text:
    WALKER v. SCHULTZ.
    1. Appeal and Error — Constitutional Law — Questions First Presented on Appeal.
    On appeal by complainants from an adverse decree in a suit to quiet title, the Supreme Court will not pass on the constitutionality of a statute and dismiss the bill at complainants’ request, if the point was not presented or passed upon by the trial court.
    2. Mortgages — Foreclosure—Sale—Separate Parcels.
    It was the duty of a mortgagee, making a sale of separate lots, under section 11139, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13934), to offer the parcels seriatim, and a sale in block was voidable at the instance of the persons owning title.
    3. Deeds — Bona Fides — Quitclaim: Deeds.
    One who obtains title to real property by quitclaim deed takes only the interest which the grantor had and is not a bona fide purchaser.
    4. Mortgages.
    Purchasers from a mortgagee who conveys by quitclaim deed take an equitable interest subject to the rights of the mortgagor or his grantees to set aside the mortgage sale of the incumbered premises, and redeem from an invalid sale, at which distinct parcels were sold as one.

      5. Equity — Laches—Delay—Estoppel.
    Mere delay for a considerable period does not constitute laches, but unreasonable neglect to assert or enforce rights sufficient in equity and good conscience to operate to the prejudice of others claiming interests, and especially in conjunction with evidence showing a change of condition on the part of such opposing claimants, is treated in equity as laches and bars the enforcement of the right.
    6. Same — Quieting Title — Redemption. •
    Complainants’ bill to quiet title from an irregular mortgage sale on foreclosure may be treated as a bill to redeem, and the parties be required to do equity by paying to the mortgagee the due proportion of the mortgage debt chargeable to the parcels held by complainants.
    Appeal from Ingham; Wiest, J.
    Submitted November 19, 1912.
    (Docket No. 115.)
    Decided May 28, 1913.
    Bill by Jennie B. Walker and others against Eva May Schultz and others to quiet title to real property. From a decree for defendants, complainants appeal.
    Reversed.

      Charles H. Chase (Edwin H. Lyon, of counsel), for complainants.

      Raudabaugh & Person, for defendants.
   Steere, C. J.

In this suit complainants filed a bill to quiet title to 23 lots located in Charles Kudner’s subdivision of the S. of the N. W. % of S. E. % of section 8, town 4 N., range 2 W., in the city of Lansing, Mich.

In March, 1887, Charles Kudner, the then owner of said property, subdivided and platted the same into 169 lots, duly executing and acknowledging the plat thereof and having the same certified and approved by the surveyor and auditor general, according to law. This plat was not recorded until between four and five years later, after he had parted with the title to the property, which he conveyed in December, 1888, by warranty deed, to John Kudner by its proper, unplatted description, as a part of said section 8, town 4 north, of range 2 west.

On September 16, 1892, John Kudner and wife conveyed said property by warranty deed, and by the same description given in the deed from Charles Kudner, to George J. Charles and George W. Prine, for a consideration of $6,000, taking back from them a mortgage on the premises for $2,535, containing the following provision:

“For a part release, a release of lots of not less than ten at a time, in a certain order, by the payment of $15 and accrued interest on said principal sum of $15, on each lot.”

The latter parties manifestly purchased the property with the intention of selling it out in lots, and ten days later, September 26, 1892, the plat made by Charles Kudner in 1887 was recorded.

Charles and Prine sold numerous lots, some of which were released by John Kudner according to the terms of the mortgage to him. Various conveyances in relation to the same were put in evidence, all the details of which are not necessary to an understanding of the issue here. Charles and Prine were evidently not altogether successful in this real estate venture, and Kudner proceeded to foreclose his mortgage by advertisement; the property being sold on foreclosure at sheriff’s sale, not in parcels, but as an entirety, and bid in by himself. The sheriff’s deed to him, dated December 23, 1895, did not describe the property according to the plat, but as described in the mortgage, also excepting therefrom ten lots which he had previously released. The sheriff’s deed was recorded December 23, 1895.

On December 22, 1896, five parties, who appear to have been purchasers of certain lots in the subdivision, filed a bill in chancery to set aside the sheriff’s deed, given to John Kudner on foreclosure, also filing and recording a notice of Us pendens in the office of the register of deeds of the proper county. An opinion was filed in that case, in the circuit court of Ingham county, on July 12, 1897, in which the court stated that the invalidity of the statutory foreclosure was conceded, and therefore the court would not enter into a consideration of that question, decided that the mistake in description and failure to sell in parcels was an irregularity, and if the mortgagor or his assignees wished to contest the validity of the statutory, foreclosure they should file a bill to redeem, giving them 20 days to amend their bill, and holding the matter in abeyance until all parties could be brought into court. No further steps seem to have been taken in that case, and it stands unfinished, with the Us pendens, filed at its commencement, remaining of record against the property involved in this suit.

The defendant Eva May Schultz claims to derive her title by a quitclaim deed from John Kudner, dated April 28, 1908, based on the statutory foreclosure of his mortgage.

Complainants trace their title to most of the lots claimed by them through Charles and Prine back to the same source, claiming that the sale on foreclosure of the mortgage for the purchase price was invalid. Their first deed was obtained December 31, 1909, subsequent to the conveyance by Kudner to defendant Schultz.

As to lot 103, one Franklin D. Simons, defendant herein, appears to hold under a direct chain of title back to Charles Kudner, the common source. Lots 159, 160, 161, 162, and 163 were released from the mortgage. Prine and wife deeded them to complainant Walker. A warranty deed from one Caleb W. Horton purporting to convey them to Aim on W. Likens and Sarah E. Likens was recorded October 10, 1909; but the record fails to show that Horton had any title to the same.

None of the several defendants except Eva May Schultz appears to have any interest in this litigation which it is desired to assert, and the printed record indicates that the bill has been taken as confessed against all but her. Her title to the 18 lots she now claims to own is contingent on the force and effect of the deed given her by John Kudner and wife in 1908.

Kudner having, in 1892, deeded the same property to Charles and Prine, had no title to convey when he gave the deed to defendant Schultz, unless he had again acquired it by his purchase on foreclosure of the mortgage Charles and Prine had given him for part of the purchase price, when they bought the property in 1892. At the time he sold to them he knew the land had already been platted on paper and that it was the intention to record and perfect such platting. The plat was recorded within ten days after he sold, and he agreed, by the mortgage he took back to secure deferred payments, that he would release lots in the subdivision, under certain conditions of proportionate payment; he subsequently did release certain lots in accordance with such agreement.

It is the claim of complainants that the sale of said premises on foreclosure of his mortgage by Kudner was absolutely void, for the reason that the land, which had been platted with Kudner’s knowledge, consent, and assistance, though consisting of distinct tracts or lots held by various owners, was sold as a whole and not in separate parcels, as required under such circumstances, by section 11139, 3 Comp Laws (5 How. Stat. [2d Ed.] § 13934). Most of the lots into which said land was platted had been alienated by various conveyances from Charles and Prine, and were held at the time of the foreclosure proceedings by not less than 36 different owners, in as many different parcels.

It is contended on behalf of defendant that the failure to comply with the statutory requirement was only an irregularity, which did not render the sale void, but, at most, voidable only, giving the holders of the fee of the mortgaged property the right to redeem and have the sale set aside, provided they acted promptly and were guilty of no laches; but that it clearly appears complainants and those from whom they purchased have lain by without complaint for years and acquiesced in the foreclosure, and they are now estopped by their laches from asserting the irregularity complained of, or from raising any objections at this late date to a foreclosure sale made December, 1895.

Complainants allege in their bill -that the title to the lands in which they are interested, where the mortgage and sheriff’s deed interests are not merged with the original title, is uncertain and not marketable because of questions raised as to the validity of the statutory foreclosure by John Kudner: and they therefore ask that, in case the court finds the foreclosure void, the mortgage interests held by complainants may be reforeclosed and the owners of the original title be permitted to redeem; and, “on the other hand,” if the court holds the foreclosure legal, or if irregular and the irregularity such that if the owners of the original title might have redeemed had they acted promptly, but failing to move in time they are now precluded from doing so, then, in such event, that the court will by decree quiet title in favor of the owners holding under the sheriff’s deed.

The alternative, or contingent, prayers for relief, present clearly the propositions involved and the reason for this suit, and are as follows:

“That this court adjudicate and determine whether the foreclosure referred to was regular and in accordance with the statute in such case made and provided, or whether the foreclosure, if irregular, involved a mere irregularity such that, after a lapse of 13 years or more, the title under the sheriff deed has ripened into a valid and subsisting title. In either of which cases your orators pray that the court make and enter up in this cause such decree as will quiet title in favor of the» owners of title under the sheriff deed. That in case the court should find that the said foreclosure was void and of no effect to convey title by sheriff deed under such attempted foreclosure, and this view your orators believe to be the view taken in all such cases by the Michigan Supreme Court; then, in such cases, that this bill be treated as, and have the force of, a bill to foreclose the mortgage in favor of your oratrix, Lydia A. Thomas, and other equitable owners of such mortgage interests.”

