text:
    PUBLIC SCHOOLS OF CITY OF IRON MOUNTAIN v. O’CONNOR.
    Taxation — Exemptions—Lands Acquired for Exempt Purpose.
    Lands acquired by a public school board for school purposes after the supervisor has assessed them, on his roll and the roll has been approved by the township board of review are subject to the tax hereafter levied for that year, there being no officer or board with authority to correct the roll by adding property to or taking from it after the approval of the board of review.
    Appeal from Dickinson; Stone, J.
    Submitted February 8, 1906.
    (Docket No. 119.)
    Decided February 13, 1906.
    Petition by the public schools of the City of Iron Mountain against William O’Connor and James B. Bradley, auditor general, to set aside a sale of land delinquent for taxes. From an order overruling a demurrer to the petition, respondent O’Connor appeals.
    Reversed, and petition dismissed.
    The petitioner, the public schools of the city of Iron 'Mountain, filed its petition to vacate and set aside the decree rendered in the suit brought by the auditor general for the foreclosure of tax liens, and to cancel and set aside the deed made upon the sale to the respondent O’Connor. The facts are as follows: The land was lot 5, block 7, of •the city of Iron Mountain. The supervisor listed it upon the assessment roll in April, 1901. It was then assessable. After the completion of his roll the supervisor returned it to the board of review, which convened the last of May as the law requires. The board of review approved the roll, and returned it to the board of supervisors for equalization. On July 1, 1901, the petitioner bought the lot for . school purposes. The tax was subsequently duly levied thereon, and not paid. The lot was returned delinquent and sold at the annual tax sale under the decree of the court. To the petition the respondent demurred upon the ground that at the time of the assessment by the supervisor and the approval of the roll by the board of review, the land was taxable property, and it was the duty of the purchaser to pay the tax.
    The demurrer was overruled.

      H. M. Pelham, for petitioner.

      Albert McClatchey, for appellant.
   Grant, J.

.{after stating the facts). The land was subject to assessment at the time the supervisor made his roll, and the township board of review passed upon and approved it. No power is lodged in any officer or board to thereafter add any property to, or to take any from, the assessment roll as thus made and approved. There must be some definite period when the purchaser, whose property is generally exempt, must purchase it subject to the tax levied or to be levied thereon. It seems reasonable to hold that that time is when by law there is no power to correct the roll by adding property to or taking any from it. If the land had been conveyed to the petitioner before final action by the board of review it would have been the duty of that board, upon information of the fact, to eliminate it from the roll. So it would have been the duty of the supervisor if it had been conveyed before the completion and return of his roll. Cooley, in his work on Taxation, says:

“It has been decided that where land has become liable for taxes it remains so for that year, although subsequently acquired for purposes rendering it exempt.” 1 Cooley on Taxation (3d Ed.), p. 380.

Such was the rule in Iowa. First Congregational Church v. Linn County, 70 Iowa, 396. A statute in that State was subsequently enacted that all lands exempted from taxation should not be affected by any sale for taxation, etc. See Independent School District v. Hewitt, 105 Iowa, 663.

In New York there were three stages in tax proceedings: (1) The listing and valuation of property between September and January; (2) the correction of assessed valuation between January and May; (3) preparation of the tax books and levying the tax between May and September. It was conceded that where the property was conveyed during the first period, the owner was entitled to the exemption, and that if conveyed during the third period he was not. The question arose upon property transferred during the second period, and it was held that the land was subject to taxes because there was no power conferred upon the board of review to add descriptions to or take any from the assessment roll. Sisters of Poor of St. Francis v. Mayor, etc., of New York, 51 Hun (N. Y.), 355, affirmed by court of appeals, 112 N. Y. 667. See, also, Swann v. State, 77 Ala. 545; Philadelphia v. Barber, 160 Pa. 123.

It is due to the petitioner to say that in its petition it alleges that it had no knowledge of the levy of the tax or of the sale until shortly before the filing of this petition.

Order reversed, and petition dismissed.

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


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    KOLODZIEJSKI v. SEESTADT.
    1. Master and Servant — Injuries to Servant — Failure to Instruct — Question for Jury.
    Where a boy of 14 years of age, was injured by having his hand drawn between the rolls of a sanding machine while he was endeavoring, at the command of the operator, to straighten some material going through the machine, whether his employer was negligent in failing to instruct and warn him against the danger of putting his hand between the rolls,, held, a question for the jury.

    2. Saving Questions for Review — Pleading—Variance.
    An objection to evidence as “irrelevant, immaterial, and incompetent under the pleadings,” does not sufficiently raise the question of a variance between the declaration and proof.
    Error to Wayne; Hosmer, J.
    Submitted October 4, 1905.
    (Docket No. 4.)
    Decided February 26, 1906.
    Case by Joseph Kolodziejski, by next friend, against Herman F. Seestadt, Henry Seestadt, Charles Seestadt, and Otto Seestadt, copartners as Seestadt Brothers Manufacturing Company, for personal injuries. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Edward M. Vining and Lehmann & Biggs, for appel- • lants.

      Dohany & Dohany, for appellee.

       As to duty of master to warn or instruct servant, see note to James v. Rapides Lumber Co. (La. Ann.), 44 L. R. A. 33.

   Hooker, J.

The plaintiff was injured while in defendants’ employ, engaged in removing table tops from a sanding machine. The injury was the result of an endeavor to straighten some material that was going through the sander; his hand getting between the rolls. He was about 14 years old, and was endeavoring to straighten the material at the command of the operator of the machine, who stood opposite to him. He had done it a few times before. The only negligence relied upon is a failure to sufficiently instruct and warn the plaintiff against the danger of putting his hand between the rolls. The defendants offered no testimony, and we suppose that a verdict and judgment were rendered for the plaintiff. These should be, but are not, shown by the record, so far as we have been able to ascertain.

This was a simple machine, consisting of a table with four sets of double rollers, between which the lumber passed, being drawn forward toward the plaintiff’s end of the machine by the rollers when in motion. Between the lower rollers were the sanding drums, which revolved rapidly. Above them were some loose rollers, which served to press the lumber down upon the sanding drums; said loose rollers being thereby caused to turn. When this machine was not in use, its construction was plainly to be seen and easily understood, and it must be admitted that a boy of 14 may be expected to know and think of the danger of getting his hands between such rollers; and, unless we can say that the case is within the principle of Allen v. Jakel, 115 Mich. 484, we can see no reason for sustaining his judgment. The case is very similar in its facts to Allen v. Jakel; about the only difference being that in that case a girl, and in this a boy, was hurt. It may be that this should be sufficient to justify the refusal to apply the rule in that case, for usually a boy’s habits of life give him a greater knowledge and better understanding of mechanics than a girl of the same age usually has. Perhaps a jury should say that it was unnecessary to warn him, because he should be supposed to know all that the warning could impart. We think, however, that the question should be left to a jury, as in the Allen Case. This was a young boy. It appears that 'he was expected to assist in straightening material in the machine. He would be expected to obey the command of his older fellow workman. There may have been a very dangerous method, and one comparatively safe. We cannot say, therefore, that it was error to leave to the jury the responsibility of determining whether the employer was derelict in omitting to instruct and warn him. If he had been instructed, or if he knew the dangers and the proper method of doing his work, without instruction, the jury should not have given him a verdict under the charge. See, also, Ertz v. Pierson, 130 Mich. 162.

It is claimed that there is a fatal variance between the declaration and the proof, for the reason that the former alleged an injury to plaintiff’s right hand, and the testimony conclusively proved that it was the left hand that was injured. This variance was not called to the attention of the court below; the proof being objected to as “ irrelevant, immaterial, and incompetent under the pleadings in the case.” This did not apprise the court of this claim. Had it done so, he should, and doubtless would, have permitted an amendment. The case had been tried once, and defendants cannot have been surprised by the proof. We have said that counsel should make clear the grounds of their objections, and that such general language as was used in this objection does not do it, and will not suffice as a ground of reversal, where the proceedings justify the conclusion that it was not understood by the court.

Error is assigned upon the failure of the court to give several of defendants’ requests to charge. Examination of the charge as given satisfies us that every proper request was covered, and that the charge would not have been improved by substituting the requests.

Finally, we are asked to reverse this cause, upon the ground of the smallness of the verdict, which is said to clearly indicate a compromised verdict. We cannot say this.

The judgment is affirmed.

Carpenter, C. J., and Grant, Montgomery, and Moore, JJ., concurred.


author: Montgomery, J. Grant, J.

text:
    WHIPPLE v. MICHIGAN CENTRAL RAILROAD CO.
    1. Carriers —Injuries to Passengers — Negligence — Sufficiency of Evidence.
    In an action against a railroad company for injuries to a passenger received in a train wreck, caused by a spreading of the rails due to a negligent lack of repair of the track, evidence examined, and held, that there was sufficient on the question of negligence charged to submit to the jury. Hamilton v. Railroad Co., 135 Mich. 95, followed.
    2. Negligence — Pleading—Evidence.
    In an action for negligence it is sufficient for ,the plaintiff to prove sufficient of the substantive charges of negligence contained in the declaration to make out a liability in fact, although negligent acts may be charged which are not proved. Wormsdorf v. Railway Co., 75 Mich. 472, distinguished.
    3. Trial — Argument of Counsel.
    In an action against a railroad company for personal injuries, statements by counsel for the plaintiff in argument that the defendant is not capable of feeling any sympathy, that it is not a living person, and pointing out a distinction between a corporation operating a business for gain and a human person conducting a like business, in that the corporation has no feeling, constitute reversible .error.
    Error to Monroe; Lockwood, J.
    Submitted October 5, 1905.
    (Docket No. 7.)

