text:
    ROWELL v. CITY OF BATTLE CREEK.
    1. Municipal Corporations — Public Officers — Removal for Cause — Hearing—Police Matron.
    In an action by a police matron of a city for salary due, after a dismissal without any hearing or cause shown, the court erroneously oharged the jury that, because she did nothing towards the performance of her duties after a certain date, she acquiesced in her dismissal, although she had previously notified the police commissioner that she considered her dismissal unlawful and continued to apply for her salary. The question of her acquiescence in the dismissal was a question of fact for the jury.
    2. Same — Salary—Appointive Officer.
    An officer appointed for a definite term, or during good behavior, cannot be removed without notice, hearing, and a determination of the existence of cause for such removal, after giving the officer an opportunity to be heard in his defense.
    3. Same.
    An appointee as police matron of a city, under 1 Oomp. Laws, § 3492, was not removable on the ground of incompetency, without a hearing.
    4. Same — Evidence.
    That salary was paid to another police matron was immaterial where more than one might be appointed.
    5. Same.
    Plaintiff was entitled to show, as bearing on her acquiescence in her removal by the police commission, that she thereafter talked to members of the council and informed them of her claim.
    Error to Calhoun; North, J.
    Submitted January 19, 1912.
    ( Docket No. 127.)
    Decided March 12, 1912.
    Assumpsit by Harriet L. B. Rowell against the city of Battle Creek for salary as police matron. Judgment for plaintiff for less than the amount claimed. Plaintiff brings error.
    Reversed.

      Stewart & Jacobs, for appellant.

      D. C. Salisbury, for appellee.
   Stone, J.

The plaintiff was appointed police matron of the defendant city May 14, 1900, which office she still claims to hold by virtue of such appointment. This is a statutory office, created by Act No. 109 of the Public Acts of 1897. A part of section 2 of said act, being section 3492, 1 Comp. Laws, reads as follows:

“The police matron shall not be appointed for any definite term, but shall hold office until removal. She may be removed at any time for cause by the mayor, or, in cities having a police commission, by said commission, or, in county jails where appointed by the sheriff, by said sheriff; by a written order stating the cause of removal.”

It is the claim of the plaintiff that she has not been allowed to perform the duties of the office since May 1, 1909, although no removal was attempted until July 20, 1909. Her salary was $20 per month, and she brings suit to collect for August, 1908 (the commission claims to have suspended her during that month), and from May 1, 1909, to May 1, 1910, the time of the commencement of this suit, as is shown by the plaintiff’s bill of particulars. The defendant pleaded the general issue, giving no notice of any special defense.

The undisputed testimony shows that it was, and always had been, the custom and duty of the police to notify the matron when her presence was required at the station, and that such custom continued without exception to the time of the trial. The undisputed testimony also showed that plaintiff had never refused to respond to such calls; and, with the exception of a temporary absence from the city, had always been reached when needed. During all this time and up to the time of the trial, no complaint or charge had ever been made against the plaintiff of which she had any notice. At the meeting of the police commission on April 20,1909, the commission passed a resolution to suspend the plaintiff, and at its next meeting, May 4, 1909, the commission changed the word “suspended ” to “dismissed.” Notice of this pretended “suspension” was sent to plaintiff. Such action was taken without previous notice to the plaintiff, and without any complaint or charges being filed with the commission, as required by rule 89 of the Police Manual hereinafter referred to. After such action, and on May 11, 1909, the plaintiff informed the police commission that she considered all previous action against her to be illegal, and notified them of her willingness to perform her duties; also, that she had so notified the chief of police; that she claimed the right to notice if charges were brought against her; and that she expected to continue to perform the duties of her office until it was terminated in accordance with law. At the same time plaintiff, by letter, notified the chief of police that she expected to perform her duties, and would expect him to notify her as he had in the past. These communications were ignored by the police commission and the chief of police, and at a meeting of the commission, held on June 22, 1909, the acting chief was ordered to request plaintiff not to enter the women’s department of the police station. The undisputed testimony shows that the plaintiff held herself in readiness to perform her duties at all times, and claimed to be the police matron of the defendant city; but the action of the police commission and police force made it impossible for her to perform the active duties of police matron.

On July 20, 1909, the police commission passed a resolution purporting to remove and dismiss the plaintiff from the office of police matron. That resolution was as follows:

“Whereas, Mrs. Harriet Rowell was on April 22, 1909, by resolution of this board, suspended from the office of police matron; and
“ Whereas, by reason of the advanced age of said Mrs. Harriet Rowell, she is, in the opinion of this board, unfitted to properly perform the duties of police matron:
“Now, therefore, resolved, that said Mrs. Harriet Rowell be, and she is hereby removed and dismissed from the office of police matron in the city of Battle Creek, because, on account of her advanced age, she has not been, and is not, competent to properly fulfill the duties of said office. This removal and dismissal to take effect this twentieth day of July, A. D. 1909.
“ Resolved further, that the recorder notify Mrs. Harriet Rowell that she has been removed and dismissed from the office of police matron for the city of Battle Creek. Carried.”
Acting under instructions of the police commission, the city recorder inclosed a copy of this resolution to the plaintiff in a letter, bearing date July 21,1909, reading as follows:
“Mrs. Harriet Rowell,
“ Battle Creek, Mich.
Dear Madam:
“Inclosed find copy of a resolution adopted by the police commission of the city of Battle Creek at its meeting held under date of July 20, 1909.
“I was also instructed to say to you that should you care to meet the commission for a hearing, they would be pleased to meet you at a regular meeting of the police commission which will be held under date of August 3, 1909, at eight o’clock p. m.
“Yours respectfully,
“Thos. Thorne,
“ City Recorder.”

It is undisputed that the commission met at 8 o’clock p. m. August 3, 1909, and continued in session until 10 o’clock p. m., and that neither the plaintiff nor any one representing her appeared before the commission. This action of July 20, 1909, was without previous notice to plaintiff, and without complaint having been made or charges filed against her. She presented her bill for salary to the common council in July and October, 1909, and in March, 1910. Payment having been refused, this suit was commenced.

Upon the trial of the case, the court took the position that the action of the commission in attempting to suspend the plaintiff in August, 1908, was illegal, and that plaintiff should recover for that month; further, that it was a question of fact whether she was entitled to recover from May to July 20, 1909, depending upon whether or not she in fact had abandoned the office. The court further held that after July 20, 1909, she was not entitled to any salary because she had not performed any services; that she did not tender any services, and, in fact, acquiesced in an irregular dismissal. Certain rules and regulations were read in evidence from the “Police Department Manual,” a manual provided for the use of the police department as follows:

“ Police Matron.
“ Rule 142. The police matron shall have, subject only to the general control of the authorities in charge, the entire care of all women and children held under arrest in the station in which she serves or to which she is attached, and she may, at any time, call upon any police officer in such station for assistance. She shall reside at or near the station to which she is attached and shall hold herself in readiness to answer any call therefrom, so long as any women or children remain confined therein. She is at all times subject to such rules and regulations as the board of police commissioners may prescribe.
“Disposal of Complaints or Charges.
“ Rule 89. Should verbal complaints be made by any person to an officer of the department against a member of the force, the said officer shall, without delay, inform the chief of same, who shall immediately summon the accused to appear before him. Should it appear to the chief, after proper investigation, that the complaint is of a frivolous character, or of small importance, the chief may, in his discretion, permit the officer to remain on duty, reporting the same in writing to the board at their next regular meeting, with such recommendations as he may deem proper, accompanied by such facts as he may have collected in the meantime. Should the aforesaid verbal complaint appear to be of grave character, or such as demand urgent or immediate investigation, the chief shall immediately suspend the accused, taking possession of his emblems of authority, and cause such charge or charges to be reduced in writing, and transmit a copy thereof to the president of the board without delay, thus insuring a speedy trial of the accused.
“ Immediately following suspension, or upon receipt of written charges, or after proper complaint has been lodged against any member of the force (except as hereinbefore provided), the accused shall be cited by the chief or commissioners to appear before the board at the next regular meeting of that body, or a special meeting that may be called for such purpose.
“ Mode of Procedure at Trial.
“Rule 90. When an officer appears before the board in answer to charges that may have been preferred against him, after hearing a copy of such charges read, should he plead guilty to the same, such plea shall be final, and may be disposed of accordingly. Should the accused, however, plead not guilty, then the commissioners shall set a day for trial, and cite the former to appear. The accused shall furnish the board with the names of all witnesses he may wish to summon in his behalf, and the clerk and the president shall issue proper subpoenas to insure such defendant’s witnesses’ also complainant’s witnesses’ appearance at said trial.”

It already appears that the court directed a verdict for plaintiff for the month of August, 1908. The jury also rendered a verdict for her salary for May and June, and to July 20, 1909. We are not therefore concerned with the charge of the court upon that branch of the case. The court, however, directed a verdict against the plaintiff for all salary claimed after July 20, 1909; and in so charging used the following language:

“ It may be sufficient for the purposes of this suit that if I simply say to you that, as a matter of law, after the date of July 20, 1909, she is not entitled to recover. But, in order that you may appreciate the attitude of the court and feel that it is not an arbitrary matter, I am going to explain to you the reason for taking that position, which is this: It seems from the undisputed evidence that on the date of July 20,1909, the police commission took some action, regardless of whether it was regular or irregular, looking toward the discharge of Mrs. Rowell as police matron, and the undisputed evidence shows that after that date she did absolutely nothing toward the performance of her duties as police matron; in other words, she acquiesced in that attempt to discharge, except possibly with the exception of making an application for the salary which would be incident to the discharge of the duties of the office. Under these circumstances, I say to you, as a matter of law, that she cannot recover for the period of time covered by the declaration in this case following July 20, 1909.”