Defendant Schultz asks no affirmative relief by crossbill or otherwise. In her answer she admits the alleged foreclosure of the Kudner mortgage; denies that it was void; and asserts that her title from that source is valid; denies that the lis pendens or the opinion in the suit in relation to which it was filed affect or constitute any cloud on her title; alleges she has a good and sufficient title to the lots she claims, with possession and the right of possession thereof; denies that complainants have any interest in or right to the same; and asks that their bill of complaint be dismissed with costs.

Under the proofs adduced at the hearing, it was disclosed that, in 1908, defendant Schultz, after obtaining a deed from Kudner to the property she now claims to own, took and asserted possession of the same, posting up notices thereon against trespassers, and still maintains such possession.

Counsel for complainants state that they planted their suit upon Act No. 123, Pub. Acts 1909, enlarging jurisdiction of courts of chancery in certain cases; but, fearing that they are “up against a constitutional question,” they now suggest, in this court for the first time so far as the record discloses, that the court should, or may, dismiss their bill on jurisdictional grounds, under the well-settled rule, as stated in Dolph v. Norton, 158 Mich. 417 (123 N. W. 13)—

“That a bill to quiet title brought by one not in possession, against one who is, cannot take the place of an action of ejectment, where the only questions at stake are the legal title and legal right of possession.”

They therefore ask, if the court holds such act unconstitutional and the chancery court without jurisdiction, and so dismisses the suit, that their bill be dismissed without prejudice.

Counsel for defendant do not now raise any question as to the validity of said act or jurisdiction of the court, and urge that the parties went to a hearing without questioning either, and claim that, regardless of the act, the court has jurisdiction to hear and decide the issues involved.

The title of said Act No. 123 suggests grave doubts of its applicability, in any event, to a case like this. It is not the policy of this court to pass upon constitutional questions unless the condition of the pleadings and demands of parties to an action render it imperative. But, irrespective of that suggestion, complainants ask for other relief than to have their title quieted; they request that the mortgage foreclosure be passed upon and declared void, and that they be given the right to redeem, as to all their interests in the property where the condition of their title is similar to that of defendant Schultz. This would necessarily discredit and so impair her title, indirectly at least, even if the bill was dismissed as to her. She was made a party to the suit by complainants, and is interested in those questions. If they are to be decided, she has a right to remain a party. She has appeared and answered. The question of jurisdiction was not raised in the circuit court by any one. All patties went to a hearing on the merits, without any objection or suggestion to the contrary, and we think the validity of the act of 1909 is not now before this court.

So far as the general equities in the case are concerned, they do not appear to predominate strongly in favor of either side. Both manifestly have engaged in this strife for supremacy of title for speculative purposes, and with their eyes open from the beginning. Neither can be said to be innocent parties in any particular; neither has made any substantial improvements on the property; and whatever physical possession either may have had was for strategic purposes rather than use. The land when platted was suburban farm land, which it was thought, or hoped, would some time be wanted, as the city expanded, for urban purposes. The platting, followed by sale and purchase of lots prior to the foreclosure, was the speculative result of temporary inflation. There was no actual need of the property for settlement and improvement as city lots then, nor, so far as shown, even to the present time. While many lots appear to have been disposed of, no improvements on them or occupation for city purposes is shown. The sobering aftermath was a default in Kudner’s mortgage and proceedings by him to foreclose. This was in 1895. He then claimed a balance of $2,595 due him on the mortgage. At that time 160 of the 169 lots had been alienated by Charles and Prine, in 36 different parcels, held by as many owners, and yet Kudner had the property sold as an entirety, on a statutory mortgage foreclosure sale, and, excepting certain lots he had released, bid it in as one parcel and had it conveyed to himself by the sheriff according to the unplatted description. He has never since then taken possession of, or physically asserted any dominion over, it so far as shown.

Complainant Walker asserted possession of a portion of the land, under and through her father, some time before the conveyances relied upon by the respective parties to this suit had been obtained. She testified he had possession of, and at one time cultivated, “most of this property, just a few years ago,” and deeded her part of it, and'that she still had possession of the lots which she claims until dispossessed by defendant Schultz in 1908. What her or her father’s claim of title or right of possession were, previous to getting her deed in 1908, is not shown, however, nor relied on in this case.

Kudner early learned of the defects in his foreclosure proceedings, by the Us pendens and suit against him, and the announced opinion of the court that it was invalid. Those proceedings stood, and stand, as a public notice of the alleged invalidity; apparently, values had then reached an ebb where neither the complainants cared to go to any further trouble or expense in filing a bill to redeem their few lots, as the court had said they might, nor did Kudner care to go to the trouble and expense of having the suit dismissed to relieve his foreclosure from the cloud upon it, nor to retake possession of the property, or pay taxes assessed against it. His subsequent interest and activities in that connection seem to have been limited to quitclaiming the property, as one of the witnesses testifies, “right along, right and left, without knowing which it was or how it was,” to parties who approached him, whenever there was any inducement for him to do so.

In 1908 the growth of Lansing apparently made such property more attractive, and defendant Schultz (who had a husband doing business for her as her agent, and who had some tax titles) procured a quitclaim deed from Kudner of the 18 lots she now claims, “in consideration of one dollar and other good considerations,” and proceeded to disturb complainants’ “quiet enjoyment” by taking possession of the property to the extent, at least, of posting up notices, asserting ownership, and warning away trespassers. The tax titles, of which there is oral testimony, are not, however, produced nor relied upon in this case. Thus aroused, complainant Walker and her associates took steps to circumvent this move by procuring numerous deeds from various owners, and particularly from those who held the original title coming from Charles Kudner independent of the mortgage foreclosure on which defendant Schultz relied.

Under the conceded facts in this case, Kudner’s foreclosure sale and purchase of the property as an entirety, and not in distinct lots or parcels, was a palpable disregard of the plain provisions of section 11139, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13934). To have the mortgaged subdivision sold in separate parcels was a substantial right of the owners of the fee, designed to protect the various interests of separate owners from prejudice or loss. This provision of the statute has several times been passed upon by this court and sales made in violation of it defeated. Lee v. Mason, 10 Mich. 403; Crane v. Sumner, 31 Mich. 199 ; Clark v. Stilson, 36 Mich. 482; Durm v. Fish, 46 Mich. 312 (9 N. W. 429) ; Keyes v. Sherwood, 71 Mich. 516 (39 N. W. 740) ; Hawes v. Insurance Co., 109 Mich. 324 (67 N. W. 329, 63 Am. St. Rep. 581) ; O’Connor v. Keenan, 132 Mich. 646 (94 N. W. 186). These decisions settle beyond possibility of doubt that the statutory requirement violated in this case is not merely directory, that the irregularity went to the foundation of the purchaser’s title, and the sale was invalid. The only question which concerns this case is whether the attempted, or defective, foreclosure put the purchaser at such foreclosure sale in a more advantageous position, and vested him with additional rights by which, under the facts in the case, he can successfully invoke the doctrine of laches against the mortgagor or Ms grantees when they fail to promptly attack the defective sale.

It is the contention of complainants that the foreclosure was not only irregular and invalid, but absolutely void and a nullity; that therefore the legal relations of the parties is as though no attempt had beln made to foreclose.

It is true that this court in some of the foregoing cases has used very positive language when declaring such sales defective. It has said that where the statute is not complied with they “cannot be regarded as complete,” “must fail,” “are void,” “absolutely void”; and yet, while so declaring them, the court has nevertheless given such sales certain ’recognition when the mortgagor has been' the moving party seeking to set them aside, and has established the rule that bills filed for that purpose shall be treated as bills to redeem, on the principle that he who seeks equity must do equity, and the mortgagor must pay the debt secured by the mortgage before a court of chancery will release to him the security pledged for the debt. Since the decision in Fosdick v. Husan, 21 Mich. 567, the decree in such cases no longer works a strict foreclosure, after the time allowed to redeem expires, as formerly; but, if default is made in payment of the amount actually due within a specified time, the premises can be again sold as in foreclosure. Such would unquestionably have been the rights of the respective parties had the mortgagors or their grantees seasonably taken the initiative and proceeded against the mortgagee or purchaser at the foreclosure sale to have the same canceled. On the other hand, had the purchaser at the foreclosure sale promptly proceeded, after the statutory period for equity of redemption expired, to assert his title and obtain possession by summary proceedings or ejectment, he would have failed because the foreclosure was invalid. Durm v. Fish, supra; Keyes v. Sherwood, supra. Can it be said that he, being out of possession, would perfect or strengthen his title by delay, where the rights of no innocent parties intervened?

This brings us to the question whether the lapse of time in this case has interposed laches in favor of or against either party which changes their relative rights. An important consideration in approaching that subject is the fact that the case is bald of equities in favor of any intervening innocent parties.

The mortgagee who was the purchaser took no steps to repossess himself of the property or perfect by resale a defective foreclosure of the kind this court has held imperfect, invalid, and void. The owners of the fee of the land in dispute, entitled to possession constructively, and presumptively, in the absence of anything to the contrary, in possession, made no move to nullify the defective foreclosure proceedings.

The interest which the parties to this suit acquired in the property which they are now litigating comes to them by quitclaim deeds given in recent years. They were not good faith purchasers; they obtained no more interest and no better title than their grantors held. Hughes v. Jordan, 118 Mich. 27 (76 N. W. 134).