    Decided February 26, 1906.
    Case by Sarah A. Whipple against the Michigan Central Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.
    . C. A. Golden and George E. Tegart {Henry Russel and O. E. Butterfield, of counsel), for appellant.

      Edward R. Gilday and Willis Baldwin, for appellee.1
   Montgomery, J.

This case was once before the court, and is reported in 130 Mich. 460. A judgment for the plaintiff was reversed and a new trial ordered. The case was sent back for a new trial and additional evidence was offered by the plaintiff. It is again urged that there was no evidence of the negligence charged which justified the submission of the case to the jury. Since the former decision the court has again had occasion to consider the facts surrounding the wreck in question, in Hamilton v. Railroad Co., 135 Mich. 95. In that case we held that, upon the testimony there adduced, the question of the defendant’s negligence was properly submitted to the jury. A careful examination of the testimony in the present record discloses a case quite as strong for the plaintiff as. was presented in Hamilton’s Case. We think it unnecessary to discuss this testimony in detail. That was done in Hamilton’s Case. We think the case upon this question was a proper one for the jury.

A question is made on the pleadings in the present case. The declaration, which is in a single count, averred:

“The defendant did keep and maintain at the date aforesaid, and for upwards of one year prior thereto, an unsafe and dangerous road, extending over and through the places aforesaid, and especially at and near between the stations on said road of Vienna and Alexis, in the county of Monroe aforesaid, in this, to wit, that the defendant did not fasten the rails upon said road by fish plates or otherwise, and did not fasten or spike said rails upon the ties of said road at the place aforesaid, and did allow the ties upon said road at the place aforesaid and in the vicinity thereof to become decayed and rotten and the track, and rails unfastened thereto, by reason of which conditions said track and rails thereon became and were, for a long time prior thereto and until and after the said 9th day of November, 1899, unsafe and dangerous to run trains thereover, and when said train of cars of the defendant on said 9th day of November, 1899, on which, said plaintiff was then and there a passenger, and while-said train was running over said road, when, on account of the fault and negligence of the defendant as above set forth, the tracks and rails of the said defendant on which said train was running between the said stations of Vienna and Alexis at the place aforesaid spread out and became out of place, that by reason thereof the said train became derailed while running at a high and excessive rate of speed, and was then and there wrecked and destroyed.”

It is contended that, to entitle the plaintiff to recover under this declaration, it was necessary to show, first, that the cause of the accident was the spreading, of the track; second, that the track spread because of the combination of circumstances averred, viz., that the rails were not fastened together, that they were not spiked to the ties, and that the ties were decayed and rotten, and that each element of this combination was due to the negligence of the defendant. The case of Wormsdorf v. Railway Co., 75 Mich. 472, is cited in support of this contention. As we had recent occasion to say of this case, it has frequently been misunderstood. It has been pointed out that in that case the acts which were held essential to prove were dependent. See Pinch v. Hotaling, 142 Mich. 521. The headnote of the case of Wormsdorf v. Railway Co. is as follows:

“Where, in an action for negligence, the accident and resulting injury are alleged as having been caused by several concurring negligent acts and omissions of the defendant, each element of negligence must be proved to warrant a recovery.”

This headnote does not state the law. The rule is elementary that, in an action of negligence, it is sufficient for the plaintiff to prove sufficient of the substantive charges of negligence contained in his declaration to make out a liability in fact, although negligent acts may be charged which are not proven. Nor do we think this headnote is a correct statement of the holding in the case. The language of the decision is as follows:

“ The declaration contains but one count, and the accN dent and resulting injury are alleged to have been caused by the several concurring negligent acts of and omissions of defendant.”

The court proceeds:

“ Had the connecting rod not broken, although the horse was fractious, and although there was no conductor, and although the driver of the east-bound car did accelerate his speed, and had not stopped and suffered the plaintiff to alight, the injury would not have been received by plaintiff, And so, if either duty upon the violation of which negligence is predicated had been performed, the accident would not have happened. It was necessary to the plaintiff’s case under the pleadings to establish by proof each element of negligence alleged.”

If the court was right in saying that the accident would not have happened but for the occurrence of all the facts referred to in the above statement, it' would be true that the plaintiff would not be entitled to recover without regard to the pleadings, and it would be equally true that the plaintiff could not recover under the pleadings in the case or under any form of pleadings without establishing by proof each element of the negligence charged. ' That is the extent of the holding in that case, and it is the extreme limit to which the rule could be extended, having regard to precedent.

In the present case, if the rails, in fact, spread from any of the causes alleged, negligence on the part of the defendant might be found, and the fact that the declaration alleged other causes which might have contributed to the spreading of the rails does not result in the case being outside of the allegations.

Error is assigned upon the conduct of counsel, and we quote from the record of the argument of counsel for plaintiff, which was made the subject of objection and exception ; the exceptions being noted in the extract as they appear in the record:

“Mr. Baldwin: When Mr. Golden comes to lay this matter before you, he will undoubtedly express a great deal of sympathy for Mrs. Whipple, both on behalf of himself and company. He will be very sorry that this accident happened. He will be very sorry she was injured. The company will be very sorry and will put her off with sympathizing words, and words only. This defendant here, when you speak of sympathizing, is not capable of feeling any sympathy. It is not a living person. (To which statement counsel for defendant did then and there except.)
“Mr. Baldwin: It is simply a fictitious person in law. It is an intangible thing. It does not know what fear or sympathy is. (To which statement counsel for defendant did then and there except.)
“Mr. Baldwin: And when he will talk to you about sympathy, just think of it. What is the purpose of this corporation ? Simply to make —
“The Court: I don’t know as that characterization ofJ the defendant is proper. I think you had better avoid argument as to the particular character or condition of the defendant. So far as damages, they stand the same as any other person. They are responsible for their acts the same as any other person, in the same way.
“Mr. Baldwin: There is this difference between any corporation operating any business for gain or any other purpose, and that is this: If a human person is operating a business, there are two checks upon a man, only one of which there is on a corporation. The man, in addition to his desire for gain, etc., has a human feeling which will check him from doing certain things which it would not check a corporation from doing because a corporation has no feeling. (To which statement counsel for defendant did then and there except.)”

As much, as we may i-egret the necessity of reversing this case for this error, we cannot overlook the infraction of rules so clearly laid down in our previous decisions relating to the conduct, of counsel in the trial of causes. Here is a manifest and apparently studied purpose to induce the jury to deal with this defendant corporation differently than it would with an individual defendant, and when the court interrupts and directs attention to the impropriety of this conduct, so far from withdrawing the statements, plaintiff’s counsel proceeds and undertakes to point out the distinction between a corporation operating a business for gain and a human person. We have repeatedly held that such appeals to juries are improper. See Johnson v. Railway Co., 135 Mich. 353, and cases cited. If, with the light of our repeated decisions before them, counsel persist in ignoring rulings of the court, we feel that the responsibility for the miscarriage of justice resulting from a new trial, if such occurs, must rest with them, and not with the court. Nor is it an answer in this case to say that, after the language used by plaintiff’s counsel introducing his remarks, defendant’s counsel did, in fact, express sympathy for the plaintiff. It is not strange that he should have attempted to, in some way, counteract the effect of this improper language. Nor if sympathy had been expressed already and this language been employed in reply to Mr. Golden, we cannot see in the argument of Mr. Golden a justification for the attempt to emphasize a supposed distinction between a human person operating a business and a corporation conducting a like business. Corporations are run by individuals. Its officers may be actuated by human sympathy as much when they are acting as representatives of a corporation as when acting as individuals. While it may be true that a corporation has no feeling, it is not always true that those who conduct corporations have no feeling. A case should be determined upon its merits, and when it has such weakness as to make necessary such unseemly appeals to prejudice the case ought not to prevail. If the case be such as to entitle the plaintiff to recover upon its merits, such appeals cannot be excused upon the ground of undue zeal. See, also, 5 Current Law, p. 259.

For this error, we feel constrained to reverse this judgment and to award a new trial.

Carpenter, C. J., and Hooker and Moore, JJ., concurred.

Grant, J.

(concurring). The facts in this case and its companion case, Sarah O. Whipple v. Railroad Co., infra, being substantially the same as those in Hamilton v. Railroad Co., 135 Mich. 95, the majority opinion in that case must control, and I therefore concur in the conclusion reached by my Brother Montgomery.

