway from the ordinary methods of warning. This bell had been maintained by defendant at the crossing where the accident occurred for several years. How it came to be installed, the manner in which it operated, the extent to which it was kept in working order, deceased’s knowledge of its condition and the extent to which he in the exercise of reasonable caution and prudence might and did rely upon it were, under the Tobias Case, questions for the jury. The trial court narrowed the issue of contributory negligence to Barnes’ dependence upon this bell taken in connection “with all the other circumstances surrounding the crossing,” confined the significance of the surrounding circumstances to that question, and distinctly charged the jury that, regardless of the evidence of defendant’s negligence in other respects, recovery could only be had in case the electric bell was out of order when the accident occurred and failed to give its customary warning, that defendant had knowledge of that fact and Barnes did not. The case went to the jury upon that question under fair and proper instructions.

In that aspect of the case many of defendant’s assignments of error upon the admission of testimony become unimportant, and without reviewing at length the many other assignments of error urged we deem it sufficient „to state that from the record considered in its entirety we cannot affirmatively find that the errors complained of have resulted in a miscarriage of justice, or that any prejudicial error .demanding reversal of the case is made manifest.

The judgment will therefore stand affirmed.

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

Ostrander, C. J.

(dissenting). The opinion of the court, in dealing with the question of the contributory negligence of plaintiffs decedent, while professedly grounded upon Tobias v. Railroad Co., 103 Mich. 330, in my opinion very greatly extends the rule announced in that case. I do not understand it to be the rule that, because a railroad company maintains a bell or a gate or a watchman at a crossing, one about to use the crossing may depend for his safety entirely upon the gate, bell, or watchman. That his conduct may be affected by the fact that a gate is up, the flagman is not in his usual position, or that a bell does not ring, is true, and to this extent, and no further, goes the rule employed in Tobias v. Railroad Co. Mr. Tobias was alone when he was killed. The legal presumption is that he was careful for his own safety, that he took or attempted to take the precautions which a prudent man under the same circumstances would have taken. The undisputed evidence in the case at bar is that plaintiff’s decedent took no precautions whatever, unless it can be said that he listened. The occupant of the carriage, who gave testimony, could not know, of course, whether he listened, because one may listen without particular movement or action, but, if he listened, he took no other precaution for his safety, and it is obvious he took no precaution to listen for any sound unless it was the ringing of the bell. It was a cold night. The side and back curtains of the carriage were drawn. The occupants of the carriage were protected from the cold by clothing, two of them, at any rate, by extra clothing. Common prudence, ordinary care, required some further effort to ascertain whether the advertised danger of crossing was imminent. In my judgment, the reasoning of the opinion of the court in effect excuses persons situated as the plaintiff’s decedent was situated from doing the obviously prudent thing.

Fellows, J., concurred with Ostrander, C. J.


author: Bird, J. Ostrander, C. J.

text:
    DAVIS v. BUTTARS.
    1. Evidence — Books oe Account — Admissibility—Rule.
    Where the evidence showed that an account book containing an entry of the account sued upon by an administratrix was the only book deceased kept, that he had no regular bookkeeping system, that he entered sales as he made them, and that the entry in question was an original one and in deceased’s handwriting, and that the entry bore date of the day when the sale was made, the rule with reference to the admission of books of account was fairly satisfied.

