text:
    BENNETT v. MICHIGAN PULPWOOD CO.
    Damages — Statutes—Trespass—Logs and Logging — Conversion op Timber — Treble Damages.
    Where the owner of a raft of cedar posts and poles which went ashore in 1908 in Canada, brought suit against the . defendant for converting his timber, with which the defendant’s property became intermixed, going ashore at the same point, three years later, and the evidence of the defendant showed that the timber could not be assorted on the exposed shore and that it was necessary to collect all the logs and tow them to a Michigan port, and that defendant, as soon as plaintiff made claim for the value of the timber, offered to return it, and did not ■ claim to own the cedar, the plaintiff was not entitled to 'treble damages under 2 Comp. Laws, § 5094 (2 How. Stat. [2d Ed.] § 4156), since the statute relates to an unlawful taking.
    Error to Chippewa; Hudson, J.
    Submitted April 21, 1914.
    (Docket No. 97.)
    Decided June 1, 1914.
    Case by James T. Bennett against the Michigan Pulpwood Company for certain poles and timber. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Sherman T. Handy and Francis T. McDonald, for appellant.

      E. S. B. Sutton, for appellee.
   Moore, J.

The following correspondence passed between the parties to this litigation:

“October 21, 1911.

“Michigan Pulpwood Co.,

“Adams Building,

“Sault.Ste. Marie, Mich.

“Gentlemen:

“Referring to our conversation of yesterday relattive to the cedar tie cuts and poles belonging to James T. Bennett, a part of which are now claimed by Mr. Bennett, to be in your possession, I hereby make demand, for and on behalf of Mr. Bennett, on you, for pay for timber as follows:

1,000 cedar posts at $2.50 each.. $2,500 00

Cedar logs which would cut 14,000 ties at 40c each........ 5,600 00

$8,100 00

“Under sec. 5094 of the Compiled Laws, Mr. Bennett would be entitled to three times this amount, or $24,300.00. Mr. Bennett, therefore, demands payment of the said sum of $24,300.00.

“Yours truly,

[Signed] “Sherman T. Handy.”

“October 25, 1911.

“Mr. J. T. Bennett,

“De Tour.

“Dear Sir:

“The letter written in your interest by Mr. Handy has been handed to me for answer, and I find on investigation that the timber you refer to is certain timber we understand that was stranded and abandoned by you on the Canadian shore in Lake Superior some time ago.

“You have been notified that this timber is at the American Soo, and you have been up to it and looked it over, and we await you taking the timber if it is yours, as the season is getting late, and we want our boom free.

“You have been informed how our boom broke when it was holding our timber on the Canadian shore, and our timber was stranded in part at the place where this timber you claim was stranded some time before, and the sea in casting it up intermingled it, that it was necessary to take all of the timber off the beach to get ours, and, there being no facility to sort it in that exposed place, we were compelled to bring the whole of it to the American Soo. By so doing,, we have materially benefited you.

“The timber of yours, if it is yours, we want you to take, and you are notified to get it, and we will assist in sorting it.

“We have never claimed this timber as our own; but, under the Canadian laws where it was salved, we are entitled to compensation for salving it, as it has been so stranded and abandoned by you for over one year. The question of our compensation will be adjusted as soon as you get it sorted out and take it over.

“We desire you to act promptly in taking your timber, as we want to use our booms.

“Yours truly,

[Signed] “E. S. B. Sutton,

“Vice President,

“Michigan Pulp Wood Co.”

“October 26, 1911.

“Mr. E. S. B. Sutton,

“Vice Pres. Michigan Pulp Wood Co.,

“Price-Harrison Bid.,

“City.

“Dear Sir:

“Your favor of the 25th instant addressed to Mr. James T. Bennett in answer to mine of recent date has been handed me for reply. In answer would say that the timber in question was stranded on Canadian shore, but was never abandoned by Mr. Bennett. We know the amount of timber belonging to Mr. Bennett which you took, and what we want is pay for what we are entitled to under the law. The timber was converted into your possession without our consent or knowledge, and we are looking to you for the pay, rather than the timber.

“Unless we hear from you or a settlement is made within a few days, we will be obliged to take legal proceedings against you.

“Yours truly,

[Signed] “Sherman T. Handy,

“Atty. for J. T. Bennett.”

“November 10, 1911.

“Mr. E. S. B. Sutton,

“Vice President Mich. Pulp Wood Co.,

“City.

“Dear Sir:

“Re Bennett v. Michigan Pulp Wood Co., on October 26th last I wrote you in answer to your favor of the 25th, stating that we wanted the pay for our timber, and not the timber, as it was taken into your possession and is still retained by you. I was in hopes that litigation might be avoided; but, as you have not answered my letter, I take it you do not propose to make settlement and will be obliged to take legal steps to collect the same.

“Yours truly,

[Signed] “Sherman T. Handy.”

“November 10, 1911.

“S. T. Handy, Esq.,

“City.

“Dear Sir:

“I have yours of today and in reply will say that the timber referred to in our possession is, as you have been advised, held by us subject to your order, and we have asked you to take it, that is, your client, and he has not done so, and, as its possession is a source of expense to us, we will look to your client for compensation since our notification to him to take the same.

“Any litigation you see fit to engage in has no terrors for us as we have defined our position in the matter, and, if you do not take for your client the timber, or if he does not take it, it is held subject to his risk as it has been held since we so notified him. We obtained possession legally in Canada, and have been and still are anxious to deliver the same to your client.

“Yours truly,

[Signed] “E. S. B. SUTTON,

“Vice President.”

This suit was begun by declaration January 3, 1912. The case was put at issue and tried before a jury. The judge directed a verdict in favor of the defendant. The case is brought here by writ of error.

The declaration has but one count, which count states a case under section -5094, 2 Comp. Laws (2 How. Stat. [2d Ed.] § 4156). The pivotal question is whether section 5094, 2 Comp. Laws, applies to the instant case. The facts are not very much in dispute. The plaintiff testified in substance that he was lumbering in Canada, and that, when he was making up a raft of cedar poles bearing his mark, in September, 1907, the timber got away. On the cross-examination he said:

“The raft broke, and the timber went up the lake. There was a southwest wind. I cannot tell exactly where it landed. I did not go to see.’ I was up there during the year that this raft was being made up. I was there the day it broke. * * * I cannot tell just where the timber went; but it was headed for shore, north of Mamainse. I did not go to see where this timber went; but I had some fishermen there look it up for me and made arrangements with different people at different times to go and pick it up, but I wasn’t in financial shape myself the next few years after that to do it myself. I never went up there myself since the timber got away or sent any one in there; but I have made an effort to get it by making arrangements with others to pick it up. I do not, know how much of it is left on the Canadian shore. A man was up there this summer and said there was not efiough left to pay to pick it up. He said he went to Lizzard Island and Montreal, and around the Agawa shore. I think the Michigan Pulpwood Company lumbered 15 or 20 miles north of us in 1910 and 1911. I never lost any timber by rafts breaking before. I never had any experience in picking up timber that was mixed with others. I cannot give any idea of how much timber the Michigan Pulpwood Company got belonging to me; I only saw what was at Algonquin, and did not count that.”

The record discloses that defendant was lumbering in the vicinity of where plaintiff had lumbered in Canada, and in 1911 had a raft go to pieces and go ashore, the pieces becoming mixed with the cedar poles that belonged to plaintiff which had gone ashore in 1908, and that, to recover defendant’s timber, it was necessary to cause the shore to be cleaned, and, as the assorting could not be done on that exposed shore, a large raft containing timber entirely belonging to defendant and a smaller one in which was the timber plaintiff claims' intermixed with defendant’s timber were started for Sault Ste. Marie; the tug Thompson towing them. When the tow reached a point just below Round Island in the St. Mary’s river, a steamer ran into the rear raft and broke it up, and the wind blew some of the timber ashore on the American side. It was picked up as soon as could be done and put in a boom and tied in Michigan waters; but it got away during the night and went ashore again. It was at once picked up under instructions of the Michigan Pulpwood Company by the tug C. D. Thompson, and was brought to Kelly & Mayer’s dock on the American shore of the St. Mary’s river in the city of Sault Ste. Marie.

Plaintiff offered testimony tending to show that an officer of defendant company was informed that the mark on the timber was his mark, and that an attempt had been made to sell this timber. It does not appear whether this was before or after the correspondence; but it does appear that the bulk of the timber at the time of the trial had been taken out of the water, and was still on shore.

The attitude of the parties before litigation was begun in relation to the logs is shown by the correspondence which we have quoted. The defendant introduced in evidence the Canadian statute applying to lumbering operations, which reads in part as follows:

“In case of neglect of any person to make adequate provisions and put on a fair proportion of the men required to break jams of intermixed logs and to clear the same from the banks and shores with reasonable dispatch, etc., it shall be lawful for' any other person whose logs are intermixed to put sufficient number of men on to supply the deficiency and clear such intermixed logs from the banks and shores of such water.”

Section 8 (1) gives the person supplying such deficiency and causing such intermixed logs to be cleared, a lien upon the logs of the person guilty of such neglect for a fair proportion of the charges and expenses incurred.

It is the claim of defendant that the law of Canada applies to this transaction, and that its taking possession of the logs was not only lawful but was necessary if it would avoid the loss of its own timber, and that it has never sought to deprive plaintiff of its timber. It is the claim of the plaintiff that defendant cannot invoke the law of Canada, unless it invokes all of it. We quote from the brief:

“There certainly is no evidence of a disposition on defendant’s part to give plaintiff the notice required by the statute upon which defendant justifies its action. Who can say that notice was given without delay or within a reasonable time?”

