author: Ostrander, J.

text:
    CLEMENT v. CROSBY & CO.
    1. Negligence — Dangerous Compounds — Torts—Explosives.
    Negligence in placing on the market a compound for blacking stoves, without a label or notice of its dangerous character, may be inferred from evidence that it was about two-thirds naphtha and exploded while the plaintiff was applying the compound.

    3. Same — Proximate Cause.
    The fact that the plaintiff testified that she turned off the gas, and that no fire or flame was left on the stove to cause the explosion, would not preclude a recovery, if the jury believed that such a flame caused the explosion.
    3. Trial — Practice—Special Findings.
    Special questions as to the manner in which the explosion was caused were not proper to submit to the jury where they were inconclusive of the right to recover.
    4. Negligence — Explosive and Dangerous Compounds — Cause.
    The plaintiff was not bound to aver or prove what caused the compound to ignite.-
    5. Trial — Argument op Counsel.
    Improper argument of plaintiff’s attorney, to the effect that demurrer after demurrer had been interposed and difficulty experienced because of appeals, etc., was not prejudicial where the plaintiff was badly burned, and recovered a verdict of §1,500.
    Error to Wayne; Hosmer, J.
    Submitted April 28, 1909.
    (Docket No. 107.)
    Decided July 15, 1909.
    Case by Alice D. Clement against Crosby & Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Alex J. G-roesbeck and Edwin H. Henderson, for appellant.

      James H. Pound, for appellee.

      Plaintiff was putting stove polish or enamel upon her gas range with a brush, when, in some way, it ignited, and she was severely burned. She brought her action for damages against both the manufacturer of the compound and the merchant who sold it to her. An order overruling the demurrer of the manufacturer to the declaration was affirmed. Clement v. Crosby & Co., 148 Mich. 293 (111 N. W. 745, 10 L. R. A. [N. S.] 588). An order sustaining the demurrer of the merchant was affirmed. Clement v. Rommeck, 149 Mich. 595 (113 N. W. 286, 13 L. R. A. [N. S.] 382, 119 Am. St. Rep. 695). A reference to the opinions of this court in these cases will discover the nature of the alleged duties of the defendants. Later plaintiff filed an amended declaration, in which Crosby & Co. is made sole defendant, which contains the added averment that the sale was in violation of Act No. 181, Pub. Acts 1899. The testimony on the part of the plaintiff tended to prove that the composition was some pigment, probably carbons, and volatile matter consisting almost entirely of naphtha.- The volatile matter was 66 per cent, of the whole. It was volatile at an ordinary temperature, produced vapor, and that vapor, mixed with air, is explosive. She had no notice, knowledge, or warning of the dangerous nature of the preparation. As to the manner in which the injury occurred, she testified: That, having applied the polish to the top and to three sides of the range, she was on her knees by the side of the range applying the polish with a brush. That the brush seemed to “flame right up.”

      “Q. Was there any flame, or what was the first thing that you discovered about it ?

      “A. Why, the flame. * * * I don’t know when it lighted. I don’t know if I went to put it back near the can or not; but the first thing I was all burning, my hair and clothes.
    “ Q. You were burning, and how about what you had on; was the range itself, was that on fire ?

      “A. Yes, it was burning all ovór the top of the stove, burning all over.

      “Q. Did the can itself burn, or not ?

      “A. Oh, yes, the can went right up to the ceiling. It flamed right up. * * *
    “Q. And you claimed it was from the friction ?

      “A. Yes, sir.

      “Q. There was no flame anywhere near it ?

      “A. No, sir.

      “Q. No red hot iron ?

      “A. No, sir.

      “Q. There was no iron perceptibly hot ? All you claim for it, it was warm ?

      “A. Yes, sir; the whole of that side of the stove was warm. I had covered about half of that stove when I noticed the brush ignite. Up to that time I had not noticed that the heat of the stove had caused any flame or burning, nor was there any odor. I used the brush the same as I would in painting the floor, just spread it on.
    Iused just enough pressure to spread on the enamel, the same as I done all over the stove. * * *

      “Q. There was a little flame at first came from the brush ?
    “A. Yes, sir.

      “Q. Then what did it do, spread ?
    “A. I don’t remember whether I went and put the brush back near the can; but the nest thing I was all in flame. * * *

      “■Q. As a matter of fact, Mrs. Clement, you do not know how you caught afire, do you, yourself ?
    “A. I don’t know. It was the polish that ignited me.

      “Q. As near as you can get to it, and what you want us to understand, is that the friction of the brush on the stove itself caught fire ?
    “A. Yes, sir.

      “Q. Now, as a. matter of fact, and is it not true this stove was lit ?

      “A. No, sir.

      “Q. And that you got the brush and the enamel close to the flame ?
    “A. No, sir.

      “Q. And in that way ignited it ?
    “A. No, sir; there was no flame near the enamel, and the stove was not lit, and there was no flame there, and the brush became ignited by friction.

      “Q. Is there any chance of your being mistaken on that ?

      “A. No, sir; there is not the slightest. There was not sufficient heat on that part of the stove to even cause smoke up to the time I saw the flame, and there was no odor or any evidence of burning whatever; but suddenly there was a flame.”
    The plaintiff introduced the testimony of two chemists, one of whom made an examination of the compound known as 6-5-4 in the fall of 1906, and determined approximately the constituent parts in it. He testified: That naphtha will not ignite if rubbed on a piece of iron on a brush; that anything raised above a low red heat or lighted match or a flame would ignite it; that if there was no fire in the stove it would not catch fire; that mere friction on an ordinary stove with a brush would not ignite it. The other chemist testified that brushing the compound on the side of a cold stove would not ignite it, and he did not think it would ignite if it was a warm stove. It appears that certain tests were made during the progress of the trial in the basement of the building in which court was held, in" which a can of the compound known as 6-5-4 was used, of some of the results of which experiment one of the witnesses for the plaintiff, recalled, testified that it required a naked flame to ignite it.

      “Q. You saw what we did down there this morning ?

      “A. Yes, sir.

      “Q. Took a red hot iron and painted it on with a brush ?
    “A. Yes, sir.

      “Q. And it did not ignite ?

      “A. No.
    “Q. And you saw a flame held over it within two inches of it for a considerable length of time and it would not ignite ?

      “A. Finally it ignited after it had a chance to volatilize.
    “Q. It was held and waved back and forth until it got close enough to light, or ignite ?

      “A. About an inch and a half.

      “Q. And that was quite a flame like on a torch ?

      “A. Yes, sir.

      “Q. A pretty good sized flame ?

      “A. Well, that is immaterial, a match would ignite it the same distance.

      “Q. Well, the flame is not as large?

      “A. It does not matter.
    “Q. Well, it was a good sized torch flame ?

      “A. It would ignite more readily; it would volatilize a little more readily on account of the heat from the torch.

      “Q. How long do you think you could wave that torch a distance of four inches from that without lighting it ?

      “A. It depends upon the temperature.

      “Q. Take the temperature such as we have in this room, 72?

      “A. I don’t know how readily it would volatilize, I never tried it.

      “Q. It depends upon the temperature of the room, and the proximity of the flame to it ?

      “A. Yes, sir.

      “Q. But it is volatile considering its constituent elements ?

      “A. Yes, sir.

      “Q. Pure naphtha will volatilize more quickly than that mixture as this is ?

      “A. Yes, sir.”
    The testimony for defendant tended to prove that the composition or enamel had been manufactured for several years, that the manufacturer regarded it as safe, had never heard of its exploding, or that it would ignite from the friction caused by spreading it on iron with a brush —that it would not ignite unless in contact with a flame. A distributor of the product for the manufacturer testified to sales of 10,000 cans in a period of three years without having heard a complaint. A motion to direct a verdict for defendant was denied; the court saying:
    “ I think I will let it go to the jury on the question of whether the composition which is substantially two-thirds naphtha is, or is not, a dangerous article, or ought to be sold upon the market.

      “Mr. Henderson: They have cut out of the declaration that which would allow us to show that she was guilty of contributory negligence.

      “The Court: I don’t care what the declaration is, I will decide that it should go to the jury on that theory. I will let it go to the jury upon whether its character ought to have been expressed upon the box. The only way you can rid of it is by the verdict of the jury or a decision of the Supreme Court. If she knew from the smell of it that naphtha was one of its constituent parts, and the jury find that the proximate cause of the injury was her own carelessness, that is the end of this case. If I had opened that box, or you had opened that box, I think either one of us would have recognized the fumes of naphtha. I think the jury are warranted from the testimony in finding that there was flame around there somewhere.