I also concur in the views expressed by him on the other points determined.


author: Montgomery, J.

text:
    WHIPPLE v. MICHIGAN CENTRAL RAILROAD CO.
    ■Carriers — Injuries to Passengers — Negligence — Sufficiency of Evidence.
    This case, involving the sufficiency of the evidence in an action against a carrier for negligent personal injuries sustained by a passenger, is ruled by Whipple v. Railroad Co., ante, 41, involving the same facts.
    Error to Monroe; Lockwood, J.
    Submitted October 5, 1905.
    (Docket No. 9.)
    Decided February 26, 1906.
    Case by Sarah O. Whipple against the Michigan Central Railroad Company for personal injuries. There was judgment, for plaintiff, and defendant brings error.
    Affirmed.
    . O. A. Golden and George E. Teg art (Henry Russel and O. E. Butterfield, of counsel), for appellant.

      Edward R. Gilday and Willis Baldwin, for appellee.
   Montgomery, J.

This case grows out of the same catastrophe that was considered in the case of Sarah A. Whipple against the same defendant, decided herewith. [Ante, 41.] The case presents the first two questions considered in the opinion in its, companion case. The case was submitted to the jury and a verdict rendered for the plaintiff. No error is discovered and the judgment is affirmed.

Carpenter, C. J., and Grant, Hooker, and Moore, JJ., concurred.


author: Grant, J.

text:
    LANSING v. MICHIGAN CENTRAL RAILROAD CO.
    1. Judgments — Conolusiveness—Matters Concluded.
    On the issue of what question was litigated in a former suit, in which, for some reason not shown by the judgment, a verdict was directed, resort may be had to the record to show why the court directed the verdict, and what was the issue upon which direction was made:
    3. Same.
    A judgment for defendant in a personal injury case in which the only question decided was that plaintiff could not, while still an infant, disaffirm her previous settlement of the cause of action, is not an adjudication of her right to repudiate the settlement and maintain an action for the injury after she becomes of age.
    3. Infants — Age—Evidence—Sufficiency.
    In an action for personal injuries, evidence as to plaintiff’s age at the time of executing a settlement with defendant examined, and held, that a finding that she was an infant was contrary to its overwhelming weight.
    4. Trial — Conduct of Counsel.
    Where plaintiff in a personal injury case sought to avoid a previous settlement thereof on the ground of infancy, the conduct of her counsel in charging fraud in its procurement in his opening, of which there was no evidence, in persistently introducing testimony showing how the settlement was made between her and her attorney, notwithstanding repeated objection and exception from opposing counsel; and in offering hearsay evidence of her age after it had been ruled out, held, so prejudicial in a close case as to require reversal of a judgment for plaintiff.
    5. Witnesses — Credibility — Impeachment — Evidence — Attorney.
    Evidence of specific charges of criminal conduct, and findings thereon, in proceedings for the disbarment of an attorney, are admissible to impeach him as a witness.
    Error to Monroe; Lockwood, J.
    Submitted October 5, 1905.
    (Docket No. 8.)
    Decided February 26, 1906.

      Case by Edith Lansing against the Michigan Central Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.
    This case involves the same accident and liability for alleged negligence as the companion cases, Sarah A. Whipple v. Railroad Co., ante, 41, and Sarah O. Whipple v. Railroad Co., ante, 47. The liability of the defendant for negligence depends upon the same facts as are involved in those cases and is ruled by them. In December, 1899, plaintiff, through her attorneys, Look & Humphrey, brought suit against the defendant to recover damages for injuries received. The suit was brought in her own name as an adult. On May 25, 1900, she settled the case with the defendant through her own attorney, Mr. Look; Mr. Ashley Pond acting for the defendant. The agreement was in writing and is set forth in full in 126 Mich. 663. At the same time she signed an order, directed to the treasurer of the defendant, authorizing and requiring him to pay the amount to her attorney, William Look. Both these papers were executed in the presence of three witnesses. The money was paid to Mr. Look and the suit discontinued. Afterwards she brought a second suit by her next friend, through Mr. Ira G. Humphrey, her attorney, representing that she was an infant. The declaration in the second suit made no reference to her former suit and the settlement. To the declaration in the second suit the defendant pleaded the general issue and gave notice of accord and satisfaction, and that she was at the time of the age of 21 years. At the conclusion of the second suit the court directed a verdict for the defendant, and judgment was entered thereon; the judgment reciting that “the jury heretofore impaneled in this cause, and after further proofs and allegations of the parties in part, the jury without leaving their seats under the direction of the court say,” etc. There was a conflict in the testimony as to her age at the time of the settlement and at the time of bringing the second suit. The record in that suit after the close of the testimony recites:
    “Thereupon counsel for defendant moved the court to direct a verdict for the defendant. Thereupon the court-directed the jury to render a verdict for the defendant, because plaintiff was not of age on her own showing when the settlement was made and this suit instituted arid was still a minor; and, if she was of age at the time of settlement, then such settlement is a bar to this suit, to which ruling counsel for plaintiff duly excepted. Upon which is based assignments 1 and 5.”
    That case was brought to this court for review and the judgment affirmed. 126 Mich. 663. It was claimed that the plaintiff had disaffirmed the contract of settlement, and that she could do so when an infant. The record in this case contains what was said by counsel and the court in directing a verdict for the defendant in the former suit ¡

      “ Mr. Russel: The defense is called upon to meet three propositions:
    “ First. As to the age of plaintiff. If it be found that the plaintiff was of age at the time of this adjustment to which she testified, that would be the end of this case.

      “Second. There is a question as to the signature and execution of this paper.

      “Third. If these two questions were out of the case, there remains a third question as to the liability of the defendant for the accident which caused the injuries, and as to that we have a large amount of testimony. In order to save time, it is proposed by the defense that the first question be disposed of at this point.
    “It is contended by the plaintiff that she was not of age when she made this contract. This was an executed contract. It is contended that she is not bound by it because she was a minor. Suppose that under the laws of Michigan such a contract was made by a minor, then it is a voidable and not a void contract, and it cannot be avoided by her. It cannot be repudiated by her act until after she arrives at maturity. Taking the plaintiff’s evidence, and admitting that it is true, it appears that she was not of age, yet, that being so, it is beyond her power, in any way, to repudiate that contract, not having attained maturity. There is no question about this under the rulings of the Supreme Court of the State of Michigan. If it be said that she was of age, then'she cannot repudiate it, under her own testimony, having signed it and ratified it. For these reasons we move to direct a verdict for the defendant.
    “ The Court: The rule which has been invoked by the defendant is a technical rule. It is a technicality, and I rather regret that it is in the case. I would prefer that the case should go to the jury upon its merits, but the rule is invoked and it is the privilege of the defendant to insist upon it. I do not see but that the law of the State as pronounced by the Supreme Court recognizes the right of the position taken by the defendant in this case. The •question in the case can be reviewed inexpensively if we stop at this point, and I think it would be better for all parties than to go on with this question in the case. I shall therefore direct a verdict for the defendant.

      “Mr. Humphrey: The court grants this motion. This is a case that has been properly begun by next friend, and I would not like to have anything done which would work an estoppel to beginning suit after the plaintiff becomes of age. If the court puts the decision upon the ground that this can be affirmed after the minor becomes of age, but not before then, we will have an understanding about it.

      “ The Court: I put it upon this theory: That according to plaintiff’s own showing she was a minor when she made this contract and is still a minor, and I hold that, under these circumstances, she cannot recover. On the other hand, if, as the defendant claims, she is of age, then she has entered into a legal contract which stops her in this action.
    “ Mr. Humphrey: There is some evidence that she is of age now.
    “ The Court: The plaintiff must stand or fall upon the position she takes, and so must the defendant. She must recover either upon the theory of the plaintiff or according to the theory of the defendant. She cannot recover according to her theory.
    “ Mr. Humphrey: Simply because she brought suit before she was of age ?
    “ The Court: Yes; or, if she is of age, this settlement is a bar to her recovery.

      “Mr. Baldwin: All we want is to show that this is not a direction for a verdict upon the theory that it is an estoppel. We would like a further direction that the plaintiff must bring this action after she is 21.

      “ The Court: That is the ground upon which I direct a verdict; that is just the theory upon which Mr. Russel asks to have it taken from the jury.
    “Thereupon the court directed a verdict.”
    This does not appear in the bill of exceptions in the former suit. The declaration in this case is the same as in the former suit, except as to the allegation of infancy. The defendant pleaded the general issue and gave notice of the former suit as a bar. The case was submitted upon the evidence, and a verdict rendered for the plaintiff for $2,500, less the $750 paid upon the settlement.

      C. A. Golden and George E. Tegart (O. E. Butterfield and Henry Russel of counsel), for appellant.

      Ira G. Humphrey and Willis Baldwin, for appellee.
   Grant, J.

