text:
      In re WOODWORTH’S ESTATE.
    1. Wills — Probate—Evidence—Conveyances by Deceased.
    In a contest over a will, which, contained no provision for the husband of testatrix, evidence was admissible to show that she had executed to him in the stead of a testamentary provision a quitclaim deed of her interest in the homestead held in common by the husband and wife.

      2. Same — Competency—Expert and Opinion Evidence.
    It was not error to reject the opinion of a witness as to the mental inoompetenoy of deceased, supported only by evidence that deceased failed to recognize the witness about the time the will was made, that she might have been asleep or in a stupor, but recognized the witness later when she opened her eyes.
    3. Same — Directing Verdict — Inoompetenoy.
    The question of mental incompetency should not be submitted to the jury, where witnesses give testimony which tends to show the mental capacity of testatrix, and no opinion or facts tending to show incompetency are produced.
    4. Same — Undue Influence — Evidence. Undue influence cannot be predicated upon opportunity alone.
    5. Same — Question of Pact.
    It is proper to refuse to submit to the jury the question of undue influence in the absence of evidence tending to show that some person made an attempt to influence the testatrix; and the suggestion of her sister that she should execute a will and provide for her husband did not amount to undue influence.
    Error to Jackson; Parkinson, J.
    Submitted June 21, 1910.
    (Docket No. 118.)
    Decided September 27, 1910.
    John S. McConnell and others presented for probate the last will and testament of Agnes P. Woodworth, deceased. The will was allowed in the probate court, and George O. Woodworth, contestant, appealed to the circuit court. A judgment for proponents on a verdict directed by the court is reviewed by contestant on writ of error.
    Affirmed.

      Grove H. Wolcott and B. 8. Woodliff, for appellant.

      Thomas E. Barkworth, for appellees.
   Bird, C. J.

This proceeding had its beginning in the probate court of Jackson county, to probate the last will and testament of Agnes P. Woodworth, deceased. The probate of the will was resisted by George O. Woodworth, the husband o£ the testatrix, upon the grounds of undue influence and mental incompetency. The will was admitted to probate, and an appeal was taken to the circuit court, where a trial resulted in a directed verdict in favor of the will. After the trial in the circuit court, the contestant died, and the suit is now being prosecuted in this court by a special administrator, representing the estate of the contestant.

The testatrix was 74 years old when she executed the will. It was executed during her last illness, which lasted about two weeks. She inherited from relatives the estate which she left, and it was of the value of $5,300. The homestead was valued at $2,500, and they owned it as tenants in common. The testatrix and the contestant had lived together about 42 years, and most of the time in the city of Jackson. They had no children. The husband had no property save his interest in the homestead. He had not been very successful in accumulating property, and had managed his wife’s financial affairs so hadly that she placed them in the hands of her brother, J. Scott McConnell. The will was prepared from memoranda which she dictated to Judge Hammond, an old and reputable practitioner of the city of Jackson. It was a simple will, in which she gave her husband “sufficient furniture, bed, and bedding to comfortably furnish a room.” She divided her household furniture and personal belongings among her relatives, and to her sister, Cordelia E. Markham, she gave her bonds, amounting in value to $3,500, and to her brother, J. Scott McConnell, she gave the balance of her estate, amounting to about $1,800, and nominated him as executor of the will.

It was insisted by the contestant that she was not in a mental condition to dispose of her property; that, by reason of her illness and the effect of a certain medicine which had been given her, she was incapacitated to make a will; and that, if she had any testamentary capacity at the time the will was made, it had been overcome by the influence of her sister, Cordelia Markham, the principal legatée.

The assignments of error raise three questions, to which attention will be given:

(1) Was the trial court in error in admitting the evi- • dence relative to the quitclaim deed and the circumstances attending it ?

(2) Did the trial court err in directing a verdict upon the question of mental incompetency ?

(3) Was it error to direct a verdict on the question of undue influence ?

