text:
    WILSON v. DETROIT UNITED RAILWAY.
    1. Carriers — Blind Passengers — Negligence.
    Whether a street railway company is bound to accept as a passenger a blind man, unaccompanied, depends on his capacity to travel alone and to care for himself.
    2. Same — Transfer—Duty at Place of.
    The relation of carrier and passenger continues while the passenger is transferring from one car to another as a part of one continuous trip after having secured a transfer ticket.
    3. Same — Principal and Agent — Highways and Streets — Assurance to Passengers — Conductors.
    An assurance to a blind passenger, given by defendant’s conductor, that the [way was clear to cross defendant’s tracks at a point of transfer, was not negligence, although the passenger was struck by a car in passing over the track, where there was in fact no obstruction and plaintiff knew that cars and vehicles were constantly passing in either direction.
    4. Same — Contributory Negligence.
    Plaintiff, who was blind, secured a transfer from defendant’s car to another line at the intersection of three streets, and on being assured by the conductor that the way was clear, started to cross the tracks of defendant at the intersection and was struck by defendant’s car. Plaintiff testified that no gong was sounded; that he relied on the assurance of the conductor; that he was intent on other things; that he paid no attention to the noise of a car crossing the intersection, thinking it was on the other street; that he knew cars might be passing in either direction at that point; that he was listening for automobiles or passing vehicles. Held, that he was guilty of contributory negligence.
    Error to Wayne; Murphy, J.
    Submitted June 12, 1911.
    (Docket No. 40.)
    Decided October 2, 1911.
    Case by Edward Wilson against. the Detroit United Railway for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed bjr plaintiff on writ of error.
    Affirmed.

      James H. Pound, for appellant.

      Brennan, Donnelly & Van De Mark (W. G. Fitzpatrick, of counsel), for appellee.
   Stone, J.

This is an action on the case for damages which the plaintiff sustained by being injured, on September 7, 1907, at the crossing of the Trumbull avenue street car line with the Grand River avenue line of defendant’s road, in the city of Detroit.

It is the claim of the plaintiff that he was, at the time of the injury, and had been for a number of years, totally blind. At the time of the trial, he testified that he was 47 years of age; that he was a piano tuner, and had carried on that business for 18 years in the city of Detroit. On the evening of the day in question, and about 5:45 p. m., the plaintiff testified that he took the Trumbull avenue car at the corner of Mt. Elliott and Congress streets, in the city of Detroit, to go to the northwestern part of the city; that he paid his fare to the conductor; and that at the time of so doing he stated that he wanted a Grand River avenue transfer. We append here a plat of the location where the plaintiff was injured, which is found in defendant’s brief, and the accuracy of which is not questioned.

A transfer in the usual form was furnished to the plaintiff ; and after arriving at the place of transfer, and at the time of alighting from the Trumbull avenue car, the plaintiff asked the conductor if the way was clear for his

crossing the track. The conductor said, "Yes; everything is alrighttake the Grand River avenue car going west. The place where he alighted was a paved street, much traveled and frequented at that hour of the day. It was necessary for him to go in a northerly direction some 50 or 60 feet across Grand River avenue toward the Grand River avenue track, and as he was about to cross the track he was struck by an east-bound car upon said last-named track. He sustained an injury, breaking two bones of his left leg above the ankle. He testified that he heard no gong sounded, and that he thought everything was clear.

The negligence complained of is that of the conductor of the Trumbull avenue car in having stated to plaintiff that everything was all right, and of the servant in charge of the east-bound car upon the Grand River avenue track in running his car upon the plaintiff and injuring him. Plaintiff testified that he knew and was familiar with the location; that he knew of the tracks in Myrtle street, and knew of the double tracks on Trumbull avenue and Grand River avenue; that he had before made transfers at this point, going both east and west; that it had been raining; that he carried his umbrella, which was not raised, in his left hand, with his tool case, and had a cane in his right hand; that the talk which he had with the conductor of the Trumbull avenue ear was as he was getting off the platform of that car; that he walked in the usual gait and manner; that he knew the cars went in both directions on Grand River avenue, and that they would be moving in both directions at this time of day, and that automobiles and other vehicles were passing and repassing at this point, and that the only things he was listening for were automobiles and the west-bound car, which he desired to take; that he walked on the pavement all the way, and claimed that he had in his mind a fairly good map of the place and location, by having frequently walked there and knowing the points of the compass, and how the streets run, and that he understood the plan of the corner; that he knew where the Grand River avenue car made its ordinary stop in going east before crossing, the Myrtle street line. He testified that he did not observe the circle track appearing upon the plat, and that lie must have been north of it in crossing. He frequently stated in his testimony: “I relied on the assurance that the way was clear.” It was a lowery, cloudy evening, and the lamps were lighted at the street crossing.

On his direct examination, the plaintiff testified that he had lived on the west side of the city all his life. After describing the taking of the car, about 5:45 p. m., going westward, he stated that he paid his fare to the conductor and asked him for a Grand River transfer; that as he arose from the car, from the second seat back, he inquired of the conductor if the way was clear for his crossing the tracks; that the conductor said, “Yes, everything was all right,” and to go ahead; that the car in which he then was was stationary; that he left the car and proceeded to the Grand River tracks, to get in a position for the car going west; that he had his cane with him, and stepping in the triangle on the pavement he walked as carefully and hastily as he could with safety to cross; that as he stepped evidently over the tracks upon which the car would go toward the east he was struck by the east-bound car, resulting in the breaking of two bones in his left leg above the ankle; that the car came to a stop, and that he knew nothing of the approach of the car, hearing no gong rung; that he thought everything was clear for safe crossing; that after breaking the bones he immediately took hold of the iron holding the fender to the car, and sat down on the fender, instead of being thrown; that the motorman and conductor came down, and took him from the car to a grocery on the corner near by, and set him in a chair, from whence he was removed to the hospital; that for about 18 years he had been in the piano tuning business; that he worked from place to place in the city; that during all this time he had been going around doing his work by himself, always alone, and up to this time had got along without any injury; that during all this time he had made use of the cars as other people might.

On cross-examination he testified:

“Q. You have frequently ridden on that car line?
_ “A. Very frequently. It was a closed, car that I was riding on that day, and I got off and got on the rear entrance.
UQ. When you had occasion to use that line and transfer, it was usually at Grand River F
“A. Very often at Grand River. I live on Fourteenth avenue, three streets from Grand River, and three streets from Myrtle. I am about midway; either Myrtle or Grand River cars would take me very closely to my destination — one almost as closely as the other.
‘Q. You had frequently had occasion to go further north on Trumbull or Grand River on the cars ?
“A. Yes, sir. I also at the time of the accident knew that there was a car line running out on Myrtle from Grand River at that point.
“Q. Just half a block below Trumbull. You knew that there was a double track on Trumbull avenue ?
C‘A. Yes, sir.
“Q. In any case, you knew that the Myrtle track intersected the Trumbull track at that point ?
“A. I am very familiar with it; yes, sir. I also knew that the Trumbull track proceeded further north on Trumbull beyond Grand River, and I had had occasion to ride on that line previous to the injury.
“Q. Had you ever had any occasion to transfer from the Trumbull line north of Grand River on to the Crosstown ?
“.4. Yes, sir; I have made that transfer in going in both directions, both east and west. * * *
“Q. The stop they made south of the Myrtle tracks was a compulsory stop, because of the fact that they were approaching the car tracks — you knew that ?
“A. Yes, sir. * * *
“Q. Why, on this particular occasion, did you not transfer onto the Myrtle car going west ?
“A. I was making for the barber shop. It was Saturday, at supper time, before I went to supper; I was aiming to get at the barber shop at Wabash and Grand River, continuing on Grand River; that would be a long block east of Fourteenth, south side. * * *
“Q. What was the weather at the time of the injury; it rained ?
“A. Not so that I had to use my umbrella.
“Q. It was raining ?
“A. Certainly it rained. It was not raining at the time I got out of the car; it possibly had just previous to that time; it had showered, I am pretty sure.
“Q. It was not raining at all when you stepped down from the car ?
“A. I am sure it was not.
“Q. You had an umbrella with you ?
“A. Yes, sir; I had my tool case and my umbrella with me. The umbrella did not take the place of my cane or walking stick; I had my cane, too; I carried my tool bag and umbrella in the left hand, and my cane in the right.
“Q. How far, if you know, was it from where you got off the car to the east-bound Grand River track ?
“A. Well, I don’t know as I could tell you just the distance; I have done that several times. I should judge it would be 40 or 50 or 60 feet, along in there; that is, to the east-bound Grand River track to the point where I got off the car.
“Q. Your car had come to a full stop ?
“A. Yes, sir. * * *
“Q. And you immediately proceeded to the pavement?
“A. Yes, sir.
“Q. And then in a northerly direction toward the Grand River track ?
“A. Yes, sir. * * *
“Q. Had anything interrupted your passage from the point where you got off the Trumbull avenue car to the place where you were struck ?
“A. No, sir.
“Q. You were not impeded in any of your movements ?
“A. Not at all.
“Q. And walked along at a usual gait ?
“A. Yes, sir.
“Q. And in the usual manner ?
“A. Yes, sir.
Q. At the time the conductor said to you that the way was clear, you don’t know what the actual condition of Grand River was ?
“A. As I could take it in by hearing, it seemed very quiet, comparatively speaking.
“Q. You knew, of course — I think you said this morning — that cars would be apt to be going in both directions on Grand River avenue at that time ?
“A. They do go in both directions.
“Q. You knew that at that time of the evening there would be apt to be a car moving east on Grand River at any moment ?
“A. Certainly; I asked for the information.
“Q. You knew that in advance of your asking for information; you knew that fact ?
“A. Yes, sir.
“Q. You knew that there would be apt to be cars moving west on Grand River at any moment at that time of the day ?
“A. Yes, sir. * * *
UQ. And from the time that you left the point, getting out of the car and started for Grand River avenue, did you hear the motion of any car ?
“A. Well, if I did—
“Q. The question is, Did you hear the motion of any car ? * * *
“A. I don’t recall hearing the movement of any car.
“Q. Will you say that you didn’t hear the movement of any car after you had gotten off the Trumbull car, and while you were moving in the direction of Grand River avenue ?
“A. I will say that I received no impression of it.
<fQ. Will you say that you didn’t hear them ?
‘‘A. Well, practically, yes, because my ear made no impression upon my brain; if I did, I didn’t hear it.
“Q. You mean that you have no recollection of having heard it ?
“A. Yes, sir.
tcQ. No present recollection ?
“A. I am safe in saying that I didn’t hear it. * * *
“Q. Was there anything in thesituation there that night that would render it difficult or impossible for you to hear a car east bound on Grand River avenue intersection ?
"A. There was nothing extraordinary about me that I remember now.
*‘Q. You know, do you not, that a street car crossing an intersection of another line, makes a pounding, jolting noise as it crosses the intersection ?
“A. Yes, sir; it does.
“Q. You say that you have no impression of having heard any such pounding, jolting noise that night immediately prior to your injury ?
“A. I took no notice of it.
tlQ. Then you have no impression of having heard it ?
“A. I have no impression of hearing it; I could have heard it, but I felt very safe in my position. I received no impression that I could recall.
l‘Q. You say you could have heard it — is that what you said?
“A. I possibly could have heard it, if I was worried over the matter.
“Q. You could have heard the streetcar approaching and making the crossing at Trumbull, if you had been listening for it ?
“A. Not if I had been listening; but if I had worried over the matter I might have, taken in the situation. I didn’t hear it, because I was told to pass on, and that, of course, would give me no worry of any approaching car.
"Q. But you still think you didn’t hear it, in point of fact ?
“A. I tell you I cannot recall it.
“Q. It made no impression on you; therefore you still insist that you don’t think you heard it ?
(‘A. Not to receive any special impression. I was intent on the direction I was going. My mind was on doing what was to be done properly.
“Q. That is to say, your mind was engaged entirely with the idea that it was necessary for you to proceed in a general northerly direction' across the Grand River avenue tracks to a point where ?
“A. Where you would be safe.
“Q. Where you would board the west-bound Grand River avenue car ?
“A. Yes, sir; that was what my mind was intent upon.
“Q. And for that reason you now say to us you don’t know whether you heard this sound of the car crossing that intersection or not ?
“A. No; I paid no attention to it; I didn’t worry about it; I didn’t think it was anything.
UQ. You don’t wish to change your answer, that you paid no attention to it ?
“A. No; I paid no attention to it; if I would have thought of it, I would have thought it was a Trumbull car going on. * * *
UQ. You testified this morning that you heard no gong; but, in view of the state of your mind at that particular time, even if a gong had been rung, you would not have heard it ?
''‘A. Oh, yes; I was listening for automobiles and the west-bound.
UQ. Were you listening in a way so that you would hear a gong in a street car in a way that you would not hear the noise of a street car crossing the intersection ?
“A. I was listening for the gong, yes, sir, very much differently from what I would the crossing of a street car, because it would naturally impress me as being the Trumbull avenue car going on, and that gave me no worry. But a gong I am always listening for.
“Q. Would there be any likelihood of a gong being rung at that time, even a gong on the Trumbull avenue car F
“A. Yes, sir; it would be likely.
“Q. So that if it happened to be a gong on the Trumbull avenue car that would give you no more concern or worry than the noise that the wheels made in making the intersection ?
“A. I think if the car being near me rung a gong I would have realized it; I would have stood still.
“Q. Did you hear any warning at. all from any quarter before you were struck ?
“A. No; I received no warning from any quarter.
“Q. Immediately prior to the incident of the accident, was there anything in the situation there that would have rendered it difficult or impossible for you to have heard an ordinary warning F
“A. Nothing that I am conscious of.
f(Q. The point where you got off the car, you understand, of course, was a public highway F
“A. A public highway; yes, sir.
tlQ. When you were getting off the car, you asked the conductor if the way was clear ?
“A. Yes, sir.
“Q. You had to proceed entirely in the public highway from the point of disembarkation to the point of transfer where you got on again ?
“A. Yes, sir.
“Q. And you didn’t hear, or at least you are not to any extent conscious of having heard, the sound of any car moving in any direction from the time you got off the Trumbull avenue car until the time you were struck ?
C‘A. Not to be impressed. You can understand how I can concentrate myself, for the purpose of my being conscious, not to take in some minor matters.
“Q. I understand that perfectly, and for that reason, the state of mind considered, and your rapidity to concentrate your mind in that way, is why I ask you whether you have any present recollection of having heard the noise of any car moving in any direction from the time you got off the Trumbull car until the very instant you were hit ?
“A. I received no impression that I recall.”

On redirect examination the witness testified that when he alighted from the rear platform he was standing on the pavement, and from where he alighted to the point where he was struck he was on the pavement; that he went along feeling with his cane; that he had a fairly good map in his mind of those places; that he always found out the points of the compass, north, south, east, and west, and how each street ran, and formed a plan in his mind; that he understood the plan of that corner very well; that upon these tracks there might be cars coming south on Trumbull, as well as going north, and going east on Grand River, as well as west, and this is also true of Myrtle, whose traffic was east and west.

At the close of the plaintiff’s testimony, the defendant moved for a directed verdict in its favor, upon the ground:

(1) That there had been no evidence of negligent operation of either the Trumbull avenue or Grand River avenue cars.
(2) That the plaintiff, by the undisputed evidence, appeared to have been guilty of negligence, which either directly caused, or contributed to, the injuries which he received.

The trial court at that stage of the case struck out the testimony tending to show that the conductor assured the plaintiff that the roadway ahead of him was clear, for the reason that the defendant was not bound by any statement made by the conductor; that if any such statement was made it was in excess of his authority. The case then proceeded, as we understand it, upon the claim of negligence of the defendant as to the movement of the Grand River avenue car; and at the close of the entire testimony, upon the motion of defendant, the court directed a verdict and judgment for the defendant, upon the ground that the plaintiff was guilty of contributory negligence.

The case has been removed to this court by writ of error. There are 20 assignments of error in the record, the first of which is that the court erred in directing a verdict and judgment for the defendant. The principal question in the case is whether the circuit judge erred in directing a verdict and judgment for the defendant.

There is no question that the plaintiff was rightfully accepted as a passenger on the Trumbull avenue line of defendant’s road. The question whether the defendant was obliged to accept as a passenger a blind man, unaccompanied by an attendant, is not presented. There is authority to the effect that it is not proper to exclude a blind person, simply on account of blindness, if he is competent to care for himself. 6 Cyc. p. 536, and note; Zachery v. Railroad Co., 74 Miss. 520 (21 South. 246, 36 L. R. A. 546, 60 Am. St. Rep. 529); Zachery v. Railroad Co., 75 Miss. 746 (23 South. 434, 41 L. R. A. 385, 65 Am. St. Rep. 617). The court there said:

“Each case must depend on its own facts, and the reasonableness of the refusal to sell the blind person a ticket must, on principle, depend, not on a universal, arbitrary, and undiecriminating rule like this one, but on the capacity to travel, unaccompanied, of the particular blind person, as shown by the proof on that point in his case.”

See note to Illinois Central R. Co. v. Allen, 121 Ky. 138 (89 S. W. 150, 28 Ky. Law Rep. 108, 11 Am. & Eng. Ann. Cas. 970). The undisputed evidence in the instant case shows that the plaintiff was accustomed to traveling on the street cars of the city unaccompanied; that he was familiar with the street car lines of the city, and was competent to care for himself.

We also are of the opinion that the weight of authority in this country is to the effect that the relation of passenger and carrier continues while the passenger is transferring from one car to another, he having been furnished a ticket enabling him to do so, when a transfer from one street car to another is part of a continuous trip. 6 Cyc. pp. 541, 542; Baldwin v. Railroad Co., 68 Conn. 567 (37 Atl. 418); Walger v. Railway Co., 71 N. J. Law, 356 (59 Atl. 14); Citizens’ Street Railroad Co. v. Merl, 134 Ind. 609 (33 N. E. 1014). See note to Glenn v. Railroad Co., 165 Ind. 659 (75 N. E. 282, 2 L. R. A. [N. S.] 872, 112 Am. St. Rep. 255, 6 Am. & Eng. Ann. Cas. 1033); Keator v. Traction Co., 191 Pa. 102 (43 Atl. 86, 44 L. R. A. 546, 71 Am. St. Rep. 758); Baltimore, etc., R. Co. v. State, Use of Hauer, 60 Md. 449; Chicago, etc., R. Co. v. Winters, 175 Ill. 293 (51 N. E. 901); Conroy v. Railway Co., 96 Wis. 243 (70 N. W. 486, 38 L. R. A. 419).