“Under the cloak of quitclaim deeds, schemers and speculators close their eyes to honest and reasonable inquiries, and traffic in apparent imperfections in titles. The usual methods of conveying a good title— one in which the grantor has confidence — is by warranty deed. The usual method of conveying a doubtful title is by quitclaim deed. The rule is wise and wholesome which holds that those who take by quitclaim deed are not bona fide purchasers, and take only the interest which their grantors had.” Peters v. Cartier, 80 Mich. 124 (45 N. W. 73, 20 Am. St. Rep. 508).

See, also, Beakley v. Robert, 120 Mich. 209 (79 N. W. 193) ; Johnson v. Williams, 37 Kan. 179 (14 Pac. 537, 1 Am. St. Rep. 243); Dickerson v. Colgrove, 100 U. S. 578.

The history of this case indicates very clearly that the title Kudner was quitclaiming was not one in which the grantor had confidence. The quitclaim deeds given by him to defendant Schultz and others after he foreclosed his mortgage would simply put them in his place with whatever rights he then had, and, if his foreclosure failed, the effect would be to reinstate and preserve unimpaired the lien of his mortgage. In such event they would hold, by virtue of their quitclaim deeds, an equitable assignment of such portion of the mortgage interest as applied to the respective lots covered by the conveyance he gave.

“Laches,” as interpreted by courts of equity, is not tested by mere delay for a certain period, as in case of the statute of limitations, but is such unreasonable neglect to assert and seek to enforce a right as will constitute in equity and good conscience a bar to recognition. If lapse of time without asserting their rights, standing alone, constituted laches in this case, it is by no means unilateral, and is imputable alike to both parties. But mere lapse of time does not necessarily constitute laches. As a rule it involves other considerations. It means that negligence or omission to assert a right which, considering the lapse of time in connection with other facts and circumstances prejudicial to the interests of the adverse party, render it unjust and inequitable to recognize such right when finally asserted. In this case the condition of the title to the property was such that both parties had rights which they might have asserted, but failed to do so for a certain time. Where the situation of neither party has changed materially, and the delay of one has not put the other in a worse condition, the defense of laches cannot as a rule be recognized. Parker v. Hotel Co., 96 Tenn. 252 (34 S. W. 209, 31 L. R. A. 706).

In Sanborn v. Eads, 38 Minn. 211 (36 N. W. 338), where a bill filed to remove a cloud upon the title caused by an alleged unauthorized mortgage foreclosure was demurred to on the ground of laches, it appearing on the face of the bill that more than 15 years had elapsed after the cause of action accrued, the court said in overruling the demurrer:

“The mere lapse of time does not constitute laches, unless the circumstances were such as to make the delay blamable. Whether the delay has been culpable or not may obviously depend upon many facts and considerations, such as the length of time (which cannot be fixed by any definite rule, this being a subject of discretion under the circumstances of each case), the knowledge of the facts, actual or imputable, the consequences as respects others than the plaintiffs, and perhaps other things.”

And of like import Burke v. Backus, 51 Minn. 174 (53 N. W. 458), in which case 17 years elapsed between the foreclosure and commencement of an action to set it aside.

After Kudner conveyed the property to Charles and Prine by warranty deed, in 1892, they and their grantees thereafter had constructive, if not actual, possession, until disturbed or dispossessed in 1908 by defendant Schultz. Up to that time complainants and their grantors, if only in constructive possession, were in better position to invoke the doctrine of laches than any one out of possession. We do not, however, think the record presents a case for application of the equitable doctrine of laches in favor of either of these litigants. No innocent party has intervened or been misled, or injured, by the delay. The property has lain, for the most part, unimproved and unoccupied. What occupation or possession has been - shown was unaccompanied by any substantial improvements, was of doubtful tenure and for strategic purposes, rather than in good faith for use and development. There is nothing except lapse of time to suggest culpable delay, and, as we have before stated, that, standing alone, does not constitute laches. If it raises any presumptions, they are equally strong against both parties.

Under the state of facts disclosed by this record, we conclude no paramount laches is shown which raises equities impairing the rights of either party as they existed at the time of the invalid foreclosure, and they should be adjusted according to the rules heretofore stated.

The court, having once acquired jurisdiction of this matter, may exercise it to make final disposition of the entire controversy, and grant full relief.

The foreclosure sale under Kudner’s mortgage being invalid, the holders of original titles to lots covered by it may redeem by paying to the parties holding, by quitclaim deed or otherwise, assignments of the mortgage interests covering each or any of said lots, the sum of $15 on each lot with accrued interest since the date of said mortgage, according to the provisions of said mortgage relative to a part release, within 60 days after the settlement of the decree herein; in default whereof the premises not redeemed may be sold as in case of foreclosure. Complainant Walker is entitled to a decree, by default, quieting her title as to lots 159, 160, 161, 162, and 163 as prayed.

The decree dismissing complainant’s bill will be set aside, and a decree in accordance with this opinion entered in this court, with costs to complainant.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


source: Caselaw Access Project

author: Moore, J. Ostrander, J.

license: Public Domain

text:
    LEWIS v. WEIDENFELLER.
    1. Libel and Slander — Actionable Words — Special Damages—
    Pleading — Demurrer.
    On demurrer to a declaration charging that defendant falsely stated that plaintiff, an attorney at law, who was a candidate for nomination as legislative representative, had dropped out of the race in favor of defendant and had solicited the payment of $200 to withdraw and support defendant, the declaration was sufficient without allegations of special damages; the language alleged conduct of a disreputable and corrupt, if not criminal, nature, and is actionable per se.

    2. Same — Declaration.
    The test by which to determine whether special damages must be alleged and proved is whether the language necessarily must, or naturally and presumably will, occasion pecuniary injury to the plaintiff.
    Certiorari to Van Burén; Des Voignes, J.
    Submitted January 29, 1913.
    (Docket No. 70.)
    Decided May 28, 1913.
    Case by Lynn J. Lewis against Charles A. Weidenfeller for slander. An order overruling a demurrer to the declaration is reviewed by defendant on writ of certiorari.
    Affirmed.

      Clyde W. Ketcham', for appellant.

      T. J. Cavanaugh and Glenn E. Warner, for appellee.
   Moore, J.

The plaintiff commenced this suit by summons. Later a declaration was filed. The defendant demurred to the declaration. The demurrer was overruled. This proceeding is brought to review the action of the circuit judge in overruling the demurrer.

The declaration is a very long one. It states in substance that the parties were candidates for the nomination as members of the legislature on the republican ticket, in the Van Burén county district at the August primaries. It avers that plaintiff is an attorney at law residing in Bangor, and has been engaged in such profession for a number of years last past.

We quote portions of the declaration as follows:

"Heretofore, to wit, on the 27th day of August, A. D. 1912, in the county aforesaid, and in the legislative district aforesaid, the said defendant being on a train running from South Haven to Kalamazoo, stepped off the train at the village of Grand Junction at about 7:20 a. m. and said to William H. Crouse in the presence and hearing of numerous electors ‘Lewis (the plaintiff meaning) dropped out of the race last night at 8 o’clock’ (meaning that the said plaintiff who was a candidate for member of the legislature on the republican ticket in opposition to him, the said Weidenfeller, had withdrawn and was no longer a candidate and intending thereby to influence electors to vote against the said plaintiff because of his said withdrawal). And on the day aforesaid, in the county aforesaid, at the village of Lacota, between the hours of 7 and 8 o’clock a. m., the said Charles A. Weidenfeller stepped from the train at the village of Lacota and spoke to Carl Gibson, in the presence and hearing of numerous electors of the township of Geneva, as follows, to wit: ‘Tell the man over to the barn to hitch up and go to Jack Buckley’s and Charlie King’s and tell them that Lewis (the plaintiff meaning) has dropped out of the race in my favor’ (intending thereby to have the man at the barn, to wit, Frank Gal-breath, drive to Jack Buckley’s and Charlie King’s, two republican electors of the township of Geneva who were advocating plaintiff’s nomination and who were going to work for plaintiff during the day, and inform them that the plaintiff had withdrawn from the race and that the plaintiff’s influence would be given over to him, the defendant, and intending thereby to have the said Jack Buckley and Charlie King understand and believe that the plaintiff was out of the race and that it was plaintiff’s wish and desire that the said Jack Buckley and Charlie King should go out and work for the said defendant, Weidenfeller, and intending by the statement aforesaid to influence electors of the township of Geneva to vote for him, the said Weidenfeller, because of the fact that the plaintiff had withdrawn as stated by the said Weidenfeller). And on the day aforesaid in the county aforesaid, the said defendant, Charles Weidenfeller, in the morning, while riding on the Michigan Central train from Lacota to Grand Junction, spoke of and concerning the plaintiff in a certain discourse with Whitfield Ackley the following false, malicious, wicked, and slanderous words, to wit: ‘Lewis (the plaintiff meaning) has pulled out of the- race in my favor’ (meaning that the plaintiff had withdrawn his name as a candidate for member of the legislature and as a part of said withdrawal had announced himself as in favor of the candidacy of the said defendant, Charles A. Weidenfeller). ‘He (the said plaintiff meaning) wanted me (the defendant meaning) to pay him (the plaintiff meaning) two hundred dollars, but I (the defendant meaning) could not see it that way. He (the plaintiff meaning) finally dropped out altogether’ (intending thereby to have it understood by the electors of the county of Van Burén that the plaintiff had withdrawn from the race and was no longer a candidate for the office, and that it was plaintiff’s wish and desire that the persons who supported him thus far should turn to the candidacy of the said defendant, Weidenfeller), etc. * * * Said of and concerning the plaintiff in a certain discourse which he was having with William J. Barnard in the village of Bloomingdale on said 27th day of August, A. D. 1912,- in the presence of divers good and worthy citizens, and of and concerning the false, wicked, injurious, and malicious statements made, published, and circulated of and concerning the plaintiff in the several counts of this declaration hereinbefore set forth, in words as follows: ‘The little stunt I pulled off in South Haven and Lacota worked all right, but Lewis (the plaintiff meaning) caught on to it. I didn’t have to use a telephone — just dropped off the train and tipped it off. I did not think then what the result would be.’ Meaning and intending to aver and charge that he pulled off a little stunt, to wit, circulated in and about Lacota and South Haven the story that the plaintiff, who was then a candidate in opposition to him, the defendant, etc. * * * That to further injure the said plaintiff in his good name, fame, and reputation and in his profession as an attorney and counselor at law, the said defendant on the 30th day of August, A. D. 1912, in the village of Paw Paw in a certain discourse which he was then having and a statement which he was then making with, to, and in the presence of Charles E. Ashley, Warren H. Goss, and divers other good and worthy citizens of Van Burén county, did publish and circulate of and concerning said plaintiff and of and concerning the article appearing in said Bangor Advance in connection with said plaintiff the following false, injurious, malicious, wicked, and defamatory words, to wit: ‘Mr. Lewis (the plaintiff meaning) called me (the defendant meaning) up from South Haven, and I (the defendant meaning) met him (the plaintiff meaning) in Bangor. Lewis (the plaintiff meaning) offered to take $200 to lay down (to withdraw meaning) as a candidate for the nomination and throw his support to me (meaning that the plaintiff would vote for the defendant and get his supporters to vote for the defendant if the defendant would pay him, the plaintiff, $200). I (the defendant meaning) said I (the defendant -meaning) would not give a cent. I (the defendant meaning) have two witnesses to prove that Lewis (the plaintiff meaning) offered to take $200. I (the defendant meaning) am going to make them retract what was said in the Bangor paper or start proceedings.’ Intending thereby to charge the said plaintiff with having offered to vote for the said! defendant and to give him, the defendant, the support of plaintiff’s adherents for the sum of $200, and to charge him, the said plaintiff, with having committed a crime, with having violated the primary election law, and with having offered to sell his vote and the votes of his friends and adherents and supporters to the said Weidenfeller for two hundred dollars,” etc,

