text:
    MAIER v. WAYNE CIRCUIT JUDGE.
    1. Equity Practice—Legality oe Marriage —Trial by Jury.
    In a suit in equity to annul a marriage, the circuit court has discretionary authority, under 2 How. Stat. § 6622, providing that all issues upon the legality of marriages (except where physical capacity is involved ) shall be tried by a jury of the country, to grant an application for the submission to a jury of the question whether the complainant was mentally competent to enter into the marriage contract, even though the suit has been several times noticed for hearing by the party making the application, and none of the notices have mentioned a jury trial.

      2. Same—Waiver.
    The statute, however, is not mandatory, and the circuit judge, under such circumstances, may properly deny the application on the ground of waiver.
    3. Same—Nature oe Verdict.
    The verdict contemplated by said section is advisory only, and not binding upon the court.

      Mandamus by John Maier, by William T. Dust, his guardian, to compel Willard M. Lillibridge, circuit judge of Wayne county, to set aside an order entered by him in a proceeding to annul a marriage, granting a trial by jury of the issue as to complainant’s mental competency.
    Submitted April 6, 1897.
    Granted in part April 27, 1897.

      Frank T. Lodge, for relator.

      James H. Pound, for respondent.
   Hooker, J.

A bill of complaint was filed in the Wayne county circuit court, in chancery, on behalf of John Maier, by William T. Dust, his guardian, duly appointed on the 24th day of July, 1896, by the probate court of said county (said Maier having been that day, and in that proceeding, adjudged by said court to be an incompetent person), to annul a pretended ceremony of marriage alleged to have been solemnized on the 19th day of June, 1896, procured and brought about by and through the fraud and duress of one Elizabeth Coyle, with whom he afterwards cohabited. The case was brought to an issue by answer and replication, and after several notices of hearing by each party, none of which made mention of a jury trial, the circuit judge, upon application of the defendant, at a time when the complainant was in attendance upon court with his witnesses for trial, made an order that the question whether John Maier was mentally competent be submitted to a jury of the county, the verdict to be reported back to the court; such verdict to be controlling and decisive on the issue thus submitted. Counsel for complainant asks a mandamus to compel the vacation of said order. This order is based on section 6622, 2 How. Stat., which reads:

“All issues upon the legality of a marriage (except where a marriage is sought to be annulled on the ground of the physical incapacity of one of the parties) shall be tried by a jury of the country.”

We have no doubt of the authority of the court to frame an issue and submit it to the jury, under this section ; and we are not disposed to interfere with his discretion, although it was not exercised earlier, or to correct by mandamus a supposed defect in practice, i. e., the failure to base the order upon special motion. The judge had the authority to send the question'to the jury upon his own motion, and nothing would be gained in this case by setting aside his order, as he might make another. The order indicates, however, that the judge considers the verdict of a jury conclusive upon him in a case submitted under this statute, and that defendant had a right to have the question submitted, and it is so contended by counsel for the defendant. It may be that the court would not have submitted it, had he thought that such a verdict is only advisory, and that he would not have made the order but for a belief that the right had not been waived. We therefore think best to discuss the subject.

This statute was before us in the case of Schafberg v. Schafberg, 52 Mich. 429. That was a bill which, as originally filed, prayed for a divorce. After answer and replication, it was heard upon proofs taken in open court without a jury, in accordance with a stipulation. The judge was of the opinion that the evidence did not justify a decree for divorce, but did warrant a decree for annulment of the marriage contract, and gave complainant leave to amend the prayer of the bill by withdrawing the prayer for divorce, and inserting in its place a prayer that the marriage be annulled and declared void, and, without waiting for the amendment, made a decree annulling the marriage on the grounds of fraud, duress, and intoxication. This court reversed the decree, apparently upon two grounds: (1) That the amendment was improper; and (2) that the charges made in the bill were not proved. In discussing the first of these, Mr. Justice Champlin said that “there is a material difference between a bill for a divorce from the bonds of matrimony and one to annul the marriage contract, both in the consequences arising from the decree and the method of proceeding.” He referred to the statute, and intimated that trial by jury is a matter of right, if seasonably and properly applied for, although the provision is not mandatory. It is also plain that the court did not consider a verdict binding upon the court, but that it should be given the usual effect of verdicts in equity cases, and attention is called to the practice in New York under a similar statute. It is said that these comments are obiter dicta. The decision is put upon two grounds, one of which is that the proof failed, and so it is possible to say that the decision would have been the same had the question of amendment been omitted; but it may also be said that the decision of the merits was obiter because the bill must have been dismissed upon the other ground so fully discussed.

