text:
    ATKINSON v. JOHN E. DOHERTY & CO.
    Equity — Injunction—Cigar Label — Private Name and Likeness.
    Equity will not restrain the use of the name and. likeness of a deceased person as a label for a brand of cigars named after him, though offensive to the family of the deceased, so long as it does not amount to a libel.
    Appeal from Wayne; Donovan, J.
    Submitted May 10, 1899.
    Decided September 27, 1899.
    Bill by Lyda Atkinson against John E. Doherty & Company, a corporation, to restrain the use for advertising purposes of the name and likeness of her deceased husband. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Elliott Gr. Stevenson and Leo M. Butzel (O’Brien J. Atkinson, of counsel), for complainant.

      James H. Pound (Ward N. Choate and James Phelan, of counsel), for defendant.
   Hooker, J.

The late Col. John Atkinson.was a well-known lawyer and politician. After his death, the defendant, a manufacturer of cigars, brought out an article that it named the John Atkinson cigar, and sought to put it upon the market under a label bearing that name and a likeness of Col. John Atkinson. The widow of Col. Atkinson filed a bill to restrain this, and upon the hearing the circuit court made a decree dismissing the bill with costs, and the complainant has appealed.

As a rule, names are received at the hands of parents, —surnames by inheritance, and Christian names at their will. But this is not an invariable rule, for many names are adopted or assumed by those who bear them. But in neither case is the right to the use of a name exclusive'. A disreputable person or criminal may select the name of the most exemplary for his child, or for his horse or dog or monkey. We have never heard this questioned. No reason occurs to us for limiting the right to apply a name, though borne by another person, to animate objects. Why not a Jphn Atkinson wagon, as well as a John Atkinson Jones or horse or dog? Society understands this, and may be depended upon to make proper allowances in such cases; and although each individual member may, in his own case, suffer a feeling of humiliation when his own name or that of some beloved or respected friend is thus used, he will usually, in the case of another, regard it as a trifle. We feel sure that society would not think the less of Col. John Atkinson if cigars bearing his name were sold in the shops. Nor are his friends brought into disrepute thereby. So long as such use does not amount to a libel, we are of the opinion that Col. John Atkinson would himself be remediless, were he alive, and the same is true of his friends who survive.

It is urged in this case that the connection of the name with cigars wounds the feelings of the widow, and extreme and improbable illustrations of the possibilities of a rule which should permit the indiscriminate use of names of deceased persons are given. We appreciate the indelicacy of the man who should join the funeral procession of Col. John Atkinson in a carriage bearing the legend, “The Col. John Atkinson cigar,” and we can readily understand that it would annoy the friends of the deceased. The . sentiment which prompts the feeling of annoyance at such an act is aroused by any aspersion of the dead. It is natural and commendable, as are all recognitions of the proprieties of life; but it doe^not follow that such an act is an actionable wrong, or that equity will intervene by injunction to prevent it, though we are quite sure that the disapproval of society would ordinarily have the latter effect.

Stress is laid upon the fact that the picture of Col. John Atkinson is to be displayed upon this label. It is claimed that a man has no right to print and circulate pictures of another, except by his consent, or where, by reason of his celebrity, the public has an interest in him. This is a proposition of modern origin, and is said to have the support of some cases. We will examine the authorities that have been cited, and such as we have been able to find.

In the January, 1869, Law Register (volume 8, N. S. p. 1), is an article devoted to a discussion of “The Legal Regions of Photographs,” in which the writer expresses the opinion that if a photograph clandestinely taken, and representing its original in a ridiculous light, or publishing his personal defects, were uttered maliciously, to his damage, it would doubtless be a libel in all of the States, and particularly in those in which the old maxim, “The greater the truth, the greater the libel,” is still in force. That it would-be a libel, if a true picture, in States where the truth may be shown in defense, is not so clear as it may seem; but there is no want of harmony in the decisions upon the proposition that a picture may be libelous. The author mentions the case of an Austrian lady of rank who recovered damages from her photographer for selling copies of her photograph as that of some notorious woman in another city. He says, “What was the ground or the nature and extent of recovery we are not told;” and adds that, if no special damage were found, it could not be doubted that “her right to control the market of her own beauty could not have been denied her by any court, and that she must have recovered on the ground that that right had been infringed, if on no other.” We are at a loss to know just what is meant by this. If only that, having produced or caused to be produced a negative and photograph of herself, it was, like private writings, entitled to protection, it has the semblance of support by a number of cases. But if it is meant that no person has, without permission, the right to have or sell pictures of another, it is a different proposition, and we know of no case decided by a court of last resort that so holds.

In 1890 prominence was given to this subject by an article in 4 Harv. Law Bev. 193, entitled, “The Bight to Privacy,” in which the writers urge the “right to be let alone,” and the necessity for the protection of citizens against invasions of their domestic affairs through the newspaper, the camera, and numerous mechanical devices, “ which [they say] threaten to make good the prediction that ‘ what is whispered in the closet shall be proclaimed from the housetops.’ ” The right to privacy in a broader sense than before known to the common law is asserted. The article cites a number of cases, some of them relating to pictures, and criticises the courts for basing their decisions upon property or contract rights. These cases relate to letters, diaries, and other private writings, paintings, sculptures, music, etc. In this connection the case of Prince Albert v. Strange, 1 Macn. & G. 25, is cited, wherein the defendant was restrained from publishing some etchings made by their majesties, the king and queen. The burden of the article is to establish a right of privacy which shall be recognized and protected by the courts, and it is urged that “in such right, as in the right not to' be assaulted or beaten (i. e., the right to be let alone),” there inheres the quality of being owned or possessed; and, as that is the distinguishing attribute of property, there may be some propriety in speaking of those rights as property, though it is admitted that they bear little resemblance to what is ordinarily comprehended under that term. Notwithstanding the unanimity of the courts in resting the decisions adverted to upon property rights, the authors assert that “it is in reality not the principle of private property, but that of an inviolate personality.”

An examination of the article will show that authoritative decisions which support the theory advocated are wanting. Among them are several cases involving pictures: Prince Albert v. Strange, supra; Tuck v. Priester, L. R. 19 Q. B. Div. 629; Pollard v. Photographic Co., L. R. 40 Ch. Div. 345. But these are based upon property or contract rights, as these terms are .commonly understood. At the time of the writing of this article, the case of Manola v. Stevens was pending in a court at New York. An actress sought to restrain the publication of a picture of herself, taken surreptitiously while she was performing her role upon the stage. It was not contested, however, and we are not advised that it was reported. See New York Times of June 15, 18, 21, 1890. The Manola Case, and the article in the Harvard Law Review, were soon followed by another case. In June, 1892, the case of Schuyler v. Curtis, 64 Hun, 594, involving a preliminary injunction only, was decided in the First department of the supreme court of New York, affirming the decision of the district court, reported in 27 Abb. New Cas. 387. An unincorporated society, connected with which was Miss Susan B. Anthony, arranged to place a life-size statue of Mrs. G. L. Schuyler, to be designated “The Typical Philanthropist,” upon exhibition at the World’s Fair, soon thereafter to be held in Chicago. This was enjoined by her relatives, and upon a motion an opinion was written that goes the length for which the complainant’s counsel in this case contend. Schuyler v. Curtis, supra. The case was afterwards heard, and a decree in accordance with the prayer of the bill entered. See Schuyler v. Curtis, 30 Abb. New Cas. 376.

Meantime the case.of Marks v. Jaffa arose. This also was a New York case, and is reported in 26 N. Y. Supp. 908. The defendant devised the scheme of publishing in his newspaper a picture of two actors, with an invitation to the readers of the newspaper to vote, with a view to determining who was the more popular of the two. The complainant declined to consent, yet a publication was made, when the bill was filed to restrain it. The injunction was granted, apparently on the strength of Schuyler v. Curtis.

Another case arose before the final disposition of the Schuyler Case, viz., Corliss v. Walker, 57 Fed. 434. It was a bill filed in the federal circuit court of Massachusetts by the widow and children of Mr. Corliss, celebrated as the builder of the great engine exhibited at the Centennial Exposition held at Philadelphia, to restrain the publication of a biography and picture of himself. It was based distinctly upon the ground taken in the article published in the Harvard Law Review, viz., that it was an invasion of the right of privacy, and it was insisted that a court of equity should protect such right. Apparently the case of Schuyler v. Curtis, 27 Abb. New Cas. 387, was relied upon, for in the opinion it was said to be not in point, as it did not involve a publication. The court said, among other interesting things, that:

“In the first place, I cannot assent to the proposition that Mr. Corliss was a private character. He held himself out to the public as an inventor, and his reputation became world-wide. He was a public man, in the same sense as authors or artists are public men. It would be a remarkable exception to the liberty of the press if the lives of great inventors could not be given to the publicwithout their own consent while living, or the approval of their family when dead. But whether Mr. Corliss is to be regarded as a private or public character (a distinction often difficult to define) is not important in this case. Freedom of speech and of the press is secured by the Constitution of the United States and the constitutions of most of the States. This constitutional privilege implies a right to freely utter and publish whatever the citizen may please, and to be protected from any responsibility for so doing, except so far as such publication, by reason of its blasphemy, obscenity, or scandalous character, may be a public offense, or by its falsehood and malice may injuriously affect the standing, reputation, or pecuniary interests of individuals. Cooley, Const. Lim. (6th Ed.) 518. In other words, under our laws one can speak and publish what he desires, provided he commits no offense against public morals or private reputation. * * *
“There is another objection which meets us at the threshold of this case. The subject-matter of the jurisdiction of a court of equity is civil property, and injury to property, whether actual or prospective, is the foundation on which its jurisdiction rests. In re Sawyer, 124 U. S. 200, 210; Kerr, Inj. (2d Ed.) 1. It follows from this principle that a court of equity has no power to restrain a libelous publication. Boston Diatite Co. v. Florence Manfg. Co., 114 Mass. 69 (19 Am. Rep. 310); Brandreth v. Lance, 8 Paige, 24 (34 Am. Dec. 368). The opinion of Nice Chancellor Malins in Dixon v. Holden, L. R. 7 Eq. 488, to the contrary, is disapproved by Lord Chancellor Cairns in Prudential Assurance Co. v. Knott, 10 Ch. App. 142. In Kidd v. Horry, 28 Fed. 773, Mr. Justice Bradley, in speaking of Dixon v. Holden and several recent English cases, declares that they depend upon certain acts of parliament, and not on the general principle of equity jurisprudence. * * *
“As to the picture which accompanies the published sketch, the case stands on a different footing. The defendants obtained from the plaintiffs a copy of a portrait and a photograph of Mr. Corliss, from which they have made two plates, one of which they propose to insert in the publication. ■ But it appears from the evidence that these pictures were obtained on certain conditions, which the defendants have not complied with. This matter directly concerns the exclusive right of property which the plaintiffs have in the painting and photograph, and it would be a violation of confidence, or a breach of contract between the parties, to permit the defendants, under these circumstances, to use either of the plates. Pollard v. Photographic Co.,, L. R. 40 Ch. Div. 345; Prince Albert v. Strange, 1 Macn. & G. 25. The injunction is denied as to the publication, and granted as to the use of the plates. ”

Subsequently a motion to dissolve the injunction was granted upon the ground that the deceased was a public character, and the public entitled to use his picture. Colt, J., said:

“Independently of the question of contract, I believe the law to be that a private individual has a right to be protected in the representation of his portrait in any form; that this is a property as well ds a personal right; and that it belongs to the same class of rights which forbids the reproduction of a private manuscript or painting, or the publication of private letters, or of oral lectures delivered by a teacher to his class, or the revelation of the contents of a merchant’s books by a clerk. Duke of Queensberry v. Shebbeare, 2 Eden, 329; Gee v. Pritchard, 2 Swanst. 402; Folsom v. Marsh, 2 Story, 100; Abernethy v. Hutchinson, 3 Law J. Ch. (O. S.) 209; Caird v. Sime, 12 App. Cas. 326; Tipping v. Clarke, 2 Hare, 383, 393; Williams v. Assurance Co., 23 Beav. 338. In the case of Prince Albert v. Strange, 1 Macn. & G. 25, 2 De Gex & S. 652, this doctrine was extended so far as to prohibit the publication of a catalogue of private etchings. But, while the right of a private individual to prohibit the reproduction of his picture or photograph should be recognized and enforced, this right may be surrendered or dedicated to the public by the act of the individual, just the same as a private manuscript, book, or painting becomes (when not protected by copyright) public property by the act of publication. The distinction in the case of a picture or photograph lies, it seems to me, between public and private characters. A private individual should be protected against the publication of any portraiture of himself; but, where an individual becomes a public character, the caséis different. A statesman, author, artist, or inventor, who asks for and desires public recognition, may be said to have surrendered this right to the public. When any one obtains a picture or photograph of such a person, and there is no breach of contract or violation of confidence in the method by which it was obtained, he has the right to reproduce it, whether in a newspaper, magazine, or book. It would be' extending this right of protection too far to say that the general public can be prohibited from knowing the personal appearance of great public characters.” Corliss v. Walker, 64 Fed. 280.

We are loath to believe that the man who makes himself useful to mankind surrenders any right to privacy thereby, or that because he permits his picture to be published by one person, and for one purpose, he is forever thereafter precluded from' enjoying any of his rights. Just when a man becomes a benefactor of the public, so as to have this effect, is not stated; but we see no reason for so treating Mr. Corliss, to the exclusion of myriads of people who, in a modest but effective way, perform public duties, or philanthropic acts or functions in which the public are interested. We think the result reached in the Corliss Case was right, though we cannot (adopt the views expressed in the second opinion. See Corliss v. Walker, 31 L. R. A. 283, and note.

We will return to the case of Schuyler v. Curtis. In 1895 the court of appeals reversed the decree. See 147 N. Y. 434 (31 L. R. A. 286, 49 Am. St. Rep. 671). It was there held (Mr. Justice Peckham writing the opinion, in which all concurred except Mr. Justice Gray) that “a woman’s right of privacy, in so far as it includes the right to prevent the public from making pictures, busts, or statues of her to commemorate her worth or services, does not survive her, so that it can be enforced by her relatives.” ,The decision was put upon the ground that the proposed act could not reasonably be supposed to injure the feelings of any one. The case does not dispose of the existence of the alleged actionable “right of privacy,” but, upon the theory of such a right, finds that the plaintiff had not established a case for the intervention of equity; and we think it should not be considered as containing even a dictum in support of the doctrine contended for.

In April, 1894, a case was decided involving pictures, viz., Murray v. Engraving Co., 31 Abb. New Gas. 266. It was held that:

“A parent cannot maintain an action to enjoin the unauthorized publication of the portrait of an infant child, and for damages for injury to his sensibilities caused by the invasion of his child’s privacy; for the law takes no cognizance of a sentimental injury, independent of a wrong to person or property. Nor can such suit he maintained upon the ground that the plaintiff had caused the portrait to be painted, and that the publication is an invasion of his proprietary rights, where it appears that he had given the portrait to his wife.”

A full and learned discussion of the authorities relating to the right of recovery for an injury to feelings is found in the case of Chapman v. Telegraph Co., 88 Ga. 763 (30 Am. St. Rep. 183), Mr. Justice Lumpkin writing the opinion. * It is not our purpose to quote at length from the opinion, which can as well be read. In discussing the Texas rule, which permits such actions, the learned jurist shows how the law may be made uncertain by adopting the opinions of law writers which have not the authority of adjudicated cases behind them. There is perhaps no more dangerous practice than that, unless it be the kindred one of basing a legal principle upon a dictum. The opinion of Mr. Justice Lumpkin contains the most convincing discussion of this subject that we have seen.

In volume 24 of the Solicitors’ Journal & Reporter (page 4) will be found an article which indicates that in England it was found necessary to protect the right to control photograph pictures by statute, for the reason that the common law did not afford such protection.

We may search the law books published before 1860 in vain for the assertion of any such right as that claimed, or the denial of the right to publish the truth, for any lawful purpose and in a decent manner, either orally, in writing, or by pictures. What is a picture ? It is one of the ways of representing a person or thing. It attempts imitation, rather than description. Pictures antedated letters, and their use was probably one of the earliest methods of communicating thought and perpetuating events. Pantomime and pictures are intelligible to all people, while the same cannot be said of written or even spoken language. This generation owes much to the picture-writing of the ancient Egyptian priests. It is a pleasure to look upon a picture, but it is not alone because it is the picture of a friend. Crowds travel far to see men of celebrity or notoriety. We learn of places and things from pictures. They impart information to those who cannot or will not read, and many times more rapidly and effectually than written description would do to those who can and will. The picture is today an important extension of alphabets, which for a time largely superseded their use; and, if written language were to be deprived of their aid, literature would receive a serious blow. When it can be used, the picture is a much more satisfactory method than the use of the alphabet alone, of conveying an understanding of material objects, animate and inanimate. We are not satisfied that the homes and landscapes are so entirely within the control of owners that one commits an unlawful invasion of the right of privacy in looking upon their beauties, or by sketching or even photographing them, or that one has a right of action either for damages or to restrain the possessor of a camera from taking a snap shot at the passer-by for his own uses. If we admit the impertinence of the act, it must also be admitted that there are many impertinences which are not actionable, and which courts of equity will not restrain. As the right alleged is not a property right, and does not spring from any contract, it must follow that relief must be in an action for damages for a breach of duty upon an actionable wrong, or a suit to prevent a threatened injury. In either case such action must be based upon an act done or threatened which the. law looks upon as a tort; and, if the act complained of is one which is not in the law denominated a wrong, there is no legal remedy.