It is also his claim that, when the smaller raft broke in the St. Mary’s river, and some of the logs went ashore and were recovered by defendant, the provisions of section 5094, 2 Comp. Laws (2 How. Stat. [2d Ed.] § 4156), at once applied. Stated concisely the situation seems to be as follows: In 1907 plaintiff had a raft which was broken up, and the timber went ashore. Plaintiff took no effective steps to recover this timber. In 1911 defendant had a raft which broke and went ashore, its timber intermingling with the timber of plaintiff, which went ashore four years before, so that, in order to recover its timber, it was necessary for defendants to take possession of it all, which it did, and conveyed it all to Sault Ste. Marie. Shortly after this, and while the timber was still in the possession of the defendant, a claim for damages was made by plaintiff. He was at once informed that the defendant had never claimed to own the timber.

“The timber of yours, if it is yours, we want you to take, and you are notified to get it, and we will assist in sorting it.”

The plaintiff, instead of taking the timber as requested, brought this suit and seeks to recover three times its value, without offering to make any deduction for the expenses incurred by defendant.

There is a full discussion in the briefs of whether the law of Canada applies, and of other legal propositions, which we think it unnecessary to discuss.

It is a familiar principle of law that, in construing a statute, we must consider the occasion of its enactment and the purpose to be accomplished. Washburn v. People, 10 Mich. 372; Ticknor’s Estate, 13 Mich. 44; Caldwell v. Ward, 83 Mich. 13 (46 N. W. 1024).

When section 5094, 2 Comp. Laws (2 How. Stat. [2d Ed.] § 4156), is carefully read in connection with the other provisions of the act, it is clear that the purpose of its enactment was to prevent the unlawful taking of timber by one person or corporation belonging to another. To apply its provisions to the instant case would be a travesty upon justice.

Judgment is affirmed.

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


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    PEOPLE v. LEONZO.
    1. Trial — Conduct of Court — Criminal Law.
    Where the accused, a colored man, was convicted of robbery while armed with dangerous weapons, his attorney being colored, and it appeared that the court, during the opening, treated the attorney in a way which tended to discredit him in the eyes of the jury and prejudice the rights of the respondent, frequently interrupting counsel in his opening statement and examination of the witnesses, and making remarks which had a tendency to belittle the attorney, the court is required to grant a new trial on the ground of prejudicial error.
    2. Same — Charge—Witnesses.
    Also the reference in the charge of the court to testimony given by the police as entitled to credence and a statement that the respondent who claimed he went to the officer for protection, was, at the time, fleeing, held, to amount to reversible error.
    Error to the recorder’s court for the city of Detroit; Phelan, J.
    Submitted April 23, 1914.
    (Docket No. 168.)
    Decided June 1, 1914.
    Kiyde Leonzo was convicted of robbery, being armed, etc.
    Reversed.

      Grant Fellows, Attorney General, Hugh Shepherd, Prosecuting Attorney, and Harry B. Keidan, Assistant Prosecuting Attorney, for the people.

      Chawke & Sloan, for respondent.
   Moore, J.

On the morning of Sunday, December 8, 1912, about 3 o’clock, respondent was arrested by two police officers in the city of Detroit. He was running. His claim is that he and two companions had been out; that defendant left them and was returning home, which is in the immediate vicinity of the place where he was arrested; that just before then some one threw a rock or brick which hit the side of the building which he was passing; that he stopped and more were thrown; that he then started to run, turned the corner, saw the police officers, and ran to them for protection. The officers stated at the trial that they had been standing in the alley and surprised the defendant as he was running; that one held him, while the other went around the corner to investigate; that they found the complaining witness, one James Leary, holding a handkerchief to a cut in his chin. Leary stated that he had been knocked down and robbed. The officer and Leary then went back to where defendant and the other officer were waiting. Defendant was searched and two pocketbooks and an old razor were found on his person. One of the officers testified that there was blood on the razor at that time, and that it was fresh. His fellow officer testified that the razor was not opened at that time, so far as he knew, and that he was there and saw everything. Defendant claimed that he always carried two pocketbooks, one for large bills and a memorandum, and one for change; that he had been working at the bowling alleys of Alderman Rutter setting up pins, and at the barber shops of a Mr. Murphy and Mr. Trokey as porter, earning $15 to $20 a week; that the razor had been given him by a barber at Mr. Trokey’s barber shop about eight months previous to his arrest; that it was no sharper than an ordinary butter knife, and that he had carried it with him “like an old pocketknife.”

Mr. Leary testified. There was no positive identification of the pocketbook. He testified it looked exactly like his, but that it had no distinguishing mark on it; neither could he identify the money. The complaining witness and the defendant had been drinking to some extent, according to the testimony of each, but the officers stated that neither one was under the influence of liquor. Respondent was informed against. He was charged with robbery, being armed with a dangerous weapon with intent, if resisted, to kill, and found guilty, whereupon he was sentenced to a term of from 10 to 20 years in Marquette prison, with a recommendation that he serve the maximum term. The case is before this court by writ of error.

The respondent is a colored man. He was defended by Mr. Willis, who is also a colored man. Many errors are assigned, but we shall discuss but two groups of them.

Complaint is made of the language and conduct of the court toward counsel for the respondent in that the language complained of tended to belittle counsel and to prejudice respondent in the estimation of the jury.

At the beginning of the trial the following occurred:

“Mr. Keidan: If your honor please, the name of the complaining witness in this case is James Leary. On the information it gives it as James Teary. I think that it was a mistake in making a ‘T’ out of the ‘L.’ I ask your honor’s permission to amend the information in that respect.

“The Court: Any objections?

“Mr. Willis: No, your honor. .

“The Court: Very well.

“Mr. Willis: May it please the court and the gentlemen of the jury.

“The Court: Just take the witness stand [to the complaining witness].

“Mr. Willis: I want to open my case now.

“The Court: I don’t care what you want. Take the witness stand. Now you ask the court’s permission when a case is started. Be seated witness.

“Mr. Willis: I desire now to open my defense.

“The Court: Say so. Make the motion. We don’t know what you are going to do. The prosecuting attorney called the witness to the witness stand, and you order him back. You have got no right to do that. Go ahead and tell the jury what you want to.

“Mr. Willis: Gentlemen of the jury, this is a case, while serious on its face, we are going to show that this matter occurred on Saturday night or Sunday morning. Going to show it was done in the district between Antoine and Hastings streets, in a circle of Catherine and Hastings and Mullett. There is a large number of young people and other people going there every Saturday night and Sunday morning, and passing through this district in crowds. It is known as the ‘red light district.’

“The Court: Well now, Mr. Willis.

“Mr. Willis: I just want to open.

“The Court: You are not opening, Mr. Willis. If you have got anything that you are going to state that you expect to prove for the defense you want to do so.

“Mr. Willis: That is just why I want to do that, your honor.

“The Court: You will follow the instructions of the court, or you won’t make any at all.

“Mr. Willis: All right. All right.

“The Court: You are not going to make any stump address to the jury. You will go right ahead and tell them though.”

Mr. Willis was cross-examining the complaining witness when the following occurred:

“Q. Didn’t you hear him?

“The Court: The witness has told you repeatedly that he was confused when he was at the police headquarters. He does not recall what was said. There are witnesses on the information who perhaps can give you that information.

“Mr. Willis: I want to get all I can from this witness.

“The Court: This witness here told you that he cannot remember. I will hold that this is far enough, if you want the man to tell the truth.

“Witness resumes: I .think I spent more than $2 that night. I could not say I spent $10 because I was not where I could spend $10.

“Mr. Willis: How much is in there [indicating pocketbook] ?

“Mr. Keidan: $20.

“Witness resumes: I did not lend any money that night, as I remember.

“Q. Now what did this man claim, if you can remember, at the time that you all talked at the station about this matter as to money. Didn’t he tell you the amount of money that he had?

“The Court: I have already ruled that this witness has told you, has told this jury, but in order that you might understand it I will ask the jury: Have you heard this witness repeatedly state to this counsel that he could not tell what took place down there at the police headquarters owing to the confused manner in which he was?

“Jurors: Yes.

“The Court: That ought to be sufficient.”

The officers who made the arrest had testified, and Mr. Willis was examining his client, when the following occurred:

“Q. You do know about how much money you had at 6 o’clock?

“A. At 6 o’clock?

“Q. How much did you state?

“The Court: He told us that.

“A. I had thirty some dollars. There was $20 taken off me when I was searched. That was my money.

“Q. Now as to the blood the officer — one officer said he saw blood on the razor, examined it on the street, and saw it there. The other officer says there was no examination of the razor on the street and saw no blood.

“Mr. Keidan: Just a moment.

“Q. Now, was it examined on the street?

“The Court: Mr. Willis, are you certain of the statement you are making in the presence of this jury, of the testimony?

“Mr. Willis: I want him to explain what was done with the razor.

“The Court: I am asking you a question. You must answer that question before I will allow you to proceed any further with this trial. You have made a statement in the presence of this jury. Is that statement borne out by any evidence here given by any of the police officers?

“Mr. Willis: Yes, Mr. Hayes testified there was blood on the razor and he examined it on the street.

“Mr. Keidan: No, sir; he did not.

“Mr. Willis: The other officer testified he did not see it examined. He did not see any blood on the street.

“The Court: That is not the statement. Read the statement he just made to this jury. [Testimony read by the reporter].

“The Court: Did not the other officer testify that he saw him take the razor out but that he did not see—

“Mr. Willis: He said that he did not see it examined at all; did not see any blood on the street.

“The Court: He did not take it in his hands; he was holding the defendant while the other officer was searching him. I understood it that way. The other officer did not reach over into Hayes’ hand and take the razor off this man’s person.

“Mr. Willis: The other officer, the one that had him in custody.

“The Court: Never mind now, when you make a statement hereafter, you make the correct one. * * * >>

Again:

“Mr. Willis: I want to ask one question. I presume the court would object. I want to know whether he is positive of the identity of that particular pocketbook. That is all I want to know; the whole thing turns upon that pocketbook.

