author: Steeee, J.

text:
    ADOMITES v. ROYAL FURNITURE CO.
    Master and Servant — Workmen’s Compensation Act — Compensation — Disabiuty—Injury to Thumb.
    In. proceedings by an injured employee for compensation under the workmen’s compensation act, where it appeared that claimant’s thumb was so stiffened or anchylosed in its joints that he had no control or use of it, but the flesh and joints still remained intact and had feeling in them, held, that the award should be limited to the period of disability, and not be for compensation for entire loss of the thumb.

    Certiorari to Industrial Accident Board.
    Submitted April 3, 1917.
    (Docket No. 9.)
    Decided May 31, 1917.
    Andrew Adomites presented his claim for compensation against the Royal Furniture Company for the partial loss of a thumb while in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Reversed.

      Francis D. Campan, for appellant.

      Hall, Gillard & Temple, for appellee.

      On construction and effect of workmen’s compensation acts generally, see comprehensive note in L. R. A. 19I6A, 23.

   Steeee, J.

On December 27,1915, Andrew Adomites sustained an injury to the index finger and thumb of his left hand while working in the machine department of appellant’s furniture factory in the city of Grand Rapids, on a “shaper.” That the injury arose out of and in the course of his employment is conceded. The circumstances, nature, and result of the accident are stipulated in the record as follows:

“On the date aforesaid applicant was injured while operating a woodworking machine known as a 'shaper.’ That the thumb and index finger of the left hand of applicant were injured. That the surgeon employed by the respondent to care for its accident cases advised amputation of the thumb, but that applicant insisted upon saving a portion of the thumb for appearance sake. Under local anesthetic the bone of the second phalange of the thumb of said left hand was removed, but not disarticulated, and the first phalange of said thumb was then sewed back to the upper part of said thumb, forming a short or stub thumb in appearance. That the upper portion of said thumb and joint at the hand of applicant’s left hand was anchylosed or so grown together as to form no joint in reality, and that applicant has lost the use and control of said thumb of his left hand by reason of said accident. There remain feeling and life in the thumb.”

He was absent from his employment by reason of the injuries so sustained for 18 weeks, being able, on March 27, 1916, to return to and do the same work he was engaged at when injured, and earn the same wages as before. His average weekly wage for the year preceding the accident was $13.04, and it is conceded that 'he is entitled to one-half of such weekly wage, or $6.52, during the 13 weeks he was absent and incapacitated from work, as well as medical attendance necessitated by the accident. He claimed, however, and was awarded by the board, $6.52 per week for a period of 60 weeks, on the basis of the entire loss of his thumb under the schedule of fixed compensation for the loss of members provided in section 10, part 2 of the workmen’s compensation act (2 Comp. Laws 1915, § 5440).

Appellant contends that the period of his disability or incapacity is limited to the 13 weeks preceding March 27th, at which date he was able to return to his former employment at the same work and wages as before the accident, his efficiency, ability, and earning power in the line of his calling being then unimpaired so far as shown.

It appears that the flesh and all joints of the thumb in question remain with life and feeling, and there is no actual severance or removal of it as a whole, or of any phalange, although control and use of it are lost by reason of the stiffened or anchylosed joints. The question which this situation presents is whether loss of the use of his thumb, which remains to the employee with life and feeling, is within the meaning of the workmen’s compensation act a total loss of such member under the schedule providing a fixed compensation for total loss of the same, replacing the compensation which would otherwise be payable as indemnity for the actual period of incapacity, or disability, shown.

Whatever uncertainty may have previously existed, the recent case of Packer v. Olds Motor Works, 195 Mich. 497 (162 N. W. 80), filed March 30, 1917, has now settled that question favorable to appellant’s contention. In that case the injury necessitated amputation of about one-half of the distal phalange of the thumb, and the accident board “found as a fact that the applicant had lost the entire use of the first phalange of the injured thumb because of said accident.”

The schedule for loss of members provides that:

“The loss of the first phalange of thé thumb or of any finger shall be considered to be equal to the loss of one-half of such thumb, or finger, and compensation shall be one-half of the amounts above specified.” 2 Comp. Laws 1915, § 5440.

There the actual period of inability to work because of the accident was 18 weeks, but the board awarded compensation for 30 weeks, or one-half of the amount specified in the schedule for loss of a thumb. This was held to be clearly erroneous, it being said in part:

“It is obvious that the award by the board of compensation for 30 weeks, which is that allowed by the statute for the loss of the entire' phalange, was based upon its determination that claimant had lost the entire use of said phalange. * * * The award of the board should have been limited to the period of disability, which, under the testimony of the claimant, was 18 weeks.”

As no distinction in principle can be discovered between the two cases, there is no occasion at the present time to further discuss the question. The award, or order, of the industrial accident board appealed from must be, and hereby is, reversed, and the case remanded for such further proceedings as may be desired and the proofs authorize.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Brooke, and Fellows, JJ., concurred.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    LUNDSTROM v. TOWNSHIP OF ELLSWORTH.
    1. Constitutional Law — Statutes — Title — Amendments — Bridges — Steam Vehicles.
    Act No. 71, Pub. Acts 1903 (1 Comp. Laws 1915, § 4793), providing that no township shall be liable for any damages sustained as the result of the breakage of any bridge or culvert by any steam engine or steam vehicle weighing more than six tons, amending Act No. 145, section 1, Pub. Acts 1887, entitled “An act to regulate the use of steam engines, steam wagons or other vehicles, which are in whole or in part operated by steam, on the public highways of this. State, and to prohibit the blowing of steam whistles, upon the public highways of this State,” is not unconstitutional as amending a criminal law, or as not embraced within the title of the original act.
    2. Same — Class Legislation — Public Purpose.
    Class legislation is unconstitutional only when shown to be unreasonable, arbitrary, and capricious, and -if reasonable and for a beneficial public purpose, it is constitutional.
    3. Same — Statutes.
    It is not for the courts to debate the policy and wisdom of legislative classification which is not on its face convincingly arbitrary, eapricious, and unreasonable.
    4. Same — Highways and Streets — Bridges—Townships—Steam Vehicles.
    Act No. 71, Pub. Acts 1903, providing that no township shall be liable for damage sustained by the breaking of any bridge or culvert by a steam engine or steam vehicle weighing more than six tons, embraces reasonable questions of legislative discretion which are not inhibited by any constitutional provision.
    5. Statutes — Repeal—Implied Repeal — Construction—Intent.
    Repeals of statutes by implication are not favored, and where the legislature has enacted a law and clearly expressed its intent, it is presumed to continue of the same mind unless it clearly expresses a change, and consequently the language of every enactment must be construed, if possible, so as to be consistent with every other which it does not in clear or express terms repeal or modify.

      6. Same — Highways and Streets.
    Act No. 283, Pub. Acts 1909 (1 Comp. Laws 1915, § 4287), entitled “An act to revise, consolidate, and add to tbe laws relating to tbe establishment, opening, improvement, maintenance, and use of tbe public highways and private roads, the condemnation of property and gravel therefor,” etc., was not repealed by implication by Act No. 71, Pub. Acts 1903, providing that no township shall be liable for any damages sustained by the breaking of any bridge or culvert by a steam engine or steam vehicle weighing more than sis tons, notwithstanding the provisions of the later, act repealing all acts or parts of acts inconsistent with or contravening the provisions of that act, as the former act dealt with a special object or class of persons and things not mentioned in the later act.
    7. Same — Repeal op Statute — Legislative Question.
    Whether changed conditions in modes of travel and transportation render a repeal of Act No. 71, Pub. Acts 1903, necessary is purely a question for legislative determination.
    Error to Lake; Withey, J.
    Submitted April 3, 1917.
    (Docket No. 22.)
    Decided May 31, 1917.
    Case by Elmer Lundstrom against the township of Ellsworth for injuries to plaintiff’s threshing outfit caused by a defective bridge. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Jewell & Smith, for appellant.

      Hal L. Cutler, for appellee.
   Steere, J.

This action was brought to recover damages done to plaintiff’s traction engine and steel threshing separator by the breaking of a bridge spanning Pine river on a highway in defendant township, while such equipment was being driven over it. Plaintiff was the owner of a traction engine and separator, with which he engaged in threshing grain for farmers during the fall of 1915 in defendant township. On September 25, 1915, while traveling with his equipment from a place where he had been threshing to another where he had engaged to do so, he had occasion to cross this bridge, which broke under the load, precipitating him and his outfit into the river below. He escaped without personal injury, but claims serious damage was done to his equipment, for the cost of rescuing and repairing which this action was brought.

His declaration contains two counts; the charges of negligence in each being in substance faulty construction of the bridge and failure to keep the same in repair. Defendant pleaded the general issue, with notice of an affirmative defense, and counterclaim for damages resulting from breaking down and injuring the bridge, because of plaintiffs negligence in attempting to cross it in an improper manner, with an equipment of excessive, unlawful, and dangerous weight. At the conclusion of plaintiff’s testimony, defendant’s counsel moved the court for a directed verdict and judgment in its favor on various grounds; the most important and strenuously urged being:

“Because the plaintiff’s steam tractor engine which broke the bridge weighed over 6 tons, to wit, upwards of 8 tons and the entire outfit as coupled together weighed nearly 13 tons, all of which was upon the bridge at the time it collapsed.”

After hearing the arguments of counsel the court directed a verdict for defendant and entered judgment thereon, for the reason that plaintiff’s testimony showed that he was then using a 12-horse power J. 'I. Case steam traction engine, which weighed upwards of 8 tons, drawing a separator which weighed 9,738 pounds, and the combined outfit, coupled together, was upon the bridge and passing over it at the time of its collapse, by which undisputed facts he was precluded from recovery under the provisions of Act No. 71, Pub. Acts of 1903 (1 Comp. Laws 1915, § 4793), the concluding portion of which is as follows: •

“Provided,, further, That no township shall be liable for any damages sustained by the breakage of any bridge or culvert by any steam engine or steam vehicle weighing more than six tons.”