The claim of defendant is stated by counsel as follows :

“The primary statute does not cover and was not aimed to reach the situation complained of, assuming for the purposes of the demurrer that all the words alleged to have been spoken were true. The precise question involved has never been before the courts, and there are no decisions in point; but the language and tenor and purposes of the act clearly negative the application sought to be given by the plaintiff. The act is directed to the question of prohibiting efforts, by the use of money or otherwise, to ‘induce any person to vote or to refrain from voting in a particular manner at such primary election.’ It being the clearly expressed purpose to ‘prohibit the prevailing practice of candidates hiring with money and promises of positions, etc., workers on primary day and prior thereto,’ and the inducing of voters to vote or refrain from voting in a certain manner. (Sec. 45, Amendment 1911, Act 279.) * * * Unless the words alleged to have been spoken by the defendant charge the commission of a criminal offense, for which the plaintiff could be imprisoned,' the words are not actionable per se. Under the law a candidate for the nomination for office has the right to withdraw at any time; and there is no inhibition in the statute against an arrangement with another candidate, whom it may be he desires to support, whereby he will be paid a sum sufficient to reimburse him for his expenses and outlay during the campaign; and a suggestion looking to this end from one candidate to another is not within the misdemeanor clause of the primary law; neither is it such a charge as holds the plaintiff up to ridicule in his community or charges him with ‘being a knave or trickster’; neither is it such a charge as brings the plaintiff ‘into infamy, scandal, and disgrace,’ as set forth in the various innuendoes of the declaration. In no sense are the words actionable per se. Therefore the demurrer should be sustained.”

To this the plaintiff replies:

“It is said that the declaration does not state a cause of action, because the words set forth are not actionable per se, and no special damages are pleaded. In order to pass upon this question, we must consider the alleged slanderous words with reference to Act 281 of the Session Laws of 1909, being what is commonly called the primary election law, and section 11449 of Miller’s Compiled Laws, entitled ‘An act to maintain political purity.’ The purpose of the acts must be considered as well as the intent with which they were adopted by the legislature. * * * Reading those portions of the act which we insist apply to the facts alleged, we have the following:
“ ‘Every person who directly or indirectly by himself * * * endeavors to procure any money or valuable consideration * * * for any voter or to or for any person on behalf of any voter * * * or to or for any person in order to induce or have such person induce any voter to vote for or refrain from voting for, or support or oppose any candidate, * * * shall be deemed guilty of a misdemeanor,’ etc.
“Does this language apply to the conduct imputed to the plaintiff? Did the plaintiff endeavor to procure from the defendant any money for any voter? It is charged that he endeavored to procure of the defendant $200, and for this sum he would lay down, withdraw, not be a candidate, deliver the goods to the defendant, throw his support to the defendant.”

The argument continues that it is charged that the plaintiff attempted to procure, contrary to the terms of the statute, money from defendant.

“Again, section 11449 of Miller’s Compiled Laws, being section 3 of an act entitled ‘An act to maintain political purity,’ provides that the following persons shall be deemed guilty of bribery:
‘“First. Every voter wbo shall, before or during any election, directly or indirectly, by himself or by any other person on his behalf, ash, solicit, receive, agree or contract for any money, * * * for himself * * * for voting or agreeing to vote, etc. * * *’
“Again, in keeping with the above provision in the purity of elections act, section 49 of the primary act' provides:
‘“It shall be unlawful for any person to solicit from any candidate for nomination for any office included in the provisions hereof, any money or other property.’
“The defendant charged and circulated about the community that the plaintiff offered to withdraw as a candidate and to throw his strength and support to the defendant who was one of the opposing candidates, and to deliver the ‘goods’ for $200. This looks to us like soliciting money and would be bribery if brought within the purity of elections act, and, under section 52 of the primary law of 1909, would be a misdemeanor, punishable by a fine of $500 or six months’ imprisonment, if found to be a violation of section 49. * * * We contend, then, that the words spoken of and concerning the plaintiff were actionable, per se, whether there was a direct violation of the acts aforesaid or not. Smith v. Smith, 73 Mich. 445 [41 N. W. 499, 3 L. R. A. 52, 16 Am. St. Rep. 594]; Orband v. Telegraph Co., 170 Mich. 387 [136 N. W. 380]. By demurring the defendant admits the allegations of the declaration, admits the circulation of the slanders therein charged against him, and whether they will bear the construction placed upon them by the plaintiff is for the jury. ‘The truth of the innuendoes,’ as was said in the Orband Case, supra, ‘is also for the jury.’ Newell on Slander and Libel (2d Ed.) 628.”

Without undertaking to determine whether a crime was charged within the meaning of the statutes above cited, we have no hesitancy in concluding that what was stated was well calculated to injure plaintiff in his profession and also as a candidate for the office which he sought. In addition to the above authorities, see Haney Manfg. Co. v. Perkins, 78 Mich. 1 (43 N. W. 1073); Mains v. Whiting, 87 Mich. 172 (49 N. W. 559) ; Belknap v. Ball, 83 Mich. 583 (47 N. W. 674, 11 L. R. A. 72, 21 Am. St. Rep. 622) ; Oliver v. Perkins, 92 Mich. 304 (52 N. W. 609) ; Henkel v. Schaub, 94 Mich. 542 (54 N. W. 293); Wheaton v. Beecher, 66 Mich. 307 (33 N. W. 503).

The judgment is affirmed, and defendant is given the usual time in which to plead.

McAlvay, J., concurred with Moore, J.

Ostrander, J.

It is clear, I think, that the alleged slanderous words were not spoken of and concerning the plaintiff in his professional capacity or character. Defendant’s alleged conduct may have resulted in some pecuniary damage to him in his profession; and so the same language spoken of and concerning one who was a physician, or an engineer, or architect, might result in some injury to professional business. As affecting the question of the actionable quality of the words, without averments of special damage, they were equally injurious, whatever plaintiff’s profession or calling may have been.

“The real practical test by which to determine whether special damage must be alleged and proven in order to make out a cause of action for defamation is whether the language is such as necessarily must, or naturally and presumably will, occasion pecuniary damage to the person of whom it is spoken.” Newell on Slander & Libel, p. 181.

In Smedley v. Soule, 125 Mich. 192 (84 N. W. 63), a case in which plaintiff was an attorney at law and in which the trial court instructed the jury that:

“The declaration avers an injury to plaintiff’s fame and character as an attorney. * * * The publication complained of tends, upon the face of it, to the injury of plaintiff in respect to his profession and business”—

It was said by this court that:

“All charges of disreputable or criminal conduct tend to injure every man in his profession, trade, or occupation; but the law does not permit recovery therefor unless the words be spoken of him in regard to such profession, trade, or occupation, and loss is alleged and proved. Every such plaintiff can recover for injury to feelings and damage to his reputation. If he desires to go beyond this, it is a wholesome rule to require him to connect the libelous charge by the prop.er colloquium with such profession, trade, or occupation, and to allege special damages.”