    2. Same — Joint Defendant — Selb-Serving Evidence.
    Where one of the defendants had been discharged in bankruptcy and the suit proceeded against the other as sole defendant, the defense being that the sale was not.a joint one, but that one of the defendants purchased the stock of goods and the other the warehouse, the admission in evidence of the book of account was not open to the objection that it was error because it placed before the jury the deceased’s version of the sale; the entry not differing materially from the ordinary entry in books of account.
    3. Same.
    The fact that the deceased charged the consideration for the warehouse and stock of goods to defendants jointly would , be some evidence that the sale was made to them.
    4. Total — Instructions—Joint or Several Sale.
    Where the court in his charge as to defendants’ claims stated to the jury that “They do not give any evidence that would bear directly,” the language so used cannot be construed as referring to the claim that the purchase was several, but to another claim, as both defendants testified without objection to that effect, and the court later instructed them that the issue was whether it was a joint or several purchase.
    5. New Total — Great Weight ob Evidence.
    Where the evidence presented an issue which it was the duty' of the court below to submit to the jury, and there was testimony which, if believed, furnished a basis for the conclusion of the jury, the trial court properly refused to disturb it on tbe ground that it was against tbe weight of the evidence.
    6. Same — Matters Equally Within Knowledge of Deceased— Appeal and Error.
    Where the defense rested principally upon testimony of defendants which was incompetent under section 12553, 3 Comp. Laws 1915, being equally within knowledge of the deceased, the Supreme Court will not use it as a basis for reversal on the ground that the verdict was against the great weight of the evidence, although its admissibility was not raised in the court below.
    Ostrander, C. J., and Moore and Brooke, JJ., dissenting.
    Error to Emmet; Shepherd, J.
    Submitted October 24, 1917.
    (Docket No. 117.)
    Decided June 3, 1918.
    Assumpsit by Mary Davis, administratrix of the estate of Lewis S. Davis, deceased, against Archibald Buttars and another on a contract for the sale of a warehouse and stock of merchandise. Judgment for plaintiff. Defendant Buttars brings error.
    Affirmed.

      C. J. Pailthorp, for appellant.

      Mesick & Miller (Norris, McPherson, Harrington & Waer, of counsel), for appellee.

       See note in 52 L. R. A. 545.

   Bird, J.

Mary Davis, representing her husband’s estate, brought this suit against Archibald Buttars and Charles Bogardus to recover the contract price of a warehouse and stock of merchandise sold to them by her husband for the sum of $1,474.32. It was plaintiff’s claim that it was a joint purchase by the defendants and that both were liable for the purchase price. Defendants denied that it was a joint purchase and asserted that defendant Buttars purchased the merchandise and paid therefor the sum of $474.32, and that Bogardus purchased the warehouse and paid for the same by canceling certain indebtedness owing by deceased to him for lumber. There also appears to have been some claim made by defendants that an agreement was entered into after the purchase to the effect that Buttars should pay for the merchandise and Bogardus the warehouse. Some time after suit was started a receipt signed by Mr. Davis for $474.32 was found and the same was admitted to be genuine, and that part of the claim was eliminated. In response to the suit the defendants filed a joint plea and notice but subsequently the notice was amended by showing that Bogardus had been discharged in bankruptcy. The suit then proceeded against Buttars as sole defendant. The real issue was whether the purchase was a joint one. The jury found that it was and rendered judgment for plaintiff. Defendant Buttars assigns error.

1. An account book in which the deceased entered his sales was offered and received in evidence showing the following entry:

“October 23, 1905.. Sold the warehouse and stock to Buttars and Bogardus for $1,474.32.”

The admission of this entry is said to be error for the reason that no proper foundation was laid. It appears from the testimony of the daughter that her father had no regular bookkeeping system; that the book in question was the only one he kept. In it he entered sales as he made them; that the entry was an original entry, was made by her father and was in his handwriting. Other testimony shows that the entry bears date of the day when the sale was made. We think this testimony fairly satisfied the rule with reference to the admission of books of account. The Seventh-Day Adventist Pub. Ass’n v. Fisher, 95 Mich. 274; Macomb v. Wilkinson, 83 Mich. 486.

The further claim is made in this connection that it was error because it placed before the jury the deceased’s version of the sale. The entry which the deceased made did not differ materially from the ordinary entry in books of account. It was unlike the situation pointed out by counsel in the case of Collins v. Shaw, 124 Mich. 474. The fact that the deceased charged the consideration for the warehouse and stock of goods to Buttars and Bogardus would be some evidence that the sale was made to them. Larson v. Jensen, 53 Mich. 427; Montague v. Dougan, 68 Mich. 98.

2. In that part of the charge in which the court attempted to state to the jury the claims of the defendant, he made use of the words: “They do not give any evidence that would bear directly.” Counsel construes these words as having reference to their claim that the stock was purchased by Buttars and the warehouse by Bogardus and¿ therefore, was a misstatement of fact. We do not so construe the language. We think it is a fair construction to say that this language had reference to another claim of defendants that Davis was owing Bogardus and, therefore, it was arranged that Bogardus should settle for the warehouse. The jury could not have been misled by this language as both Buttars and Bogardus testified without objection that it was a several purchase and the court later instructed them that the issue was whether it was a joint or several purchase.