The bridge in question was of steel construction, floored with plank; each end resting upon a perpendicular concrete abutment. It was built by defendant in 1906, and so far as shown had safely served the demands made upon it until this accident. Plaintiff testified that he had crossed it several times before “with this same outfit," which was the heaviest one in Ells-worth township, though not an “extra heavy threshing outfit.” The claim of negligence upon which he chiefly relied, and introduced testimony to establish, was that owing to the bridge not running in a true line with the road, and its stringers being off from a right angle with the abutments, the ends of the bridge were not sufficiently and securely fastened upon the abutments, as they were designed to be and should have been to render it safe. In the absence.of any statutory provision upon the subject, defendant’s negligence in the particular claimed and plaintiff’s contributory negligence in attempting to cross the bridge with an excessive and unusual load would be questions of fact for the jury; but, if the statute above quoted is valid and in force, the undisputed evidence as to the weight of the outfit precludes recovery as a matter of law.

Plaintiff’s assignments of error are directed against the validity of said Act No. 71, which is claimed to be unconstitutional for various reasons, amongst which are that the object of said act is not within the title of the act it proposes to amend, the original act being a criminal law, in which excessive weight of the engine, which by the subsequent amendment provided a bar to recovery, is not made an unlawful act; that the act is not uniform in its operation, because it gives townships a defense not available to other governmental units of the State, without any valid grounds for distinction, discriminating unjustly between steam vehicles and those propelled by other power, a method of generating power which is not a legal basis of distinction, since steam engines are lawful vehicles, and it is incumbent upon townships to construct their bridges to reasonably accommodate them as one of the expected modes of travel; and that said Act No. 71 of 1903 is repealed by the general highway law of 1909, Act No. 283, Pub. Acts 1909 (1 Comp. Laws 1915, § 4287).

Act No. 145, Pub. Acts 1887, of which Act No. 71 of 1903 is an amendment, is entitled.

“An act to regulate the use of steam engines, steam wagons or other vehicles, which are in whole or in part operated by steam, on the public highways of this State, and to prohibit the blowing of steam whistles upon the public highways of this State.”

Early in the development of steam tractors it was held that their use upon highways was not in itself a nuisance and unlawful, since restrictions upon the use of a highway could only be such as are calculated to secure to the general public the largest practicable benefit from the enjoyment of the easement. Macomber v. Nichols, 34 Mich. 212 (22 Am. Rep. 522). The right of steam tractors to travel the highways under reasonable restrictions having been determined, followed by several years’ experience with that means of transportation, the legislature deemed it expedient to enact the above law regulating their use, by which their owners were prohibited from leaving them standing upon bridges or culverts and from blowing or sounding their whistles on highways, were required to send persons along the highway ahead of them to give warning of their approach, to stop them and shut off steam on the approach of horses or other domestic animals, etc. A violation of any of the provisions of the act is made a misdemeanor punishable by fine and imprisonment.

Act No. 71, Pub. Acts 1903, only amends section 1 of the original act, while section 3, which provides the penalty, remains as before. We are referred to no authority in support of plaintiff’s claim that because the original act was in its provisions penal, or a “criminal act,” the amendment, which prohibits recovery against a municipality where breakage of a bridge resulted from the use of a steam tractor exceeding a stated weight, is unconstitutional. We see little force in this contention, where the scope of the title covers the provision in question, which it is held to do in Westgate v. Township of Adrian, 161 Mich. 333 (126 N. W. 422). That case fully quadrates in its essential facts with this. Westgate was also engaged in threshing, and while moving from one farm to another with his steam tractor engine outfit, weighing approximately 8 tons, he attempted to cross over a highway bridge of defendant, which collapsed, causing damage to his steam tractor. Recovery was denied him under the provision of Act No. 71 in question here. The ruling was brought-to this court for review, and reversal sought on the ground that the act was unconstitutional, because its title was not broad enough to cover the amendment. This court there held the law constitutional, and affirmed the judgment of the trial court on a directed verdict for defendant. So far as the questions then passed upon are now renewed, we find no occasion to reconsider them.

This law was passed while the Constitution of 1850 was in force, and any possible questions which might arise under our present Constitution as to whether it should be technically regarded as local, special, or general legislation are of minor significance. Unquestionably the act is special in the object sought to be obtained and the extent of its application, which might be said in a sense of the greater part of our general laws; but it is an act public in its character and general in its application to every township in the State, and to every owner of a steam tractor of a certain weight within the State. It is not required that all general laws be equally general, and a law relating to a class requiring legislation peculiar to itself, if in the public interest and limited to the requirements of such class, is usually regarded as a general public law.

The constitutionality of such laws, if otherwise unobjectionable, has too often been discussed in decisions and by text-writers, and is too well settled, to require citation of authorities now. This law is uniform in its operation upon all persons and things of the class to which it applies. Plaintiff’s most serious contention appears to be that the law is constitutionally objectionable in principle and provisions, because it is pernicious and unwarranted class legislation, in that it manifestly discriminates unjustly between vehicles propelled by steam and those using other power, and gives townships a defense not available to other governmental units. Class legislation is unconstitutional only when shown to be unreasonable, arbitrary and capricious. If reasonable and for a beneficial public purpose, it is constitutional. The contention that the method of generating power is an unreasonable and illegal basis of legislative action carries the inquiry into the realm of facts and existing conditions at the time of enacting this legislation. Whether at that time, or even when the accident occurred, vehicles of that weight propelled by other power than steam were customarily traveling township highways is, not shown. It can be surmised that various differences might exist between vehicles propelled by steam and others, which demanded different legislative treatment, or that the requirements of traffic on city streets and trunk line thoroughfares, built and maintained by larger, and perhaps wealthier, governmental units, would reasonably warrant imposing upon them different and greater requirements than those exacted for the country roads, built and maintained by townships.

But, however that may be, unless upon its face convincingly arbitrary, capricious, and unreasonable, it is not for the courts to debate the policy and wisdom of such legislative treatment. It was early said by this court, and has been reiterated, that:

“In cases of doubt, every possible presumption, not clearly inconsistent with the language and subject-matter, is to be made in favor of the constitutionality of the act.” Sears v. Cottrell, 5 Mich. 259; Tabor v. Cook, 15 Mich. 323; Attorney General v. Preston, 56 Mich. 179 (22 N. W. 261).

In Orient Ins. Co. v. Daggs, 172 U. S. 557 (19 Sup. Ct. 281), the court thus spoke of classification by legislation:

“We said in that case [Magoun v. Savings Bank, 170 U. S. 283 (18 Sup. Ct. 594)], that ‘the State may distinguish, select, and classify objects of legislation, and necessarily this power must have a wide range of discretion.’ And this because of the function of legislation and the purposes to which it is addressed. Classification for such purposes is not invalid, because not depending on scientific or marked differences in things or persons or in their relations.”

In Missouri Pacific R. Co. v. Mackey, 127 U. S. 205 (8 Sup. Ct. 1161), sustaining an act depriving railroads of the fellow-servant’s negligence defense, claimed to be unreasonable and capricious class legislation, the court said it was—

“Simply a question of legislative discretion whether the same liabilities shall be applied to carriers by canal and stage coaches and to persons and corporations using steam in manufactories.”

This law relates to the use of township highways, a matter of public interest, is both uniform and general in its application to the class and localities upon which it operates, and we think by well-settled rules of construction its provisions were reasonably questions of legislative discretion not inhibited by any constitutional provision.

In support of plaintiff’s contention that Act No. 71, Pub. Acts 1908, was repealed impliedly by Act No. 283, Pub. Acts 1909, it is urged that the latter is a general highway law enacted, as indicated by its title and contents, to cover the whole subject, re-enacting or embracing the substance of meritorious old laws, and otherwise repealing all former highway statutes; and certain provisions of that act not consistent with those of Act No. 71 indicate such intent as to it, particularly that portion of section 15, chapter 2, of the 1909 act, requiring that “all bridges shall * * • * be capable of carrying a ten-ton moving load.” This section deals with “all work hereafter done upon roads and bridges, except such work as may be required for repairs,” etc., by adverb of futurity manifesting an intent that the act shall be operative on subsequent construction, and will not render unlawful that already done in harmony with then existing laws. Act No. 283, Pub. Acts 1909 (1 Comp. Laws 1915, § 4287), is entitled:

“An act to revise, consolidate and add to the laws relating to the establishment, opening, improvement, maintenance and use of the public highways and private roads, the condemnation of property and gravel therefor,” etc.

It ends with the familiar concluding clause:

“All acts or parts of acts inconsistent with or contravening the provisions of this act are hereby repealed.”

It nowhere makes reference to Act No. 71, or the act of which it is an amendment. It makes no mention of and contains no provisions regulating “the use of steam engines, steam wagons or other vehicles which are in whole or in part operated by steam on the public highways of this State.” The earlier act nowhere, in the direct language of any of its provisions, contravenes or is inconsistent with the later.

It is a well-settled and long-recognized rule that repeals by implication are not favored, that where the legislature has enacted a law and clearly expressed its intent it is presumed to continue of the same mind unless it clearly expresses a change, and therefore the language of every enactment must be so construed, if possible, as to be consistent with every other which it does not in clear and express terms repeal or modify. Act No. 71 deals only with steam tractors, regulating their use upon highways, limiting and defining the rights of those who use them, a special object, or class of persons and things, not mentioned in the general act.