The court admitted in evidence a quitclaim deed of the homestead, executed by testatrix the day following the making of the will, conveying her interest in the homestead to her husband, and also permitted the circumstances under which it was made to be shown. It appears that, when testatrix detailed to Judge Hammond the disposition which she desired to make of her property, she informed him that it was her wish that her husband should have her interest in the homestead. The deed transferring the property to them was shown to Judge Hammond, and he, observing that it ran to husband and wife, assumed, without further inspection, that they owned it by the entirety, and he advised that nothing further would be necessary to vest the title in the husband after the death of testatrix. Subsequently this was questioned by the contestant, and Mrs. Markham took the deed to Judge Hammond, whereupon, after an examination, he found that the homestead was conveyed to testatrix and her husband, as tenants in common, and that they were not the owners of it by the entirety. Judge Hammond then suggested that, inasmuch as the will had been made, it would be better to transfer her interest in the homestead by a quitclaim deed, which was at once prepared, the matter explained to testatrix, and she executed it.

Counsel for contestant are very strenuous in their contention that this testimony was not competent. We are unable to agree with them. We think it was competent to show to what extent the testatrix had aided the contestant, whether before or after the making of the will. Beaubien v. Cicotte, 12 Mich. 459; Bush v. Delano, 113 Mich. 321 (71 N. W. 628). It was admissible for another reason. It tended to rebut the inference which was sought to be drawn from the provisions of the will that the contestant had not been dealt fairly with by the testatrix in the disposition of her property. A conveyance of one-half of the homestead to her husband was a part of her plan in disposing of her property, and the one-half interest, according to the testimony, was worth $1,250, and without doubt she would have devised it to him in the will but for the erroneous impression of Judge Hammond. The fact that her interest in the homestead passed to contestant by deed rather than by devise made him no less a recipient of her bounty.

It is claimed by the contestant that the question of.' the mental incompetency of the testatrix should have been submitted to the jury. The proponent called several witnesses to establish the mental competency of the testatrix, and among them were Judge Hammond, who prepared the will; Emma Cole, an old acquaintance and neighbor; Emma Smith, the nurse who cared for her in her last illness; and Dr. Walter Snow, the attending physician. All these witnesses testified that the testatrix was physically weak, but that her . mind seemed clear. The testimony showed that no drug was administered to testatrix which would affect her mind until several days after the will was executed. The nurse testified that “ Mrs. Wood-worth’s mind seemed clear until after we gave her morphine,” and Dr. Snow testified that morphine was not given to her until the last four days of her life.

The contestant was a witness in his own behalf, but he gave no testimony tending to show that testatrix was mentally incapable of making the will. Only one other witness was sworn and testified for contestant, and she was not interrogated upon that subject at all. It is very clear to us that the trial court committed no error in refusing to submit this question to the jury unless the opinion of Janet Cassidy should have been received. Mrs. Cassidy was a neighbor and was invited in to witness the will. She testified on behalf of the proponent. At the conclusion of the cross-examination she was asked by the contestant for her opinion as to the mental competency of the testatrix to make the will. The court refused to allow her to answer, on the ground that she had stated no facts which tended to impeach the will. Contestant claims this was error. The substance of Mrs. Cassidy’s testimony was that she called to see the testatrix the day the. will was made and the day previous, and the testatrix did not recognize her at first nor greet her as she was accustomed to do. She had her eyes closed, and witness was not sure she was not asleep. Afterwards testatrix opened her eyes and recognized her. She also testified that on the day the will was made she heard her sister, Mrs. Markham, talking to the testatrix, and the testatrix lay, apparently, in a stupor. On this occasion she also had her eyes closed, and the witness was not sure whether testatrix was sleeping. The witness related no irrational conversation or extraordinary conduct on the part of the testatrix, which was inconsistent with competency. What she did relate was entirely consistent with the theory that testatrix was sleeping at these times. The testatrix was ill and physically weak, and it would not be expected that she would recognize and greet a neighbor as quickly and cordially as she would when she was well. If she awoke suddenly and saw a neighbor standing at her bedside, and for the moment was unable to tell who she was, but later recognized her, it would furnish no grounds for saying that she was incompetent.

Under the rule established by this court, we think the trial court was right in excluding the opinion of the witness. Prentis v. Bates, 93 Mich. 234 (53 N. W. 153, 17 L. R. A. 494); O’Connor v. Madison, 98 Mich. 183 (57 N. W. 105); Lamb v. Lippincott, 115 Mich. 611 (73 N. W. 887).