      “Mr. Henderson: Supposing she had stepped on a match and set fire to her dress, and then set fire to this, we would not be liable. * * *

      “The Court: Well, I am going to let it go to the jury. * * * The theory on which I let it go to the jury is the question of whether it was negligence to put up an article which was composed of two-thirds naphtha, because the evidence is that about two-thirds of it was naphtha, without making upon the box something to indicate the presence of such a product. That is the substance of the theory, and whether the fact that that was not marked on the box was really the efficient cause of the accident.”
    The jury were instructed:
    “That by the common law, itself, the unwritten law of this land, it is essential that a manufacturer who puts up an article which is liable to cause injury to the ignorant must of necessity put upon his package proper information of the danger which is to be apprehended by the party who uses the article, and if you find in this case, gentlemen of the jury, that the article in question was liable, when mixed with air, to explode or to ignite under circumstances which would become a menace to those ignorant of its properties, then I charge you, gentlemen of the jury, that it was the duty of the manufacturer of the article to put a proper and sufficient warning as to its contents upon the can. Now, there are some of us, gentlemen of the jury, I think, on opening of that can, would have been aware of its contents. Those who have used naphtha for any purpose, doubtless, have recognized the odor of naphtha, or known that it was one of the lighter constituents of crude petroleum, and perhaps, gentlemen, we might not have used the article in such a manner as to produce an injury; but unless you find in this case, gentlemen of the jury, that the plaintiff had, or ought to have had, that knowledge, then unquestionably, if she was injured in the innocent use of the article, in the manner in which the counsel has claimed in this case, under those circumstances, gentlemen, she would be entitled to recover such damages as would compensate her for the injuries which she has sustained. Now I do not mean to say, from what I have said, that the accident occurred in the manner in which she has detailed, because, I think, I would be intruding upon your province, if I did. It is possible that you should find in this case, gentlemen of the jury, that the explosion may have come from a leakage in the can itself, and that that was the proximate cause of the injury. It is possible, gentlemen of the jury, that you may disbelieve the testimony of the plaintiff as to the method of the injury, and so, gentlemen of the jury, find that the defendant is not responsible in any way for the damage which occurred; but I think it belongs to you, from the evidence which has been adduced before you, to say, if in your judgment you see fit, that she was injured by reason of the fact that no warning was given of the nature of the contents of the package — that is, of the dangerous nature — I may say, if you find it to be dangerous, of the contents of the package, and you may find that, without negligence on her part, she was injured in the manner in which she has detailed. * * * If the defendant be liable for negligence, and it occurs either from friction, or, as I say — you have heard the testimony that it could not occur in that way — or from the striking of a match, or from the gas which still remained lit upon the stove, then I say to you, no matter if it occurred in those ways, if you find that the sale of the article without proper warning was the proximate cause of the injury, and she did not contribute thereto, whether it occurred in any of these ways, still the defendant would be liable.”
    Errors are assigned upon the instructions so given. Errors are assigned upon the conduct of the attorney for plaintiff and upon statements made by him to and in the presence of the jury. Three special questions, viz.:

      “First. Was there any ignition of the compound known as 6-5-4 by friction or through spontaneous combustion, at the time plaintiff alleges she was injured? If so, which?

      “ Second. Was the compound 6-5-4, while being used in the manner described by plaintiff in her testimony, ignited by friction?
    “ Third. Does the jury know how the compound 6-5-4 was ignited when being used by plaintiff at the time she claims she was injured?” — were framed by counsel for defendant.
    “ The Court: I am asked to submit three special questions to the jury. I think they are inclusive, and refuse them for that reason. Note an exception.”
    Counsel for defendant presented requests to charge, which were refused; the sixth and seventh of them being:

      “ (6) I charge you in this case that there is no evidence, except that given by Mrs. Clement and her sister, Mrs. Hawkins, as to how the accident occurred. Mrs. Hawkins testified that previous to washing the dishes she went to the gas stove for the purpose of turning off the gas because she found the water hot enough. When she examined the stove, she found that the gas had already been turned off and positively swore that there was no flame. Mrs. Clement, the plaintiff, has testified: That she turned off the gas before using the enamel or compound 6-5-4. That after turning off the gas she opened the can and then proceeded to spread a portion of the contents on the stove, covering two or three sides before there was any difficulty. That the stove was not even hot. That she purposely refrained from spreading the mixture on that part of the stove closest to which the fire had been, in order to give it a chance to cool. That while spreading the mixture or compound she did not notice any heat. Both she and her sister were positive in their statements regarding it. That while spreading the mixture or enamel in this manner, through friction, there was a fire or flame or explosion. That the contents of the can that she was holding in her hand burst into a flame that reached either to or near the ceiling of the room. Unless you believe this testimony of the plaintiff and her sister, I charge you that your verdict must be for the defendant.
    “(7) I charge you that the theory of the plaintiff in this case, as evidenced by her testimony and that of her sister, the only persons present and in the house when the accident occurred on the date in question, is that while using the compound or mixture 6-5-4 on a stove which was not red hot, that it, the mixture, or compound, ignited or exploded and caused her to be burned. If you find that this theory is not sustained by the proofs in this case by a fair preponderance of the evidence, then your verdict shall be for the defendant, ‘ No cause of action.’”
    And errors are assigned upon the refusal of the court to give the same.

       As to liability of manufacturer to person injured by article dangerous to life, in the absence of any privity of contract, see note to Watson v. Augusta Brewing Co. (Ga.), 1 L. R. A. (N. S.) 1178.

   Ostrander, J.

{after stating the facts). There was testimony which warranted the jury in finding that it was negligent for defendant to place upon the market for sale, for common domestic use, the particular compound or composition, without notifying the public, by a proper label or otherwise, of its dangerous character. The applicable rule of law is sufficiently stated in the opinion in Clement v. Crosby & Co., 148 Mich. 293, 296, 297 (111 N. W. 745, 10 L. R. A. [N. S.] 588).

The single meritorious question remaining, affecting the right to a recovery by plaintiff, is whether, having testified, without qualification, that there was no fire or flame or hot iron in the range, and that friction caused the compound to ignite, she has failed to prove that defendant’s negligence was the cause of her injury. We shall assume (I think are required to assume) that the jury did not believe that the mere friction arising from spreading the enamel on iron with a brush caused the brush or the compound to ignite, and that they did believe that the brush, or vapor from the compound, reached and was ignited by a flame. It is a matter of common knowledge with those who have used gas ranges that a very small jet of burning gas, not easily observed, will sometimes be found in a burner from which the supply of gas is supposed to be completely turned off. It is true that, in the only count of the declaration under which we consider the plaintiff has the right to recover, she avers that, while putting the composition upon the range—

“ In a careful, prudent, and gentle manner, with a flat bristle brush, the composition or substance suddenly ignited from the friction of spreading it and suddenly became a burning flame, shooting out and up from plaintiff’s ■gas range aforesaid.”

She also avers that the compound was a highly inflammable, volatile, dangerous mixture, and avers the duty of defendant to have been not to place the substance upon the market without warning as to its dangerous character. The pleading is inartificial and loose; but in essence it avers a specific duty, a negligent breach of that duty, and, as a consequence, an injury. The averment that the flame was caused in a particular way and the testimony in support of the averment, when considered in connection with the testimony, produced by plaintiff, that the compound could not have so ignited, might well have induced a belief that plaintiff was not truthful. On the contrary, and depending upon the multitude of things which affect the judgment as to the truthfulness of a witness, the belief might be engendered that plaintiff honestly supposed there was no flame in or about the range, that the vapor ignited, and that she was truthfully describing the occurrence as it appeared to her. '

Assuming there was a variance between the declaration and the proof upon the point of how ignition was caused, it is not vital. The duty of the defendant is the same, the breach of that duty, as alleged, and resulting injury to the plaintiff — matters to be proven to the satisfaction of the jury. There is no claim made, and in view of all the allegations of the declaration it cannot be supposed, that the defendant was not properly informed concerning the real issue to be tried. No defense which would have been open if the declaration had alleged that plaintiff supposed there was no flame in the stove, but that there must have been an unobserved flame which ignited the vapor or compound, was denied or abridged. Indeed, she was not bound to aver or to prove just what caused the compound to ignite if she was using it as directed and without negligence on her part. It is not claimed that plaintiff was guilty of any negligence contributing to her injury. The point is ruled, in principle, by McCaslin v. Railway Co., 93 Mich. 553, 556, 557 (53 N. W. 724). The caséis unlike Schindler v. Railway Co., 77 Mich. 136 (43 N. W. 911). The opinion delivered in the case last referred to contains, beginning on page 152, a discussion which is pertinent here. The court should not have directed a verdict.

The special questions proposed were inconclusive of the real issue. No error is pointed out in the charge of the court.

We have given careful consideration to the remarks made by the attorney for plaintiff, to which exceptions were taken. Many of them were extravagant. With a single exception, there appears to have been some foundation for them in the testimony. The statement: “She brings this suit, and demurrer after demurrer comes in, and twice we have gone to Lansing in regard to this matter, and now we are down here; it took all those journeys to come here, gentlemen of the jury,” etc. — is one which cannot be defended. Plaintiff herself, unsuccessfully, appealed from the order sustaining the demurrer interposed by the merchant of whom the polish was purchased. It is presumed that such remarks made to a jury are made for the purpose of influencing them. The plaintiff was badly injured. She recovered a verdict for $1,500. The testimony leads to but one conclusion, and that the one which was reached. Under the circumstances, it may be and should be said that defendant was not prejudiced by the remarks of counsel.

The judgment is affirmed.