The plaintiff has brought the case here upon writ of error, and has, among other things, assigned error upon this portion of the charge.

After reading this record carefully, we are of opinion that the court was in error in charging the jury that the evidence was undisputed that the plaintiff had acquiesced in the attempt to discharge her. The question as to whether plaintiff acquiesced in the action of the commission was one of fact for the jury. Attorney General v. Maybury, 141 Mich. 31 (104 N. W. 324, 113 Am. St. Rep. 512). There was testimony that her nonperformance of services was because the police department, acting under instructions from the police commission, made it impossible for her to perform any services. She testified that she had at all times held herself in readiness to perform her duties, and had so notified the proper officers. In our opinion there was evidence enough in the record upon that subject to have carried the case to the jury. However, if the plaintiff was legally discharged as matron by the action of the police commission on July 20, 1909, then the plaintiff would be in no position to recover here for services subsequently rendered, and the instruction of the court as to her acquiescence would be harmless error.

This presents the meritorious question in the case, which is: Was the action of the police commission of July 20, 1909, such as terminated plaintiff’s office of police matron ? The exact question here presented as to an appointive officer for an indefinite term has not been passed upon by this court. It is true that this statute was before this court in the case of McNab v. Common Council of Bay City, 125 Mich. 51 (83 N. W. 1022). But in that case the appointment was “ on probation during the pleasure ” of the commissioners. And it was held that the appointee could not contest the regularity of her subsequent removal on the ground that there was no written order stating the cause of removal. In that case Chief Justice Montgomery used the following language:

“ It is undoubtedly true that the statute contemplates an appointment until removed for cause; but the relator was not given such an appointment, but a probationary appointment during the pleasure of the board only, and accepted such appointment, and asked to be assigned to duty under such an appointment and no other. If there was irregularity in the appointment, the relator was not compelled to accept it, and we do not think she is in a position to now assume an entirely different character of appointment.”

In Mechem on Public Officers, at section 454, that author says:

“Where the appointment or election is made for a definite term, or during good behavior, and the removal is to be for cause, it is now clearly established by the great weight of authority that the power of removal cannot, except by clear statutory authority, be exercised without notice and hearing, but that the existence of the cause, for which the power is to be exercised, must first be determined after notice has been given to the officer of the charges made against him, and he has been given an opportunity to be heard in his defense ” — citing many authorities, both English and American.

In Hallgren v. Campbell, 82 Mich. 255 (46 N. W. 381, 9 L. R. A. 408, 21 Am. St. Rep. 557), the question arose in an action of replevin for some plows and scrapers, with reference to the removal of a street commissioner appointed for the term of one year. In that case it was held that, wherever cause must be assigned for the removal of an officer, he is entitled to notice and a chance to defend. Mr. Justice Cahill, speaking for the court, said:

“We have not found any case where an officer who was appointed for a fixed term (and when the power of removal was not expressly declared by law to be discretionary) has been held to be removable except for cause; and, wherever cause must be assigned for the removal of the officer, he is entitled to notice, and a chance to defend” — citing Field v. Commonwealth, 32 Pa. 478; State v. City of St. Louis, 90 Mo. 19 (1 S. W. 757).

In the last-cited case, which had to do with the removal of a police justice of the city of St. Louis, appointed for a specified term, and removable only for cause, the court said:

“Where an officer is appointed during the pleasure, or where the power of removal is discretionary, the power to remove may be exercised without notice or hearing. But where the appointment is during good behavior, or where the removal must be for cause, the power of removal can only be exercised when charges are made against the accused, and after notice, with a reasonable opportunity to be heard before the officer or body having the power to remove. Gaskin's Case, 8th Term Rep. 209; Field v. Commonwealth, supra; State v. Bryce, 7 Ohio, 82, pt. 2; Dillon, Mun. Corp. (3d Ed.), §§ 250-254.”

The case of Board of Street Commissioners v. Williams, 96 Md. 232 (53 Atl. 923), is a very instructive one upon this subject. By the charter of Hagerstown it was provided that the board of street commissioners—

“Shall appoint regular policemen, not exceeding ten, to serve under such regulations and for such compensation as they (the street commissioners) may direct, * * * and said policemen shall be subject to removal for cause.”

It was held that policemen appointed under the act were entitled to hold their offices so long as they were competent and efficient, and that the power of the board to remove'them could only be exercised for some cause affecting the ability and fitness of the officer to perform his duties, and after notice of charges against him and an opportunity to be heard. In that case (96 Md., at page 237 [53 Atl., at page 924]), the court said:

“ In the case at bar we have a statute authorizing the appointment of regular policemen who ‘ shall be subject to removal for causef and the questions are, first, what is the extent or limit of their tenure when appointed, and, secondly, for what cause may they be removed ? With these questions solved, the legal principles already alluded to will be easily applied.
‘ ‘ The statute fixes no other term or tenure than is included in the provision that the appointees shall be ‘regular policemen’ who ‘shall be subject to removal for cause.’ Looking to the nature of the service to be performed— that is, to the preservation of the tranquillity, the good order and the security of the community — it may well be concluded that- the legislature intended these conservators of the peace, described as regular, therefore, constant, fixed, and not temporary policemen to serve, when appointed, until removed for cause. Fixity of tenure in such positions is the tendency now of an enlightened public opinion. As no definite number of years was named for these regular policemen to hold, and as no other contingency was designated for the termination of their services than a removal for cause, it necessarily follows that when once appointed they are entitled to continue in office until removed therefrom for cause. A removal for cause is, therefore, the only limitation fixed by the statute to their tenure. This being so, an appointment is in legal effect an appointment during good behavior, or so long as the appointee is competent to discharge the duties of the office or efficient in the performance of them. The term is not, therefore, indefinite, nor is it determinable at the mere will of the appointing power. True, the term may be put an end to, but when terminated it must be terminated for cause. An act of the legislature of Maine established a board of police commissioners in Biddeford with ‘ authority to appoint, establish, and organize the police force of said city, including the marshal and deputy marshal, and to remove the same for cause,’ etc. The board of police commissioners removed one Andrews from the force. No charge or complaint had been made against him and no notice was given to him of the pend-ency of any proceeding for his discharge until after he was actually removed. Upon a petition for a writ of certiorari praying that the police commissioners be required to certify to the supreme judicial court their records respecting the removal of the petitioner, so that so much thereof as was illegal might be quashed, it was held that:
“‘The manifest purpose of the act was to create a police force not subject to change from the result of recurring elections, but with a tenure to be cut short only for cause. That means cause affecting the individual to be removed. * * * The board was only authorized to remove for cause, and such removal is a judicial act to be made only upon notice and hearing.’ Andrews v. Police Board, etc., 94 Her 68 (46 Atl. 801).
“* * * When the right to remove can be exercised only for specific cause, or for cause generally, the appointing power cannot arbitrarily remove the officer, and where the removal is to be had for cause, the power cannot be exercised until the officer has been duly notified and an opportunity has been given him to be heard in his own defense. 19 Am. & Eng. Enc. Law (1st Ed.), p. 563g and note 5. Or, as tersely put by the supreme court of Missouri:
“ ‘Where the appointment is during good behavior, or where the removal must be for cause, the power of removal can only be exercised when charges are made against the accused, and after notice, with a reasonable opportunity to be heard before the officer or body having power to remove.’ [Citing cases above referred to.]
“ Holding as we do that an appointment which can be terminated only for cause is not an appointment at will, but is, on the contrary, for a definite term, it follows on the authority of Miles v. Stevenson, 80 Md. 358 [30 Atl. 646], and Field v. Malster, 88 Md. 691 [41 Atl. 1087], without reference to the other cases just above cited, that the appellee was entitled to notice of the charges preferred against him and to an opportunity to be heard. As no such notice or opportunity was given, the removal of Williams was unauthorized, and he is entitled to be restored to his office.”

See, also, Todd, Mayor, v. Dunlap, 99 Ky. 449 (36 S. W. 541, 18 Ky. Law Rep. 329); Lease v. Freeborn, 52 Kan. 750 (35 Pac. 817). A very instructive note upon this subject, appended to the case of Kendrick v. Nelson, is to be found in 13 Am. & Eng. Ann. Cas., at page 993. We are, therefore, constrained to hold that, where an officer is removable for cause, he is entitled to notice, and a chance to defend. We conclude, therefore, that the action of the police commission of July 30, 1909, was of no effect. As the case must go back to the circuit for a new trial, we will call attention to some other questions raised by appellant in the assignments of error.

It is urged that evidence of abandonment and of acquiescence was not admissible under the general issue. We have looked in vain for any ruling or exception on the subject, and must hold that the question is not before us.

The fourteenth and fifteenth assignments of error relate to rulings as to payments having been made to another matron. We think that this evidence was immaterial and irrelevant, as there may be more than one matron appointed under the terms of the statute.

The seventeenth assignment alleges error in sustaining the objection of defendant’s counsel to the following question asked plaintiff:

“ I will ask you whether you have talked since the 20th of July, 1909, with members of the common council, and informed them of your claim against the city, or your rights, or what you believed to be your rights?”

We think that it would have been competent for the plaintiff to testify upon this subject, as bearing upon the questions of abandonment and acquiescence.