Should the question of undue influence have been submitted to the jury ? The testatrix decided during the first week of her illness that she would make a will. Judge Hammond, an old acquaintance, was sent for, and, when he came, she dictated to him the disposition she desired to make of her property. The will was prepared and read over to her, and she stated it was as she desired it. Her sister, Mrs. Markham, was present, helping to care for her, and her brother, J. Scott McConnell, was also present. Both were present at the request of testatrix. The witness Janet Cassidy testified that she heard Mrs. Markham, on the morning that the will was made, say to testatrix that she had better make a will and provide well for George (Woodworth). Mrs. Markham admitted saying this in substance, but gives as a reason that her sister had given her so many instructions as to the distribution of her silverware, wearing apparel, and furniture that she told her that she was afraid she could not remember all the instructions, and that she (testatrix) had better make a will and then there would be no trouble about it. This was a proper suggestion upon the part of Mrs. Markham, and we see no attempt in the suggestion to influence testatrix in favor of any one, unless it was on behalf of contestant himself. Testatrix’s brother and sister may have been in a position to influence her; but there is no proof in the record that they did so or attempted to do so, or that any one else attempted to influence her in the slightest, degree as to a disposition of her property. Something more than this must be shown to carry the question of undue influence to the jury. Undue influence cannot be predicated upon opportunity alone. Severance v. Severance, 90 Mich. 417 (52 N. W. 292). We think the court was right in refusing to submit the question of undue influence to the jury.

The appellee has discussed in his brief the question as to whether the administrator of contestant is a proper party to this appeal. We think the view this court has taken of the case renders that question unimportant.

The judgment of the trial court sustaining the will is affirmed.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    LONG v. SCHROEDER.
    1. Waters and Watercourses — Flowage Rights — Dams — Equity.
    A bill of complaint showing that defendants have maintained for forty years a dam in a stream that flows through the lands of complainants; that the defendants are planning to raise the height of the dam and cause the complainants’ land to be overflowed; the defendants admitting in their answer that their right to maintain the dam is based on prescription ; that it has settled and that they purpose to reconstruct the dam at its original height, presents a case for a court of equity.
    2. Same — Prescriptive Rights.
    Under the averments of the answer, defendants have no right to maintain the dam at a greater height than the old dam was at the commencement of suit.
    3. Same — Pleading—Supplemental Bill.
    It is unnecessary to file a supplemental bill to show that complainants after the commencement of suit completed the new dam at a greater height than the old one; the facts entitling the complainants to a decree requiring the reduction of the height of the new dam.

      4. Same — Relief—Contempt—Injunction.
    Nor is the sole relief of the complainants by contempt proceedings for disobedience of a preliminary injunction issued by the trial court.
    5. Same — Evidence.
    That some of the complainants abandoned the suit was immaterial.
    Appeal from Lenawee; O’Mealey, J.
    Submitted June 29,1910.
    (Docket No. 82.)
    Decided September 27, 1910.
    Bill by John Long and others against William Schroeder and another to restrain defendants from increasing the height of a dam. From a decree dismissing the bill, complainants appeal.
    Reversed and remanded.

      Bird & Sampson, for complainants.

      Westerman & Westerman and Smith, Baldwin & Alexander, for defendants.
    Nineteen owners of land joined in filing the bill of complaint in this cause. The bill was filed October 23, 1906, and it is charged therein that for more than 40 years a dam had been maintained across the River Raisin outside of and near, to the corporate limits of the village of Deerfield, the water being used to operate a mill or mills; that defendants, the owners of the mill property, on October 19, 1906, began to construct a new dam across the river just above the old dam and had so driven piling for the new dam, driven spikes into trees on opposite sides of the river, and had made such statements as to indicate the purpose and intention to build the new dam 20 inches higher than the old dam; that, if they should construct the new dam 20 inches higher than the old dam, complainants would be injured by the overflow of their lands, or of some of them, and, in any event, the drainage of the lands would be interfered with and proper and usual cultivation and use thereof prevented. It was prayed that defendants be perpetually enjoined “from building the new dam any higher than the old dam,” and there was, also, a prayer for a temporary injunction and a prayer for general relief. An order to show cause why a temporary injunction should not issue was made October 24, 1906, and incorporated therein was a further restraining order that defendants, until cause should be shown, refrain from constructing the new dam “ higher than the old dam.” Later, on November 7th, an answer was filed, and on the same day an order was made; the pertinent portion thereof reading:
    “And after hearing the argument of counsel, and the admission of defendants’ counsel that the defendants did not intend to construct the new dam any higher than the old dam now is, it is hereby ordered that said defendants * * * are hereby restrained from constructing said new dam any higher than the old dam now is. * * *”
    The bill contains no statement of the right of defendants in the premises or of the height of the old dam other than the one that the old dam had for 40 years held back the water to a certain height, known and recognized by all persons owning land above the dam. As to this, the answer, which was sworn to, denies that the old da.m held the water to a certain height which had been maintained during said period of time, and alleges, upon information and belief, that the old dam had settled and was considerably lower than it had been in former years. It is denied that the spikes driven into trees and the piling already in place indicated an intention to construct a dam 20 inches higher than the old dam was when it was constructed, “ or 20 inches higher than the old dam;” denied that any statements of such an intention had been made. But it is averred:
    “ That said dam was settled somewhat from the height to which it was when originally constructed; that their intention is to construct said dam as near as possible the same height that it originally was, but no higher than they have a lawful right to do, and deny that they intend to construct it 20 inches higher than the old dam, or any higher.”

