text:
    SEAMAN v. RINDGE, KALMBACH, LOGIE & CO.
    1. Mortgages — Contracts—Trial—Instructions.
    In an action by the assignee of the interest of a mortgagor in a fire insurance policy on a stock of merchandise for breach of an alleged contract made by insured with defendant’s authorized attorney, that it would take out a policy of insurance which would also protect the interest of the mortgagor as well as that of other creditors, for whom defendant was trustee, helé, that an instruction that if the attorney had no authority to make such agreement then it must appear that defendant, or some one acting for it, afterwards consented to the agreement and took out the policy to protect his interest as well as their own, was misleading.
    2. Same — Contracts—Consideration.
    A contract between a mortgagor of a stock of merchandise and an attorney for the trustee for creditors for the taking out of a policy of insurance by the trustee which would protect the interest of the mortgagor, at the time a new mortgage was given for a larger sum than originally given, was based upon a sufficient consideration.
    3. Same — Evidence—Parol Evidence — Written Contract — Oral Contract to Insure.
    Where a mortgage on a stock of goods provided that the mortgagor should keep the interest of the mortgagee in the goods insured against loss by fire and that in default, within a specified time, it would be lawful for the mortgagee to effect such insurance and the premium paid should be a lien added to the amount secured, helé, that an oral contract that the mortgagee should take out a policy of insurance to protect the mortgagor’s interest as well as that <*f the mortgagee, was not void as changing the terms of the mortgage by oral testimony.
    4. Damages — Breach oe Contract — Mortgages—Notice—Duty to Lessen Damages.
    Where the owner of a mortgaged stock of merchandise was informed of the breach of an agreement by a trustee for creditors, who was also a mortgagee, to insure for the owner as well as for such trustee a sufficient time before a fire to attend to it himself, it was his duty to do so, and in such case the measure of damages is not the loss resulting from a subsequent fire, but the value of the policy at the time the failure to insure was discovered.
    5. Mortgages — Breach of Contract to Insure — Damages—Evidence.
    In an action by the assignees of the owner of a stock of goods to recover damages for an alleged breach of a contract by a trustee for creditors to insure for the owner, as well as for the trustee, said goods, upon which defendant held a chattel mortgage and policy of insurance . as trustee for creditors, evidence held, insufficient to show that the goods destroyed exceeded in value the owner’s indebtedness to the trustee.
    Error to Kent; McDonald, J.
    Submitted October 25, 1916.
    (Docket No. 108.)
    Decided March 30, 1917.
    Assumpsit by Rudolph Seaman and another, as assignees of Elmer P. Forbes, against Rindge, Kalmbach, Logie & Company, Limited, for breach of contract. Judgment for plaintiffs. Defendant brings error.
    Reversed.

      Corwin & Souter, for appellant.

      Smedley & Linsey, for appellees.
   Steere, J.

Plantiffs brought this action as assignees of Elmer P. Forbes to recover damages for an alleged breach of a contract by defendant to insure for Forbes as well as itself his stock of merchandise at Chippewa Lake, Mich., upon whicji defendant held a chattel mortgage and policy of insurance as trustee for certain creditors. Plaintiffs, who are relatives of Forbes, were not witnesses in the case, and apparently had no personal knowledge of the transactions involved. Their declaration alleges, and it is not denied, that Forbes assigned to them “all his right, title, and interest in and to said policy of insurance and all his right of action herein set forth against said defendant.”

On July 17, 1912, Forbes, who resided at Chippewa Lake, Mich., was engaged, amongst other activities, in running a general store of limited capacity, and had become indebted in an amount slightly exceeding $1,-400 to Rindge, Kalmbach, Logie & Co., the Grand Rapids Dry Goods Company, and the Judson Grocery Company. Lester J. Rindge held, as trustee for the benefit of these three creditors, a $1,000 chattel mortgage covering Forbes’ stock of merchandise and fixtures. The condition of his accounts was such that the creditors were dissatisfied, and Mr. Stanton, of the Judson Grocery Company, after consultation with Rindge, engaged the services of the attorney who had usually looked after the Judson Grocery Company’s collections, but in this action appeared as attorney and witness for plaintiffs, to visit Chippewa Lake and, as he testifies, “look the situation over and get more security if I could.” He did so, and obtained from Forbes a new chattel mortgage for $1,407.75, dated July 17, 1912, in the plaoe of the former one, running to Rindge as trustee, which, among other things, provided that the mortgagor should—

“keep the interest of the parties of the second part in said goods and chattels insured against loss or damage by fire, and in default thereof, within ten days, it shall be lawful for said second party to effect such insurance and the premium so paid shall be a lien added to the amount secured hereby and payable forthwith.”

At the time this mortgage was executed the stock was insured for $2,500 and they had some talk about insurance. The attorney states that he told Forbes—

“the chances are that these agents up here, as quick as they learn of the chattel mortgage, will cancel the policy. * * * If they cancel the insurance, let us know, and we will take out insurance down there,” etc.

Forbes testified that the attorney said:

“If there was any objection to the policy, * * * he would have it insured down at Grand Rapids. * * * ■ I should see that these companies were informed of the mortgage, and if there was any objection, that I should inform him of it. * * * I understood it was to be made out the same as they had always been.”

On his return to Grand Rapids the attorney made a report on Forbes’ financial condition and prospects, and of securing the new chattel mortgage, but not in regard to any assurances or understanding between himself and Forbes as to insurance beyond what appeared in the mortgage. He stated that he “had quite a struggle” to get his clients to accept this mortgage and extend the time of payment for a year. Mr. Stanton, who had been the active party in sending the attorney to Chippewa Lake, then called up Mr. Rowe, an insurance agent of Grand Rapids, with instructions “to protect him,” and directed Rowe to call up the attorney for particulars. Mr. Rowe testified that he did so, and obtained from the attorney a description of the property and the name of the party to whom the policy was to be issued. The policy, dated July 20, 1912, was for $2,500, and ran to Rindge as trustee for the three named creditors. It was renewed the following year in the same form, except that the trustee was changed to defendant, owing to the intervening death of Mr. Rindge, which occurred May 15, 1913. These policies, each for the term of one year, also contained an “iron safe clause” requiring insured to take an inventory and keep books and keep the same in the safe when the store was not open for business. • On the same date the attorney wrote Forbes, saying, amongst other things:

“We don’t like to be without insurance, and therefore we have insured your stock and fixtures here in this city for $2,500.. As soon as you get policies send them to us and we will cancel those that we have taken out. In the meantime you as well as the creditors are protected.”

He had not seen this policy, and was not informed of its provisions beyond what he might infer from the particulars he gave Rowe. On July 23d Forbes answered the letter, thanking the attorney for placing him “on a solid footing,” and two days later wrote that the local agent refused to carry his insurance. Neither Stanton nor Rindge had authorized the attorney to give such assurances, or knew of the correspondence until after the attorney was employed by Forbes, or his assignees. Forbes was required to and ultimately did pay the premium on this insurance, although he allowed his check for the same to be protested for nonpayment. He states that he never wrote Mr. Rindge about the insurance of his stock of merchandise.

In the spring of 1913 the condition of Forbes’ indebtedness, credit, and stock of merchandise was such that these creditors were unwilling to carry him longer on the stock alone as security, and a real estate mortgage on his store building was added. The chattel mortgage was renewed for another year when it fell due, in the name of defendant as trustee in the place of L. J. Rindge, trustee, then deceased. The insurance was also renewed for another year with the name of the insured also changed from Rindge, trustee, to defendant as trustee. These policies were to the trustee as though owner, and made no mention of Forbes. After the death of Lester J. Rindge, who had acted as trustee, his son, Harry C. Rindge, had charge of credits and collections for their firm. He wrote Forbes a number of letters urging him to make payments on his mortgage, amongst other things to take care of the premium for insurance on his real estate, which Rindge had placed for him, and stating the amount of the same. This Forbes acknowledged, expressing gratification that Rindge had “succeeded in getting” it and promising to send the money for it as soon as he could possibly spare it. He, however, was unable to keep up his payments as they came due, and increased his indebtedness until finally further credit was denied him. He testified of this:

“I was buying in small lots most assuredly. I know I was hard up, and small checks went to protest.”

As early as June 19, 1913, he wrote to Stanton complaining:

“I have to send the money before I can get the goods; consequently I am short on many things before I can get an order from you and have to buy locally with no profit and I cannot keep the trade and be out of goods.”

A Mr. Hughes, sent by defendant at about that time to look up the condition of the security, testified that he found a very dilapidated stock which he estimated worth $1,225, including fixtures.

About the first week in September, 1913, Forbes and his wife were in Grand Rapids, and called at the office of defendant, where they talked with Harry Rindge about their indebtedness. Mrs. Forbes testified that she . asked him in regard to the policy on the stock whether “if anything should occur, we are protected as well as yourself. And he said, ‘Yes,’ the policy did so.” This Rindge denied, and testified that their only talk about insurance was in regard to the policy which he secured on the real estate, and of which he had written them repeatedly urging them to pay the premium, which they had failed to do.

Forbes had one fire the latter part of September, 1913. The resulting loss on stock and building was adjusted by- an adjuster named Shaw, who visited Chippewa Lake for that purpose. He testified that when Forbes signed proofs of loss on the building he asked about proofs of loss on the stock, and Shaw told him he had no interest in that policy, which was issued to defendant; that he did not go into the back room, but looked over the stock in the store, which was light, and in his estimation worth at the outside between $600 and $700.