“The Court: The jury is going to determine that question. I will ask the jury have they heard this-witness asked those questions before and have you heard them answered?

“The Jurors: Yes, your honor.

“Mr. Willis: I understand. I would rather the evidence come from the witness on the stand.

“The Court: Those questions are asked for the benefit of the jury, not the counsel. Anything further ?

“Q. Is your mind clearer now than it was that night when you identified that pocketbook, too?

“Mr. Keidan: That is objected to, your honor.

“The Court: Answer the question. Is your mind clearer now?

“A. My mind is clearer now.

“The Court: Why don’t you answer the question?

“A. I thought he objected to the question.

“Q. On that night you did say the pocketbook was yours. What do you say now, after your mind is clearer?

“The Court: Has not the jury informed you that they heard this man’s answer?

“Mr. Willis: He has identified the pocketbook that it looks like his; that is as far as it goes; but I want him to come out positively whether or not it is.

“The Court: The jury have all sat there and heard this.

“Mr. Willis: I think the court might be a little lenient in that matter because it is important to see now whether—

“The Court: I think that the court has been very lenient with you all through this case.

“Mr. Willis: Certainly he has.”

There were other colloquies between the court and counsel of a like nature. It is impossible to read this record without reaching the conclusion that the court failed to treat counsel and his client with that impartiality which is necessary if a fair trial is to be had.

In Wheeler v. Wallace, 53 Mich. 355 (19 N. W. 33), in reversing the case, Justice COOLEY, speaking for the court, said:

“It is very unusual to have exception taken on writ of error to the manner and deportment of the trial judge in the conduct of the trial, and under ordinary circumstances a court of review would not scrutinize very closely his methods when no error in his rulings was alleged. Still, it is possible for a judge to deprive a party of a fair trial, even without 'intending to do so, by the manner in which he conducts the case, and by a plain exhibition to the jury of his own opinions in respect to the parties, or to their case; and when it is apparent that a fair trial has not been had, a court of review should give relief as soon for that cause as for any other. The fact that the duty to do so is unusual or unpleasant, is no reason for declining it.

“In this case we are satisfied the plaintiff has not had a fair trial. In saying this it is not necessary to impute to the judge any purpose to be a partisan in the case, or otherwise unfair. It is not likely he intended to try the case with less than his customary urbanity and courtesy; and when he brings before the jury, as he does in his charge, the familiar figure of the goddess of justice, with her scales nicely weighing and scrutinizing the evidence, it is to be assumed that he means to be as impartial himself as he directed the jury to be. It is nevertheless possible for a judge, however correct his motives, to be unconsciously so disturbed by circumstances that should not affect him, as to do and say, in the excitement of a trial, something, the effect of which he would not at the time realize, and thereby accomplish a mischief which was not designed. Possibly such circumstances may have existed in this case.”

In McDuff v. Journal Co., 84 Mich. 1 (47 N. W. 671, 22 Am. St. Rep. 673), Justice Grant, speaking for the court, said:

“Whatever language may be used by counsel in the heat of trial, it is the legal duty of the judge to preside and decide with impartiality, and to keep counsel within proper bounds. Appellate courts must presume that one occupying so important a position as that of circuit judge can influence a jury. It is their duty to follow his instructions as to the law. Whenever he expresses an opinion on any disputed fact, or of the character of a witness, or compliments one attorney at the expense of the other, or uses language which tends to bring an attorney into contempt before the jury, or uses any language which tends to prejudice them, he commits an error of law for which the verdict and judgment must be promptly set aside. Appellate courts cannot correct mistakes of fact. Trial courts, therefore, cannot be too circumspect and careful to see that questions of fact are submitted to the unbiased judgment of the jury, which, under our jurisprudence, are for their sole determination. To sanction such conduct and language as the above by the circuit judge would tend to render trials a farce, and result in a denial of justice. Language less open to criticism has been held error by this court. Wheeler v. Wallace, 53 Mich. 355 [19 N. W. 33]; Cronkhite v. Dickerson, 51 Mich. 177 [16 N. W. 371]; People v. Hare, 57 Mich. 505 [24 N. W. 843].”

See, also, People v. Hull, 86 Mich. 449 (49 N. W. 288); Williams v. West Bay City, 119 Mich. 395 (78 N. W. 328); People v. O’Hare, 124 Mich. 515 (83 N. W. 279); Schwanz v. Wujek, 163 Mich. 492 (128 N. W. 731).

Several assignments of error relate to the charge of the court. We quote but á single portion of the charge:

“I charge you, gentlemen of the jury, that you have no right to disbelieve those police officers merely because they happen to be police officers; and, while the counsel for the defendant in this case has borne rather heavily upon the officers, I am of the opinion that the officers in this case are entitled to a great deal of credit. They saw their duty and they discharged it on the night in question. They took this man into their custody when they found him fleeing. They searched him, and then turned him over to their superior officers. A complaint was made against him for robbery, being armed, and it is for you now to say, after hearing the evidence, whether the State has proved its case against this defendant. If, in your judgment as jurors, you believe the State has failed to prove this man guilty of this crime, it becomes your duty to discharge him.”

The judge must have overlooked the claim of respondent that he went to the officers be'cause rocks or bricks were being thrown at him, when the judge said, “They took this man into custody when they found him fleeing.” Whether he was fleeing or not was a question for the jury, and not the judge. Some of the language we quoted from the opinion in McDuff v. Journal Co., supra, is applicable here. See, also, People v. Hare, 57 Mich. 505 (24 N. W. 843); People v. Murray, 72 Mich. 10 (40 N. W. 29); People v. Clarke, 105 Mich. 169 (62 N. W. 1117); People v. Corey, 157 N. Y. 332 (51 N. E. 1024).

This court in the recent case of People v. Fritch, 170 Mich. 258 (136 N. W. 493), had occasion to speak of the practice of commending some of the witnesses, and it is not necessary to repeat what was said there.

For the errors pointed out, this court is required to reverse the judgment of the trial court, set aside the conviction of respondent, and award a new trial. Respondent will be surrendered to the custody of the sheriff of Wayne county.

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


author: MOORE, J.

text:
    BENDER v. WAYNE CIRCUIT JUDGE.
    1. Arrest — Capias—Commencement oe Action — Pleading.
    Act No. 168, Pub. Acts 1899, amending section 10006, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12669), as to tbe time for filing the declaration in tbe cause, applies to actions commenced by capias only, not to suits begun by tbe issuance of a summons.
    2. Deeault — Opening and Vacating — -Capias.
    Under Circuit Court Rule 126, it is discretionary with tbe circuit judge to open a default of tbe plaintiff in filing a declaration in an action commenced by summons upon a motion and showing excusing tbe failure, for tbe reason that bis attorneys were laboring under a misapprehension or mistake, and failed to take tbe step within tbe required time.
    Mandamus by Fred Bender against Alfred J. Murphy, one of the circuit judges for the county of Wayne, to compel respondent to vacate an order opening the plaintiff’s default in an action wherein relator was defendant.
    Submitted April 28, 1914.
    (Calendar No. 26,191.)
    Writ denied June 1, 1914.

      George P. Palmer, for relator.

      Sloman & Sloman, for respondent.
   MOORE, J.

This is a mandamus proceeding. The petition shows that Sloman & Sloman began a suit against relator in the circuit court by summons on December 16, 1913; that on December 24, 1913, defendant therein caused his appearance to be entered; that for want of service of declaration, on the 5th day of January, 1914, defendant caused the default of the plaintiffs to be entered; that on February 3, • 1914, the plaintiffs moved to set aside said default. On February 27, 1914, the court entered an order as follows :

“In this cause ordered that the default of plaintiff be and hereby is set aside. It is further ordered that plaintiff be and hereby is allowed three days to serve and file a copy of declaration,, and that defendant be allowed costs in the sum of fifteen dollars.”

A motion was made to vacate this order, which motion was denied. Other motions and orders were made which are not material to the inquiry here.

This is an application for an order requiring the circuit judge to set aside the order of February 27th, above quoted. In his answer to relator’s petition the circuit judge returned in part as follows:

“That, in answer to paragraph 5 of said petition, this respondent says that he did make the order set forth in paragraph 5 of said petition, but that he did so upon a hearing in open court after due consideration of the petition of said Sloman & Sloman to have said default set aside, and the affidavit upon which the same was based, and after hearing arguments of counsel for the respective parties, and because he found that said Sloman & Sloman had been prevented from filing their declaration in said case within the time required by Circuit Court Rule No. 2, by reason of a mistake, and while laboring upder a misapprehension, and because said Sloman & SlSman had made application to the circuit court for the county of Wayne, as required by Circuit Court Rule T26/ and were entitled under the finding of the court to have said default set aside.”

The proceeding involves a construction of sections 10004, 10005 and 10006, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12669), and the amendment made to the last-named section by Act No. 168 of Public Acts of 1899. We quote the three sections:

,“(10004) Sec. 21. If a defendant arrested on process on which he is required to be held to bail, shall be committed to prison for the want of such bail, the sheriff or other officer making the arrest shall specially return upon such process, the fact that the defendant is imprisoned for want of bail.

“(10005) Sec. 22. Upon such return being made, the plaintiff shall declare against the defendant before the end of the term next after such process was returnable, and shall deliver a copy of the said declaration to such prisoner, or to the sheriff or keeper of the jail in whose custody such prisoner shall be; and if such declaration be not served as herein prescribed, the defendant shall be discharged from his imprisonment, and shall be entitled to judgment of discontinuance against the plaintiff.

“(10006) SEC. 23. When a defendant shall have appeared in any cause, by causing his appearance to be_ entered, or by putting in and perfecting special bail, where such bail is required, the plaintiff shall declare against such defendant, by the end of the next term after the return of the writ by which such suit was commenced.”