But, whatever may be thought of the consideration given to this statute in the Schafberg Case, we may find some light thrown upon it by the case of Brown v. Kalamazoo Circuit Judge, 75 Mich. 274. This case arose upon a statute (Act No. 267, Pub. Acts 1887) which attempted to ingraft trial by jury upon equity practice; and, in a learned discussion of the subject by Mr. Justice Campbell, this court vindicated the constitutional fight of trial by a chancellor in equity cases, closing with the following emphatic utterance:

“Theory amounts to nothing in the history of jurisprudence. The system of chancery jurisprudence has been developed as carefully and as judiciously as any part of the legal system, and the judicial power includes it, and always must include it. Any change which transfers the power that belongs to a judge to a jury, or to any other person or body, is as plain a violation of the Constitution as one which should give the courts executive or legislative power vested elsewhere.”

The effect of this case is sought to be avoided in two ways—First, by impliedly denying its accuracy; and, second, by making an exception of proceedings to annul a marriage. In support of the first contention, counsel refers to the issue devisavit vel non as an instance when the verdict of the jury is binding upon the chancellor. This is said to be an issue sent from a court of chancery to a court of law to try the validity of a paper alleged and denied to be a will; to ascertain whether or not the testator did devise, or whether or not that paper was his will. Such practice obtained in England at an early day. See Webb v. Claverden, 2 Atk. 424, where it was said that a fraud in procuring a will cannot be determined here, but must be decided by a trial at law,” and such trial was directed. Again, in an earlier case, viz., Kerrich v. Bransby, 7 Brown, Parl. Cas. 437, it was said that will cannot be set aside in equity for fraud or imposition, because, if it is of personal estate, it may be set aside in the ecclesiastical court, and, if of real estate, it may be set aside at law on the issue devisavit vel non.” See, also, Shedden v. Patrick, L. R. 1 H. L. Sc. 470. While this subject is now generally regulated by statute, this issue, and the accompanying right to have the verdict followed, probably came to this country as a recognized part of the jurisdiction of chancery, and may possibly not be obsolete in all of the States. But it is a settled rule that this is a single exception to the general rule in chancery that juries are discretionary and advisory. 2 Daniell, Ch. Prac. 1080; 2 Bish. Mar., Div. & Sep. § 675. Doubtless this is varied by statute in some States, where there may be no such constitutional provision as in our own, or where such provision, if one exists, may be differently construed. But this exception does not militate against the case of Brown v. Kalamazoo Circuit Judge, supra.

It is also said that proceedings to annul marriage are exceptional, because not properly belonging to chancery, except as it is given jurisdiction by statute. Counsel states- that the ecclesiastical courts alone had jurisdiction of these cases in England. The authorities, however, seem to hold that equity has jurisdiction over these cases where they can be based upon a ground which is within the cognizance of equity, such as fraud, duress, or want of capacity to contract. In 2 Bish. Mar. & Div. (5th Ed.) § 291, the author says:

“In the United States, as already observed, we have never had ecclesiastical courts; and, before other tribunals can take' cognizance of causes ecclesiastical, they must receive statutory authority. Therefore a court of equity cannot-entertain jurisdiction to avoid a marriage for impotence, or for any other like canonical defect. But in some cases of void marriages our equity courts interfere under their ordinary powers. . Thus they have inherent jurisdiction 'over all questions of fraud, mistake, duress, and lunacy; and, when a marriage is alleged to be void by reason of one of these impediments, they ordinarily entertain the suit for having it so declared.”

To the same effect is the case of Wightman v. Wightman, 4 Johns. Ch. 343, where Chancellor Kent seems disposed to go further than the above rule. See, also, Anon., 24 N. J. Eq. 19.

We are satisfied, that this case is within the general jurisdiction of equity, and therefore clearly within the reason of Brown v. Kalamazoo Circuit Judge, supra, although we do not mean to intimate that the result would not be the same were the cause one which only came within the jurisdiction by virtue of a statute. We think that the statute in question was not mandatory, and might be waived, as said in the case of Schafberg v. Schafberg, supra; and where a case had been noticed for hearing without mention of a desire for a jury, especially when the party is in court ready for trial, the court would be justified in denying trial by jury upon the ground that it had been waived. It does not follow, however, that he must deny it under such circumstances. We are also of the opinion that the verdict is advisory. The order is one that the court might lawfully make, except in so far as it attempts to determine that the verdict should be final. To that extent only will we interfere with ¿t, but in that particular it should be vacated, and the writ will issue requiring it. Beyond this, we leave the subject to the discretion of the circuit judge, who is at liberty to vacate the order or not, as he may deem advisable. Neither party will recover costs.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    HOME LIFE ASSURANCE CO. v. MAYNARD.
    Lire Insurance—Mutual Companies—Form or Policy.
    A mutual life insurance company organized under Act No. 187, Pub. Acts 1887, as amended by Act No. 58, Pub. Acts 1895, providing that any such corporation may provide in its policy for the payment, at stated periods, of premiums or assessments for the purpose of accumulating and maintaining a mortuary, an emergency, and a reserve fund, and that the members may receive the benefit of any surplus not needed by the corporation, is authorized, where its articles of association are framed with respect thereto, to write whole-life policies, term insurance, advance payment insurance, and insurance upon the joint lives of two or more persons.