      It is averred that, if the new dam is no higher than the old dam was when constructed, no injury to complainants would result. The cause stood on bill and- answer until September 28, 1908, when a replication was filed, and meantime defendants constructed the new dam.
    According to the printed record, the cause was brought on for hearing September 8, 1908, and testimony was taken, we assume, in open court. It is the contention of complainants that this testimony requires the finding that the new dam is considerably higher than the old dam, while defendants assert the contrary. After the testimony had been taken, and in March, 1909, complainants were given leave to file a supplemental bill, and they did file one which purports to set out the facts and circumstances, or some of them, occurring after the filing of the original bill, concerning the construction and height of the new dam and the effect thereof on complainants’ lands. In the supplemental bill it is prayed that defendants be required to abate, or take down, the new dam to the height of the old dam. To this supplemental bill defendants demurred March 24, 1909, and filed an amendment to the demurrer on June 7, 1909. The demurrer was sustained and the supplemental bill dismissed. Later, on motion of defendants, all testimony was stricken out and the original bill was dismissed.
    Further facts, relied upon by defendants, are that before the supplemental bill was filed, by stipulation filed in court January 23, 1909,10 of the complainants withdrew from the case, only 2 of the 10 gave testimony, and that in behalf of defendants. The complainants and appellants contend:

      First. That they were entitled to relief under the original bill.

      Second. That the facts occurring after the filing of the original bill, and while the injunction was in force, were properly brought upon the record by the supplemental bill.

      Third. That a decree should be entered requiring defendants to lower the dam so as to make it correspond in height with the old dam.
   Ostrander, J.

(after stating the facts). If complainants have, in fact, no grievance, other questions are unimportant. It is apparent from the facts which have been stated that the complainants admit, and the defendants assert, a prescriptive right. They do not assert that their predecessors in ownership of the mill or that they themselves ever acquired the right to flow the lands of upper proprietors in any different manner or to any greater extent than they were or would be overflowed by the dam in the condition it was when the bill was' filed. The only difference between them, on this point, is that complainants charge a constant and long-maintained interruption to the flow of water caused by the old dam, while the defendants say that the old dam has settled, from which it is inferred, necessarily, that the interruption to the flow has not been constant and the overflow of lands caused thereby has been variable. It may be said that defendants concede, in the answer, that, if the new dam should be built higher than the old dam was as it was originally constructed, complainants would have a grievance which, if properly presented, a court of equity ought to relieve. We are of opinion, also, that the matter set up in the answer concludes defendants from claiming the right to maintain a dam any higher than the old dam was at the time the bill was filed. We are convinced that the new dam is higher than the old dam was at the time the bill was filed. In other words, we measure the rights of defendants as against those of complainants by the interruption to the flow of water caused by the old dam as it was when the suit was begun. We come therefore to the questions of pleading.

The court below was of the opinion that the remedy open to complainants was by proceedings for contempt; that the relief asked for by the supplemental bill was not consistent with the relief asked for in the original bill; that the complainants could not, by supplement, introduce the facts occurring since the filing of the original bill for the purpose of securing a mandatory decree for the abatement of the new dam. It is said in the opinion of the court:

“ The facts stated and the relief asked thereon in the supplemental bill is practically an abandonment of the original bill and of complainants’ rights and remedies under it, and sets up a new substantive cause of action upon which a decree might be made without connecting it with the original bill.”