In Spangler v. Traction Co., 152 Mich. 405 (116 N. W. 373), the plaintiff, in the evening, had alighted from a car at the intersection of Warren avenue and Hoyt street, in the city of Saginaw, intending to proceed to the east across Warren avenue to her home on the south side of Hoyt street. During that day, in preparing to repave the street between the rails, and for a short distance outside the rails, defendant’s contractor had removed the cedar blocks of the old pavement from the south line of the asphalt roadway on Hoyt street southward for several hundred feet. The excavation or opening thus made was at least seven, and perhaps in places outside the rails a greater number of inches in depth. The car on which the plaintiff rode, having proceeded, she stepped into the excavation, of which she had no knowledge, fell down, and broke her leg. She recovered a verdict and judgment, which were affirmed in this court; the theory of the case set out in the declaration being that the defendant owed a duty to her as passenger to stop its cars where she could alight in safety, and safely cross the street, and, if it stopped them where the excavation existed, to light the place, so that the danger could be seen and avoided, or to warn her of the dangerous condition. It averred that defendant stopped the car at a point where, when she alighted, she was opposite and near the excavation; that no light was set at or near the place; no signal of danger given; and that she was not given any warning of the dangerous character of the street.

Justice Ostrander in that case said:

“As the contention of the plaintiff in error is understood, it is that the duty of the railway company, the passenger having alighted safely, was a duty to be measured without reference to the relation of carrier and passenger; that it owed to plaintiff, when she was injured, no other or different duty than if she had been a pedestrian who was attempting to cross the street at the same place. The rule that the relation of carrier and passenger does not cease at the moment the passenger alights from the carrier’s vehicle, at the point of destination, but continues until the passenger has had reasonable time to leave the carrier’s premises, is qualified in its application to passengers using surface street railroad vehicles. A street is not a passenger station, for the safety of which a street railway company is responsible. Ordinarily, a passenger, having safely alighted from a street car, becomes at once a traveler upon the highway, and his duty and the duty of others towards him have no relation to the reciprocal duties which a moment before existed between the carrier and himself [citing cases]. But, as a general rule, it is the duty of the street railroad carrier to at least exercise proper care to see that the place of alighting is safe, not to stop a car for alighting passengers at a place known to be unsafe (citing many cases); and it would be a narrow application of the rule to hold that the carrier’s duty was in all cases performed, if a passenger reached and stood upon the surface of the street in safety. If a passenger alighted in the night, in a dark place, at a point where a step made in any direction would be into an excavation made by the carrier in a street, the surface of which had been theretofore smooth and comparatively level, the existence of the excavation being unknown to the passenger, it would be doing violence to terms to say that the car was stopped and the passenger invited to alight at a proper place, or that the passenger had safely alighted.”

There the court was dealing with a case where the passenger had terminated her journey upon the street car, and had alighted to go to her home. We are here dealing with a case where the passenger was transferring from one car to another, for the purpose of continuing his journey.

In Keator v. Traction Co., supra, the plaintiff, with a transfer ticket, was approaching a street car, intending to get on to it to finish her journey, when she was struck by a piece of the trolley pole, which broke while the motorman was trying to change it to the other end of the car, and it was held that the plaintiff was a passenger. The court said:

“ It must be conceded, we think, that the transfer ticket, on its face, was an undertaking to carry her from the point where the car started, in front of the Wyoming House, to her destination on the south side line. She was not a passenger while on the sidewalk, going from one point to the other.- Thus far, the construction of the carrier’s contract, from the undisputed circumstances and the ticket, is palpable. When did the obligation of the contract end with regard to her at this interval? It must be borne in mind, as so clearly pointed out by the learned judge of the court below, that the injury to her was from a defect in an indispensable attachment of the very vehicle in which defendant had undertaken to carry her. It was not a side-tracked car, or an unused one, which she had no right to get on, but, in the common phrase, it was ‘her car,’ that had been provided by defendant to carry her to her destination, which caused the injury.”

Another case was where the passenger fell into a post hole on the premises of the defendant, while transferring from one car to another. We do not understand that any of the cases hold that the railway company would be liable for the bad condition of a public street used in making the transfer, so long as it had furnished a reasonably safe place to alight from one car, and board the other. In other words:

“A street is not a passenger station, for the safety of which a street railway company is responsible.”

Whether or not the conductor of the Trumbull avenue car was within the scope of his employment when he stated to the plaintiff that the way was clear across to the Grand River avenue track, it is not necessary for us to decide; for we think that it clearly appears from the evidence that the way was clear, and the statement was an accurate one of the condition which then existed. There is no testimony that the roadway was in any way obstructed at the time. The place was a thoroughfare, much frequented, where vehicles and cars were passing both ways constantly, as was well known to the plaintiff, as appears by his testimony. So whether the statement was binding upon the defendant or not becomes of no importance in the case, as there was here no breach of duty in any view which we can take of the case.

We are so strongly impressed with the position of the defendant that the plaintiff was guilty of contributory negligence, as matter of law, that we shall not discuss the question of the negligence of the defendant in the management of the Grand River avenue car. The plaintiff is very emphatic in his testimony that he fully understood the conditions as they existed at this crossing. He knew his own infirmity and limitations, and it seems very clear to us that he did not exercise that degree of care and caution required of him, under the circumstances. He left a place of safety and went heedlessly into a place of great danger. In the light of the plaintiff’s own testimony, from which we have copied at large, his negligence need not be further discussed. His own testimony is so convincing that further discussion of the subject is not necessary.

The other assignments of error have been examined, and we are of opinion that the .circuit judge committed no error therein, and the judgment below is affirmed.

Ostrander, 0. J., and Bird, Brooke, and Blair, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    BROWN v. GREAT CAMP KNIGHTS OF THE MODERN MACCABEES.
    1. Insurance — Fraternal Beneficiary Associations — Forfeiture — Amendment of Policy.
    Where applicants for insurance in a fraternal benefit society were prohibited from engaging in the sale of intoxicating liquors, and the executive committee of the final tribunal in the association was. authorized to suspend a member who should be charged with engaging in a prohibited occupation, and the by-laws provided that the committee’s decision should be final unless appealed from, and that the suspended member might be reinstated if the cause of suspension should be removed, the mere act of engaging in the sale of intoxicating liquors did not forfeit the rights of an applicant not engaged in such business when he entered the order.
    3. Same.
    But under a policy providing that rules and regulations after-wards adopted should become binding upon insured, a by-law enacted by the order after issuing the policy, providing that if the insured should engage in a prohibited occupation his policy should be avoided, which by-law was reasonable as tending to enhance the dignity and influence of the society, the decedent forfeited his right to the stipulated amount of insurance.
    3. Same — Waiver of Forfeiture.
    The forfeiture was not waived by notifying the beneficiary that the claim was not valid, disclaiming any liability under the policy, even though defendant failed to return the amount of assessments paid which was in dispute, and which plaintiff did not seek to recover, claiming the benefit provided by the certificate.
    4. Same — Principal and Agent — Notice.
    Notice that the member was engaged in a prohibited occupation is not chargeable to the association on the ground that the finance keeper of a local camp knew of it, his duties being merely to collect and remit payments.
    5. Same — Ministerial Officers.
    A ministerial officer of a subordinate lodge cannot waive positive requirements of the laws of the order.

      6. Same — Evidence.
    A letter of plaintiff’s attorney who had appeared before committees of the order in behalf of plaintiff and had authority to correspond with the society, was admissible on the question of waiver.
    Error to Kent; McDonald, J.
    Submitted June 14, 1911.
    (Docket No. 19.)
    Decided October 2, 1911.
    Assumpsit by Winifred C. Brown against the Great Camp of the Knights of the Modern Maccabees on a benefit certificate. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Reversed.

      Frank F. Jones and George Hollway, for appellant.

      Frank W. Fine, for appellee.
   Stone, J.

The defendant is a fraternal beneficiary society organized and doing business under the laws of this State. Robert E. Brown, the husband of plaintiff, became a member of defendant order, and of Yan Burén Tent No. 287 of said order, located at Gobleville, Yan Burén county, Mich., on June 18, 1891, upon his application, partly printed and partly written, and had issued to him benefit certificate No. 31,519, payable to Almira Brown, his mother, as beneficiary.

In his application for membership, his occupation was given as u running planer in shop and tail sawyer.” Soon after becoming a member of the order, Robert F. Brown, the member, removed from Gobleville to Traverse City, Mich., where for a time he worked in a sawmill. There was a conflict in the evidence as to the time when Brown, the member, first engaged in the retail liquor business; the witnesses for the plaintiff testifying that he changed his occupation and engaged in such liquor business as early as the year 1892, while, by the testimony- on the part of defendant, Brown changed his occupation either in the fall of 1896, or the spring of 1897.

Brown first entered the liquor business by tending bar for a man by the name of Dunn. In 1898 Brown left Dunn’s employ and enlisted in the army, and was a soldier in the Spanish American war for a period of eight months. Except for this last-named period, Brown continued to be engaged in the retail liquor business from the time he engaged in it as a bartender in Traverse City down to the time of his death at Grand Rapids, Mich., December 29, 1907.