Early in November, 1913, Harry Rindge sent one of their salesmen to Chippewa Lake to investigate conditions there, as'Forbes continued to be delinquent in his payments and allowed checks to go to protest. This salesman was at the store on November 2, 1913, and testified that on an examination of the stock on hand he estimated that it would not exceed $1,000, including fixtures. On the following day, November 3d, Mrs. Forbes took her children and drove to Big Rapids to visit relatives. About noon Forbes locked the store and went to the hotel for dinner. Not long thereafter a fire broke out in the store, destroying it and its contents. A week later Mr. Logie, one of the defendant firm, in company with Shaw, the insurance adjuster, called on Forbes for his inventory and books to endeavor to make adjustment on his stock and fixtures. Forbes opened his safe and took out an inventory taken 11 months previous at the instance of the attorney of plaintiff, then acting for the Judson Grocery Company, and some check books, stating that all his other books and invoices had been left out of the safe when he went to dinner and were destroyed by fire when the store burned. The adjuster then refused to enter upon an adjustment, and Forbes was later called before the insurance commissioner at Big Rapids, where he was examined in regard to the fire. He there claimed that he had over $1,700 worth of stock in the store, but in an endeavor to specify the goods and their values he was not able to total more than $974. Defendant put the matter in the hands of its attorney to try and secure an adjustment of the loss under the policy of insurance it held on the stock of merchandise. He was at Chippewa Lake, and asked Forbes to furnish an itemized statement of the loss, which the latter replied he could not do because he had left everything out of the safe excepting the inventory. Later the attorney secured Forbes’ testimony taken at the inquiry before the commissioner at Big Rapids, and with such other evidence as he could procure went over the matter with the adjuster, reaching a.tentative adjustment of the loss in the fore part of December, but made no settlement then.

On November 20th plaintiff’s attorney, then representing Forbes, wrote defendant that insurance on Forbes’ stock was taken out in its name by mistake, and the adjuster refused to recognize Forbes in the matter, asserted the latter had an interest in the policy, and notified defendant not to cancel and surrender it “until Mr. Forbes has also received his money.” On December 24th defendant’s attorney wrote plaintiff’s attorney that, as the loss had never been adjusted, they had taken up the matter and effected an adjustment for $737.38 on the fixtures and $950 on the stock; that Forbes owed the three creditors for whom defendant was trustee, and for whose benefit it had taken out the policy, $1,628.44, with interest, and, if Forbes would pay this indebtedness, defendant would turn over the policy to him, but, if he did not accept the proposal within a reasonable time, defendant would accept the amount of such adjustment from the insurance company. In reply to this plaintiff’s attorney wrote that Forbes’ loss was in excess of the amount of the policy, and the proposed adjustment was not acceptable.

Defendant ultimately adjusted the loss with the insurance company for $1,687.38, and this action was brought by Forbes’ assignees to recover the difference between the amount of the policy and defendant’s claim. The trial resulted in a verdict and judgment in favor of plaintiffs for $852.34. Upon the trial defendant’s counsel moved for a directed verdict in its favor on various grounds, which was denied, and amongst numerous requests asked the court to charge as follows:

“(12) If -you find that Mr. Shaw, the insurance adjuster, told Mr. Forbes on the 24th of September, when he adjusted the first loss on the stock, that his name was not mentioned in the policy, and he had no interest in it, then he is estopped from claiming that he was deceived by the representations made by Mr. Smedley that he was protected by the policy. * * *
“ (15) If you find that Mr. Forbes knew that the insurance was not in his name, as Mr. Smedley had written him, and neglected to look after his own interest, then he is estopped from claiming that he had been deceived by the defendant and cannot recover.”

Subsequently defendant moved for a new trial on various grounds, which was denied. The claimed errors were saved for review by proper objections and exceptions. Defendant’s numerous assignments of error are grouped for argument, in substance, as follows:

Refusal to direct a verdict for defendant; want of authority to make the alleged contract to insure the stock in Forbes’ interest; want of consideration for the alleged contract; violation of the iron safe clause; varying terms of written contract by oral testimony; refusal of the court to give defendant’s twelfth and fifteenth requests to charge; denial of defendant’s motion for a new trial on the grounds that the verdict is against the great weight of the evidence and against the just rights of the defendant.

When the incumbrance on Forbes’ stock was increased from $1,000 to $1,407.75, on July 17, 1912, he was carrying $2,500 insurance on it. He was required by the mortgage to keep the mortgagee’s interest insured, “and in default thereof within ten days” it became lawful for the latter to effect such insurance at the expense of the mortgagor. This, was done under the circumstances related on July 20th and the insurance which Forbes had previously placed canceled. Forbes and the attorney testify that, according to their agreement and understanding, the insurance to be effected by defendant was to be for the same amount and protect the interest of both parties as provided in that for which it was substituted. Whether intentionally or inadvertently, the somewhat peculiar policy issued to defendant guardedly refrains from disclosing the owner of the property insured. Forbes’ name is not mentioned in it, as owner or otherwise, and it is nowhere stated that defendant is owner or mortgagee or has any insurable interest in the property. Manifestly Forbes was not a party to the contract of insurance, and the insurance company could, as it did, refuse to recognize him. His only claim and remedy, if any, was against defendant for breach of contract in failing to insure his interest also in the property as plaintiffs allege it promised to do through its then agent and attorney.

The trial court charged that the two possible questions for them to consider were whether there was. any such contract to insure Forbes’ interest as alleged, and, contingent on the jury so finding, the damages sustained by reason of defendant’s failure to comply with the contract; that if there was no such authorized contract plaintiffs could not recover, and it was not sufficient to show that such agreement was made between Forbes and the attorney, but it must appear that the latter had authority to make such agreement, “or, if he had no such authority, then it must appear that defendant, or some one acting for it, afterwards consented to the agreement and took out the policy to protect his interest as well as their own.”

In any aspect of the case we are of the opinion that the quoted portion of this charge was misleading. Plaintiffs base their claim on an alleged contract made with Forbes at Chippewa Lake in July, 1912, by defendant’s authorized attorney that it would take out a policy of insurance which would protect Forbes’ interest and a breach of that contract. At most, what is claimed to have been subsequently done or said by defendant sustaining that claim would be but evidence that the attorney was authorized to so contract. There is no evidence that defendant, or any one acting for it, afterwards consented to the agreement and took out a policy to protect Forbes’ interest as well as their own. The grievance is that it neglected or refused to do so. Damages are claimed in this action because such a policy was not taken out. If the attorney was not authorized to make the contract when and as it is claimed he did, plaintiffs’ case fails. Conceding as true Mrs. Forbes’ testimony that in the fall of 1913 she asked Harry Rindge whether the policy protected them also if anything should occur, and he said that “the policy did so,” which he denies, it could, at most, only sustain the claim that the original contract was known and authorized. Such an answer, if made, would in no sense operate of itself as a contract or create any binding obligation upon defendant. As claimed, it was but an erroneous answer to an inquiry as to an existing fact made without consideration.

If the contract as claimed was authoritatively made, defendant’s contention that it was nevertheless conclusively and as a matter of law void in its entirety for want of consideration is not tenable. Forbes’ stock and fixtures were then insured. An increase of the incumbrance upon them might, and apparently did, jeopardize this insurance, as the attorney suggested, and in the negotiations for increased security, protected by insurance for which Forbes was to pay, procuring another policy similar and for the same amount could properly be made of mutual obligation and an inducing consideration of value, involving the interests of both parties. Neither was it necessarily void as changing the terms of- a written contract by oral testimony, if as plaintiffs claim, the mortgage provided Forbes should keep the property insured, and if he failed to do so defendant could effect the insurance of its interest and hold him responsible for the premium. The alleged agreement is not contradictory of the mortgage, but an additional arrangement as to the manner of procuring the required insurance which it is claimed defendant undertook to do for Forbes at his expense.

Defendant was entitled to have its requests 12 and 15, or at least the substance of them, given to the jury. Shaw testified positively to telling Forbes in September that his name was not mentioned in this policy and he had no interest in it. Forbes claimed that he understood it was, and denied any recollection of Shaw advising him to the contrary. If he was in fact advised of the claimed breach of agreement by defendant to procure insurance for him a sufficient time before his last fire to have attended to it himself, it was his duty under the rule of avoidable consequences to do so, and in such case the measure of damages is not the loss resulting from a subsequent fire, but the value of the policy at the time the failure to insure is discovered. 2 Sedgwick on Damages (9th Ed.), § 623. In Brant v. Gallup, 111 Ill. 487 (53 Am. Rep. 638), which was an action for an alleged breach of an agreement to keep a building insured for a certain amount, the court approved an instruction in substance that, if the jury believed from the evidence that plaintiff had been informed a sufficient time before the fire that his building was inadequately insured, then it was his duty to have effected additional insurance, if he deemed it necessary, and, failing to do so, he could not recover. The same rule as applied to life insurance was approved in Grindle v. Express Co., 67 Me. 317 (24 Am. Rep. 31), and in its varied application has been recognized more than once by this court. Haines v. Beach, 90 Mich. 563 (51 N. W. 644); Harrington-Wiard Co. v. Manufacturing Co., 166 Mich. 276 (131 N. W. 559); Sauer v. Construction Co. 179 Mich. 618 (146 N. W. 422).