{after stating the facts). Thepieadings . show three issues. The declaration presents the issue of the negligence of the defendant as a ground of liability for the plaintiff’s injury. The plea presents the issue of accord and satisfaction, and the age of the plaintiff. The question of accord and satisfaction was eliminated from the consideration of the jury, because it was admitted that the agreement was executed. It was binding upon her as held by the trial court in that case and by this court upon appeal until she became of age. No issue of fact was passed upon by the jury. The merits of the plaintiff’s claim in her declaration clearly were not adjudicated. Plaintiff was properly in court. Any judgment rendered upon the suit is as binding upon her as it would have been upon one sui juris. The very purpose of appointing a next friend or guardian ad litem is to put the infant or incompetent in court where his rights can be adjudicated, and, if adverse to him, the judgment or decree will bind him for all time as would a decree in his favor against the party sui juris. What was the question litigated in the former suit, and which is now res judicata ? The judgment is not in the usual form. The usual recital in a judgment based upon the verdict of the jury is “after hearing the proofs and allegations,” etc. The recital in this judgment shows that there were only proofs and allegations of the parties in part. For some reason, which is not shown by the judgment, a verdict was directed. It is certainly competent under the repeated decisions of this court to resort to the record to show why the court directed a verdict, and what was the issue upon which direction was made. Bond v. Markstrum, 102 Mich. 11, and authorities there cited; Aldine Manfg. Co. v. Barnard, 84 Mich. 632; Harris v. Clark, 74 Mich. 334; Black v. Miller, 75 Mich. 323; McKinney v. Curtiss, 60 Mich. 611. The record in the former- case, and the opinion of the same case in this court, show that the only question passed upon in the former trial, and which was the basis of the judgment, is that the plaintiff was as incompetent to disaffirm her contract as an infant as she was to make it. Plaintiff insisted that she could disaffirm while an infant, while the defendant insisted that she could not. No issue of fact was passed upon by either the court or the jury. One question of law was passed upon, and that was, could she, under her own theory, maintain the suit ? We think that her right to repudiate her contract and maintain a suit after she became of age was not adjudicated in that suit.

Defendant made a motion for a new trial, one ground of which was that the verdict was contrary to the overwhelming weight of the evidence. The only evidence •of plaintiff’s age was given by herself. In deciding the motion the court said only this:

“ The question of whether the plaintiff was 21 years of age at the time of the settlement was fully and fairly submitted to the jury, and the jury found that she was not 21 years of age.”

The learned circuit judge did not discuss the evidence as to her age, or determine except indirectly where the great preponderance lay. Plaintiff testified that she ran away from home when she was 14 years of age. Under her own testimony and admissions, she had been arrested several times as a criminal, and was a woman of immoral character. She did not produce the testimony of either her father or mother, although her mother was then living in Ypsilanti, a short distance from the place of trial, and her father was a resident of Bowling Green, Ohio. She brought her first suit as an adult. Her attorneys and. the defendant dealt with her as an adult, settled with her and paid her $750 as an adult. Her attorneys, Look & Humphrey, certainly understood that she was of age. Mr. Ashley Pond, one of the attorneys for the defendant, settled with her upon that basis. She gave the following testimony:

“ Q. How many times did you give your age in Detroit to the police officers ?
“A. I don’t remember that now. I remember giving my age once; but I don’t remember of giving it to anybody else.
Q. Didn’t you give your age to the officers in Detroit on October 14, 1896 ?
“A. I don’t remember what date it was.
Q. And didn’t you give it on April 19, 1897 ?
“A. I don’t remember.
Q. And on November 28, 1897 ?
“A. I don’t remember; not that I remember of.
Q. Were you not asked your age every time you was arrested in Detroit by the officers F
“A. Yes, sir; I guess I was.
Q. You were, every time ?
“A. Yes, sir.
Q. How many times ?
“A. I don’t remember that. I don’t remember how many times I was arrested in Detroit, or what age I gave at any time.
Q. Do you remember whether you gave the same age each time, or did you give a different age ?
“A. That I don’t remember.
Q. Each time you were arrested in Toledo were you> asked your age by the officers ?
“ A. Certainly.
“ Q. They always did ?
“A. I guess they did.
Q. Didn’t they have a book there and mark down what you told them ?
“A. Yes, sir; they marked down something.
Q. How many times did they do that in Toledo ?
“ A. I don’t remember that.”

She admitted having lived in Detroit and Toledo under two aliases. She wrote a letter to .her father, dated September 4, 1896, in which she said:

“ I have been trying to think what to send Mablé for a birthday present, as her birthday is the 30th of this month, and mine is the 24th. Almost 19 years old, or is it 18 , years ?”

The police officers in Detroit and Toledo testified as to her arrests, and produced their record of the age she then gave. On these occasions she gave her age as 19, and she does not deny that she .so told the officers. Under these statements, she was more than 21 years of age at the time of the settlement. Upon this point the preponderance of the evidence is so overwhelming in favor of the defendant that we think the court should have granted a new trial. It would seem that a jur-y must, in some manner, have been prejudiced in finding that she was not 21 years of age at the time of the settlement.

Counsel for plaintiff were guilty of misconduct, which entitled the defendant to a new trial. In ’opening the case to the jury one of her attorneys, Mr. Baldwin, charged that the settlement was procured by fraud. Upon counsel for the defendant’s excepting to such statement, her attorney, Mr. Humphrey, said:

“ I presume it would not be fraud upon the part of your company to settle with a girl 19 years old, and that they had no right to — ”

The court warned the attorney to confine himself in his statement to what he expected to prove by competent evidence. The counsel still proceeded to charge fraud, and stated that when plaintiff arrived in Detroit from Toledo, in response to directions from her attorneys, she met Mr. Look and an agent or attorney of the defendant, that they laid down a bunch‘of papers before her, and that she, relying upon Mr. Look’s statement, signed the papers. There was no testimony of any fraud upon the part of the defendant in making this settlement. No attorney or agent for the road was present at the time she signed it. She testified that no one acting for the defendant was present. She had no interview with any agent or attorney of the railroad company in making the settlement. Counsel for plaintiff, against the objection and exception of the defendant, persistently introduced testimony showing how the settlement was made between her and her attorney, how much of the money paid she received, and stated that her attorney “was really acting as attorney for the railroad company.” Plaintiff also testified that her attorney kept her all night in her room at the hotel, and would not let her go to the dining room for her meals. Plaintiff’s counsel also offered to show that her father had stated to a third person what her age was. After the court had ruled this testimony incompetent her counsel immediately afterwards renewed the subject by asking:

“ When John H. Macomb [her father] made any statement to you, was he under oath ? ”

Upon this being ruled out, counsel again stated:

“We wish to show that an attorney of the defendant' was present at this time and asked this man, and obtained this information acting for the defendant.”

The incompetency of the testimony offered is too clear to require argument. To hold that plaintiff’s attorneys did not know it was incompetent would reflect upon their knowledge of the law. The damaging effect of such a course before a jury is apparent, and, it is fair to presume, accounts for the verdict. The sole question under the pleadings was the age of the plaintiff. There .was no evidence and no attempt on the part of the plaintiff to produce any to show that the defendant was guilty of any fraudulent conduct. The relations between her and her attorneys, the representations they or either of them made to her, the amount of money she received, and other like things, had no place in this suit, and should not have been mentioned. No reference should have been made to what transpired between her and her attorneys, as the defendant is in no manner responsible therefor.

As affecting the credibility of the witness Look, who was a witness for the -defendant, plaintiff introduced in evidence the record proceedings taken for the disbarment of Mr. Look as an attorney at law, and the findings of the court thereon. We think the testimony was competent. A record of conviction is competent evidence to affect a witness’ credibility. The charges of criminal conduct and the findings thereon were specific. This case does not fall within the rule of Dickinson v. Dustin, 21 Mich. 561, where no specific charge was made, and the attorney acknowledged some misconduct and resigned his license to practice law. What the misconduct was did not appear, and it was held not to be a record of conviction such as could be used in impeaching a witness.

Judgment reversed, and new trial ordered.

Carpenter, C. J., and Montgomery, Hooker, and Moore, JJ., concurred.


text:
    ACKERMAN v. CINCINNATI, SAGINAW & MACKINAW RAILROAD CO.
    1. Railroads — Leases—Yalidity—Effect.
    Under section 6339, 2 Comp, Laws, an instrument by which a ■railroad company leases its road and all its franchises, privileges, etc., to another railroad company, nonresident, for a term of 99 years, is a valid lease and relieves the lessor from liability for acts done by the lessee in the subsequent maintenance and repair of the roadbed.
    2. Pleading — General Issue — Matters Provable.
    In an action on the case against a railroad company to recover damages to lands from flooding by reason of an embankment on defendant’s right of way, the defense that the embankment was built by another company, to which defendant has. leased its property and franchises, is available under the general issue.
    Error to Shiawassee; Smith, J.
    Submitted October 5, 1905.
    (Docket No. 13.)
    Decided February 26, 1906.
    Separate actions on the case by Clarence Ackerman, and William Ackerman against the Cincinnati, Saginaw & Mackinaw Railroad Company for damages to land caused by flooding. The cases were tried together by stipulation, resulting in judgments for plaintiffs, and defendant brings error.
    Reversed.

      Harrison Geer, for appellant.

      Watson & Chapman, for appellees.
   Hooker, J.

This record presents the proceedings had upon the trial of two causes, which by stipulation were tried together at circuit, resulting in separate judgments for the plaintiffs. The defendant has appealed.