“It is but a particular application of the general presumption against an intention to alter the law beyond the immediate scope of the statute to say that a general act is to be construed as not repealing a particular one; that is, one directed towards a special object or a special class of objects. A general law does not abrogate an earlier special one by mere implication.” Maxwell on Interpretation of Statutes (5th Ed.), p. 285.

In People v. Van Pelt, 130 Mich. 623 (90 N. W. 425), this subject is well and fully covered in a case where the same contention is made as here, as follows:

“Whether the act of 1901 operates as a repeal of the act of 1893, therefore, must depend upon whether its provisions are inconsistent with those of the earlier act. In the case of People v. Huntley, 112 Mich. 569 (71 N. W. 178), we laid down the rule that a revisal, under a title similar to the present, repealing all acts repugnant to the provisions thereof, does not affect statutes which are omitted, and which are not repugnant to its provisions, and that the rule of implied repeal is clearly inapplicable where the revising statute declares what effect it is intended to have upon the former law, as where it declares that it shall operate as a repeal of such provisions of the earlier laws as are inconsistent with it, as this is regarded as a declaration that it shall repeal only such provisions, and leave unaffected such as are not inconsistent.”

Whether changed conditions in modes of travel and transportation render a repeal of the act in question advisable is purely a question for legislative determination. As it now stands, we are unable to conclude that it has been repealed by implication, or that it is unconstitutional.

The judgment is therefore affirmed.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Brooke, and Fellows, JJ., concurred.


author: Bird, J.

text:
    WALL v. WALL.
    1. Divorce-^ — Desertion.
    A husband’s absence from his home for a day or two, without his wife knowing his whereabouts, is not such continued absence as constitutes desertion.
    2. Same — Nonsupport—Extreme Cruelty.
    In a suit by a wife for divorce, where it appeared that defendant was without means and derived his income from his labor, and supported his wife generally as well as most persons in similar circumstances, field, that such nonsupport as constituted extreme cruelty was not established.

      3. Same — Extreme Cruelty.
    For a big, husky man to handle his wife, a delicate girl, as though she is his equal in strength, is extreme cruelty if persisted in, although he does not act maliciously.
    4. Same — Personal Violence — Extreme Cruelty.
    The use of personal violence by the husband on his wife was not justified by her mother’s very frequent presence and advice in his home.
    Appeal from Oceana; Sullivan, J.
    Submitted April 3, 1917.
    (Docket No. 5.)
    Decided May 31, 1917.
    Bill by Ida M. Wall against Clayton Wall for a divorce. From a decree for plaintiff, defendant appeals.
    Affirmed.

      F. E. Wetmore, for plaintiff.

      Howard F. Withey, for defendant.
   Bird, J.

Plaintiff filed her bill in Oceana county, charging the defendant with desertion and extreme cruelty. Defendant filed his answer and cross-bill in which he charged plaintiff with desertion and extreme cruelty. At the hearing, defendant waived his cross-bill and expressed a desire to live with plaintiff again. After hearing the testimony, the chancellor expressed considerable doubt as to whether plaintiff had sustained the allegations of her bill, at the same time offering to the parties some wholesome advice, after which he adjourned the case for a time, saying he would determine it later. After a lapse of several months, he granted plaintiff a decree on the ground of extreme cruelty with an allowance for alimony. The defendant, feeling aggrieved over the decree, has appealed to this court.

The parties are young people who were married in November, 1911. At the time, plaintiff was 18 and defendant 19 years of age. Two children were born to them. After marriage, for . a time they lived on and worked land owned by defendant’s father. Later they lived with plaintiff’s parents. In the winter of 1912 and 1913, they were temporarily estranged, but patched up their differences, and in March, 1913, went to Hastings to reside. They remained there until September1, when they separated, and each claims that the other deserted.

1. Plaintiff’s claim that defendant deserted her while at Hastings is not sustained by the proofs. Her testimony, at the most, shows temporary absences of a day or two in length,' without her knowing his whereabouts. No such continued absence is shown as would amount in the law to desertion.

2. One of the specifications of extreme cruelty was the charge of nonsupport. We are not convinced that this charge is sustained by the proofs. Her own testimony, coupled with that of her relatives, who testified in her behalf, tends to show that she was supported generally as well as most people in similar circumstances. Defendant was without means, and his income was derived wholly from his labor.

3. Many instances of personal violence were shown. These present a more serious question and one not so easily disposed of. Some of the charges the defendant denies; others he disposes of by saying they were “rollicking,” or “having fun.” Some of the instances detailed were: In holding'plaintiff down to the floor and marking her face with an indelible lead' pencil with such force that it left ridges on her face. In holding her against the wall and choking her until she could not breathe. Choking .her and injuring her back. Holding her by the legs and making her walk on her hands from one room to another. Other occasions are detailed of pulling her hair, pulling her ears, and kicking her leg, and some of these occurred when she was about to become a mother. Plaintiff assigns cruelty and anger as the cause. Relatives, who witnessed some of the scuffles, think they began in play but ended in anger. Defendant says they were all in fun. For defendant, who was a big, husky fellow, to handle plaintiff, a delicate girl, as though she were his equal in strength, was extreme cruelty if persisted in, even though he were actuated by no malice...

But defendant insists that his troubles have been, in a large measure, due to the visits and interference of his mother-in-law. ' Some of plaintiff’s family, who testified in her behalf, expressed a like opinion. The chancellor seems to have been impressed in the same way, and frankly said so to the parties at the conclusion of the testimony. It is quite likely that the marriage relation of these young people might have survived the rough weather of the first year and a half of married life if they had had fewer visits and less advice from plaintiff’s mother; but, even if it be conceded that the throwing up of their marital relations was due to an overdose of parental attention, defendant cannot justify his acts of personal violence on this ground. His mother-in-law’s presence in his home against his will might furnish an excuse for his temporary lack of interest in his home, and might account for his failure to provide his table as bountifully as he otherwise would, and might also account for his lack of amiability while at home; but it would not justify his use of personal violence on his wife. It is only in cases of great aggravation that a man can justify himself in using personal violence on a woman, and especially is this so when she happens to be his wife.

We are of the opinion that, upon the whole record, this decree should be affirmed.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, Brooke, and Fellows, JJ., concurred.


text:
    VOGELEY v. DETROIT LUMBER CO.
    1. Master and Servant — Workmen’s Compensation Aot — Evidence — Finding of Industrial Accident Board.
    In proceedings for compensation under the workmen’s compensation act for the death of an employee, evidence helé, sufficient to sustain a finding of the industrial accident board that pneumonia was a contributing cause of death, where there was testimony tending to show that decedent was injured in his right side while at work, that traumatic pleurisy resulted and later developed into pneumonia, upon which typhoid fever set in, both maladies causing death.
    2. Same — Appeal and Error — Cause of Death.
    The conclusion of the industrial accident board, on conflicting testimony as to the cause of an employee’s death, is final.
    3. Same — Review.
    When doctors disagree as to the cause of death of an employee, in compensation cases, it is not for the court to decide.
    4. Same — Rehearing—Discretion.'
    There is no abuse of discretion in denying a motion for rehearing of a case by the industrial accident board because of a change of one member in the personnel of the board after the case is presented and before its decision, since a quorum of the commission who heard the case were members when it was decided.
    Certiorari to Industrial Accident Board.
    Submitted April 6, 1917.
    (Docket No. 65.)
    Decided May 31, 1917.
    Mary Vogeley presented her claim against the Detroit Lumber Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Affirmed.

      Berger & Milburn, for appellant.

      Monaghan, Monaghan, O’Brien & Crowley, for appellee.
   Bird, J.

Harry Vogeley, husband of plaintiff, was in the employ of defendant, Detroit Lumber Company, in August, 1913, in the capacity of helper to the machinists. While in the act of bending over to pick up some blocks of wood lying near a moving belt, the belt broke and struck Vogeley in the face, and some of the testimony shows that he was knocked down. He was helped out into the air by his co-workers, and after a short time he returned to his work. He worked a few days following the accident, when he gave up and went home and his wife called the family physician. The physician found him suffering from traumatic pleurisy of his right side. For a day or two he was treated by the family physician, and afterward at the Manufacturers’ Hospital, where the treatment was free. His pain was somewhat relieved by the treatment at the hospital, but he complained of being very weak. The family physician was called in again and found him suffering from typhoid fever. He was then removed to St. Mary’s Hospital, where he died five days later.

Plaintiff filed a claim with the industrial accident board, but it was denied by the committee of arbitration. On appeal to the accident board, additional testimony was taken and an award made of $5.13 a week for 300 weeks. The defendant has removed the proceedings to this court, with the claim that the testimony does not support the award because it shows that:

“The death of Vogeley was not the result of personal injury arising out of and in the course of his employment, but was the direct result of a disease not connected in any way with his employment.”

1. After reviewing the testimony, we are of the opinion that it tends to show that the deceased was struck while at his work by a broken belt and injured about the face, nose and right side; that as a result thereof traumatic pleurisy set in and later developed into pneumonia; that, while Vogeley was suffering with pneumonia, typhoid fever set in, and as result of both maladies he died; and that it shows no connection between the typhoid fever and his employment.

But it is strenuously argued that there is no competent. proof that the injury to his side was caused by the accident. Upon the first visit of the family physician, Dr. Casey, the deceased told him he was knocked down by the belt and injured. In this way he accounted for the soreness in his side. This was followed by an examination. The doctor, in describing the condition in which he found him, said in part:

“I made an examination of him. His face was sore, his nose, he had an injury to the muscles of the right side, and he was suffering from acute pleurisy; that was all I found. He told me he was injured, he told me he was hurt, and I diagnosed it at that time ‘acute traumatic pleurisy.’ Every breath he took, he had excruciating pain. I do not know which side it was, his right or left side; I didn’t make a note of it at the time. I went over him carefully, but that was the chief complaint, was the injury to his side. The result of the cause indicated an injury.”