Aside from the more technical questions raised, an examination of the testimony of the respective parties as to the stock and fixtures on hand and their value at or about the time of the fire impels the conviction that defendant’s motion to set aside the verdict because against the great weight of evidence is of much force. The burden of proof rested upon plaintiffs to show by a preponderance of evidence that the insured property destroyed by the fire in question exceeded in value the amount defendant collected from the insurance company. Forbes and his wife are the primary parties in interest, and the only witnesses whose testimony tended to support the verdict. With the books and records by which their testimony might be tested destroyed, they testified to goods with values in excess of the amount of the policy. A year and a half before this trial, and but a comparatively short time after the fire, Forbes was examined before the insurance commissioner, and was only able to furnish a list of the goods constituting his stock valued by him at less than $1,000, which more nearly approximates the appraisal of three experienced men who examined his stock near the time of the fire. Young, the salesman sent by defendant to investigate conditions just before the fire, was accompanied by his father, who resided at Big Rapids. They drove over to Chippewa Lake together on Sunday, November 2d, and examined Forbes’ stock with a view to determining its value. The elder Young was a man familiar with inventorying general stocks, having 28 years’ experience in mercantile business. He had been in Forbes’ place of business on previous occasions, once the preceding fall. He testified that the stock had diminished by half since that time, described its condition, and estimated a fair value of what remained there that day as not to exceed $1,000 for stock and fixtures. A business man named Tice, experienced in running a country store, who had learned Forbes’ stock was for sale and examined it that fall not long before the fire with a view to purchasing it, testified that in his opinion-it was not worth over $500.

Mrs. Forbes, who assisted her husband in the store, but was absent at the time of the fire, testified along the same lines as her husband to the amount and value of the stock consumed by the fire, and also told of the attorney visiting Chippewa Lake in July, 1912, when he secured a larger mortgage, to which she asserts she “objected very much,” and proposed instead to pay him $400 which they then had in bank, but he was not agreeable to the proposal, and said it would be better for them to put the money in stock.' Her testimony is yet more difficult to reconcile with established facts. Recalled for further cross-examination by defendant as to this version of the transaction, the attorney testified that he would have brought back the $400 if given a chance, that he did not remember being told they wanted to pay instead of increasing the mortgage, and would have remembered it if proposed, stating, in substance, that an offer to him of $400 under the attending circumstances would have resulted in a fatal shock.

Forbes began business in 1909, renting the store, which he afterwards bought for $800, and the fixtures, consisting of showcases, counters, shelving, drawers, desks, safe, scales, ice box, etc., which he used for two years, and then bought for $180. These he continued to use until the time of the fire, but testified that he added various articles; the principal ones mentioned being an oil tank, computing scales, cash register, second-hand soda fountain, and a roll-top desk purchased with' tobacco bags, and tables made by local carpenters. The testimony is convincing that at the time of the fire his stock was broken, depleted, and his credit such that he had to pay in advance for stock purchased. Complaining of this to Mr. Stanton as early as June, he said he was short of many things on that account and had to buy locally with no profit. He had one fire in September, and knew something of adjusting losses. The fire of November 3d occurred at midday when the store was closed for business and locked, with all the bills, inventories, letters, book's, and all records of his business out of the safe, except a favorable inventory taken 11 months before and his check book stubs, left in the closed safe.

We are constrained to conclude that, in the face of the abundance of contrary convincing evidence found in. this record, direct and circumstantial, plaintiffs have not only failed to establish by a preponderance of evidence that the goods destroyed exceeded in value Forbes’ indebtedness to defendant to the amount of the verdict, but that the same was so against the great weight of evidence as to require that it be set aside under applicable rules and reasons discussed in Wierengo v. Insurance Co., 98 Mich. 621, 625 (57 N. W. 833); Brassel v. Railway Co., 101 Mich. 5, 13 (59 N. W. 426); Wheeler v. Jenison, 120 Mich. 422, 429 (79 N. W. 643); County of Montmorency v. Putnam, 127 Mich. 36 (86 N. W. 398); Baldwin v. Railway Co., 128 Mich. 417, 421 (87 N. W. 380); Whipple v. Railroad Co., 130 Mich. 460, 462 (90 N. W. 287); Cole v. Railway, 132 Mich. 122 (92 N. W. 935); Hintz v. Railroad Co., 132 Mich. 305, 310 (93 N. W. 634); County of Montmorency v. Putnam, 135 Mich. 111 (97 N. W. 399); Id., 144 Mich. 135 (107 N. W. 895); Sauer v. McClintic-Marshall Const’n Co., 179 Mich. 618, 629 (146 N. W. 422).

The judgment is therefore reversed, with costs and a new trial granted.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, and Brooke, JJ., concurred. Person, J., did not sit.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
      In re HASLICK’S ESTATE. MARTUS v. HASLICK.
    1. Wills — Evidence—Undue Influence.
    Evidence that a testator had repeatedly told his neighbors how he was going to dispose of his property and a disposition of his property not in accordance with such statements is not sufficient proof of undue influence.
    2. Same — Insane Delusions — Evidence.
    Capricious and arbitrary dislikes, unjust suspicions against relatives, or mistaken beliefs as to their feelings and designs towards a testator and his property, however visionary, or belief of acts or facts which have any evidential basis, do not constitute insane delusions.

    3. Same.
    Evidence that a testator stated that his two brothers came to his place one night and tried to kill him for his money, one having an ax and the other a club, and that they once came there to kill him for his money with some poison pills which' they wanted him to take, and that he heard them there whispering and talking low to that effect, held, insufficient to show insane delusions in the absence of proof by contestants of the nonexistence of the facts claimed by the testator.
    4. Same — Competency—Insane Persons — Evidence.
    Proof of a testator’s habits, business ability, irrational or rational conduct, or physical or mental condition at other times, is competent and material as hearing on the question whether the testator was of unsound mind at the time of making his will.
    5. Same — Validity—Testamentary Capacity.
    The final test of the validity of a will, as based upon the competency or incompetency of a testator, is his testamentary capacity at the time of the execution of the will.
    Error to Lapeer; George W. Smith, J.
    Submitted October 20, 1916.
    (Docket No. 18.)
    Decided March 30, 1917.
    James F. Martus and others presented for probate the last will of August Haslick, deceased. From an order admitting the will to probate, contestants, Gottlieb Haslick and others, appealed to the circuit court. Judgment for proponents. Contestants bring error.
    Affirmed.

      W. E. Brown and B. F. Reed, for appellants.

      Theo. D. Halpin, for appellees.

       On what constitutes capacity or incapacity in making of wills, see extensive note in 27 L. R. A. (N. S.) 2, particularly as to insane delusions, see p. 62 of same note.
      On what is testamentary capacity, see note in L. R. A. 1915A, 444.

   Steere, J.

On July 5, 1913, August Haslick, a resident of Burnside township in Lapeer county for many years, died in the city of Port Huron where he had gone to a hospital for medical treatment. He was then 65 years old, and left a last will and testament, executed on September 3, 1912, disposing of an estate consisting largely of realty, including 400 acres of land in Burnside township, appraised at between $17,-000 and $18,000. He had never married and, as heirs who would have inherited his estate had he died intestate,. was survived by two brothers, Charles and Gottlieb, two married sisters, Mary Homer and Minnie Bennett, and the children of a deceased sister named Smith. His will was admitted to probate in Lapeer county on October 7, 1913, from which an appeal was taken to the circuit court by the disappointed prospective heirs, excepting Mrs. Homer, where the contest was retried before a jury, resulting in a verdict and judgment affirming the action of the probate court, and the proceedings of that trial were then removed to this court for review by writ of error.

The will in contest is clear and concise in language and legal form, properly executed with two attesting witnesses. Aside from the formal parts it contains four short paragraphs. By it deceased provided for the payment of his just debts and funeral expenses, appointed James T. Martus of Burnside township executor, gave to his surviving brothers and sisters and the children of his deceased sister, Mrs. Smith,' $1 each, and disposed of the bulk of his estate as follows:

“4th. I give, devise and bequeath to my sister’s children, Kate Homer, Lizzie Homer, John Homer, Fred Homer- and Mary Homer, all the rest and residue of my estate of every kind and. nature to be divided between them equally, share and share alike.”

The grounds urged by contestants against the validity of the will were undue influence and mental incompetency, or lack of testamentary capacity, resulting from chronic alcoholism, attended by insane delusions, which influenced the provisions in testator’s will.

Over 60 witnesses were called upon the trial of this issue, and the ample record is largely devoted to the habits, characteristics, and career of deceased, whose life was chiefly spent in Burnside township in agricultural and pastoral pursuits. He was born in Germany and when about 8 years of age came to America with his parents and then living brothers and sisters, the family settling in Lapeer county a year later. He is described as somewhat slow in thought and speech, of meager education, could read or write English little, if at all, and signed his name in German script as long as he lived. He accumulated property gradually by industry and economy, and became a prosperous farmer in the community. Mr. Borland, cashier of a bank at Imlay City for 33 years, during most of which time he testified to an acquaintance with deceased who did business with and borrowed at the bank, said of him:

“In his prime Mr. Haslick was a strong, able-bodied man; he was always a money-maker and had about 400 acres of land. I could not say definitely how long he had owned the 400 acres; he must have owned part of it for 20 years and upwards. There are no mortgages on it at the present time. He cleared off the mortgages some time ago, and in a way he commenced to loan out money in that neighborhood. I don’t know of his losing any money myself only in one instance ; that was when he went into the threshing machine business. * * * After going into the threshing machine business his indebtedness may possibly have been $500 higher than before, I don’t think any more; I never saw him drink intoxicating liquors, and never saw him when he was under the influence of liquor.”