3. The failure of the court to set aside the verdict because it was contrary to the great weight of the evidence is assigned as error and counsel urges that the claim is without merit and should have been disposed of by the court. Whatever may have been the private opinion of the trial judge concerning the merit of the claim he was confronted by testimony which made an issue of fact as to whether the purchase was a joint or several one, and it thereby became his duty to submit the question to the jury. They found as two former juries had found on the same state of facts. There was testimony which, if believed, would furnish a basis for this conclusion, and we think the trial court very properly refused to disturb it, on the ground that it was contrary to the great weight of the evidence. The defense rested principally upon the testimony of the defendants which was clearly incompetent under the statute, 3 Comp. Laws 1915, § 12553. While no question is raised upon the record concerning the admission of this testimony, we do not think it should be used by us as a basis for reaching the conclusion that the verdict was contrary to the great weight of the evidence.

Steere, Fellows, Stone, and Kuhn, JJ., concurred with Bird, JJ.

Ostrander, C. J.

(dissenting). At the time of the transaction in question here, plaintiff’s decedent, who had conducted a store, kept a single book in which he made entries. The testimony is to the effect that on or about October 23, 1905, he made the following entry:

“October 23, 1905. Sold the warehouse and stock to Buttars and Bogardus for $1,474.32.”

Testimony for plaintiff tended to prove, also, the goods — stock—were inventoried on October 23, 1905, the value as' per' inventory being $474.32, and that whatever the transaction was the warehouse was valued at $1,000. In the opening statement of counsel for the plaintiff, it was conceded that $474.32 had been paid to plaintiff’s decedent. On the evening of October 23, 1905, when the inventory of stock was being taken, there were present in the warehouse plaintiff’s decedent, his daughter, who assisted in making the inventory, and the defendants. Upon leaving, defendant Bogardus said to plaintiff’s decedent, “We will settle this tomorrow.” Plaintiff’s decedent lived until March 6, 1908, in Pellston, Michigan, where, also, defendant Buttars lived during all of that time. Defendant Buttars at once took charge of the stock of goods, hiring some one to sell it for him. Plaintiffs letters as administratrix of the estate of her deceased husband, Lewis S. Davis, were received in evidence. Plaintiff sued two defendants, Charles Bogardus and Archibald Buttars, claiming a joint indebtedness. No other evidence of -the debt or of its character than is here stated was introduced by plaintiff before resting her case.

Upon the part of defendant Buttars (Bogardus having been discharged as a bankrupt) a receipt made by plaintiff’s decedent was produced, which reads:

“$474.32. Pellston, Mich., 11/1/05.
“Received of A. H. Buttars four seventy-four and 32/100 dollars in full for stock and fixtures in warehouse in Pellston, Michigan.
“L. S. Davis.”

It appeared, and is not disputed, that Buttars took possession of and sold the merchandise, while Bogardus took, claimed title to, and sold the warehouse, and had the proceeds of such sale; that plaintiff’s decedent owed Bogardus when the transaction occurred some $1,200; that no credit was in fact given plaintiff’s decedent upon Bogardus’s books for the $1,000, the selling price of the warehouse; that this sum is unpaid unless by the warehouse; that during his lifetime plaintiff’s decedent never sought to collect the $1,000 from either Bogardus or from Buttars, who was a banker in Pellston. Plaintiff’s decedent borrowed money át the Buttars bank in July, in September, 1907, and once at a later date, the amount last borrowed being unpaid at the time of his death.

Everything else aside, in any view of the testimony, the verdict is opposed to the.great weight of it.

Assuming that the book entry was competent evidence, Macomb v. Wilkinson, 83 Mich. 486; In re Bresler's Estate, 155 Mich. 567 (although it is plainly not an entry made in the regular course of a business, and is a memorandum made by a deceased person of an event — of how the entire business and the building in which it was carried on was disposed of), it is not in its terms of any considerable weight as proving a joint purchase by the vendees. It is wholly improbable that it was intended as evidence of the liability of the vendees as other entries made in the regular course of the business showing sales of particular articles were intended. It may have answered the purpose of the seller to record the sale of his goods and building — of his business — for a certain sum to certain purchasers. No credit was given upon the book for the money admittedly paid a few days later by Mr. Buttars. And the undisputed evidence.is that what plaintiff’s decedent owed Bogardus, plus what Buttars paid him, more than equaled the amount set down in the memorandum entry in the book.