In this connection, the wife testified that:

When he came home the evening of the day of the accident, “I examined his face and side and saw him when he came home that night. The side was kind of red, but it had not turned black until like the next night, but his face had been already black and scratched, and his nose had been swollen.”

To further establish the connection between the injury and death, it was shown by Dr. Polozker, to whom the hypothetical question covering the facts was put, that:

“It is not infrequent that patients who have been suffering from traumatic pleurisy develop pneumonia. I would not say common, it sometimes^ happens; it is frequent, not common. Pneumonia might have been contributed to or been brought on by this traumatic pleurisy, in my opinion, if the facts are such as have been detailed to me. The patient’s chance for a recovery, if he is suffering from typhoid fever and pneumonia at the same time, are not as good as where the patient is suffering from typhoid fever alone. The chances of recovery are a good deal less I should say.”

And it was shown by Dr. Leo T. McNicholas, an interne at St. Mary’s Hospital, that he diagnosed Mr. Vogeley’s malady when he was admitted therein as pneumonia and it was confirmed by Dr. John Lee, the man on the staff. Upon cross-examination, he testified that the'cause of death was entered in the hospital records as both typhoid and pneumonia.

Under our liberal construction of the rules of evidence in these cases, we think the foregoing testimony, if believed by the board, supports its finding that pneumonia was a contributing cause of death. Rayner v. Furniture Co., 180 Mich. 170 (146 N. W. 665, L. R. A. 1916A, 22 Am. & Eng. Ann. Cas. 1916A, 386). Some of the foregoing testimony is in conflict with the testimony of defendant, and it therefore became a question of fact for the board to determine. The board has passed upon it, and its conclusion must be accepted as final. When the doctors disagree as to the cause of death, in compensation cases, it is not for this court to decide. Lindsteadt v. Lumber Co., 190 Mich. 451 (157 N. W. 64); Deem v. Paper Co., 189 Mich. 655 (155 N. W. 584).

2. A rehearing was petitioned for on the ground that the personnel of the board had changed as to one member after the case was presented and before it was decided. This motion was denied. We see no abuse of discretion in its denial, since a quorum of the commission who heard the case were members when it was decided.

The conclusion of the board is affirmed.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, Brooke, and Fellows, JJ., concurred.


author: Brooke, J.

text:
    PEOPLE v. TALBOT.
    1. Counties — Public Records — Record of Proceedings.
    A printed pamphlet entitled “The Official Proceedings of the Board of Supervisors” held, not of itself a record of the proceedings of such board.
    2. Libel and Slander — Malice—Publication—Presumptions.
    Printed matter charging a public official with being dishonest is libelous per se, and legal malice is presumable from its publication, in a paper.
    3. Same — Justification—Truth of Charge.
    Under the Constitution, Art. 2, § 18, providing that in all prosecutions for libel the truth may be given in evidence to the jury if it shall appear to the jury that the matter charged as libelous was true and was published with good motives and justifiable ends, the accused shall be acquitted, a defendant may only show his good faith and that he published the libel concerning which the complaint is made for justifiable ends after he has shown its truth.
    4. Same — Criminal Law — Directed Verdict.
    In a criminal prosecution for publication of printed matter which, was libelous per se, the fact that the court at first erroneously submitted to the jury the question of malice and later instructed them it was their duty to convict, is immaterial, as, under any view of the case, defendant was properly convicted.
    Exceptions before judgment from Kalamazoo; Weimer, J.
    Submitted April 12, 1917.
    (Docket No. 160.)
    Decided May 31, 1917.
    Truxton Talbot was convicted of libel.
    Affirmed.

      J. M. Alexcmder and R. G. Goembel, for appellant.

      Frank F. Ford, Prosecuting Attorney, for the people.
    On appeal from the municipal justice’s court of the city of Kalamazoo to the circuit court for the county of Kalamazoo, defendant was convicted of criminal libel. The case is here upon exceptions before sentence. The defendant was the owner and publisher of a newspaper called “The People,” in which on the 16th day of September, 1915, the following article was published:
    “Clerk Curtenius, you are dishonest. * * *
    “The official and political life of the county is corrupt and must be purified. * *
    “We must start with the county officials and as the county clerk and clerk of the board of supervisors is the official figurehead, we will do well to bring our guns to bear upon him, not that he is more guilty than others, but his position makes it impossible for the official rottenness that exists to escape his knowledge.
    “I have said that this county clerk, Edward F. Curtenius, was either crooked or incompetent, and I do not believe he was incompetent.
    “I now say that Edward F. Curtenius, county clerk and clerk of the board of supervisors, is dishonest.”
    The ownership of the paper and the publication of the article in question was admitted by the respondent. Respondent, who took the stand in his own behalf, testified that his purpose in publishing the article in question was—
    “to arouse the people to the possibility of allowing their county to be run as it was. apparently run, in view of these reports that were sent out as proceedings of the board of supervisors, from which the people could get no knowledge of the affairs of their county.”
    He further testified that:
    “I believed Mr. Curtenius to be dishonest, and still believe him to be dishonest.”
    The charges made by respondent against the complaining witness seem to have been based upon alleged discrepancies found by the respondent in the annual report of the proceedings of the board of supervisors of Kalamazoo county. A copy of this report seems to have been furnished by the complaining witness to the printer upon the direction of the printing committee of the board of supervisors. After the matter was set up by the printer, proofs were returned to the county clerk’s office, but apparently were not corrected by him or any one in his behalf. The result was that the printed reports contained many errors in extension and addition, and the charges made by respondent against the complaining witness were based upon such errors. Respondent at no time made any effort to determine whether the printed reports corresponded with the proceedings on file in the office of the county clerk, but based his charges of dishonesty solely upon what appeared in the printed report. With reference to the connection of the complaining witness, the county clerk, with the printing of said reports, the following appears:

      “Q. Then, Mr. Curtenius, do you wish to say you had nothing to do with the printing of these reports?

      “A. No, sir; I had nothing to do with the printing.

      “Q. And you have nothing to do with getting them printed?
    “A. No, sir. The committee on printing lets them to the lowest bidder. I have nothing to do with their letting it. They let it to any one they see fit, and I turn the .copy over to them, and then the printer returns the books to my office as county clerk. I have that to do with it and nothing more.

      “Q. Did you ever look over and correct the proof.

      “A. No, sir. It was not my duty to correct the proof, and I was never directed to do so, and I don’t know of any law which requires me to correct the proof of these pamphlets, and the printing committee never asked me to do so. When the bill for the printing is presented it is passed on by the auditing committee, and allowed or disallowed by them, and I have nothing to do with that.”
    This testimony stands uncontradicted upon the record. The respondent offered no testimony tending to show the truth of the libel. As indicated, however, he gave testimony tending to show his honest belief in the truth of the statements published and that he published the libel, “with good motives and for justifiable ends.”
    At the conclusion of the testimony the trial court submitted the case to the jury. The entire charge is not in the record, but from that portion of the charge printed in the record, it is apparent that the only question left to the jury was whether or not respondent had published the libel with malice. After the jury had been out for some time, they returned to court and announced that, “We have agreed to disagree,” whereupon the court instructed them that that was not a verdict, that it was their duty to render a verdict if possible, and sent them back for further consideration. At the end of a half hour, no verdict having been received from the jury, they were recalled by the court, when the court instructed them further, and finally said:

      “I have no hesitation, in view of the fact that you have been unable to agree upon the facts, but inasmuch as you have not been able to, it seems to me under the evidence in this case, the undisputed evidence, and under the respondent’s own testimony, it is my duty to say to you under this testimony that it is your duty to find the respondent guilty as charged.”
    The jury thereupon retired, and a verdict of “guilty” was later returned.
   Brooke, J.

(after stating the facts). But two questions are argued in the brief of appellant, and those only will be discussed. The first question argued is the assignment of error based upon an exception to a ruling of the court that the pamphlets entitled and called “The Official Proceedings of the Board of Supervisors” are not original proceedings of the board of supervisors. We think it apparent that the ruling of the court was entirely correct. The question arose during the examination of Mr. Curtenius, the complaining witness, and he was asked whether the pamphlet was a record of the proceedings of the board of supervisors of the county. His answer was:

“I don’t know whether it is or not.
“Q. Where are those records?
“A. They are in my office.”

The printed pamphlet clearly was not of itself a record of the proceedings of the board.

The only other question argued by counsel for respondent is raised under assignments of error 11, 12, and 13, which refer to that portion of the charge of the court in which he instructed the jury that it was their duty to return a verdict of guilty. With reference to this question it is the contention of counsel for appellant that the question of malice was one for the jury to pass upon, and that the court was without power to give the instruction quoted above. We have frequently held in criminal cases where there is no disputed question of fact, and particularly where no intent was involved, that it was proper for the court to instruct the jury that it was their duty to render a verdict of “guilty.” People v. Neumann, 85 Mich. 98 (48 N. W. 290); People v. Elmer, 109 Mich. 493 (67 N. W. 550). Under such circumstances the court may not coerce a verdict of guilty from the. jury. People v. Warren, 122 Mich. 504 (81 N. W. 360, 80 Am. St. Rep. 582); People v. North, 153 Mich. 612 (117 N. W. 63). The only question before us, therefore, upon this record, is whether the court was right in directing the jury that it was their duty to return á verdict of guilty.” The Constitution (section 18, art. 2) provides :

“In all prosecutions for libels the truth may be given in evidence to the jury; and, if it shall appear to the jury that the matter charged as libelous is true and was published with good motives and for justifiable ends, the accused shall be acquitted.”