It is shown, however, that during his mature years deceased drank more or less of brewed, fermented, and distilled beverages. He at times had all these in his cellar, and was hospitably liberal with them to those who called upon him. He particularly kept on hand an abundance of hard cider, which he drank freely, and to the use of which he became somewhat addicted; that he at times drank to excess and became intoxicated appears to be well established, but even those who testify strongest upon that point give him the credit of business shrewdness, and sufficient caution to avoid transacting business when disqualified by overindulgence. While as a rule friendly with neighbors and acquaintances, he lived largely to himself on his own place, alone or with employees, and “bached it” much of the time, his interests limited to his farm and business. He was recognized as a man of responsibility, integrity, and business ability in his line of activity. He managed his farms, dealt in live stock, bought and sold commodities, collected and paid money, made leases and looked after his business matters generally until shortly before his death. We think, however, it may be conceded as fairly inferable that habitual use of alcoholic beverages in later life seriously affected his health and probably shortened his years. To what extent it impaired his mentality was a question of fact to which most of the testimony is directed. It was shown that his health failed and there was a marked change in his physical condition during the last two years before he died.

Contestants claimed, and introduced testimony to the effect, that deceased drank regularly and to excess, “scuffed” as he walked, and became bloated, broken down both physically and mentally; that he became forgetful, irritable, his mind unbalanced and possessed of delusions as to events around his premises and the conduct of his neighbors, amongst others claiming his brothers, Gottlieb and Charley, had threatened and tried to kill him. Many of these manifestations the narrators conceded occurred when he was intoxicated, while others are not so modified or explained.

Proponents admit that deceased’s health was broken, but deny that his mind was diseased; contejid that he was yet in control of his mental faculties and of independent thought; understood his failing physical condition, and for that reason, of his own initiative, dictated his will as he wanted it to a competent person he selected to prepare it, and then executed it with a clear understanding of its contents and purpose.

Defendants’ numerous assignments of error relate to the admission and rejection of testimony, refusal of requests, and charge of the court.

The trial court withdrew the question of undue influence from consideration of the jury, holding there was no evidence in the case to make that claim an issue of fact. This is earnestly urged as reversible error. Counsel do not point out by reference to any pages in the record what particular evidence is relied upon as raising that issue, but suggest that the jury should be permitted to theorize under this proposition:

“August Haslick repeatedly told how he was going to dispose of his property, and it amounted to a fixed purpose. It took some influence to change that purpose, and it was for the jury to say whether it was an undue influence that changed it.”

We have searched the record in vain for any testimony of any persuasion, dictation, or suggestion to ■deceased on the part of any one as to what disposition he should make of his estate. Certain witnesses of contestants testify to his telling them that he would not leave anything to his brothers, to the Smith children, or to Mrs. Homer, or to the “West bunch,” and that he was going to give it to his sister in the North, Mrs. Bennett. This sister left home when he was a child, and he had only seen her three times in 50 years or more, the last time many years before he died. His sister’s children to whom he left his property were raised near and well known to him. It was also testified that he at one time declared it his intention to make the “Stewart boys,” who lived with and worked for him several years, his “sole heirs.” We fail to discover in súch testimony any evidential facts leading to a legitimate inference that any person exercised any undue influence over him in the matter. It requires something beyond a bare theory as to why a testator did not make his will as he had talked of doing in casual conversation with neighbors to establish such undue influence as is required to defeat the execution of a will. In re Williams’ Estate, 185 Mich. 97 (151 N. W. 731).

While the trial court admitted the testimony offered relative to deceased’s claimed insane delusions that his brothers plotted against him and had tried to rob or kill him, the jury was instructed there was not sufficient proof of insane delusions relating to the brothers to defeat the will, saying in part:

“There is no evidence in this case that Gottlieb and Charley were not at August Haslick’s house under circumstances from which, by a process of reasoning, August Haslick reached the belief that they were there to rob or poison him with pills, and I, therefore, charge you that you must not consider the evidence as to what August Haslick said about Charley and Gottlieb having been at his house to rob or poison him, as proving an insane delusion in regard to them. The only way you can consider that testimony is the same you would other testimony, merely as to whether or not it has any bearing upon the question of his soundness of mind.”

Contestants strenuously urge that whether or not deceased was possessed of such delusions as to his brothers was an issue of fact, under the abundant evidence upon that subject, for the jury to decide from all the circumstances shown, and the withdrawal of that question from consideration of the jury was prejudicial error demanding reversal.

In considering'this question it is to be borne in mind that no capricious and arbitrary dislikes, unjust suspicions or prejudice against relatives, or mistaken beliefs as to their feelings and designs towards him and his property, however visionary, nor belief of acts oh facts which have any evidential basis constitute in law insane delusions.

“If there are any facts, however little evidential force they may possess, upon which the testator may in reason have based his belief, it will not be an insane delusion, though on a consideration of the facts themselves his belief may seem illogical and foundationless to the court; for a will, it is obvious, is not to be overturned because the testator has not reasoned correctly.” 1 Underhill on Wills, § 94.

The ultimate object of the inquiry is whether an insane delusion, destitute of all evidential support, spontaneously arising in testator’s diseased mind, influenced him and operated directly against his brothers when he made his will. It was shown by contestants’ witnesses, that in the period of his full vigor, more than once, and at least 20 years before his death, deceased had emphatically expressed his intention that his-brothers should get nothing from his estate. As the years went by he was at times in trouble with them and at times apparently on friendly terms, but, so far as shown, his intention in that respect was steadfast. While the witnesses aré not in harmony as to the exact language used, the substance of the claimed insane delusions as to his brothers’ designs upon his life and property seems to involve at least two different events related by him, to the effect that his brothers came to his place one night and tried to kill him for his money, one having an ax and the other a club, and that they once came there to kill him for his money with some poison pills which they wanted him to take, and he heard them whispering or talking low to that effect. The ruling of the court that these beliefs and assertions did not, in law, as the record stood, constitute insane delusions, was apparently upon the ground that the related facts and acts were not physically impossible; that there was some, though perhaps remote and inadequate, basis for the belief, and contestants failed to introduce any proof of the nonexistence of the facts stated by testator as to and out of which the claimed delusions arose. As bearing upon his delusion that his brothers once came to his place in the night to kill him, it was related by a witness of mature years named Henry Kraick who had known deceased over 35 years, that nearly that long ago, when only a boy, he worked for him, and while there slept in the barn; that he was awakened one night by a noise and deceased “hollering,” as he thought, and going to the door saw two men, whom he recognized by their voices as the brothers, in conflict with and pounding deceased, one telling the other to pick up a club and finish him; that deceased crawled in later badly hurt with wounds on his head which left scars along the side, and later had his brothers arrested and tried for the offense. A witness named McIntosh, called by contestants, who testified to deceased telling him of the brothers trying to poison him, said on cross-examination:

“Eighteen or twenty-five years ago he told me about some trouble he had with his brothers. I cut his hair and saw some scars, and asked him how he got them.”

Permitted against objection to answer the question, “What did he tell you?” witness replied “He said Gottlieb and Charley.”

Contestants’ testimony showed that the testator stated place, facts, and circumstances of his brothers’ attempts to kill him, which it is asserted were delusions, “without any cause or reasons therefor”; but it was incumbent upon contestants, who introduced evidence of testator’s unqualified statements of their guilt and the circumstances, to show further that the brothers were not at testator’s home for the purposes claimed, and that there were no facts from which he could, by any process of' reasoning, however faulty, arrive at his declared conclusions as to their acts and sinister purpose. The nonexistence of the facts he believed to exist must be established before any presumption of insane delusions or conclusion of insanity can be drawn. In their original brief counsel say:

“The law' presumes them [the brothers] to be innocent of a crime or any presumption of crime, or any intention to commit crime, until some affirmative evidence is produced to establish this fact, and they had the right to rest upon such presumption.”

And it is said in their supplemental brief:

“While we claim all the benefit of the- presumption, we do not rely upon it entirely. * * * If the brothers are entitled to the benefit of the presumption of innocence, it was not necessary that they should take the witness stand and testify that they were not at testator’s house to kill or poison him for his money. If they did-' so testify, it would only be adding the weight of their testimony to the presumption” (citing in support of the presumption0O’Dell v. Goff, 153 Mich. 643 [117 N. W. 59]).

In the case cited the insane delusion of testator was the illegitimacy of his children, and the court said that in the absence of testimony a presumption of the mother’s chastity obtained, but the court also said contestant must go further and prove that the testator’s belief that his mother lacked chastity was an insane delusion. Actual or presumed innocence of the party in relation to whom the delusion is claimed does not preclude a sane and honest belief to the contrary for which there is any evidential support, however faulty and insufficient. The court did not strike out this testimony, but allowed it to remain in the case to be considered by the jury in connection with the rest of the evidence for whatever bearing it might have upon the question of testator’s soundness of mind, rightly instructing them that it did not, as a matter of law, compass all the essential elements of an insane delusion, and the jury could not so find.