Other questions raised and discussed by counsel are not likely to arise upon another trial.

For the errors pointed out, the judgment of the circuit court is reversed, and a new trial granted.

Mooke, O. J., and Steere, McAlvay, Brooke, Blair, and Ostrander, JJ., concurred. Bird, J., did not sit.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    PEOPLE v. UPTON.
    1. Assault and Battery — Ejection of a Trespasser — Husband and Wife — Dominion of Husband over Wife’s Homestead.
    In a prosecution for assault and battery committed upon premises belonging to a married woman whose husband was shown to have left her with the alleged intention of remaining away, but, returning, found respondent’s wife on the premises where she had been invited by the owner, and, after ordering her off, attempted to lead her from the premises, when her husband, the respondent, interfered, and, being also ordered off, engaged in an encounter with the husband of such owner; and, upon evidence disputing respondent’s claim that the husband had abandoned his wife, respondent was entitled to have submitted to the jury the question of abandonment and the issue as to which party was the aggressor.
    2. Same.
    If respondent was on the premises at the invitation of the owner, wife of the complaining witness, he was not a trespasser; whether he was bound to leave at the demand of complaining witness depends on the determination of ¡the question whether or not the witness had in fact abandoned dominion over the wife’s dwelling.
    8. Witnesses — Marital Relations — Competency of Husband.
    Under section 10313, 3 Comp. Laws, providing that the wife shall not be examined as a witness against her husband without his consent, etc., the wife was a competent witness concerning an affray in which respondent assaulted her husband, though her testimony might tend to charge her husband with a crime.
    4. Same — Prosecution’s Duty to Call Eyewitness.
    The prosecution, at respondent’s request, should have been required to call the wife as a witness.
    Exceptions before sentence from Mecosta; Cogger, J.
    Submitted January 18, 1913.
    (Docket No. 129.)
    Decided March 12, 1912.
    George Upton was convicted of assault and battery. Reversed.

      Franz C. Kuhn, Attorney General, and Arthur J. Butler, Prosecuting Attorney, for the people.

      Hatch, McAllister & Raymond, for respondent.
   Ostrander, J.

Respondent was convicted of an assault and battery committed July 28, 1911, upon one Richard E. Oxford. It is the theory of the prosecution, supported by testimony, that Oxford ordered the wife of respondent to leave certain premises where he found her talking with his (Oxford’s) wife and to go home; that she refused to do so, and he took her by the arm in an attempt to lead or push her from the premises; that she resisted and finally sat down on a lilac bush, and as a result her sleeve, and perhaps some other of her apparel, was torn and her arm was bruised. Oxford then went into the dwelling house upon the said premises, and shortly thereafter the respondent appeared upon the scene and the premises, and Oxford, coming out upon the porch of the house, was asked by respondent what he had been doing and what he meant by having rows with women and by abusing his (respondent’s) wife and calling her names, or words to that effect. Respondent was ordered by Oxford to leave the premises. Instead of doing so, he walked to the porch upon which. Oxford was standing, Oxford put his hand on respondent’s shoulder, respondent put his foot on the lower step, caught hold of and struck Oxford, and in the mélée that ensued Oxford was struck several times by respondent.

It is the theory of the defendant, supported by testimony, that the title to the premises in question was in Mrs. Oxford; that both Mrs. Upton and her husband, the respondent, were upon the premises by the invitation and with the consent of Mrs. Oxford. It is their contention, further, that neither Mrs. Upton nor her husband, the respondent, were under any obligations to obey the requestor demand of Oxford that they leave the premises, they not being trespassers there, and that he had no right or authority to enforce his request or demand by putting either of them off of the premises. In accordance with this theory, they offered testimony tending to prove that some trouble existed between Oxford and his wife; that for two weeks he had not been at home; that before his last departure he had stated to others that he was through there and did not propose to live there any more, had told certain dealers in groceries and other household supplies not to furnish any more supplies to the house except upon his written order, had left his family destitute of money and other means of support, and had otherwise signified by his conduct and behavior that he had abandoned the premises. The people were permitted, over objection, to prove that Oxford had made considerable improvements upon the said premises so belonging to his wife while she owned the title. The court instructed the jury that, under the undisputed evidence, Oxford had a lawful right on the premises and the right to eject respondent therefrom. The court was requested to charge the jury:

tc (5) It is the claim of the prosecution in this case that the defendant, George Upton, was a trespasser upon the premises where the assault is alleged to have taken place. Defendant claims that he was on the premises at the invitation of Mrs. Oxford, the wife of the complaining witness, and that Mrs. Oxford was at that time the owner of said premises, and that, at that time, and for several weeks prior thereto, the complaining witness, Mr. Oxford, had abandoned said premises as a home and was making his home elsewhere because of family differences; that the said Mrs. Oxford was in fear of her husband and called defendant to come upon said premises for protection. If you find these facts to be true, then defendant was not a trespasser and was rightfully on said premises and had a right to resist any attempt on the part of Mr. Oxford to remove him from said premises, provided that he did not use excessive force.
‘c (6) The wife’s dwelling house is that of the husband only while he makes it such in fact, and when he has abandoned it, and it is no longer his abode, it then becomes the right of his wife to invite persons to the premises, and the husband has no right to eject such persons therefrom. If, therefore, in the present case, you find that Mrs. Oxford was the owner of the premises on which the alleged assault occurred, and that Mr. Oxford had abandoned said premises as a home, and that it was no longer his abode, the said Oxford had no right to eject the defendant from said premises.”

Error is assigned upon the ruling admitting testimony showing improvements made to the property by Oxford, upon the refusal to charge as requested, upon the charge as given, and upon rulings excluding certain testimony tending, it is claimed, to show abandonment of the premises.

Both Mrs. Oxford and Mrs. Upton appear to have been eyewitnesses to the affray. At the trial the respondent asked that the prosecution be required to call Mrs. Oxford as a witness for the people; she having answered that she was willing to testify. The court declining to make such an order, he offered to call her as a witness for the respondent, which the court refused to permit; her husband, Oxford, declining to consent thereto. These rulings were excepted to and are alleged to have been error. The respondent asked that the prosecuting attorney be required to call Violet Oxford, a girl 11 years old, daughter of the complaining witness and of Mrs. Oxford, as a witness for the people. This the court refused, stating that the respondent could call her as a witness if he cared to do so. This ruling is assigned as error. This statement is sufficient to show the legal questions presented.

Whether Oxford had abandoned his home was a question of fact, and, if material, should have been submitted to the jury. Whether or not it was a material fact depended upon the view the jury should take of the testimony tending to prove that respondent, if rightfully on the premises, was the aggressor in the physical encounter which occurred. But it cannot be held that respondent, in going upon the premises, was a trespasser if he was there by invitation of Mrs. Oxford. Whether he was bound to leave them at the demand of Oxford would depend in this case upon whether Oxford had in fact abandoned dominion over them.

With respect to the affray and its attendant circumstances, Mrs. Oxford was a competent witness. Her husband was not a party to the proceeding, and, in a legal sense, her testimony concerning what occurred would be neither for nor against him. Parsons v. People, 21 Mich. 509. See People v. Hendrickson, 53 Mich. 525 (19 N. W. 169); People v. Whitney, 105 Mich. 622 (63 N. W. 765). The statute invoked is 3 Comp. Laws, § 10213, which provides that a husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent. When respondent offered Mrs. Oxford as a witness, the prosecuting attorney stated in making his objection that any testimony she might give would have a tendency to destroy marital relations contrary to public policy. It is also urged in this court that, under the circumstances disclosed, the testimony of the wife might, and probably would, tend to prove that her husband was the aggressor, or otherwise in the wrong, and so charge him with criminal conduct. These considerations have, it appears, influenced courts in the construction of statutes similar to our own. In People v. Fowler, 104 Mich. 449 (62 N. W. 572), respondent was charged with the crime of adultery. The prosecution offered the testimony of the complaining witness to prove that he had found respondent concealed in the sleeping room of his (witness’) wife. The testimony was excluded. The prosecuting attorney in his opening to the jury had stated that he expected to prove the fact. This statement was assigned as error in this court; no proof of the fact having been made. In this court the prosecuting attorney urged that the testimony relied upon to prove the fact, namely, that of the complaining witness, was competent and wrongly excluded by the trial court. It does not appear that counsel for respondent argued this point. This court without discussing the question answered the contention by saying that the testimony was properly excluded, and citing Hanselman v. Dovel, 102 Mich. 505 (60 N. W. 978, 47 Am. St. Rep. 557), “and cases there cited.” The case of Hanselman v. Dovel was a civil action for damages of a criminal conversation between defendant and plaintiff’s wife and the question involved was whether, after the divorce of plaintiff and his wife, the plaintiff was a competent witness to testify to the charge of adultery. It was said that the testimony proposed to be given by the husband, plaintiff, would affect the character of the wife, was offered in an action instituted by him in consequence of adultery, and was within the prohibition of the statute which forbids either in such a proceeding to testify. It seems to be clear that Hanselman v. Dovel is not authority for the ruling made in People v. Fowler. We do not find that People v. Fowler has been followed, certainly not in cases not involving adultery.