It is urged by counsel for the people that the printed matter complained of was libelous per se. With this view we are in accord. It plainly charged a public official with dishonesty in office. The article published being libelous per se, it follows that legal malice must be presumed upon its publication.

Under the constitutional provision above quoted, the respondent may only show his good faith, and that he published the libel of which complaint is made for justifiable ends, after he has shown its truth. In the case at bar there is absolutely no testimony in the record tending to prove the truth of the publication. It, therefore, was entirely immaterial whether the defendant believed what he published to be true or not, or whether he published the article for justifiable ends or not. In Massachusetts there is a statute which contains the same provisions as section 18, art. 2, of our Constitution. The rights of respondent under that statute were considered in Commonwealth v. Snelling, 15 Pick. (32 Mass.) 337. The court there, speaking through Chief Justice Shaw, said

“It may be conceded at once that malice is of the essence of libel, and that any definition or any charge of libel which should not embrace this essential characteristic would be defective. But, admitting this position in its fullest extent, we think it does not conduct the defendant to the conclusion at which he aims. His learned counsel contends that his object was to attack vicious persons and pernicious establishments, injurious to the morals of the community, and to the best interests of society, that his purpose therefore was philanthropic and benevolent, and that he should have been allowed to submit these considerations to the jury to rebut the presumption of malice. We think the fallacy of this argument consists in overlooking the plain and obvious distinction between the legal and the popular meaning of the term ‘malice.’ In a legal sense, any act done wilfully and purposely to the prejudice and injury of another, which is unlawful, is, as against that person, malicious. It is not necessary to render an act malicious, that the party be actuated by a feeling of hatred or ill will towards the individual, or that he entertain and pursue any general bad purpose or design. On the contrary, he may be actuated by a general good purpose, and have a real and sincere design to bring about a reformation of manners; but if in pursuing that design he wilfully inflicts a wrong on others, which is not warranted by law, such act is malicious. * * * The next general ground of the defendant’s exception arises upon the construction of the statute, allowing the truth to be given in evidence, on a criminal prosecution for libel. The exception shortly stated is that the judge instructed the jury in point of law that upon the true meaning and construction of this statute, proof of the defendant’s having heard and been informed of the facts alleged in the publication, upon what he considered credible and good authority, and also that he believed the facts to be true, was not admissible evidence to rebut the presumption of malice,, and that, in order to justify himself under the statute, he must prove the charges to be true, and that he published them with good motives and for justifiable ends. It appears to the court, upon the fullest consideration, that this can hardly be said to be so much the construction of the statute as the plain and literal repetition of its text. * * * But how is this defense to be made? By proof of the truth of the matter, charged as libelous; not his belief of the truth, not his information, nor the strength of the authority upon which such belief was taken up. No question can arise as to the good motive or justifiable end, until the truth is proved. The proviso referring to the motive and purpose is a restriction on the right of the defendant. That is, he shall not be justifiable in publishing even the truth, concerning another, which tends to bring him into hatred, contempt, or ridicule, unless he can show, in addition to proof of the fact, proof that this was published with good motives and for justifiable ends. * * * We think, for obvious reasons, the statute intended to put upon the party making the charge, which is to consign another to infamy by a public stigma, the responsibility of making strict proof of the facts imputed, and to give him the benefit of it if he can show a good motive and purpose in publishing it.”

With this construction of the Massachusetts statute, which is equally applicable to our constitutional provision, we agree. In Whittemore v. Weiss, 33 Mich. 353, this court, speaking through Chief Justice Cooley, said:

“The judge charged the jury that:

“‘Malice is to be presumed from tbe publication, and its falsity; that to rebut this presumption, defendants must prove that they made the publication in good faith, believing it to be true in all its essential parts, and for a proper purpose.’
“Defendants insist that the purpose is immaterial, if they believed what they published, and made the publication in good faith. This might be so if the publication had been true; but good faith cannot protect a false publication, nor can one excuse himself for making a mistaken assault upon his neighbor’s reputation by showing the absence of malice, when, even had his charge been true, there was no proper purpose in bringing the matter to public notice. If one makes an attack which the occasion does not justify, there is no injustice to him in requiring him to show its truth.”

At the conclusion of the testimony it would have been proper for the court to have instructed the jury (responsibility for the publication being admitted by respondent) that the matter complained of was. libelous per se; that its truth had not been shown by respondent, and that therefore the question of respondent’s belief in its truth, or his good faith in publishing it was immaterial, and that it was their duty to render a verdict of “guilty.” That the court at first erroneously submitted the question of malice to the jury, but later instructed the jury that it was. their duty to convict, is, it appears to us, a matter of no consequence to respondent. Under any view that may be taken of the case respondent stands properly convicted of the offense of which he was charged.

The conviction is affirmed, and the trial court is advised to proceed to judgment.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. FELLOWS, J., did not sit.


text:
    ANDERSON v. WARTENBERG.
    Justices oe the Peace — Appeal from Justice’s Court — Time— Statutes.
    A special appeal from a justice of the peace of the city of Detroit to the circuit court of Wayne county in garnishment proceedings is not authorized under section 22, Act No. 475, Local Acts 1903, providing that appeals from such court may be authorized by the circuit court of Wayne county when the party appealing has been prevented from making a defense upon the merits of the case by circumstances not under his control, and also when justice requires that such appeal be authorized, but that no appeal shall be allowed or authorized after five days from the rendition of judgment, except as therein otherwise provided, where principal and garnishment actions were begun before a justice of the peace of the city of Detroit, and, upon return day the garnishee disclosed an indebtedness to the defendant exceeding the amount of plaintiff’s claim, but no service was had upon the nonresident defendant, and plaintiff’s attorneys thereupon notified defendant by letter of such actions and of the garnishment and that judgment would be taken for the amount of the claim and costs unless the defendant was heard from on or before the return day, to which defendant’s attorney replied by letter asking for information of date of return day and offering a settlement, but no answer was made to the letter of defendant’s attorney, by plaintiff’s attorneys and defendant’s attorney wrote them again without reply and also the garnishee, whose attorney informed defendant’s attorney that judgment had been regu-^ larly taken in the actions, and defendant took no further action until more than five days after the actions had regularly proceeded to judgment, when he applied for, and was allowed leave to perfect, a special appeal, which he perfected accordingly.
    Error to Wayne; Knowlen, J., presiding.
    Submitted April 5, 1917.
    (Docket No. 41.)
    Decided May 31, 1917.
    Garnishment proceedings in justice’s court by Mary Anderson against Margaret Marsh as garnishee of Charles W. L. Wartenburg. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.
    Reversed.

      McPherson, Dunn & Mann, for appellant.

      A. Elwood Snow, foi appellee.
    Plaintiff, a resident of Detroit, claims to have negotiated the sale of two lots for defendant, a resident of Saginaw, at a price of $2,800. On April 19, 1916, defendant came to the city of Detroit, where the transaction was completed. The purchaser of said lots, Margaret Marsh, paid said consideration with a certified check for $2,653.91 and an uncertified check for $146.09. Immediately after the conclusion of the transaction, plaintiff demanded compensation for her services as agent in the sum of $140 (being 5 per cent, of the purchase price. Defendant offered $25 in payment of her said claim and, that being refused, paid nothing. Defendant immediately went back to Saginaw. Plaintiff thereupon on the same day started suit in the justice’s court for the city of Detroit, returnable April 25th, and on the same day a garnishment suit was started against Margaret Marsh as garnishee, returnable on April 25th. On the return day of the summons in the principal suit, the same was returned “not served” and an alias summons issued returnable May 1,. 1916. The garnishment summons was duly served, and on the return day the garnishee defendant, Margaret Marsh, disclosed an indebtedness to the principal defendant in the sum of $146.09. On April 25, 1916, which was the return day of the summons, McPherson, Dunn &' Mann wrote the following letter to the defendant:
    “April 25, 1916.
    “Mr. Charles W. L. Wartenberg,
    “Saginaw, Mich.

      “Dear Sir: This is to advise you that in behalf of our client, Mary Anderson, we have begun suit against you for the recovery of commissions for the sale of real estate belonging to you on Newport avenue of this city. We have successfully garnisheed Margaret Marsh in this proceeding. The value of the property sold we are informed is $2,800.00, and we shall hold you to your memorandum to pay the usual five per cent, of this amount. Unless we hear from you on or before the return day in this suit, we shall be obliged to take judgment against you in the amount of $140.00 and costs.
    “Very truly yours,
    “McPherson, Dunn & Mann/’
    This letter was handed by the defendant to his counsel, A. Elwood Snow, for attention, who on the 3d day of May wrote plaintiff’s lawyers as follows:
    “Saginaw, Mich., 5/3/16.
    “Messrs. McPherson, Dunn & Mann,
    “Penobscot Building,
    “Detroit, Mich.

      “Gentlemen: Your favor of April 25, 1916, addressed to Mr. Charles W. L. Wartenberg, has been referred to me for reply.
    “You state in your letter that Mr. Wartenberg must settle before the return day of the suit you have instituted against him, but you do not give him the date of the return day, nor do you say before whom the suit is pending. I would be obliged to you if you would give us that information.
    “Mrs. Anderson told Mr. Wartenberg that she would accept the sum of $50.00 for bringing the parties together, but before he had a chance to send her that amount or refuse to pay her that sum, she commenced suit as we understand.
    “Mr. Wartenberg denies any liability to Mrs. Anderson ill the sale of that property, but is willing to adjust the same and avoid litigation, and is willing to give her the sum of $50.00 for that purpose, but if she is not willing to accept that sum in full, he will stand her a suit.
    “Please let me hear from you by return mail.
    “Respectfully yours,
    “A. Elwood Snow.”
    Receiving no answer to said communication, a second letter was written by Snow to plaintiff’s lawyers on June 13, 1916, which follows:
    “Saginaw, Mich., June 13, 1916.
    “McPherson, Dunn & Mann,
    “Penobscot Building,
    “Detroit, Mich.