See, also, Scougale v. Sweet, 124 Mich. 311 (82 N. W. 1061); Line v. Spies, 139 Mich. 484 (102 N. W. 993) ; Simons v. Burnham, 102 Mich. 189 (60 N. W. 476).

In my opinion, the alleged slanderous words, and especially the allegation that “Mr. Lewis offered to take $200 to lay down as a candidate for the nomination and throw his support to me,” as connected and explained in the declaration, charge disreputable and corrupt, if not criminal, conduct, and are clearly calculated to injure a good reputation and to disgrace the one of whom they were spoken.

It is doubtful if the language set out will in all cases support the innuendo connected with it, but the question is not before us for decision.

I agree that the demurrer was properly overruled, but think the statement in the opinion of Mr. Justice Moore that what was stated “was well calculated to injure plaintiff in his profession and also as a candidate for the office which he sought” is itself calculated to mislead the trial court with respect to the damages recoverable under the declaration.

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


author: Steere, C. J.

text:
    DARLING v. HAFF.
    1. Vendor and Purchaser.
    Where the purchaser of land under contract learned on the day following the execution of the agreement that the vendor’s title was encumbered by a deed given as security for a loan to the vendor, and thereafter paid to the vendor a part of the consideration, mating no demand for a return of the first payment, he was in no position to maintain, in defense of an action for tne purchase price remaining unpaid, that plaintiff, who was then in position to give a clear title, had defrauded or deceived him as to the state of his title.
    2. Teial — Cross-Examination — Witnesses — Compromise and Settlement.
    In an action for a balance claimed by plaintiff to be due upon a land contract and other items, defendant claiming that all matters had been settled and compromised by paying the balance agreed upon, it was error to restrict the cross-examination of plaintiff as to time of payment, the time of surrendering possession, and like questions relating to the issues in dispute.
    3. Same — Charge."
    It was also error, having a tendency to belittle the defense, to instruct the jury, after the case had once been submitted, and they had returned for additional information, that if they found for plaintiff they should deduct from the verdict 55 cents which had been paid out by defendant who, however, made no claim for this amount and had introduced no testimony in support of the deduction.
    Error to Shiawassee; Miner, J.
    Submitted January 10, 1913.
    (Docket No. 50.)
    Decided May 28, 1913.
    Assumpsit by Fred Darling and another against Henry P. Haff for a balance due. Judgment for plaintiffs. Defendant brings error.
    Reversed.

      A. L. Chandler and George E. Pardee, for appellant;

      Kilpatrick & Pierpont, for appellees.
   Steere, C. J.

This suit was brought in the circuit court of Shiawassee county to recover a balance alleged to be due and unpaid on the purchase price of 80 acres of land located in the township of Fairfield, Shiawassee county, sold by plaintiffs to defendant, in August, 1910; also, for a board bill and the use of a horse and buggy. The case was tried before a jury, and plaintiff recovered a verdict of $370.15.

On the 16th of August, 1910, plaintiff Fred Darling entered into a written contract with defendant, Haff, agreeing to sell and convey his farm of 80 acres to the latter for the sum of $5,750, $200 to be paid down, and the balance of $5,550 on or before November 1, 1910. Darling agreed to furnish a clear and good title, an abstract showing the same, pay all taxes against the property, and give possession on October 15, 1910. The $200 payment was to be refunded in case satisfactory title was not furnished. Darling and his wife had resided upon said farm for nearly 25 years. He claimed ownership by inheritance and conveyance from joint heirs.

At the time these negotiations were entered into, the title to said property rested in a man by the name of Crampton, who had loaned $2,940 to Darling, and who instead of taking a mortgage as security had taken from Darling a deed of the property, giving back a contract to reconvey when the indebtedness was paid; and, not being entirely satisfied with that security, he also exacted, as additional security for the same loan, a chattel mortgage on certain personal property of Darling’s. Darling claims that he fully advised Haff of this indebtedness and condition of the title, while they were negotiating the deal, and that on August 16th, when the contract was entered into, they together visited Crampton, informed him of their contract, and arranged with him to accept payment at any time, and reconvey the title on receipt of payment of his loan. Haff denies this, and claims he did not learn of the loan and condition of the title until later. His counsel dwell upon this as a matter of serious import, evidencing dishonesty and a breach of contract on Darling’s part. Whether Haff learned of this before or after he entered into the contract is of no material significance, as he admits having learned of it the next day; and instead of objecting, or demanding a refund of the $200 he had paid, he paid Crampton $100 on the 17th of August and obtained from him a written agreement to surrender his security and convey the property as desired on payment of his loan on or before November 1, 1910; and on September 5th he paid the loan in full, receiving from Crampton and wife a quitclaim deed of the property and an assignment of the chattel mortgage.

Crampton had an abstract of title of the property which Darling testified was treated as the one to be furnished by him. Haff, though not in full possession, began certain improvements on the property before October 15th, at which time possession was to be given him. Darling, during that time, boarded some of his men and furnished them a horse and buggy a few times. Owing to the work of gathering certain beans and sowing certain wheat provided for in their contract, as well as the lateness of the season, full possession was not surrendered, apparently by an understanding between the parties, until about November 1st. Prior to October 15th Haff had employed counsel to investigate the title and had, as he claims, discovered it was defective in the particular that the estate of Darling’s father had not been probated. In anticipation of surrendering the farm, Darling had advertised his personal property to be sold at auction. Haff claimed a lien on certain of this property by reason of the chattel mortgage Crampton had assigned to him, and, on October 17th, accompanied by his son and an attorney, he visited plaintiff at the farm. Objection was made to Darling selling some of his property at auction before all matters were adjusted between them. Complaint was made as to the condition of the title to the farm, and it was urged that Darling should pay certain expenses incurred or to be incurred by Haff in that connection, and a settlement of their affairs was proposed. Accounts were produced and negotiations had between the parties, in which their business relations and differences were fully canvassed; they discussed expenses incurred in investigating the title and probable cost of perfecting it, plaintiff claiming his father’s estate had been probated and defendant that it had not. They also canvassed a claim of plaintiff for certain ditching he had done on the farm, taxes unpaid, and the amount Haff had paid Crampton in liquidation of his loan, about the amount of which there was some controversy.

It clearly appears from the evidence of all the witnesses, including plaintiff and defendant themselves, that the result of these negotiations was some kind of adjustment, understanding, and agreement, reached between the parties as to all matters in difference, except possibly the board bill and use of plaintiff’s horse and buggy, ending in Darling and wife executing a deed of the property and Haff agreeing to leave at the bank in Elsie, for Darling, $2,148 to be paid him, less $48 agreed upon as the taxes to be settled by him.

It being beyond dispute that there was such an adjustment, agreement, and settlement, the only questions open to litigation were the terms of such settlement; therefore most of defendant’s many assignments of error, being directed to matters settled by agreement of the parties, are foreclosed and become immaterial, requiring no discussion here.

It is the claim of defendant that a full and final settlement was reached, followed by full payment of the amount agreed upon,, being the sum of $2,148, less the $48 reserved for taxes.

Plaintiff claims he did not receive payment in full, but that certain items not yet definitely ascertained were reserved and a sum was kept back to cover them, the balance when ascertained to be paid him, and that he is yet entitled, under that agreement, to some $370. He testified that there was an agreement between Crampton, Haff, and himself that Haff should pay all that was coming to Mr. Crampton and that was to be taken out of the price of the farm.

His testimony as to what was not fully adjusted varies somewhat in different portions of his evidence. He testifies in his direct examination as to the transaction on October 17th as follows:

“They claimed I could not give title because there was a flaw in the title; I would have to clear that flaw in the title before I could get the balance of my money; they claimed it had not been probated; the Oscar Darling estate had not been probated. * * * They claimed it would cost up to $300 to clear up the title, or it would have to go through probate court. I agreed to clear up the title, which I did; I was to clear it up.
“Q. How much, what was left, what was the balance left until it was cleared up?
“A.- The balance was left between what he paid Crampton and what he paid me then. It was $300 and better the way I figured it. At that time it didn’t figure out so much because he claimed he paid Mr. Crampton more than that.”