Montgomery, Hooker, Moore, and Brooke, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    BROWN v. BENNETT.
    1. Negligence — Joint Liability — Physicians and Surgeons.
    : Plaintiff’s attending physician who engaged a surgeon to perform an operation and who assisted at the operation, but had not principal charge of it, is not jointly liable with the surgeon for neglect to remove a sponge from the wound.
    2. Parties — Misjoinder—Process—Service on Nonresident oe the County.
    Nonresidents of the county in which an action is brought are not subject to the jurisdiction of the court unless a joint liability is alleged and proved against the nonresident and a defendant who resides in the county. 3 Comp. Laws, § 10010; Act No. 225, Pub. Acts 1901.
    Error to Van Burén; Des Voignes, J.
    Submitted April 28, 1909.
    (Docket No. 40.)
    Decided July 15, 1909.
    Case by Bertha K. Brown against Charles L. Bennett and Richard R. Smith for malpractice. A judgment for plaintiff is reviewed by defendants on writ of error.
    Reversed, and no new trial ordered.

      Thomas J. Cavanaugh, for appellant Bennett.

      Butterfield & Keeney, for appellant Smith.

      Bussell M. Chase, for appellee.
    The action is trespass on the case. It is averred, in substance and effect, in each of the four counts of the declaration, that the defendants, professing to be skilled physicians and surgeons, undertook for reasonable reward to be paid to them to skillfully treat, care for, and to perform upon the plaintiff a certain operation, and that they so negligently, unskillfully, and carelessly performed it that by reason thereof the plaintiff was injured. The suit was begun by summons. Service was made upon defendant Bennett in Van Burén county, and upon defendant Smith in Kent county. Defendant Smith pleaded in abatement that he was not a resident of Van Burén county when the suit was begun, nor was he found or served with process in that county; that, on the contrary, he was, and before that time continuously had been, a resident of the county of Kent, and the summons was served upon him in the county of Kent; that, if any right of action existed as set forth in plaintiff’s declaration against him, the circuit court for the county of Kent had sole jurisdiction thereof, and the circuit court for Van Burén county had no jurisdiction; that, if any cause of action existed, it was several, and not joint; that, if any liability existed, defendant was not liable jointly with defendant Bennett; and that no such joint liability as is set forth in the declaration exists. The plea was verified, there was joinder, and it was stipulated by counsel for each of the parties that the issue raised by the plea should be heard and determined with the issues raised by the plea of the general issue, and that such disposition should not be construed as a waiver of any rights insisted upon in said plea, but that both parties should have the same rights in all respects in the hearing of the case on a motion for a new trial, or on writ of error, as though the issue raised by the plea in abatement had been heard and determined before the determination of the issues raised by the plea of the general issue. The cause was tried in November, 1907, and resulted in a verdict for the plaintiff against both defendants for $625, upon which verdict there was judgment. The court was requested to direct a verdict in favor of each of the defendants, and also requested to instruct the jury that defendants could not be held to any joint liability for any act charged in the plaintiff’s declaration. These requests were refused and exceptions followed. It is the theory of the plaintiff that defendants jointly undertook to perform the operation; that they, or one of them, left in the abdominal cavity one of the gauze pads or laparotomy sponges used in performing the operation; that it remained there for 10 months; that this was negligence, and that for the effects of such negligence both defendants are liable. In this court appellants have waived the benefit of all assignments of error except those involving the propositions (1) that there was no evidence tif joint liability; and (2) that each was entitled to a peremptory instruction in his favor because the testimony wholly failed to show that either was negligent.
   Ostrander, J.

(after stating the facts). We do not find in the record any testimony tending to prove a joint undertaking of the defendants. On the contrary, upon this point the case for plaintiff stated most favorably to her is that she was advised by her physician, Bennett, who had treated her for certain disorders, that the remedy for her ailment was a surgical operation. The family of plaintiff, including her husband, knew of this advice, consented that an operation should be performed, and that defendant Bennett should select and arrange with some surgeon to perform the operation. They were told that Dr. Smith had been selected; that a trained nurse would be selected by Dr. Smith; that it was proposed that there should be present Dr. Smith, who was to receive $75, and Drs. Bennett, Crosby, and Ransom, who were to be paid $10 each. The husband or father of plaintiff, or both, agreed to procure and did procure $100 and.gave it to Dr. Bennett and took his receipt therefor. After-wards they paid him $5. This money Dr. Bennett distributed as above indicated, receiving himself $10. The husband of plaintiff, or some one for him, also paid the nurse. Every one understood that Dr. Smith would perform the operation, assisted by the other physicians. There is some testimony to the effect that the contract made not by plaintiff, but by her husband and father, was made with defendant Bennett, and that he was to see that the operation was properly performed, and would guarantee a cure. But this does not tend to prove a joint undertaking by these defendants to perform the operation. It is said in the brief for plaintiff that “the husband of plaintiff agreed to employ Dr. Bennett and Dr. Smith to perform this operation.” It is the not uncommon case of a practicing physician advising a patient to submit to a surgical operation to be performed, not by himself, but by some surgeon of reputation, skill, and experience, for which operation, with the consent of his patient, he makes the necessary arrangements, in performing which he assists the operating surgeon as directed or advised. The operation was not performed by these defendants jointly. Dr. Smith performed it, as his own testimony and that of each of the physicians and of the nurse conclusively shows. In accordance with modern methods, the operation was an organized performance. Dr. Crosby administered the anesthetic. That was his duty and responsibility. Drs. Bennett and Ransom assisted the-operating surgeon.

“They stood with me,” Dr. Smith testified, “at the side of the patient and assisted me as I directed; that is, they retracted the sides of the wound when it was open, pulled them apart, the sides of the wound. They helped in regard to sponging up blood, and perhaps occasionally caught a spurting vessel when it was cut, and that is about all generally. I performed the operation. The duty of Dr. Ransom was practically the same as Dr. Bennett.”

The nurse had charge of the sponges before and after they were used, and counted them before and after the operation. That was her duty. The operating surgeon, having inserted the large sponges or pads, and having removed all of them in the immediate field of operation, relied upon the nurse and her assurances that all sponges were accounted for, and closed the wound. Undoubtedly each case of this nature must stand upon its own facts. The length of time required to perform the operation, the nature of the operation itself, as whether the field is deep in the abdomen, the number of pads or sponges used to keep the field of operation clear, the. opportunity or chance for one or more of the pads to be displaced, rolled upon itself, and hidden, all of these and other considerations measure the required skill and care of the surgeon. It must be considered as established in this case that a sponge or pad was left in the abdomen, and that an injury to plaintiff was the consequence. It is not claimed, and is not to be supposed, that anyone was intentionally at fault. Both defendants are men whose general professional knowledge and skill are unquestioned and undoubted. They were not engaged in a trespass. Neither was employed by the other. Each was required to exercise ordinary skill and care. But direction and control of the operation were with one man. Whether responsibility for what occurred is rested upon contract or upon negligent performance of duty, there is no rule of law which, under the undisputed facts, imputes want of skill or care on the part of Dr. Smith to Dr. Bennett. The jury should so have been instructed.

' The statute (3 Comp. Laws, § 10010, as amended by Act No. 225, Pub. Acts 1901.) provides that where an action of trespass on the case shall be brought in any circuit court against two or more defendants, one or more of whom shall not reside in the county or be found therein, and service of the process shall be made in such county upon one or more of such defendants, the plaintiff may sue out one or more writs directed to the sheriff of the county where the nonresident defendants may be found, and it shall be the duty of such sheriff to serve such process and make return to the court issuing the same. It is by virtue of this statute and the service of process pursuant thereto that jurisdiction of the court over defendant Smith is asserted. It must be held that the court did not acquire jurisdiction. See Rosenthal v. Rosenthal, 154 Mich. 533 (118 N. W. 18).

It is said in the brief for plaintiff that the declaration not only charges defendants with negligence in the performance of the operation, but also charges them with negligence in the treatment of plaintiff at the time of and following the operation, and her treatment and care thereafter. Words of this general import are employed in the declaration. But neither in the declaration nor in the brief are we advised of any particular neglect or want of care after the operation was concluded. What duty defendant Smith owed to plaintiff after performing the operation is not apparent.

The conclusions which have been stated require a reversal of the judgment, and no new trial.

Montgomery, Hooker, Moore, and Brooke, JJ., concurred.


author: Montgomery, J.

text:
    PEOPLE v. WILSON.
    1. Embezzlement — Corpus Delicti — Corporate Officers, .
    Evidence that bank deposits, under the control of respondent, had partially disappeared, while the books of the association of which he was secretary did not show the fact; with evidence that certain warrants had been drawn, signed and used by respondent to replace missing funds, and not delivered to the payees, who were told that there were no funds with which to pay them, tends to show an embezzlement of the amount of such warrants.
    2. Same — Defense.
    Although proof was made that sufficient funds were transferred from other accounts to meet the amount of the warrants, the fact that the moneys were used by the secretary without paying the claims, would warrant the inference of a misappropriation, if such transferred amounts were found to belong properly in the accounts from which they were drawn.

      3. Constitutional Law —Special Aot op Incorporation — Fraternal Societies.
    The act authorizing the incorporation of the supreme lodge and subordinate lodges of the United Home Protectors’ Fraternity (3 Comp. Laws, §§ 7607-7617), is constitutional in providing for more than one corporation, and does not create a corporation by special act. Const, of 1850, Art. 15, § l.