All men are not possessed of the same delicacy of feeling, or the same consideration for the feelings of others. These things depend greatly upon the disposition and education. Some men are sensitive, some brutal. The former will suffer keenly from an act or a word that will not affect the latter. Manifestly, the law cannot make a right of action depend upon the intent of the alleged wrong-doer, or upon the sensitiveness of another. Although injuries to feelings are recognized as a ground for increasing damages, the law has never given a right of action for an injury to feelings merely. Slander and libel are based upon an injury to reputation, not the feelings ; and although many offensive things • may be said that injure feelings and shock and violate the moral sense, even though they be untruthful, they are not necessarily actionable. To make them so, they must be of such an atrocious character that the law will presume an injury to reputation,' or special damage to property interests must be alleged and proved. What becomes of the innumerable cases of ill-natured and perhaps insulting and immoral things that may be said about persons? The answer is that in an enlightened effort to preserve the liberties of men, upon the one hand, and to prevent invasion of their liberties, upon the other, it has been found that a line of demarkation must be drawn, which affords a practical balance and satisfactory test of liability. Mr. Bishop, by his “Diagram of Crime,” has made plain the fact that there are many wrongs against the public that are not indictable, because too small for the law to notice. 1 Bish. Cr. Law, § 600. The same is true of private wrongs. ITence, that which would be slanderous per se if said in the presence of a third person is not actionable if addressed to the object of the remark in private. The law does not discriminate between persons who are sensitive and those who are not, and the brutality of the remark makes no difference. Yet the alleged “right to privacy ” is invaded.

The wisdom of the law has been vindicated by experience. This “law of privacy” seems to have obtained"á foothold at one time in the history of our jurisprudence,— not by that name, it is true, but in effect. It is evidenced by the old maxim, “ The greater the truth, the greater the libel,” and the result has b.een the emphatic expression of public disapproval, by the emancipation of the press, and the establishment of freedom of speech, and the abolition in most of our States of the maxim quoted, by constitutional provisions; the limitation upon the exercise of these rights being the law .of slander and libel, whereby the publication of an untruth that can be presumed, or shown to the satisfaction, not of the plaintiff, but of others (i. e., an impartial jury), to be injurious, not alone to the feelings, but to the reputation, is actionable. Should it be thought that it is a hard rule that is applied in this case, it is only necessary to call attention to the fact that a ready remedy is to be found in legislation. We are not satisfied, however, that the rule is a hard one, and think that the concensus of opinion must be that the complainant contends for a much harder one. The law does not remedy all evils; it cannot, in the nature of things; and deliberation may well be used in considering the propriety of an innovation such as this case suggests.

We do not wish to be understood as belittling the complaint. We have no reason to doubt the feeling of annoyance alleged. Indeed, we sympathize with it, and marvel at the impertinence that does not respect it. We can only say that it is one of the ills that, under the law, cannot be redressed.

The decree of the learned circuit judge is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J. Montgomery, J.

license: Public Domain

text:
    HERRICK v. WIXOM.
    1. Evidence — Personal Injury — Statement as to Cause.
    In an action by one who was' injured by the explosion of a giant firecracker by defendant, one of plaintiff’s witnesses, testified that plaintiff said to witness, immediately after the explosion, that it had put his eye out. On defendant’s motion that the testimony be stricken out, plaintiff’s attorney said. “For the purposes of the case, it maybe sufficient to say that there was an exclamation of pain immediately following the explosion.” The statement as to the cause of the injury was thereupon stricken out. Held, that, while the evidence was admissible as part of the res gestee, the plaintiff, because of his counsel’s concession, was not in position to complain of its exclusion.
    2. Negligence — Injury to Trespasser — Liability.
    The fact that plaintiff forced his way into a show tent, where he was injured by the explosion of a giant firecracker in the course of the performance, will not preclude a recovery based _ on the proprietor’s negligence, since the duty of reasonable j care is owed even to trespassers when their presence is knownX

      ON REHEARING.
    1. Negligence — Assumption of Risk — Evidence.
    Evidence that plaintiff attended a previous performance in defendant’s show tent, where a giant firecracker was exN. ploded with no injurious consequences, is not admissible for ■ the purpose of showing that he assumed the risk on the occasion when he was injured.
    2. Personal Injuries — Evidence—-Intoxication oe Plaintiff.
    Evidence, in an action for personal injuries, that plaintiff was intoxicated at the time they were received, is admissible as part of the res gestee.

    3. Same — Damages.
    Evidence as to plaintiff’s intoxication on other occasions is admissible on the question of damages, as bearing on his earning capacity, but for no other purpose. Kingston v. Railway Go., 112 Mich. 40, followed.
    Error to Shiawassee; Dodds, J., presiding.
    Submitted June 7, 1899;
    decided September 27, 1899.
    Rehearing granted November 7, 1899'; second opinion, amplifying the foriher one, December 30, 1899.
    Case by Frank Herrick against Martin V. B. Wixom for personal injuries. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Dean & Hooker (John T. McCurdy, of counsel), for appellant.

      Watson fr Chapman, for appellee.
   Montgomery, J.

This is an action of trespass on the case, brought in the circuit court for the county of Shiawassee. Defendant was possessed of and managed a tent y oi circus, September 18, 1897, which he exhibited 1. . place to place, and on the afternoon of this day at Bancroft. Plaintiff went to the circus grounds on the afternoon of this day, in company with his cousin. There is testimony to show that while there he and his cousin wore invited by a son of the defendant.,who had been selling tickets in the ticket wagon, to enter the tent with him, the entertainment being in progress. This plaintiff did, taking a seat on the lower tier of seats. The testimony on the part of the defense tended to show that plaintiff was not invited into the show, and that the son of defendant had no authority to invite him in. There was also evidence that plaintiff had attended a similar exhibition given by defendant the spring before. A part or feature of the entertainment consisted in .the ignition and explosion of a giant firecracker attached to a pipe set in an upright position in one of the show rings. This was done by one of the clowns. There is testimony to show that plaintiff sat 30 or 40 feet from the place where the cracker was exploded, but, when the same was exploded, a part of the firecracker flew and struck plaintiff in the eye, putting it out, whereby he lost the sight and use of the eye. For this injury action was brought against defendant for damages as a regult of defendant’s negligence in permitting a dangerous explosive to be used in a dangerous manner, which subjected those present to hazard and risk of injury. Upon the trial of the cause a verdict of no cause of action was rendered, and judgment for the defendant entered accordingly. Plaintiff brings error.

1. Edward Hutchins was a witness for the plaintiff. He testified to the explosion, and that plaintiff sat right beside him at the time, and, in answer to the question, “As soon as you heard the explosion, what took place?” replied, “Mr. Herrick spoke to me and said, ‘Ed., that put my eye out.’ I looked over at him.” On motion of the defendant’s counsel, that portion of the statement of the plaintiff as to what it was that hurt him was struck out. Mr. Dean, counsel for the plaintiff, stated previous to this ruling, “For the purposes of the case, it maybe sufficient to say that there was an exclamation of pain immediately following the explosion.” In view of this statement, we do not think that plaintiff’s counsel are in position to complain that the statement as to the cause of the injury was struck out. In view of a new trial, we may say that we think the statement a part of the res gestae, and admissible.

2. The circuit judge charged the jury as follows:

“The negligence charged in this case, gentlemen, is that Mr. Wixom exploded a firecracker; of the dimensions that the plaintiff claims this firecracker was, in the inside of this tent, and in the presence of his audience. They claim that was negligence. And that is the question for you to determine, under the evidence, and under the rules of law that I have given you and that I shall give' you hereafter. Now, you must further find, in order that the plaintiff recover, that the plaintiff was in the tent, where he was injured, by the invitation of some person having authority to allow him to go in there. If he was a mere trespasser, who forced his way in, then the defendant owed him no duty that would enable him to recover under the declaration and proofs in this case; but, in connection with that, I call your attention to the claim made by defendant that the plaintiff was in a drunken condition at the time. If he was in a drunken condition, and he was invited there by some person connected with' the show who had authority to invite him,— that is, if Mr. Van Wixom invited him, and he had authority to invite him, knowing that he was intoxicated at the time, — then it would be the duty of the defendant to protect him while there by using ordinary care in managing his show; and in that case, if you find that he was drunk at that time, and that the defendant invited him in, or some person having authority, knowing him to be such, then it would make no difference whether he had seen the show previously, or what knowledge he had of previous exhibitions, with respect to the liability of defendant, because, if a man is invited into the show, and, when he goes in there, is in that condition, he is not capable of comprehending what is going on, and,if a dangerous explosive is used, from which he received an injury, you could not properly take into consideration that he had theretofore seen the same act in the same show, and therefore took the risk himself. But if you find, gentlemen, that this was a dangerous explosive, and that when it exploded it struck the plaintiff in the eye, and that he was rightfully there, by invitation, and that he was sober, and you further find that his own negligence or want of due care did not contribute to the injury, and that be did not have full knowledge of the danger that might result from such explosion, or, if he did, that he did not have sufficient time to place himself at a safe distance before he was struck, your verdict should be for the plaintiff. Now, gentlemen, that you may fully understand that: Supposing the plaintiff was sober, or in such a condition that he knew wrhat was going on; if he had full knowledge of the danger that he was in at the time; if he knew that an act was about to be performed, of which he had full knowledge of the danger there, and had time to leave' the place where he was and go to a safe place, and did not attempt to do so, — then the defendant would not be liable; but if he was in a drunken condition, and invited therq by the defendant himself, or by some person who had authority to invite him, whether he knew of it or had previously known of it would be no defense in this case. If a man takes a drunken man into his show, knowing him to be in that condition, and negligently injures him while he is there, he is liable for damages that may have occurred to the plaintiff.”