After taking his first certificate', Robert F. Brown was married to the plaintiff, and on March 24, 1903, he surrendered his first benefit certificate, payable to his mother, and requested to change the beneficiary, and make his wife the beneficiary. The change was made accordingly, and on April 7, 1903, a duplicate certificate was issued, payable to the plaintiff, for the same sum of $1,000.

After the death of Robert F. Brown, the member, proofs of loss on the usual form used by defendant order were made by plaintiff, in which it was stated, in reply to the usual question, “Give the various occupations in which deceased has been employed for the past ten years, with the years in which they were followed,” that he (the member) had been “ten years, liquor business proprietor.” This statement was signed and sworn to by the plaintiff and beneficiary on January 15, 1908, and with the receipt for the last assessment paid by the member, November 30, 1907, signed by H. H. Herron, finance keeper, and, accompanied by certificate duplicate No. 31,519, issued to Robert F. Brown, were submitted to the defendant order.

This claim of plaintiff, with such proofs of loss, was brought to the attention of the executive committee of defendant, and after being considered at several meetings, and after notice both to the plaintiff, as beneficiary, and to her attorney, said executive committee, at its meeting on April-8, 1908, upon the report and recommendation of the great counselor, voted to pay the plaintiff in full of the certificate the amount which Robert F. Brown had paid into the life benefit fund during the time he was engaged in the liquor business, as soon as said amount was determined.

Under the provisions of the laws of defendant order, an appeal was taken by plaintiff from this action of the executive committee to the Great Gamp, or governing body of defendant, which was in session at Toledo, Ohio, in June, 1908. A hearing was had there, before the committee on appeals and grievances, and by its report the action of the executive committee was sustained. After this action, and on July 8,1908, this suit was commenced. The declaration contained two special counts upon the benefit certificate, and claimed the right to recover the full sum of $1,000, and interest.

The defendant pleaded the general issue, and gave the following notice thereunder:

“ Take notice that the above-named defendant will give in evidence and insist in its defense under the general issue above pleaded. That each and every of the certificates held by Robert E1. Brown, the deceased husband of the said plaintiff, and under which the said plaintiff claims the right to recover in this action, were issued under and by virtue of an application for membership in the said defendant order, made by the said Robert F. Brown in his lifetime, and on, to wit, the 1st day of June, 1891, the same being partly written and party printed, in which the said Robert F. Brown stated and agreed that ‘ these statements with the application and the constitution and laws now in force, or that may hereafter be adopted by the Great Camp of the Knights of the Modern Maccabees for Michigan shall form the basis of the contract for endowment.’ ‘And that the constitution and laws of said Great Camp now in force, or that may hereafter foe adopted, shall be binding on myself and my beneficiary or beneficiaries.’ That each and every of the certificates of membership in the said plaintiff’s declaration mentioned were and are ‘ subject to the conditions, limitations, warranties and agreements, contained in the application for membership, executed by the said member, which said application is made a part thereof.’ That each and every of the said certificates of membership were upon the condition and to continue so long and only so long as he (the said Robert F. Brown) should ‘comply with the laws, rules and regulations of the Great Camp for Michigan which are now or may hereafter be in force.’ That at the time the said Robert F. Brown was initiated and received into the said defendant order as a member thereof, and on, to wit, the 18th day of June, 1891, no person could be received into the said defendant order as a member thereof who was engaged, either as principal, agent, or servant, in the manufacture or sale of spirituous or malt liquors as a beverage. And that after the admission of said Robert F. Brown as a member of the said defendant order, and on, to wit, the 1st day of September, A. D. 1892, the laws of the Great Camp of the Knights of the Maccabees for Michigan, of which the said defendant order is successor, amended and changed its said laws so that ‘ a member who shall hereafter engage either as principal, agent, or servant, in the manufacture or sale of spirituous or malt liquors as a beverage shall thereby forfeit his membership in the order, and all rights and benefits thereof; and no money shall be accepted from him by any officer of the tent for dues and assessments. No trial shall be necessary in such cases when the fact is admitted.’ That on, to wit, the 1st day of October, 1898, in violation of the laws of the order last above quoted, and without the knowledge or consent of the Knights of the Maccabees for Michigan, and in violation of his certificate of membership therein, and in violation of the terms and conditions of the contract under which he (the said Robert F. Brown) and his beneficiary were entitled to have and receive an endowment in the said order, the said Robert F. Brown, to wit, at Traverse City, in the State of Michigan, engaged as principal, agent, or servant in the sale of spirituous and malt liquors as a beverage, and thereby forfeited his membership in the last-named order, and all rights and benefits thereof. And that he (the said Robert F. Brown) kept up and continued, and was at, and, to wit, for a period of 10 years immediately preceding, his (the said Robert F. Brown’s) death on, to wit, the 29th day of December, 1907, without the knowledge, consent, or approval, and in direct violation of the laws of the order, so engaged as principal, agent, or servant in the manufacture or sale of spirituous or malt liquors as a beverage, whereby and because of which said conduct on the part of the said Robert F. Brown he did forfeit his membership in the said order, and all rights and benefit thereof, and each and every of the said certificates of membership of the said Robert F. Brown in the said defendant order became and were void and of no effect. And the said defendant will further give in evidence under the general issue above pleaded that at the time of the said Robert F. Brown becoming a member of the Knights of the Maccabees for Michigan, under the constitution and laws of the last-named order and the contract and agreement under which the said Robert F. Brown became a member as shown by his said application for membership and the said constitution and laws of the said last-named order, the Great Camp of the said order was given and granted the following power: It shall have the power when an appeal is made under the laws of the order from the actions or findings of the executive committee to decide as to the validity of all death claims or any other claim, which a member or the beneficiary of a member may have against it, and its decision shall be final and binding upon every member and their beneficiaries and no suit at law or in equity shall be commenced or maintained by any member or beneficiary against the Great Gamp;’ by which said constitution and ' laws of the said order and the application for membership in the said order, made by the said Robert F. Brown, and the several certificates of membership constituting the contract of the said Robert F. Brown and of his beneficiary, the said plaintiff, to and with the said defendant order, the said Great Camp of the order, upon appeal from the executive committee, disallowing the death claim of the said plaintiff against the said defendant order, was final and binding upon the said plaintiff, and the suit should not and cannot in law be maintained thereon under the said contract and agreement.”

The second certificate, and the one here relied upon for recovery, provided that Robert F. Brown had been regularly initiated a member of the Great Camp Knights of the Modern Maccabees, in Van Burén Tent No. 287, and was a member of said tent—

“And that in accordance with and under the provisions of the laws of the Great Camp Knights of the Modern Maccabees he is entitled to all the rights, benefits and privileges of membership therein, and that at his death one assessment on the membership, not exceeding the sum of one thousand dollars, will be paid as a benefit to Winifred 0. Brown, bearing relationship to him of wife, upon satisfactory proof of his death, and the surrender of this certificate, provided he shall have, in every particular complied with the laws, rules and regulations of the Great Camp Knights of the Modern Maccabees which are now in force, or which may at any time hereafter be adopted. * * * This certificate is issued and accepted subject to all the conditions on the back hereof.”

On the back of the certificate was the following indorsement :

“It is expressly agreed that no officer or member of any subordinate body, nor any officer or agent of the Great Camp Knights of the Modern Maccabees has any authority or right to waive a strict compliance with any of the provisions of the laws of the order relative to the payment of dues or assessments as they may be fixed or called for from time to time.”

It appears from the record that by the laws of the order in force in June, 1891, when Robert F. Brown became a member, it was provided that applicants for endowment should not be engaged, either as principal, agent, or servant, in the sale of spirituous or malt liquors as a beverage. It was also provided by the laws of defendant order at that time that the executive committee of the Great Camp should have power to suspend an endowment member from all benefits of the order, who should, after admission, engage in any occupation prohibited by the laws of the order. The law above referred to as existing when Brown became a member was amended in 1892, so as to provide that all males of good moral character, who had arrived at the age of 18 years and had not passed their 61st birthday, should be entitled to admission as endowment members, if their applications were approved by the great medical examiner, provided they were not engaged, either as principal, agent, or servant, in the sale of spirituous or malt liquors as a beverage j and provided further, that, should any endowment member engage in any of the above prohibited occupations, his certificate should become null and void, and of no binding force on the Great Camp. It appeared upon the trial of the case that Harry H. Herron, the local tent finance keeper at Gobleville, while acting as finance keeper, had been informed that Robert F. Brown was engaged in the liquor business, and that he collected assessments of Brown and remitted them to the Great Camp after he learned that fact.

At the close of the testimony, the court directed a verdict for the plaintiff in the sum of $1,125, and judgment followed.

The defendant has brought the case here upon writ of error, assigning numerous errors in the admission of evidence and direction of the verdict. It will not be necessary to discuss all of the questions raised by the assignments of error.

The two important and controlling questions in the case raised by assignments of error are:

First. Was there a forfeiture of the benefits of the certificate by reason of the fact that Robert F. Brown, subsequently to the issue of the certificate, changed his occupation and engaged in the liquor business ?
Second. If there was such a forfeiture, has it been waived by the conduct of defendant ?