    Error to St. Clair; Beach, J.
    Submitted April 30, 1909.
    (Docket No. 127.)
    Decided July 15, 1909.
    William L. Wilson was convicted of embezzlement, and sentenced to imprisonment for not less than two and one-half nor more than five years in the Michigan Reformatory at Ionia.
    Affirmed.

      Joseph Walsh, for appellant.

      Alex. Moore, Prosecuting Attorney, for the people.

       Const, of 1908, Art. xii, § 1.

   Montgomery, J.

The respondent was convicted of the crime of embezzlement of the funds of the Supreme Lodge of the United Home Protectors’ Fraternity, a corporation organized under Act No. 68, Pub. Acts 1893, being sections 7607-7617, inplusive, 2 Comp. Laws.

Two contentions are made by the respondent in this court: The first is that there was no proof of the corpus delictij the second, that the statute under which the United Home Protectors’ Fraternity was incorporated is unconstitutional and void, and that the respondent and his associates were therefore copartners, and that one partner could not be guilty of embezzling the funds belonging to a copartnership.

The funds which respondent was charged with embezzling consisted of the amount of certain orders or warrants drawn upon the Commercial Bank, by the officers of the association, in favor of Warner Cornell, Dr. Frederick Lohrstorfer, Guy Kimball, A. D. McLaren, Walter Shields, and A. J. Simms. There were kept in the bank four accounts. The Home Protectors’ Fraternity maturity benefit fund, the Home Protectors’ general fund, the investment fund, United Home Protectors, and the United Home Protectors’ Fraternity. The latter account was commonly referred to as the “ Secretary’s Fund Account.” The withdrawals from the investment fund account could he made only by check signed by the president and secretary, and countersigned by the treasurer. Claims in favor of each of the parties above named were audited, and warrants drawn duly signed by the president and secretary and countersigned by the treasurer. These warrants were made payable to the respective parties in whose favor the accounts were audited, but the evidence showed that the respondent deposited the same in the bank with an indorsement as follows:

“For deposit, to take care of checks drawn on the United Home Protectors’ Fraternity.
“W. L. Wilson,
“Supreme Secretary.”

It is contended that as the record shows that on the various dates when these orders were deposited there was withdrawn from the secretary’s fund, and placed in the investment fund, an amount equal to or greater than the amount of the several orders, there is no proof of embezzlement of these particular funds. We do not agree with this contention. These transfers were made from time to time covering a period from November 30, 1907, to March, 1908, and it appeared by testimony that the records of the corporation, as kept under the direction of the respondent, showed a balance of cash on hand of $17,898, while the bank records showed on that date that practically all the funds had been withdrawn from the bank; the aggregate balances being not to exceed in all $400. In addition to this, proof was made of the demand of these various holders of warrants on the respondent and of his statements from time to time that there was no money at hand to meet the demands. This testimony certainly had some tendency to show a misappropriation of these funds, and does not rest upon the admission of the respondent alone. The funds had in fact disappeared, and they were within the control of the respondent. The fact that transfers of other funds from the secretary’s account to the investment account occurred, does not necessarily meet this proof. It would be open to inference that the funds so transferred properly belonged in the investment fund, and the fact that these funds which were transferred to the secretary’s fund were used up, without payment to the parties for whom the funds were intended, is some evidence of misappropriation.

It becomes unnecessary, therefore, to determine whether the respondent’s admissions of the fact of misappropriation of these funds would be sufficient proof of corpus delicti, for we think there was enough proof of substantive facts independent of his admissions to carry the case to the jury.

As to the second question, the prosecution is predicated upon Act No. 102, Pub. Acts 1905, which provides:

“If any officer, agent, clerk or servant, of any voluntary association, limited partnership association or incorporated company, or of any city, township, incorporated town or village, school district or other public or municipal corporation, or if any clerk, agent or servant of any private persons, or of a copartnership, except apprentices and other persons, under the age of sixteen years, shall embezzle or fraudulently dispose of or convert to his own use, or shall take or secrete with intent to embezzle and convert to his own use, without consent of his employer or master, any money or other property of another, which shall have come to his possession, or shall be under his charge by virtue of such office or employment, he shall be deemed by so doing, to have committed the crime of larceny.”

We do not consider this act unconstitutional. The act providing for the incorporation of this company is an act entitled,

“An act to provide for the incorporation of supreme, grand and subordinate lodges of the ‘ United Home Protectors’ Fraternity,’ a co-operative fraternal building and loan society or order.”

The first section provides:

“That a supreme lodge and grand and subordinate lodges of the ‘ United Home Protectors’ Fraternity ’ may be incorporated in pursuance of the provisions of this act.”

The second section provides for the incorporation of members of the supreme lodge. Section 10 provides for the incorporation of subordinate lodges.

The constitutional provision which is invoked is section 1 of article 15 of the Constitution of 1850, which provides that corporations may be formed under general laws, but shall not be created by special act, except for municipal purposes. We are not dealing with a case in which a single corporation is authorized by statute. Under this title and the provisions of sections 1 and 10, grand and subordinate lodges may incorporate. To hold that this is. the creation of a corporation by special act would be equivalent to holding that fraternal societies which have a supreme head could not under any circumstances or under any authority be authorized to incorporate. This would be far-reaching in its results. Other statutes confer similar powers to incorporate .upon other fraternal benefit societies, notably the Ladies of the Maccabees (2 Comp. Laws, § 8034), grand temple and subordinate temples of Rathbone Sisters (2 Comp. Laws, § 8010), and Knights of Pythias (2 Comp. Laws, § 8001). We think it is no infraction of this constitutional provision to confer upon such society the right to incorporate under a law which provides for an unlimited number of corporations, including the one corporation which is supreme, in the social relations of the society.

The respondent was properly convicted, and the conviction is affirmed.

Ostrander, Hooker, Moore, and Brooke, JJ., concurred.


text:
    McDUFFEE v. FELLOWS.
    1. Eminent Domain — Trial—Functions of Judge — Practice—
    Nature of Tribunal — Constitutional Law.
    Instructions to the jury are not required of the probate judge presiding over proceedings in eminent domain for the purpose of condemning a right of way for a drain; the jury being the judges of the law and the facts, within the terms of sections, Art. 18, Const.of 1850.

    3. Same — Argument—Appeal and Error.
    Erroneous statements of the law made by counsel in arguing the question of necessity before the jury, will not warrant a reversal, in the absence of bad faith or unless the jury were misled.
    Case made from Ottawa; Padgham, J.
    Submitted May 4, 1909.
    (Docket No. 91.)
    Decided July 15, 1909.
    Certiorari by Daniel McDuffee, Sr., and another, to review the action of Edwin Fellows, drain commissioner, and Edward P. Kirby, probate judge, in condemnation proceedings for the establishment of a drain. A judgment for respondents is reviewed by petitioner on a case made.
    Affirmed.

      Lombard & Hext, for appellants.

      Smedley & Corwin, for appellees.

       Const, of 1908, Art. xiii, § 3.

   Montgomery, J.

This is a case made to review the decision of the circuit court for the county of Ottawa in a proceeding instituted by certiorari, by the plaintiffs and appellants to review proceedings had before the probate judge in a condemnation proceeding under the drain law, in which proceeding the necessity for taking property of the plaintiffs in error was determined by a jury duly impaneled.

Two reasons were urged before the circuit court for setting aside the proceedings had in the probate court. The first was that the probate judge had refused to give a request to charge preferred by the plaintiffs in error, on the ground that it was not part of his duty to charge the jury; second, that counsel for the drain commissioner erroneously stated the law applicable to the case in his argument to the jury.

The question presented by the first point is whether, under section 2 of article 18 of the Constitution of 1850, which reads as follows: ‘ ‘ When private property is taken for the use or benefit of the public, the necessity for using such property and the j ust compensation to be made therefor, except when to' be made by the State, shall be ascertained by a jury of twelve freeholders, residing in the vicinity of such property, or by not less than three commissioners, appointed by a court of record, as shall be prescribed by law” —the jury provided for is in every sense of the word an adjunct of a court of record, and whether theparties interested have a right to have the jury instructed as in other cases. It is assumed by counsel for plaintiff in error that a jury trial at the common law involved in every case a separation of the duties of the court from those of the jury, that it was the duty of the court to determine all question^ of law, and the duty of the jury to decide questions of fact, and from this premise it is ingeniously argued that, when the Constitution provided for a determination of the question of necessity by a jury of 12 freeholders, it clearly implied that such determination should be had by the common-law methods and under the instruction and direction of a court.

It may be open to question as to whether, in the case of a strictly common-law jury, in a trial by jury as such, it might not be within the legislative power to dispense wholly with any instructions to the jury; but, in view of the decisions of this court interpreting the section in question, we think it must be held as established that the tribunal contemplated- by this section of the Constitution is a special tribunal, and that, while the tribunal when consisting of a jury has some of the incidents of a common-law jury, the requirement that such jury shall be instructed by the court is not one of those incidents. Trial by jury was not, before the adoption of the Constitution, a prerequisite to condemnation of property for public use, under the power of eminent domain, and even under the Constitution of 1850, the assessment of damages for property thus taken may be by commissioners, and not by jury. See McManus v. McDonough, 107 Ill. 95.