We think this instruction faulty, in so far as it was intended to preclude recovery in any event if the plaintiff was found to be a trespasser. It is true that a trespasser who suffers an injury because of a dangerous condition of premises is without remedy. But, where a trespasser is discovered upon the premises by the owner or occupant, he is not beyond the pale of the law, and any negligence resulting in injury will render the person guilty of negligence liable to respond in damages. Beach, Contrib. Neg. § 50; Whart. Neg. § 346; Marble v. Boss, 124 Mass. 44; Houston, etc., R. Co. v. Sympkins, 54 Tex. 615 (38 Am. Rep. 632); Brown v. Lynn, 31 Pa. St. 510 (72 Am. Dec. 768); Needham v. Railroad Co., 37 Cal. 409,; Davies v. Mann, 10 Mees. & W. 546; 1 Shear. & R. Neg. § 99. In this case the negligent act of the defendant’s servant was committed after the audience was made up. The presence of plaintiff was known, and the danger to him from a negligent act was also known. The' question of whether a dangerous experiment should be attempted in his presence, or whether an experiment should be conducted with due care and regard to his safety, cannot be made to depend upon whether he had forced himself into the tent. Every instinct of humanity revolts at such a suggestion.

For this error the judgment will be reversed, and a new trial ordered.

GRANT, C. J., Moore and Long, JJ., concurred. Hooker, J., did not sit.

ON REHEARING.

Montgomery, J.

An opinion in this case was handed down September 27th last. Ante, 385. A rehearing has been granted on the suggestion of counsel that two questions not considered in our former opinion are likely to arise on a new trial. These questions are: First, whether testimony that the plaintiif had attended a previous exhibition, at which a large firecracker was exploded, was admissible for the purpose of showing that plaintiff assumed the risk of such an explosion as took place; and, second, whether evidence showing the intoxication of the plaintiff on the occasion of the injury and on previous occasions was admissible.

1. The testimony that plaintiff was present at a former exhibition did not tend to show that any explosion of the firecracker which then took place was a dangerous one.. No injury occurred on this occasion. The plaintiff and all others attending the performance had the right to assume that the defendant would exercise due care, proportioned to the consequences which would be likely to arise from a failure in its exercise, to provide against dangerous explosions. The fact that a previous explosion, which had no injurious consequences, had been witnessed by plaintiff, does not justify the inference that the plaintiff had reason to anticipate injurious consequences on the occasion in question. On the contrary, the plaintiff still had the right to assume that the defendant would use such care as the law casts upon him to see that the appliances used were reasonably safe.

2. The testimony as to plaintiff’s intoxication at the time of the injury was competent as part of the res gestee. Williams v. Edmunds, 75 Mich. 92. The testimony as to his intoxication on other occasions was admissible as bearing on the question of his capacity to earn money, but for no other purpose. Kingston v. Railway Co., 112 Mich. 40, 45 (40 L. R. A. 131).

Grant, C. J., Moore and Long, JJ., concurred. Hooker, J., did not sit.


author: MONTGOMERY, J.

text:
    BURT v. STAFFELD.
    1. Negligence — Coasting Across Highway —Collision with Pedesteian — Question for Jury.
    While it is not negligence per se to coast on a public street (Burford v. City of Grand Rapids, 53 Mich. 98 ), it is a question for the jury whether or not defendants in a given casa were guilty of negligence in coasting across a highway at such a rate of speed as prevented their so controlling their course as to avoid collision with pedestrians.
    2. Same — Contributory Negligence.
    A pedestrian is not guilty, as a matter of law, of contributory negligence, precluding a recovery for injuries received in a collision with a coaster, in attempting to cross at night a dark, icy street upon which she knows coasting is practiced, even though there is no evidence that she looked in the direction of the approaching coaster, where there is nothing to show that she knew that the coasting was at a rate of speed that rendered the coasters uncontrollable; the question of her negligence under such circumstances being for the jury.
    Error to Ionia; Davis, J.
    Submitted June 8,1899.
    Decided September 27, 1899.
    Case by Theresa M. Burt against Paul Staffeld and others for personal injuries. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Reversed.»

      B. A. Hawley, for appellant.

      V. H. & H. H. Smith, for appellees.
   MONTGOMERY, J.

The plaintiff, while crossing Yeomans street, -in the city of Ionia, on the 15th day of February, 1897, was injured by collision with a coasting sled on which defendants were coasting. ■ She brings this action, alleging that the defendants were guilty of negligence. At the conclusion of the evidence for the plaintiff, the circuit judge directed a verdict for defendants, on the ground that the plaintiff was not herself in the exercise of due care. The plaintiff brings error.

In Burford v. City of Grand Rapids, 53 Mich. 98 (51 Am. Rep. 105), it was held that it was not negligence per se to coast on a public street; that the sport is not entirely foreign to the purposes for which public ways are established. It was also said in the case that:

“Any person making use of the public highways must use them with care, and must have due regard to the rights of others. Those having occasion to use them for the customary purposes of travel and passage have the first right, and their use must not be obstructed, except under circumstances that are quite exceptional, and that make out a clear excuse.”

In the present case we think it was clearly a question for the jury as to whether the defendants were negligent in coasting at such a rate of speed as prevented their having their sled under such control as to prevent collision with pedestrians, and as to whether they gave timely warning. There was evidence that the coaster had attained a very high rate of speed, and it was a fair question for the jury as to whether proper control of the same was possible.

The question of plaintiff’s care is one of more difficulty, but we are all of the opinion, that, under the proofs, this was also a question for the jury. It appears that the plaintiff knew that coasting had been and was being practiced on the street, and undoubtedly this fact may and should be considered by the jury in determining whether she was duly careful in approaching the place where she received her injuries. The evidence does not show that she looked up the hill, and it is fairly inferable that, had she looked, her vision would have been substantially unobstructed for a considerable distance; but, on the other hand, it appeared that the street was icy, that there was no artificial light, and that the collision occurred in the evening. It does not appear that she had any knowledge that the coaster would be uncontrollable. We think it was for the jury to say whether she was negligent. The same degree of care is not required of a person about to cross a street as is required of a person about to cross a railroad. Eaton v. Cripps, 94 Iowa, 176. And it is generally held that the mere failure of a pedestrian to look and listen for teams as he is passing over a crossing is not necessarily such negligence as will prevent recovery if he is run over by a passing team. Murphy v. Transfer Co., 167 Mass. 199, and cases cited; Moebus v. Herrmann, 108 N. Y. 349 (2 Am. St. Rep. 440). We think it should be left for the jury to decide whether, in view of the knowledge which plaintiff had, she exercised such care as a reasonably prudent person would under like circumstances.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


text:
    SMITH v. JENNINGS.
    1. PARTNERSHIP — EVIDENCE.
    In an action by an assignee of labor claims to hold J. and H. liable as partners with 0., the president of a corporation, ■ where the issue was whether the corporation, after acquiring its mill, had contracted with J. and H., neither of whom was a corporator, to manufacture scrap into malleable iron for them at a certain price per ton, or whether they and C. undertook to conduct the business as copartners, the admission of testimony concerning the organization of the corporation, and showing that its capital stock was not paid in, was reversible error.

      2. Trial — Arguments or Counsel — Appeals to Prejudice.
    In an action to enforce labor claims, where the only issue related to defendants’ having a proprietary interest in the work . for which plaintiffs were hired, a studied and persistent effort on the part of counsel to arouse the sympathies and prejudices of the jury by characterizing plaintiffs’ homes as homes of extreme poverty (of which there was no proof), and the defendants as a gang of Shylocks, come from a foreign State to rob workingmen of their wages, requires the reversal of a judgment in favor of plaintiffs..
    3. Contracts — Disputed Terms — Evidence.
    As bearing'on the question of the probability of a disputed contract to manufacture iron at a stated price per ton having been made, testimony tending to show that the actual cost of manufacture was considerably more than the price stated is admissible.
    Error to Muskegon; Russell, J.
    Submitted June 9, 1899.
    Decided September 27, 1899.

      Assumpsit by William J. Smith against Edwin B. Jennings, David M. Hillis, and Edward P. Caldwell, co-partners as the Consolidated Rail-Joint Company, on certain assigned labor claims. Prom a judgment for plaintiff, defendants Jennings and Hillis bring error.
    Reversed.

      Smith, Nims, Hoyt & Erwin, for appellants.

      F. W. Cook (J. C. McLaughlin, of counsel), for appellee.
   MONTGOMERY, J.

The declaration charges that the three defendants were, at the date of incurring the indebtedness which is the subject of the action, copartners in business under the name of the Consolidated Rail-Joint Company. The plaintiff is the assignee of a number of claims for labor. That the services charged for were rendered, appears not to have been disputed. The defense consisted of a denial of the alleged copartnership. The plaintiff relied chiefly on the testimony of defendant Caldwell to establish the fact of partnership. The appealing defendants denied the partnership, and gave testimony to show that the Consolidated Rail-Joint Company was a corporation organized under the laws of Illinois, with the defendant Caldwell the owner of substantially all of its stock; that, prior to any arrangement between the parties, the Consolidated Rail-Joint Company had acquired the rolling mill at Muskegon, or a right to it, and had arranged with the Muskegon Chamber of Commerce to receive a sum by way of a bonus for the operation of the mill; that he then applied to defendants Jennings and Hillis for assistance in carrying on the business. Up to this point the testimony is agreed. The case turns upon what agreement was then made. Caldwell testifies to an agreement for a joint venture, sharing profits and losses. Defendants Jennings and Hillis testify that the agreement was that Jennings should stock the mill with scrap, and that Caldwell, or the rail-joint company, should manufacture the same, and receive compensation by the ton. The two theories were submitted to the jury, who found for the plaintiff, and defendants bring error.