      “Gentlemen: On May third I wrote you in regard to the matter of claim of Mrs. Anderson against Mr. Wartenberg of this city, and have received no reply from you.
    “Kindly refer to such letter and make reply.
    “Respectfully yours,
    “A. Elwood Snow.”
    No reply having been received by Mr. Snow to this last communication, he wrote the following letter to Mrs. Margaret Marsh, the garnishee defendant, to whom the principal defendant had sold the lots:
    “Saginaw, Mich., June 26, 1916.
    “Mrs. Margaret Marsh,
    “Grosse Pointe Farms,
    “Wayne County, Mich.

      “Dear Madam: On April 19, 1916, Mr. Charles W. L. Wartenberg of this city sold you a lot in the city of Detroit and on that date you gave him a check in the sum of $146.09 as a balance due on said purchase. A little later you notified him that you had been garnisheed in a suit commenced against him by a Mrs. Anderson and that you had stopped payment on said check. This check has not been paid and I now have possession of same for Mr. Wartenberg, and request that you either redeem this check or inform us of the name of the justice or other officer that issued the garnishee summons served on you, and his address, and the date of same and the names of the parties, so to enable us to defend that case or have same dismissed.
    “It would be much more satisfactory if you would send me the summons or a copy of same.
    “Trusting that you will attend to this by return mail so that this matter can be disposed of at once, I beg leave to remain,
    “Bespectfully yours,
    “A. Elwood Snow.”
    Mrs. Marsh took this letter to her attorney, Mr. H. H. Emmons, who wrote the following letter to Mr. Snow on July 8, 1916:
    “Detroit, Mich., July 8, 1916.
    “A. Elwood Snow,
    “Attorney and Counselor,
    “Merrill Building,
    “Saginaw, Mich.

      “Dear Sir: Mrs. Margaret Marsh has turned over to me your letter of June 28th, in which you request information regarding the case of Mary Anderson v. Charles W. L. Wartenberg, in which Mrs. Marsh was the garnishee defendant. This suit was started on the 19th day of April, 1916, in the justices’ court for the city of Detroit, before Fred E. DeGaw, justice of the peace, the number of the principal case being 89733 and the garnishee case 89734. In the garnishee case Mrs. Marsh disclosed the amount of her indebtedness to Mr. Wartenberg, namely, $146.09. As no service was obtained upon the defendant in the principal case, it was regularly continued under the statute in attachment and simultaneous garnishment, the new garnishment case being No. 90033. Judgment was regularly taken against the principal defendant for $140.25 and $3.00 costs on June 10, 1916, and an order to show cause was taken out against the garnishee defendant, and judgment was taken against her for $143.25 and $2.00 costs on June 26,1916. You will note that there is a balance due Mr. Wartenberg from Mrs. Marsh of 84 cents. I shall instruct Mrs. Marsh to send this money to you on first opportunity.

      “I have taken this matter up with McPherson, Dunn & Mann, the attorneys for Mrs. Anderson, and I was shown a copy of their letter to Mr. Wartenberg of April 25, 1916, in which he was given notice of the institution of the suit and of the fact that Mrs. Marsh had been garnisheed. Therefore, Mr. Wartenberg apparently had ample notice of same, and apparently has waited until too late a day for any defense, the proper proceedings having been taken by the continuance in attachment and simultaneous garnishment in the absence of personal service upon the defendant, and this was followed by regular judgments against the principal defendant and against the garnishee defendant.
    "Very truly yours,
    “H. H. Emmons.”
    In the meantime, the alias summons in the principal case having been returned unserved on May 1, 1916, and the defendant having entered no appearance, plaintiff, under section 12, chap. 67, of Act No. 314, Pub. Acts 1915 (3 Comp. Laws 1915, § 14189), continued the case in attachment by filing the necessary affidavit and bond; the return day of the attachment being May 10, 1916. On May 6th, the garnishment lien in the attachment suit was returned served, and on May 9th the garnishee defendant filed an answer under oath, disclosing an indebtedness to the principal defendant of $146.09, and on May 10, 1916, the return day of the attachment suit, the lien of attachment was returned “not served” on the defendant and no goods and chattels seized, but the return showed that the attachment writ was served on Margaret Marsh, garnishee, whereupon, in accordance with chapter 75 of Act No. 314, Pub. Acts 1915 (3 Comp. Laws 1915, §*14346), the attachment suit was adjourned one month to June 10,1916. On the adjourned day plaintiff was in court and the defendant did not appear, whereupon the justice, after the plaintiff was sworn, rendered a judgment for $140.25 damages, and $3 costs. On June 20,1916, a summons to show cause was issued against Margaret Marsh, garnishee de* fendant, returnable June 26, 1916, and duly served on June 24th. On June 26th, the return day, the defendant did not appear. John G. Duiin was called on behalf of the plaintiff. The affidavit of garnishment and disclosure were offered in evidence, and judgment was rendered against Margaret Marsh for $143.25 and $2 costs. On July 18th, the garnishee defendant paid said sum into court, and on the same day said sum was turned over to the plaintiff and satisfaction of judgment and costs entered on the justice’s docket, both in the principal case and in the garnishee case. On July 21,1916, defendant filed an application in the Wayne circuit court for leave to perfect a special appeal from the judgment rendered on June 10, 1916, on the ground that he had been prevented from making an appeal within five days because of circumstances beyond his control, alleging the fact that no summons or other paper was served on him, and that McPherson, Dunn & Mann had not replied to the letters of A. E. Snow, his attorney. Plaintiff filed an answer to this application and moved to dismiss same, and a hearing was had on July 29,1916, after which hearing an order was entered by Judge Codd of the Wayne circuit court allowing the defendant to bring a special appeal. Defendant perfected his appeal, and the return was filed in the circuit court on August 26, 1916. On September 2, 1916, plaintiff filed a motion to set aside the order entered on July 29th, allowing said appeal, to which defendant in answer thereto filed a motion to dismiss plaintiff’s motion. A hearing was had thereon on September 19, 1916, and after hearing an order was entered by Judge Codd dismissing plaintiff’s motion. The appeal case was thereafter immediately brought on for hearing in the circuit court. There the plaintiff refused to recognize the jurisdiction of the circuit court and took an exception to the ruling of the trial judge who had allowed the special appeal, objected to any further proceedings in the circuit court, refused to put in any testimony, and rested her case upon the record as it then stood. Thereupon, the circuit judge, upon motion of defendant, entered a judgment of nonsuit against plaintiff, to which action an exception was duly taken.
    Plaintiff brings the case to this court for review, raising but one question, namely: Was the circuit
    judge in error.in allowing the special appeal?
   Brooke, J.

'{after stating the facts). The applicable law relative to appeals from justices’ courts of the city of Detroit follows:

“Third. Appeals may be authorized by the circuit court of the county of Wayne, when the party making the appeal has been prevented from making a defense upon the merits of the case in which such appeal is taken by circumstances not under his control; and such appeal may also be authorized when justice requires that such appeal should be authorized, and in all cases where the parties against whom such appeal is sought has appeared in said justices’ courts by an attorney or agent, it will be sufficient to serve such attorney or agent with the notices of all subsequent proceedings in such case and all orders made therein by said circuit court may be served on said attorney or agent, and such service shall have the same effect as though made on the party against whom such appeal is taken.
“Fourth. Under absolutely no circumstances shall any appeal be allowed or authorized after five days from the rendition of judgment, except as herein otherwise provided.” Section 22 of Act No. 475, Local Acts 1903.

The general statute covering appeals from justices’ courts will be found in chapter 78, § 8, of Act No. 314, Pub. Acts 1915 (3 Comp. Laws 1915, § 14408), as follows:

“Appeals may be authorized by the circuit court, or by the circuit judge at chambers, after the expiration of five days, when the party making the appeal has been prevented from taking the same by circumstances not under his control.”

This is but a re-enactment of section 909, 1 Comp. Laws 1897. We are of opinion that the provision for appeals in the general act of 1915 did not supersede the provisions of the local act of 1903 which applied to the city of Detroit only, and that the propriety of the order here questioned must be determined by a consideration of the provisions of the local act. That act has been before this court for consideration several times. Goldhamer v. Wayne Circuit Judge, 107 Mich. 259 (65 N. W. 97); Stock v. Wayne Circuit Judge, 143 Mich. 339 (106 N. W. 897); Huddleston v. Amos & Co., 180 Mich. 253 (146 N. W. 658). From these decisions it is apparent that the circuit court is not clothed with discretionary power with respect to granting dilatory appeals, and that no appeal may be allowed after five days unless the showing required by section 8, chap. 78, of Act No. 314, is made. This brings us to a consideration of the petition filed by the defendant for leave to perfect a delayed appeal. In said petition defendant sets out the fact that he received the letter of April 25, 1916, written by McPherson, Dunn & Mann, that he turned the same over to his attorney, Mr. Snow, for attention, that he was never served with any summons or other paper notifying him of the commencement of suit against him by the plaintiff, and that it was not until the 17th of July, 1916, that he was informed by his attorney that a judgment had been taken against him, and further:

“Petitioner further represents that ‘he did not know of said judgment or in what court same was obtained or the return day of the case until after the expiration of five days from the date of said judgment, and that he never had an opportunity to defend same or appear in said cause and court, and that the statutes of this State were not complied with in making service, as no service of any paper was made upon him, and that such judgment is void and of no force and effect.”

This application was supported by his own affidavit setting out the correspondence of Mr. Snow with McPherson, Dunn & Mann and with Margaret Marsh, as well as the reply of Mr. Emmons to the Marsh letter. The application was accompanied by no affidavit of merits.