Defendants did not seek a dissolution of the temporary injunction, and did not, and do not now, question the power of the court to allow it. After it was issued, there remained the question of the right of complainants to a decree making the injunction permanent and, perhaps, as affecting the matter of costs, the question of defendants’ purpose and of complainants’ justification for filing the bill. We do not perceive how defendants’ conduct pending the hearing of the cause upon its merits did or could change the issues. Complainants are not asking for damages, but only for a decree requiring defendants to maintain the new dam at a height corresponding with that of the old dam — for relief by injunction. If entitled to such relief when the original bill was filed, they are entitled to it now. The fact that such relief can be afforded now only by a decree requiring defendants to lower the new dam is a fact for which defendants are alone responsible. It is no other or different relief than was asked for in the original bill, and it must be granted or denied upon the facts which remain unaffected by defendants’ conduct pending the suit. In this view of the matter, it is immaterial that some of the complainants abandoned the suit, or that some of them are willing the dam shall remain as now constructed. It was not necessary to bring upon the record, in the form of a supplemental bill, the facts which were made to appear at the hearing respecting the violation by defendants of the preliminary injunction and the necessity for a decree mandatory in its form. We are, however, in some doubt concerning the precise terms which ought to be incorporated in a mandatory injunction. Unless counsel can agree about the precise dimensions to which the new dam should be reduced or the precise dimensions of the reduction which should be made in its height to make it correspond, substantially, to the height of the old dam, the record must be remanded, for this purpose, to the court below.

Complainants may, in any event, have the decree of this court for reversal of the decree below, for costs of both courts, and for a mandatory injunction in accordance with this opinion.

Moore, Brooke, Blair, and Stone, JJ., concurred.


author: Moore, J.

text:
    STREPANSKI v. GRAND RAPIDS PLASTER CO.
    Master and Servant — Safe Place — Insufficient Lights.
    The duty of the master to provide a safe place does not apply to work in a mine where conditions constantly change hy reason of blasting and removing rock, so as to require the master to maintain sufficient lights for temporary contingencies.
    Error to Kent; Perkins, J.
    Submitted June 28, 1910.
    (Docket No. 125.)
    Decided September 27, 1910.
    Case by Andrew Strepanski against the Grand Rapids Plaster Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Thomas P. Bradftéld (Francis A. Stace, of counsel), for appellant.

      Kleinhans & Knappen, for appellee.
   Moore, J.

The defendant is engaged in the business of mining gypsum and preparing and placing its various products upon the market. The plaintiff has been at work in the mine more than 25 years. At the time he was injured he had been a breaker for more than six months. While breaking and loading gypsum into a car, a piece broke off from a large rock and fell .upon his leg and ankle, injuring them very severely. It is his claim that the defendant was negligent in not having the place where plaintiff was at work properly lighted so he could have seen the crack in the rock, and thus have avoided the accident. At the conclusion of the evidence on the part of the plaintiff, the circuit judge directed a verdict for the defendant. The case is brought here by writ of error.

It is insisted upon the part of the plaintiff that the doctrine of a safe place to work applies to this case, and that the case should have been submitted to the jury. We quote from the brief of counsel:

“The case of Fox v. Iron Co., 89 Mich. 387 (50 N. W. 872), is important in this case in two ways. The court says:
“ ‘ The practice of requesting the court to direct a verdict at the close of the plaintiff’s case is not one to be commended, as the circuit court would rarely, and never, except in a very plain case which was free from all doubt, grant such motion. * * * The motion should not be granted where there are any inferences of fact to be drawn by a jury from the testimony, and the motion was properly overruled in this case.’
“ This case is also important, because it lays down the principle upon which we also rely that an employer cannot delegate a duty, so as to escape responsibility, which properly belongs to the employer, and on page 393 of this case this duty is discussed in the following language:
“ ■ “The true rule, I apprehend, is to hold the corporation liable, for negligence or want of proper care, in respect to such acts and duties as it is required to perform and discharge as master or principal, without regard to the rank or title of the agent, intrusted with their performance. As to such, acts, the agent occupies the place of the corporation, and the latter * * * is liable for the manner in which they are performed.” ’ Flike v. Railroad Co., 58 N. Y. 549.
“ ‘And hence a true test is—
“ ‘ “Whether the person whose status is in question is charged with the performance of a duty which properly belongs to the master.” McKinney on Fellow Servants, p. 54.
“ ‘Applying this test to the facts of this case, there can be no doubt that Marshall was charged with the duty of keeping the hoisting apparatus in repair, and that such duty properly belonged to the corporation to perform. He was not, therefore, merely a fellow-servant with plaintiff.’ ”

Many other cases are cited, and particularly the case of Kaukola v. Mining Co., 159 Mich. 689 (124 N. W. 591), which counsel says is conclusive of this case.