It was conceded that as the law then stood (since changed by the judicature act [Act No. 314, Pub. Acts 1915; 3 Comp. Laws 1915, § 12004 et seq.J) the burden of proof as to mental competency at the time the will was executed rested upon, proponents, and the court so instructed the jury in a charge fairly and sufficiently, as we think, explaining the ultimate issue of fact for their determination and the .mental condition of a testator essential to testamentary capacity, and necessary for proponents to affirmatively establish in order to sustain the will. The case was essentially one of facts and, as is not unusual where mental competency is the issue, much latitude was allowed -in the range of testimony. We are unable to conclude that appellants were unduly restricted as to any competent evidence offered, or that any reversible error appears in the few rulings upon testimony adverse to contestants of which complaint was made, and do not deem' any useful purpose would be served by reviewing those objections at length.

While proof of testator’s habits, business, ability, irrational or rational conduct, and physical or mental condition at other times and places was competent and material for the light such facts might throw on whether he was of unsound mind or sane on September 3, 1912, the final test of this, will is his testamentary capacity at the time he executed it. The only direct witnesses as to what he said and did on that occasion and his mental condition on that afternoon are Jesse Rapley, cashier of the Pioneer Bank at North Branch, who drew and witnessed the will, and J. H. Vandecar, a druggist of that place, who was the other subscribing witness. Rapley was a member of the bar, and at one time practiced law, but had been cashier of said bank for 5 years. He was acquainted with testator, who had done more or less, business with the bank during all that time, and some weeks prior to the day in question had asked Rapley if he would draw his will for him, and received a favorable answer. On the afternoon of September 3, 1912, testator went into the bank at about closing time, and asked Rapley to draw up'his will for him, to which Rapley replied that it was a little late, and he would prefer to put it off until some other time. Testator said he wanted it done then, as he had had a bad spell the night before, and thought he was going to die in the nighttime and he would like to have the will drawn then, “so if anything happened to him it would go the way he wanted it.” Rapley, who.was about to leave, then consented to remain and draw the will for him. Asked what he wanted done with his property, he went on and told how he wished the will drawn, stating that he wanted to give a dollar each to his brothers and sisters and the Smith children, as he understood that by so doing they could not get anything more. When told by Rapley that it was not necessary to do this, although it would indicate perhaps more clearly his wishes, he replied that he understood it was better to put in the dollar apiece and wanted it done. He gave the names of the persons mentioned in the will, some of whom were unknown to. Rapley, and stated what he wanted to do or not do for them. He said that he wanted James Martus as executor of his will because he had lots of experience in that line, and testator thought he would do the business better than any one else he was acquainted with. After giving Rapley this information, and while waiting for the instrument to be drawn up, he went outside and returned in about half an hour, when Rapley read the prepared will to him, and he stated that was just the way he wanted it. The bank was then closed and only those two present, so Rapley telephoned Mr. Vandecar, a druggist near by, whom testator knew, to come over to the bank and act as one of the witnesses. Rapley testifies that testator was sane and.sober, acted as usual, and there was nothing in his appearance to indicate that he had been drinking that day.

Vandecar, who had lived in North Branch about 30 years and knew testator well in a business way for at least 15, testified that after banking hours Mr. Rapley called him up by phone to go over and witness a will. When he arrived Rapley and testator were there, and Rapley stated that the paper which he held in his hand was testator’s will, which it was desired that he should witness; that Vandecar then asked testator if that was his will, and he replied that Mr. Rapley had made the will for him and read it to him and he knew every word in it; that he wanted Mr. Vandecar to sign it as a witness, and had told Mr. Rapley to get him; that the will was then signed by testator in the presence of the two witnesses, who signed as such in testator’s presence; that he visited with deceased for perhaps 15 minutes after the will was signed; that he talked all right, was sober, acted the same as usual, and witness could see no indication he had been drinking, or there was anything wrong with him. Both these witnesses testified that in their judgment he was in command of his faculties, with sufficient mind and memory to understand and recall his relations and their claims upon him, what property he had, how he wanted to dispose of it, and to retain those facts while dictating his will without prompting.

All other witnesses called by both parties either testified to acts and events transpiring before, or after, the will was executed, or to opinions as to his competency at that time, one or both. Along that line there was abundant testimony on both sides. Of opinion witnesses over 20 neighbors and longtime acquaintances of testator, farmers and business men, some of whom had done business, with him after he made his will, testified from personal knowledge of him that in their opinion he was mentally competent when he made his will, could remember his relatives, and their claims, if any, on his bounty, knew what property he possessed and what disposition he desired to make of it, and was capable of dictating without prompting the terms of the will which he signed.

Contestants called as witnesses seven medical men who as experts expressed under oath opinions to the contrary, either in answer to hypothetical questions or from observations made by them, chiefly subsequent to the will, pronouncing him a victim of chronic alcoholism and of unsound mind, not competent to understandingly make testamentary disposition of his property on the date he attempted to do so. We discover in the record but one other witness who directly testified to an opinion that he was not then competent to make and understand the will he signed. The controlling issue of fact raised by the conflicting testimony was not obscure to the ordinary understanding. We are of the opinion that it was fairly and impartially submitted to the jury with a correct and sufficient explanation of applicable rules of law for their guidance in canvassing the facts and deciding the issue as clearly stated to them. From an examination of this record in its entirety we are unable to conclude that any misdirection of the jury or improper admission or rejection of evidence has resulted in a miscarriage of justice, or that any of the assigned errors have so militated against a fair and impartial trial as to warrant disturbing the result reached in the trial court.

The judgment is affirmed.

Kuhn, C. J., and Stone, Ostrander, Bird; Moore, and Brooke, JJ., concurred. Person, J., did not sit.


author: Bird, J.

text:
    BROADBECK v. DETROIT, MONROE & TOLEDO SHORT LINE RAILWAY.
    1. Street Railways — Personal Injuries — Trespassers — Licensees — Negligence.
    When a street car motorman observes a trespasser or licensee in a place of danger, reasonable care must be exercised to avoid injuring him.
    2. Same — Reasonable Care — Negligence—Question for Jury.
    In an action against a street car company to recover damages for personal injuries to a ten-year-old girl, sustained as the result of the front steps of the car striking her while she was on one side of an elevation across a marsh, from which she had no way of escape because of the ■ water on both sides of the track, where it appeared that the motorman was acquainted with the narrowness of the elevation and knew that the car extended over the ties and at some places nearly over the water, the use made of it as a right of way by the public and of the difficulties of pedestrians, in passing, and could have stopped the car, instead of going by at the rate of 8 or 10 miles an hour, held, that it was a question for the jury whether the motorman exercised reasonable care to avoid injuring plaintiff.

    Error to Monroe;' Gilday, J.
    Submitted January 15,1916.
    (Docket No. 140.)
    Decided March 30, 1917.
    Case by Gertrude Broadbeck, a minor, by next friend, against the Detroit, Monroe & Toledo Short Line Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Thornton Dixon, for appellant.

      Willis Baldwin and John O. Zabel, for appellee.

      The question of duty imposed on street railroad companies to avoid injuring children on the track is discussed in note in 25 L. R. A. 663.
      On the right of motorman to assume that person on track will get out of way see note in 21 L. R. A. (N. S.) 880.

   Bird, J.

On the 18th day of June, 1913, plaintiff, a ten-year-old girl, was walking in a westerly direction on the track of an electric railway operated by defendant in the summer season between Monroe City and Monroe Piers, a pleasure resort situated at the head of Lake Erie. The motorman of an east-bound car observed her when about 500 feet away, and turned off the power and permitted the car to coast. When he observed her, he sounded the whistle, and she went to one side of the elevation and then to the other in an attempt to get to a place of safety. The elevation was narrow, it having been constructed .through a marsh by dredging on either side leaving depressions in which water stood, and it was difficult for plaintiff to find a place of safety without stepping into water; of uncertain depth. The motorman testified that. he thought she had found a place of safety, and therefore permitted his car to.. coast, by her. The: front steps of the car extended out further: than the'; side of the car, and she was struck by them and severely injured. She recovered a judgment'of $1,000, and defendant complains because the trial coürt refused to direct a verdict in its behalf.

Counsel for defendant insists that the testimony en-. titled him to a directed verdict. His argument- in substance is that plaintiff was a trespasser on defendant’s private right of way, and as such it owed her no duty except the avoidance of gross negligence, and that the testimony fails to disclose gross negligence on the part of the motorman.

The record makes it reasonably clear that the railway elevation through the marsh was used by the public with the knowledge and consent of the railway officials. It was made use of by pedestrians the year around, persons on horseback, and one witness testified that he has seen a horse and wagon drive over it. Private hand cars were operated upon it. The superintendent testified that on one occasion he gave permission to operate a private hand car over it, and admitted that he had never ordered any one off nor put up any signs forbidding its use as a walk or way. The trial court was of the opinion, and so charged the jury, that plaintiff was a trespasser, but left to them the question whether the motorman, after he discovered her, used reasonable care to avoid injuring her. Plaintiff’s counsel insists that the testimony shows that plaintiff was a licensee. In either event, after the motorman discovered her in a position of danger, it was his duty to use reasonable care to avoid injuring her. While there has been some variation in the holdings of courts as to the precise duty which a railroad company owes to trespassers and licensees, they have been nearly unanimous in holding that, when they are discovered in a place of danger, reasonable care must be exercised to avoid injuring them. Bouwmeester v. Railroad Co., 68 Mich. 557 (30 N. W. 337); O’Donnell v. Railway Co., 89 Mich. 174 (50 N. W. 801); Clark v. Railroad Co., 113 Mich. 24 (71 N. W. 327, 67 Am. St. Rep. 442); 33 Cyc. pp. 769-771.