The amendment consists of substituting the words “within fifteen days after the issue of said writ” for the words “by the end of the next term after the return of the writ by which such suit was commenced,” in section 10006.

The relator claims that since this amendment a circuit judge is not authorized to set aside a default, whatever the showing, entered in a case commenced by summons for failure to file a declaration within 15 days after the issuance of the summons.

It is significant that every time, so far as we can learn, that this section of the statute has been up for construction before this court, the case has been a capias case. We think that a reading of section 10006, in connection with the two sections which precede it, indicates clearly that all three sections relate to actions commenced by capias. The circuit‘judge had a right to enter the order he did by virtue of Circuit Court Rule 12 b.

The writ is denied, with costs.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurréd.


text:
    ROGREN v. CORWIN.
    Highways and Streets — Eminent Domain — Pubuc Necessity. The objection, that a road is open at one end only, is not, as a matter of law, conclusive on the issue of public necessity, in proceedings to lay out a highway. If there is evidence for and against the necessity of the way and-the convenience to the public, the issue is for a jury under proper instructions; nor is it essential that the highway should be indispensable or imperative to the public. No statute or rule of law determines that before a public highway can be laid out it must have certain and definite • termini in other public highways.
    Error to Wexford; Lamb, J.
    Submitted April 30, 1914.
    (Docket No. 60.)
    Decided June 1, 1914.

      Proceedings by James Whaley, highway commissioner, to lay out a highway. On appeal by Mary Cor-win, one of the defendants, to the township board, the judgment of said commissioner establishing such highway was reversed and Enoch Rogren, one of the petitioners, appealed to the circuit court. Judgment for petitioners. Defendant Corwin brings error. Affirmed.

      Howard F. Withey, for appellant.

      E. F. Sawyer, for appellee.
   Moore, J.

In March, 1911, a petition was filed with, the highway commissioner for the laying out of a highway. The plat will help to explain the situation.

The necessary notices were given, and a hearing had, and the highway commissioner found that the proposed highway was a public necessity, and awarded damages. The defendant appealed to the township board, which board reversed the decision of the highway commissioner, and an appeal was then taken to the circuit court. The case was tried by a jury. It was shown that the village of Hobart was a railroad station, and that in the village were the schoolhouse, postoffice, and a store. Testimony was taken pro and con in relation to the public necessity of establishing the highway as proposed. At the close of the testimony it was agreed between counsel, in open court, that the issue before the jury should be restricted to the question as to whether there was or was not a public necessity for the opening of the proposed highway; all question as to the sufficiency of the award of damages being excluded. No written requests to charge were offered to the judge. The charge was oral and somewhat lengthy. It was in part as follows:

“However, the case is now here for your determination just as though it had never been determined before. You are to try it as though no one had ever passed upon it before, and you are to pass upon it from what you have heard in this court, and upon that alone.

“Now, under the admission of the parties, there is just one question for you to determine, and that is the sole and only question, whether this proposed highway is necessary, that is, is it a public necessity.

“Now, a public necessity does not necessarily mean that it must be absolutely necessary for the public, but, in other words, within reason, is the public interested in it. Now, if it is, and the testimony from the witness stand has convinced you that this piece of road is brought within that definition, then it would be your duty to say so by your verdict; if, on the other hand, you are not satisfied by a fair preponderance of the evidence that the public, is interested in this road or highway, such as to make it necessary if laid out, then it would be your duty to so find on that proposition. This is simply and solely a question of fact, and can only be determined by the evidence in the case, and in determining that question of fact, as I have said to you before, you are to weigh the testimony of the witnesses and consider their interest or lack of interest in the matter, and whether their testimony is consistent or not; whether it is reasonable or not. You are to use your own judgment in those matters in the light of the testimony. * * * I will say to you, as a matter of law, and that is practically the only law there is in it, that it is not necessary from a public standpoint that a road have two ends, in other words, that there is such a thing as having a public highway leading out, opening upon one highway, but being blind at the other end; but you are to determine from the testimony whether such a road as applied for would be of interest to the public to such an extent that it would be a public necessity, so that it all comes back to the question of fact to be determined from the evidence in the case. Now, there is another question; it has been suggested that there was another way that this man might get out. Well, as I view the matter, that makes no particular difference whether there was another way. The question is whether this way is a public necessity. Is it necessary to have this way opened up, and has it been shown by the witnesses on the witness stand here that it is a public necessity? Now, public necessity is distinguished from a private necessity. If the public is interested in this road to such an extent that it makes it necessary to open it up, then it is necessary from a public standpoint. If the only person interested in it is a private individual, then there is a private necessity only, so you can see that there is a wide range between a private necessity and a public necessity, and it still leaves it to you as a question of fact, to be determined from the evidence here on the witness stand, whether or not the testimony in these proceedings has brought it within the definition of a public necessity.”

At the close of the oral charge the record shows the following:

“The Court: Anything further, gentlemen?

“By Mr. Withey: No, sir.

“By Mr. Sawyer: No, sir.”

The jury found that the proposed highway was a public necessity. The case is brought here by writ of error.

Counsel say the court did not correctly charge as to what constituted public necessity, and that the testimony did not establish public necessity within the meaning of the law, and the court should have directed a verdict in favor of defendant.

Counsel for appellant cite many authorities. We shall not analyze all of them; but we have examined them and find none of them controlling of the instant case. One of the authorities cited is Varner v. Martin, 21 W. Va. 534. In that, case the commissioners had established a private way having gates at each end, and not thrown open to the -public, and it was held that the statute under which they were acting was unconstitutional. We quote:

“There is an entire concurrence of all the authorities in the proposition that private property cannot be taken for private use, either with or without compensation. A few of the many authorities in which this proposition is laid down as unquestionable law are here cited.”

And then followed many citations.

The opinion is a very long one, and in it the difference between a public way and a private way is discussed. Some of the language is pertinent here:

“As then the only real inquiry in this or in any other case where the constitutionality of an act of the legislature, which authorizes the condemnation of land, is simply whether the use for which the private property is authorized to be condemned is a public use or only a private use, we will now inquire into the elements which the courts have held enter into and constitute a public use as distinguished from a private use of property. This, it will be found, depends largely upon whether the property condemned is under the direct control and use of the government or public officers of the government, or, what is almost the same thing, in the direct use and occupation of the public at large, though under the control of private persons or of a corporation; these together constituting one class. * * *

“All agree that, if the road has been established by public authority, and the damages for the condemnation of the land has been paid by the general public, and the road is under the control and management of public officers, whose duty it is to keep it in repair, then it is a public highway, and the legislature may constitutionally authorize the condemnation of land for the route of such a road, though it may have been opened under such act by a county court on the application of a single person to whose house the road led from some public road, and though it may not have been expected when the road was established that it would be used to any considerable extent by any person, except the party for whose accommodation it was opened. This was the character of the case of Lewis v. Washington, 5 Grat. [Va.] 265. The court say:

“‘The authority of the county court to establish public roads is a branch of their polic.e jurisdiction, conferred for the benefit of all the citizens of the county, and to be exercised at the common expense out of the resources derived from the county levy.

“ ‘The use, convenience, and advantage of the public, contemplated by the law, are benefits arising out of the aggregate of such improvements, to which the particular road so established contributes in a greater or less degree. But no limitation upon the power of the court in regard to any proposed road is to be found in the degree of accommodation, which it may extend to the public at large. That is a matter which addresses itself, not to the authority, but the discretion of the court. It cannot be predicated of any particular road that it will be of direct utility to all the citizens of the county. It may accommodate in travel and transportation but a small neighborhood, or only a few individuals. Still when established it may be used at pleasure by all the citizens of the county or country, and the public is interested in the accommodation of all the members of the community.’

“With, these views, I entirely concur. The legislature can authorize a county court to open a public highway at the expense of the county, and place it under the control of public officers, whose duty it is to keep it in order, and the fact that the legislature authorized this to be done on the application of a single person, and it was done for his special accommodation, though it might be apparent that such road would be used to but a very small extent by any other person than such applicant, still such act would be' constitutional, and such an opening of a public road by the county court would be in the eyes of the law an opening of the road for public use, and a condemnation of land for such a road would be a legitimate exercise of the power of eminent domain by the State. That which distinguishes such a road from a private road or private way we will consider more at large after we have gotten clearer ideas of what constitutes a public use. * * *

“‘But, If a public use be declared by tbe legislature, tbe courts will bold tbe use public, unless it manifestly appears by tbe provisions of tbe act that they can have no tendency to advance and promote such public use. Per Shaw, C. J., in Hazen v. Essex County, 12 Cush. [Mass.] 477. That private property may be constitutionally taken for public highways cannot be doubted, and is not denied.. * :i: * Tbe State may properly provide for tbe establishment of a public road or highway to enable every citizen to discharge bis duties. Tbe State is not bound to allow its citizens to be walled in, insulated, imprisoned, but may provide them a way of deliverance. Tbe State may provide a public highway- to a man’s house, or a public highway to coal or other mines.

“ ‘If tbe road now in question bad been established as a public road under the general road law, as we confess we do not see why it might not have been, there would be in our minds no doubt of its validity, although it does not exceed a half a mile in length, and traverses the lands of but a single owner. For the right to take land for a public road, that is, a road demanded by public convenience, as an outlet to a neighborhood, or it may be, as I think, for a single farmer, without other means of communication, cannot depend upon the length of the road or tbe number of persons through whose property it may pass.’ * * *

“The views which I have expressed are in accord with the views on this subject which have been expressed by the Court of Appeals of both Virginia and West Virginia. Thus, in Lewis v. Washington, 5 Grat. [Va.] 265, it was decided that under the statute law of Virginia, which is the same as ours, there was no limitation to the power of a county court to establish a public road was to be found in the degree of accommodation which it may afford the public at large. That is a matter which addresses itself, not to the authority, but to the discretion of the court,, and that, if the road so established led into a public-road, its other terminus might be a private farm or dwelling house. No individual has the right to demand the opening of such a public road for his accommodation. The court say:

“ ‘It redounds in some degree, to the interest of the public, that all the citizens who compose it should be so accommodated, and there is no principle, upon which the wants and necessities, of one individual must be imperatively rejected, which would not be applicable to two, or three, or a dozen, or any given number short of the whole or the greater part of the community.’’