      Mandamus by the Home Life Assurance Company to compel Fred A. Maynard, Attorney General, to approve relator’s amended articles of association.
    Submitted April 6, 1897.
    Writ granted April 27, 1897.

      John W. McGrath, for relator.

      Fred A. Maynard, in pro. per.

   Moore, J.

The relator is a domestic corporation organized under Act No. 187 of the Public Acts of 1887, as amended by Act No. 58 of the Public Acts of 1895. It has recently amended its original articles of incorporation, and has asked the attorney general to approve of the articles of association as amended, so that they may be approved by and filed with the insurance commissioner of the State. The attorney general has declined to approve of the amended articles of association, upon the' ground that they do not comply with the provisions of the law under which the relator is incorporated. This is a proceeding to compel the attorney general to approve of the amended articles of association. The amended articles contemplate the issuance of:

First. Whole life policies,—that is, policies issued for the life of the insured, upon which premiums are paid quarterly, semi-annually, or annually during life,—which policies are payable only in case of death.

Second. Term insurance,—that is, insurance for five, ten, fifteen, or twenty years, during which term the insured pays stated premiums; the insurance payable only in case of death.

Third. Advance payment insurance,—that is, policies upon which the insured pays a premium for a given number of years, and then ceases to pay; the insurance payable oniy in case of death.

Fourth. Insurance upon the joint lives of two or more persons.

It is the contention of the attorney general that the law does not authorize any of these forms of insurance, and that the issuance of certificates containing such provisions is contrary to pqblic policy; that it is not the purpose of the act to provide for the accumulation of a surplus fund in associations of this character, and that the law does not provide any safeguard for its management when it is accumulated.

Section 1 of the act of 1887 provides who may become a body corporate for the purpose of carrying on the business of insuring the lives of its members. Subdivision 4 of section 3 provides:

“In what manner and. amount assessments, premiums, or payments are to be required from the members, the purposes and objects to which the moneys so realized are to be appropriated, and the names and objects of each fund into which any of such money shall be paid.”

Section 11 of Act No. 58, Pub. Acts 1895, provides:

“That any such corporation may provide in its policy for the payment, at stated periods, of premiums or assessments for the purpose of accumulating and maintaining, and may accumulate and maintain, a mortuary, an emergency, and a reserve fund, and may provide in such policy that the members may receive the benefit of any surplus moneys not needed by such corporation. Nothing contained in this act shall be construed to permit any contract promising any fixed cash payment to any certificate or policy holder, excepting in the contingency of death or total permanent physical disability.”

A consideration of these provisions indicates very clearly that the legislature intended to provide for the accumulation and maintenance of a mortuary fund, of an emergency fund, and a reserve fund. The legislature also provided for the payment, not only of assessments, but of premiums and payments by the members at stated times to be fixed and determined by the articles of association. The legislature also provided by this legislation for the insurance of the lives of the members of the corporations which were incorporated under its provisions, and, if proper rules and safeguards are provided by the articles of association, we can see no good reason why a policy might not be issued upon joint lives as well as to members severally. There is certainly no affirmative restriction to the issuance of such policies.

It is urged that, if the several funds assume large proportions, no proper safeguards have been placed about them. In this connection it ought not to be forgotten that every holder of a certificate of insurance has a voice in the conduct of the business, and the policy holders may direct and control the business of the corporation, if they will. Should the legislation prove to be inadequate to protect the policy holders, the legislature can easily remedy it by creating additional safeguards. We. think the amended articles of association come within the provisions of the law, and should be approved.

The writ will issue as prayed.

The other Justices concurred.


author: Per Curiam.

text:
    HILTON v. COMMON COUNCIL OF GRAND RAPIDS.
    1. Elections—Canvassing Board—Mandamus.
    The circuit court may, in its discretion, entertain an application for mandamus requiring the common council, as a board of canvassers, to canvass the returns of votes for alderman, and issue a certificate to the relator, without a previous application by the relator to the board for such certificate, where it is convinced that such request would not have availed.
    2. Same—Recount—Estoppel.
    A candidate whose election is shown by the face of the returns to the canvassing board is not estopped to question the authority of the board under Act No. 208, Pub. Acts 1887, to recount the votes in certain precincts upon the petition of his rival, because he petitioned for a like recount in some of the other precincts.
    3. Same—Office of Alderman..
    Act No. 208, Pub. Acts 1887, providing for a recount in certain cases of the votes cast at any election, on petition of the candidate aggrieved, does not apply to a contest over the office of alderman of the city of Grand Rapids, since the common council of said city is by charter made the judge of the election and qualification of its own members.
    4. Same—Construction of Charter.
    Title 2, § 20, of the Grand Rapids charter (Act No. 282, Local Acts 1877), which provides that, on the Thursday following a municipal election, the council of the preceding year shall convene, and determine and certify the persons elected to the several offices, must be construed with title 10, § 4, declaring the common council to be the judge of the election and qualification ‘of its own members, and held not to relate to the office of alderman.