A large number of errors are assigned on admission of testimony. We shall refer to only such rulings as seem likely to arise on a new trial. The plaintiff was permitted to go into tho question of the organization of the Consolidated Rail-Joint Company, and to show that the capital stock was not paid in. There was no question that such a corporation de facto existed, and it appeared that Caldwell assumed to act as its president; that he had made the contract with Mr. Hackley for the plant in the name of the corporation, signing it as president. The question is, therefore, whether the corporation contracted with Jennings to manufacture the scrap into malleable iron, or whether the three defendants undertook as copartners to conduct the business. We do not think the inquiry into the antecedents of the corporation or the names of its originators had any legitimate bearing on the question. It was not claimed that either of the defendants Jennings or Hillis was a corporator. It is urged that this testimony was admissible as tending to show the improbability of defendant Jennings contracting with a corporation so organized.. We think it had no such legitimate tendency, but introduced a collateral issue, which was calculated to prejudice the jury, particularly when it appears that the use made of this testimony was to impress upon the jury that judgment should pass against a responsible' party, rather than a corporation so organized, without much regard to the question of whether the credit was given to the corporation or defendants. Busch v. Pollock, 41 Mich. 64; Howard v. Patrick, 43 Mich. 121.

The counsel for the plaintiff used the following language in his address to the jury, which was duly excepted to:

“Frescoed wind; and still that was the kind of a concern Mr. Hillis run Jennings in; that was the kind of a concern he was trying to run Hugh Heron in. 'Now, that is the way they tried to do business over here, gentlemen, without a dollar in the world. They say that is the corporation that is responsible to these laboring men. We, we have bought our scrap, and we have got our interest on it, — the money invested; we own the scrap; we own the iron; we own the earth; we own the laboring men, because we have got all they had.
“Mr. Hoyt: An exception.
“How nice that sounds, — ‘Exception!’ He has got a perfect right to take it to every sentence. I wish he would take them twice. Gentlemen, that i$ the echo of the dollars over there. That is not the echo of the hours of weary toil performed down there upon that iron by these plaintiffs in this case, — not by Mr. Smith, but by the men who transferred their claims to him, they not being able to carry on lawsuits, perhaps; or, more than that, a multitude of suits of that kind couldn’t be maintained in court very well. That is not the voice you hear coming up from an humble cottage. That is not the voice of a mother and a babe who today throughout this city and around the country are suffering because of the cupidity of these men. It is a different voice and a different wail you would hear, it would be a different sight you would see, if you could enter some of these humble cottages, deprived of the husband’s and the father’s pay for the month of December and down to the 5th of January. I tell you if you would go down to the Eighth wai’d, and see the fathers and the mothers that labored during the month of December and the beginning of January, see the little ragged children there that are today suffering simply through the trickery and cupidity of these men, your hearts would bleed with pity. You would not let these men carry that iron back to Chicago, and escape scot-free from paying the men who made the .iron. If there are any doubts about this thing, you will solve it in their favor. * * * It is an important question. It is an important question to every laboring man throughout Western Michigan, whether a gang of Shylocks can come over from Chicago, put their money, in a small amount, into a venture, engage the services of our men here, and then, when the product has been manufactured by the stern reality of labor, if they can ship it out of Muskegon, and rob the workingmen of this place. It is important to every business man whether this class of people here can come from Chicago, or any other place, and start a business, contract debts, and then slip over the water' without paying it. That is what this suit means. It is not the suit of Mr. Caldwell against Jennings and Hillis. It is the suit of toilers against capital. It is a suit brought for the purpose of enforcing that axiom that I speak of ‘ — that the laborer is worthy of his hire.”

We do not hesitate to say that this case should be reversed because of this language, independent of the question of whether this testimony was properly admitted. We have frequently attempted to point out to counsel the impropriety of appeals to the prejudice of juries, such as appears in these extracts; and whenever it is reasonably apparent that the result was probably affected by an appeal to the prejudices against race or nationality, as in the case of Gluett v. Rosenthal, 100 Mich. 193 (43 Am. St.' Rep. 446), or by studied and persistent effort to induce the jury to favor a resident as against a nonresident, we cannot permit a verdict won by such tactics to stand. We have repeatedly said that it is not the province of this court to interfere with legitimate arguments of counsel, and that in any case we may allow something for zeal. Counsél may, acting on their own judgment as to propriety and good taste, discuss the character of witnesses, the proba • bility of the truth of testimony given on the stand, and may, when there is any reasonable basis for it, characterize testimony. All these things may constitute legitimate argument. But no lawyer understands that poverty in the plaintiff’s, home (of which there is no proof) has any bearing on the question of which one of two contractors agreed to pay him for services performed, or that it is the especial duty of the jurors to stand by their neighbors in a suit against nonresidents. When the attempt is to secure a verdict by such appeals to such prejudice, ingenious attempts to veil the effort cannot avail to prevent the court from refusing the fruits of such efforts to the party whose attorney has attempted to obscure the real issue.

It was the claim of defendants that a contract to manufacture merchantable iron from scraps had been made at six dollars per ton. The plaintiff’s testimony was opposed to this. As bearing on the question of probability, plaintiff offered testimony to show that the actual cost of manufacturing was considerably more than the price stated. We think no error was committed in admitting this testimony. While it was not of great value, it had some bearing on the question. Campau v. Moran, 31 Mich. 280; Richardson v. McGoldrick, 43 Mich. 476; Misner v. Darling, 44 Mich. 438; Banghart v. Hyde, 94 Mich. 49.

It is contended by defendants’ counsel that the court erred in refusing to grant a new trial on the ground that the verdict was clearly against the weight of the evidence. As the case must be reversed on the grounds stated, and as-the testimony may differ on another trial, we find it unnecessary to consider this question.

Judgment reversed.

The other Justices concurred.


author: Montgomery, J.

text:
    MORELAND v. DUROCHER.
    1. Intoxicating Liquors — Place oe Sale — Evidence.
    Evidence that beer had been served on various occasions in a sitting-room connected with a bar-room is admissible to show that the sitting-room was a part of the saloon.
    2, Same — Civil-Damage Suit — Instructions.
    An instruction, in a suit brought by a wife under the civil-damage act against the proprietors of different saloons, that plaintiff was entitled to a verdict if the jury should And that either of the parties sold the husband intoxicating liquors, and that the sale contributed to his death, is not prejudicial, as authorizing a recovery against both defendants upon proof of sale by one only, when given in connection with an instruction that verdict could be rendered against both only in case it should be found that both sold liquor to deceased which contributed to his intoxication.
    3. Same — New Trial — Severance oe Action.
    The liability of defendants in suits under the civil-damage act being several as well as joint, the court has power in a proper case, after judgment has passed against all of the defendants, to grant a motion for a new trial as to a part of them, and overrule it as to the others.

      Error to Saginaw; Snow, J.
    Submitted June 8, 1899.
    Decided September 27, 1899.
    Case under the civil-damage act by Maria Moreland against Leon Durocher, a saloon-keeper, and his bondsmen, impleaded with Phineas E. Wiggins, another saloon-keeper, and his bondsmen. Erom a judgment for plaintiff, defendants bring error.
    Affirmed.

      Trash & Smith, for appellants.

      Crane & Crane, for appellee.
   Montgomery, J.

This action was brought upon the liquor bond of Leon Durocher and his sureties, John Schemm and Adam Hemmeter, with whom were joined Phineas E. Wiggins, Emich P. A. Solms, and Peter Bauer. The claim of the plaintiff is that her husband became intoxicated from drinking liquor obtained at the respective places of business of Durocher and Wiggins, and while he was intoxicated he whs run over by a train on the Michigan Central Railroad, and received injuries from which he very soon died. Both defendants Durocher and Wiggins offered testimony tending to prove that no drinks were furnished deceased in their respective places of business. The jury found for the plaintiff against all the defendants in the sum of $1,200, and judgment was entered on this verdict. Attorneys for Durocher and his bondsmen made a separate motion for a new trial on the ground that the verdict was against the weight of evidence. The attorney for Wiggins and his bondsmen moved for a new trial on their behalf. These motions came on to be heard. That of Wiggins and his bondsmen was granted, and a new trial ordered as to them. That of Durocher and his bondsmen was denied. These defendants bring error.

Error is assigned upon the ruling of the court permitting witnesses to testify that the room in which beer was served to deceased was a sitting-room connected with the bar-room, and that on other occasions beer had been served there. This was competent for the purpose of showing that it was a part of the saloon. People v. Crowley, 90 Mich. 366.

Complaint is made of a ruling permitting a physician to testify as to the probable effect of the' liquor on the deceased, taken at the time that it is claimed the liquor was drunk. We think the witness showed himself competent to give this testimony. Complaint is also made that a hypothetical question was based upon facts not in evidence, and put to this witness; but an examination of the record convinces us that there was evidence to support the statements contained in this question.