“And again:

“ ‘It appears,’ says the court, ‘that the road is requisite to enable the applicant to- travel to the courthouse of his county and other public places contemplated by law.’

“The road in that case was a public road to all intents and purposes, and was established under the same law and in the same manner with all other public roads. That it is proper to open such a road to the residence of a citizen seems to me clear, as the public have a direct interest in enabling all the members of the community to perform their public duties, which they might not be able to perform if they could not reach the courthouse without trespassing on their neighbor, or if the sheriff or other officer could not go to their houses without committing such trespass.”

In the case of the Commissioners of Parks, etc., of Detroit v. Moesta, 91 Mich. 149 (51 N. W. 903), in an opinion written by Justice Montgomery, occurs the following:

“Complaint is also made of the definition of ‘public necessity’ employed. The judge charged as follows:

“ ‘The term “necessary” does not mean that it is indispensable or imperative, but only that it is convenient and useful, and, therefore, if you find that the improvement is useful, and a convenience and a benefit to the public sufficient to warrant the expense of making it, then you may find it necessary.’

. “The jury must have understood this charge to mean that, in order to justify a finding of necessity, it must appear that the improvement was a convenience — a benefit to the public of sufficient importance to warrant the public in incurring the expense in making it. This would, under our decisions, constitute a public necessity. Paul v. City of Detroit, 32 Mich. 119.”

In Fields v. Highway Commissioner, 102 Mich. 449 (60 N. W. 1048), this court declined to disturb the action of the highway commissioner in laying out a highway under circumstances quite like the instant case; the court saying:

“There is no statute or rule of-law that expressly determines that, before a public highway can be laid out, it must have certain and definite termini in other public highways.”

We discover no reversible error.

Judgment is affirmed.

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


author: Ostrander, J.

text:
    PEOPLE v. JANSMA.
    1. Criminal Law — -Rape—-Evidence.
    Upon the trial of a prosecution for attempted rape, evidence of a third party concerning the appearance of the complaining witness, who, on recovering consciousness, ran screaming from her house to a neighbor’s, was not objectionable because time enough had intervened between the attack and the time when the witness saw her, to permit an appearance to be feigned, when the assault was not denied and the testimony of the complaining witness harmonized with the facts so claimed and shown.
    2. Evidence — Trial—Cross-Examination—Character Witnesses.
    Respondent, charged with attempted rape, introduced testimony in support of his previous good reputation, the prosecuting attorney asked one of the character witnesses if he would approve of the alleged actions of respondent; the witness answering in the negative; and the prosecutor further inquired if he should hear of the accused throwing a girl to the floor, dragging her into another room and choking her into insensibility, whether he would then consider his reputation good. The witness replied, “No,” under the objection of the attorney for respondent. The judge also stated that intoxication was not a defense. On the argument this examination was made the basis of prejudicial and unfair inferences by the prosecuting attorney. Held, that the conduct of the prosecuting attorney amounted to reversible error, and the statement of the trial judge was prejudicial.
    3. Criminal Law- — Evidence—Trial.
    Cross-examination of a character witness concerning the effect which information that respondent had committed such an offense as he was charged with, would or did have upon his opinion, is improper.
    4. Witnesses — Criminal Law — Indorsement on Information.
    The names of witnesses called to impeach a respondent by the public prosecutor, who had no means of knowing that such witnesses would be material at the time the information was filed, are not required to be indorsed upon the information.

      5. Criminal Law — Instructions to Jurt — Argumentative Charge — Witnesses—Comment.
    It was erroneous to refer in the charge of the court to the complaining witness and to attempt to explain her testimony that she did not want to press the prosecution, on the theory that she shrank from publicity or notoriety.
    Exceptions before sentence from the superior court of Grand Rapids; Stuart, J.
    Submitted April 23, 1914.
    (Docket No. 166.)
    Decided June 1, 1914.
    Peter Jansma was convicted of assault with intent to commit rape.
    Reversed.

      Grant Fellows, Attorney General, Earl F. Phelps, Prosecuting Attorney, and Louis T. Herman, Assistant Prosecuting Attorney,- fo'r the people.

      Cornelius Hoffius (L. J. Gringhuis, of counsel), for respondent.
   Ostrander, J.

Respondent stands convicted of the charge of assaulting with intent to ravish and carnally know an unmarried woman, aged 20 years. For the people the testimony tended to prove that the complaining witness lived at home with her father, mother, and an aunt; that respondent had for some 10 years supplied the family with milk, calling at the house daily, usually between 12 -and 1 o’clock. He was a married man, on terms of friendly intimacy with the family, called the complaining witness Hazel, and she called him Peter. He had always conducted himself respectfully and in a gentlemanly manner, entered the house without knocking, and frequently engaged in conversation with members of the family. On the day in question, November 22, 1912, he called with milk several hours later than was usual. Hazel was alone, engaged in. baking or cooking in the kitchen. Respondent asked permission to use the telephone, and received it, but whether he used it does not appear. He inquired for the girl’s mother, and learned that she was away from home. After spending some minutes in the house, his manner and speech attracting no particular attention, without preliminary quarrel, solicitation, or proposal, he seized Hazel, threw her on the floor, and a struggle ensued. There is no testimony tending to prove that he said anything to her except, “Listen to me, Hazel,” during the struggle. Hazel became unconscious, and when she recovered she was lying upon the cellar stairs and landing, her hair down, her hairpins broken, her lower lip and neck bruised, her tongue swollen. During the struggle she screamed, and respondent choked her. How she came upon the cellar stairs does not appear. She made immediate complaint. Respondent had gone. It does not appear that respondent at any time made any proposal to her except the one stated; that he kissed or caressed her; that he took any liberties with her person. The condition of her clothing indicated that he had not disturbed it. He did not violate her.

For the respondent (and he himself gave testimony) the fact that an assault of some nature was made upon the young woman is conceded. The intent with which it was made became the vital question in the case, respondent expressly denying that he at any time desired or sought to have sexual intercourse with the complainant, or assaulted her for that purpose. But he says that he had done an unusual thing that day in drinking to excess with persons on his route who were convivially inclined; that in consequence he became dazed, neglected to supply all of his customers, had an altercation in a barber shop, and conducted himself in a manner wholly different from his usual conduct and behavior. He does not recollect the details of the episode with Hazel beyond this: That he used violence towards her, and, upon somewhat appreciating what he had done, begged her to forgive him and to listen to his explanation. I am stating this in a very general way, but sufficiently to make plain the real issue made by the testimony. Character witnesses were produced by him, and these, with the complaining witness herself, make him out, previous to this occurrence, a very decent and respectable man, industrious and sober, of good moral character, and on good terms with his own wife.

A motion for a new trial and in arrest of judgment was denied. There are 23 assignments of error, not all of which deserve attention.

A witness who said she heard the complaining witness screaming and saw her very soon after, going at once to the place where she was, was asked by the prosecuting attorney to describe everything she saw and noticed. Over objection and exception, the witness detailed the appearance of the complaining witness. On cross-examination she went into details. It is said, in argument, that because the complaining witness had gone from her own house to a neighbor’s and time enough had intervened the assault and the time when the witness saw her to- permit an appearance to be manufactured, the testimony was improper and unfair to respondent. As has been stated, there appears to be no denial of the fact that respondent assaulted the complaining witness. The nature of the assault described by the complaining witness is in harmony with the visible results of it as described by the witness in question. And her cross-examination tended strongly to prove that respondent had not disturbed the clothing or taken liberties with the person of the assaulted woman. Beyond this it appears that the complaining witness on recovering consciousness fled at once to the neighbor’s house, screaming, and that the witness in question, hearing her scream, went at once to the house to learn what the trouble was. The testimony was competent.

A character witness called for respondent had testified that respondent’s reputation in the neighborhood where he lived was known to the witness, and that his reputation for decency, morality, truth, and veracity was good. He had known him five years and lived in the next house, never saw him intoxicated. Upon his cross-examination he was asked the following:

“Q. You wouldn’t approve of the facts as exist in this case, if they are true, would you?

“A. If they are?

“Q. Yes, you don’t approve of that, do you?

“A. No; no, sir.

“Q. Now'you say you have daughters of your own?

“A. Yes, sir.

“Q. If a person — if you heard of this respondent going to a place, throwing a girl down on the floor and then taking her and dragging her into a pantry and there choking her into insensibility and then leaving the place and going away, would you consider a man’s reputation for decency and morality was good that would do that?

“Mr. Hoffius: Just a moment, it is not a proper question, your honor.

“Mr. Herman: I have a right to know what he considers as decent.

“Mr. Hoffius: He testifies to a man’s reputation—

“The Court: He may answer it as tending to show his bias, or interpretation.

“Mr. Hoffius: No one knows how human beings do things at times when they are not themselves.

“Mr. Herman: I want to know what this person's idea of decency and morality is.

“The Court: A voluntary intoxication would not excuse a man from committing a crime.

“Mr. Hoffius: He may still have a good reputation for decency and morality.

“The Court: He may have prior to that, he is asking him simply if he approved of it.

“Mr. Hoffius: Reputation is put in for the purpose of showing the improbability of a man doing something that is contrary to every element in his life, that is the purpose of it. Now you cannot take the particular offense for which he is charged and measure his reputation by that.

“Mr. Herman: He admits doing these things.

“Mr. Hoffius: He hasn’t admitted anything yet, he hasn’t been on the stand yet.