Upon the first point, it is urged by the plaintiff that, as Brown was not engaged in the liquor business at the time he became a, member, the fact that he subsequently engaged in the business did not operate to forfeit his certificate. It is also urged that the notice of the defense is insufficient. It seems very clear to us that at the time Brown became a member of the order the traffic and sale of spirituous or malt liquors was a prohibited occupation. He would have been ineligible to membership had he then been engaged in the traffic. We are also of opinion that the notice under the general issue was sufficient, wherein it stated that, at the time said Brown was initiated and received into the order as a member, no person could be received as a member thereof who was engaged, either as principal, agent, or servant, in the sale of spirituous or malt liquors as a beverage. But, as the law of the order then existed, the executive committee of the Great Camp had power to suspend an endowment member from all benefits of the order against whom charges should be made that, after admission, he had engaged in any occupation prohibited by the laws of the order. Provision was made for an investigation and hearing upon such charges, and it was provided that the findings and decisions of the executive committee should be final, unless an appeal was taken to the Great Camp. It was also provided that the executive committee might reinstate a suspended member, if it ■ appeared to them that the cause for such suspension had bean removed.

In view of these provisions, we cannot say that, under the law of the order in force at the time Mr. Brown became a member, the mere engaging in a prohibited occupation would ipso facto forfeit his rights under his contract or policy. The word “suspend ” in its natural significance rather imports something which may not be permanent, than that which necessarily is so; but which, while it ordinarily implies a temporary cessation, may, in certain connections, imply a termination. 37 Cyc. pp. 647, 648.

This renders it necessary for us to examine and discuss the question whether the subsequent legislation of the order was binding upon Brown. It should be borne in mind that the benefits of his certificate were based upon the proviso that he should have, in every particular, complied with the laws, rules, and regulations of the Great Camp Knights of the Modern Maccabees which were in force when the certificate was issued, or which might at any time thereafter be adopted. Does the fact that the law in question was adopted after Brown’s certificate was issued render it unreasonable or inapplicable to him and his certificate ?

In Wineland v. Maccabees of the World, 148 Mich. 608 (112 N. W. 696), Justice Ostrander, speaking for this court upon this subject, said:

“ In so far as arguments have been addressed to the point that the parties to a mutual benefit certificate may expressly agree to be bound by after-enacted by-laws, they are answered in favor of the validity of such contracts by a previous decision of this court (Borgards v. Insurance Co., 79 Mich. 440 [44 N. W. 856]), and, we think, by the weight of authority (Ross v. Modern Brotherhood of America, 120 Iowa, 692 [95 N. W. 207]; Supreme Commandery K. of G. R. v. Ainsworth, 71 Ala. 449 [46 Am. Rep. 332]; Beach v. Supreme Tent K. of M., 177 N. Y. 100-105 [69 N. E. 281]; 1 Bacon on Benefit Societies and Life Insurance [3d Ed.], §§ 185-188). See collection of cases in note to Supreme Council Am. L. of H. v. Champe (127 Fed. 541), 63 C. C. A. 282. Such an agreement being found — and there can be no doubt that it was made in the present case — the effect of the particular by-law upon the particular member depends upon whether it was one which the association might lawfully make; whether it should be applied retroactively; whether it disturbs vested rights; whether it is reasonable; some or all of which considerations, and others, may be, notwithstanding the agreement, involved in any case.”

In view of the facts that the liquor traffic was a prohibited business when Brown became a member of the order, and that he would have been ineligible to membership had he then been engaged in that business, and that the executive committee had then the power to make the suspension permanent, or reinstate the member, in the exercise of their judgment, and that the by-law was one tending to enhance the dignity and influence of the order, we are constrained to hold that the provision that, should a member engage in any of the prohibited occupations after his admission, his certificate should become null and void, was a reasonable by-law and was binding upon Brown. We are of opinion that the weight of authority supports this conclusion.

In a well-considered case, the supreme court of errors of the State of Connecticut, last June, in Grand Lodge A. O. U. W. of Connecticut v. Burns (Conn.), 80 Atl. 157, held that a member of a mutual benefit society, having expressly agreed to be bound, not only by the laws in force when he became a member, but also by those there after enacted, was bound by a subsequently enacted bylaw providing for forfeiture of benefits in case a member engaged in the retail liquor business; such by-law being reasonable, as tending to enhance the dignity and influence of the order, as well as to dimmish the risk of mortality. The following cases are cited by Chief Justice Hall, the writer of the opinion: Gilmore v. Knights of Columbus, 77 Conn. 58 (58 Atl. 223, 107 Ana. St. Rep. 17); Coughlin v. Knights of Columbus, 79 Conn. 218 (64 Atl. 223); Pain v. Société St. Jean Baptiste, 172 Mass. 319 (52 N. E. 502, 70 Am. St. Rep. 287); State, ex rel. Schrempp, v. Grand Lodge A. O. U. W., 70 Mo. App. 456; State, ex rel. Strang, v. Camden Lodge A. O. U. W., 73 N. J. Law, 500 (64 Atl. 93); Ellerbe v. Faust, 119 Mo. 653 (25 S. W. 390, 25 L. R. A. 149); Schmidt v. Supreme Tent K. O. T. M., 97 Wis. 528 (73 N. W. 22); Loeffler v. Modern Woodmen of America, 100 Wis. 79 (75 N. W. 1012); Langnecker v. Grand Lodge A. O. U. W., 111 Wis. 279 (87 N. W. 293, 55 L. R. A. 185, 87 Am. St. Rep. 860). See, also, Williams v. Supreme Council C. M. B. A., 152 Mich. 1 (115 N. W. 1060).

Was the forfeiture waived by the defendant ? It is said that this question was answered in the affirmative by the trial judge upon the authority of Reimold v. Insurance Co., 162 Mich. 69 (127 N. W. 17). We are of opinion that that case can be distinguished from the instant case. In that case the officers of the company acknowledged a liability, holding out that all they wanted was to determine to whom the money should be paid, and in that way encouraged the plaintiff in incurring expense in an attempt to solve the difficulty. In the instant case the first action of the executive committee was to notify the beneficiary and her attorney that the proofs of death showed that at the time of his death, and for some time prior thereto, Brown’s occupation was that of liquor dealer, a prohibited occupation, and that it was not a valid claim.

Was the failure to return assessments sufficient to constitute a waiver? We think not, under the circumstances here shown. The condition of return of assessments was that it should be in full of the certificate; the amount thereof to be determined. The amount was in dispute. The plaintiff, instead of abiding by this action, by appeal and by suit attempted to enforce her claim to the full amount of the certificate. Showalter v. Modern Woodmen of America, 156 Mich. 390 (120 N. W. 994).

Did the fact that Harry H. Herron, the tent finance keeper, was informed that Brown was engaged in the liquor business, and that he collected and remitted to the Great Camp assessments after he was so informed, constitute a waiver of the forfeiture ? We think not, for a number of reasons. Conceding that notice to an agent having full authority to act would be notice to, and knowledge of, the principal, it must be borne in mind that there is nothing in this record showing that Herron was charged with any duty to investigate the fact, or report the same to the Great Camp. His duty was to remit collections. His authority was limited and special. The contract was with the Great Camp, and the waiver must be by the Great Camp, with knowledge of the facts. Larkin v. Modern Woodmen of America, 163 Mich. 670 (127 N. W. 786); Grand Lodge A. O. U. W. of Connecticut v. Burns, supra. We are of opinion that notice to the local finance keeper was not notice to the Great Camp. In order to be effectual as waiver, notice of forfeiture must reach the Great Camp. We think that the weight of authority is to the effect that a ministerial officer of a subordinate lodge cannot waive the positive requirements of the laws of the order. See collection of authorities in Bacon on Benefit Societies and Life Insurance, §§ 431, 426.

We think that the court should have received in evidence the letter of the plaintiff’s attorney. He had appeared before the committees of the defendant order for the plaintiff, and there was no question as to his authority to write the letter which related to the assessments paid. Under the declaration, it is doubtful if plaintiff could recover for the assessments paid by deceased after he engaged in the liquor business. As the case must go back for new trial, the court will doubtless permit plaintiff to amend her declaration in that particular, if asked to do so.

For the errors pointed out, the judgment below is reversed, and a new trial granted.

Ostrander, C. J., and Bird, Brooke, and Blair, JJ., concurred.


author: Blair, J.

text:
    MYERS v. RADFORD.
    1. Attorney and Client — Fees—Value oe Services.
    In a suit for an accounting between an attorney and his client, in which there was a dispute as to the value and extent of services for which the attorney claimed compensation, upon evidence showing that the principal services in the case were rendered by other lawyers, who tried the action and examined the questions of law, and that a total of §14,918.79 was collected, the allowance of $1,000 as the attorney’s fee was sufficient.
    2. Same.
    The result was not affected by the faot that under a special agreement and assignment to the attorney of an interest in the claim, the client consented to a fee of $1,000 for a certain part of services rendered and to be rendered, it appearing that such assignment was merged in a subsequent transaction, and that the value of defendant’s services did not exceed the amount awarded.
    3. Same — Interest—Accounting.
    Interest on an attorney’s fees for services is not allowable where no statement was rendered until the hearing, although the client previously demanded an accounting.

      Appeal from Wayne; Murphy, J.
    Submitted June 14, 1911.
    (Docket No. 25.)
    Decided October 2, 1911.
    Bill by Elijah E. Myers against George W. Radford for an accounting. Mary D. Myers, executrix of the estate of Elijah E. Myers, deceased, was substituted as complainant upon his death. From a decree for complainant, defendant appeals.
    Affirmed.

      William C. Stuart, for complainant.

      Thomas A. JEJ. Weadock, for defendant.
   Blair, J.