As bearing upon the question of whether the case should have been submitted to the jury, counsel regard the following testimony as important. We again quote from the brief:

“And the witness Veecncki testifies that from his knowledge of the thickness of this rock that fell and the strength of gypsum rock and the location of the rock on the ground and piled near the big rock that he would say that it must have been cracked at the point it finally broke off before it fell. The testimony shows that plaintiff examined the rock as well as he could in the light furnished, and that it appeared solid before he started to clean up close to it, and that no crack was visible where it after-wards broke.
“The testimony of the plaintiff is that all the cracks in dry gypsum rock like the rock in question which are made by dynamite blasting are visible in a good light, because the force of the gas and the explosion separates the portions of the rock and forces small particles into the cracks in such a manner that the rock does not settle together again so closely but what the cracks can be seen in a good light. Plaintiff further says:
“ ‘ When the lights were near we could see the cracks in the stone, but one could not see them that night, because the lights were far away.’”

It is the contention of defendant that the doctrine of a safe place to work does not apply at all, for the reason that the work which plaintiff was doing was that of mining, and that the work itself made the place, which was continually changing.

The case made by the plaintiff is, in substance, as follows: There is a main passageway in the mine upon which there is a tram railway for the cars, and in which the main electric wires are placed. From each side of the main passageway rooms or benches are at right angles to the main passageway. The ceiling is supported by leaving pillars of the original gypsum rock. As the lateral benches, or passageways at right angles to the main passageway progress away from the main track, branch car tracks are laid in the side benches or passageways, connecting with the main track. The lateral benches, or passageways, are lighted by electric lights attached to cables. The cables are attached to the feed wires in the main passageway by plugs, and are extended along the ceiling of the lateral passageways, or benches, as the work progresses. These cables are about 50 feet long, and are attached to the ceiling of the side passageways by drilling a hole in the ceiling and driving a wooden plug into this hole. Hooks are screwed into these wooden plugs, and the cables are supported by these hooks. The most advanced portion of the work is lighted by two or three incandescent lamps fastended to a small board, on the back of which is a hook or ring which loops over the hook in the ceiling. The board containing the incandescent bulbs is so arranged that it can be unhooked and carried back and placed behind a pillar during a blast and later hung back upon the hook. At the time plaintiff was injured the side passage on which he was working had been extended about 60 feet from the main passageway. It is the duty of the drillers to bore the holes, for the powder or dynamite. After the drillers, come the blasters, who load the holes and fire the blasts during the intermission between shifts, either in the morning or evening. After the blasters come the breakers, who with the aid of a point (which they use as a wedge), and a hammer, break up the larger pieces into small pieces suitable for the crushers, and load them on the tram cars.

Plaintiff testified, in part, as follows:

“Q. Will you tell what the usual practice was in the mine about the blasters working on a bench one night and the loaders coming the next night to clean up after them ?
“A. When we came to work the blasting had already been done, some drilling was done, and sometimes the loaders and drillers were working on the same bench at the same time. The blasting was always done after one shift had gone away and before the other came. This loading and blasting was done by a loader man. This loader man fired the blasts. * * * The Friday night on which I was hurt was the first night that we had been at work on this bench after the last blast had been fired off, and no rock from the last blast had been taken out before our craw went to work to break rock the night I was hurt. It was smoky in the room when we went to work that night. They had electric lights, but they were dusty and gave poor light, and with respect to the rock part on which we were going to work the light was quite a bit behind it. I don’t know how many feet; I could not see well to do my work with the lights where they were. That night I complained about the poor lights. In the first place, I spoke to the foreman, and the foreman told me to speak to Fronczak. This was when we were about to start to work. The foreman’s name is Hoffman. He walked around the benches. * * * I told Hoffman right away after I went to work about the lights, the night on which I was hurt, and I told him the light was too far away and that it was not right. Hoffman said he would' send Fronczak down. After that I went to work. I saw Fronczak after that about 7 o’clock, and told him to fix the lights, and he said he didn’t have time; he had to fix the track. Fronczak said he would fix the lights when he finished the other work.
Two cars had been loaded and been sent away and one more loaded that night before I was hurt. The loaded car was in the middle of the bench at the time. It was about eight feet away from the pile of rock. The top of the pile of rock on the loaded car was about two fe6t higher than my head, and the light was behind this loaded car. The lights in the mine were put up in the center of the bench, hanging from the ceiling, and there were three globes, not very large globes, about the size of the one on the table. * * * After a car was loaded, and before breaking more stone, we were instructed to see whether the rocks were solid, and then we had to throw back the dirt, or finer stuff, so that we would have the floor of the bench clear and clean. We had to throw it against the wall on the right-hand side. Every time we would load up a car there would be a lot of dirt left, and we had to throw that away first before loading another car. At the time I was hurt I was throwing dirt away with a short-handled shovel. Before I started to shovel away this dirt from in front of this rock, we looked to see whether the stone or the rock was solid. I could not see any cracks in the rock where it afterwards broke. The light was dirty and it was far away. I couldn’t see. * * * The loader, Wiktorowski, blasted out this short hole in this large rock. After he had fired the hole, he said it was all ready. The shape of the large rock, part of which afterwards fell upon me, was in the shape of the clay model. I was in front of the rock on the right-hand side. I can’t remember very well what happened. When I was hurt I was taken away. I imagine that the piece fell off the top here and slipped onto me when I was throwing dirt. The top of this rock which fell as I stood was about four feet above my head and was about five feat above the level of the place where I was standing. The middle plane of the rock was about four feet from the ground upon which I was standing. * * * When we looked at the rock to see if it was safe before we shoveled up the dirt, we did not see any crack in the rock where it afterwards broke j we thought it was solid all over. When the rock struck me it scratched me and scraped me and cut two of my veins or blood vessels. The doctor says I had a broken rib, the flesh was scraped off of my injured leg clear to the bone, and the rock cut off the ankle bone.”

We have already quoted the rest of his testimony which is important, and also the important part of the testimony of Mr. Veecncki. This testimony makes it very clear that plaintiff was engaged in the work of actual mining, following up the work of the drillers and blasters by removing the result of- their work, namely, the dirt and the rock which was broken down by the blast.

In the case of Kaukola v. Mining Co., 159 Mich. 689 (124 N. W. 591), which counsel for appellant regard as conclusive, Justice Stone said, among other things, the following:

" The lighting of this passageway or thoroughfare of the mine far distant from the working places of most of those who passed through them — it being always dark in the mine — was just as necessary for the safety of the men as it was to have the walls and floors in a proper condition. * * * It was a thing which it was necessary to keep permanently in condition.”

Mr. Justice Stone then expressly recognizes the distinction between conditions that are permanent and those that are constantly shifting, in the following language:

"Unlike the case of Livingstone v. Plate Glass Co., 146 Mich. 236 (109 N. W. 431), here the place furnished was a permanent place of work, and not one where the conditions were constantly changing.”

So far as this case is applicable to the one we are considering, it sustains the contention of defendant.

There are numerous decisions of this court upon the proposition that under similar circumstances to the case before us, the doctrine of safe place to work does not apply. See Beesley v. F. W. Wheeler & Co., 103 Mich. 196 (61 N. W. 658, 27 L. R. A. 266); Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505); Landowski v. Chapoton, 137 Mich. 429 (100 N. W. 564); Livingstone v. Plate Glass Co., supra; Karppinen v. Mining Co., 154 Mich. 528 (118 N. W. 1118).

It is not necessary to discuss the other contentions of counsel. We think a verdict was properly directed.

Judgment is affirmed.

Bird, C. J., and Ostrander, Brooke, and Blair, JJ., concurred.


author: Per Curiam.

text:
    BALDWIN v. ESCANABA LIQUOR DEALERS’ ASSOCIATION.
    1. Appeal and Error — Time to Appeal — Equity Practice — Claim oe Appeal.
    The failure of appellants to file a claim of appeal after the settlement of the record" in chancery is not fatal where the claim was actually filed prior to the settlement of the case.
    2. Same — Reguster’s Fee — Payment.
    Actual payment of the fee to the register in chancery is unnecessary if the register treats it as paid within the 40 days after settling the testimony by giving the solicitors credit for the amount, makes no demand, and it is subsequently paid. Act No. 299, Pub. Acts 1909.
    Bill by Francis L. Baldwin-against the Escanaba Liquor Dealers’ Association for an injunction. From a decree for complainant, defendant appeals: Qn motion to dismiss the appeal.
    Submitted June 28, 1910.
    (Calendar No. 24,102.)
    Motion denied September 27, 1910.