“Mr. Herman: Under your statement he did.

“The Court: It is asked simply to test the view of the witness and his friendship and his bias and such things.

“Mr. Hoffius: Exception.

“A. If he did — not.

“Mr. Hoffius: Would you expect Peter Jansma to do it?

“A. No, sir.

“Mr. Herman: You wouldn’t expect him to do this four or five times before he would be convicted either, would you?

“Mr. Hoffius: Just a moment; that is an improper question.

_ “The Court: Oh, I think that is an improper question, both improper. Lawyers always want to get in a lot of things that are not proper.”

Plainly, the cross-examination of this witness was made the occasion for an argument to the jury, unfair and prejudicial to respondent as well as insulting to the witness. The witness had already testified, without objection, that he did not approve of conduct such as the people’s testimony tended to prove. The reasons given for continuing the examination were flimsy coverings of the real purpose. Just why it was made the occasion for the remark of the court that “a voluntary intoxication would not excuse a man from committing a crime” is not apparent. The principle stated and applied in People v. Snyder, 173 Mich. 616 (139 N. W. 1036), and People v. Huff, 173 Mich. 620 (139 N. W. 1033), cases which were tried in the same court, was violated by this cross-examination and the argument which accompanied it. See, also, People v. Laird, 102 Mich. 135 (60 N. W. 457). It was an attempt by improper means to then and there meet and render of no value the character evidence produced by respondent. It is admitted in the brief for the people that this cross-examination was improper, but stated that the prosecuting attorney was provoked into asking the questions by the conduct of defendant’s attorney in examining another character witness previously sworn. It is said, too, that the court guarded the respondent’s rights by the statement made at the end of matter above quoted. The court ruled directly upon the original objectionable question, admitting the testimony. The court had ruled differently when a similar question was asked of a witness earlier examined. It was error, and the reading of the colloquy shows it was not cured, nor attempted to be cured; nor was there any objection made to the testimony which is said to have provoked the prosecuting attorney.

Assignment of error No. 5 relates to testimony of defendant, who was asked whether he was abusive of his horses when he was sober. He answered. An objection then made was sustained, but the answer was not stricken out.

Considerable time and much argument was used in an effort of the prosecuting attorney to impeach the respondent. An examination of the whole record upon' the subject discloses that finally the proper practice was pretty well observed, and no reversible error committed. The names of the witnesses called for this purpose, three in number, were not indorsed upon the information, and for this reason objection was made to receiving their testimony. The matter testified to by them was proper to be introduced after the defense had rested and the theory of the defense had been disclosed. This theory and the testimony to be offered in its support cannot always be anticipated by the prosecuting officers, for which reason they cannot know what witnesses may be required to rebut the testimony for the defense. And we think it sufficiently appears that the prosecuting officers in this case could not have known when the information was filed that the witnesses called in rebuttal were material witnesses. In principle the point is covered in Hill v. People, 26 Mich. 496.

The charge of the court is criticised. We may say here that it was not error for the court to refuse to eliminate the more serious charge. The court could not have properly ruled that there was no testimony sustaining the serious offense charged in the information. , It is contended that the charge was argumentative, and that the argument made therein was unfair to respondent. No requests to charge appear in the record, and no modification of the charge given appears to have been requested. The charge is argumentative. See People v. Dupree, 175 Mich. 632 (141 N. W. 672), and cases cited. A particular argument is noticed. The complaining witness had testified, in substance, that she told the wife of respondent that she—

“Wouldn’t have pushed the case but for others; that is the way I felt about it; I hated the notoriety. It is through others that the case has gone as far as it has; it wasn’t my wish at all.”

She had testified that she felt that respondent was going to kill her. She denied making certain other statements, and denied that her mother had made certain statements, whereupon respondent called a witness, who testified as follows:

“Q. Whether or not you asked, or Mrs. Jansma asked in your presence and in the presence of Mrs. Crater and Miss Crater, what about that rape that I saw in the paper last night?

“A. Yes, sir.

“Q. Whether or not Mrs. Crater answered that he had not committed any rape?

“A. Yes, sir; and the girl then spoke up and said, ‘No, and he didn’t try to;’ that was just the way she said it.

“Q. Whether or not she said she wished the case could be dropped out of court then and there?

“A. Yes, sir.”

In the course of the charge the court said:

“Was that motive or intent the accomplishment of his purpose in having intercourse with this girl, and, the fact that the girl has testified that she didn’t want ■ — or would have wished that the case might not have been brought, should not be considered or taken into account, because you can all readily understand what an unpleasant notoriety the publicity of this thing gives to a young girl in a community, and she undoubtedly shrank from that publicity and coming to court on a case of this kind; her natural feelings would be that, not having been injured so as to permanently disable her, she would rather drop it than to have the matter prosecuted.”

I find no reference in the charge to the testimony above quoted. In view of the fact that the case must be again tried, further reference to the charge is omitted, except to say that in the main correct rules were given for the guidance of the jury.

The exceptions, as herein indicated, are sustained, and a venire de novo is awarded.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


text:
    ESTES v. MUSKEGON COUNTY AGRICULTURAL & DRIVING PARK ASSOCIATION.
    Deeds — Conditions Subsequent — Equity — Enforcement — Reversion.
    Where plaintiffs conveyed to a driving park association a parcel of land, upon condition, as expressed in the instrument, that the property be used as a fair grounds and driving park and for no other purpose, and should revert to the grantors if the second party should abandon them for the purposes described, evidence, in an action of ejectment, that defendant association for upwards of eight years had not used the land for such purpose, had allowed the buildings to become dilapidated, that one of the officers of the association took control of the grounds, kept and exercised horses on the track, and permitted other persons to do so, also permitting a local driving club to use them for a season, for rent, and permitting baseball games to be held there, that meetings of the stockholders or those who held certificates for shares of stock were called annually but-the stockholders were not all notified and no records were kept of the proceedings, held, to sufficiently establish the title of plaintiffs by reversion pursuant to the condition of the deed.
    Error to Muskegon; Sullivan, J.
    Submitted April 23, 1914.
    (Docket No. 82.)
    Decided June 1, 1914.
    Ejectment by Seth D. Estes against the Muskegon County Agricultural & Driving Park Association and others. Plaintiff having deceased, the cause was revived in the names of his heirs, Simeon Estes and others. Judgment for plaintiffs. Defendants bring error.
    Affirmed.

      Turner & Turner, for appellant.

      Cross, Vanderwerp, Foote & Ross, for appellees.
   Ostrander, J.

Seth D. Estes and his wife, by indenture dated August 6, 1875, for a stated consideration of $1, conveyed certain premises to the Muskegon County Agricultural & Driving Park Association, of Muskegon county, Mich., with the usual covenants of seisin, against incumbrances, and for quiet enjoyment. Following the covenants and concluding the instrument is:

“Said land to be used for the purposes of fair grounds and driving park and for no other purpose, and to revert to said first parties, their heirs and assigns when abandoned by said second party for the purpose aforesaid.”

In 1910 the grantor made demand for possession of the premises from persons then occupying the same, and later, and in June, 1911, began this action of ejectment against the association grantee and the persons in possession. The cause has been twice tried, and plaintiff has recovered. It is plaintiff’s contention that since the year 1902 the premises have not been used for the purposes stated in the deed, and for no other purpose, but, so far as such stated use is concerned, have been abandoned. It is stated in defendant’s brief that:

“It was the claim of the defendant and appellant that naked conditions in a grant create no agreement on the part of a grantee accepting a deed, and that specific performance of such conditions are not enforceable by action.”

Beyond this there is apparent no contention that the grant was not upon a valid condition subsequent, entitling plaintiff to recover in this action upon proof of breach of the condition. The contention presented in argument is that upon the question of breach of the condition improper testimony was admitted and improper instructions were given to the jury. The testimony for plaintiff tends to prove that the defendant association was organized, although irregularly organized, under the provisions of chapter 71 of the Compiled Laws of 1871; its articles of association dated May 29, 1875, acknowledged June 7, 1875, were filed with the clerk of Muskegon county June 14,1875. These articles appear to have been adopted at a meeting held May 18, 1875, and at an adjourned meeting had May 21, 1875, a resolution was adopted tendering the thanks of the association to certain persons, among them S. D..Estes, for liberal donations of land for fair grounds and driving park. The by-laws provided, among other things, that no person owning less than four shares of stock (the par value of which was fixed at $25 each) or a life member could be eligible to the office of director, and that all persons paying into the treasury the sum of $1 annually should have the privilege of entering articles and animals for •exhibition at a fair without charge, and be entitled to wote for officers. It does-not affirmatively appear that the by-laws were adopted. Capital stock was fixed at $10,000, and certificates for shares were issued. Section 2 of the act referred to provides that an association organized under the act may take, purchase and hold real estate for the purpose of the incorporation, “but for no other purpose.”

The defendant association paid nothing for the land sought in this suit to be recovered. It was one of several parcels conveyed to the association upon condition. The land was fenced, buildings erected, a race track with grand stand erected, together with a dwelling house for a caretaker. Agricultural fairs were held until and including the year 1902; the race track being used for horse racing. The buildings became dilapidated, some fell down, the lumber of which they were built was some of it taken and carried away, and when this suit was begun few were left except the grand stand and stables. After 1902. one John Williams, claiming to be the secretary of the defendant association, took charge of the grounds, kept and exercised horses there, and other men kept and trained horses there. A local driving club used them one season, paying Williams something for their use. Baseball games have been held there, football games, automobile races, and Wild West shows. Such income as there was Williams used in repairs. It was his custom to call a meeting of stockholders each year, make a report, and render an account. He regarded as stockholders only those who held certificates for shares of stock. No records of these events were produced. Williams himself claims rights as an assignee of one or more of the certificates of stock originally issued by the association. It appears that since 1902 there has been no semblance of any use of the grounds by the defendant association for any purpose of its organization.