This is a suit for an accounting, commenced by Elijah E. Myers in his lifetime, and revived in the name of his wife, as executrix, after his death.

The bill alleges that a proper accounting would show an indebtedness from defendant to complainant of several thousand dollars. The defendant answered, and claimed the benefit of a cross-bill, alleging that such accounting would show that complainant was indebted to defendant in a large amount, and praying a decree therefor.

For many years prior to the year 1906, the complainant, Elijah E. Myers, who in his prime was a national figure as an architect of public buildings, had been a client of the defendant and appellant. On February 22, 1895, the complainant entered into a contract with the county of Luzerne, Pennsylvania, for the furnishing of plans and specifications for a courthouse. The courthouse was never built, but Colonel Myers complied with his part of the contract by delivering the plans and specifications, etc. The first two payments of $5,000 each were made. The third payment of $10,000 was refused by the county, and in July, 1895, the matter was placed in the hands of John T. Lenahan, a lawyer at Wilkesbarre, Pa., who brought suit in the State circuit court of Luzerne county. Mr. Lenahan was employed by George W. Myers, representing his father, and on January 2, 1896, Colonel Myers assigned a one-half interest in the contract to George W. Myers. Mr. Lenahan did practically nothing with the case until 1897, when he made an application for change of venue. This application was yet undecided when, in September, 1899, the complainant consulted the defendant regarding the matter, at which time the services in question here were commenced by defendant.

On December 9, 1899, Colonel Myers and the defendant had a mutual settlement, resulting in .Colonel Myers giving the defendant a note, bearing that date for $4,613.60, payable on demand, with interest at 6 per cent. On that date, as collateral security for the note and an additional loan of $100 made at the time by defendant to Colonel Myers, the latter assigned his interest in the Luzerne county contract to defendant. On the 2d day of April, 1900, George W. Myers assigned his interest in the contract to defendant:

“ The said George W. Radford to account to the said George W. Myers for all amounts received on account of said one-half interest after first deducting therefrom the one thousand dollars as attorney fee of said George W. Radford, also one-half of all court costs and disbursements and other legal services incurred and to be incurred in the collection of the moneys due or to be become due under said contract.”

Complainant gave his written consent to this assignment. On April 11, 1900, during the absence of complainant in Mississippi, George W. Myers, in consideration of $150 paid to him by defendant, transferred to defendant “ all my interest in and to the foregoing agreement, and in and to the original contract, assigned as in said above agreement specified, and I also hereby guarantee that I am the owner of a one-half interest in said original contract; that I have not otherwise disposed of said contract or my interest therein, and that I have full and complete right to assign the same as herein.”

In the fall of 1902, Major Levi T. Griffin, then in the employ of Willard, Warren & Knapp, of Scranton, Pa., was employed in the ease, and on January 23, 1903, instituted suit in the United States court, as attorney of record, with his firm and Lenahan as counsel. On February 25, 1903, verdict was obtained for $14,750. Soon thereafter George W. Myers intervened in the case, claiming to be the owner of one-half of the judgment, and basing this contention upon the claim that his half interest in the original contract had been procured by the defendant herein fraudulently. An appropriate issue was framed, depositions were taken in Wilkesbarre and Detroit, and the son was defeated in his contention. The latter had also started a suit upon the chancery side of the Wayne circuit court against both Ms father and this defendant, seeking to set aside the assignment he had made to Mr. Radford. With the unsuccessful termination of the son’s effort to reach the judgment, the suit in the Wayne circuit was abandoned, and was finally dismissed without hearing. In this latter suit, the defendant herein was solicitor of record for both himself and Colonel Myers.

By August 22, 1903, the judgment, which had then grown to $14,918.79, had been paid in full. For services in the main case and in the .intervention of George W. Myers, Major Griffin and Messrs. Willard, Warren & Knapp received a sum of $1,500, of which $50.0 was for services rendered in the latter matter. Mr. Lenahan was given $500 for such services as he had performed. The defendant herein claims to be entitled to $4,000 for services rendered by him in these two matters, $1,500 of which is claimed for services performed in the two proceedings begun by the son. Upon August 22, 19®3, defendant, after paying the fees and disbursements of other counsel, was in receipt of $12,711.23 under the judgment.

From a decree finding a balance due to complainant at the date thereof of $2,004.80, the defendant appeals to this court.

The whole case hinges upon the extent and value of defendant’s services in the collection of the courthouse claim.

Defendant testified:

“ I claim in the most positive manner to have taken complete charge of that case from the time I was employed in it until it was finished.”

Prior to the institution of suit in the Federal court at Scranton, defendant, and later Mr. Griffin and his firm, devoted their efforts to inducing Mr. Lenahan to bring the case to trial in the State court.

Defendant was well acquainted with Mr.. Griffin, who had been for many years an eminent member of the Detroit bar, and wrote to him on November 14, 1902:

“ Now, however, that I feel the matter is in safe hands I shall be guided entirely by what you advise in this matter.”

March 3, 1903, he wrote:

“When I placed the matter in your hands, as I did, I knew the man I was trusting, and my trust is of such a character that I am willing to leave it entirely to you.”

March 5, 1903, he writes:

“ Had it not been for you, I would now be precisely in the same position I was two years ago, had I not found some one else to take hold of the matter.”

March 9, 1903, he writes:

“ I considered and knew you to be entirely competent to handle the case, without any assistance from anybody whatever, except such as I might possibly be able to give you, and also except such as you, in your judgment, might think you would need from local attorneys, on account of your handicap by reason of deafness.”

Defendant also knew that the firm with which Major Griffin was associated was of high repute and composed of eminent and distinguished lawyers. The questions which might arise would concern the constitution, statutes, and court decisions of Pennsylvania, as to which a foreign attorney would naturally defer to the opinions of eminent lawyers of that State.

On March 2, 1903, after judgment in the principal case, Mr. Griffin wrote to Radford:

“Write to Lenahan, asking him to make out his bill separate. He has nothing to do with this collection. He had the claim for several years, but did not collect it. You really took it out of his hands, and it was collected by this firm with my aid. Out of deference to Lenahan. and the courtesy that exists at the bar, and, for that matter, I may say sincerely, with the wish to have him participate in the trial, he was put on the writ, together with this firm, as of counsel. He performed his part all right, and did as good work as any one, but, as you said, and as Judge Willard said, the case tried itself. I could have tried it myself, deaf as I am, with your assistance, or you could have tried it with mine, or this firm could have tried it alone. * * * You have nothing to fear now. You have this firm behind you, and, moreover, you have your judgment, and need not ask any odds of Mr. Lenahan or any one else, and can give such specific instructions as you see fit.”

In a memorandum, Mr. Griffin wrote:

“ I think it proper for me (Mr. Griffin) to add that I do not at all share in Mr. Lenahan’s feelings towards Mr. Radford. It is sufficient answer to say that within 40 days after this firm concluded to take active measures in the matter the judgment was obtained and the amount practically collected. It is a matter of no consequence-whose name was used as attorney for plaintiff. Every step that was taken had the approval of some member of this firm.”

In his confidential letter of March 26, 1903, Mr. Griffin inclosed memorandum of conversation with Judge Willard, in which the judge said:

“ Memorandum made for Judge Willard. The fact is you have saved Radford’s entire claim by going into the United States court and he (Radford) ought to appreciate it.”

At the foot of this memorandum, Mr. Griffin writes:

“I replied that you did appreciate it and have manifested it.”

On July 29, 1903, Mr. Griffin wrote to Radford, after learning that the George W. Myers case would be decided in their favor:

“In view of our success, I take it that the present charge does not come out of your pocket, but I wish it to be reasonable as respects Mr. E. E. Myers and satisfactory all round. I am quite willing, therefore, that you should fix it at your own figures, and I will endeavor to see that it is carried out accordingly. * * * I occupied in ail about three weeks preparing for the oral argument and afterwards preparing the brief. I agree that this seems a long time, but everything is uncertain in the law, and I am not willing to leave a point untouched or the presentation of it to the best possible advantage according to my judgment. * * * On the whole, I had thought that a lump sum of $500 would be entirely reasonable for services rendered of this firm, of which I should hope they would contribute $250 to my impoverished financial condition; but, of course, that is a matter wholly for them, as X am not in a position to make any claim as of right.”

June 11, 1903, defendant wrote:

“Yours of the 9th instant, also brief, received yesterday. At 10 minutes past 12 last night I finished reading the brief; you can imagine how much I enjoyed it. The case ought to have been won by the mere reading of the testimony; if the brief does not cinch if, I shall be the most surprised individual in Detroit.”

August 1, 1903, he writes:

“As to your charge, personally I consider the lump sum of $500 as proposed entirely satisfactory, and heartily consent thereto, on condition that you get not less' than half of it; you ought to have it all.”

On May 19, 1903, Major Griffin wrote, relative to defendant’s attendance at the hearing of the George W. Myers case, which had been set for May 26th:

“ You must act on your own judgment about coming. Certainly it is not necessary; yet it would be very pleasant for me, and the amount involved is so large it certainly is nothing against you that you should be at least present at all of the proceedings.”

In his letter of April 18, 1903, Mr. Griffin gave Mr. Radford explicit and detailed directions as to the method to be pursued in taking the depositions at Detroit in the George W. Myers case, and defendant followed them, as he acknowledged in a letter to Mr. Griffin.