We are called upon to construe the statute, and, of course, with some reference to the nature of, and the reason for, the privilege therein recognized. As applied to this case, we are satisfied with the reasoning employed by Mr. Justice Campbell in Parsons v. People, supra, and regard the decision reached in that case as controlling upon the question of the competency of the wife to testify to what was said and done upon the occasion in question. It is therefore unnecessary to enter upon a discussion of the subject or to review authorities. A discussion of the question of what testimony is anti-marital, with a copious citation of authority, may be found in 3 Wigmore on Evidence, § 2234 et seq. The following authorities support the conclusion we have reached.: People v. Langtree, 64 Cal. 256 (30 Pac. 813); State v. West, 118 Wis. 469 (95 N. W. 521, 99 Am. St. Rep. 1002); State v. Nelson, 39 Wash. 221 (81 Pac. 721); Campbell v. State, 133 Ala. 158 (32 South. 635); Ware v. State, 35 N. J. Law, 553; Higbee v. McMillan, 18 Kan. 133. See, also, 1 Wharton on Criminal Evidence (10th Ed.), § 396; 1 Enc. Ev. p. 633. The court was in error in not requiring the prosecuting attorney to call Mrs. Oxford as a witness and in refusing to admit her as a witness upon the offer of respondent.

Whether Violet Oxford was in fact an eyewitness of the affray seems to be disputed. It is singular that she was not interrogated upon the subject. It does not appear that any difficulty will be met with in ascertaining the fact, and the prosecuting attorney admits that he should call all eyewitnesses unless, in cases of misdemeanor, the testimony will be merely cumulative. It is not likely that upon a new trial there will be a failure to observe the governing rule.

It must be certified to the circuit court that the exceptions, which have been referred to, are sustained, and that an order should be entered setting aside the conviction of respondent and granting a new trial.

Moore, O. J., and Steere, McAlvay, Brooke, Blair, and Stone, JJ., concurred. Bird, J., did not sit.


author: Stone, J.

text:
    MARKOFF v. DETROIT UNITED RAILWAY.
    1. Pleading — Evidence—Personal Injuries — Assault.
    To exclude evidence of injury to plaintiff’s heart was error, in a personal injury action wherein plaintiff’s declaration alleged that he was hurt, injured, bruised, wounded, cut and lacerated by defendant’s conductor, “in and about his head, neck, shoulder, sides and arms, and then and there received permanent injuries to his head and base of his brain, from which he has suffered through faintness, dizzy spells, nausea and hypochondria,” etc., and further counted on severe and permanent internal injuries.
    2. Same — Evidence.
    Evidence on the part of plaintiff that he had been in the habit of boarding the oar in the manner adopted by him at the time of the injury, and had never been warned by the conductor to wait until the passengers alighted, that the conductor ordered him off and assaulted him with great violence, being contradicted by defendant’s witnesses, presented an issue of fact for the jury.
    Error to Wayne; Mandell, J.
    Submitted January 18, 1912.
    (Docket No. 53.)
    Decided March 12, 1912.
    Case by John Markoff against the Detroit United Railway for personal injuries. Judgment for defendant. Plaintiff brings error.
    Reversed.

      William Loóla, for appellant.

      Corliss, Leeie & Joslyn and Benjamin S. Pagel, for appellee.
   Stone, J.

The plaintiff brought suit to recover damages to his person and property by reason of an alleged unprovoked, vicious, and unjustifiable assault committed upon him while boarding a standing car of defendant, by one of its conductors, at the trolley station of the defendant on Fort street west and Woodward avenue, in the city of Detroit, on January 12, 1910. In his declaration, after alleging the circumstances of the assault, he set forth his injuries in the following language:

“ And the plaintiff further avers that by reason of the negligent, careless, reckless, improper, and vicious conduct of the said defendant, its conductors, agents, servants, employés in charge of the said car as aforesaid, said plaintiff then and there became and was greatly hurt, bruised, injured, wounded, cut, and lacerated in and about his head, neck, shoulder, sides, and arms, and then and there received severe and permanent injuries by reason of the premises to his head and base of his brain from which he has suffered through faintness, dizzy spells, nausea, and hypochondria, which has caused him to lose sleep, and also by reason of the premises said plaintiff herein has suffered great and excruciating pains in and about his head and base of his brain for a long space of time, to wit, from thence hitherto, and is informed by his physician that he will continue to suffer from such headaches, faintness, dizzy spells, and nausea for a long time to come, and further, that by reason of the premises aforesaid said plaintiff suffered a severe and permanent injury to his face and neck, his said face and neck being then and there cut, bruised, lacerated, and injured, causing him great pain for a long space of time, to wit, from thence hitherto, and said plaintiff was also by reason of the premises injured internally as well as externally, and further, that by reason of the premises aforesaid the said plaintiff suffered a severe and permanent injury to his neck, shoulders, sides, and arms, the ligaments tendons, sinews, muscles, and cords of his neck, shoulders, arms, and sides, being then and there twisted, tom, wrenched, sprained, and greatly and permanently injured, causing said plaintiff most excruciating pain and agony of both mind and body for a long space of time, to wit, from thence hitherto, and plaintiff will continue in the future to suffer from said injuries as aforesaid for a long space of time; and plaintiff also by reason thereof had his watch torn from his coat and lost the same and has not recovered his said watch and chain up to this time, and the said plaintiff by reason of the premises and the many injuries so received as aforesaid then and there and thereupon became and was sick, sore, lame, and disordered, and so remained and so continued for a long space of time, to wit, from thence hitherto, and from which injuries he will continue to suffer during the remainder of his natural life, as his said injuries are permanent and incurable; and because of the said unwarranted and negligent and improper assault as aforesaid, plaintiff herein has suffered great mental anguish and pain, humiliation, and distress by reason thereof, and from which injuries he will be deprived of social enjoyment and companionship in the future, and will suffer great mental as well as great bodily pain, anguish, weakness and distress.”

On the trial the plaintiff gave evidence tending to show that he was in the employ of the American Brewery Company, located at Delray; that for many years it was the custom of the plaintiff to board a car of the defendant on what is known as the Fort line at the trolley station located on Fort street west, and the city hall, ride around the loop on Cadillac square, and thence proceed west on Fort street to his destination at Delray; that on the morning in question he left his home, took a Third avenue car, and obtained a transfer to the Fort line; that when he arrived at Woodward avenue and Fort street west, he saw a Fort car standing there, and he hurried over and got on the rear platform, as was his custom; that the conductor immediately ordered him off, and at the same time struck him several violent blows upon the chest and face, and spat in his face, and a scuffle ensued in which the plaintiff was injured. The plaintiff distinctly testified that he had no previous notice or warning, either that morning or before, from the conductor, not to board the car at that place, and that no passengers were getting off at the rear end of the car at the time he boarded it, and the plaintiff was corroborated by other witnesses.

On the part of the defendant there was testimony tending to show that the conductor had on two or three previous mornings warned the plaintiff to keep off the car until the passengers had alighted; that it was the custom of 20 or 30 men to board this car at the place indicated, every morning before the passengers had alighted; that plaintiff seemed to be the first one to get on the car; that a number of passengers were getting off the rear end of the car at the time he detained the plaintiff. It was also testified to that the conductor made no assault upon the plaintiff, but simply took hold of him to detain him until the passengers alighted.

Upon the trial the plaintiff testified as follows:

“I attended the doctor a couple of times — Dr. Berger. I suffered pain. It hurt me where I was struck, right in the heart; that was where I was struck. * * * My heart never bothered me before the accident, and I did not have headaches before that.”

The defendant’s attorney moved that the testimony in regard to the plaintiff’s heart trouble be stricken out, as not covered by the declaration. This motion was granted, whereupon plaintiff’s attorney excepted.

The case was submitted to the jury under the charge of the court. In his charge the trial judge, among other things, said:

“The conditions which obtained when the trouble which is the subject of this lawsuit occurred are not in dispute. Briefly stated, they are these: A street car that the plaintiff sought to board was bound east on Fort street, and was going, shortly after, west, and was going around what is known as the Cadillac square loop in this city. * * * On that car there were certain passengers, and those passengers had to alight at Woodward avenue, and after the passengers alighted the car was then turned around, after going a couple of blocks it would turn around and go west, and it appears from the evidence that is undisputed that certain passengers that were in the habit of taking that car, and others, early in the morning, were in the habit of getting on the car before it started westward, and it appears from the undisputed testimony in this case by doing that, inconvenience was suffered by those who were on the car when it was bound east, and because of that the conductor sought to keep those who desired to go west on the car off from the car, until other passengers had alighted, and until the car had started toward the west. It appears from the undisputed testimony in this case that a statement of the desire and wish of the conductor had been imparted, on previous occasions, to this plaintiff, and it appears further the conductor was in charge of the car.”

The jury returned a verdict in favor of the defendant of no cause of action. There was a motion for a new trial, and among the errors complained of by the plaintiff was, because the court erred in excluding plaintiff’s testimony respecting heart trouble. The motion for a new trial was denied, the reasons for such denial were excepted to, and the plaintiff has brought the case here upon writ of error. Among other things, he alleges error in the ruling striking out the testimony of the plaintiff relating to his heart trouble. Also, to that part of the charge above quoted which states that the conditions which obtained when the trouble arose were undisputed, and that it appeared from the undisputed testimony that a statement of the desire and wish of the conductor had been imparted on previous occasions to the plaintiff, relative to waiting until the passengers on the car had alighted before boarding the ear, and that passengers were alighting at the time.

Did the trial court err in its ruling striking out the testimony of the plaintiff relating to heart trouble, for the reason that it was not covered by the declaration ?