The objection that in introducing much of the testimony a collateral attack was made upon the organization and existence of the defendant association seems to me to be without merit. The testimony, some of it, did tend to show the passing of the association as an entity in fact, whatever it may be said to be in law, but the purpose of its introduction plainly was to prove that there had been, in fact, an abandonment of the premises; that they had not been used for years for the purposes of the association, and had been used for other purposes. The testimony was well calculated to establish this fact.

It is contended that in his charge to the jury the court did not properly instruct them about what facts must be established to warrant the conclusion that the premises had been abandoned. It is not important that a discussion of the matter be undertaken. The court might properly have said to the jury that the fact that the land had for years been used, not • for the purposes of the defendant association, but for other purposes, was established, as well as the fact that for years the defendant association had not performed any of the functions which it was organized to perform — functions the performance of which alone justified its continued legal existence. It would have been proper to instruct the jury that, whether it was or was not legally in existence, the defendant association was actually, so far as using the premises for association purposes is concerned, exercising no corporate franchise; that from the established facts intention to abandon the premises might be found. What the association did is important as evidencing, or failing to evidence, a purpose to continue to use the grounds. In this view of the matter, the errors assigned become unimportant.

It is undoubtedly true, as is contended by defendant, that mere lapse of time, mere failure to use the premises, is not, in most cases, conclusive evidence of abandonment or of an intention to abandon. But mere lapse of time, mere failure to use, may be of more significance in one case than in another. Plaintiff’s case does not rest upon lapse of time merely, but upon the failure of a corporation grantee (a corporation existing for the purpose of the designated use, a corporation organized to use the premises for definite purposes) to exercise for years its franchise, to use them at all for the purposes of its existence, which are the identical purposes stated in the conditional grant of the lands.

No prejudicial erorr is pointed out, and the judgment is therefore affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


text:
    LIMRON v. BLAIR.
    Master and Servant — Compensation for Injuries — Industrial Accident Board.
    A workman who has lost a leg and sustained other injuries resulting in total disability is entitled, under the workmen’s compensation act (Act No. 12, Extra Session 1912, 2 How. Stat. [2d Ed.] § 3939 et seq.), to recover the compensation provided for total disability for a period of not over 500 weeks up to a maximum of $4,000: additional compensation cannot he awarded for the loss of the leg.
    Certiorari to the industrial accident board by Frank M. Blair and others, receivers of the Pere Marquette Railroad Company, to review an order awarding compensation to Philip Limron for personal injuries.
    Submitted April 24, 1914.
    (Docket No. 121.)
    Reversed June 1, 1914.

      W. A. Collins, for claimant.

      Parker, Shields & Brown (S. L. Merriam and J. C. Bills, of counsel), for defendants.
   Ostrander, J.

The precise ruling of the industrial accident board, as expressed in its written finding, is:

“The applicant is entitled to receive under the act one-half (i/g) his average weekly wages during the period of his total disability due to injuries other than the loss of the lower part of his right limb, and at the conclusion of such period of disability is entitled to payment of one-half (%) his wages for 125 weeks for the loss of the lower right limb by amputation as aforesaid, less six weeks’ disability incident to such amputation, provided that such weekly payments shall not in any event extend over a greater period than 500 weeks.”

The board found that, from the date of the injury to the time of making the award, the employee had been totally disabled, and that such disability would continue for an indefinite period; that the main cause of disability was an injured shoulder.

The act (Act No. 10, Pub. Acts Extra Session 1912, 2 How. Stat. [2d Ed.] §3939 et seq.), provides that when, as the result of an industrial accident, the incapacity for work is total, the employer shall pay a weekly compensation equal to one-half the average weekly wages for a period not exceeding 500 weeks. This is the longest period of compensatory payments. A period of disability is in certain cases deemed to exist. For the loss of a foot, the period is 125 weeks. For the loss of any two members, as hands, arms, eyes, feet, legs, the period of total disability is deemed to be 500 weeks, unless the weekly payments amount to $4,000 in a shorter period. If one of the results of accident is the loss of a foot, the period of total disability is 125 weeks, although it may be in fact only 6 weeks. The period is not extended because, as a result of the accident, the employee was in fact totally disabled for a period of 125 weeks, or for any shorter period. If he is in fact disabled by the loss of a foot, or otherwise, for a greater period than 125 weeks, compensation continues until disability is removed, or the maximum of compensation is paid. The statute speaks in terms of disability. All of its provisions being considered, it does not mean that compensation must be paid during a period of actual disability and also, if a member is lost, during a period equal to the one during which total disability is deemed to continue. It does not provide a specific indemnity for the loss of a member in addition to compensation for disability. The aim of the statute is to afford compensation if the employee is disabled. When the period of disability ends, compensation ceases.

It follows that the order of the industrial accident board is erroneous and must be and is vacated and set aside.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


text:
    BURCHY v. CARPENTER.
    1. Pleading — Fraud—Common Counts — Waiver of Tort.
    Damages for fraud and deceit are not recoverable under the common counts; a special count is necessary under the statute authorizing plaintiff to waive the tort and sue in assumpsit. 3 Comp. Laws, § 10421 (5 How. Stat. [2d Ed.] § 13954).
    2. Fraud — Damages—Pleading.
    A plaintiff who claims that he loaned the defendant $300 on a land contract which defendant falsely represented to be worth about $700, cannot recover more than the amount of his loan, in an action of assumpsit: a verdict directed for defendant was proper and will not be reversed on error where the appellant sought to recover a larger amount in damages, without ashing to amend his declaration.
    Error to Genesee; Wisner, J.
    Submitted April 21, 1914.
    (Docket No. 93.)
    Decided June 1, 1914.
    Assumpsit by August Burchy against Edbert M. Carpenter for fraud. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      George F. Brown, for appellant.

      Lee & Parker, for appellee.
   Ostrander, J.

In December, 1911, upon an-affidavit which, states that his demand, which is for $700, arises upon an express and implied contract, and that he believes with good reason that defendant is about to dispose of his property with intent to defraud his creditors, the plaintiff procured a writ of attachment. Whether it was levied upon property does not appear. He declared upon the common counts in assumpsit. With the plea of the general issue defendant gave notice of special matters of defense. At the trial plaintiff produced testimony tending to prove the following facts: In October, 1911, he owned certain real estate which he desired .to sell and brought to the notice of defendant, a real estate man. He concluded with defendant a transaction according to which he transferred to defendant by warranty deed the said real estate, lent him $300 in cash, and took from him an assignment of a land contract for the purchase and sale of some land at Lake Orion, upon which, defendant represented, a cottage was being erected and would be completed, that the said cottage cost $700, and that he had been offered $350 for two adjoining lots. Defendant further represented, in writing, that there was due upon the contract the sum of $700. Plaintiff also took a deed of the property, which he sought, unsuccessfully, to have recorded. Record was refused, he says, on account ‘of unpaid taxes. The defendant said that, at any time plaintiff was dissatisfied, “I have got your money ready for you;” that the money would be ready in January. Plaintiff ascertained- that the Lake Orion lots were practically worthless and no cottage was being erected upon them. They were submerged; only a small portion being above water. The lot he deeded to defendant was worth, with appurtenances, $400 or more. Plaintiff had owned it for some 10 days. It was valued for taxation at $200, and there was a sidewalk tax of $56 assessed against it which. defendant agreed to pay. After discovering the true situation, plaintiff applied to defendant for his money and was refused. Plaintiff did not tender a reassignment of the land contract or a deed of the Lake Orion land. There was a demurrer to plaintiff’s evidence, and a verdict was directed for defendant. A new trial was refused.

I have had, and the trial judge appears to have had, difficulty in ascertaining the theory according to which the plaintiff seeks a recovery. He says he held the land contract and deed given him by defendant as security for the payment of $700. He claims to have been defrauded and to rely, as to his form of action, upon 3 Comp. Laws, § 10421, which permits assumpsit to be brought to recover damages for fraud and deceit. He relies upon the principle applied in Briggs v. Brushaber, 43 Mich. 330 (5 N. W. 383, 38 Am. Rep. 187). See, also, Short v. Cure, 100 Mich. 418 (59 N. W. 173); First Nat. Bank of Ovid v. Steel, 146 Mich. 308, 314, 315 (109 N. W. 423); 20 Cyc. p. 91; Id. p. 140. He cites also cases holding that when a contract has been performed by one party and nothing remains to be done, but to pay money by the other party, the money may be recovered under the common counts in assumpsit. White v. Taylor, 113 Mich. 543 (71 N. W. 871). He cites, also, Tatro v. Brower, 118 Mich. 615 (77 N. W. 274), holding that damages for breach of an express warranty may sometimes be recovered in assumpsit. In concluding his main brief, the statement is made that:

“The lower court appeared to disregard the fact that this was an action purely for .money had and received from the plaintiff, which was to be paid back to the plaintiff, as shown by the testimony in the case, and lost sight of the implied contract that arose by reason of misrepresentations and fraud, which induced the plaintiff to part with his money, that it belonged to him, and should have been returned:”

To the remark of the trial court that no attempt appeared to have been made to rescind the contract, it was replied, among other things, “We have not got a' contract.”

In plaintiff’s reply brief I find the following:

“The cases cited by defendant (Hakes v. Thayer, 165 Mich. 476 [131 N. W. 174]; Mestler v. Jeffries, 145 Mich. 598 [108 N. W. 994]; Warnes v. Brubaker, 107 Mich. 440 [65 N. W. 276]; Emerson v. Spring Co., 100 Mich. 127 [58 N. W. 659]), bearing upon the question of purchaser of property have the right to rescind the contract and sue for breach of warranty or fraud, has no application to the case at bar, for the reason that in this case the plaintiff has made no attempt to rescind the contract, but has affirmed the same and has sued for the damages he has sustained by reason of fraudulent representations.