      Certiorari to Kent; Adsit, J.
    Submitted April 27, 1897.
    Decided April 30, 1897.

      Mandamus by Charles A. Hilton to compel the common council of the city of Grand Rapids to canvass the original returns of the votes cast for the office of aider-man, and. to issue a certificate of election in accordance therewith. From an order granting the writ, respondent brings certiorari.

    Affirmed.

      Kingsley & Kleinhans (William Wisner Taylor and Peter Doran, of counsel), for relator.

      Henry J. Felker (Moses Taggart, Alfred Wolcott, and Gerrit H. Albers, of counsel), for respondent.

        Mark M. Powers also filed a brief as attorney for William F. Parish, the opposing candidate.

   Per Curiam.

The relator applied to the circuit court for mandamus requiring.the respondent to canvass the returns of the votes cast in the Fourth ward for the office of alderman, and to issue a certificate based upon such returns, the returns showing that relator received a majority of the votes cast. The petition alleged that the members of the common council, sitting as a board of canvassers, had entered upon a recount of the votes, assuming to act under Act No. 208, Pub. Acts 1887. The return to the application for mandamus showed that the recount proceeded in some of the precincts upon the application of relator. These precincts were not the ones in which it was claimed that the board of canvassers had thrown out votes sufficient to defeat relator, and elect his opponent. The circuit judge granted the writ, and the case is here for review on certiorari.

It is first contended that the action is premature, inasmuch as the petition failed to state that relator had demanded of the council that his certificate, based upon the face of the returns, issue. But it appears that the recount upon which the committee was engaged was not completed -until a late hour Saturday night. The regular meeting of the council was on Monday evening, and the petition of relator was filed Monday afternoon. If such a request had been presented, the council could have taken action upon the committee’s recount before the relator would have had an opportunity to present his application. We think it was within the discretion of the trial court to proceed without previous application to the board, if convinced that such request would not avail anything.

It is further claimed that the relator is estopped from questioning the regularity of the work of the committee, inasmuch as he himself petitioned for a recount in some of the precincts. A similar contention was made in Belknap v. Ionia Board of Canvassers, 94 Mich. 516, in which the relator had petitioned for a recount in the county of Kent, and his opponent had petitioned for a recount in the county of Ionia. It was contended that he could not question the recount in either of the counties, but it was said:

“It is, however, alleged that by the original returns relator was elected. His right, therefore, to a certificate, did not depend upon the recount in Kent, and the petition filed in Ionia county was not predicated upon nor rendered necessary by the recount in Kent. Mr. Richardson was in no sense misled or prejudiced by either the recount in Kent or the failure to object to the recount in Ionia, instituted by himself.”

We think that case decisive of this question.

Section 4, tit. 10, of the charter of 1877 (Act No. 282, Local Acts 1877), provides that “the common council shall be the judge of the election and qualification of its own members, and to decide upon and determine contested elections of members thereof.” It has been held in numerous cases that Act No. 208, Pub. Acts 1887, does not apply to a contest over an election to an office as a member of a body which, by law, is made the judge of the qualifications of its own members. This was held in Naumann v. Detroit Board of Canvassers, 73 Mich. 255, and was reaffirmed in Wheeler v. Manistee Board of Canvassers, 94 Mich. 448, and Belknap v. Ionia Board of Canvassers, Id. 516.

It is suggested that the present council is to be the judge of the election of the members of the body, and decide and determine upon contested elections. The reading of this clause would not indicate such a purpose. Title 2, § 20, reads as follows:

“The common council of the preceding year shall convene on the' Thursday next succeeding such election, at 2 o’clock in the afternoon, at their usual place of meeting, and the statement of votes filed with the clerk of the city by the inspectors of election shall be produced by said clerk, when the common council shall forthwith determine and certify, in the manner provided by law, what persons are duly elected at the said election to the several offices respectively.”

It is contended that this latter section confers upon the present council the authority not only to canvass the returns, but to determine what persons are elected to the several offices respectively, and that this implies the right to proceed in any manner provided by law, for the purpose of ascertaining what candidate has received the greatest number of votes. We think, however, that this section should be construed in connection with title 10, § 4, and, so construed, must be held to relate only to those officers the authority to adjudge and determine of whose election and qualification is not vested elsewhere, and that the case must be held to fall within Naumann v. Detroit Board of Canvassers, supra. Reference is made by counsel for respondent to the case of Weston v. Kent Probate Judge, 69 Mich. 600, where it is assumed in the opinion of the court that the preceding council is the judge of the election of the members of the new body. This was not a point in the case, nor was it a case in which the council had assumed to act under Act No. 208, Pub. Acts 1887. The single question in the case was whether, under Act No. 293, Pub. Acts 1887, the probate court had power to canvass the vote. It was held that such power did not exist, upon a ground entirely consistent with that announced later in Naumann v. Detroit Board of Canvassers, supra.