With the plea defendant Buttars gave notice of special matter of defense as follows:

“That at the time of the maturity of the claim sued upon by the plaintiff, to wit, on or about October 23, A. D. 1905, the said Archibald Buttars and his codefendant, Charles Bogardus, paid to the said Lewis S. Davis, mentioned in plaintiff’s declaration, the sum of $1,474.32, and that $474.32 of that amount was in cash and the balance consisted of an account, notes and other indebtedness then owing by said Davis to defendant Bogardus; and also that, upon the payment of said $474.32 in cash, the said Davis released the said defendant Buttars from further liability to pay any portion of the remainder of said, sum sued upon.”

The plea of the general issue put in issue every material fact necessary to be proved by plaintiff. Is the notice an admission, available to plaintiff, of a joint sale? I do not think it can be so regarded.

The learned trial judge in giving reasons for denying a new trial adverted to the fact that this was the third trial of the issue, and said that he did not feel justified in setting aside the verdict as against the weight of evidence. His opinion is entitled to, and has, great weight. But as I view the record, the weight of evidence is so overwhelmingly opposed to the finding of the jury that he should have reached a different conclusion.

Moore and Brooke, JJ., concurred with Ostrander, C. J.


author: Bird, J.

text:
    KIOWIATKOWSKI v. DULUTH-SUPERIOR DREDGING CO.
    1. Trial — License—Instructions—Appeal and Error.
    In an action of trespass for damage to plaintiff’s land by depositing thereon material taken out of the river by defendant, a dredging company, the court below was not in error in refusing requested instructions as to a claimed license given to defendant’s principal, where the substance of the request was covered by the charge of the court as given.

      H. Same — License; Assignment of — Issues—Instructions.
    Nor was there any error in refusing a request to charge that said license was transferable, where no issue was raised as to whether the claimed license was assignable, and the court charged that if defendant was acting under the license no recovery could be had.
    3. Same — Consideration—Instructions.
    Where the court instructed the jury that the claimed parol license, if made and acted upon, would be good, regardless of whether there was or was not a valuable consideration, it was not error to refuse a request to charge that if the construction of the roadway would be of present or future benefit to the land there was a good consideration for the permission.

      4. Same — Appeal and Error — License—Revocation—Issues—Instructions.
    Where no claim was made by plaintiff that the license was revoked, but instead he insisted that he never gave any license, an instruction that a parol license was revocable at the pleasure of the licensor, while objectionable because it injected a question about which there was no issue, did not amount to reversible error.
    5. Same — Estoppel in pais — Instructions.
    Where there was testimony supporting defendant’s contention that plaintiff was on the ground every iiay while the forms were being constructed on his land to hold the .dredged materials in place, that he gave some assistance in that work, and that he entered no. protest while the dredging was being done, -it was error for the court below to refuse to submit to the jury the question as to whether plaintiff was equitably estopped from afterward asserting a claim for damages for trespass.
    6. Same — Pleading—Evidence—Issues—Inconsistent Claims— Variance — Instructions.
    Where plaintiff’s declaration, supported by evidence, was upon the theory of a trespass, that defendant had no right to do the act, an instruction by the court allowing recovery upon the theory that defendant had the right to do the act but that it was done in a negligent manner, was inconsistent, and amounted to reversible error.
    Error to Saginaw; Gage, J.
    Submitted October 16, 1917.
    (Docket No. 161.)
    Decided June 3, 1918.
    Case by Wocisch G. Kiowiatkowski against the Duluth-Superior Dredging Company for damages caused by the deposit of water, sand, etc., upon his land. Judgment for plaintiff. Defendant brings error. •
    Reversed.

      Weadock & Weadock, for appellant.

      Raymond R. Kendrick, for appellee.
   Bird, J.