The only question for determination is whether the Showing made by the defendant was such as to warrant, the court in granting leave to perfect a delayed appeal upon the ground that the defendant had been prevented from making a defense upon the merits of the case or had been prevented from taking an appeal within.. five days from the entry of judgment by circumstances not under his control. We feel constrained ■to say that the showing made by the defendant was insufficient under the authorities. Through his counsel, he claims to have been deceived both by the action and the nonaction of the plaintiff’s attorneys. Their action in writing the letter of April 25th induced him to believe that the matter was open for adjustment, and their nonaction in replying to Mr. Snow’s letters led him to believe that the case was being continued for the purpose of considering his offer of adjustment. We are of opinion that a just conception of professional courtesy would have impelled plaintiff’s attorneys to promptly reply to Mr. Snow’s letters. We are unable to reach the conclusion that their failure to reply was an excuse for defendant’s inaction. Indeed, that very failure should have been accepted by the defendant as a warning. All the circumstances surrounding the transaction were such as to put the defendant upon notice. He had had a difference on April 19th with the plaintiff upon the subject of her commission, and he held an uncertified check of Margaret Marsh’s for $146.09 upon which payment was immediately stopped. This fact alone was sufficient to put plaintiff upon inquiry, yet he held that check from April 19th to June 26th, upwards of two months, before making inquiries from the drawer of the check. He had notice on April 25th of the commencement of suit and the institution of garnishment proceedings. Final judgment in the attachment case was not rendered until June 10, 1916, some 40 days later. No legal duty rested upon plaintiff’s attorneys to notify defendant of the institution of said proceedings. They appear to have proceeded in strict accordance with the statute providing for attachment proceedings. That the defendant chose to rely upon what he considered to be negotiations for an adjustment with plaintiff’s attorneys, rather than to protect his rights through an appearance and defense in the case or an appeal within five days after judgment, is unfortunate, but in our opinion insufficient, under the authorities cited, to warrant granting a delayed appeal.

The judgment will be reversed, and the order granting the special appeal will be vacated and set aside.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Fellows, JJ., concurred.


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    WHITMAN v. COLLIN.
    1. Automobiles — Negligence—Contributory Negligence — Question for Jury.
    In an action to recover damages for injuries to plaintiff’s automobile from a collision with, defendant’s automobile, held, that it was a question for the jury whether plaintiff was guilty of contributory negligence.

    2. Same — Discovered Negligence — Question for Jury.
    Whether defendant should have discovered the alleged negligence of plaintiff in driving and operating his car in time to avoid such collision was a question for the jury, under the evidence.
    3. Appeal and Error — Automobiles—Evidence—Harmless Error.
    In an action to recover damages for injuries to plaintiff’s automobile due to a collision with an automobile of defendant, the admission of plaintiff’s affirmative answer to the question whether he was able to stop his car in time to avoid hitting people who would walk in front of it, was, if erroneous, not prejudicial to defendant.
    Error to Wayne; Murphy, J.
    Submitted April 13, 1917.
    (Docket No. 149.)
    Decided May 31, 1917.
    Case in justice’s court by Frederick W. Whitman against Frederic C. Collin for damage to plaintiff’s automobile. There was judgment for plaintiff and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Carey, Armstrong & Weadoelc, for appellant.

      Vincent M. Brennan, for appellee.
    On appeal from justice’s court plaintiff recovered a verdict of $438.65 against defendant as damages re-suiting from the alleged negligence of defendant in causing a collision between plaintiffs automobile and defendant’s automobile. The accident occurred about midnight at the corner of Grand River avenue and Woodward avenue, in the city of Detroit. Plaintiff was in the act of crossing Woodward avenue from east to west. Upon reaching the avenue he stopped his car on the easterly side thereof and waited the passage of two cars going north, when he started his car in low speed to cross the street. At the time he started up he saw two cars coming south on Woodward avenue a block and a half or two blocks north, but was unable at that distance to determine their speed. He testified that he believed he had time to cross ahead of the southbound machines, and went slowly forward, changing his gears into second speed as he crossed over the street car tracks. The oncoming south-bound car belonging to the defendant was in plaintiff’s view all the time until the actual collision. The front end of defendant’s machine struck plaintiff’s machine near the hind wheel, causing considerable damage. It is quite clear that at the time of the collision the plaintiff’s machine was proceeding at a low rate of speed, and the evidence in the record tends to show that defendant’s machine was being operated at a high and unlawful rate of speed, to wit, 30 or 35 miles per hour. Defendant gave evidence tending to show that he was operating his car at not to exceed fifteen miles per hour, and that he did not see plaintiff’s car until he was within six feet of it; that as soon as he observed plaintiff’s car he put on his brakes and turned sharply to the east, but was unable to avoid the collision.
    The court submitted the case to the jury under very careful and elaborate instructions as to plaintiff’s contributory negligence, defendant’s negligence, and as to plaintiff’s discovered negligence.

      On effect of speed and application of speed regulations on liability for collision between automobiles, or an automobile and another vehicle, at or near corner of street or highway, see note in L. iR. A. 1916A, 747.

   Brooke, J.

(after stating the facts). In this court the case is argued under three heads:

(1) Plaintiff was guilty of contributory negligence.
(2) The question of discovered negligence should not have been submitted to the jury.
(3) Certain testimony should not have been admitted.

1. With reference to the first question argued by appellant it is sufficient to say that we are of opinion that the testimony in the case was such as to raise a question of fact for the determination of the jury.

2. The same may be said with reference to the question of discovered negligence. If, as claimed by the defendant, the plaintiff operated his car across Woodward avenue in a negligent manner, that is, if he was negligent in failing to stop upon the car tracks and permit the defendant to cross in front of him or negligent in operating his car in a westerly direction at too slow a rate of speed, the question whether defendant should have observed his negligent act in time to have avoided the accident after such observation was one for the determination of the jury, and it was submitted to them for such determination under sound and well-considered instructions.

3. The only testimony objected to by counsel for defendant is the following, occurring in the examination of the plaintiff:

“Q. Were you able to stop your car in time to avoid hitting people who would walk in front of it?
“A. Yes, sir.” ■

Even if the admission of this answer was erroneous, which we find it unnecessary to determine, it was clearly without prejudice to the defendant.

The judgment is affirmed.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Fellows, JJ., concurred.


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    LONGTON v. STEDMAN.
    1. Injunction — Equity—Permanent Structure — Right of Way —Continuing Trespass.
    Evidence held, sufficient to sustain the allegation of a bill for a mandatory injunction, entitling plaintiff to relief by compelling defendants to remove that portion of their building encroaching upon a five-foot strip claimed by plaintiff as a way, and payment of damages.
    2. Limitation of Actions — Easements—Trespass—Continuing Trespass — Injunction.
    A bill for a mandatory injunction to abate and restrain a continuing trespass is not barred until the trespasser has extinguished the claimed easement by adverse possession for a period of fifteen years.
    Appeal from Kalamazoo; Weimer, J.
    Submitted April 4, 1917.
    (Docket No. 24.)
    Decided May 31, 1917.
    Bill by William P. Longton and another against Henry H. Stedman and another to enjoin an encroachment upon plaintiffs’ land. From a decree for plaintiffs, defendants appeal.
    Affirmed.

      Charles L. Dibble, for plaintiffs.

      Alfred S. Frost, for defendants.
   Brooke, J.

This case is now before the court for the second time. The opinion rendered upon its first consideration will be found reported at 182 Mich. 405 (148 N. W. 738). A perusal of that opinion will make a restatement of fact unnecessary.

When the bill was filed the defendants interposed a demurrer, alleging 18 different grounds for the dismissal of the bill, and an order was entered in the circuit court sustaining said demurrer. On appeal to this court a very careful and full consideration was given to the averments contained in the bill of complaint and the grounds of the demurrer filed on behalf of the defendants. We there held, assuming the allegations in the bill of complaint to be true, that the plaintiffs were entitled to the relief prayed, and remanded the case to the circuit court, with permission to defendants to answer. The parties went to a hearing in the court below, and considerable testimony was taken, at the conclusion of which a decree was rendered in accordance with the prayer of the bill commanding the defendants to remove that portion of defendants’ building encroaching upon the five-foot strip, claimed by plaintiffs as a way, within 90 days from the signing of the decree, and further ordered the defendants to pay to plaintiffs $100—

“As and for compensation for the damage to said complainants from the continued infringement of their said easement for the period of six years next precede ing the institution of this suit.”

From the decree so rendered defendants have appealed, and in this court counsel argues for a reversal of the decree for the following reasons:

“First. The plaintiffs never acquired any legal rights through the restrictive covenant contained in the deed given by James Baumann and wife to Han-ford.
“Second. That if the said covenant created an easement, such easement was personal or an easement in gross, and was not assignable.
“Third. That said restrictive covenant had been abandoned by the subsequent conveyances of the property now owned by the plaintiffs and that owned by the defendants.
“Fourth. That if said covenant contained in deeds Exhibits A and I created an easement which has not been abandoned, was transferable, and had been legally assigned to plaintiffs, they have lost all rights they might have had by their laches, as said covenant constituting or creating said easement was broken when the building was erected nearly 14 years before suit was commenced.
“Fifth. That the plaintiffs are estopped by their laches from claiming any affirmative relief in said cause.
“Sixth. That the statute of limitation is a complete bar to plaintiffs’ right of action, either in law or equity.”

We have read the evidence introduced in the case with care, and have no hesitation in saying that the allegations contained in the bill are fully sustained by the proofs. That being true, it will be found that the first, second, third, fourth, and fifth grounds for reversal are fully covered by the opinion already rendered in the case.