After a careful consideration of the letters between defendant and his attorney, and considering the probabilities of the case, we concur in the opinion of the circuit judge that:

“No one may read the voluminous correspondence which passed between the defendant and Major Griffin without being driven to the conclusion that the legal questions involved, both in the main case and in the intervention proceedings, were investigated by the latter and not the former; that Mr. Radford relied implicitly and almost exclusively upon Mr. Griffin for investigation of the legal principles in issue; and that the real work of preparing and directing the Federal case, both upon the law and the facts, was done by the latter.”

We also concur in his conclusion that:

“For his entire services in these matters, the action against the county of Luzerne and the proceedings, both Federal and State, instituted by George W. Myers, he will be amply compensated by an allowance of $1,000.”

It is urged, however, that the circuit judge failed to consider the effect to be given to the assignment of April 2d, fixing a fee of $1,000 for collecting a one-half interest, and failed to attach sufficient importance to the decision of the Federal judge in the intervention proceedings. The assignment of April 2d was merged in the assignment of April 11th, and its persuasive force is not sufficient to affect the result.

It is said that Judge Archbald’s decision (124 Fed. 436) is a final adjudication in the Federal court that defendant was the absolute owner of one-half of the judgment, and therefore, since defendant was merely making a present to complainant, he had a right to fix his compensation for his services. In the course of his opinion, Judge Archbald said:

“Ool. Myers explained to Mr. Radford that one-half the contract had already been assigned to George, and it was recognized that if he held onto the assignment there would be little, if anything, coming to Col. Myers after he had settled with Radford. But it was stated by Col. Myers that the assignment was without consideration, and if he succeeded, as he hoped, in getting George to surrender it, then Radford was to account to him for that interest also, after deducting for expenses and services. The trust relation so established still continues.”

On March 16, 1903, defendant wrote to Major Griffin:

“The Colonel advises me there was absolutely no consideration whatever for this assignment, and that the only reason for his doing it was because of the boy’s importunities, and who had also succeeded in enlisting his mother to persuade the Colonel in his behalf, upon promises that he would turn over an entirely new leaf, lead a different life, and help his father, which promises he failed to keep. * * * The Colonel’s indebtedness to me far exceeds one-half of the judgment, and I intend to pay him any surplus which may be left above the expenses of the suit, my expenses, and services, and his indebtedness, for the reason that I regard the assignment from Col. Myers to his son without consideration, and the boy never had any actual interest, and that when he assigned to me I took it for the benefit of the Colonel.”

March 27, 1903, he writes:

“Geo. W. Myers knew then, and knows now, that I took the absolute assignment on the basis of the claim of the Colonel that Geo. W. Myers had no actual interest in the contract, and that whatever I realized, over and above the debt of the Colonel, and services and the expenses of the litigation, should go to the Colonel; and as the debt of the Colonel to me far exceeds one-half of the judgment you can readily see that it is the Colonel’s battle I am fighting, and not my own, except the protection I am entitled to for the expense of the litigation and my own services.”

We deem it to be clear that Judge Archbald did not intend to determine, and did not in fact determine, that the trust relations between defendant and Colonel Myers no longer existed.

We further concur with the circuit judge in the opinion that complainant demanded an accounting, and that defendant furnished no statement or bill of his services until upon the hearing, and therefore was not entitled to interest thereon.

For a further discussion of the questions involved, we refer to the elaborate and convincing opinion of the circuit judge. Indeed, we might well have adopted that opinion without further comment.

The decree is affirmed.

Ostrander, C. J., and Bird, McAlvay, and Stone, JJ., concurred.


text:
    WEBB v. CONCORDIA FIRE INSURANCE CO.
    Insurance — Pro Rata Clause — Validity of Policy — Eire Insurance.
    The proviso in a policy of fire insurance that the insurer should only be liable for its pro rata share of the loss to be determined by the proportion that its policy should bear to the total insurance, whether valid or not, restricted the liability of defendant insurance company to its pro rata share only, although a previously existing policy on the property was invalid and the first insurer refused to pay on the ground that the insured failed to notify it of the taking out of a second policy.
    Appeal from Lapeer; Smith, J.
    Submitted June 15, 1911.
    (Docket No. 68.)
    Decided October 2, 1911.
    Bill by Thomas Webb against the Concordia Fire Insurance Company to set aside an adjustment and settlement of a fire loss and obtain the payment of complainant’s loss under a policy of fire insurance. From a decree for complainant, defendant appeals. Reversed, and bill
    dismissed.

      William E. Brown, for complainant.
    Stevenson, Carpenter & Butzel, for defendant.
   Blair, J.

On October 8, 1908, complainant procured insurance in a mutual insurance company; the policy containing the following clause:

The assured shall not be entitled to recover under this policy if he shall procure any other insurance, whether valid or not, upon the property insured.”

On the 19th day of August, 1908, complainant procured insurance in defendant company, after notifying the agent issuing the same fully of the prior insurance. This policy contained the following clause:

“ This entire policy unless otherwise provided by agreement endorsed hereon or added hereto shall be void if the insured now has or shall hereafter make or procure any other contract of insurance whether valid or not on property covered in whole or in part by this policy.”

Also the Michigan standard form clause, as follows:

“ This company shall not be liable under this policy for a greater portion of any loss on the described property * * * than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property, and the extent of the application of the insurance under this policy or of the contribution to be made by this company in case of loss, may be provided for by agreement or condition written hereon or attached or appended hereto.”

A loss occurred October 20, 1908, of which complainant notified both companies. The loss was adjusted by the adjuster of the mutual company, and defendant paid its proportion of the loss to complainant and received a release; both parties assuming that the mutual company would pay its proportion. The mutual company refused to pay any part of the loss, on the ground that the additional insurance procured without notice to it avoided its policy. Complainant thereupon instituted this suit to cancel the settlement with defendant and recover the balance of the insurance. Complainant obtained a decree in the circuit court, and defendant appeals to this court.

The single question presented for our determination is: Does the pro rata clause apply to a case like this, where the prior policy becomes void ipso facto upon the issuance of the subsequent policy ?

Counsel for defendant contend that—

“The phrase ‘whether valid or not’ was inserted in the policy to cover just such a case as this. * * * Manifestly the pro rata clause can have no effect and cannot become operative until there has been a loss and that loss ascertained. Therefore, whether a policy has been forfeited and is invalid at the time of the loss, or whether it is still in force, makes absolutely no difference under the wording of the policy” — citing Liverpool, etc., Ins. Co. v. Verdier, 35 Mich. 395; Cassity v. Insurance Ass’n, 65 Miss. 49 (3 South 138); London, etc., Ins. Co. v. Turnbull, 86 Ky. 230 (5 S. W. 542).

As stated in complainant’s brief:

“ It is the contention of the complainant that there was no concurrent insurance by the two companies, and could not be without the consent of both companies. That, while defendant knew that there was another policy covering the same property, the Farmers’ Mutual never consented to any concurrent insurance. That by reason of taking the policy in the defendant the first policy became wholly void. See Emery v. Insurance Co., 51 Mich. 469 [16 N. W. 816, 47 Am. Rep. 590]; A. M. Todd Co. v. Insurance Co., 137 Mich. 188 [100 N. W. 442]; Cronin v. Fire Ass'n, 123 Mich. 277 [82 N. W. 45]; New York Central Ins. Co. v. Watson, 23 Mich. 486. Nor will the fact that a claim is made under the first policy after the loss annul the subsequent policy. Cowart v. Insurance Co. [114 Ala. 356] 22 South. 574. If the policy in the Farmers’ Mutual became void by reason of taking a new policy upon the same property, it became void upon the day of the issuance of the new policy in the defendant company, on August 19, 1908, and was never in force after that date. It is also claimed by complainant that, if the Farmers’ Mutual policy became void by reason of taking the policy in the Concordia Company upon the same property, it became void for all purposes, not only for the purpose of avoiding liability of the Farmers’ Mutual, but it was so void that there was no policy in existence after that date, for any purpose whatever, except the policy of defendant, and that defendant was the sole insurer of the property at the time of the loss, October 20, 1908, and was liable for the full loss of the property covered by their policy. There was no concurrent insurance clause in either policy.”

We think it was the legislative purpose in requiring this provision in the statutory policy that all policies in existence at the time of the loss should be taken into account, whether void or valid. In the Verdier Case, Chief Justice Cooley said:

“ The plaintiff in error required the insured to stipulate in their policy that in adjusting a loss other existing policies should be taken into the account, even though forfeited; the plain purpose being to protect the company against the necessity of contesting with the insured any question of the validity or invalidity of other existing policies. This was a competent provision and not unreasonable.”

In Donogh v. Insurance Co., 104 Mich. 503 (62 N. W. 721), Justice Montgomery said:

“ Plaintiff contends that, inasmuch as the policy attempted to be taken out in the Liverpool & London & Globe contained a clause like that which was relied upon by the defendant, such subsequent policy was void, and therefore did not operate to forfeit the first policy. There is authority to sustain this contention of plaintiff, to the extent that, where there is a stipulation in the policy merely that it shall be avoided by subsequent insurance, the first policy is not avoided by taking out a new policy, which is wholly inoperative and void. See Gale v. Insurance Co., 41 N. H. 170; Stacey v. Insurance Co., 2 Watts & S. [Pa.] 506; Philbrook v. Insurance Co., 37 Me. 137; Schenck v. Insurance Co., 24 N. J. Law, 447; Jackson v. Insurance Co., 5 Gray [Mass.], 52. But the stipulation in this case goes further. It provides that the policy ‘shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance, whether valid or not.’ Language could not well be more specific. The evident purpose of the provision is to guard against the possibility of all apparent motive or inducement to commit fraud.”