A criticism is made upon a portion of the charge reading as follows:

“ If you are satisfied, under the evidence and the law as given you by the court, that these parties did, either of them, sell — furnish—Moreland the liquors, and that the sale or furnishing contributed to the death of this man, then give the plaintiff such a verdict as in your judgment you think she is entitled to. If, on the other hand, you find that they, or either of them, did not sell or furnish him the liquor, then, no matter how unfortunate she may have been, she has no claim upon them for a judgment in this case.”

The court had previously instructed the jury as follows:

“This-action is brought against two separate dealers in intoxicating liquors and their respective bondsmen, not because it is claimed that such dealers are or were associated together in business, but upon the ground that each sold intoxicants to David Moreland, the husband of the plaintiff, that helped to produce the intoxication that it is claimed he was laboring under at the time he received the injuries that resulted in his death. You cannot lawfully render a judgment against all of these parties unless you find that the deceased had received intoxicating liquor from both Wiggins and Durocher, and that the liquors so received were contributing to the intoxication that he labored under when he received his injury.”

We think it very clear that the instruction which counsel object to could not have been construed by the jury as authorizing a recovery against all the defendants upon proof of sale by one only. The charge, as a whole, was fair and clear.

The question of most importance arises out of the action of the court in granting a new trial as to a portion of the defendants, and allowing the judgment to stand as to the remainder. It is. contended by the defendants that the effect of this order was to vacate the judgment as to all, and that upon the recovery of verdict and judgment against several defendants, whether in an action of tort or upon contract, a new trial cannot be granted as to a portion of the defendants only. Authorities are not wanting to sustain this contention, but the modern authorities sustain the ruling of the circuit judge. As pointed out in the case of Bicknell v. Dorion, 16 Pick. 478, -by Chief Justice Shaw, under the ancient practice, when a verdict is set aside, a venire facias de novo is awarded, and no notice is taken of the first venire, or of the proceedings under it, and, upon an award of a new trial as to part of the defendants, there would be nothing on the record to support the verdict against the other defendants. In this State there is nothing in our method of procedure which raises such seeming difficulties. In this case the plaintiff might have proceeded against the defendants as to whom the judgment now stands, or she might have discontinued the case as to their co-defendants at any stage of the proceedings. It is not easy to perceive, therefore, where the action is thus severable as well as joint, and where the right exists to proceed against a portion or all of the defendants, why the plaintiff should be compelled to lose her judgment against a portion because it appears that the others are entitled to a new trial. The case of Albright v. McTighe, 49 Fed. 817, contains a careful review of all the authorities, and the conclusion is reached that, by a clear weight of modern authority, the practice pursued in this case is proper. See, also, 14 Enc. PI. & Prac. 938. Counsel for defendants refer to Poivers v. Irish, 23 Mich. 429, as opposed in principle to the case above referred to. This case has not been followed in later cases. See the opinion of Chief Justice Campbell in Sutherland v. Ingalls, 63 Mich. 630 (6 Am. St. Rep. 333).

Judgment will be affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    SEYMOUR v. WALLACE.
    1. Estates op Decedents — Bill by Administrator to Set Aside Deed — Witnesses—Matters Within Decedent’s Knowledge.
    In a suit by an administrator against a grantee of decedent to set aside a deed which, upon its face, purports to be made in consideration of the payment of the grantor’s debts, defendant is incompetent, under 3 Comp. Laws 1897, § 10212, to testify that the debts to be paid by him were specified by the grantor, and did not include the claims in suit.
    2. Same — Fraudulent Conveyances — Conolusiveness op Judgment.
    On a bill by an administrator, under 3 Comp. Laws 1897, § 9363, to set aside a conveyance by decedent of her real estate as in fraud of creditors, defendant is not concluded by the allowance of the claims of such creditors in probate proceedings to which he was not a party, but may show their invalidity as a defense to the suit.
    Appeal from Washtenaw; Kinne, J.
    Submitted June 9, 1899.
    Decided September 27, 1899.
    Bill by William B. Seymour, administrator of the estate of Frances E. Wallace, deceased, against Jacob L. Wallace and Betsy Gates, to set aside certain deeds, and to subject the property conveyed to the payment of claims against the estate. From a decree for complainant, defendants appeal.
    Reversed.

      John P. Kirk {J. Willard Babbitt, of counsel), for complainant.

      Hinckley & Hinckley, for defendants.
   Hooker, J.

Frances E. Wallace, being the owner of the premises in question, made a deed of the same to her brother, Jacob L. Wallace, on November 7, 1895. This deed recited that it was made “ in consideration of the sum of maintenance, expenses of sickness and funeral, and debts; when paid, this deed to be delivered; to be in hand paid by the party of the second part, the receipt whereof is hereby confessed and acknowledged.” It provided, further, that “the grantor reserves the use of said property her lifetime,” etc.; and it concluded with full covenants of warranty. The deed was left in the hands of Mr. Hinckley, a lawyer, and the grantee was informed of the facts a few days later by the grantor. She died early in 1896, and the grantee paid several hundred dollars for her maintenance, care, funeral expenses, and debts. It does not appear when or under what circumstances the deed was delivered. On August 13, 1896, he conveyed the premises to defendant Gates. On August 18, 1896, the complainant was appointed administrator of the estate of Frances E. Wallace, deceased. It appears that she had no estate, except this property, but in February, 1897, two 'claims were allowed, viz., one in favor of a Dr. Murdock, of $118.60, and another of $4. Defendant Wallace refused to pay these, and the administrator filed the bill in this cause, under 3 Comp. Laws 1897, § 9363, which reads as follows:

“When there shall be a deficiency of assets in the hands of an executor or administrator, and when the deceased shall, in his lifetime, have conveyed any real estate, or any right or interest therein, with the intent to defraud his creditors, or to avoid any right, debt, or duty of any person, or shall have so conveyed such estate that by law the deeds or conveyances are void as against creditors, the executor or administrator may, and it shall be his duty to, commence, and prosecute to final judgment, any proper action or suit, at law or in chancery, for the recovery of the same, and may recover, for the benefit of the creditors, all such real estate so fraudulently conveyed; and may also, for the benefit of the creditors, sue and recover for all goods, chattels, rights, or credits which may have been so fraudulently conveyed by the deceased in his lifetime, whatever may have been the manner of such fraudulent conveyance.”

The learned circuit judge made a decree in accordance with the prayer of the bill.

We find nothing in the testimony that indicates that this property was conveyed in fraud of creditors, whether it was a homestead or not; and, if the complainant is entitled to a decree, it is because the premises were conveyed upon the condition that the grantee should pay all of the grantor’s debts. It is contended that the debts were specified, and that they did not include these claims; but this is based upon the testimony of Wallace, which the statute (3 Comp. Laws 1897, § 10212) excludes. From the face of the deed, we think we must find that all debts were contemplated. Hence, if these were valid claims, the land must be held subject to them.

The defendants sought to show that they were not valid claims, that the alleged services were not performed, and that deceased had performed services for Dr. Murdock which fully compensated him- for any claim he might have, and that the $4 claim was barred by the statute of limitations, which, it was said, appeared upon its face. This last claim appears to have been lost sight of; but the trial judge excluded the proof offered against the Murdock claim, upon the ground that its validity had been adjudicated, and could not be attacked collaterally. Defendant Wallace had a contract right to this title upon paying the items named as consideration. He was under no obligation to pay any but valid debts, and he claims that he could not be concluded by an adjudication of their validity without an opportunity to be heard. He was not a party to the probate proceedings, — perhaps did not know of them. He claims that, before there were any probate proceedings, he had paid the consideration, and title had vested, the deed having been delivered. If these claims against the estate were fictitious, his assertion is true.

The claimant has an indisputable right to satisfaction of his judgment from the property which belongs to the estate, as the judgment is valid against the estate, and he has-no right to satisfaction from property belonging to the defendant; but claimant’s counsel contend that this property does not belong to the defendant, because their client has, since its transfer, obtained a judgment against the grantor. Thus, it is sought to give this judgment the effect of a judgment^» rem, to all intents and purposes. Had the action been ejectment to recover the land, the defendant would not have been bound by it. His rights would have been secure against a judgment in any action to which he was not a party. They should be secure against an indirect attack. At the time the proceedings which resulted in claimant’s judgment were commenced, the defendant had rights in the property sought to be reached. If the claimant’s theory is true, his title was subject to the payment of this claim, because it was a debt due from the grantor. If defendant’s contention is true, there was no liability against him, because there was no such debt. The proposition contended for by claimant’s counsel does violence to the elementary doctrine that a person shall not be devested of his legal rights without an opportunity of being heard in his defense. In Bigelow, Estop. 142, it is said that, “to make a man a privy to an action, he must have acquired an interest in the subject-matter of the action either by inheritance, succession, or purchase from a party subsequently to the action, or he must hold the property subordinately.” In this case the defendant is not a privy to the judgment, unless he can be said to hold the property subordinately to this claim; and that necessarily depends upon the validity of the claim, which is a question of fact, which he should have the right to be heard upon.