In view of the repeated decisions of this court, we are of opinion that the ruling was erroneous. See the following cases: Montgomery v. Railway Co., 103 Mich. 46 (61 N. W. 543, 29 L. R. A. 287); Leslie v. Traction Co., 134 Mich. 518 (96 N. W. 580); Comstock v. Township of Georgetown, 137 Mich. 541 (100 N. W. 788); Renders v. Railroad Co., 144 Mich. 387-391 (108 N. W. 368); Groat v. Railway, 153 Mich. 165-167 (116 N. W. 1081).

Was there error in that part of the charge above indicated ?

Yfe are of opinion that there was a sharp conflict in the evidence upon the questions above stated, and that the court erred in instructing the jury that the evidence was undisputed. We think that this part of the charge was prejudicial to the plaintiff. Hengesbach v. Railway, 147 Mich. 681 (111 N. W. 345); Plefka v. Railway, 155 Mich. 53 (118 N. W. 731).

The other errors complained of relate to the refusal to grant a new trial on the ground of newly discovered evidence, and the questions are not likely to arise upon another trial.

For the errors pointed out, the judgment of the circuit court is reversed, and a new trial granted.

Moore, C. J., and Steere, McAlvay, Brooke, Blair, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Brooke, J.

text:
    WETZEL v. BOLSTER.
    1. Animals — Keeper of Dogs — Words and Phrases — Statutes.
    In an action under the statute, 2 Comp. Laws, § 5593, for injuries caused in the public highway to plaintiff by defendant’s dog, it was proper to instruct the jury that defendant, who had, before the injury, placed the dog in the hands of a third party to keep, subject to defendant’s right to sell the animal, was not liable as its keeper within the meaning of the statute.

    2. Same — Estoppel—Admission of Liability.
    Nor .could defendant be held liable in trespass on the case upon his statement or admission before suit was instituted that he owned the dog and assumed all responsibility for the damages.
    Error to Calhoun; North, J.
    Submitted January 24, 1912.
    (Docket No. 133.)
    Decided March 12, 1912.
    Case by Albert W. Wetzel, by his next friend, against Robert J. Bolster for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.
    Plaintiff sued to recover damages sustained in consequence of being bitten by a dog belonging to defendant. The action is brought under the statute. 2 Comp. Laws, § 5593. It appears that the defendant, while confessedly the owner of the dog, was not its keeper at the time the injury was inflicted. Defendant resided at the city of Battle Creek, and, some six weeks prior to the time of plaintiff’s injury, had turned the dog over to one Bock, who lived in Battle Creek township, under an arrangement that. Bock was to keep the dog, but that defendant was to have the privilege of selling him if a customer was found. The injury was inflicted upon the plaintiff in the highway in front of Bock’s premises. A verdict of $300 having been rendered against defendant by the jury, the court, upon motion, doubled the verdict, added $5 costs, and entered judgment for $605. Defendant reviews the case in this court by writ of error.

      Edwin C. Lewis, for appellant.

      Joseph L. Hooper and Howard W. Gavanagh, for appellee.

       Who is the keeper or harborer of a dog, see note in 17 L. R. A. (N. S.) 431.

   Brooke, J.

(after stating the facts). Under the authority of Burnham v. Strother, 66 Mich. 519 (33 N. W. 410), the court properly charged the jury that:

“In the contemplation of the law, Mr. Frank Bock was the keeper of the dog whose actions are complained of in this case, on the day in question, and that the defendant, Mr. Bolster, was not such keeper, and that he is not legally liable to the plaintiff in this case, and your judgment will therefore be for the defendant.”

To this direction, the court added the following:

“Unless the defendant, Bolster, has admitted his liability for the damages done by the dog in such a way as to estop or prevent Mr. Bolster from denying his liability at this time. If you find from the evidence that, since the time of the attack upon the boy by the dogs, Mr. Bolster has admitted that the dog was his, and that any liability for the injury was his, and that he admitted the liability, and that such statement was made by Mr. Bolster to Mr. Cavanagh, who represented the plaintiff, at a time when Mr. Bolster knew that the information was sought for the purpose of ascertaining who was responsible for the damage done by the dog, and of holding Mr. Bolster later liable, in case he was the person chargeable, then Mr. Bolster is now estopped from claiming that he is not liable, because the dog owned by him was at the time in the keeping of some other person. * * * The first question for you to consider is whether or not, under the law and the evidence, Mr. Bolster is liable at all to the plaintiff (that is, whether he has admitted his liability for these particular acts of the dog in such a way as to work an estoppel); that is, to prevent him from now denying that he is the person who is liable, if any one is. Now, gentlemen, unless under the law and the evidence as given you here you find that the defendant has made such admissions under such circumstances as have been indicated as being necessary under the law to estop him from denying his liability, it would be your duty to find for the defendant, because there is no other theory upon which he can be held liable under the law of this case, except the one of estoppel.”

This excerpt from the charge is based upon the following testimony, given by Mr. Cavanagh:

I am a practicing attorney in the city of Battle Creek, and an attorney of record in this case, and am acquainted with Mr. Bolster, the defendant in the case. I first became acquainted with him some time in April, 1910, in his store in the city of Battle Creek. I went to see him in relation to this matter, this case of Mr. Wetzel’s boy. At that time, I had been retained by Mr. Wetzel as the attorney in this case.
“Q. State whether or not you went to see Mr. Bolster with reference to a possible disposition of the case outside of court ?
“A.'I did.
“Mr. Lewis: I object to that. I do not think any matter of that kind is competent.
“Mr. Hooper: What we expect to show by this is not a proposed settlement, and it is not with that in view that we offer it. What we expect to show is what Mr. Bolster and Mr. Bock said.
“Mr. Lewis: I object to what he told him.
“The Court: You may take the testimony.
“Mr. Lewis: Exception.
“Q. Now, eliminating any question, except that of the conversation about the dog, state what your talk with Mr. Bolster was with reference to this affair.
“A. Mr. Bolster told me that this was his dog, the larger dog, I understood it.
“Q. Do you know the name of this dog, and was that discussed by him?
“A. Well, I am not sure as to the name of the dog. He said that the dog was his, and that the dog had been out there to Mr. Bock’s place; but he did not want Mr. Bock to have any trouble in relation to the matter at all, and that he assumed all the responsibility.”

Cross-examination by Mr. Lewis:

“Q. Well, did you act upon that suggestion ?
“A. In what way ?
ICQ. Did you govern yourself accordingly, and from that time consider that Mr. Bolster was the one man responsible in this case ?
CÍA. I think so, so far as the dog was concerned.
(iQ. Do you mean to say that Mr. Bolster said on that occasion that he would assume any legal responsibility of Frank Bock’s, if Frank Bock should be the man that was legally responsible in this case ?
“A. I mean just what I said. He said that he did not want Mr. Bock to have any trouble about it.
“ Q. He did not say that he was the keeper of the dog, did he ?
“A. No, sir; he said that he was the owner of the dog.”

Defendant denied that he made the statements attributed to him in this interview; but, for the purpose of determination, those statements must be considered as having been made by him, as testified to by Mr. Cavanagh. Assuming, therefore, that defendant said that he did not want Mr. Bock to have any trouble in relation to the matter at all, and that he assumed all the responsibility, the question presented is: .Does this statement make the defendant liable for damages for which he could not have been held had the statement not been made ?

It will be noted that the only statement of fact contained in the alleged admission is that defendant was the owner of the dog which caused the injury. This fact was already known to plaintiff; for on the day of the injury defendant went to plaintiff’s home, and there told plaintiff’s father that the dog was his. It is obvious that this statement, which was one of a fact already known, had no legitimate tendency to fix liability upon defendant, because the statute liability does not attach to him as owner. That part of the admission, to the effect that defendant did not want Mr. Bock to have any trouble in relation to the matter, and that he assumed all the responsibility, may be regarded in two aspects: It may be taken as an assertion by defendant that in the state of his mind at that time he intended to assume the responsibility which rightfully rested upon the shoulders of Mr. Bock; or it may be construed as an absolute undertaking on the part of defendant to answer to plaintiff for the default of Mr. Bock. If the first view be taken, it is clear that no estoppel is suggested; if the second view be taken, it is equally clear that defendant’s liability, if any, would be one growing out of contract, and not out of a tort. The facts in the case, fully known to the plaintiff before suit was brought, disclosed legal liability on the part of Bock as keeper of the dog, if any person was liable under the statute.

Plaintiff in his declaration alleges that defendant was the owner and keeper of the dog, and defendant’s liability is predicated upon the truth of this allegation, or upon the fact that defendant is estopped to deny its truth. The language of defendant cannot be tortured into an admission that at the time of the injury he was the keeper of the dog. And herein precisely lies the distinction between this case and the case of Robb v. Shephard, 50 Mich. 189 (15 N. W. 76). The defendant in that case was held to be es-topped from denying liability, because, by her false statements as to ownership, she had induced the plaintiff to believe that she was the proper party to sue. The plaintiff, a stranger in Michigan, relied upon her statements, and expended considerable sums in prosecuting his suit against her. An examination of the record in that case shows that the jury was permitted to find that the defendant was estopped from denying that she was the keeper of the dog. This decision follows that .of Meister v. Birney, 24 Mich. 435. The case at bar presents no features, such as were controlling in those just considered. No false statements were made by defendant, and all the facts bearing upon liability were fully known to plaintiff before suit was brought. A verdict should have been directed in favor of defendant.

The judgment is reversed, and there will be no new trial.