Whether this rule was satisfied in the present case was for the jury to decide. The motorman was acquainted with the narrowness of the elevation, knew that the car extended over the ties, and in some places nearly over the water; he knew the use the public was making of the elevation, and knew the difficulties pedestrians had in passing the car as he had on former occasions stopped his car to permit them to pass in safety. It is claimed the motorman turned on the power again before reaching her, and he admits he could have stopped the car, instead of going by her at the rate of 8 or 10 miles an hour, if he had thought it necessary. The question was clearly one of fact, and the trial court was right in submitting it to the jury.

The judgment is affirmed.

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


author: Kuhn, C. J.

text:
    DRAPER v. REGENTS OF UNIVERSITY OF MICHIGAN.
    1. Master and Servant — Workmen’s Compensation Law — Burden of Proof — Course of Employment.
    The burden rests upon the one claiming compensation under the workmen’s compensation act (Act No. 10, Extra Session 1912) to show by competent testimony, direct or circumstantial, not only the fact of an injury, but that it occurred in connection with the alleged employment, and both arose out of and in the course of the service at which the injured party was employed.

    2. Same — Evidence—Course of Employment.
    In proceedings under said act against the Regents of the State University to recover compensation for the death of the superintendent of the University hospital, who was killed by a street car, which ran north of the campus, while he was either on his way home to his evening meal from the hospital, which was situated north of the street railway, or on his way to attend to business on the campus, evidence held, insufficient to sustain the burden of proof as to the occurrence of the accident during the course of his employment.

      Certiorari to Industrial Accident Board.
    Submitted January 10, 1917.
    (Docket No. 87.)
    Decided March 30, 1917.
    Alice Draper presented her claim for compensation against the Regents of the University of Michigan for the death of her husband in defendant’s employ. From an order denying compensation claimant brings certiorari.
    Affirmed.

      Arthur Brown, for appellant.

      Cavanaugh & Burke, for appellee.

       On the question of workmen’s compensation acts generally, see extensive note in L. R. A. 1916A, 23, particularly as to injuries “arising out of and in the eourse of” the employment, see p. 232 of same note.

      As to recovery of compensation for injuries received while going to and from work, see note in L. R. A. 1916A, 331.

   Kuhn, C. J.

The claimant’s husband, Jay B. Draper, was, immediately prior to November 13, 1915, superintendent of the University hospitals at a salary of $2,500 a year. Mr. Draper frequently was required, in the course of his employment, to go to the University campus, which is situated about a quarter of a mile southeast of the University hospitals. In order to go to and from the campus it is necessary to cross the street car tracks running along the north side of the campus, on North University avenue. Mr. Draper’s home was southeast of the campus, so that the campus was directly between his home and the University hospitals.

It is claimed that it was Mr. Draper's universal cusstom to take his noon and evening meals at the University hospitals, in the psychopathic ward, unless he was called home for some reason or unless he had business down town which took him away from the hospitals.

On November 13, 1915, he called up his home about 5 o’clock and said he would be home for the evening meal. Half an hour later he was almost instantly killed by a street car as he was about to enter the campus from the direction of the hospitals.

A claim was presented against the Regents of the University of Michigan, and considerable testimony was taken at the hearing. The arbitration committee and the industrial accident board held that the accident which caused Mr. Draper’s death did not arise out of and in the course of his employment. -We quote from the brief of counsel as the best way to present the claimant’s contention:

“Did the accident arise ‘in the course of’ the employment? The answer to this question depends upon whether Mr. Draper was on his way from the hospitals to the campus to transact some matter of business there on his way home. If he was merely going home to dinner when killed, the accident would not be one in the course of his employment. But if he was intending to stop on the campus on a business errand and then go on home to dinner, the accident would be one in the course of his employment. We think the evidence shows that he had business on the campus to transact before going home, and that this evidence is undisputed and unimpeached.
“Mr. Draper had been superintendent of the hospital for eight years. Mrs. Draper testified that never during that time had Mr. Draper left the hospital as late as 5 o’clock in the afternoon to come home to dinner unless he had business to transact on the way. It was seldom that he came home for the-evening meal, sometimes not more than once in two or three weeks. He took his evening meals at the hospital unless business called him to the campus or down town, and this was his ‘universal practice.’ * * *
“It must be held, therefore, that a uniform custom to go home for his evening meal only when he had business to transact on the way, is conclusively shown by the evidence.
“The campus was situated between the hospitals and the home of the deceased; so that he could easily transact any business he might have on the campus while on his way home. On the night when he was killed it appears that he called up his home about 5 o’clock and informed his family that he intended to come home for dinner. No plans or arrangements at home required his presence; for his telephone call was the first intimation the family had that he would come home that night. Hence, if he followed his custom, he must have planned to go home for dinner because he had business to look after on the campus, and since he was killed when about to enter the campus from the direction of the hospitals, he must have been on his way to look after that business when killed.
“Does the proof of a custom constitute prima facie evidence that an act was done pursuant to such custom? In other words, will evidence that deceased was accustomed to do a certain act be sufficient to show prima facie that he did it? The cases are very clear that evidence of a custom is competent to show the doing of an act coming within the custom” — citing cases.

We think counsel is claiming more for the record than it will justify.

Mrs. Draper was a witness. The following appeared in her testimony:

“Q. Did he ever come home to his noon or 6 o’clock meal?
“A. Yes, sir.
“Q. On what occasions?
“A. If he was having business down town or over on the campus at the noon hour or 6 o’clock he would come home.
“Q. Was that his universal practice as far as you know?
“A. Yes, sir.
“Q. Were there any days he came home to any of those meals unless he had business down town, at the bank, or at the campus that you know of?
“A. When he was to a game, to a ball game.
“Q. When he would be off duty in the afternoon, where would he have his meals? Would he come home? Suppose he had gone to a ball game?
“A. He would have his meals at home unless there was something that he had to go back to the office for.
“Q. Were there any other times when he came home to his meals other than when he had business at the campus or was down town?
“A. Not that I know of.”

On the cross-examination she said:

“Q. Was your husband in the habit of. coming home every Saturday afternoon?
“A. No, sir.
“Q. He was not obliged to work on Saturday afternoon?
“A. Well, that depended on his work. If he had work to do, he would work.
“Q. But usually he laid off Saturday afternoon to go to the ball games?
“A. If there were games or he had business down town he would go away; aside from that he would stay at the office and work.”

She also said he did not attend the ball game on the afternoon when he was hurt.

Miss Burlingame testified in part:

“Q. Do you know where he had his 12 o’clock meal and his 6 o’clock meal?
“A. At psychopathic hospital.
“Q. Always?
“A. Not always. If called away, he went home to 6 o’clock dinner. During the football game season he would go home; also if he had business on the campus. Sometimes they called him from his residence, and then he would go home to the evening meal.
“Q. When he had business that called him away from the hospital and over to the campus, near his home, what was his custom?
“A. He had his meals at psycopathic hospital if his work kept him there until meal time. * * *
“Q. Where was he going that afternoon?
“A. I think he was going home. He always took the same route going home as he did when he had business at the secretary’s office or on the campus.
“Q. Did he have business that day?
“A. He was anxious to see President Hutchins and Secretary Smith, and they did not come while I was there. * * *
“Q. If he had been going to see Secretary Smith or President Hutchins he would have taken this same route?
“A. Yes.”

Miss Draper, a daughter of the deceased, was a witness. She testified in part:

“Q. What was his custom in regard to taking meals at the hospital?
“A. He had only two meals at the hospital, the noon meal and the 6 o’clock meal. The only times he did not eat at the hospital was when he came home, when he went on business to the campus, when he was called home, and when he might be attending some social engagement in the afternoon. That afternoon I do not know whether he had business.
“Q. What was his practice when he came home to meals ?
“A. His- universal practice was to call up home when he was coming home to a meal.
“By Mr. Cavanaugh:
“Q. On Saturdays if he worked at the hospital he had supper there? . If he left in the middle of the afternoon what was his custom?
“A. I would say that the meals he had on Saturdays were about even at hospital and at home. He always took lunch at the hospital with the exceptions named.”

It was. shown by the president and the secretary of the University that they had no engagement with Mr. Draper that afternoon, and it was not shown that he had any appointment with the treasurer, nor was it shown what the nature of business, down town would be, whether the private business of Mr. Draper or official business.