We think the order of the circuit court should be affirmed.


author: Grant, J. Montgomery, J.

text:
    VOIGT v. MICHIGAN PENINSULAR CAR CO.
    Master and Servant — Defective Appliances — Negligence — Evidence.
    Plaintiff’s intestate, a fireman in the employ of defendant, was killed by the bursting of a joint in a steam pipe. While the cause of the explosion was entirely speculative, it was plaintiff’s theory that it was occasioned by a defect in the joint itself, and he introduced evidence to show that the joint had been leaking for a long time prior to the accident, and that afterwards a crack was discovered therein of such a character that it must have existed for some time. There was no evidence that the joint was improperly constructed, that the leakage in itself was a signal of danger, or that an inspection would have revealed the defect. Held, that defendant was not liable. Montgomery and Hooker, JJ., dissented, being of opinion that the testimony of certain experts raised a question for the jury.
    Error to Wayne; Carpenter, J.
    Submitted November 11, 1896.
    Decided May 11, 1897.
    Case by William D. Voigt, administrator of the estate of Charles Lindow, deceased, against the Michigan Peninsular Car Company, to recover damages for the death of plaintiff’s intestate, alleged to have been caused by defendant’s negligence. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Plaintiff’s intestate, Charles Lindow, was employed as fireman by the defendant company, and on the night of October 13th was in exclusive charge of the fire room. There were six boilers in the room. The steam from them was conveyed through a single steam pipe on the west wall of the boiler room, and about 20 feet above the ground. There were two expansion joints in the steam pipe, shaped like two saucers, put together face to face, and bolted along the edge. The steam pipe entered these joints at the center, and they are for the purpose of assisting the pipe in expanding and contracting when in use. The diameter of the steam pipe was about six inches, and that of the expansion joint three feet. These joints were made of iron, and between the flanges at the edge, where the bolt passed through, was placed rubber packing, called a “gasket.” One of the duties of the fireman was to watch the pressure of'steam in the boilers, and see that it did not get too high. About 1 o’clock in the morning, one of these joints burst, and scalded Mr. Lindow so seriously that he died a few days afterwards. At the conclusion of the plaintiff’s evidence, the court directed a verdict for the defendant, and gave its reason therefor in the following language:
    “It appears from the testimony in this case that he met his death from the explosion or bursting apart of this expansion joint connected with this steam apparatus. The rule of law is well settled in such cases that, in order to recover, the employé must show negligence on the part of the management; that is to say, he must show that there was such a condition before .the injury occurred that proper care on the part of the employer would have discovered the danger, and remedied it. Now, the testimony in this case indicates that, after this explosion had occurred, an examination showed that there was a fracture, part of which was old and part new; but it does not show that that old fracture was in such a condition that it could have been discovered before. Indeed, it is not contended that there was any visible evidence of that old fracture before the explosion occurred. The testimony also indicates that, for some time before this explosion occurred, there was an escape of steam or water visible at the rim of these two plates, so called. Now, there is nothing in the testimony that will indicate that that escape of steam or water was in any way the result of the fracture above. All the witnesses testified to that. And, even if there was an indication from the escape of this steam and of this water that there was something wrong at that point, —that is, at the rim,—the evidence in the case does not indicate that this explosion occurred from the effect of that. So that the testimony seems to me to be lacking in its failure to indicate any negligence on the part of the management.”

      Thomas Hislop, for appellant.

      Wells, Angell, Boynton & McMillan (A. C. Angell, of counsel), for appellee.
   Grant, J.

(after stating the facts). The instruction was correct. No complaint was made that the joints were not properly constructed. Plaintiff’s own witnesses testified* that the leaking of water and of steam was no indication that the joint was unsafe, or that there was danger of an explosion in consequence thereof. In other words, it was not a signal of danger. The joint had been leaking for a long time, and it is in evidence that leaks at such joints are common. There is no evidence to show that an inspection would have revealed a defect. The explosion itself is no evidence of negligence. The burden of proof was upon the plaintiff to show some facts or circumstances from which it could be legitimately inferred that the defendant was negligent in the failure to inspect or to repair the defective joint when it had, or should have had, notice of the defect. The cause of the explosion is entirely speculative. It may have resulted from too high pressure of steam, for which the deceased alone would be liable; it may have resulted from a hidden defect, or from a failure to inspect it; it may have been that a close inspection would have revealed the small crack which some of the witnesses testified was found in the piece broken off, and that this crack weakened the joint, and rendered it unsafe. But there was no evidence to sustain any of these theories. Miller v. Railway Co., 90 Mich. 230; Redmond v. Lumber Co., 96 Mich. 545; Robinson v. Charles Wright & Co., 94 Mich. 283. Many other decisions might be cited, but the principle is too well established to require the citation of authorities.

The judgment is affirmed.