In Michigan Air Line Railway v. Barnes, 44 Mich. 222 (6 N. W. 651), the court said:

“ When the law provided how the tribunal should be constituted for these cases, and prescribed a method to be observed, it obviously contemplated that the practice respecting the admission of testimony should be as simple as a due regard to substantial justice would permit. It was not intended to leave the fate of the determination had in view to any fine-spun theories, or to the refinements which are not uncommon in trials at the circuit. They were not supposed to be necessary to the fundamental purpose or beneficial working of inquests of this nature, and no provision was made for the certain attendance of any one presumptively qualified to deal with them. The statute plainly assumes that the jury may conduct the inquiry without the aid of any legal expert, and under circumstances in which it would be difficult, if not impracticable, to preserve technical or hair-drawn questions in a shape to be reviewed. And, were the niceties of nisi prius to be insisted on, the proceeding would speedily break down under the perplexities and embarrassments due to its own methods.”

In Toledo, etc., R. Co. v. Dunlap, 47 Mich. 456 (11 N. W. 271), it was said:

“The judge formed no part of this special tribunal. The statute indeed allows the judge to ‘ attend said jury, to decide questions of law and administer oaths to witnesses ; ’ but the same statute which allows this allows him to designate a circuit court commissioner for the same purpose, and also allows the- jury to proceed without either. Whatever the language of this statute literally construed may mean, it is very clear that any such functions must at most be advisory. The jury will undoubtedly be regarded as accepting and doing what they permit to be done; but in all such cases the Constitution as well as the principles of the common law makes them judges of law and fact. Chamberlin v. Brown, 2 Doug. (Mich.) 120. Their conclusions are not based entirely on testimony. They are expected to use their own judgment and knowledge from a view of the premises, and their experience as freeholders, quite as much as the testimony of witnesses to matters of opinion.”

In Grand, Rapids, etc., R. Co. v. Chesebro, 74 Mich. 466 (42 N. W. 66), it was said:

“But the proceedings before the jury appear to have been conducted in a peculiar method, not within the proper rules governing such cases, and appear to have led to conclusions that cannot be maintained. The probate judge acted throughout as if he had been a nisiprius judge, presiding over a common-law jury, and assumed the whole responsibility of directing what testimony should go before them, and on what theories of damage. Whether he charged them or not does not appear; but his rulings on evidence had practically the same effect. Whether the Constitution will suffer the jury or commission of inquest to act in a court of common-law jurisdiction under the conditions applicable to other juries is a very serious question; but, so far as we know, it has not been attempted. The Constitution in such cases as the present allows either commissioners appointed by a court of record or a jury of freeholders to determine the necessity of public use, and to ascertain the damages. Commissioners form no part of the machinery of a court, and a jury of inquest is not a court. * * * We held in Toledo, etc., R. Co. v. Dunlap, supra, where the jury was impaneled in a circuit court, that the only functions of the court were to set the proceedings in motion by organizing a jury or appointing commissioners, and affirming or vacating the award; and we held, further, that the jury were judges of law and fact, and not subject to interference by the judge, should he undertake to accompany them. The statute, which probably was in this respect borrowed from some other region, while it does authorize a judge to go with and decide questions of law and swear witnesses, also allows him to deputize a circuit court commissioner to do the same thing. It would be absurd to consider such action as valid judicial action. It was held there, as it has been uniformly held, that the jury cannot be made subject to any such instruction, and must act on their own judgment. When the award comes up for confirmation, it may be attacked for irregularity or impeached on the merits in various ways, as it may be on appeal; but the award is and must be the jury’s award, and reached in thp jury’s own way. * * * This difficulty is still more apparent when the application is made to a probate court. Under our constitutional system that court itself is, for most purposes, at least, a prerogative, and not a judicial, court, and has no jurisdiction over persons or property, except in such proceedings as relate to the estates of deceased persons, or those under disability and liable to wardship.”

See, also, Detroit, etc., R. Co. v. Campbell, 140 Mich. 384 (103 N. W. 856); Flint, etc., R. Co. v. Detroit, etc., R. Co., 64 Mich. 350 (31 N. W. 281).

It must be deemed as settled in this State that the jury contemplated by this section of the Constitution of 1850 is a special tribunal, and that they are judges of the law and fact, and it is not error for the probate judge to refuse to give them instructions.

It is claimed that the determination should be set aside for the reason that counsel for the drain commissioner contended for a wrong rule of law before the jury. It appears that counsel for the drain commissioner argued that, if the jury found any portion of the drain necessary and conducive to public health, they should then determine the whole of said drain as laid out, and the taking of plaintiff’s land to be necessary, and that, as plaintiffs conceded the necessity of said drain below a certain highway bridge, the jury should determine the entire drain as laid out, and the taking of plaintiff’s land to be necessary. It appears, on the other hand, that respondent’s counsel conceded that the drain from the highway bridge to its terminus was necessary and conducive to the public health, but argued that from the commencement of said drain, to the point where the same leaves the land of plaintiffs, there was no necessity for said drain on any consideration of the public health, and that, unless the jury should find that some. consideration of the public health rendered necessary the taking of some portion of the land along the course of said drain, above the point where the same leaves the land of plaintiffs, then they must find said drain as a whole, and the taking of plaintiff’s land for the purpose thereof, not to be necessary.

We cannot assume that the jury were misled by the contention of counsel. There is no evidence of bad faith, and it would be establishing a new precedent to hold that a contention of counsel for an erroneous rule of law was sufficient to vacate a proceeding of this character.

The judgment of the circuit court will be affirmed, with costs.

Blair, C. J., and Hooker, McAlvat, and Brooke, JJ., concurred.


author: Brooke, J.

text:
      In re THOMPSON’S ESTATE. FORSYTHE v. THOMPSON’S ESTATE.
    1. Estates oe Decedents — Work and Labor — Contracts—Evidence — Executors and Administrators.
    Statements of the deceased that he would do well by the claimant if she would remain and care for him, were admissible and have some tendency to prove a contract averred by the claimant to convey to her a certain farm or its value in money, besides paying a weekly compensation.
    2. Same.
    A conversation, wherein deceased inquired of the witness if he did not think that to give a certain other farm to claimant would be advisable, does not disprove tbe contract claimed, but tends to indicate a desire to do more than the agreement required.
    3. Trial — Jury—Newspaper Articles.
    It is not ground íor a new trial that the jurors read incorrect accounts of the case in newspapers.
    4 Damages — Excessive Verdict — Value op Personal Services.
    A verdict of $9,000 for services rendered by claimant in caring for deceased and his aged brother and sister during three and one-half years, is excessive.
    Error to Macomb; Erskine, J.
    Submitted May 6, 1909.
    ( Docket No. 52.)

    Decided July 15, 1909.
    Anna Forsythe presented a claim against the estate of James Thompson, deceased, for services rendered. The commissioners reported a failure to agree, and claimant appealed to the circuit court. A judgment for claimant is reviewed by defendant on writ of error.
    Affirmed conditionally.

      Henry J. McKay (J. G. Tucker and O. C. Lungershausen, of counsel), for appellant.

      William T. Hosner and Seth W. Knight, for appellee.
   Brooke, J.

The appellant filed the following claim against the estate of James Thompson, deceased:

“County op Macomb — ss.
“The estate of James Thompson, deceased, debtor to Anna Forsythe. Said Anna Forsythe avers and claims damages in the sum of $15,000 for nonfulfillment of a contract made and entered into by and- between herself and the deceased, James Thompson, in substance and effect as follows:
“ Said claimant avers that upward of six years before the death of said James Thompson she went to live in the family of the said James Thompson, and remained in said family constantly up to and a short time after his death; that during the time she remained in the home of, and resided with, said Thompson she had the exclusive charge of the household, and did all the duties connected therewith, and also did business for the said James Thompson upon his request and under his direction pertaining to his vast property interests; and that during a portion of the time it was necessary for her to be up a portion of and sometimes nearly all night administering to his wants and those of his brother and sister who lived with him.
“ This claimant further avers and claims that a short time after going to the home of the said James Thompson he promised her that if she would remain with him until his death that he would do well by her, and that in addition to paying her so much a week, if she would refrain from marrying and stay in his home, and look after his wants and necessities until his death, that he would either deed her the farm on which he lived at the time of. his death or leave her the value of the farm in money.
“ Said claimant avers and claims that said farm is worth upwards of $15,000, and that she has performed her part of the agreement with the said James Thompson in every respect acting on the promise to leave her the farm aforesaid or its equivalent in money, fully believing and expecting that on his death that said farm would belong to her, and she went to work on good faith under said contract or agreement with the said James Thompson, with all her energy and perseverance and managed his household affairs and administered to his wants the same as though he had been her father, with all the energy, skill, and economy that she possessed, and administered as best she could to the comfort, happiness, and needs of the said James Thompson during his lifetime.
“Said claimant further avers and claims that a short time prior to his death the said James Thompson made arrangements to carry out his promise to her as set forth above by executing a deed of the farm where he lived, and was prevented from so doing by reason of the fact that he suffered a stroke which resulted in his demise.
“ Claimant further claims for services performed by her for said James Thompson during the time that she was in his employ the sum of fifteen thousand dollars.”