In Mathes v. Cover, 43 Iowa, 512, it was held that a grantee of land was not affected by a judgment concerning the property against his grantor in the suit of a third person, begun after the grant. See Shay v. McNamara, 54 Cal. 169; Campbell v. Hall, 16 N. Y. 575. In Brigham v. Fayerweather, 140 Mass. 411, Mr. Justice Holmes uses the following language:

“We may lay on one side, then, any argument based on the misleading expression that all the world are parties to a proceeding in rem. This does not mean that all the world are entitled to be heard, and, as strangers in interest are not entitled to be heard, there is no reason why they should be bound by the findings of fact, although bound to admit the title or status which the judgment establishes.”

In Coles v. Allen, 64 Ala. 105, it was said by Brickell, C. J.:

‘ ‘ The purpose of the bill is a confirmation of the title the mortgagees acquired indirectly through the purchase made by Mitchell at the sale under the power in the mortgage executed by Connor, and to remove the cloud cast upon the title by the decree obtained by Mrs. Coles' against Connor subsequent to the execution of the mortgage. It is only as between parties and privies that a judgment or decree is final and conclusive of the matters in controversy, or, collaterally, evidence of the facts upon which it may be founded. ‘ Res inter alios acta alteri nocere non debet’ is an inflexible maxim in its application to judicial proceedings, shielding the stranger from injury, while it precludes him from taking benefits under judgments or decrees to which he was not a party, in the .absence of any relation of privity with the parties which made him answerable for the results of the litigation. No alienee, grantee, or assignee is bound or affected by a judgment or decree ren'dered in a suit commenced against the alienor, grantor, or assignor subsequent to the alienation, grant, or assignment; for the plain reason that otherwise his rights of property could be devested without his consent, and the fraud or laches of the grantor could work a forfeiture of estates he had created by the most solemn conveyances. Whatever may be the force and effect of the judgment or decree against the grantor, if it is sought to be used to the prejudice of the grantee, there must be independent, distinct evidence of the facts which authorized its rendition.”

In Winslow v. Grindal, 2 Greenl. 64, the court held that “the grantee of land is not bound by a judgment in a suit commenced after such grant by his own grantor against his immediate grantor upon the covenants in his deed.” Again, it has been held that “the assignee of a note given for part of the consideration of a contract of sale will not be affected by a subsequent judicial rescission of. the contract in a proceeding to which he was not a party.” Powers v. Heath, 20 Mo. 319. In Bartero v. Savings Bank, 10 Mo. App. 76, it was held that “one who was not served and who did not appear is not concluded by a judgment * * * for the recovery of dower.” McCrary, J., said in' Weed Sewing-Machine Co. v. Baker, 1 McCrary, 580:

“It is very clear that no one can be bound by a judgment or decree unless he be a party or in privity with a party. This for the reason that he has had no opportunity to be heard, to cross-examine witnesses, or to offer evidence in furtherance of his rights. It is therefore held that while a decree may be admissible'in evidence to prove the fact of its rendition, with all its legitimate consequences, it cannot affect in the least the rights of any but parties and privies. A party in possession of land, claiming an interest as purchaser or under a contract to purchase, is not in privity with his grantor. On the contrary, his claim is adverse to his grantor; and it must follow that he is not bound by a decree against the latter, in a case to which he is not a patty, and rendered in a suit commenced after he purchased and took possession.”

The following language of Mr. Justice Hoar in the case of Inman v. Mead, 97 Mass. 314, is pertinent:

“The jury may have found for the demandant on the ground that the conveyance was fraudulent against creditors. The statute enables creditors to levy upon land which has been thus conveyed, although the debtor has no remaining interest in it which he could enforce in any manner. The demandant went further in his allegation and in his evidence, but the jury may not have been satisfied of anything more than that the conveyance to Cook was intended to defraud creditors. If that were all, as Daniels himself would have no remaining interest in the land, Cook would have a right to hold it against every one but' an actual creditor; and; upon the question whether the demandant was really a creditor, it is obvious, according to the most elementary notions of justice, that the defendant would not be concluded by a judgment of which he had no notice, to which he was not privy, and against which he had never an opportunity to be heard. His position is, not that the demandant has not a valid judgment against Daniels, which Daniels cannot contest, but that the demandant was not a creditoi*, and so could not be defrauded. The right to show that the judgment was recovered by fraud or collusion, which is conceded, tests the principle involved. The demandant cannot by any consent of his own, nor by any proceeding to which the tenant is not a party, give the rights of a creditor to one who is not a creditor. The importance of the principle will appear more strongly when we consider that one who has received a conveyance in fraud of creditors may lose his property, although he has paid for it its full value. To disturb his title, the fact that he who levies upon the land is a creditor must be established against him; and it has never been established, except in a suit against1 another party, and after his title accrued. On the ground that the judgment against Daniels was not conclusive proof against the defendant that the demandant was a creditor of Daniels at the time of its rendition, the exceptions are sustained.”

See, also, De Mora v. Concha, 29 Ch. Div. 268.

The language of Mr. Justice Cooley in the case of Cook v. Hopper, 23 Mich. 511, is significant, though the question under consideration arose upon attachment, and did not involve a judgment. He said s

“A transfer of property may be eminently just, proper, and reasonable in itself, and nevertheless be voidable, because, in a legal sense, creditors would be defrauded by it; and the court, in setting it aside, will overturn equities only for the purpose of enforcing the superior equities of others. Such might be the case with almost any proper family settlement, and also in other cases in which gifts are made upon strong moral considerations. It would be most manifest injustice to permit a third person to intervene in such a case, and set aside an arrangement which is unobjectionable and even laudable, provided it affects no creditor injuriously, on a bare assertion that he is a creditor, unless the other party was allowed the privilege of putting this assertion to the proof; and, if a rule were established permitting such intervention, it would be reasonable to anticipate its being sometimes made use of by a dishonest party, who, having repented of a just settlement, would be enabled to set it aside through the manufacture of fictitious claims in favor of a confederate.
“Wherever a disposition of property has been made which is alleged to be fraudulent as to creditors, the actual indebtedness is not only in issue, but it is the primary fact in logical order for the party relying upon the alleged frauds to establish. Moreover, the question of actual indebtedness is most important in its bearing upon the probable intent of the parties to the transfer, and the bona fides of the transaction cannot be properly tried without going into it. Proof on the subject would therefore be admissible, as bearing upon the question of fraud, even if the indebtedness were not involved in the main issue. And a mere ex parte affidavit, which investigation may and often does prove to be unfounded, can never be allowed to establish conclusively the affiant’s case upon such an issue, when the effect would be to take away the rights of one who is a stranger to the proceeding in which the affidavit is made, and who consequently cannot take issue upon the indebtedness there. The necessity for the attaching creditor making good his claim by other proof in a case like the present was assumed by Thayer v. Willet, 5 Bosw. 868, and directly affirmed in Bindley v. Stryker, 28 N. Y. 51 (84 Am. Dec. 324).”

' The defendants’ proofs having been excluded, we cannot pass upon the question.

The decree is reversed, and the case remanded for another hearing, with costs of this court to the defendants.

The other Justices concurred.


text:
    BRUDIN v. INGLIS.
    1. Boundaries — Ascertainment—Evidence.
    Evidence in ejectment, in which the location of the boundary line between two lots as anciently platted is in controversy, that old stakes, made of material such as was used only by the early surveyors, were found driven into the ground at the points at which defendant claims the line to be, and that other stakes, some similar, some evidently placed by later surveyors, were also found at intervals conforming to other lot lines as shown by the plat, is sufficient, in the absence of proof of different lines, to entitle defendant to a directed ver diet.
    2. Same — Overplus of Land — Monuments.
    Mere proof of an overplus of land is insufficient to change boundaries that are marked by monuments.
    Error to Wayne; Frazer, J.
    Submitted June 8, 1899.
    Decided September 27, 1899.
    Ejectment by John F. Brudin against Thomas R. Inglis. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Thomas Hi slop, for appellant.

      Roivland M. Connor, for appellee.
   Hooker, J.

We gather from the record that in 1835 a piece of ground called the “Porter Farm” was platted into lots, or at least that a plat purporting to lay said ground into lots was recorded in the register’s,office. We have a sketch of said plat in the record, and infer that each lot was to be 600 feet square. There is nothing upon the plat or in the proof that indicates where the Porter farm was, or that the lots were ever staked out. Some years later another plat was made, and purports to be the subdivision of lots 51, 50, 47, and N. of 46, Porter farm, city of Detroit. The plaintiff is owner of lot 3, and defendant owns lot 2, of this subdivision. The former has brought ejectment to recover about three feet of ground which lies upon one side or the other of the true boundary between these lots. Two questions were raised: (1) Where is the true boundary? (2) Has either party acquired title to the three feet through the settlement of the boundary line by consent and acquiescence? We may eliminate the latter question, for we think there is no proof which would justify such a conclusion. In fact, the contrary affirmatively appears. The defendant claimed that the testimony conclusively showed that the true boundary line was in accordance with his claim, and asked the court to direct a verdict in his favor. This was refused, and the jury found for the plaintiff.