Steere, McAlvay, Blair, and Stone, JJ., concurred. Moore, C. J., and Ostrander, J., concurred in the result. Bird, J., did not sit.


text:
    STEPHENS v. CORYELL.
    1. Reformation of Instruments — Vendor and Purchaser — Lease — Contracts.
    Where complainant, in a suit to reform a land contract so as to effect a lease of the farm conveyed, with an option to purchase, offered testimony tending to show that she executed the writing without examining it, supposing that it conformed to the oral agreement of the parties for a tenancy and option to buy, that complainant was unfamiliar with business matters, the instrument ambiguous, and containing provisions inconsistent with the purchaser’s claim that it expressed the true agreement, the court rightly entered a decree interpreting the agreement in accordance with complainant’s prayer for relief, as amended.
    2. Same — Assignment—Equities of Purchaser in Good Faith —Land Contracts.
    As against an assignee of the vendee’s rights transferred by an assignment and quitclaim deed, the complainant was entitled to enforce equities to which the contract was subject in the hands of the assignor.
    Appeal from Saginaw; Kendrick, J.
    Submitted January 26, 1912.
    (Docket No. 128.)
    Decided March 12, 1912.

      Bill by Mary A. Stephens against Myron E. Coryell and Guy Wickham for reformation of a written instrument. From a decree for complainant, defendants appeal.
    Affirmed.

      James P. Devereaux, for appellants.

      A. TSlwood Snow, for appellee.
   Stone, J.

The complainant filed her bill of complaint to correct and reform a certain contract, so as to truly represent and set forth the true contract and understanding between the parties, thereby changing the same from a land contract to a lease with the option of purchase, and providing for a yearly rental of $250.

Complainant states that the contract actually made with defendant Coryell was for the lease and purchase of a certain farm, upon the following terms and conditions: That she leased said real estate to said defendant for a period of three years at an annual rental of $250, with the privilege and option to said defendant to. purchase the same at any time within said term of three years upon his making payment to her in the sum of $4,500, and with the further proviso that if a purchase and sale were not effected within said period of three years, another lease and option were to be executed for a like period, and with the same rental and option, and with a further proviso that said defendant was to break up a stump lot of about Í9 acres, and set out an orchard of about 100 fruit trees in the spring of 1910, and set out 6 shade trees in the driveway the same spring.

The complainant claims that the paper signed by the parties had been prepared by said defendant, and was not in conformity with the mutual understanding and agreement of the parties, but is a fraud on complainant, practiced by said defendant; that at the time she signed the said paper she was attending her mother, who was sick; and that when said paper was presented to her by said defendant she supposed that the same had been prepared according to the terms of their oral agreement. The answer of defendant Coryell denies these claims of complainant, and asserts that the written contract was in exact accord with the understanding and agreement of the parties.

The contract actually signed by the parties is as follows:

“ This contract, made this 80th day of April in the year one thousand nine hundred and nine, between Mrs. M. A. Van Inwagen, of the village of Chesaning, Saginaw county, Michigan, party of the first part, and Myron E. Coryell, of the same place, party of the second part, witnesseth: That the said party of the first part, in consideration of the sum of forty-five hundred dollars, to be to her duly paid as hereinafter specified, hereby agrees to sell and convey to the said party of the second part, all the following described land, situated in the township of Chesaning, county of Saginaw, State of Michigan, to wit: The east half of the east half of the northwest quarter and the west half of the west half of the northeast quarter, section seventeen (17) town nine (9) north, range three (3) east, containing 80 acres of land more or less, for the said sum of forty-five hundred dollars, which the said party of the second part hereby agrees to pay to the said party of the first part, as follows: $250 January 1,1910; $250 January 1, 1911; and $250 January 1,1912. At the end of three years from date hereof a new contract is to be executed between the parties hereto, or deed to be given second party on' payment of purchase price. Second party to break up stump lot of about 19 acres and set out an orchard of about 100 fruit trees in the spring of 1910. No standing timber to be cut by either party. Also set out six shade trees in driveway next spring. Said party of the first part also agrees to pay in due season all taxes and assessments, extraordinary as well as ordinary, that shall be taxed or assessed on said land, including the taxes thereon for the years 1909, 1910 and 1911. It is agreed by the parties hereto, that the said party of the first part, on receiving payment in full of the said principal and interest at the times and in the manner above mentioned, and of all other sums chargeable in her favor hereon, shall and will at her own proper cost and expense, execute and deliver to the said party of the second part, a good and sufficient warranty deed of said above described land, •free and clear of and from all liens and incumbrances, except such as may have accrued on said lands subsequent to the date hereof, by or through the acts or negligence of said party of the second part. It is also agreed by the parties hereto, that said party of the second part shall have possession of said land under this contract on or before June 1st, 1909. It is also agreed by the parties hereto, that if the said party of the second part shall fail to perform this contract, or any part of the same, the said party of the first part shall, immediately after such failure, have the right to declare this contract void, and to retain whatever may have been paid thereon, and all improvements that may have been made on said land, as stipulated damages for nonperformance of this contract, and may consider and treat said party of the second part as her tenant holding over without permission, and may take immediate possession of said land, and remove said party of the second part therefrom. And it is agreed, that the stipulations herein contained are to apply to and bind the heirs, executors, administrators and assigns of the respective parties hereto.
“ In witness whereof, the parties hereto have hereunto set their hands and seals, the day and year first above written.
“Mary A. Van Inwagen. [Seal.] “Myron E. Coryell. [Seal.]
“ Signed, sealed, and delivered in presence of “Chas. W. Chheney.”

At the time this contract was signed, complainant bore the name of Mary A. Van Inwagen.

The defendant Guy Wickham purchased the interest of defendant Coryell in the said contract January 3, 1911, and took an assignment of the contract, and a quitclaim deed from Coryell for a stated consideration of $1,750, and he claims that he relied upon the written contract.

After the hearing, upon the petition of the complainant, the circuit judge, by order, permitted complainant to amend the prayer of her bill by adding the following words:

“That the said paper and contract maybe construed and interpreted by this honorable court, and that this honorable court place its construction and interpretation upon said paper and contract.”

The testimony was taken in open court, and the circuit judge had the advantage of seeing and hearing all of the witnesses. Defendant Coryell went into possession of the premises and made the annual payments. Defendants claim that the receipts prepared by Coryell and given by complainant for the payments are evidence that the payments made were upon the purchase of the farm. Two of them are as follows:

“$50.00.
“ Chesaning, May 10, 1909.
“Received from M. R. Coryell, fifty and no 100ths dollars, to apply on payment due Jan. 1, 1910.
“ Mary A. Van Inwagen.”
“$100.00.
“Saginaw, Mich., Jan. 8,1910.
“ Received from M. E. Coryell, one hundred and no 100ths dollars, to apply on payment on farm due Jan. 1st, 1910.
“ Mrs. M. A. Van Inwagen.”

We do not consider these receipts as at all controlling. From them it may as well be said that the payments were to apply on rent as on the purchase of the farm. Later, the complainant refused to sign receipts, unless they expressly stated that they were to apply on rent, and the conduct of Coryell in that connection is referred to by the circuit judge in his opinion.

It is further claimed by defendants that the fact that complainant took the contract to Coryell some days after it was signed and had it changed by adding the words “in the spring of 1910,” referring to the breaking up of the stump lot, and the fact that she then read the contract, is strong evidence that she understood the terms and purport of the paper. There is much force, however, in the position of the circuit judge that the contract as written is ambiguous and uncertain, and it would not be strange if complainant did not comprehend its meaning. In his testimony, defendant Coryell stated that when he first went to see complainant it was his intention to rent the farm, and that he at first told complainant that he could not think of buying it. But he claims that during the interview he changed his mind and agreed to buy. Complainant denies that there was any agreement on her part to sell, except as stated in her bill. The testimony of defendant Coryell is not very convincing, as will appear by the following on his cross-examination:

“Q. You had the privilege of renewing the contract at the end of three years ?
“A. Yes.
“Q. For three years more?
“A. There was nothing specified.
“Q. What was the understanding ?
“A. I asked for that privilege of another lease that at the end of three years I was to be given a new contract; but there was nothing said as to that, what the contract would be, for the reason, if I was not able at the end of three years to pay up what was due her, I had the privilege of having a new contract.”

As to the main question in the case, whether the contract was for an absolute sale, or a lease with annual payments of rent with the privilege of purchase at $4,500, there was a sharp conflict in the evidence. The contract, as drawn and signed, was a most peculiar and unusual one. It provided for no interest upon deferred payments. At the end of three years, if deed was given, it was to be on- payment of the entire purchase price. It provided that complainant was to pay all taxes- on the farm, and made explicit provision for certain improvements to be made by Coryell — things quite unusual in a contract of sale, but quite usual in a lease. Really, the material controversy between the parties is whether the annual payments of $250 should be applied on the purchase price of the farm, or be considered as rent.