Long, C. J., and Moore, J., concurred with Grant, J.

Montgomery, J.

I dissent from the conclusion of Mr. Justice Grant in this case. If, in fact, a- leakage at the joint was not a signal of danger, and if there was no evidence to show that an inspection would have revealed a defect, I should readily concur in the conclusion reached in the main opinion that the defect was a latent one, and that negligence of the defendant was not affirmatively shown. Plaintiff offered testimony tending to show that there was an old crack in the joint, from the inner face of the joint outward, which extended clear through, and that after the 'explosion this old break and the new break ran into one another, so that there was only one side of the break left to both the old and the new. There was also testimony by experts that it would be considered unsafe to continue the use of this plant when there was such a leak that, when pressure was high, large quantities of steam escaped at the expansion plates. An expert also testified that, if there were large quantities of steam escaping at the expansion plates, he would consider that there was something wrong with the expansion joint or plates; and that, if there was steam or water escaping, he should consider it his duty to make an examination to find out where the escape was. If the leak was coming through the plate, it would indicate that there was something wrong about the plate; if it was merely coming from a joint, it would indicate that the joint was leaking, and not the plate. He further testified: “I think it would be somewhat difficult to tell where it might be coming from, looking up at it at the distance of 20 feet-from the ground. I should want á closer examination,— to get close to it. After getting close to it, if I could not find any opening on the outside, or feel the steam coming through at any of the joints, and still there was a leak somewhere, I should consider it my duty to take that plate apart, and examine them inside.” He further testified: “If there is a leak, it might not be just at the joint, or where it is dropping from.” I think, under this testimony, it was a question for the jury as to whether a defect existed which might have been discovered by proper inspection.

Hooker, J., concurred with Montgomery, J.


text:
    SHRIVER v. BEAN.
    1. Firearms—Accidental Discharge—Liability to Trespasser.
    One who is rightfully in possession of property may lawfully arm himself for the purpose of intimidating trespassers, and hence the possession of a weapon will not, of itself, render him liable to a trespasser injured by its accidental discharge.
    2. Assault and Battery—Intent—Instructions.
    In an action for assault and battery by one who was shot while trespassing, where the defense was that the discharge of the weapon was accidental, it was error to charge that the intent must be proved by some credible witness, and by a preponderance of testimony, such statement being calculated to exclude the idea that the intent might be deduced from circumstances shown by different witnesses; especially if the testimony showed that defendant, almost simultaneously with the shooting, threatened to shoot the first man that laid a hand on his property, and the jury were instructed that the intent could not be inferred from a general threat, not relating to plaintiff, which defendant might have made “some time before the shooting took place.”

      Error to Berrien; Coolidge, J.
    Submitted October 23, 1896.
    Decided May 11, 1897.
    Case by Charles W. Shriver against William Worth Bean for assault and battery. From a judgment for defendant, plaintiff brings error.
    Reversed.
    This is an action to recover damages for assault and battery. Plaintiff was an alderman of the city of Benton Harbor, and a member of the street committee. The defendant was the president and general manager of the St. Joseph & Benton Harbor Street Railway Company, a corporation organized under the law for the purpose of constructing and operating a street railway. An ordinance was passed August 17, 1892, granting to the railway company a franchise to extend its tracks over certain streets of the city. It was required to construct and complete said tracks within 10 months from the date of the approval of the ordinance, “otherwise this ordinance to be null and void.” A portion of the track was constructed under this ordinance, but certain changes were considered desirable, and a second ordinance was passed and approved June 7, 1893, by which such changes were made. This ordinance contained the same limitation as to time, and the same provision that it should become null and void upon failure to comply therewith. The company did not complete the entire track within the time limited. So far as the track was laid, it was in compliance with the ordinance, and the space between the tracks was planked, as the ordinance required.
    In the summer of 1894 the common council passed an ordinance for the paving of that portion of the street in regard to which the controversy arose out of which the alleged assault and battery grew. The grade of the street was lowered, thus leaving the railway track higher than the rest of the street. The council claimed the right to require the defendant company to lower its tracks and to pave between them with cedar blocks. The company denied this right. No complaint had heen previously made against the company. The common council, on August 6, 1894, passed a resolution reciting that the company had failed to comply with the ordinance, and declaring that the company had forfeited its franchise, and that it be notified “to at once remove its track on east Main street from Pipe-stone street east to Sixth street.” The city clerk was directed to serve a copy of the resolution upon the railway company. During that week negotiations were pending between the council and the railway company for a settlement. None, however, was reached. These negotiations were continued until the evening of August 11th.
    On that evening plaintiff and the other two members of the street committee made arrangements for the removal and destruction of the track on the following Sunday morning between 4 and 5 o’clock, and for that purpose engaged 20 or more laborers, and assembled the policemen of the city to assist them. The defendant and one Mason, superintendent of the road, learned late that evening of this proposed action. Defendant thereupon notified a deputy sheriff, and on the following morning went, with this officer and some employés of the road, in a motor car, to the place. They had armed themselves with two shotguns and some revolvers. When they arrived at the scene, plaintiff and his party had commencd their work. Both defendant and the deputy sheriff ordered them to desist. They refused. Thereupon defendant stepped from the car, and commenced to throw off the blocks which plaintiff and others of his party had thrown upon the track. They were thrown back as fast as removed. Defendant then returned to the car, and he and Mason came out upon the platform, each with a shotgun in his hand. There was a dispute in the testimony as to what was said. It is the province of the jury to determine which version was correct, and we need not consider it. While plaintiff was proceeding with his work a few feet from the car, the gun in the hands of the defendant was discharged, the main charge taking effect upon the platform of the car, but two ,of the shot, or pieces of shot, struck the plaintiff, one in his hand and the other in his leg. The jury found for the defendant. The further facts, so far as material, will be referred to in the opinion.