The declarations are in case to recover damages to lands from flooding. Previous to the acts which are said to have caused the damage, one or more drains essential to the proper drainage of the plaintiffs’ lands were crossed by. defendant’s railroad trains by means of an open trestle which permitted the uninterrupted and ready escape of excessive water through said drains and the natural depression through which the drains had been dug. The alleged cause of the trouble was the filling up by an earth embankment of the space occupied by the trestle,' or a part of it, thereby obstructing the flow of the water, which caused an injury to the land and crop of the plaintiffs. The plea was the general-issue. In addition to its defense upon the merits, the defendant introduced a written lease of the railroad from itself to the Grand Trunk Railroad of Canada for 99 years, with the privilege of renewal for a like period thereafter. It was executed December 28, 1900. This lease recited a former one, made in 1890, for 29 years and 2 months, of the same property, which was canceled as a part of the later transaction’ Testimony was given to the effect that the Grand Trunk Railroad was in full possession after 1900 to the exclusion of defendant, and that it and not the defendant caused any and all ob-obstructions that were complained of, if there were such, and asked an instruction that verdicts for the defendant must be rendered. Thereupon the following occurred:

‘£ Mr. Watson: For the purpose of getting it on the record, I now move to strike from the record the lease -that has been introduced, and I insist that the lease has not been properly proved; that the paper has not been shown to be an instrument that could be executed. And I further move to strike it .out for the reason that it is incompetent, irrelevant, and immaterial, and for the further reason that a railroad company in this State cannot contract against obligations that are imposed upon it by the statutes of the State. Now, in discussing this matter, I desire first to call your attention to the statute that makes it obligatory on the railroad company to construct its track —that is, 2 Comp. Laws, § 6301 — and which provides that the owner of any railroad shall construct its roadway in such a manner over these drains that it will not back the water up. Another section of statute provides that same thing, with the additional clause that it may also be liable, and then the section 6339 gives the railroad company the right to lease, and 6340, that provided that they may lease their right of way, their franchise, and all those things, and provides that the lessee shall take the property subject to the obligations that are imposed upon the original company, so there isn’t any question about that. * * * I insist that the lease should be stricken from the record in this case.
“This motion was granted, and the lease (Exhibit 3) was ordered stricken from the record.”

The motion was denied, and the cause went to the jury; a request to direct a verdict being also denied.

The question of what the liabilities of a lessor of a railroad are has been raised in nearly all of the States, and it cannot be denied that there are many cases sustaining plaintiffs’ contention. Some of them hold that the liability extends no further than keeping the roadbed, fences, etc., in condition required by law. Others go to the extent of holding that the lessor is liable for injuries to passengers and travelers on the highways. There are some that extend the liability to cases of injury to employés of the lessee, while others deny this on the ground of absence of privity of contract. Some have rested the rule upon the theory of agency; while others say that the charter is a contract with the State, and that, though the road be leased under statutory authority, the lessor can only be released from its contract liability and enjoy immunity therefrom by express provision of the statute. The latter rule has the support of Massachusetts, North Carolina, and Vermont. Ingersoll v. Railroad Co., 8 Allen (Mass.), 438; Logan v. Railroad Co., 116 N. C. 940; Nelson v. Railroad Co., 26 Vt. 717. Those cases which rest upon the theory of agency would seem to rest upon an unsubstantial foundation, except where the facts fall short of an unrestricted lease. Some of them are cases where there is opportunity for finding the relation to have been that of principal and agent. The case of Bay City, etc., R. Co. v. Austin, 21 Mich. 399, relied on by plaintiff, may be such an one, for aught that appears to the contrary therein. Such cases are correctly decided.

No one doubts that without statutory authority a railroad company would be precluded from substituting another in its place to perform its obligations to the State and public, This question was consistently disposed of in. England, by the holding that a railroad company could not make a valid lease of its rights and franchises; this is, upon the ground that the effect of a lease of property is to relieve the lessor from obligation to others in regard to its use, and that hence there could be no presumption of an intent to grant the power to lease — a logical conclusion. But the doctrine that a statutory authority to lease a railroad leaves the lessor liable to the full extent that it would be if it operated the road itself, unless it be expressly stated to the contrary in the statute, can rest on nothing less than a supposed legislative intent to use the word “ lease ” in a limited and different sense than that usually given the term, which is in no regard doubtful — an interpretation which is in violation of 1 Comp. Laws, § 50, subd. 1, which provides that:

“ All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.”

It seems to us the better rule that, where a legislature has given authority to a railroad company to lease its railroad, it should be deemed to have intended to authorize an effective instrument, having the characteristics and qualities of a lease, as established by a long line of consistent holdings by the courts. The following authorities support this view of the subject: McCafferty v. Railroad Co., 61 N. Y. 178. Thus, in Mayor, etc., of New York v. Railway Co., 113 N. Y. 311, in an action to compel payment of taxes, it was held that:

While no such obligation was imposed by the acts ailthorizing said company to lease its road (chapter 199, Laws of 1873; chapter 389, Laws of 1875), or by any statute, defendant, upon taking the place of its lessor as to its charter rights and power, took its place also as to its charter obligation and duties, and was not entitled to exercise the former without discharging the latter.”

See Ahern v. Steele, 115 N. Y. 203 (5 L. R. A. 449), as to effect of demise generally. The case of Miller v. Railroad Co., 125 N. Y. 122, is a case much like the present case, if not on “all fours.” Cain v. Railroad Co., 27 App. Div. (N. Y.) 370; Caruthers v. Railroad Co., 59 Kan. 635 (44 L. R. A. 737); Little Rock, etc., R. Co. v. Daniels, 68 Ark. 171; Heron v. Railway Co., 68 Minn. 548; St. Louis, etc., R. Co. v. Curl, 28 Kan. 622; Missouri Pacific R. Co. v. Watts, 63 Tex. 553. The opinion of Brewer, J., in last-cited case was followed in Hayes v. Railroad Co., 74 Fed. 282. Also, see opinion of Lurton, J., in Arrowsmith v. Railroad, 57 Fed. 165, where he says:

“Where obligations are imposed by charter or statute law upon a railroad company for the protection and advantage of the general public not having contract relation with it, it may very well be said that a general authority to lease out its road, which contains no provision exempting it from such public obligations, will not absolve it from liability. So, if a railway be in such condition that ■ it is a nuisance when leased out, by reason of the absence of something necessary to its safe operation, or the presence of something dangerous to its safe operation, and this nuisance be continued by the lessee, both the lessor and the lessee would be liable; the one as having created, and the other as having continued, a nuisance. But to say that, after the lessor has, by authority of law, transferred the control and management of its road to another, he shall, unless specially exempted, remain liable for all the torts and contracts of the lessee, is to ignore the contract of lease and the legislative sanction under which it was made. The State, on grounds of public policy, may well refuse its consent to the transfer; but, if it consent, then there is no public policy to authorize the courts to say that the responsibility for the future management and operation of the road has not been exclusively imposed upon the lessee, as the lawful substitute for the company-owning the road.”

Especially is this true where the statute provides expressly that all of the rights and obligations shall pass with the lease to the lessee, who, according to the terms of the statute, must be a railroad company, and who, by accepting it, assents to hold and operate the road and property and franchises subject to all the duties and obligations, and with all the rights and privileges prescribed by the general railroad law of the State. 3 Comp. Laws, § 6339.

The testimony in the present case shows beyond question that the defendant leased its entire road and equipment and franchises for 99 years to a nonresident corporation, some years before the act complained of. The authority of the nonresident company to accept a lease of a railroad under the laws of Canada is not raised, and need not be considered. Its authority under our law will be found in 2 Comp. Laws, § 6339, which provides:

“That it shall be lawful for any railroad company organized or that may be organized under the laws of this State, to sell, lease and convey its road, together with the rights and franchises connected therewith, or any part or portion thereof, to any other railroad company, whether organized within or without this State; and to acquire by lease or purchase from the owner of any other railroad, such road, together with the rights and franchises connected therewith, or any part or portion thereof, whether located within or without this State; and for the railroad company so purchasing or leasing to acquire and use such road, rights and franchises by purchase of the stock or otherwise, as may be agreed between the parties interested, said railroads not to have the same terminal points and not being competing lines: Provided, The stockholders owning a majority of the stock of said companies shall consent thereto: And, Provided further, That the company so purchasing or leasing shall hold and operate such road and said property and franchises subject to all the duties and obligations and with all the rights and privileges prescribed by the general railroad laws of this State.”

By the express terms of this act, not only the roadbed and rolling stock may be sold or leased, but also the “rights and franchises” connected therewith, i. e., the lessee takes and operates the road, subject to all the'duties and obligations and with all the rights and privileges prescribed by the general railroad laws of this State. See Thayer v. Railroad Co., 93 Mich. 150; Gage v. Railroad Co., 105 Mich. 340.

Another feature of this act which should not be overlooked is that restricting such sales, leases, and conveyances to “another railroad company,” which owes, or, as already shown by accepting the lease, assumes all obligations to the State and public which the general railroad law prescribes. The defense was available under the plea of the general issue.

The judgments are reversed, and new trials ordered.