Plaintiff’s theory is that the south boundary of lot 1 was an old fence, called the “ Lord Fence,” which marked the north boundary of premises owned by Lord, and that giving to lots 1 and 2 the width shown upon the plat brings the disputed line where he claims it to be. The defendant claims that the distance from the street called “Lambie Place,” or “Leverette Street,” along the north side of the block, shown by the plat, to the Lord fence, is actually three feet more than is shown on the plat, and that this surplus either belongs to lot 1, which adjoins the Lord fence, or that it was not included in the land platted. There is nothing on the face of the plat to show that the subdivision was intended.to extend to the Lord fence or line, unless we are able to say that the south line of the parcel platted extended to such fence or line. The evidence does show conclusively that between Lambie place and the old fence, as they exist upon the ground, there is more land than the plat shows to be contained in the intervening six lots. The defendant maintains that, if the surplus belongs to the plat, it increases lot I beyond the width shown in the plat; if it does not belong to the plat, the south line of lot 1 is three feet north of the Lord fence; and that in either case the boundaries of lots 2 and 3 are the same, and in accordance with his claims. On the other hand, the plaintiff claims that the old fence is the south boundary of the plat, and lots should be measured from there; that it is not certain that Lambie place is located in conformity to the plat. He contends, further, that there is no evidence that the lots were actually staked out when the plat was made.

It is obvious that, if it could be conclusively shown that these lots were staked out when platted, such monuments would be conclusive of the question; and if this cannot be shown, but other monuments establishing any given points as platted can be found, such monuments would furnish starting points to aid in arriving at the true boundary between these lots. In the absence of either, old monuments indicating user may be resorted to for light upon the subject. There is testimony, which is undisputed, that stakes were found driven in the ground, marking the points at which the defendant claims this line to be. It is shown that they were old stakes, made of timber not used recently for such purposes, and such stakes as surveyors recognize to be those used by the early surveyors. Nothing indicates any other purpose in driving these stakes than to mark that line. Moreover, at intervals, conforming to the other lot lines as shown by the plat, were other stakes,— some similar, some evidently placed there by later surveys. Taken together, these are cogent evidence of the location and perpetuation of those lines. While this proof does not amount to demonstration, it is ample to support a verdict; and, unless met by testimony tending to show that the lines were elsewhere, a verdict should have been directed for the defendant. If there was such proof, it was a question for the jury; but the fact that the proof of the defendant was not demonstrative proof would not justify submission to the jury.

We must therefore examine the case to ascertain if there was contradictory proof. It may be said that there is evidence tending to show that the Lord fence marked the north line of the Lord property; but that does not prove that it marked the south line of the lots platted. Unless it did so, whether the land north of such fence belonged to those who made the plat or not, we cannot say that it was included in the plat, or that the fence was intended to mark the south boundary of lot 1. Hence, though we might say that we would start with lot 1, we could not say that the fence was the south line of that lot, and to permit a jury to do so would be to allow them to speculate upon the question, without proof. Moreover, the width of lot 1, as shown in the plat, would have to yield to the monuments fixing the north line of that lot, if there were such monuments, in case it could be said that the subdivision extended to the fence. It requires something more than proof of an overplus of land to change boundaries that are marked by monuments..

We are of the opinion that the proof tended to establish the line as asserted by the defendant, and that there was no testimony to the contrary. The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Long, J.

text:
    WHITE v. TOWNSHIP OF RILEY.
    Townships — Defective Bridges — Negligence — Proximate Cause.
    Where a horse became frightened at a crack in the flooring of a township bridge, which, in its ordinary condition, would not frighten horses ordinarily gentle, but which, on the particular occasion, by reason of the action of wind and snow, appeared wider than it really was, the township, being absolved, by special finding of the jury, from negligence with respect to the cause of fright, cannot be held liable for injuries to the driver because it failed to maintain barriers on the approach, by reason of the absence of which the horse backed off the bridge; townships being liable only where'their negligence is the proximate cause of injury.

      Error to St. Clair; Vance, J.
    Submitted June 7, 1899.
    Decided September 27, 1899.
    ■ Case by Elizabeth White against the township o’f Riley for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Avery Bros. & Walsh {O'Brien J. Atkinson, of counsel), for appellant.

      Frank Whipple {J. B. Mcllwain, of counsel), for appellee.
   Long, J.

This case was in this court at the April term, 1897, reversed, and remanded for a new trial. White v. Township of Riley, 113 Mich. 295. The case has been again tried, and plaintiff had verdict and judgment. Defendant brings error.

There is little or no difference between the case now made by the plaintiff and that shown by the former record. It was contended by plaintiff on the former trial that the cracks in the bridge, the narrow approach, and the want of barriers on the sides of the approach, were the causes of the plaintiff’s injury. Those are also the present contentions of counsel for plaintiff. It appeared then, and now appears, that the plaintiff’s horse never became frightened at the crack in its ordinary condition; and the testimony fully establishes the fact that, but for the changed condition of the crack on that night, the plaintiff’s horse would have gone forward. It was, as explained by plaintiff’s husband, the snow blowing, the bluster of the wind and snow, and the leaving of a dark streak each side of the crack, that scared the horse. He further testified that he had always noticed this particular crack for 12 or 15 years, that he had been driving ovór that bridge night and day during that time with this horse and other horses, that his wife had been over it "the Saturday night before, and that he never called the attention of the township officers to any defect in the bridge before the accident. It was said in the majority opinion of the court on the former record:

“The contention gets down to this: That the cause of the horse’s shying and backing up was the appearance of this bridge, which appearance was occasioned by the wide cracks in the floor of the bridge, and by the action of the wind in blowing the snow away from the cracks, giving an appearance of a wider opening-than in fact existed. It would hardly be suggested that a highway is intended to be traversed only in fair weather. * * * This court has frequently held that it is not incumbent upon municipal authorities to remove snow and ice, and this holding is based upon the ground that, as snow and ice are so common in this latitude, the intention of imposing the onerous duty upon a municipality of removing such accumulations will not be presumed, in the absence of a clear expression of such legislative intention. • It seems to me to be wholly illogical to hold the municipality exempt from this duty upon such grounds, and at the same time to hold that the natural action of snow, and the appearance which its fall would necessarily give to such a structure as the bridge in question, is so extraordinary as to amount to an intervening cause. The authorities were bound to know that snow falls in this climate, and that it will not rest upon air; that, if light, it will, to a greater or less extent, be blown back from a crack or opening such as that described in this bridge. This is no intervening cause. It is a condition necessarily arising out of other conditions sure to exist, namely, the cracks in the bridge, and the storms which at certain seasons visit this latitude. Nor was the condition of this bridge such as might not have been foreseen by the authorities, if cognizance were taken of the action of the elements. If we adopt the rule that the authorities should be held responsible for such consequences as common experience would show to be usual, I think it is clear that the result cannot be held to be too remote to permit a recovery in this case.”

It was further said that the position of defendant’s counsel necessarily involved two concessions:

1. That, if plaintiff was injured by reason of the want of barriers, she was entitled to recover.
2. That the cracks in the bridge, in the condition in which they were, were calculated to frighten horses of ordinary gentleness.

' Whatever may be said of the former record, these positions are now challenged by counsel for defendant. On the former trial no testimony was offered by the defendant; and it is now contended by counsel for defendant that no such concessions are made, but, on the other hand, that those statements are now disputed. The former opinion was based upon the facts there presented, and from that record the court found as a fact that the condition of the crack as it appeared on that night was sure to exist, by reason of the storms which at certain seasons visit this latitude. The defendant introduced evidence tending to show that the largest crack in the bridge was only 1£ inches wide, and this was from 15 to 17 feet from the west end of the bridge. It also introduced testimony tending to show that the bridge was planked with 2-inch oak plank, and that there was no waney edge in the planks at the place described by plaintiff’s husband, where the accident occurred. Defendant also gave testimony which tended to show that no horse was ever frightened on this bridge before this night by such a condition as the plaintiff claims caused her horse to back off the bridge. It is admitted by plaintiff that the horse driven that night was never frightened by the bridge in its ordinary condition. The ground of recovery is that the condition produced by the action of the snow and wind should have been anticipated by the township authorities.

A special question was submitted to the jury at the request of counsel for defendant, as follows:

“Did the township of Riley have any notice prior to January 23d [the day of the injury] that the snow would create an appearance upon single-floor bridges at night to the effect that seams or cracks would appear wider than they really were ?
“A. No.”

We think this question was a proper one, under the evidence given on the trial, and under the claim made by plaintiff’s counsel as to the cause of the accident. In the present case, then, the question of the negligence of the defendant in this regard is eliminated by the verdict of the jury. By the general verdict the plaintiff was given $500 damages. Counsel for defendant asked the court, in view of the answer to the special question, to enter judgment for the defendant. This was refused. We think, under the claim made by the plaintiff and the facts found, the judgment should have been so entered. The defendant township, as was found by this verdict, was not. responsible for the condition which actually frightened the horse. The want of barriers was not the proximate cause of the injury. It was the fright of the horse by the condition of the bridge at that time. The want of barriers to the approach was only the remote cause. The township is liable only where the negligence complained of was the proximate cause of the injury. If such neglect was the secondary or remote cause, the township is not liable. Beall v. Township of Athens, 81 Mich. 540.

The judgment must be reversed, and the case remanded, with directions that judgment be entered in favor of defendant.

The other Justices concurred.