On cross-examination plaintiff testified in part as follows:

“Q. What items went in to make up the amounts of money and the payment which was made to you at the time you delivered over the deed ?
“A. Well, there was the Crampton debt and the $200, an amount when we settled up with Mr. Chandler that day; Mr. Chandler attended to that; there was that item went in. That item was consented to, but there was some items there that we didn’t consent to. We didn’t consent to his bringing Mr. Kelly down there. He wanted we should be to the expense of that. I don’t remember whether there was any other item Haff presented. * * *
“Q. After you talked these matters over, did they have a set of figures there as to what Haff claimed and what you claimed?
“A. Yes, we had a set of figures.
“Q. And after you had talked them over and discussed them, did you come to some agreement as to how much he should pay you and receive the deed?
“A. We gave the deed, we signed the deed that day. * * * If I remember right, the deed was to be left there to the Elsie bank. * * *
“Q. Did you get the money?
“A. Yes, I got the money afterwards.
“Q. You caused your deed to be delivered on the arrangement you and Mr. Half made on that day?
“A. Yes, sir. * * *
“Q. Besides your work and your board bill — that is, I mean your horse and board bill — and this amount which was to be paid after you probated the property or got the title satisfactory to him, besides those three items, was there anything else that was not settled?
“A. No, there wasn’t anything else. * * *
“Q. Your claim here now is for the balance which you claim was found or to be found on that day on that settlement and your other claim here?
“A. Yes, that is what I am suing for. :1: * *
“Q. And at that time, this, as you state now, was the arrangement, that if the probate and expenses were $150 or $200 that you would stand them, otherwise that he would pay the balance that was figured up there?
“A. Yes, sir.
“Q. Now, was that the arrangement that was made that day?
“A. That is the arrangement.
“Q. Was that, do you claim, the-final arrangement?
“A. That was the final arrangement.”

Plaintiff also testified that he agreed to allow a bill of $10 for services of Mr. Chandler in looking after the Crampton transactions on the 5th of September. His testimony, taken as a whole, apparently narrows down all possible issues in the case to the item of $100 paid by Haff to Crampton as an alleged bonus for settling up the loan before it was due, certain expenses claimed by defendant in connection with looking after and straightening out the title to the property, and the board bill and horse hire.

In view of the nature of plaintiff’s testimony in regard to these matters, in direct contradiction of the testimony of defendant and his witnesses that there was a full and complete settlement and payment, counsel for defendant were entitled to a degree of latitide in cross-examining plaintiff. We are inclined to the view that the record, taken as a whole, discloses that this opportunity was in some particulars prejudicially abridged. Among other things, the following occurred in the examination of plaintiff by defendant’s counsel:

“Q. You paid that at the time when the deed was given to Haff, didn’t you?
“A. Why—
“Q. You can answer yes or no, if you will.
“A. It was figured in, yes, it was figured on that day.
“Mr. Pierpont: We object now. The evidence so far shows he didn’t pay it himself personally.
“The Court: There is no question about that. He has told it several times. I will sustain that objection. You try and mix this up. * * *
“Q. You were to give full possession on the 15th of. October, 1910, were you not? Was that your understanding of it?
“Mr. Pierpont: We object to that; the contract shows for itself.
“The Court: Objection sustained. * * *
“Q. Did you give possession of this property on the 15th of October?
“The Court: That will be excluded. He stated he gave possession about the 1st of November. The contract you have before you states the time. We are taking a lot of time and not getting many facts. * * *
“Q. Witness, if there was any agreement that Mr. Haff was to pay you anything in addition at the time you gave him over this deed, why did you not ask him for some note or memorandum showing what the amount was that he was to pay you?
“Mr. Pierpont: We object to it; the contract states the amount to be paid in full.
“The Cowt: Objection sustained. * * *
“Q. And as to the amount of the board bill and this horse, that part had transpired, or most of it, before this day of settlement?
“The Court: You need not answer that. He has answered it two or three times. Proceed. See if we can’t get along.”

We fail to discover that the record bears out this statement.

After the jury had retired to consider the case, they returned to the courtroom and asked for the figures showing the amount of plaintiff’s claim. Certain testimony was read by the stenographer. In answer to an inquiry from the foreman, the court stated that plaintiff claimed in his declaration a balance of $372.50, and then said:

“I wish to add, there is a little item I overlooked. If you should find for the pláintiff, I think you should allow the defendant what the defendant paid out additional for the abstract, which is 55 cents.”

We find no foundation for this item in the record, and, in the connection it was stated to the jury, it can, with some reason, be urged as tending to belittle the defense.

In this case it is undisputed that there was a settlement of the main differences between the parties; that a deed to the property was given and accepted and a payment of most, or all, of the balance of the purchase price made and accepted. There is no occasion to confuse the real issue by trying the once open questions which the parties háve settled.

Defendant claims that everything involved in the case was finally agreed upon and settled and payment made in full. Plaintiff claims a certain portion of the purchase price was, by agreement, withheld to cover the contingency of certain distinct items, which he testifies to specifically, and that with them now disposed of there is a balance yet his due. His claim is almost entirely contingent on his own testimony, and while it may be urged that defendant’s counsel was unnecessarily, and perhaps annoyingly, prolix in the examination of witnesses on issues which became immaterial by reason of the unequivocal adjustment of them by the parties between themselves on October 17th, we think that in plaintiff’s cross-examination as to the settlement, and items he claims were reserved for a further and final settlement, and which present the paramount issue, some latitude should be given, without any restrictions or criticism, which might be taken by the jury as an intimation of the view of the court on the merits of the defense.

We are constrained to hold that the judgment must be reversed, and a new trial granted.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


text:
    SCHOCK v. COOLING.
    1. Damages — Negligence of Plaintiff Aggravating Injuries.
    Where the evidence disclosed that plaintiff went to a physician immediately after being struck by an automobile and submitted to an examination, that the physician bandaged his injured foot and ankle, which caused plaintiff much pain, that he complained that the physician hurt him in handling it and did not permit a thorough examination, but submitted to further treatment by another physician next day, the evidence did not show conclusively that plaintiff aggravated his injuries by refusing to submit to proper treatment so as to be responsible for the results.

      2. Same — Excessive Verdict.
    Damages of $1,000 for broken bones in plaintiff’s ankle, a bruised and swollen leg, ruptured ligaments, etc., resulting in severe pain and lameness, which witnesses testified was likely to last for a considerable time, held, not to be excessive.
    3. Automobiles — Negligence — Warning — Highways and Streets.
    Testimony that defendant drove his automobile at an excessive rate of speed when he struck plaintiff, that he failed to give warning, that he saw plaintiff ahead of him crossing the highway between two rigs with his back to defendant, apparently hesitating as if confused, that one of the standing horses was restless and excited, that he could have stopped his car instantly, but turning to avoid plaintiff drove between the vehicles and struck and injured plaintiff while driving at a speed of five miles an hour or upwards, according to differing testimony of witnesses for both parties, presented a question for the jury as to defendant’s negligence.

    4. Same.
    It was negligence for the driver of an automobile, having ample space in which to pass a pedestrian on the highway, to so guide the car as to strike him.
    5. Same — Contributory Negligence.
    Plaintiff’s negligence, which defendant claimed was the proximate cause of the injury, was for the jury.
    6. Same — Evidence—Lights—Instructions to Jury.
    It was not error to admit testimony that other automobiles, prior to the time of plaintiff’s injury on the evening in question, had lighted lamps, in support of plaintiff’s contention that defendant was running without lights more than an hour after sunset; the purpose of the testimony being properly restricted by the judge in his charge and the jury being advised that it was not to afford a test of the duty of the defendant.
    7. Evidence — Permanent Injuries — Expert Testimony.
    No error was committed by plaintiff’s attorney in asking a medical witness whether the injury to plaintiff’s ankle was permanent or not, where the physician replied that he could not tell, and did not know how long before it would be well.
    8. Same — Exclamations—Pain and Suffering.
    Exclamations of pain and manifestations of suffering before the commencement of suit, not made in anticipation of litigation,’ were not objectionable as evidence of pain and suffering.
    Error to Shiawassee; Miner, J.
    Submitted January 22, 1913.
    (Docket No. 61.)
    Decided May 28, 1913.
    Case by Ira Schock against Thomas Cooling for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      A. L. Chandler and George E. Pardee, for appellant.

      B. F. Reed (George B. Andrews, of counsel), for appellee.

       The authorities on the question of the reciprocal duty of operator of automobile and pedestrian to use care are reviewed in notes in 38 L. R. A. (N. S.) 487 and 42 L. R. A. (N. S.) 1178.
      As to the duty and liability of person operating automobile on public street or highway, see note in 4 L. R. A. (N. S.) 1130. And upon the duty of operator of automobile to stop in order to avoid collision with pedestrian, see note in 24 L. R. A. (N. S.) 557.
      On the question of the duty of a pedestrian to look out for auto cars, see notes in 3 L. R. A. (N. S.) 345 and 20 L. R. A. (N. S.) 232.

   Steere, C. J.

In this case plaintiff recovered a verdict and judgment against defendant in the circuit court of Shiawassee county for the sum of $1,000 as compensation .for injuries inflicted by an automobile defendant was driving.

Plaintiff’s declaration contains three counts, each making the same general charge that an automobile negligently driven by defendant struck the plaintiff while he was walking in a highway, and seriously injured him. The first count declares under the statute (Act No. 318, Pub. Acts 1909, 2 How. Stat. [2d Ed.] §2487 et seq.), charging excessive rate of speed, failure to give warning, failure to display lights on defendant’s automobile at a time exceeding one hour after sunset, failure to use reasonable precautions to insure safety of others, etc. The second count charges common-law negligence in recklessly driving at an excessive and dangerous rate of speed, in a careless manner and without due regard to the safety of others. The third count is of like import, cast in the ordinary form of declaration in trespass. Defendant’s plea is the general issue.