      Victor M. Gore, for appellant.

      M. L. Howell, W. C. Hicks, and A. P. Cady, for appellee.
   Grant, J.

(after stating the facts). Counsel for the plaintiff argues (1) that the plaintiff, acting for the city, had the right to remove the track for the purpose of paving the street; and (2) that, if he had not, still the defendant had no right to use a shotgun to prevent its removal. Counsel for the defendant argue (1) that plaintiff was not acting for the city, nor under authority conferred by it; (2) that the defendant had the right to resist the plaintiff and the others with sufficient force to prevent the accomplishment of their purpose. The question of intentional shooting has been disposed of by the 'special finding of the jury that the discharge of the gun was accidental. This finding removes from the case the question whether defendant had the right to intentionally shoot at the plaintiff or others in order to protect the property of the company, and prevent its destruction. Neither need we discuss the question whether the city, acting'through its proper body,- the common council, could remove the track without taking legal proceedings, upon the ground, as claimed, that the failure to comply with the ordinance operated ipso facto as a forfeiture of the franchise granted. It is contended on the part of the defendant that the failure to construct the track along the entire line was the^ fault of the common councils and not of the railway company, in that the delay was requested by the city for the reason that the street was not in condition. The resolution of forfeiture was passed August 6, 1894. Counsel for the plaintiff does not point to any testimony in the record showing that a copy of such resolution was served upon the railway company, and we have been unable to find any. It is clear that, before proceeding to act under that resolution, notice thereof should have been served upon the railway company, and that it should have been given a reasonable time to comply therewith.

Plaintiff was acting without any authority from the council. No record of any action by the council was shown directing him or the street committee to take up this taack. Even the street commissioner, who has general charge of the streets, can perform only such work as the council shall direct to be done. 1 How. Stat. § 2489. If it should be ftmnd upon judicial determination that the destruction of the property was illegal, would the city be liable in damages ? The answer to this question depends upon whether plaintiff was acting under the authority of the city. The common council can act only by resolution or ordinance duly passed, and found in its record. A municipality is not responsible for the acts of its officials unless they are acting within the scope of their authority. The common council had done no more than to declare the franchise forfeited upon the street in question, and had directed the company to remove its track upon being properly notified. No power is anywhere found in the statute authorizing the street committee to assume that the railway is a nuisance, and an obstruction, and to proceed to remove it by force without instruction. They have no more right to do it than would private citizens living along the street. The municipality had not authorized such action, and was not responsible therefor.

Plaintiff was the promoter of, and was engaged in, an unlawful assembly, and was acting in violation of 1 How. Stat. § 2015, prohibiting work on the first day of the week. His sole purpose in so doing was to prevent the railway company from appealing to the courts to protect its rights. No process can be issued or served upon that day. The courts are then closed to the citizen. 1 How. Stat. § 2019; 2 How. Stat. § 7250. Such conduct is not only unlawful, but is unjustifiable, in that it attempts to deprive a party of the process of the court to prevent the destruction of his property until it shall be judicially determined that such right exists. Citizens have the right to assume that the laws of the State will be respected, and that their property will be protected from wanton destruction on the day when the courts are closed to them. Such attempts to substitute force for orderly judicial methods are wrong in both law and morals, and cannot be too severely condemned.

This is not a proper case in which to determine the legal rights of these parties. The railway company was in possession of its property, and using it. He who claims the right to invade this possession must first have that right determined by the courts. He cannot resort to force. In Iron Mountain, etc., R. Co. v. Johnson, 119 U. S. 608, Johnson was in the actual and peaceable possession of 18 miles of railroad, which was built by him for the company, and was running his own locomotives over it. He claimed the right of possession. The company disputed it, and ejected him by force. The court used this language:

‘ ‘ The party so using force and acquiring possession may have the superior title, or may have the better right to the present possession, but the policy of the law in this class of cases is to prevent disturbances of the public peace, to _ forbid any person righting himself in a case of that kind by his own hand and by violence, and to require that the party who has in this manner obtained possession shall restore it to the party from whom it has been so obtained; and then, when the parties are in statu quo, or in the same position as they were before the use of violence, the party out of possession must resort to legal means to obtain his possession, as he should have done in the first instance.”