Carpenter, C. J., and Grant, Montgomery, and Moore, JJ., concurred.


author: McAlvay, J.

text:
    WILSON v. KNAPP.
    j Election of Remedies — When Presented.
    Complainant, having bought land on contract from defendant who acquired it from her deceased husband by will, refused to pay his last payment unless defendant obtained authority from the probate court to deed the land to him, and brought suit for breach of contract, in which he was defeated. Held, that since he never had a right of action for breach of contract, his bringing the suit was not an election to rely thereon and did not bar his subsequent suit for specific performance on being refused a deed.

      2. Specific Performance — Propriety—Part Performance.
    Where a purchaser of land has taken possession, made improvements, and paid all the installments of the purchase price as agreed except the last, he is entitled to specific performance, though he has brought and been defeated in an action for damages for breach of contract against the vendor on the theory that the proffered deed-of the vendor would not convey the title.
    Appeal from Oakland; Smith, J.
    Submitted November 8, 1905.
    (Docket No. 52.)
    Decided February 26, 1906.
    Bill by Walter H. Wilson against Clarissa Knapp to compel the specific performance of a land contract. From a decree for complainant, defendant appeals.
    Affirmed.

      James H. Lynch, for complainant.

      Perry & Stockwell, for defendant.
   McAlvay, J.

On January 1, 1900, complainant entered into a contract in writing with defendant for the purchase of a certain lot in the village of Oxford, Oakland county, which defendant agreed to convey in fee simple for the sum of $125 in installments with interest. Defendant acquired title to this property from her deceased husband by will. Complainant, upon his purchase, went into possession and made improvements upon the lot and began to erect a building thereon. The payments of-the purchase price and interest were made promptly. At or about the time the last payment became due, complainant insisted that defendant should give him a “ probate deed,” probably meaning a conveyance authorized by the probate court. The attorney for defendant offered complainant a warranty deed signed by defendant, together with ■her son and his wife, stating the same would be acknowledged and delivered to him. He refused this deed, insisting on an order from the probate court. Complainant then, upon the assumption that the failure to obtain a probate deed and the offer of the warranty deed was not in compliance with the contract, by his attorney began suit against defendant, claiming damages for the nonperformance of the contract. Defendant pleaded the general issue, giving notice that she had been, and then was, ready to execute and deliver a warranty deed of the premises in dispute, and made proffer of such deed executed by herself and her son and his wife. On the trial the court directed a verdict for defendant of no cause of action. Later the complainant tendered the balance due on the contract with interest, and demanded a deed from defendant, which she refused to give. He then deposited the amount due with the clerk, and filed his bill of complaint in this cause to compel specific performance of the contract. By order of the court he has paid all of the costs taxed against him in the suit at law.

It is insisted, on the part of the defendant in this suit, that complainant, having elected a remedy in his suit at law, is estopped from maintaining a suit in equity to enforce specific performance of the contract; therefore, that the judgment in the law case is res adjudicata and conclusive; that defendant has not such title that specific performance can be compelled. The first contention of the defendant is upon the theory that the suit at law was an election of remedies by complainant, and, having proceeded to judgment, that judgment is conclusive between the parties to this controversy. It is clear that if this suit at law for damages was an election of remedies by complainant, he would be estopped from taking the inconsistent position of enforcing the same contract specifically in this suit, and that judgment would be res adjudicata. In the law case defendant insisted that she at all times had been ready and willing to perform, and presented the deed she was then willing to deliver, and the trial court held that complainant was not entitled to recover, and directed a verdict on motion of defendant. The substance of the defense to the lawsuit was that complainant had no remedy at law. There was no denial but that the purchase price excepting the last payment had been paid. Defendant insisted that the contract was still in force, and recognized her obligation to convey. Without doubt she was correct. That suit was ill advised. There had been, in fact, no default on defendant’s part. No right of action had accrued to complainant. He should have accepted his deed and made his final payment. There appears to have been no dispute as to the facts presented to the court in the law case. In this record the same facts also appear without ■dispute.

The rule that a party, having elected by bringing an action upon one theory, has no right afterwards to sue upon another, is well recognized by this court. McLaughlin v. Austin, 104 Mich. 489, and cases cited. In that case, however, the court said:

“ This rule is not inconsistent with the practice of bringing a second and different action, where it appears that the plaintiff never had a right of action as first brought, and therefore could not have elected. There is a difference between an election of remedies and a mistake of remedy, and the law has not gone so far as to deprive parties of meritorious claims, merely because of attempts to collect them by inappropriate actions upon which recovery could not be had.”

In a later case before this court several times, McLaughlin v. Austin, supra, was cited and approved. Sullivan v. Ross’ Estate, 113 Mich. 318, and cases cited. See, also, First Nat. Bank of Reed City v. Sweet, 136 Mich. 615. Complainant in the suit at bar never had a right of action as first brought, and therefore could not have elected. The judgment in the law case was not res ad judicata, nor conclusive upon the controversy between the parties. To hold otherwise would be sustaining the inconsistent positions of this defendant, who in the case at law insisted that she was not in default, and offered the deed to complainant thereby defeating that action, and in this suit refusing to deed, for the reason that the judgment in the former case is conclusive against complainant.

As before stated, the defendant derives her title from her husband by will. Complainant asks that she be decreed to deed him such interest as she may have in the premises, being willing to accept such title as she possesses. The equities of the case are all with the complainant. Since the suit at bar he has done nothing to place himself in default. He has been in possession since January 1, 1900, making improvements up to the commencement of this suit, and has tendered the entire amount due. Defendant has retained the entire amount of the purchase price paid to her. The parties cannot be placed in statu quo. Complainant is entitled to have the contract specifically enforced, upon payment of the balance of the purchase price tendered by him, with interest to the commencement of this suit.

The decree of the circuit court is affirmed, with costs.

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


text:
    ROHN v. OSMUN.
    Health — Boards—Nurses—Employment—Neglect op Duty— Liability op Oppioers.
    Under section 4424, 2 Comp. Laws, as amended by Act No. 7, Pub. Acts 1903, the duty of the board of health in the matter of employing a nurse for a family quarantined because afflicted with a dangerous communicable disease, is quasi judicial, for the erroneous exercise of which the members are not liable to one who is injured thereby.
    Error to Montcalm; Davis, J.
    Submitted November 9, 1905.
    (Docket No. 114.)
    Decided February 26, 1906.

      Case by Frank Rohn against Junius E. Osmun and others, members of the board of health of the city of Green-ville, for neglect while under quarantine. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      George E. Nichols, for appellant.

      N. O. Griswold, for appellees.
   Montgomery, J.

This action is brought by plaintiff against the members of the common council of the city of Greenville, who are ex officio members of the board of health, joining with them the health officer. Acting under the authority of section 4424, 2 Comp. Laws, as amended by Act No. 7, Pub. Acts 1903, the health officer quarantined plaintiff and his wife, both of whom were afflicted with diphtheria, in their own home. Plaintiff was attended by his own physician, and had some money in the house. The house was supplied with groceries from a neighboring grocery, and provisions were furnished by some of the neighbors at different times. Plaintiff’s wife was up and about the house most of the time, but for about one week of the time was not able to do more than drag herself to the door and take in provisions, and, at risk of taking cold, prepare food for herself and husband. The physician was in attendance twice a day. It is undoubted "that the plaintiff suffered from the lack of proper nursing. The circuit judge directed a verdict for defendants, and plaintiff brings error.

The action is based upon the neglect of a statutory duty, and calls for a construction of the statute cited. The section in question reads, in part, as follows:

“ When any person coming from outside the county or residing in any township, city or village within this State, shall be infected or shall lately before have been infected with a dangerous, communicable disease, the board of health of the township, city or village where such person may be shall make effectual provisions in the manner in which they shall judge best for the safety of the inhabitants and they may remove such sick or infected person to a separate house if it can be ■ done without danger to his health, and shall provide nurses and other assistance and necessaries which shall be at the charge of the person himself, his parents or other persons who may be liable for his support if able.”

The question which presents itself is whether, under this statute, the board is bound to provide a nurse in every case in which a person is quarantined, or whether, on the other hand, a discretion is vested in the board. If the-statute be literally construed, it might be said that this duty was not only positive, but that more than one nurse must be employed as the phrase is used. This construction would be so unreasonable as to suggest that it should not be adopted except upon necessity. We think the employment of the phrase “ nurses ” in the statute indicates a legislative intent that the board should, in the general exercise of its powers, under this section, employ-nurses, and implies a discretion as to number and occasion. It is to be noted that the power to isolate is not limited to those who are at the time infected, but includes such as shall lately before have been infected. It is hardly conceivable that the legislative intent was that such convalescents should be supplied with nurses. The reasonable construction is that which gives authority to the board to decide upon the necessity' and to employ such nurses as they shall deem necessary. The duty thus reposed in the board is a quasi judicial power. The neglect of such duty does not entitle a party injured by such neglect to an action, so long as the officer is acting within, his jurisdiction and is not guilty of an invasion of private-rights, and is not acting from corrupt motives. Mechem on Public Offices and Officers, §§ 637, 639 et seq.; Amperse v. Winslow, 75 Mich. 234; Pawlowski v. Jenks, 115 Mich. 275. There is no charge in the declaration in this case that the defendants acted from corrupt motives. Upon the question whether an inquiry into motives is open in cases of this character there is a diversity of opinion. For a discussion of the subject, see Mechem on Public Offices and Officers, § 640. We are not in this case called upon to determine which line of cases should be followed, as the defendants’ motives are not alleged to be corrupt.