It is undisputed that on the evening of August 31, 1911, the plaintiff, a farmer 57 years of age, while walking across a public highway that led northerly from the village of Vernon (Shiawassee county), at a point from 20 to 30 rods north of what is known as the Webb creek bridge, was struck and injured by defendant’s automobile; the nature and extent of his injuries, however, being a matter in dispute. It is undisputed that no lights were displayed on defendant’s automobile at the time of the accident and that the sun set that evening at 6:38. The time at which the accident occurred, the condition of light or darkness, the rate of speed of the automobile, whether warning of approach was given, the general management of the. machine, conduct and movement of the parties, and the exact nature and manner of the accident, are all matters more or less in dispute.

It-appears from the testimony introduced by plaintiff that on the morning of the day in question plaintiff, who lived near the city of Lapeer, went from there by rail to the village of Vernon for the purpose of attending a family reunion at the home of a cousin, William Pearson, who lived about four miles north of said village, and spent the day with his relatives. Towards evening, when the gathering broke up and the guests departed, Pearson and his wife took several of them, who had come from a distance, to Vernon to take the train for their homes. The conveyances did not all leave the Pearson home at the same time. The last conveyance to leave was a farm wagon containing a guest named Jeffrey, sitting behind, and plaintiff sitting on the front seat with Pearson, who was driving. Pearson’s wife had driven away some little time before with a horse and buggy, taking a guest to the station, and a conveyance containing two of the guests named Johnson and Patterson preceded the one in which the plaintiff was riding but a short time. All drove south along the highway leading directly from Pearson’s home to Vernon. When the conveyance in which plaintiff was riding reached the point where the accident in question subsequently occurred, they met Mrs. Pearson returning from Vernon alone in the single buggy with the top down; and the two conveyances halted opposite each other, or nearly so, as they were about to pass, some little distance apart on each side of the driven way, and after a brief conference it was arranged that Mrs. Pearson should turn about with her buggy and take plaintiff and Jeffrey to Vernon while her husband with his heavy lumber wagon returned home to attend to his chores. This necessitated each conveyance turning around to go in the opposite direction from which it had been previously traveling. Before this was attempted plaintiff, who was seated beside Pearson in the front of the wagon and nearest to the buggy, alighted and proceeded to cross the road to the buggy. Jeffrey, who was in the rear of the wagon, also alighted and crossed the road to the head of the horse driven by Mrs. Pearson, taking hold of a line or bridle so as to lead the animal around in turning. There is some conflict of testimony as to which crossed first and the exact direction of their crossing.

At this time Mrs. Pearson’s buggy stood with its hind wheels opposite or a little beyond the rear of the lumber wagon and on the grass at the side of the road, the lumber wagon being on the opposite side of the traveled way, leaving a space of from 12 to 20 feet between them, and plaintiff proceeded from where he alighted in a northeasterly direction diagonally across the road towards the buggy. According to the testimony of plaintiff’s witnesses, none of them at this time had any knowledge of the approach of an automobile, except Pearson, who was in his wagon facing to the south. He testified that he first noticed the automobile approaching when about three rods away, making a noise the same as other automobiles do in running ; that he called out that there was an automobile coming, but does not know whether plaintiff heard him; and that within an instant after he called the automobile was between him and plaintiff. Plaintiff testified that when he started across the road he did not see or hear any automobile, and that he walked in a natural gait in a “kittering” direction, and when near the east wheel track of the beaten way he was suddenly struck on the right ankle by something and thrown to the ground, the instant thought occurring to him that an automobile had struck him; that he was then within four or five feet of the buggy and fell towards the north, having been hit by the hind wheel of the automobile, which struck the back of his leg and ran over his ankle.

The testimony of plaintiff and his witnesses tended to show that it was dark, or nearly so, at that time, some saying it was dusk and that the natural darkness was somewhat increased by dust in the atmosphere, so that objects could not be readily distinguished at any great distance; that defendant’s automobile was moving at a high rate of speed, estimated by some at 15 miles an hour, and came up suddenly from the south, without sounding the horn or giving any warning to plaintiff, who was walking diagonally across the highway and then near the easterly edge of the beaten road with his face turned toward the north, passing so close to him that the rear wheel struck the lower part of his right leg or ankle a glancing blow, knocking him down, fracturing the bones of his leg, and otherwise seriously injuring him.

The defendant is a farmer residing south of the village of Vernon, and on the evening in question, accompanied by his wife, was taking his son and his son’s wife with their two children to the city of Owosso in a Ford Model T automobile owned by defendant.

It is the testimony of defendant and others who were with him that they left his home about sundown, and that the distance from where they started to the place of the accident is from 31/2 to 3% miles. It took but from 12 to 18 minutes to drive that distance, and they arrived at the place of the accident not more than 18 minutes after sunset; it being yet broad daylight. The road had recently been covered with gravel six or eight inches deep for 15 or 16 rods north of the bridge, and from the bridge north there is a descent for a distance of 12 to 18 rods, then a slight rise, after which it is level to the place of the accident. Defendant shut the throttle of his engine when he got upon the bridge and ran with it closed until the accident ; the speed gradually diminishing from about ten miles per hour at the bridge to five or six when the accident occurred. The bridge is 55 feet long, and in crossing it the machine caused the planks to rattle and make a loud noise. Observing the parties stopped in the road ahead of him defendant sounded his horn several times as he approached them and slowed down his machine. The two rigs were at first in the middle of the road, but after he “tooted” his horn they began to separate and were apart from 12 to 20 feet at the time he reached them. When five or six rods away he first noticed plaintiff as he was coming out from behind Pearson’s wagon and starting across the road, at which time defendant tooted his horn once, but plaintiff paid no attention to it, and when within about 15 feet of him, noticing that he was in a position of danger, defendant called out to him three times to “look out” and swung the car to the left far enough to safely pass behind him, and would have done so had he stood still or continued walking ahead. Defendant supposed he had passed safely until his wife drew his attention to the matter, when he looked round and immediately stopped.

While there is some confusion as to the details, the lengthy testimony of defendant and his witnesses is to the effect, briefly stated, that they saw plaintiff in the road as they were approaching some distance ahead as he moved away from Pearson’s wagon to cross the road; that the horn was sounded but he did not seem to hear it, and when the automobile was within 10 to 20 feet of him he was directly in its path in the road, in a position of danger if he remained there, and the automobile continued on; that he seemed to be slightly hesitating and confused, and defendant shouted at him as they came closer, running not over five or six miles an hour; that ample notice had been given of their approach. It was daylight and the car was under complete control. As the car came near to plaintiff, defendant steered it in a gradual curve to the left sufficient to pass plaintiff safely, and did pass him, so far as then appeared, until he stepped backward just at that instant far enough for the rear wheel to strike his foot or ankle and inflict the injury complained of, which is imputable entirely to his own negligence and not that of defendant.

Defendant’s numerous assignments of error are concentrated into the following reasons why the judgment should be reversed and a new trial granted:

(1) The verdict is contrary to the overwhelming weight of evidence.
(2) That the defendant was guilty of no conduct constituting actionable negligence.
(3) That the plaintiff was guilty of contributory negligence precluding a recovery.
(4) That the court erred in admitting and excluding certain testimony, in certain parts of his charge, and in refusing defendant a new trial.
(5) That the damages are excessive in amount.

The claim that, if the case was in any aspect to be submitted to the jury, excessive damages" were awarded is based on the contention that all the pain, suffering, and ill effects resulting from the injury were caused by plaintiff’s refusal to permit a physician at Vernon to properly attend to him and administer first aid; and the testimony of witnesses that he was able to walk on the limb shortly after the accident, that he was seen to get out of the buggy and walk when he arrived at Vernon that evening, and the testimony of a physician, called by defendant, that there had not been any fracture, that an examination failed to disclose any callous, such as fractures cause, that it looked to him as if plaintiff had suffered a “sprain of the ankle,” that he did not regard the injury as permanent, and that the treatment, or neglect of treatment, shown by certain of the evidence was injurious, would increase the pain and suffering and retard recovery. The evidence discloses that immediately after the accident plaintiff was taken to a physician at Vernon where his limb was hastily examined and bandaged, but he was suffering and claimed that the physician hurt him unduly in handling the limb, and did not permit a very thorough examination. The testimony on that subject falls far short of showing conclusively that plaintiff aggravated his injuries by refusing to submit to proper treatment and is himself responsible for the suffering and ill effects of the injury.

There is testimony that soon after plaintiff left the physician’s office in Vernon he took a train to Lapeer and was taken from there to his home in an automobile, where he arrived about midnight, and was put to bed. A physician was called the next morning who cared for and treated him. This physician took an X-ray photograph of the injured parts. He produced it at the trial, and with it described the injury, stating he found two bones fractured, bruises, and ligaments ruptured, swelling and discoloration half way up to the knee. He put the limb in a plaster cast and treated it for some time; that plaintiff suffered from the injury; that he could not say the injury would be permanent, but would expect it to trouble a man of plaintiff’s age a long time. Plaintiff testified to severe pain and suffering, described the nature and extent of his injury as he experienced it, told of the continuance of the pain, of inability to freely use the limb and to do his work. The injured ankle was exhibited to the jury; other witnesses corroborated portions of plaintiff’s testimony as to the nature, extent, and permanence of the injury. There was a marked conflict of testimony; but if the jury believed the testimony of plaintiff and his witnesses (and the credibility of witnesses was for them to determine) the verdict was far from excessive. Kathmeyer v. Mehl (N. J. Sup.), 60 Atl. 40.