In McCoy v. Screw Co., 180 Mich., at page 458 (147 N. W., at page 573, L. R. A. 1916A, 323), it is said:

“The burden of furnishing evidence from which the inference can be legitimately drawn that the injury arose ‘out of and in the course of his employment’ rests upon the claimant. Bryant v. Fissell, 84 N. J. Law, 72 (86 Atl. 458); 3 Negligence & Compensation Cases Annotated, p. 585. Ruegg on Employers’ Liability and Workmen’s Compensation, p. 343, says:
“ ‘If an inference favorable to the applicant can only be arrived at by a guess the applicant fails. The same thing happens where two or more inferences equally consistent with the facts arise from them.’ ”

In Hills v. Blair, 182 Mich., at page 25 (148 N. W., at page 245), it is said:

“Under the provisions of this act only that employee is entitled to compensation who ‘receives, personal injuries. arising out of and in the course of his employment.5 It is to be borne in mind that the act does not provide insurance for the employed workman to compensate any other kind of accident or injury which may befall him. The language of the Michigan compensation law is. adopted from the English and Scotch acts on the same subject, and, in harmony with their, interpretations, has been construed by this court, in Rayner v. Furniture Co., 180 Mich. 168 [146 N. W. 665, L. R. A. 1916A, 22, Am. & Eng. Ann. Cas. 1916A, 386], as meaning that the words ‘out of’ refer to the origin, or cause of the accident, and the words ‘in the course of’ to the time, place and circumstances under which it occurred.
“In Ayr Steam Shipping Co., Ltd., v. Lendrum, 6 B. W. C. C. 326, involving a fatal accident attended with uncertainty as to details, the court said:
‘“I think one may deduce from the decisions (1) that the burden is always upon the applicant to prove that death resulted from an accident arising out of as well as in the course of the employment; (2) that such proof need not he direct, but may be by circumstantial evidence, but there must be facts from which an inference can be drawn, as distinguished from mere conjecture, surmise, or probability; and (3) that an award by an arbiter cannot stand unless the facts found are such as to entitle him reasonably to infer his conclusion from them.’
“It is contended by appellants that the facts proven here do not in reason support the inference of the board as to the manner in which deceased met his death, but, on the contrary, conclusively show that he was killed in an attempt to board or leave a moving train, precluding any award under the ruling in Pope v. Hill’s Plymouth Co., 5 B. W. C. C. 175, in which case a workman in a colliery going home to his dinner on the premises of his employer was'killed in attempting to jump on a passing tram car. It is further urged as a defense that, if it cannot be said as a matter of law a finding of fact should have been made as appellants contend, it should at least be held that the proven facts are equally consistent with either one of the two alternatives, and no inferences can legitimately be drawn to support an award.
“We are not prepared to hold that the findings of fact as to the manner of the accident are entirely without evidential support either direct or by inference. They are therefore to be taken as conclusive under, the statute. Accepting them as such, do they sustain the conclusion of law that Hills’ death arose out of and in the course of his employment?
“It is well settled that the burden rests upon the one claiming compensation to show by competent testimony, direct or circumstantial, not only the fact of an injury, but that it occurred in connection with the alleged employment, and both arose out of and in the .course of the service at which the injured party was employed.”

We cannot say as a matter of law that claimant met the burden of proof, and the findings of fact must therefore stand.

The judgment is affirmed.

Stone, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Fellows, J., did not sit.


author: Moore, J.

text:
    SWAN v. GREGORY.
    1. Evidence — Judicial Notice — Foreign Statutes.
    Judicial notice will not be taken of foreign statutes.

    2. Payment — Bills and Notes — Contracts.
    The giving of a promissory note for goods sold, or for any other valuable consideration, does not constitute payment, unless it is specially agreed to be so taken, and it is immaterial whether it is the note of a third person or of the party to the agreement.

    3. Appeal and Error — Limitation of Actions.
    The defense of the statute of limitations cannot be raised for the first time on appeal.
    Error to Wayne; Codd, J.
    Submitted January 3, 1917.
    (Docket No. 19.)
    Decided March 30, 1917.
    Assumpsit by William S. Swan against William B. Gregory and Benjamin S. Boyce for a balance of the purchase price of certain stock. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Millis, Griffin, Seely & Streeter, for appellants.

      Anderson, Wilcox & Lacy, for appellee.

      The question of how case is determined when proper foreign law is not proved is discussed in note in 67 L. R. A. 33.

      The question of payment by commercial paper is taken up in extensive note in 35 L. R. A.. (N. S.) 2, particularly taking notes of third party in the absence of an agreement, see p. 18 of same note.

   Moore, J.

From a judgment in favor of the plaintiff the case is brought here by writ of error. In view of the assignments of error it is desirable to quote from the charge of the trial judge:

“Gentlemen of the jury: In,this cause W. F. Swan in his own behalf and as assignee of A. D. Coffin and the estate of Thomas. Henish is suing W. B. Gregory and Benjamin S. Boyce for an amount of money claimed to be due from the defendant to himself and his assignors as a balance of a purchase price of a certain number of shares of stock, 240 shares, in the Maumee Paper Company, growing out of a transaction alleged to have been consummated on the 29th day of November, 1902, whereby the defendants Gregory and Boyce agreed to purchase from Mr. Swan those 240 shares of stock for the sum of $6,500, $2,000 was payable in cash, and the balance of $4,500, payable in three equal installments a year apart, interest on the balance when paid at 6 per cent.
“I charge you, gentlemen of the jury, with reference to the assignment, that the assignment set up from Coffin and Henish to the plaintiff, they are valid as papers in this action, even though given without consideration, and I instruct you that it is your duty to consider the assignment as valid without regard to whether it was made for the purposes of a lawsuit or not.
“Now it is plaintiff’s contention that he and Mr. Coffin as representing themselves and the assignment of Thomas Henish-some time prior to November, 1902, had several conferences with Mr. Boyce and after-wards with Mr. Gregory, looking to the purchase of stock of the Maumee Paper Company. These three parties at that time owned, with their wives, a number of shares. That prior thereto, at the plant of the paper company or in Detroit at the Normandie and at the office of the attorney in the Buhl Block, the deal was consummated and the $2,000 paid over, and that in addition a promise was made by the defendant to pay the balance of this money, $4,500, in three-years. That they contracted also a promise secured in the form of three notes given by the Maumee Paper Company and signed by Gregory as president and Boyce as secretary and treasurer in the sum of $1,500, payable in two and three years from date, November 29, 1902, with interest at 6 per cent. Nothing was realized upon the note, and nothing has been paid upon the purchase price, $4,500, and they bring suit against the defendant to recover this amount and the interest from the last date of the payment of interest, November, 1906.
“It is the contention of the defendants, on the contrary, that at the time of this transaction all matters Were closed and that the full payment of these sums as consideration for this stock was made. In other words, that they paid him $2,000 in cash, for the balance of the payments for these shares of stock gave them the notes of the paper company in the sums mentioned. In other words, that these notes were not in security for any personal promise on the part of the defendant to pay, but were given in actual payment. Now, it is well settled in this State that the giving of a promissory note for goods sold or for other valuable consideration is. no payment unless it is specially agreed to be so done. In this respect, therefore, I charge you that in order for the defendant to defeat this claim they must show that the three notes were offered by the defendant and were accepted by the plaintiff as full payment for the debt primarily owing by the defendant. The giving of a note by a third person is not payment unless it is so received, and it is a question for you to determine whether they were so received. The giving of the notes themselves raises no presumption of payment unless the note—
“In other words, that is the main question of fact in this. case. It is your province to determine whether or not the notes in question were given and received by the plaintiff and his associates upon the 29th day of November, or, as the testimony shows, some time thereafter, after the officers had taken their places, as officers — after these gentlemen had taken their places as officers of the paper company — whether or not these notes were given and received by Mr. Swan and his associates as payments. In determining this question you have the right to take into consideration all the facts surrounding the transaction. There has been testimony on both sides of this proposition which it is your province to hear and determine. Testimony of the plaintiff as to his understanding and the testimony of the defendants as to their understanding. You will also consider the subsequent acts and actions of the parties to this proceeding in determining this question, but only in so far as it bears back to the original transaction of November. The actions of the parties thereafter having a bearing as to what was the understanding between the parties on the date, November 29th.If you find after taking into consideration all of the circumstances both at the time of the transaction and the testimony as to the actions of the parties thereafter, if you find after weighing the testimony that these notes were given as security, then manifestly the claim exists against the defendant for the balance of the purchase price. If you are, on the contrary, satisfied from the testimony and the actions of the parties thereafter and the payments- and receipts of interest and all of the circumstances that enter into it, if you are satisfied that these notes were given as payment by the defendant to the plaintiff for the balance of the purchase price of the stock, it is your manifest duty to return a verdict of no cause of action in favor of the defendant. The mere fact the notes were not paid or that the Maumee Paper Company went into insolvency and nothing was, realized, does not give the plaintiffs the right to change their remedy and proceed against these defendants in a personal way. If you find that they received on the 20th of November, 1902, or shortly thereafter, these notes- in payment of the balance due, the fact that nothing was realized does not change the status of the parties in any respect whatsoever. The present condition of the claims of these parties in the bankruptcy court or at the time of the proceedings against the paper company does not preclude them from bringing this action, if you find, as I said before, that these notes were not received in payment, but were received as security. In other words, it was their manifest duty if these notes were security to attempt to realize all they could out of the notes and apply it upon the balance due upon the purchase price. If you believe from the testimony that the plaintiff accepted the notes in question as payment for the balance of the purchase price of the Maumee Paper Company as claimed by the defendant, your verdict must be for the defendant no cause of action.
“And I charge you that in order to prove that the notes were accepted as payment, the circumstances surrounding the giving and receiving of the notes and actions- of both parties at the time the notes were received and after that time may be taken into consideration. And if you find from the testimony that the plaintiff’s and his assignors’ actions at the time the notes were given and since that time was such as to lead you to believe that he accepted the notes as payment and intended to look to the Maumee Paper Company as the statutory liability of the stockholders of that company under the laws of the State of Ohio in enforcing his claim, your verdict must be for the defendant.”

The charge is much longer than what we have quoted, and restates the above propositions.

The first assignment of error is that the judge erred in what he said about the sufficiency of the Henish assignment, it being claimed that, under the laws of Ohio, the administrator must be authorized to do so by the court before he can make the assignment. There are several answers to this contention.