This doctrine was sustained by Denver, etc., R. Co. v. Harris, 122 U. S. 597, and the court in that case said:

“ The courts of the territory were- open for the redress of any wrongs that had been, or were being, committed against the defendant by the other company. If an appeal to the law, for the determination of the dispute as to right of possession, would have involved some delay, that was no reason for the employment of force; least of all for the use of violent means under circumstances imperiling the peace of the community and the lives of citizens. To such delays all—whether individuals or corporations —must submit, whatever may be the teniporary inconvenience resulting therefrom.”

See, also, Appeal of Easton, etc., R. Co., (Pa. Sup.) 19 Atl. 486.

It follows that the plaintiff was engaged in an unlawful work, in an unlawful assemblage, and was a disturber of the peace. The police of the city) instead of being present to protect plaintiff in his unlawful acts, should have prevented them. The controversy is one which should have been disposed of in the usual and orderly manner by judicial proceedings. The jury has determined that the shooting was accidental, and that the defendant intended no injury to the plaintiff. If the plaintiff in such case was roughly handled and injured while engaged in an unlawful act, the law has no particular tenderness for him, and will not give him damages for the injury received. Galbraith v. Fleming, 60 Mich. 403; People v. Pearl, 76 Mich. 211 (15 Am. St. Rep. 304). The deputy sheriff was authorized by law to prevent the accomplishment of the illegal act, and plaintiff should have desisted when so warned by him.

Under this view of the case, I think there was no prejudicial error in the instruction of the court.

The judgment should be affirmed.

Montgomery, J.

The facts are stated in the opinion of Mr. Justice Grant. I concur in the conclusion reached by him that the plaintiff and his associates were committing an unlawful act in attempting to pull up thé track of the street railway company in the manner in which they did; and, as the jury has found that the discharge of the gun in the hands of the defendant was accidental, but two questions need be considered: First, whether the fact that the defendant had a gun in his possession at the time, without any intention of using it to inflict great bodily harm upon the plaintiff, makes him responsible for the results of an accidental discharge; second, whether error was committed in that portion of the charge which dealt with the question of the defendant’s intention.

1. In the case of Denver, etc., R. Co. v. Harris, 122 U. S. 597, the plaintiff recovered for injuries received while defending property of the Atchison, Topeka & Santa Fé Railway Company, in whose employ he was, and the court assumed that, notwithstanding the fact that he was armed with a gun, this did not preclude a recovery. This holding necessarily involved the proposition that the possession of firearms by one lawfully in possession of property, made use of for the purpose of intimidating trespassers, is not, of itself, unlawful. This being so, an accidental injury, caused while doing a lawful act, does not, generally, create a liability. See Brown v. Kendall, 6 Cush. 292.

2. The circuit judge charged the jury as follows:

“I have said to you that the defendant would not have been justified in shooting—that is, in killing—the plaintiff, or attempting to kill him, or any other person present, but,, if he had killed the plaintiff, he would have been guilty of manslaughter. But, of course, gentlemen, you will be cautious, and scrutinize the evidence in regard to this branch of the case. You cannot infer that the defendant intended to kill the plaintiff from the mere fact that a portion of the contents of the gun were found upon the person of the plaintiff, nor can you infer it from some general threat, not relating to the plaintiff, which he may have made some time before the shooting took place. It is just as necessary to prove the intent as it is to prove any other fact in the case. The question of intent is a question of fact, and, in order to find that the defendant intended to shoot the plaintiff, you must find that that intent has been proved by some credible witness in the case, and by a preponderance of testimony.”

There was testimony on the part of the plaintiff tending to show that when the defendant came out of the car, with the gun in his hands, he threatened to shoot the first man that laid a hand on his property. We think, in view of this testimony, that the instruction as given was erroneous. The statement that the intent must be ‘ ‘ proved by some credible witness in the case, and by a preponderance of testimony," was calculated to exclude the idea that it might be deduced from circumstances shown by different witnesses; and this error is emphasized by the statement. to the jury that it could not be inferred that the defendant intended to kill the plaintiff, from some general threat, not relating to the plaintiff, which he (defendant) may have made some time before the shooting took place. The force of this testimony was for the jury, and the threat referred to was one made immediately preceding the shooting,—almost simultaneous with it, as the testimony would indicate; and from these facts the jury might have been justified in drawing the inference that the defendant intended the consequences of his act. It is true, the defendant’s own testimony, and that of some of his witnesses, disputed the alleged threats, and also tended to show that the act was accidental; but, under this instruction, the testimony of the plaintiff upon this subject was practically withdrawn from the jury.

The judgment should be reversed, and a new trial ordered.

Long, C. J., Hooker and Moore, JJ., concurred with Montgomery, J.