The claim that defendant was guilty of no conduct constituting actionable negligence cannot be disposed of as a proposition of law. There is evidence in the case tending to show that he was driving his car at an excessive rate of speed; that he approached without giving proper warning; that he saw plaintiff diagonally crossing the highway between the two conveyances, with his back partially towards the car and in the direct path of it, apparently hesitating, as if confused. Seeing this, and seeing, as he himself states, that the horse Mrs. Pearson was driving was restless and excited, he drove right on at a rate of five or six miles an hour as he states, and at a rapid speed as others testify, making a curve to miss plaintiff, when, according to his own testimony, he had his car under complete control and could have stopped it instantly. Irrespective of any statutory liability, his negligence was fairly put in issue by the testimony, as a question of fact for the jury.

The reciprocal rights and duties of a pedestrian and driver of an automobile are clearly stated with many citations in Hennessey v. Taylor, 189 Mass. 583 (76 N. E. 224, 3 L. R. A. [N. S.] 345, 4 Am. & Eng. Ann. Cas. 396), which is well in point here. It is there said that “although each had the right to pass and repass, neither could so negligently exercise this right as to injure the other”; and, the parties having come into collision, the usual questions of due care on the part of the plaintiff and negligence of the defendant are ordinarily issues of fact for the jury. Such was clearly the case as to the defendant under the conflicting testimony appearing in this record.

It is well settled by abundant authority that it is negligence for the driver of a conveyance, having ample space to pass a pedestrian on a highway, to so guide his vehicle as to strike the latter in passing. Boiek v. Bissell, 80 Mich. 260 (45 N. W. 55); Lazell v. Kapp, 83 Mich. 36 (46 N. W. 1028); Graham v. Evening Press Co., 135 Mich. 298 (97 N. W. 697) ; Gerhard v. Motor Co., 155 Mich. 618 (119 N. W. 904, 20 L. R. A. [N. S.] 232) ; Navailles v. Dielmann, 124 La. 421 (50 South. 449, 134 Am. St. Rep. 508) ; Weil v. Kreutzer, 134 Ky. 563 (121 S. W. 471, 24 L. R. A. [N. S.] 557). Diamond v. Cowles, 174 Fed. 571, 98 C. C. A. 417, is in point. There defendant, driving an automobile, struck plaintiff while approaching him from the rear, walking across the street diagonally; there was evidence that the accident could have been avoided by defendant slackening his speed or swerving to the right, and also conflicting testimony as to whether plaintiff was still continuing on his course, or whether looking round and seeing the car he stepped back in front of it, it was held that the question of defendant’s negligence was for the jury.

It is urged that plaintiff’s contributory negligence is so conclusively shown as to make it imperative for the court to hold, as a matter of law, that it precludes him from recovery. This claim is chiefly based on the assumption that, as a physical fact, he would not, and could not, have been hit by the rear wheel of the car, as it is undisputed he was, after the front wheel cleared him, unless he himself stepped back or turned against the car after the front wheel had passed. Plaintiff and others testify positively that he did not. Was it a physical impossibility for him to have been injured as he was, if he did not? He had a right to be in the highway and to walk across it. He was not bound to be constantly on the lookout to ascertain if an automobile was approaching him, under penalty that, failing to do so and he was injured, his negligence must be conclusively presumed. He testifies that he did not hear or see defendant’s car and had no knowledge of its approach until it struck him. He was nearly across the traveled portion of the road when struck. Defendant testifies that in the direct line he was driving he would have run over plaintiff, and that he swerved to the left to pass him. It is shown that the front and rear wheels of the car did not track at that point, but made separate marks on the ground at the place of collision. It can well be argued, as a physical fact, that turning quickly to the left and back to the right in making a curve around plaintiff would cause the rear wheel to travel farther to the right at the point of collision. His physician, describing the injury, said that there was a rubbing of the skin produced by a blow applied to the outer back part of the ankle a little above the tendon achilles, about two inches wide and of irregular shape, indicating plaintiff was, when struck, facing from the car, with his right leg nearest to it and at an angle. We find nothing disclosed to take the question of his negligence out of the general rule. It was fairly submitted to the jury, with appropriate instructions on the rules of contributory negligence.

The statute provides that the lamps of a running automobile shall be lighted within one hour after sunset. It was admitted defendant’s lamps were not lighted at the time of the accident, and plaintiff charged that it was then after nightfall and over an hour after sunset. This was strenuously denied by defendant, who claimed it was broad daylight and the sun had set but a short time before. Plaintiff was permitted to introduce testimony that other automobiles, met before the accident, had their lights burning and that lights were lit in the village of Vernon when plaintiff arrived there shortly after. It is urged that evidence of lights on other automobiles was incompetent and prejudicial in itself, and that, in any view, counsel for plaintiff made improper use of it in his argument to the jury. This evidence was not admissible to fix a standard of care for defendant or a test of his legal duty. It was not admitted for that purpose, but under the theory that the general and normal conduct of men or animals, resulting from some natural physical condition, has probative force as to the then existence of such condition. Wigmore on Evidence, § 459. Mankind, as a rule, does not walk under open umbrellas in dry weather, nor light lamps in buildings nor carry lighted lanterns around in daylight. As having some evidentiary qualities bearing on whether it was light or dark at the time of the accident, we think this testimony admissible; it being restricted to that purpose. The trial court so restricted it, and, when objection was made to an improper argument of counsel for plaintiff as to what it proved, the court distinctly stated, “It was admitted for this purpose for the purpose of finding whether it was dark or light.” Later the court in its charge cautioned the jury as to this testimony and said:

“The court instructs the jury not to consider the testimony in this case as to the lights or absence of lights on other automobiles passed by the plaintiff and others on the highway in question prior to the injury to plaintiff, as affording a test of the legal duty of the defendant in any event. * * * Testimony as to the lights or the absence of lights on other automobiles operated on this highway prior to the time plaintiff was injured can only be considered by you as bearing on the question as to whether it was light or dark. On that point such testimony is merely evidential and not to serve as a legal standard of conduct of the defendant.”

We think under this instruction and caution to the jury, as well as the correction of counsel for plaintiff during the argument objected to, there is no reversible error in relation to the testimony complained of.

Error is assigned to the ruling of the court allowing the following question to be answered by Dr. Kay, the physician who attended plaintiff:

“Q. Say, in a man like Mr. Schock, 57 years old and injured as he was injured, by being knocked down and run over by an automobile, and his ankle injured, whether that injury to his ankle will be permanent or not, in your opinion.”

This was- objected to on the ground that there is no such allegation in the declaration of the permanency of the injuries as would warrant such testimony. The declaration describes the injuries in detail and alleges that “his said right ankle and foot then and there became and were and are permanently crippled and lamed”; but were that allegation absent, we fail to discern how the testimony elicited by this question could be a ground of complaint on the part of the defendant. The doctor replied:

“I don’t think any person can say it is going to be permanent. * * * I couldn’t tell you how long it will be before it will be well. That is only guessing; couldn’t tell you anything about that.”

A neighbor who visited plaintiff, the day after the accident as he thought, testified to finding him in bed suffering with an injured ankle and foot, which witness described, and was allowed to answer the following question, against objection:

“Q. During the time you were there, during the two hours, what exclamations or evidence of Mr. Schock’s suffering then present pain did you hear or observe?”

The witness answered:

“He was making a great fuss, being in such pain he couldn’t .lie still. First he would put his foot in one position, then he would move it again in another. He looked a little peaked. There was a drawn expression in his face.”

Error is assigned upon this ruling, and it is said:

“This was several days after the accident, and we contend this was not within the rule admitting exclamations of present suffering as the evidence shows it was not free from that suspicion which the law condemns” — citing Strudgeon v. Village of Sand Beach, 107 Mich. 496 (65 N. W. 616); Mott v. Railway Co., 120 Mich. 127 (79 N. W. 3).

It is claimed that the suspicion which the law condemns arises from the fact that at the time of the accident plaintiff made remarks indicating a purpose to bring suit. No suit had then been begun, and there is nothing to indicate that the witness had any knowledge one was anticipated, or that any exclamations were made to him, or in his presence, in anticipation of his being a witness. His visit was.a natural call upon a neighbor who had been injured, and there is no evidence that litigation was then thought of or mentioned by either. In the cases cited (to which may be added Hyatt v. Adams, 16 Mich. 180; Johnson v. McKee, 27 Mich. 471; Will v. Village of Mendon, 108 Mich. 251 [66 N. W. 58] ; Pruner v. Railway, 173 Mich,. 146 [139 N. W. 48]), the rule is recognized that exclamations and manifestations of present suffering are admissible, unless made to one in contemplation of his becoming a witness. We think the testimony was admissible.

A careful reading of the lengthy record fails to convince us that the verdict is contrary to the overwhelming weight of evidence and that a new trial should be granted for that reason. The case was submitted to the jury under a very full and fair charge, which clearly explained to them the nature of the controversy, the issues for them to decide, and the rules of law by which they should be governed in passing upon the facts.

We conclude that the strongly conflicting evidence on the material issues involved was such as to take the case to the jury and find no error in the record which would justify us in reversing the judgment. Accordingly the same is affirmed.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.