With reference to the sixth ground urged, appellant relies upon the statute (section 14141, 5 How. Stat. [2d Ed.], 3 Comp. Laws 1915, § 12323), which provides that:

“All personal actions on any contract, not limited by the foregoing sections, or by any law of this State, shall be brought within ten years after the accruing of the cause of action, and not afterwards.”

A sufficient answer to this contention is found in the fact that plaintiffs’ action is not based on any covenant. It is an action in which plaintiffs seek by the aid of a mandatory injunction to abate and restrain a continuing trespass. This action is open to plaintiffs at any time until the trespasser has extinguished the easement claimed by plaintiffs by adverse possession 15 years.

The decree is affirmed, with costs.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Fellows, JJ., concurred.


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    PEOPLE v. HODGES.
    1. Criminal Law — Homicide—Indictment and Information — Intent — Assault.
    Under an information charging defendant with assault with, intent to hill and murder a certain person, where the evidence disclosed that such person was a bystander and not the one against whom defendant’s acts were in fact directed, and the jury found that defendant was guilty of assault with intent to do great bodily harm less than the crime of murder, defendant would have been guilty of murder if such person had died from the assault.
    2. Same — Presumptions.
    The law presumes every person to intend the usual consequences which accompany the use of the means employed in the manner employed.
    Error to Jackson; Parkinson, J.
    Submitted April 12, 1917.
    (Docket No. 159.)
    Decided May 31, 1917.
    Charles Hodges was convicted of assault with intent to do great bodily harm less than the crime of murder, and sentenced to imprisonment for not less than five nor more than ten years in the State prison at Jackson.
    Affirmed.

      William, K. Sagendorph, for appellant.

      Nathan E. Bailey, Prosecuting Attorney, and M. Grove Hatch, Assistant Prosecuting Attorney, for the people.
    The information in this case charged respondent with an assault upon one Edward L. Merritt with intent to kill and murder said Merritt. The facts out of which the prosecution grew were briefly as follows: In the afternoon of August 2, 1913, respondent had sold to one Green, a farmer, a team of horses. It appears that after the trade was complete Green asked the opinion of one Honsinger, a blacksmith, about the horses. Honsinger made some disparaging remarks about the horses, and likewise said that respondent Hodges was a horse trader and dishonest. Resenting the acts and language of Honsinger, respondent and Honsinger shortly came to blows. A violent and somewhat protracted fight ensued in which Honsinger seems to have inflicted more punishment upon respondent, Hodges, than he received from Hodges. The men were finally separated, and did not meet again until several hours later. About seven o’clock in the evening-respondent entered Schneider’s saloon. Several men were in the barroom, and among them Honsinger and Merritt. Shortly after entering the saloon, respondent drew a revolver and pointed it toward Honsinger, who at the time was walking toward respondent. Respondent pulled the trigger, but no explosion followed, because the particular chamber in apposition proved to be unloaded. Almost immediately respondent pulled a second time, when an explosion followed. The bullet entirely missed Honsinger, at whom it was aimed, but lodged in the shoulder of Merritt, passing nearly through his body. It is undisputed that respondent had never seen Merritt before the moment of the shooting and bore him no ill will. Respondent pleaded not guilty to the information. At the conclusion of the case made by the people respondent, through his counsel, made a motion. This motion was understood by the trial court to be for a directed verdict upon the ground:
    “That the evidence shows, if this man committed an offense at all, it was an assault upon Honsinger with intent to murder Honsinger, and it appears beyond dispute at this stage of the case that he hit and wounded Merritt when he fired the shot which was intended for Honsinger.”

      Counsel for defendant corrected the court, saying:
    “It is my opinion, even if that were true, that the information would not necessarily or entirely fail. I think from the facts there might be a case still on this information for assault and battery, because there are some text-books which hold intent is not necessary in an assault.”
    In this court counsel for respondent treats his motion as one for leave to enter a plea of guilty to the charge of assault and battery. The motion, whatever it was, was denied by the court, and respondent took the stand in his own behalf. It was his claim that he drew the revolver and pointed it at Honsinger under the belief that it was unloaded and with the idea of intimidating Honsinger. He did not claim to have fired the shot in self-defense. The court charged the jury in part as follows:
    “The information does not mention Mr. Honsinger, and it has been claimed here for that reason, inasmuch as all the proof on the part of the people is that the real purpose was to hit and kill or wound Honsinger, that the jury cannot consider the case. But it is the duty of the jury to take the law from the court, and I conceive it my duty, in the absence of a decision that is squarely in point in this State, to say to you that, even if his purpose in shooting was to hit Hon-singer, if he did hit Merritt, doing an unlawful act in that way, he may be considered as intending the natural and probable results of his shooting, and if there was intent to kill Honsinger, but he hit Merritt, that unlawful purpose, design, or intent entertained against Honsinger will pass over and to characterize the act in shooting and hitting Merritt. Therefore you should not acquit because it is charged that he intended to kill Merritt, although the proof shows that his primary purpose, if he had any such intent at all, was to either kill or hit and hurt Honsinger. * * *
    “I have already said, perhaps, in almost the same language, and I will repeat, that the charge is on its face an intent to murder Honsinger, but the pistol ball hit Merritt as a matter of fact. Merritt was in company of others. Honsinger was in company of others. They were practically in the company of each other, and there were other men there. Now, if in shooting at Honsinger and hitting Merritt, Hodges was seeking to kill or inflict great bodily harm on Honsinger, he was committing a felony, and if others stood around there, and one, not Honsinger, was hit, and, shooting in that way, it was likely and probable he might hit some of the others instead of the one he wanted to hit, then the_ intent to hit Honsinger, if it was the intent to kill him or do him great bodily harm less than murder, the intent passes right over to Merritt, because the jury has a right to infer that if a man does an act of that kind with a weapon of that kind he does intend whatever happens. He takes his chances whether he will hit the right fellow or not.”
    A single request to charge was presented on behalf of respondent as follows:
    “I charge you, gentlemen, that the people cannot sustain a conviction for attempt of murder under their information; that the people’s information charges Hodges with intent to murder Merritt, and the proof shows that the injuries received by him were entirely accidental; therefore Hodges cannot be convicted under this information with any offense with which an intent is coupled. Under the proofs as they now stand under the information, your verdict must be not guilty.”
    The jury brought in a verdict finding respondent guilty of assault with intent to do great bodily harm less than the crime of murder, under which verdict respondent was sentenced to State’s prison for a maximum period of ten years and a minimum period of five years and a recommended maximum period of seven years.
    The sole question raised upon this record is whether respondent under an information charging an assault with intent to kill and murder Merritt is properly convicted of the included offense of which he is found guilty, when the evidence conclusively shows that when he fired the shot which took effect in Merritt’s body, if he had any intent, it was an intent to kill or wound Honsinger.
   Brooke, J.

(after stating the facts). The jury evidently disbelieved the claim of respondent that he pointed the revolver at Honsinger and snapped it twice with the purpose merely of intimidating Honsinger and under the belief that it was unloaded. Under the evidence in the case and the verdict found by the jury it cannot be doubted that, had Merritt died from the effect of the wound, respondent would have been guilty of murder. Maher v. People, 10 Mich. 212 (81 Am. Dec. 781); People v. Garbutt, 17 Mich. 9 (97 Am. Dec. 162); Roberts v. People, 19 Mich. 401; Wilson v. People, 24 Mich. 410; People v. Lilley, 43 Mich. 521 (5 N. W. 982). Indeed, that this would be true is admitted by counsel for respondent. The rule touching the question involved is laid down in volume 1 of McClain on Criminal Law, § 126, as follows:

“From the rule above stated with reference to inferring the intent from the act, it follows that, where a specific intent is required, it may be inferred from the doing of an unlawful act implying such intent, even though the actual intent was different. Thus, if the charge is of shooting with intent to kill A., the crime will be made out by proof of unlawfully shooting and injuring A., and it will be immaterial that defendant actually intended to kill B. and hit A. by mistake.”

See, also, section 276, Id.

We are of opinion that the case at bar is governed in principle by People v. Raher, 92 Mich. 165 (52 N. W. 625, 31 Am. St. Rep. 575). There the respondent was convicted of an assault with intent to do great bodily harm less than the crime of murder upon the person of one John Peterson. Other persons besides Peterson were standing near when the respondent fired a revolver wounding Peterson in the head. The court was requested to instruct the jury that they must find the specific intent to assault Peterson. This request was refused, and the court instructed them that, if respondent shot into the crowd with the intention to wound any of them, he might be convicted, notwithstanding he had no specific intent against Peterson. This court affirmed the conviction. The law presumes every person to intend the usual consequences which accompany the use of the means employed in the manner employed. People v. Potter, 5 Mich. 1 (71 Am. Dec. 763); People v. Getchell, 6 Mich. 496. A case very similar to the one at bar is Dunaway v. People, 110 Ill. 333 (51 Am. Rep. 686). There the court said:

“The charge is, defendant assaulted Hendrickson with intent to commit murder, and the insistence is, no such intent is shown, because the intent was to murder Hartwell. The reasoning on this branch of the case is too subtle to be adopted with safety. Undoubtedly there are cases that hold the doctrine contended for, and so many of the early text-writers wrote, but the better and more modern doctrine is against the position taken. Conceding, as is done, had the shot fired by defendant killed Hendrickson, it would have been murder, the proposition the severe wounding by the same shot would not have been done with intent to commit murder — that is, to commit the greater crime that might have been the result — finds no sanction either in reason or the analogies of the law.”

See, also, State v. Meadows, 18 W. Va. 658; Callahan v. State, 21 Ohio St. 306; and 21 Cyc. p. 786.

The judgment is affirmed.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, and StEere, JJ., concurred. Fellows, J., did not sit.