“The statement by the defendant that the plaintiff claims a judgment for the whole $700, is not shown by the record, and, if such was the case, it would be a matter for the jury to determine upon its submission to them by the court after hearing the proof as to the value of the property held by him and deducting the same from the loan.”

The reply brief concludes:

“The testimony as submitted in this case establishes a loan of money by the plaintiff to the defendant, and the plaintiff was entitled to his money, and when he discovered fraud, had a right to sue for the amount of damages that he is entitled to by reason of such indebtedness, as was held by Angell v. Loomis, 97 Mich. 5 (55 N. W. 1008); Harty v. Teagan, 150 Mich. 75 (113 N. W. 594); Johnson v. Insurance Co., 39 Mich. 33; Briggs v. Brushaber, 43 Mich. 330 (5 N. W. 383, 38 Am. Rep. 187); Wegner v. Herkimer, 167 Mich. 587 (133 N. W. 623); and various other cases bearing upon this question as cited in former brief.”

And finally:

“We submit that the plaintiff was entitled to submission of his right under the declaration to the jury, upon the question of how much defendant was owing him by reason of the money advanced, less the amount he had received towards the payment thereof.”

In view of the facts (1) that plaintiff did not ask to amend his declaration, (2) that under the declaration as framed he cannot recover damages for fraud and deceit, but for that purpose must employ a special count, (3) that he could have recovered for money had and received, upon any theory, no more than $300, which evidently is not his idea of a proper recovery, I think the judgment must be affirmed, without prejudice to plaintiff’s right to begin a new suit.

Judgment is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


author: Osteandee, J.

text:
    CRIBBS v. STIVER.
    1. Fires — Trespass—Highways—Negligence.
    In entering upon plaintiffs land and setting fire to brush and waste materials, defendant highway commissioner became guilty of a trespass which made him responsible for the consequences of his act, — the extension of the fire to buildings upon premises of the plaintiff.
    2. Trial — Election op Counts — Pleading—Case.
    At the trial of an action for setting fire to brush and permitting it to spread and destroy plaintiff’s barn, the trial court rightly denied the defendant’s motion to require plaintiff to elect between the counts of his declaration, one of which alleged a wrongful entry upon the premises of plaintiff and the other charged defendant with negligence, but not with trespass.

      3. Pleading — Trespass—Trespass on the Case — Distinction.
    The declaration should advise the defendant In a suit for consequential injuries resulting from a trespass, although it may be framed in case pursuant to Act No. 77, Pub. Acts 1905, amending 3 Comp. Laws, §10400 (5 How. Stat. [2d Ed.] §13114), whether recovery is sought for direct injuries resulting from the wrongful entry or for consequential injuries other than damages to the freehold or for both.
    4. Fires — Pleading.

      Held, also, that there was testimony tending to sustain a . verdict for the plaintiff.
    Error to Manistee; Withey, J.
    Submitted April 22, 1914.
    (Docket No. 106.)
    Decided June 1, 1914.
    Case by Levi Cribbs against Frank Stiver for negligently setting fires. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Dovel & Dovel, for appellant.

      Max E. Neal, for appellee.
   Osteandee, J.

Whether the fire which caused the injury was s,et on plaintiff’s land, or was set in a highway and spread to plaintiff’s land, came to be a controlling question at the trial. The court ruled that no negligence of defendant had been proven, either in setting the fire or in caring for it afterwards. The court also ruled “that the highway, so called, where these fires were set, was not a public way.”

If, then, defendant set the fire ón plaintiff’s land, he was a trespasser, and liable to pay the damages for the injury resulting, and to this effect the jury was instructed. Plaintiff alleged in his declaration, in the first count, that he was owner of certain premises on which was a barn containing certain personal property of his; that defendant with his agents wrongfully went upon the said premises, cut down and gathered together timber and waste material, set fire to it, and, after setting fire thereto, carelessly and negligently went away and left the fire burning without guarding it, “whereby, by reason of the aforesaid negligent acts and conduct of the said defendant, said fires, from said burning material, so started and ignited as aforesaid upon said premises spread and ran” and destroyed the barn and contents. In the second count, where like inducement is alleged, it is averred that the fire was set by defendant and his agents while “engaged in clearing certain premises contiguous and adjacent to and extending along the east line of said plaintiffs land, as above described, * * * for the purpose of opening, clearing, and preparing the said land for use as a highway.” Negligent conduct is alleged in guarding the fires, etc., in. consequence of which “said fires from said burning materials spread to and upon plaintiff’s said premises and ran over the same and to his barn.”

Defendant pleaded the general issue.

A jury having been selected, defendant moved for an. order requiring plaintiff to elect under which count of the declaration he would ask for a recovery, for the reason that the first count alleged a trespass, the second was in case, they were inconsistent, and two distinct causes of action were alleged. Plaintiff’s counsel stated:

“As I understand these two counts, they are both actions on the case, and not in trespass.”

The motion was denied. In this way the question of the rule to be applied to defendant’s conduct and its. results was first raised, and thereafter by testimony it was sought to be established by defendant, who was a highway commissioner, that what he did was in a highway adjoining plaintiff’s property, and that his original act in going upon the land and setting fires was for the purpose of clearing out and working a '.highway once lawfully laid out and still legally existing. The injury which plaintiff claims to have suffered was not the immediate and direct result of a trespass quare clausum, but was a consequence of defendant’s alleged conduct. Whether the original act or conduct was or was not wrongful, the consequences, in fact, came from subsequent acts and conduct or from a failure to act. Usually a recovery for such consequential injuries has been sought in actions on the case. In Barry v. Peterson, 48 Mich. 263 (12 N. W. 181), where the injury came from snow shoveled from •one man’s premises to those of another, it was said:

“The chief injury being consequential and not direct, we think there can be no objection to the form of action, which was case.”

In Hart v. Blake, 31 Mich. 278, the action was trespass, and, the declaration alleging as damages the detaining of a scow for a considerable period, the value of its use during the period was the recovery. In Wyant v. Crouse, 127 Mich. 158 (86 N. W. 527, 53 L. R. A. 626), it appeared that defendant wrongfully entered a blacksmith shop and started a fire in the forge. This was alleged, and it was further alleged that he so managed the fire that after he left the shop it and other property was destroyed by fire. The court, because no negligence whs shown, and acting upon the theory that a trespass quare clausum was alleged, directed a verdict for defendant. In reversing the judgment, it was said:

“In the case before us, the defendant intended no such injury, nor did he any act which can be said to have given reason for expecting the consequences. It was a fortuitous consequence of his act, entirely unforeseen. The actual trespass was of little significance compared with this consequential injury. If a wrongdoer, he would be responsible for the damage, if.it resulted from the building of a fire by him, regardless of the degree of care used. Hence the propriety of setting up his wrongful entry, which, though proper in a declaration in trespass, does not necessarily impress that character upon this declaration, which expressly states that it is in case, and describes a consequential injury, following and growing out of acts constituting a trespass. * * *

“The liability of the defendant is based upon a wrongful act, and the nature of the act, and not the consequences, determines his liability. He was engaged in an unlawful act, and therefore was liable for all of the consequences, indirect and consequential as well as direct, and there is no occasion to discuss the degree of his negligence in permitting the shop to burn, if the fire was caused by the fire he builded. This accountability for the consequences is not affected by the form of action.”

3 Comp. Laws, § 10400, was amended by Act No. 77, Public Acts of 1905 (5 How. Stat. [2d Ed.] § 13114), to read as follows:

“The distinction between the actions of Trespass’ and Trespass on the case’ is hereby abolished; and in all cases where Trespass’ or Trespass on the case’ has been heretofore the appropriate form of action, either of said forms may be used, as the party bringing the action may elect. And counts in trespass and trespass on the case may be joined in the same action.”

At the same time (Act No. 168, Pub. Acts 1905, and Act No. 239, Pub. Acts 1909), an action for trespass to lands must be begun within two years next after the cause of action accrues, while the general statute of limitations affecting the personal actions gives a longer period than two years in which to begin suit.

Now, as well as before the act abolishing the distinction between actions of trespass and trespass on the case was passed, the declaration should advise the defendant whether the suit is brought to recover damages for the direct injuries resulting from a trespass or for consequential injuries other than damages to the freehold, or for both. But there seems to be no objection to joining in a case like the one here presented counts, one of which does, and the other does not, allege an original wrongful act or entry, the consequences to plaintiff being, and being alleged to have been, the same. The first count in the declaration before us is a count in case. The averment therein of negligent conduct is at least descriptive of the conduct proven.

Whether the original entry of defendant was wrongful depended upon whether the land entered upon was or was not a highway. Defendant’s liability might depend upon whether the original entry was wrongful. Defendant might be liable — depending upon the proofs —although he made no entry upon plaintiff’s land. Plaintiff’s demand was not for this reason uncertain, nor are conflicting claims asserted in the declaration. And he should not have been compelled to risk recovery upon an affirmation or denial of the fact of an original wrongful entry.

Errors are assigned upon rulings admitting and rejecting testimony, and upon the refusal to instruct the jury as requested, and upon the charge given. Some of these are disposed of by what has been already said.

It is urged that the court was in error in ruling that no highway existed where the entry was made and fires were set. It is said the existence of the highway is recognized in the pleading, and plaintiff estopped to deny its existence. The declaration does not sustain the premise upon which the argument is based. Moreover, the first count of the declaration upon which recovery was had alleges an entry upon plaintiff’s lands. There was testimony warranting the verdict which was returned, and, assuming the theory according to which a recovery was permitted to have been a proper one, the charge of the court is not open to the criticisms of it which are made. A contention is made in appellant’s reply brief not made in his main brief, to which we make no further reference.

Finding no error, the judgment is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.