The commissioners on claims appointed by the probate court reported a failure to agree as to the foregoing claim. Upon appeal from the probate court claimant recovered a judgment in the sum of $9,000. The case is brought here for review by the estate.

It appears that the claimant in September, 1900, then a girl of 19 years of age, entered the home of the decedent, James Thompson, as a domestic. At that time the household of decedent consisted of himself, age 70 years, his brother Isaac, age 81 years, and his sister Abbie, age 82 years. None of the three had ever married. They had lived together upon a farm, called the ‘ ‘ home farm,” for a great many years. This farm consists of 240 acres, and is valued at about $20,000. When claimant first entered the service of James, she received the sum of $2 per week. After a time her wages were raised to $3 per week, and during the last two years she received $4 per week. She continued to reside in the home of decedent from September, 1900, until his death in August, 1906. During this entire period of six years claimant had the care of the household for these three very old people. Isaac, the elder brother, died about one month before the decease of James. The title to the home farm was in Isaac and James as tenants in common. About three years prior to the death of James Thompson he suffered a painful accident, breaking one arm and injuring the other severely. For several weeks he was unable to use his arms, and was confined to the house from three to four months. During this period the claimant, when necessary, dressed, washed, and fed him.

The claimant offered the following testimony to establish the contract between herself and the decedent: Her mother, Elmira Forsythe, testified that about a year and a half after claimant went to live with decedent he, decedent, desired to adopt claimant, and that witness objected to the adoption; that about a year later she had a conversation with decedent in which he said:

“If she would stay with him and do for him like she had done, that he would deed her the farm that they lived on because there would be nobody else do for him like she had done. ”

Daniel Witmer, merchant of Romeo, testified as follows:

“ I was talking with him and Miss Forsythe was there and about there and through the yard, and I says to Mr. Thompson, ‘You have got quite a good looking housekeeper there;’ and he says, ‘Yes;’ and I says, ‘It is a wonder she will stay here, old people here and no company, younger people;’ and he says, ‘ There is an object of her staying here. I promised if she would stay here as long as I live I will do well by her.’ And that was practically all that he said, that he would do well by her. She was a good worker, she was a good housekeeper, and such as that.”

Allan- Hosner testified:

“He always spoke well of the girl. He claimed she was a nice smart girl, good girl to work and keep things up in nice shape, and made a better home than they had before, made quite a difference in the home. He said it made quite a big difference in their home. * * * He most always had something to say in favor of the girl. * * * I told him some fellow would come along and get her away from him, might. He might live quite a spell. She might not want to tie herself up there too long. Well, he said she had agreed to stay and he had agreed to do well by her if she did stay. Well, one time, I don’t know whether it was that time or not, I told him probably he would give her something extra, maybe $4 or $5. He said, ‘Yes,’if she stayed he would give her more than $4,000 or $5,000.”

Mortimer Hilliker, a laboring man who worked for decedent on the farm about eight years, off and on, testified:

“Well, we was there in the barn, and the girl came out to go to the garden for something. I don’t know what. And he says, ‘ There has been a good girl here; ’ and he says, ‘ I promised a good thing if she stay here during our lives, my life.’ He says: .‘And I am going to do it.’ And he says: ‘ She has promised to stay.’ ”

John P. Wolcott, a business man of Mt. Clemens, testified:

“ He said that if Anna stayed there and was a good girl, stayed with him while he lived, that she would be well provided for, or something to that effect.”

Harry H. Lippincott, a business man of Romeo, testified:

“ I said something to Anna in a joking way, and I said to him: ‘ She is regular sunshine here, ain’t she, Jim? ’ I was as familiar with him as that. ‘Yes,’ he said, ‘ she is.’ I said she had been with him quite a time. He said, ‘Yes,’ and ‘she is going to stay with me, or has promised to stay with me, as long as I live and I have agreed to do something handsome by her.’”

George Forsythe, father of claimant, testified as to a conversation had with decedent a few days before his death:

“The conversation was that he expected a Mr. Webster down. He agreed to come down in about two weeks; but he hadn’t come down, and that he said that he wanted to fix matters or papers, some papers up. He didn’t think he would live a great while, and he wanted to make a deed of that farm to Anna, my daughter.”

John E. Coope, wool buyer and grain buyer, testified:

“Why he told me that the girl — I told him, I says: ‘Jim, you don’t want to let as good a girl as that go.’ He says: ‘I ain’t going to.’ He says, ‘She has agreed to stay with me as long as I live; ’ and he says, ‘ I am going to give her the farm. I am going to see that she gets it — the home farm.’ This farm, that was the farm that he was talking about. * * * I asked him then, I says: ‘ Have you ever fixed up with Anna what you told me you was going to do ?’ He repeated it, you know. Isays: . ‘ Have you ever fixed it up ?’ He says: ‘No.’ But he says: ‘Just as soon as I can get down town I am going to a lawyer and have it fixed up, and, well,’ he said, ‘just now don’t you think if I would give Anna one of the farms over west and this thresher stock, and then she .would always have an income?’ ‘Why,’ I .says, ‘Jim, it is your own. It is none of my business,’ I says: ‘ It is all your own. Do what you mind to with it.’ I says: ‘ It is nobody’s business.’ The thresher stock was between $10,000 and $11,000. I cannot state the exact amount. ”

On cross-examination:

“ Why, as he sat there, I says: ‘ It is more like living ? ’ He says, ‘ Yes.’ I says, ‘ You. have got a good girl there, Jim. You want to keep her.’ He says, ‘ I am going to.’ He says, ‘ I’ll tell you Ooope,’ he says, ‘she has agreed to stay and take care of me as long as I live; and I have agreed to give her a deed of this farm, and I am going to see that she gets it.’ ”

William H. Chapman, undertaker, testified:

“ I had charge of the funeral of Isaac Thompson. James told me to order what flowers Anna thought necessary, and I asked him if I should limit her in regard to the amount. He said, ‘ No,’ to let her use her own judgment, as he thought her taste in such matters was very good. He said he wanted her to sit with him as he considered her — he considered she had lived there so long that he considered her as one of the family. He said he wanted her to ride in the first carriage with him.”

Harry Gray, grocer, of Romeo, testified:

“ Miss Forsythe settled all accounts excepting the last account that was made, and Mr. Chamberlain settled that.”

Testimony on behalf of the estate was introduced tending to show that claimant, after the death of decedent, acknowledged she had no claim.

Assignments of error 1, 2, 3, 4, 5, 43, and 47 relate to statements of deceased admitted against objection, and which it is claimed had no tendency to prove the specific agreement or contract which is made the basis of the claim. These assignments relate particularly to the testimony of the witnesses Witmer and Hosner. It is true, as urged by the counsel for the estate, that neither of these witnesses testified to the contract in the exact terms set out by the claimant, but we do not think it can be said that this testimony has no tendency to prove such a contract. It cannot be supposed that the decedent would go over in detail the terms of his contract with the claimant with every casual acquaintance. These witnesses’ testimony, however, tends to show that there was a contract between decedent and claimant, by the terms of which claimant had agreed to stay with decedent until his death, in consideration of which he, decedent, had agreed to “do well by her.”

Assignment 43 relates to the question asked of witness Coope, whose testimony has been quoted above, and which was received over objection by the defendant estate. It is the claim of the attorneys for the estate that these statements of deceased not only fail to substantiate the contract set up in the claim, but show that no such contract had been made. We cannot agree with the counsel for the estate in this. The query of the decedent of wit-mess Coope, “Just now don’t you think if I would give Anna one of the farms over west and this thresher stock, and then she would always have an income ?”does not necessarily carry the inference that no contract had theretofore been made between decedent and claimant, but rather tends to indicate on the part of the decedent an anxiety to provide for claimant in a manner possibly more to her advantage than he had by his contract agreed to do.

Error is assigned upon the judge’s charge. We have examined the charge with care, and believe that it fairly states the law governing the case.

A motion for a new trial was made, only two grounds for which we will examine. The seventh is as follows:

“ Because during the trial of said cause, and before the same had been finally submitted to the jury, a number of jurors saw and read certain articles concerning said cause, published in the Mt. Clemens Monitor and Daily Leader on January 10, 1908, two papers published and circulated in the county of Macomb, said articles containing many immaterial and grossly prejudicial statements to defendant’s case.”

The fourth is as follows: “Because said verdict was grossly and unreasonably excessive.” With reference to the seventh reason above quoted, it is apparent from the record that the articles published in Mt. Clemens daily papers were read by some of the jurors prior to the rendition of the verdict. The articles themselves are, as is frequently the case, somewhat colored. They give the amount of the decedent’s estate at more than double what it actually was as testified to in the record. They likewise assume to state that the commissioners on claims were favorable to the claimant, but were unable to agree upon the sum she should receive. We cannot presume that the jurors would be influenced by the reading of these articles to render a verdict contrary to the sworn testimony in the case. Jurors of intelligence usually read the newspapers in their respective localities, and, if every trial is to he a mistrial because of the fact that misinformation reaches the jurors’ hearing during the trial of a case outside the courtroom, there would be no end to litigation. A somewhat similar assignment of error was considered by this court in the case of Sherwood v. Railway Co., 88 Mich. 108 (50 N. W. 101), where this court, through Mr. Justice Grant, in commenting upon the publication of the amount of a former verdict, said:

“ It is, indeed, desirable that such things, so far as possible, should be kept from the knowledge of the jury, but, however unwise it may be to publish them at the time of the trial, no violation of law is committed in so doing, nor will the reading of them by jurors render them incompetent.”