After a careful examination of the record, we are of the opinion that the circuit judge reached a correct conclusion. He filed a written opinion which so clearly expresses Ms views upon the material questions in the case that we insert it here. It is as follows:

“This conflict arises over a certain contract entered into between complainant Stephens and Coryell, dated the 30th day of April, 1909. The contract was concerning certain lands owned by complainant, described as follows : The E. £ of the E. £ of the N. W. £ and the W. £ of the W. i of the N. E. section 17, town 9 N., range 3 E. The contract is in the nature of a land contract, drawn upon an ordinary land contract blank. The written part of said contract is somewhat uncertain in its terms, and in the light of ordinary business transactions it is somewhat difficult from its terms to determine just what was intended by the parties at the time the same was executed. The complainant claims that it was a contract in the nature of a lease of the lands in question to defendant Coryell, including a right to the said Coryell to purchase the same upon certain terms, and that the same was supposed to be executed for the purpose only of such lease and option. The defendants claim that the contract was an absolute sale of the property upon a land contract.
“ The contract provides for a purchase price of $4,500.00, and provides for certain payments of $250 on the 1st day of January, in each of the years 1910, 1911, and 1912, or the three years succeeding the date of said contract. After the statement in said contract providing for the said three payments of $250 each, it states as follows:
“ ‘At the end of the three years from date hereof a new contract to be executed between the parties hereto; or deed to be given to second party on payment of purchase price.’
* ‘ No provision is made for payment of interest, as all the printed matter in the contract concerning interest is stricken out, and erased. Certain other provisions are made, requiring Coryell to make certain improvements upon the lands, such as setting out fruit trees and other trees upon the lands. As to what the second contract referred to was to be in no way appears; but it is a fair presumption it was intended to continue the relation of the parties concerning the purchase of the land, by Coryell, as it states Coryell can have a deed of the premises by paying the purchase price mentioned. The contract further puts the burden of paying all taxes upon the complainant. It appears that the contract was assigned January 3, 1911, by defendant Coryell to one Guy Wickham, the codefendant. The assignment was accomplished by written assignment of the contract, and by a quitclaim deed from Coryell and wife to Wickham. Defendants claim to rely wholly upon the written assignment of the contract, but the fact remains that Coryell and wife executed a quitclaim deed to Wickham, which was duly accepted and placed upon record in due form.
“A large amount of testimony was taken before the court, much of which pertained to the proper interpretation, construction, and determination of the true meaning of and determination of the intent of the parties to the contract. The complainant impressed the court as being of limited (business) experience and understanding in business affairs, and from the surrounding circumstances in connection with her testimony it is fully convinced that she understood that she was to receive the full sum of the purchase price named at the end of three years, in addition to the annual payments provided for in the contract, and from the understanding of the situation by the defendant Coryell I am convinced that he was fully aware of complainant’s understanding in the premises. The defendants’ solicitor placed much stress upon the wording of certain receipts given by the complainant for the portions of the annual payments, which specifically stated as follows, * To apply on payment of farm.’ Two such receipts for the first payment prepared by Coryell in his behalf were signed by the complainant; but subsequently, when her attention was called to the form of the receipts, she objected and refused to sign the same as not in accord with the contract. These later receipts were sent through the bank, with the drafts for the payments, under instructions to the bank to permit no changes in the form of the receipts. The fact that defendant Coryell was so particular to insist upon the form of his receipt and have the same particularly state that it was as payment upon the principal, before any question had been raised, somewhat impresses the court that he was well aware that a different construction from that which he now insists upon was quite possible, under the terms of the contract, as well as the understanding between himself and complainant at the time the same was being originally discussed and arranged, prior to the time the contract was prepared. It stands undisputed in the evidence that the present value and price placed upon the land in question by the complainant was $4,500. The evidence by all parties who testified in the case upon that subject fully sustains the view that the present value placed upon the farm was $4,500. She had very recently, before she entered into this contract under consideration, been offered and had refused $4,000 in cash, which was by far more advantageous by many hundred dollars than this contract, if this interpretation contended for by defendant is to prevail.
“ The fact that an additional contract was provided for negatives defendant’s contention of the understanding claimed by him. The contract recites that at the termination of three years he can buy the same and receive a deed therefor from complainant by paying the purchase price. It does not recite that it shall be the balance of the purchase price. The fact that no interest was provided for, together with the fact that complainant should pay all taxes upon the property, * * * is quite conclusive that the annual payments and the improvements provided for were intended as and for the use of the property until such time as the sale should be perfected. The payments would fall far short of an amount sufficient to meet the taxes and the legal interest upon the sum which complainant had been offered in cash by other responsible parties for the property. I am convinced defendant Cory-ell was well advised of the situation, and well knew that the true meaning of the contract was as contended by the complainant.
“It is claimed by the defendants’ counsel that, even should it appear that complainant is entitled to relief against defendant Coryell, she should not recover against defendant Wickham, for the reason ‘ that no confidential relations existed between these parties, and the complainant has no legal right to rely upon verbal statements and neglect to employ the means at hand (the written contract), by a careful reading of which complainant could have been fully informed.’ This, perhaps, would be of greater force, were it not for the fact that the contract was uncertain in many, of its terms, and can only be properly understood by the aid of evidence outside of the contract itself.
“ It is also contended by defendants’ counsel that complainant is entitled to no relief against defendant Wick-ham under the maxim or principle of law that, ‘ when one of two innocent parties must suffer by the fault of a third, he shall sustain the loss who put it in the power of the third person to occasion it.’ This rule does not apply in this case. # This contract, by its terms, is not clear, and should have put the purchaser upon inquiry. The contract is nonnegotiable, and an assignment of it only transfers such rights as the grantor possessed, and is subject to all the equities existing between the original parties at or prior to the assignment. Defendant Wickham could have easily ascertained the true conditions between the original parties, and a prudent person would have done so. The assignee can always, by a limited amount of ordinary pains, ascertain what claim may exist in the premises in such cases, and due prudence would have enabled him to become fully informed in the matter.
“ While in this State a vendee may assign his written contract of purchase, yet the assignee succeeds only to the rights of his vendor, and to no greater rights. Hence it will be inferred from the foregoing that the purchase price mentioned, as a sum to be paid at the end of three years, meant that the sum of $4,500 must be paid, or a satisfactory contract between the parties must then be made in the premises between the parties in interest; and such a decree is ordered in this case, in such manner interpreting, construing, and determining the proper meaning of said contract which, in the light of all the evidence in the case, will carry into effect the actual intent of the parties to the agreement under consideration, which the court finds was so claimed by the complainant. All instruments and agreements are to be so construed as to give effect to the whole, or as large a portion as possible, of the agreement or instrument under consideration, and in construing such an instrument it is proper, if two constructions are fairly possible, to adopt that one which equity would favor, which, in this case, is clearly in accord with the complainant’s contention.”

Referring to the rights of the defendant Wickham, it is only necessary to say that at most he was the purchaser of an equitable interest. The assignee of a contract of this nature takes it subject to all the rights and equities existing between the original parties. Edson v. Gates, 44 Mich. 253 (6 N. W. 645); Storey v. Dutton, 46 Mich. 539 (9 N. W. 844); Howell v. Medler, 41 Mich. 641 (2 N. W. 911); Seligman v. Ten Eyck’s Estate, 49 Mich. 104 (13 N. W. 377); Hooper v. Van Husan, 105 Mich. 592 (63 N. W. 522); Hamaker v. Coons, 117 Ala. 603 (23 South. 655); 4 Cyc. pp. 14, 64, 79; 3 Boone on Real Property, §§ 259-374; Parmly v. Buckley, 103 Ill. 115.

The decree of the circuit court is affirmed, with costs to complainant. She will, however, recover her costs in this court only against the appellant.

Moore, C. J., and Steere, McAlvav, Brooke, Blair, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    BELKNAP v. TOWNSHIP OF BENTON.
    1. Municipal Corporations — Townships — Paupers — Medical Services por Indigent Persons.
    Where plaintiff, a physician, being called in an emergency to treat an indigent patient, afterwards notified the supervisor of the township in whioh the patient resided that the father of the patient was unable to pay his bill ahd the supervisor directed him to treat the case and the township would pay the account, the only questions for the jury were plaintiff’s good faith in the rendering of the services and whether the supervisor made an investigation and employed the plaintiff; it was error to permit the jury to determine as an issue in the case whether or not the patient’s father was able to pay for medical services.
    3. Same — Supervisor—Contracts.
    Under 1 Comp. Laws, § 3336, the determination by the supervisor that the patient was entitled to relief was an official act binding the township to pay for medical services rendered in good faith in reliance on his direction:

      8. Same — Public Officers.
    When an officer has particular authority to exercise his judgment, after investigating the facts of which he is made judge, his finding of such facts is conclusive.
    Error to Berrien; Ccolidge, J.
    Submitted January 15, 1912.
    (Docket No. 70.)
    Decided March 12, 1912.
    Assumpsit by Fred R. Belknap against the township of Benton for medical services rendered to an indigent patient. Judgment for defendant. Plaintiff brings error.
    Reversed.

      George W. Bridgman, for appellant.

      Gore & Harvey, for appellee.
   Stone, J.

This is an action of assumpsit brought against the township of Benton, in Berrien county, to recover for services of the plaintiff, who is a physician and surgeon duly licensed to practice, in performing a surgical operation upon, and care and treatment of, a young man named Edwin Pascal, who was under the age of 21 years, and a resident of said township of Benton, who had been severely injured by a gunshot; the bone of the right arm being shattered, and muscles, ligaments, nerves, and arteries lacerated and torn away. The services began on the 27th day of March, 1904, and continued until sometime in the month of July following.

. It may be said that this record presents the question whether the township of Benton is liable, and shall pay for the surgical treatment rendered to the boy by the plaintiff. It is undisputed that the father had not requested public aid. It was the claim, however, of the pláintiff, upon the trial, that the supervisor of the township authorized the treatment at public expense. The plaintiff testified at considerable length upon this subject, claiming that it was a case of great emergency, and the plaintiff testifying, and it being undisputed, that he found the patient in a desperate condition; that the right arm near the shoulder was, practically, completely severed. The bone, muscles, and nerves, and a large part of the blood vessels, were torn. In fact, nothing was left of the arm except a slight attachment which could have been clipped off with a pair of scissors. He testified that he proceeded to treat the boy, causing him to be removed to Mercy Hospital and taken into the operating room, where the plaintiff, with the assistance of two other physicians, spent nearly the entire afternoon in getting the arm in proper shape. The plaintiff continued to treat and care for the young man, and saved the arm. There is no claim or evidence that the charges for the services alleged in the declaration are in any way unreasonable.