The plaintiff owns and controls about 110 acres of agricultural lands in Buena Vista township in Saginaw county, a portion of which lies along the east bank of the Saginaw river. Defendant is a dredging company which, in 1913, was a subcontractor in a certain government contract, which had for its purpose the dredging and deepening of Saginaw river between Saginaw and Bay City. It is the claim of plaintiff that defendant dredged the fiver adjacent to his premises and deposited thereon, without permission, a large quantity of water, silt, sand, gravel, and soil, thereby injuring his crops, closing ditches and drains which discharged their waters into the river, and depriving him of the use of a wide strip of pasture. To recover compensation for these injuries plaintiff began this suit.

Defendant met this demand by the claim that before making the deposit on plaintiff’s land his permission to do so was secured by Mr. Linton, who, acting as trustee for the board of trade of the city of Saginaw, undertook to, and did, secure the consent of the landowners, including plaintiff, on the east side of the river, to make the deposit on their lands for the purpose of later building a boulevard or river drive on the elevation between Saginaw and Bay City. The questions of fact were submitted to the jury and they found for the plaintiff, and assessed his damages in the sum of $1,250. Defendant assigns- a large number of errors which are all aimed at the instructions given to the jury by the trial court and its refusal to give certain proffered instructions.

1. Defendant complains because the trial court refused the following requests:

“IV. I charge you as a matter of law that if from the evidence you find that the plaintiff for himself and for himself and wife, gave to William S. Linton, as trustee, for the board of trade, right, permission, license and. authority to deposit the material dredged from the Saginaw river in deepening the river, upon the land described in plaintiff’s declaration, for the purpose of building the boulevard between the cities of Saginaw and Bay City, that such right, license, permission and authority would extend to and cover all of the acts done by William S. Linton, as trustee, and all contractors, agents and servants working under him, and the said defendant, its agents, servants and employees, in the work of delivering said dredged material upon said land for the purpose of constructing said boulevard plaintiff cannot recover.
“IV-a-. If from the evidence in this case you find that the plaintiff gave consent to construct the roadway and deposit the dredged material described in plaintiff’s declaration, such consent, authority and permission would not be personal or based on personal confidence, and would be transferable, and all parties, including the defendant acting under it, would have the benefit of it, and would not be liable for doing any act covered thereby.
_ “V. If you find that plaintiff had reason to believe or did believe that the construction of the roadway across the river side of this land would be of present or future benefit to the land or any part of it, the construction thereof was a good consideration to him for permission and authority from him to Linton, as trustee, his agents or-employees, to deposit the material and in so doing they were acting in plaintiff’s interest and would not be liable for any incidental or ordinary damages resulting from or involved in the execution of the plan or in the usual method and conduct of such work done upon plaintiff’s land.”

The cardinal issue on the trial was whether plaintiff had given Mr. Linton a parol license to deposit on his land the materials dredged from the river. Mr. Linton testified that such permission was given. Plaintiff denied that he ever gave Mr. Linton, or any one else, such permission. These requests, in so far as they were material to the issue, appear to have been given.

IV. This request appears to have been covered in substance by the following instruction of the court :

“I further charge you that the acts of the defendant in entering upon the land of the plaintiff, and the deposit by said defendant of mud, sand and water thereon, constitute a trespass upon the land of the plaintiff, and if you shall find that said acts were committed without a license or authority from the said plaintiff to the defendant, the Duluth-Superior Dredging Company, to do that act; that is, when I say the Duluth-Superior Dredging Company, if they have established that Mr. Linton, under the evidence in this case — I instruct you that if Mr. Linton had the license that he claims he had with reference to this matter, then, of course, they would be acting, I instruct you, for him, and within that license. Then and in such case, your verdict should be for the defendant.”

And, in other portions of the charge the court instructed the jury that if defendant were acting under the claimed license to Mr. Linton no recovery could be had,

IV-ct. No issue was raised as to'whether the claimed license was assignable. Defendant’s claim was that it acted for Linton under the license granted to him by plaintiff, and the court charged that if defendant were acting under the license, no recovery could be had. So it does not appear important that the court refused to give this request.

V. We see no occasion for giving this request, inasmuch as the court instructed the jury that the parol license, if made and acted upon, would be good, regardless of the fact whether there was or was not a valuable consideration.