The point above decided determines the case.

Judgment affirmed.

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


text:
    PEOPLE v. McNAMARA.
    Highways and Streets — Obstruction — Municipal Corporations — Ordinances.
    There can be no conviction under a city ordinance for obstrucing an alley which there is no evidence to show was ever opened, used, or worked by the city authorities.
    Certiorari to recorder’s court of Detroit; Phelan, J.
    Submitted February 1, 1906.
    (Docket No. 89.)
    Decided February 26, 1906.
    Thomas F. McNamara and Robert McO. Hull were convicted of obstructing an alley, and each sentenced to pay a fine of $35.
    Reversed.

      John J. Speed, for appellants.
   Hooker, J.

The defendants were convicted of obstructing an alley in the city of Detroit, under a city ordinance, and have brought certiorari upon the judgment pronounced upon such conviction.

Certain lots were purchased upon land contract by defendant Thomas McNamara, on an addition to the city, which had been platted; the plat having been subsequently approved by the board of public works, upon the recommendation of the city council. At the time of the purchase a brick building stood partly upon the lots, and extended more than half way across the alley. McNamara and wife subsequently went into possession (and still occupy the premises) under the contract, and erected a shed in the rear of-the brick building, which shed extended across the alleged alley. The contract was afterwards surrendered to the vendor, who, at McNamara’s request, conveyed the lots to Hull, and they are held by him as security for a debt; the premises to be conveyed by him to the McNamaras on payment of an amount due him. Prior to the arrest a cross-walk and culvert were made on the north side of Medbury avenue, opposite the end of the alley as platted. All of the testimony was returned, and the foregoing statement embraces all of the facts shown. There was no evidence that the alley was ever opened, used, or worked by the city authorities. Counsel for the prosecution have not filed a brief, and we have no means of knowing their view of the case, which appears to be within the rule laid down in Jackson v. People, 9 Mich. 111, and People v. Manufacturing Co., 141 Mich. 455.

The judgment is reversed, and a new trial ordered.

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


text:
    ATTORNEY GENERAL v. STATE BOARD OF ASSESSORS.
    1. Taxation — Uniformity — State Board of Assessors — Statute — Constitutionality.
    Section 11, art. 14, of the Constitution, provides the manner of ascertaining the average rate of taxation upon the general property of the State, and in so far as Act No. 282, Pub. Acts 1905, undertakes to repose.in the board of assessors the right to ascertain and determine from other sources than the assessments actually made the amount at which the property of the State should be assessed, and to use such estimate as a divisor in ascertaining the rate of tax to be assessed upon the property assessed by the board of assessors, it is in conflict with the Constitution and void.
    2. Constitutional Law — Legislative Powers — Limitations.
    The legislature has power to adopt a statute except as it is prohibited by the Constitution.
    3. Same — Validity of Statute — Effect of Doubt.
    A statute will not be declared in conflict with the Constitution while serious doubt exists as to such conflict.
    4. Same — Canons of Construction — Natural Significance of Words.
    In all cases where a constitutional provision is to be interpreted, the first resort is to the natural signification of the words employed in the order and grammatical arrangement in which the framers of the instrument have placed them; and if, thus regarded, the words used convey a definite meaning, which involves no absurdity and no contradiction between different parts of the same writing, then the meaning apparent on the face of the instrument is the one which alone the court is at liberty to say was intended to be conveyed.
    Mandamus by John E. Bird, attorney general, to compel the State board of assessors to make an assessment against the property assessed by it at the rate determined by the assessed value of other property in the State. Certain railroad companies intervening.
    Submitted February 9, 1906.
    (Docket No. 224.)
    Writ granted February 26, 1906.

      At the session of 1905 the legislature, by Act No. 282, Pub. Acts 1905, provided for the assessment of the property of railroad, express, sleeping car, and other companies, in pursuance of section 11 of article 14 of the Constitution, as amended, and provided in substance that the rate at which such property should be taxed should be determined by the State board of assessors by dividing the aggregate amount of ad valorem taxes levied upon other property in the State by the aggregate true cash value of said other property as determined by said board; and that the true cash value should be determined upon such information as may be obtained by the board as members of the board of State tax commissioners, or from any other source, according to their best knowledge and judgment.
    Acting under this statute, the board, in January of the present year, ascertained and determined the rate to be $0.0146+ on the dollar. This rate was ascertained by dividing the total of taxes assessed against other property by the sum of $1,875,000,000, which said sum the board determined to their best knowledge and judgment to be the total of the true cash value of all the other taxable property in the State. The assessed value of all such other property in the State was $1,574,422,770.
    The attorney general files this petition for mandamus to require the respondents to make the assessment at a rate to be determined by dividing the taxes actually levied, by the value of the property as it was actually assessed in the various municipalities of the State.

      Henry E. Chase, Charles W. McGill, George S. Law,, and Thomas Ambrose Lawler, for relator.

      Horace M. Oren, for respondent.

      Benton Hanchett, Ashley Pond, Henry Bussel, and O. E. Butterfield, for interveners.
   Montgomery, J.

{after stating the facts). The contention of the attorney general is that section 11 of article 14 of the Constitution provides the manner of ascertaining the average rate of taxation, and that, in so far as Act No. 282 of the Public Acts of, 1905 undertakes to repose in the board of assessors the right to ascertain and determine from other sources than the assessments actually made the amount at which the property of the State should be assessed, and to use such estimate as a divisor, it is in conflict with the provisions of the Constitution, and is void. On the part of the intervening railroad companies, it is contended that the Constitution does not provide a method of ascertaining the rate to the exclusion of legislative power, and does not forbid the legislature from providing for ascertaining the true basis; that it does not prescribe what shall be the evidence upon which the determination of the State board of assessors shall be made, nor the means to employ in such determination; that it does contemplate that they are to ascertain and determine the rate of taxation which is in fact levied upon other properties at their cash valuation. This argument is based upon other constitutional provisions, which provide that property shall be assessed at its true cash value.

Counsel representing the board of assessors goes still further in his contention, and urges that by the terms of the constitutional provision itself, providing for assessment of properties assessed by the State board of assessors, the power is conferred upon such board to determine, according to their best judgment, what the average rate levied upon other property of the State may be. It is strenuously argued that it appears by the action of this board, and otherwise, that, as a matter of fact, other property in this State is not assessed by local assessors at its full cash value, and that such inequality of assessment is taken notice of by the constitutional provision that once in five years there shall be an equalization between counties by a State board of equalization, and by the legislation which has existed for many years providing for équalization between the townships and wards in a county.

It is not to be denied that the history of the State has shown in the past many attempts to evade the constitutional provision for taxation of property at its full cash value. Nor is it intended to imply that, if the corrective was intended to be conferred by this constitutional provi-' sion upon the State board of assessors, they have acted unreasonably or improperly. Indeed, it may be said that with the statute in question before them, prima facie valid, it called for their action along the lines which they followed and for their ascertainment, according to their best judgment, of the real assessable value of the property of the State. But, fully realizing that the question of the policy of this provision of the Constitution is not a controlling question, we address ourselves to the question: What is that provision ? It reads as follows:

“The legislature shall provide a uniform rule of taxation, except on property paying specific taxes, and taxes shall be levied on such property as shall be prescribed by law: Provided, That the legislature shall provide an uniform rule of taxation for such property as shall be assessed by a State board of assessors, and the rate of taxation on such property shall be the rate which the State board of assessors shall ascertain and determine is the average rate levied upon other property upon which ad valorem taxes are assessed for State, county, township, school and municipal purposes.” Section 11, art. 14, Const, of Mich., as amended.

But two principles of construction need be referred to, both of which are well settled in this State. The first is that the legislature has power to adopt a statute, except as it is prohibited by the Constitution (Smith v. Railway Co., 114 Mich. 460); and that a statute will not be declared in conflict with the Constitution while serious doubt exists as to such conflict. The other principle is that the first resort, in all cases where a constitutional provision is to be interpreted, is to the natural signification of the words employed in the order and grammatical arrangement in which the framers of the instrument have placed them; and, if thus regarded, the words used convey a definite meaning, which involves no absurdity and no contradiction between different parts of the same writing, then the meaning apparent on the face of the instrument is the one which alone we are at liberty to say was intended to be conveyed. In such cases thero is no room for construction. Cooley on Constitutional Limitations (5th Ed.), pp. 69, 70.

Notwithstanding the able argument of counsel for the board, and the able and elaborate briefs of counsel for the intervening railroad companies, we are satisfied that this constitutional provision is well within the rule last cited. There is little room for construction. The important words are:

“ The rate of taxation on such property shall be the rate which the State board of assessors shall ascertain and determine is the average rate levied upon other property upon which ad valorem taxes are assessed for State, county, township, school and municipal purposes.”