On the evening of the day of the accident, or the next morning, plaintiff testified that he wrote to Mr. Jakway, the supervisor of the township, telling him of the injury, and that in the emergency he had been called upon to attend said Edwin Pascal, and that he was informed the father of the boy was poor and unable to pay any bills, and that he (plaintiff) desired to see him in relation to the matter at once. This letter was not replied to until the 5th of April following, when the supervisor wrote the plaintiff the following communication:

** Bear Sir:
“ Yesterday, as you know, was town meeting, and as I had no reasonable grounds to expect re-election I thought it best to let the incoming supervisor take the case. However, the people have decided to hold me another year, so you may expect to see me Saturday p. m.
ct Very truly,
“ J. J. Jakway.”

On the Saturday following there is no question that Mr. Jakway met the plaintiff at the latter’s office. The plaintiff testified positively, and insists, that Mr. Jakway, as supervisor of Benton township, after making some investigation, authorized and directed him to treat the case, and care for the young man as a poor patient, make his bill as low as he could, and that the township would stand good for it. The plaintiff claims that, relying upon the fact that he was thus authorized by the supervisor, he continued to treat the case until the 11th of July following, when Mr. Jakway denied that he ever gave him any authority to treat the case. There is some evidence in the record corroborating the testimony of the plaintiff; but Mr. Jakway testified, positively denying that he ever authorized the plaintiff to treat the case at the expense of the township. The issues of fact in the case were submitted to a jury, and they returned a verdict for the defendant.

The legal question presented arises chiefly upon the charge of the court. We have, after a careful reading of the record in this case, reached the conclusion that the entire case was tried upon the wrong theory. We think that the material questions in the case are whether the supervisor ever authorized and directed the plaintiff to treat the case at the expense of the township, and whether the plaintiff acted in good faith in such treatment. It appears undisputed that the young man was a minor, living with his parents in the township, and that he himself was without any property, and that his father was a man of very limited means.

Under our statute (section 2836, 1 Comp. Laws), the supervisor is the agent of the township for the transaction of all legal business. It was the duty of the supervisor, when this question arose, and investigation had been made, to pass upon the question whether or not the care of this boy should be made a township charge. He solely was charged with the duty of determining whether or not the boy, or his father, was such a poor person as to bring the case within the law providing for the support of the poor by the township. It appears by this record that the distinction between township and county poor was restored in the county of Berrien in January, 1880; and that since that time each township cares for and supports its own poor.

Had the court submitted the simple questions of fact to the jury whether or not the supervisor had in good faith investigated the matter, and employed the plaintiff, and whether the plaintiff had in pursuance of such employment in good faith rendered the services, the plaintiff would be in no position to complain. The difficulty is that in submitting the case to the jury, and under the evidence admitted in the case, the question of whether the Pascals were in fact poor persons within the meaning of the statute was submitted to the jury, and they were authorized to pass upon that fact. The following excerpt from the charge of the court will illustrate what we mean. After charging the jury correctly as to whether the plaintiff had been employed by the supervisor, the court proceeds as follows:

“ Now, if Dr. Belknap was authorized by Mr. Jakway to treat young Pascal, this other question arises. In the first place, the question arises whether young Pascal was in destitute circumstances, requiring immediate relief. I do not think there is any particular controversy over that fact. It is a fact, however, which you have to arrive at. That is a fact which is necessary to be found in arriving at your deliberations. Of course, young Pascal was a minor son there, and he had no property, and he was very seriously injured by a gunshot wound, and was in immediate need of relief. I don’t think there is any question about that proposition, that here was a party in destitute circumstances, requiring immediate relief. But the important question is this, whether the father of young Pascal was financially able to furnish medical services, that is, medical and surgical services under the circumstances. This is a question which I have concluded to leave to you, for you to determine, regarding it not as a question of law for the court to pass upon, but as a question for you 12 jurors to determine, whether, under all the circumstances of the case, here was a party (I mean the father), who was able to furnish the medical aid necessary for the relief of his son. If he was, if the father was able to furnish financial relief for the son, then, gentlemen, the town-; ship of Benton is not liable. That is, the supervisor has no authority to provide relief for persons of that kind. If- he did, and if he could give orders to furnish relief to persons who were perfectly competent and perfectly able to furnish medical relief or supplies, the township might be bankrupt through the negligent action of the supervisor. That is, some reasonable limitation must be given. Nor does it follow that because a man is a laboring man that therefore he is a poor man, or destitute. The simple question in this case is whether the father by his wages could reasonably earn enough to pay the physician for his services. You have heard the testimony in the case, and if you find that here was a burden to which he was inadequate, that he was totally unable from his earnings to pay for these services, why, gentlemen, you can find for the plaintiff, if you find that the supervisor actually authorized the plaintiff to render those services.”

From a judgment for the defendant, the plaintiff has brought the case here, assigning many errors, including three on the portion of the charge above quoted.

We shall not find it necessary to discuss all the assignments of error for the reason already stated, that the case seems to have been tried and submitted to the jury upon the theory that it was for the jury, and not the supervisor, to determine whether the father of young Pascal was a poor person within the meaning of the statute relating to the support of the poor by townships. We are clearly of the opinion that the single question should have been submitted to the jury, whether or not the supervisor authorized these services on the part of the plaintiff; there being no question that the services were rendered.

We are of opinion that the determination by the supervisor that this person was one entitled to relief was an official act which was binding upon the township in favor of those who in good faith furnished medical attendance or supplies in reliance upon the order and direction of such supervisor. This is not only common justice, but it seems to find support in the authorities. Rock Island County v. Rankin, 118 Ill. App. 499; Town of Kankakee v. McGrew, 178 Ill. 74 (52 N. E. 893); County of La Salle v. Hatheway, 78 Ill. App. 95. As we have said, we think it is a question whether the plaintiff acted in good faith under authority given him by the supervisor of the township.

It was held by this court in Sheldon v. Stewart, 43 Mich. 574 (5 N. W. 1067), that where an officer has a particular authority to exercise on his judgment, upon an investigation of the facts of which he is made the judge, his finding of the facts, in the absence of any controlling provision, is final as to their existence. In the case of Horn v. Wayne Circuit Judge, 39 Mich. 19, this court, in speaking of the power of the county clerk to approve of bonds, used the following language:

“A doctrine laid down and supported by high authority has a strong bearing upon the nature of the power confided to the clerk by this statute, and deserves notice.
“ In Vanderheyden v. Young, 11 Johns. [N. Y. ] 150-158, Mr. Justice Spencer said: ‘ Whenever the law vests any person with a power to do an act, and constitutes him a judge of the evidence on which the act may be done, and, at the same time, contemplates that the act is to be carried into effect through the instrumentality of agents, the person thus clothed with power is invested with discretion, and is, quoad hoc, a judge;’ and this was approved by the Supreme Court of the United States in Martin v. Mott, 12 Wheat. [U. S.] 19-32.
“In Allen v. Blunt, 3 Story, 742 [Fed. Cas. No. 216], Mr. Justice Story declared that it might ‘ be laid down as a general rule that, when a particular authority is confided to the public officer to be exercised by him in his discretion upon an examination of facts, of which he is made the appropriate judge, his decision upon those facts is, in the absence of any controlling provisions, absolutely conclusive as to the existence of those facts,’ and this statement received the unanimous approbation of the Supreme Court in the case of United States v. Wright, 11 Wall. [U. S.] 648. The principle has been often recognized and applied. Burgess v. Cray, 16 How. [U. S.] 48-64; Town of Venice v. Murdock, 92 U. S. 494; Commissioners of Knox County v. Nichols, .14 Ohio St. 260. See, also, Moore v. Olin, 6 Mich. 328; Johnson v. Maxon, 23 Mich. 129. Citations illustrating the application of the rule propounded might be greatly multiplied, but it is not needful to mention others.’'

This doctrine in its application is by no means confined to judicial and quasi judicial officers. See Mechem on Public Officers, §§ 567, 594, 957; City of Detroit v. Wayne Circuit Judge, 79 Mich. 384-387 (44 N. W. 622); 23 Am. & Eng. Enc. Law (2d Ed.), p. 372 et seq.; 29 Cyc. pp. 1432-1442 et seq.

Error is assigned because the court refused to charge the jury as requested by the plaintiff in his third request, which was as follows:

“ If the jury find that it was the duty of the township of Benton to cause this boy, Edwin Pascal, to be properly cared for, and proper surgical treatment given, then the township would be liable to the plaintiff from the time he so notified the supervisor, whether the supervisor authorized the treatment or not.”

If the refusal to give this request was error, which we do not decide, it was harmless error, because the question was left to the jury, and they found that Edwin Pascal was not a proper subject to receive such care and aid.

The other questions raised and discussed are not likely to arise upon another trial, in view of what we have already said.

For the errors pointed out, the judgment of the circuit court is reversed, and a new trial granted.

Moore, C. J., and Steere, McAlvay, Brooke, Blair, and Ostrander, JJ,3 concurred. Bird, J., did not sit.