As remarked by the author of May on Insurance, vol. 2, § 3656:

“It is difficult to see why the words, ‘Valid or not,’ do not in all common sense cover a void policy.”

The decree is reversed, and the bill of complaint dismissed, with costs to defendant.

Ostrander, C. J., and Bird, Brooke, and Stone, JJ., concurred.


author: Blair, J. Ostrander, C. J.

text:
    JOHN v. McNEAL.
    1. Equity —Land Contracts —Forfeiture—Vendor and Purchaser.
    It is within the province of the court of equity to relieve the purchaser of land under a land contract providing for monthly installments from the effect of a forfeiture of his contract rights after the entry of the vendor upon the premises on default in the payments.
    2. Vendor and Purchaser — Forfeiture — Land Contracts — Notice of Forfeiture.
    Within the terms of a.land contract containing provisions for forfeiture of the payments as stipulated damages if the contract should be forfeited for the vendee’s default, or for declaring the entire contract price due at the option of the vendor, and stipulating that in the event of such default the vendee should forfeit his rights and be subject to removal in the same manner as a tenant holding over contrary to the terms of the lease, but not providing for re-entry without notice of forfeiture, the purchaser is entitled to possession of the premises after default and until he is notified of the election of the vendor to declare the forfeiture.
    8. Same — Re-entry as Notice.
    Such notice is not given by the vendor’s taking possession of the premises without election to rely on the forfeiture or notice thereof to the purchaser.
    4. Same.
    By dealing with the vendee as if the contract relations continued the vendor recognized the existence of the rights of the vendee thereunder.
    6. Same.
    In order that a contract may create a forfeiture the provisions therefor must be clear and unequivocal.
    Appeal from Ingham; Collingwood, J.
    Submitted June 15, 1911.
    (Docket No. 58.)
    Decided October 2, 1911.
    Bill by Mosey John against Andrew J. McNeal and others for the specific performance of a land contract and an accounting. From a decree dismissing the hill, complainant appeals.
    Reversed.

      G. P. Black, for appellant.

      Walter 8. Foster, for appellees.
   Blair, J.

This is a suit in equity brought by Mosey John, of Bay City, Mich., a Syrian, as complainant, against Andrew J. McNeal and Emily B. McNeal, of Lansing, Mich., who are impleaded with Joseph Moore, Elenora Moore, Frank Libby, and Harriet Libby, as defendants. The defendants McNeal appeared and answered complainant’s bill, and the rest of the defendants appeared, but were defaulted for failing to plead, answer, or demur.

The object of the bill is to obtain relief from a forfeiture by defendant McNeal of complainant’s rights under a land contract, whereby the complainant purchased, on November 7, A. D. 1908, by a written contract from the defendants McNeal, certain real estate in the city of Lansing, for which he agreed to pay to them $3,400, $500 of which purchase price was paid upon execution of the contract, and the balance was to be paid in installments of $15 per month, with interest at 6 per cent, per annum, payable monthly.

The contract contained, among other provisions, the following:

“All buildings and improvements now on, or that shall be placed or made on said premises, shall remain thereon as security for the performance by second party of this contract, and should default be made (and said contract be forfeited), said buildings and improvements and all payments made on said contract shall be forfeited to first party as stipulated damages for nonperformance of this contract, or first party may at his option declare all sums unpaid immediately due and payable and enforce the collection thereof at law and make conveyance as aforesaid. * * * It is further mutually agreed that second party may take possession of said premises at once and remain thereon as long as he shall perform all the covenants and agreements herein mentioned on his part to be performed, and no longer; and that if he shall at any time hereafter, violate or neglect to fulfill any of said covenants or agreements he shall forfeit all right or claim under this contract, and be liable to be removed from said premises in the same manner as is provided by law for the removal of a tenant that holds over premises contrary to the terms of his lease, and it shall be lawful for first party at any time after such default to sell and convey said premises, or any part thereof to any other person without becoming liable to refund any part of the money received on this contract, or for any damages on account of such sale. And it is hereby expressly understood and agreed that time shall be deemed as of the very essence of this contract,” etc.

Complainant being behind in his payments, defendant McNeal, on March 4, 1909, served notice on him to pay up or quit. Some payments were made after this, and there was considerable correspondence and conversation about the complainant getting a horse for McNeal, the value of which was to be applied on the contract. On May 22, 1909, McNeal wrote to complainant with reference to the horse, to which complainant replied on June 4th. Complainant did not bring the horse, and on June 15th McNeal took possession and contracted to sell the lands to the defendants Moore.

The fourth paragraph of the bill of complaint, which was admitted by the answer, is as follows:

“Your orator further represents that he is ready and willing to comply with the terms of his agreement contained in said written contract; that on the 23d day of October, A. D. 1909, he, through his agent and attorney, C. P. Black, who was duly authorized by your orator, offered to pay to said defendants Andrew J. McNeal and Emily B. McNeal all sums that were due and might be due upon said contract up to the 1st day of November following, and otherwise perform each and every condition of said contract enjoined upon your orator, which offer so made by your orator’s agent was then and there refused by defendants Andrew J. McNeal and Emily B. McNeal, who then stated that there was no use of your orator making any tender of any sums that might be due from him under said contract, as they had sold the premises in question, on the 15th day of June, A. D. 1909, to Joseph Moore and his wife, Elenora Moore, jointly, and upon no condition would they recognize any rights of your orator in said premises.”

The court entered a decree dismissing the bill of complaint, and complainant appeals to this court.

The fact that complainant’s rights under the contract were subject to forfeiture at law, and that defendant’s entry was lawful, does not finally determine the rights of the parties. It is the province of a court of equity to grant relief in just such cases. As said in Hodges v. Buell, 134 Mich. 162 (95 N. W. 1078):

“We have repeatedly held that equity will not render aid in enforcing forfeitures, but will interpose to relieve from them.”

We are satisfied from this record that it would be oppressive and unjust to forfeit complainant’s rights under the contract; his default, in our opinion, being due to ignorance and the unreliability of his agent, Corey, rather than to dishonest purpose. We are therefore of the opinion that his offer, working no injustice to defendant* should have been accepted. Stickney v. Parmenter, 35 Mich. 237.

The decree is reversed, and the record remanded for an accounting to determine the amount which complainant should pay to defendant McNeal, within such period as the court may decree.

Ostrander, C. J.

I agree with Mr. Justice Blair that the testimony supports the conclusion that equity ought to relieve from the forfeiture of complainant’s contract rights, if they were forfeited. But I am of opinion that complainant’s rights were not forfeited. It is difficult — impossible—to harmonize the various provisions of the contract with respect to the results of a default on the part of the vendee, if all language employed therein is given a literal interpretation. It is provided that—

‘ ‘ Should default be made (and said contract be forfeited), said buildings and improvements and all payments made on said contract shall be forfeited to first party as stipulated damages for nonperformance of this contract, or first party may at his option declare all sums unpaid immediately due and payable and enforce the collection thereof at law and make conveyance as aforesaid.”

This provision is inconsistent with the idea that a mere default in making payments forfeited the contract and all rights thereunder. It is only consistent with the idea that something besides a default of the vendee was necessary to determine the contract relations of the parties. It is further provided that—

“ If he [the vendee] shall at any time hereafter violate or neglect to fulfill any of said covenants or agreements he shall forfeit all right or claim under this contract, and be liable to be removed from said premises in the same manner as is provided by law for the removal of a tenant that holds over premises contrary to the terms of his lease,” etc.

This clause must be read with the one before referred to, and, so read, cannot be held to mean that a mere default in making payments determined all rights under the contract. Forfeitures are not favored in the law, and, while they may be contracted for, the provisions of contracts relied upon to establish them must be clear and unequivocal. In the case at bar, various and repeated defaults of the vendee (complainant) occurred. The vendor did not assume that the contract relations were thereby determined. On the contrary, he sought payment of his past-due demands and notified the vendee, not that the contract was forfeited, but that he must quit or pay what was due. Thereafter he dealt with the vendee as though the contract relations still existed. We must therefore proceed upon the theory that to the time when the vendor claims to have made a peaceable re-entry the contract relations of the parties continued.

The contract contains no provision for re-entry of the vendor upon default of the vendee. It does provide, as has been pointed out, that the vendee, upon default, shall forfeit all right or claim under the contract, and shall be liable to be removed in the same manner as is provided by law for the removal of a tenant holding over contrary to the terms of his lease. I think the plain meaning of the forfeiture clause of the contract, all of its provisions considered, is that the vendor must, by election and notice to the vendee, determine the contract, declare it forfeited, and thereafter proceed to reclaim by entry, or otherwise, the possession and control of the premises. Until such election and declaration, the possession of the vendee is lawful. Holding these views, I find that the contract was not forfeited, and that, under the circumstances disclosed, complainant is entitled to possession of the premises in question. I agree to the disposition of the case indicated in the opinion of Justice Blair.

Bird, Brooke, and Stone, JJ., concurred with Ostrander, O. J. Blair, J., concurred in the result.