2. While instructing the jury the trial court took occasion to define what a parol license was and explained its legal effect, and among other things said:

“I instruct you that a license in respect to real estate is an authority to do a particular act, or a series of acts, upon the land of another, without possessing any estate therein, that is, any title to the property. And that a license is not assignable and is available only in favor of the person to whom it is granted, and that a license is a personal privilege revocable at the pleasure of the licensor. * * * A license is a matter entirely revocable in the discretion of the man who gives it. When he revokes it that ends the right of the other party.”

It is said to be ,rror because it injected into the case a question about which there was no issue. Counsel are quite right with respect to this. Plaintiff made no contention that he revoked a license theretofore granted, but instead insisted that he never gave any license. While there seems to have been no necessity for this part of the charge, we do not think it was harmful to the extent of being reversible error.

3. Complaint is made because the trial court refused to give the following request:

• “An equitable estoppel may arise where one person has induced another to act upon the supposition that a certain state of facts exists which does not exist in fact, or has pursued a course of conduct in respect to his own property or rights which has led another into expenditures which are to be lost, or into action which is to prove detrimental, if the party so misleading is allowed afterwards to assert rights inconsistent with such previous course of conduct.”

It was the contention of defendant at the trial, and the testimony tended to support it, that Mr. Linton, as trustee for the Saginaw board of trade, attempted to secure from plaintiff the right of way across his land for the boulevard; that plaintiff refused to sell but suggested a trade or exchange might be made for other land in the vicinity; that plaintiff did, however, give Mr. Linton permission to make the deposit on his land, and the inference from the testimony is that the question of trade or exchange would be' taken up later. That plaintiff was there every day while the forms were being constructed on his land to hold the dredged materials in place, and that plaintiff gave some assistance in .that work and that he entered no protest during the time, and neither did he object during the seven days the dredging was being done. Under these circumstances defendant claims that it had the right to take the judgment of the jury as to whether plaintiff acquiesced in the work while it was going forward, and that they should have been instructed that if he did so acquiesce he could not now be heard to say that defendant was guilty of a trespass.

It is nearly always difficult to say whether the doctrine of equitable estoppel should be applied to a given state of facts. It appears to me, however, in the case under consideration that if the jury were impressed with the foregoing testimony they would be justified in finding that plaintiff so far acquiesced in the work as to preclude him from claiming that defendant was guilty of a trespass in making the deposit on his land. But it is urged that mere silence will not preclude him. This undoubtedly is true, but, if defendant’s testimony is to be believed, there was something more than mere silence. The plaintiff not only refrained from making any objection but assisted in erecting some of the forms. He admitted, upon cross-examination, that he saw the forms on the Tyler place immediately north of him, and saw the dredged materials go into them before the work was undertaken on his premises. He made no protest then, nor did he protest while the operations were going on on his premises. Not only by his silence but by his act did he give credence to the talk which defendant understood that he had had with Mr. Linton. I am of the opinion that these facts call for the application of the doctrine of estoppel in pais, and this view is supported by the recent opinion of Mr. Justice Kuhn, in Morrison v. Power Co., 181 Mich. 624. See, also, Blake v. Cornwell, 65 Mich. 467. The failure to give this request was prejudicial error.

4. The jury were further instructed that:

“A license to do an act will be no defense if the act was negligently done so as to cause thereby injury to the plaintiff. That is to say, no matter what arrangements may have been made by Mr. Linton, if you should find that such an arrangement was made, and that the plaintiff here gave his consent to have that driveway put on that land, built up On that land, if the defendant in any way was careless or negligent, and in the manner of constructing, it resulted in damages to this, plaintiff, then he has a right to recover for any such negligence and damage to his land for his crops.”

The objection urged against this part of the charge is that it permitted a recovery upon a different theory from the one claimed in the declaration and testimony. While the action is one “on the case” the declaration is framed upon the theory of a trespass. The complaint therein is that the act was committed, not that the act was negligently done, and plaintiff’s evidence was in accord with that theory. It would, therefore, be inconsistent to permit a recovery upon the theory that defendant had the right to do the act, but that it had been done in a negligent manner. Counsel’s criticism to this part of the charge is well taken.

For the errors indicated the judgment must be reversed and a new trial granted, with costs to the defendant.

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