It is very clear that this excludes all idea that provision might be made for ascertaining an average rate by taking account of property upon yhich no taxes are assessed. To do so would be to do violence to the language employed. Let the language be again repeated, with words in parenthesis which emphasize rather than indicate the meaning of the language employed:

“The rate of taxation on such property shall be the rate which the State board of assessors shall ascertain and determine is the average rate (actually) levied upon other property upon which ad valorem taxes are (in fact) assessed for State, county, township, school and municipal purposes.”

As was said in the case of the Board of Education of Detroit v. State Board of Assessors, 133 Mich. 116:

“We think the clear intent and purpose of this provision is that the rate which is actually levied upon property actually assessed is the rate contemplated by the language employed. This constitutional provision cannot' be segregated from other provisions relating to the subject of taxation. Construed in the manner above indicated, it is in entire accord with our whole system of taxation, which is not only that railroad property, but that all other property, shall be assessed at its cash value, and that all classes o£ property shall bear the burden of taxation equally. ”

It is true that certain provisions of the Constitution and of the statute may be construed as implying that it is not expected that exact equality will be attained by assessment. Nevertheless, the Constitution does provide for assessment at cash value. The statutes provide by whom the assessment shall be made, and, as to certain of the assessments, they are of necessity made by local officers, and there is no inharmony between the amended section 11 and section 12, article 14, which provides for the assessment of property at its cash value. But, if the view taken by the board of assessors was to prevail, it would follow that, so far from correcting the wrong under which the individual taxpayer whose property is assessed at its full value suffers from the undervaluation as compared with other property; his grievance would be increased by the attempt to provide as a divisor a fictitious sum not actually assessed, but which should have been assessed according to the judgment of the assessing board. This would clearly render the provision inharmonious, and is a construction not to be adopted, unless it may be fairly said that the language employed is susceptible to that construction. But, in the view of the writer, the question is not an intricate or difficult one. The language employed in this amendment is plain, clear English. It requires no interpretation . It expressly provides for a rate which is to be determined to be the rate iemedupon other property upon which ad valorem taxes are assessed.

The writ of mandamus will be^granted, as prayed.

McAlvay, Grant, Ostrander, and Hooker, JJ., concurred. i


author: Moore, J.

text:
    PETERSON v. ST. CLAIR CIRCUIT JUDGE.
    1. Venue — Right to Change — Waiver.
    A defendant, who has a right under the statute (Act No. 309, Pub. Acts 1905) to a change of venue, does not waive it by delaying his motion until the day the case is set for trial pursuant to a stipulation that it might be set for trial as the first case of the term.
    3. Constitutional Law — Validity op Statutes — Policy of the Law.
    The wisdom of legislation is a question for the legislature, not the courts.
    3. Statutes — Construction—Presumption—Adoption from Sister State.
    Where the legislature adopts a statute from another State which has been construed by the courts of that State, it will be presumed the legislature had that construction in mind when it adopted the statute.
    4. Venue — Change—Application—Notice.
    An application for change of venue, under Act No. 309, Pub. Acts 1905, is properly denied where no notice is given as provided for motions generally by Circuit Court Rule 19 c.
    Mandamus' by Norris C. Peterson to compel Eugene F. Law, circuit judge of St. Clair county, to vacate an order denying a change of venue.
    Submitted January 30, 1906.
    (Calendar No. 21,529.)
    Writ denied February 27, 1906.

      Moore & Brown (Avery & Walsh, of counsel), for relator.

      A. E. Chadwick, James L. Coe and J. B. Mcllwain, for respondent.
   Moore, J.

This case was commenced by writ of capias. The case was upon the April, 1905, and October, 1905, docket. In Deceinber a stipulation was entered into continuing the case over the term, and agreeing that it might be set for the first case in the January term. The January term commenced January 2d, but a jury was not required to be in attendance until Monday afternoon, January 8th. When the case was called on the afternoon of January 8th, a motion for change of venue was made. This motion was in the language of the statute, and also was supported by an affidavit showing the reason why the motion was not made earlier was because the defendant did not know or learn that a necessity for the motion existed until the day he caused the motion to be made. The motion came on to be heard immediately, and the only prior notice given to the attorneys for the plaintiff was an oral notification in the morning of the same day, given to both the judge and the attorney for plaintiff, that such a motion was to be made. The circuit judge denied the motion. The case was adjourned until the following morning, when the parties proceeded to draw a jury. The jury were sworn. In the meantime an application was made to this court for a writ of mandamus and a stay of proceedings. An order to show cause and a stay of proceedings were granted.

The main question in the case is whether this motion is too late, and whether the defendant has waived his right to make the motion by the agreement to set the case for trial. In many respects the case is parallel with the case of Preston Nat. Bank v. Wayne Circuit Judge, 142 Mich. 272. In that case the question of waiver was before the court, and, though it was not discussed in the opinion, it wás considered and passed upon.

The wisdom of this legislation is a question, not for the court, but for the legislature, which has deemed it wise to enact the statute. This statute has been construed by a sister State, and it may be presumed the legislature had that construction in mind when it enacted the law. See Cory v. Silcox, 5 Ind. 372; Shaw v. Hamilton, 10 Ind. 182; Rout v. Ninde, 118 Ind. 124; Louisville, etc., R. Co. v. Martin, 17 Ind. App. 679. See, also, Moore v. Sargent, 112 Ind. 484. As to the effect of what is claimed to be a waiver where the right to a change of venue is given, see Pack v. Alcona Circuit Judge, 74 Mich. 28.

One other question remains for consideration; and that is, Should notice of this motion have been given under the rule ? The circuit judge gave as one of his reasons for denying the motion that notice had not been given. He also returns that counsel did not ask for or obtain any order for short notice and service.

Counsel for relator contend that, as the statute fixes no time when the motion must be made, the case does not come within the rule. The legislature has given to the court the right to prescribe rules of practice. The statute (Act No. 309, Pub. Acts 1905) requires an application to the court before a change of venue can be ordered. Subdivision b, Circuit Court Rule 19, provides that notices of the argument of certain motions shall be given and the length of time which should intervene. We can see no good reason why it should not be held that the application required by the statute comes within the rule. See Moulder v. Kempff, 115 Ind. 459. This question was not raised in Preston Nat. Bank v. Wayne Circuit Judge, supra. A four days’ notice of hearing was given in that case.

For the reason stated, the application is denied.

McAlvay, Grant, Ostrander, and Hooker, JJ., concurred.


author: Per Curiam.

text:
    PALDI v. CADY.
    Boundaries — Ascertainment — County Surveyor — Services— Lien — Statutes—Application.
    Act No. 248, Pub. Acts 1899, and section 2627, 1 Comp. Laws, creating a lien on lands in favor of tbe county surveyor for his services in locating the boundaries thereof, have no application to lands situated within the limits of an incorporated city.
    Certiorari to St. Clair; Law, J.
    Submitted January 1?, 1905.
    (Calendar No. 20,835.)
    Decided March 5, 1906.
    Mandamus by Justin L. Paldi, county surveyor, to compel Ervin A. Cady, controller of the city of Port Huron, to assess the amount due relator for services as surveyor upon certain land. There was an order denying the writ, and relator brings certiorari.
    Affirmed.

      Cyrus A. Hovey, for relator.

      Joseph Walsh, for respondent.
   Per Curiam.

Relator, county surveyor of St. Clair county, at the request of certain property owners, established and located the corners and lines of their property situated in the city of Port Huron. These property owners refusing to pay for his services, relator requested respondent to assess the same upon the land surveyed. This respondent refused to do, and relator instituted these proceedings for the purpose of compelling him to do it. The trial court refused to issue the mandamus.

The single question involved here is whether Act No. 348 of the Public Acts of 1899, which requires “the supervisor of the proper township ” to assess pay for such services “upon the lands so surveyed,” has any applicaiion to land situated within the limits of a city. Act No. 248 of the Public Acts of 1899 amends (by adding a new section to be known as section 105a) chapter 85 of the Compiled Laws of 1897. In determining its meaning, the act should be construed in connection with section 105 of the amended chapter (section 2627,1 Comp. Laws). That section reads:

“Whenever the majority of the resident owners of any section or part or parts of any section of land in this State, after having given at least ten days’ notice to all other persons or their agents owning land in the same section, or part or parts of the section, as the case may be, who reside in the township, shall desire to have their corners •and lines, or any of them established, relocated or perpetuated, such surveyor shall proceed to make the required surveys and the expense thereof shall be borne by all the persons benefited in proportion to the amount of work done for each, to be determined by the surveyor, and if any person- thus benefited, whether a nonresident or otherwise, shall refuse or neglect to pay his share of such expense, such surveyor shall certify the same and to whom due, to the supervisor of the proper township, who shall assess it upon the land of such person to be collected and paid to the county treasurer in the same manner as Stató and county taxes; and paid by the said county treasurer on the order of the county surveyor.”

Construing the act in question in harmony with the foregoing section, it is clear that it does not extend to land situated within the limits of an incorporated city.

The trial court properly denied the mandamus, and his action should be affirmed.