The laws of Ohio were not introduced in evidence. We do not take judicial notice of foreign statutes. Chapman v. Colby Bros. & Co., 47 Mich., 46 (10 N. W. 74). The assignment was executed in Georgia. There is nothing to show where the estate of Mr. Henish was in process of administration. See Briscoe v. Eckley, 35 Mich. 112. There are many assignments of error relating to the admission and exclusion of testimony. They have been examined with care, but we do not think it necessary to discuss them further than to say they are not well taken.

The important question in this case is presented by the following excerpts from the brief of counsel:

“A discussion of the contract proven by the plaintiff in this case involves the precise question of the effect of the seller of personal property accepting from the purchaser, at the time he makes his sale, for part of the purchase price, the note of a third person unindorsed by the purchaser, with full knowledge that it is not the note of the purchaser and is not indorsed by him; and also when there is a complete absence of any statement by either of the parties to the transaction at the time the sale is negotiated and consummated as to whether the note is offered and accepted as payment for the balance of the purchase price or as security only.
“Appellants concede that some text-writers and. many courts have stated a general rule of law as follows : ‘That the giving of a promissory note for goods sold, or for any other valuable consideration, is no payment unless it is agreed to be so taken.’ * * * It is the contention of appellants that the rule or principle of law is now established by the great weight of authority that where the note is the note of a third person and not of the debtor, and the debtor neglects or refuses to indorse it, and it is accepted for a contemporaneous obligation, the presumption is that such a note is taken as payment, and not.as security.”

Many authorities are cited. They are from textbooks, and from courts of other States.

The question involved here came up very early in this State. In a case where goods were sold and the note of a third party was received by the seller, the court said:

“It is believed that no principle of law is better established, at the present day, than that the giving a promissory note for goods sold, or for any other valuable consideration, is no payment unless it is specially agreed to be so taken; and, in this respect, it makes no difference whether the note be given for a precedent debt, or for a debt created contemporaneously with the agreement; or whether it be the note of a third party, or of the party to the agreement. The authorities in support of this rule are so numerous, and the rule itself so firmly established, that a reference to the many cases is deemed unnecessary.” Gardner v. Gorham, 1 Doug. 507.

See, also, Hotchin v. Secor, 8 Mich. 494; Dudgeon v. Haggart, 17 Mich. 273; Burrows v. Bangs, 34 Mich. 304.

In Au Sable River Boom Co. v. Sanborn, 36 Mich. 358, Justice Cooley, speaking for the court, said:

“The taking of the acceptances, according to the well-settled doctrine in this State, was not payment of the demand in the absence of evidence of an agreement that they should be received in payment. Gardner v. Gorham, 1 Doug. 507; Hotchin v. Secor, 8 Mich. 494.”

It is argued with much emphasis that the court was wrong when it said:

“Now it is well settled in this State that the giving of a promissory note for goods sold or for other valuable consideration is no payment unless it is specially agreed to be so done.”

We quote from the brief:

“The trouble with the charge is that it first tells the jury that the taking of a note in this State is no payment unless specially agreed, and then the jury can take into consideration facts and circumstances surrounding the transaction, the acts of the parties at the time and afterwards, in so far as those facts and circumstances bore back upon the transaction in determining whether or hot there was a special agreement to take the notes as payment. This amounts to an anomaly, because if there was an implied agreement there could not be a special agreement, and nowhere in the court’s charge do we find a statement to the jury that they can consider alone the facts and circumstances surrounding the transaction and the acts of the parties at the time and afterward in determining whether or not the notes were taken as payment.”

Among the cases cited is Whitbeck v. Van Ness, 11 Johns. (N. Y.) 409 (3 Am. Dec. 383), which counsel call a leading case; but we think a reading of it shows it distinguishable from the instant case. See Breitung v. Lindauer, 37 Mich., at page 221. In Sarmiento v. The Catherine C., 110 Mich. 120 (67 N. W. 1085), Justice Long, speaking for the court, said:

“A note cannot be regarded as payment unless specially agreed to be so taken. Here was an amount due for labor and materials upon the Catherine C., as well as upon the Davis boat. The amount due upon each contract was certain and specific, and the mere fact that it was all included in one note cannot be regarded as payment, as there is no fact or circumstance which shows that it was the intent of the parties to treat this note as payment. The authorities are agreed that a note is not payment unless such was the intention of the parties. Gardner v. Gorham, 1 Doug. 507; Jennison v. Parker, 7 Mich. 365; Dudgeon v. Haggart, 17 Mich. 273.”

In Kirkpatrick v. Mehalitch, 113 Mich. 631 (71 N. W. 1077), Justice Hooker, speaking for the court, said:

“The important questions upon the record are two: (1) Were the judgments for goods, wares, and merchandise? The defendant contends that they were not. (2) Did the taking of acceptances, extend the time for the payment, and release the stockholder? The defendant maintains that it had this effect. There can be no doubt that the obligation was incurred upon the purchase of goods, wares and merchandise. It is contended that the judgment was upon an acceptance, and therefore not ‘a judgment for goods, wares, and merchandise/ within the statute — insisting upon a strict and literal interpretation of the statute. The' price of these articles was determined by a contract, as were also the terms of payment. The acceptances should not be considered any more than evidence of the obligation. There is nothing to indicate that they were designed as payment, or that the original demand was lessened in any degree by them. We think that the circuit court erroneously held that a judgment based upon these acceptances, and showing that they were given for goods, wares, and merchandise, was not a judgment for goods, wares, and merchandise.”

See, also, Kirkpatrick v. Bessalo, 116 Mich. 657 (74 N. W. 1042).

In Delaney Forge, etc., Co. v. Winnebago, 142 Mich. 84 (105 N. W. 527, 113 Am. St. Rep. 566), Justice McAlvay, speaking for the court, said:

“It is well settled that the giving of a promissory note is no payment of an indebtedness unless it is agreed that it is so accepted, and the evidence to establish payment must be positive and satisfactory. The facts with reference to the taking of the note in this case do not show any such agreement or understanding between the parties. The acceptance of the note was, therefore, not a payment of the claim. Gardner v. Gorham, 1 Doug. 507; Peter v. Beverly, 10 Pet. 568; Sarmiento v. The Catherine C., 110 Mich. 120 (67 N. W. 1085).”

Two exhibits in the case are illuminating. They read :

“Exhibit E.
“Memorandum to Whom Stock was to be Issued.
Paul Voorheis .............................. 1 share
C. E. Gregory .............................. 1
B. D. Boyce ................................ 1 “
W. B. Gregory ............................. 119 “
B. S. Boyce ................................ 118 “
240 shares.
“Transferred Nov. 29/02.”
“Exhibit F.
“Detroit, Mich., Nov. 29, 1902.
“Whereas, William B. Gregory, Benjamin S. Boyce, Carrie E. Gregory, Bertha Day Boyce and Paul Voorheis have this day purchased from us the entire stock of the Maumee Paper Co., and we have issued to them certificates therefor; and whereas the certificates for eighty-four shares of the stock so owned by us are missing and we are unable to find same: Now, therefore, we hereby agree to hold said purchasers safe and harmless of and from all loss, cost, trouble or expense, which may arise from the loss of said certificates.
[Signed] “Wm. S. Swan.
“A. B. Coffin.
“Copy of that -given Gregory & Boyce.”

All of the stock in the Maumee Paper Company was owned by Mr. Swan, Mr. Coffin, and the estate of Thomas P. Henish. It was all sold to Mr. Gregory and Mr. Boyce, and was all transferred to them, except one share to Mrs. Gregory, one share to Mrs. Boyce, and one share to Paul Voorheis. Mr. Gregory and Mr. Boyce paid $2,000 in cash. The balance unpaid was evidenced by the notes of the Maumee Paper Company made by Mr. Gregory and Mr. Boyce. The corporation obtained nothing for these notes, and it may be doubtful if its notes could be issued to pay for stock assigned not to the corporation, but to Mr. Greg ory and Mr. Boyce individually. We do not, however, think it necessary to pass upon that question.

In Bouma, v. Dubois, 169 Mich. 422 (135 N. W. 322), it was said:

“A reference to the charge from which we have so fully quoted will show that in this same connection the jury was told, over and over again, correctly, what the rule of law is. While the use of the word ‘perhaps’ was unfortunate, we do not think the jury was misled. It has been said:
“ ‘Where the charge of the court, tafeen as a whole, correctly states the law as applicable to the particular case, and clearly defines the issue, the fact that sentences are objectionable, when considered independent of the context, does not constitute reversible error.’ Provost v. Brueck, 110 Mich. 136 (67 N. W. 1114).
“See, also, Smalley v. Railway Co., 131 Mich. 560 (91 N. W. 1027); Beattie v. City of Detroit, 137 Mich. 319 (100 N. W. 574); Whelpley v. Stoughton, 119 Mich. 314 (78 N. W. 137).”

In the instant case no one can read the charge of the court without concluding that the jury understood that if the notes were received as payment the plaintiff could not recover, and that in deciding that question they should take into consideration not only what was said and done, but all of the facts and circumstances shown upon the trial. They could not have misunderstood the court.

It is suggested now for the first time that the statute of limitations has run. The plea was the general issue. It contained no suggestion of the statute of limitations, and the point was not made in the court below. We think it too late to make it now. Conger v. Hall, 158 Mich. 447 (122 N. W. 1073).

Judgment is affirmed, with costs to the plaintiff.

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