As to the fourth ground urged as a reason for a new trial, we think that the learned circuit judge erred in his determination that the verdict was not grossly and unreasonably excessive. The record we think shows by a fair preponderance of the evidence that the decedent made the contract relied upon by the claimant. After the making of the contract, the claimant spent about three years and a half in the society of the decedent and his aged brother and sister. It-is quite clear that for her manual labor her weekly stipend may have been adequate, but it is equally true that such compensation might not have been sufficient to induce a young woman to forego the ordinary activities common to her age and sex and devote herself to the care of three aged people. The comfort and pleasure which the decedent received by reason of her society and ministration cannot readily be valued. The making of the contract relied upon affords some evidence of the value decedent placed upon them. The value of the services of an ordinary domestic or a trained nurse may be readily ascertained, but this record details many incidents which show that the claimant occupied a position in the family of the decedent quite apart from either of these relations. The value of claimant’s services is the true measure of her recovery; those services include, however, more than mere manual labor or expert nursing.

We are nevertheless of the opinion that the verdict was an excessive one. As pointed out by counsel for the estate, the verdict gives claimant $50 per week for the entire period of her service after the contract was made, in addition to what she had already received. This sum, under all the circumstances disclosed by the record in this case, we hold to be too great.

The judgment will be reversed and a new trial ordered unless the claimant remits the sum of $2,000, in which event the judgment will stand affirmed at the sum of $7,000. No costs of this appeal will be allowed to either party.

Blair, C. J., and Hooker, Moore, and McAlvay, JJ., concurred.


author: Moore, J.

text:
    LACHANCE v. BOARD OF CANVASSERS OF MACKINAC COUNTY.
    Mandamus — Public Officers — Title.
    Quo warranto and not mandamus is the proper remedy to determine the right of a candidate claiming title to the office of judge of probate, where the board of canvassers rejected votes, on a recount, for lack of the inspector’s initials, and where the certificate of election was issued and the opposing candidate entered upon the duties of the office.
    Certiorari to Mackinac; Shepherd, J.
    Submitted May 5,1909.
    (Calendar No. 23,362.)
    Decided July 15, 1909.
    Mandamus by Benoni Lachance to compel the board of canvassers of Mackinac county to set aside certain proceedings for a recount. An order granting the writ is reviewed by respondent on writ of certiorari.
    Reversed.

      Pailthorp & Hackney, for relator.

      Peilley & McPhee and James J. Brown, for respondent.
   Moore, J.

This case is brought to this court, and writ of certiorari issued for the purpose of reviewing the order of the lower court granting a peremptory writ of mandamus to relator. The petition shows that relator was a candidate for the office of judge of probate at the last general election held in Mackinac county, and one David W. Murray was the opposing candidate. There were no other candidates for said office. It also shows Mr. Murray asked for a recount, which was granted. The petition states that at the time said David W. Murray so filed his said petition, as aforesaid, with the said board of county canvassers praying for such recount of said votes, he failed, neglected, and refused to deposit the sum of $10 for each and every township, ward, and voting district in which he petitioned said board of county canvassers to recount the votes cast for said office of judge of probate, with the clerk of said Mackinac county, as required by the statute in such case made and provided, and at no time did the said David W. Murray, or did any other person for him and in his behalf, ever deposit said sum of money with said clerk of said county, or any other sum or sums of money whatever, for the purpose of securing a recount of said votes by said board of county canvassers. It further states that the said board of county canvassers did proceed to recount the votes cast in the townships and voting precincts referred to in the said petition of said David W. Murray, and that it threw out the votes cast in Hudson township.

“And said board of county canvassers did unlawfully, illegally, and wrongfully issue, or cause to be issued, to said David W. Murray, a certificate of election to the said office of judge of probate, and did unlawfully, wrongfully, and illegally refuse to issue, or cause to be issued, to your petitioner the certificate of election to said office, as he was rightfully entitled to so have issued to him, although often requested by your petitioner so to do.”

There are many other things stated in the petition to which it is not necessary to refer.

The answer of the respondents, among other things, states the following:

“Respondents deny that at the time said David W. Murray so filed his petition David W. Murray ‘failed, neglected, and refused ’ to deposit the sum of $10, for each and every township, ward, and voting district in which he petitioned the board of canvassers to recount the votes cast for said office of judge of probate, with the clerk of Mackinac county, and avers that said David W. Murray did not fail, neglect, or refuse to deposit said sum of money, but that at the time of filing his petition for a recount he proposed and offered to the clerk of said board to deposit the sum of $50 for the five townships in which he had asked for a recount; that he then and there endeavored to obtain in and about the courthouse where said board of county canvassers were convened a blank check with which to fill in the requisite amount for the purpose of signing and delivering to the said clerk as the deposit required by the statute in such case made and provided, but could obtain none, whereupon he was advised by said clerk that he would accept of said David W. Murray’s promise as a deposit of said money, and that the deposit would be considered as made, he, the said clerk, treating the credit of said David W. Murray the same as the actual deposit of said money; that said David W. Murray then stated to said clerk that he wanted to be sure and have no misunderstanding of the matter, and said clerk then and there stated there would be none, and that the credit and word of said David "W. Murray, which was then and there given by the said David W. Murray and accepted by said clerk, would be considered and treated 1 as a deposit; that the said clerk reported the above facts to the board of county canvassers, and all the members thereof expressed themselves as satisfied with the arrangement, and, considering and acting upon the assumption and theory of the deposit being made, proceeded with the recount in which the relator then and there participated and took part.”

They return that they rejected the ballots cast in Hudson township because they were not properly initialed. They further return:

“ That they have duly met as county canvassers of said county, and that said relator duly appeared and took part in the proceedings in reference to recount on the petition of the said David W. Murray for the office of judge of probate of said county, and that such recount was duly made, and that the result of said recount was publicly stated, and that due return was made, and that a certificate of election was duly issued, or caused to be issued to the said David W. Murray, and that the said David W. Murray has in pursuance of said election duly taken possession of said office of judge of probate of said county, and is still in possession of same, and is reputed to be judge of probate of said county, and that respondents as such county canvassers duly adjourned sine die, and that they have no authority to reconvene, and that they have become functus officio.”

A hearing was had before the circuit judge, who was of the opinion that the failure to deposit the fee with the clerk was fatal, and granted a writ of mandamus.

It will be observed from the foregoing that the board of county canvassers actually met, made the recount, issued a certificate of election, and by virtue thereof Mr. Murray entered upon the duties of judge of probate, and is now acting as such judge. Mr. Murray is not made a party to this proceeding. A great many interesting questions are presented and argued by counsel.

In view of the situation disclosed by the record the following quotation is germane:

“In determining the extent to which the courts may {¡properly interfere by mandamus with questions relating to the title to, and possession of, public offices, it is necessary to recur to an important principle, frequently asserted throughout these pages, and which may be properly termed the controlling principle governing the entire jurisdiction by mandamus. It is that, in all cases where other adequate and specific remedy exists at law for the grievance complained of, the writ of mandamus is never granted. Applying this principle to cases where relief has been sought to determine disputed questions of title to, and possession of, public offices, the courts have almost uniformly refused to lend their aid by mandamus, since the remedy by information in the nature of a quo warranto is justly regarded as the most appropriate and efficacious remedy for testing the title to an office, as well as the right to the possession and exercise of the franchise. And the rule may now be regarded as established by an overwhelming current of authority that, when an office is already filled by an actual incumbent exercising the functions of the office de facto and under color of right, mandamus will not lie to compel the admission of another claimant, or to determine the disputed question of title. In all such cases the party aggrieved, who seeks an adjudication upon his alleged title and right of possession to the office, will be left to assert his rights by the aid of an information in" the nature of a quo warranto, which is the only efficacious and specific remedy to determine the questions in dispute. And whenever it is apparent on the face of the pleadings that the issue presented involves a determinafion as to the person properly elected to an office or entitled to exercise its functions, the writ of mandamus will be withheld.” High on Extraordinary-Legal Remedies (3d Ed.), § 49.

See, also, People v. Detroit Common Council, 18 Mich. 338; School Dist. No. 8 of Tallmadge v. Root, 61 Mich. 373 (28 N. W. 132); Pariseau v. Board of Education, 96 Mich. 302 (55 N. W. 799); Keeler v. Deo, 117 Mich. 1 (75 N. W. 145); Ashwell v. Bullock, 122 Mich. 620 (81 N. W. 577); Dickinson v. Board of Canvassers, 148 Mich. 513 (111 N. W. 1075).

We think these decisions show that the order granting the writ of mandamus should be vacated. It is so ordered.

Reversed.

Blair, C. J., and Grant, McAlvay, and Brooke, JJ., concurred.


author: Hooker, J.

text:
    CARBARY v. DETROIT UNITED RAILWAY.
    1. Estates of Decedents — Negligence—Pleading.
    In an action for the negligent killing of plaintiff’s intestate, a count under the survival act may be joined with a count under the death act. 3 Comp. Laws, §§ 10117, 10427.
    2. Same — Cause of Action — Executors and Administrators.
    The right of action in either case vests in the estate.
    3. Same — Election of Remedies.
    While the existence of a right of action under one statute is inconsistent with the existence of such right under the other, no election of remedies can be required.
    4. Same — Pleading—Joinder of Counts.
    A difference in the rules of damages and of distributive rights to be applied under different counts does not prevent a joinder.

      Certiorari to Wayne; Murphy, J.
    Submitted May 3, 1909.
    (Docket No. 47.)
    Decided July 15, 1909.
    Case by George C. Carbary, administrator of the estate of August F. Zirbel, Jr., deceased, against the Detroit United Railway for the negligent killing of plaintiff’s intestate. An order overruling a demurrer to the declaration is reviewed by defendant on writ of certiorari.
    Affirmed.

      Corliss, Leete & Joslyn {Paul B. Moody,oí counsel), for appellant.

      Chamberlain, May, Denby & Webster, for appellee.
   Hooker, J.

The plaintiff brought an action in the capacity of administrator. The declaration contained two counts, one under what has come to be known as the “ Survival Act” (3 Comp. Laws, § 10117), and the other under the Death Act” (3 Comp. Laws, § 10427), so-called, two statutes of this State relating to actions of negligence. The first count alleges the negligent injury of plaintiff’s intestate, and his survival for a period of 10 minutes. The other alleges his instantaneous death through defendant’s negligence. From an order overruling defendant’s demurrer to this declaration it has appealed, and the crucial question is whether the two counts may be joined in one action.

The contention of defendant’s counsel is that these two counts are on their face inconsistent, inasmuch as one alleges that the intestate lived 10 minutes after the accident, while the other is based upon his instantaneous death, and, again, that the two rights of action do not accrue to the plaintiff in the same right, for the reason that on the theory of the counts based on the survival act the damages would belong to the estate of decedent, to be distributed under the general law of distribution, while under the other count they would be distributed to certain of the next of kin who should be shown to have been injured. It is also pointed out that the rule of damage would not be the same in both cases.

The right of action under the survival act and that under the death act are vested by the law in the administrator. That the right of action under the former act is an asset of the estate does not admit of a doubt, and that the right under the latter is also an asset of the estate was held in the cases of Findlay v. Railway Co., 106 Mich. 700 (64 N. W. 732); Jordan v. Railway Co., 125 Wis. 581 (104 N. W. 803, 1 L. R. A. [N. S.] 885, 110 Am. St. Rep. 865). They are both actions by the same plaintiff — i. e., the representative of an estate, authorized to collect its assets — against the same defendant. Had the laws (as contended in the cases of Sweetland v. Railway Co., 117 Mich. 329 [75 N. W. 1066, 43 L. R. A. 568], and Dolson v. Railway Co., 128 Mich. 454 [87 N. W. 629]) given a double cause of action, it would seem obvious that a right to join the two causes in one action would violate no principle of pleading unless the difference in distributive rights or a difference in the measure of damages would be an obstacle; and we cannot see that either need be. But it must be admitted that there is not a double remedy, and that the existence of one cause of action is entirely inconsistent with the existence of the other. It is obvious, however, that cases may arise where the right of recovery is certain but the remedy uncertain, and dependent upon what a trial may disclose, and a jury conclude, as to the conjunction in point of time of accident and death. Such a case almost requires a joinder of counts; for if two actions be required to try both theories, not only does delay and expense follow, but a plaintiff is in danger of losing his remedy altogether by “falling between two stools” through successive verdicts in which the juries may differ upon that single question. See Barton v. Gray, 48 Mich. 164 (12 N. W. 30); Berringer v. Cobb, 58 Mich. 560 (25 N. W. 491).

Were such a case one where a plaintiff has a choice of remedies, he would be bound by his election; but he has no choice. He cannot recover on both, and the defendant is entitled to have the concurrence of all the jurors in a verdict based upon one or the other count, but we see no reason for a denial of the right to join such counts, although we are aware that courts of some States have denied the right. It seems to us that the case is within the rule followed in the cases of Glover v. Radford, 120 Mich. 542 (79 N. W. 803); McLaughlin v. Austin, 104 Mich. 491 (62 N. W. 719); Chaddock v. Tabor, 115 Mich. 33 (72 N. W. 1095); Dolson v. Railway Co., 128 Mich. 444 (87 N. W. 629).

The wisdom of joining several counts to meet the exigency of varying testimony has been often vindicated and sanctioned. Watson v. Watson, 49 Mich. 540 (14 N. W. 489); Rawlinson v. Shaw, 117 Mich. 5 (75 N. W. 138); Loudon v. Carroll, 130 Mich. 79 (89 N. W. 578); Velthouse v. Alderink, 153 Mich. 223 (117 N. W. 76, 18 L. R. A. [N. S.] 587). The fact that the damages to be recovered may be distributed to some and not to others of the next of kin should not be held to preclude such joinder, as the probata court would have jurisdiction to compel their proper application.

Neither is the question raised as to the measure of damage important, for in many instances of joinder of several counts different rules as to the measure of damage would apply.

The judgment is affirmed.

Blair, C. J., and Montgomery, MoAlvay, and Brooke, JJ., concurred.


text:
    PRITCHETT v. DETROIT, JACKSON & CHICAGO RAILWAY CO.
    Estates of Decedents —Negligence—Pleading—Joinder of
    Counts.
    The rule in the preceding case of Carbary v. Detroit United Railway, ante, 683, is followed.
    Certiorari to Washtenaw; Kinne, J.
    Submitted June 10, 1909.
    (Docket No. 38.)
    Decided September 21, 1909.
    Case by Maude J. F. Pritchett, administratrix of the estate of Asa Pritchett, deceased, against the Detroit, Jackson & Chicago Railway Company for the negligent killing of plaintiff’s intestate. A declaration was filed joining a count under the survival act with a count under the death act. An order overruling a demurrer to the declaration is reviewed by the defendant on writ of certiorari.
    Affirmed.
   Hooker, J.

This case is within the rule laid down in the recently decided case of Carbary v. Railway, ante, 683 (133 N. W. 367).

The order overruling defendant’s demurrer is affirmed.

Grant, Montgomery, Ostrander, and Moore, JJ., concurred.


author: Grant, J.

text:
    SEELEY v. CHICAGO, DETROIT & CANADA GRAND TRUNK JUNCTION RAILWAY CO.
    Negligence — Trespassers—Railroads.
    No right of action accrues to the estate of an infant killed while attempting to jump off a flat car on which he had been riding without permission or license from the railroad company.
    Error to St. Clair; Tappan, J.
    Submitted June 9, 1909.
    (Docket No. 23.)
    Decided July 15, 1909.
    Case by William H. Seeley, administrator of the estate of Charles H. Seeley, deceased, against the Chicago, Detroit & Canada Grand Trunk Junction Railway Company and another for the negligent killing of plaintiff’s intestate. A judgment for plaintiff is reviewed by defendants on writ of error.
    Reversed, and no new trial ordered.

      Harrison Geer (W. K. Williams, of counsel), for appellants.

      William H. Simpson, for appellee.
   Grant, J.

Plaintiff’s decedent, a boy eight years and three months old, was playing with four other boys in a puddle of water on Stone street, in the city of Port Huron, opposite the yard of the defendant’s tracks. Stone street runs north and south. The railroad tracks cross the street diagonally in an easterly and westerly direction. Three tracks cross the street. These tracks east of the road immediately branch off into side tracks, reaching manufactories located along the tracks to the eastward. The boys were in the road south of the track. A switch crew was engaged in switching cars. The switch engine was pulling two loaded cars and shoving a flat car to the eastward. Three of the boys, including the deceased, ran to the flat car in the attempt to get a ride. One of the boys testified that he got on top of the car. The other boy and the deceased stood with their feet on the brake beam, grasping the handholds on the southwest end of the car. The distance from the handholds to the brake beam was two feet and ten inches. After placing a coal car for the Minnesota Coal Company, the engine started to back up. The boy on the flat car jumped off, one upon the brake beam jumped off safely, but the deceased, in attempting to jump, fell under the wheels, and was killed.

Extended discussion is unnecessary. The case is expressly.ruled against the plaintiff by Katzinski v. Railway Co., 141 Mich. 75 (104 N. W. 409), and Hamilton v. Railway Co., 142 Mich. 56 (105 N. W. 82), and authorities there cited. See, also, Chicago, etc., R. Co. v. Smith, 46 Mich. 504 (9 N. W. 830, 41 Am. Rep. 177); Peninsular Trust Co. v. City of Grand Rapids, 131 Mich. 571 (92 N. W. 38).

Judgment reversed, and, inasmuch as no different state of facts can be shown upon a new trial, none will be ordered.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.