      A. H. Byall, for the motion.

      CummisTcey & Spencer, contra.

   Per Curiam.

A motion is made to dismiss the appeal upon two grounds:

(1) The failure of the appellants to file a claim of appeal with the register in chancery of the circuit court for the county of Delta within 40 days after the settlement of the case.

(2) The failure of the appellants to pay to the register of the court the sum of $5 within 40 days after the settlement and filing of the case in the lower court.

The record shows the entry of the decree December 23, 1909, the filing of the bond on appeal January 29, 1910, the filing of the claim of appeal February 10,1910, the filing of the case settled April 19, 1910, and the payment of the -fee June 13, 1910. Section 2 of Act No. 299 of the Public Acts of 1909 provides for filing claim of appeal and payment of $5 to the register within 40 days after the settlement of the case on appeal. The first ground for dismissal was passed upon adversely to the contention of the mover in Patterson v. Hynes, 148 Mich. 581 (112 N. W. 129).

Touching the second ground urged, we find from the affidavit of the register that, while the #5 fee was not in fact paid within the time limited by statute, the register considered it as paid, gave solicitors for defendants personal credit for the same, and made no demand therefor. The money was actually paid on June 18, 1910. These facts constitute a sufficient compliance with the statute.

The motion is denied.


author: Brooke, J.

text:
    KETCHUM v. FILLINGHAM.
    1. Negligence — Contributory Negligence — Automobiles — Highways.
    The question of the plaintiff’s contributory negligence was for the jury, where she testified that she drove to a street car track, paused before crossing it, to avoid an approaching car, and defendant’s automobile collided with her.
    2. Same — Instructions to Jury.
    A charge to the jury that the operation of an automobile required the use of ordinary care, that it included the duty of having the car under control when approaching street intersections, and that defendant must use such care as an ordinarily prudent man would have used, with further instructions concerning the duty of exercising due care on the part of both plaintiff and defendant, sufficiently defined the issues of negligence.

      8. Damages — Pleading—Special Damages — Personal Injuries.
    It is improper to refuse an instruction to the jury that an injury to plaintiff’s knee, not counted on in her declaration, should not be considered in awarding damages.
    4. Trial — Credibility op Witnesses.
    It is error to refuse a properly framed request to instruct the jury that if any witness wilfully testified falsely, as to a material fact, no credit should be given to other uncorroborated testimony of that witness.
    Error to Ingham; Collingwood, J.
    Submitted June 28, 1910.
    (Docket No. 153.)
    Decided September 27, 1910.
    Case by Catherine J. Ketchum against Joseph P. Fillingham for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.
    Thomas, Cummins & Nichols, for appellant.

      Jason F. Nichols and Frank L. Dodge, for appellee.
    Plaintiff was injured in a collision between an automobile owned and operated by defendant and a carriage in which she was riding. Just prior to the accident plaintiff was driving slowly in a westerly direction along Hillsdale street, in the city of Lansing. When she reached Washington avenue, she observed a street car approaching from the north. She drove out upon Washington avenue, but claims to have stopped her horse a few feet east of the street car track to allow the street car to pass in front of her. Defendant approaching the intersection from the south collided with the carriage, smashing the left front wheel and left thill. The carriage remained upright, and plaintiff was not thrown from it. Plaintiff recovered a verdict, and defendant has removed the case to this court hy writ of error.
   Brooke, J.

(after stating the facts). We cannot agree with the claim of defendant that plaintiff was, under her own testimony, guilty of contributory negligence as a matter of law. If her testimony is to be believed, she acted with ordinary prudence. Under all the testimony, it was, at most, a question of fact for the determination of the jury under proper instructions, which were given.

With reference to defendant’s negligence, the court charged the jury as follows:

<c It [the automobile] entails on the man or woman who runs it the duty of keeping it under control, especially at the street intersections, and not to run it at a rate of speed which would be dangerous or which would contribute to its getting from under his control. * * * He [defendant] was bound to use just such ordinary care, prudence, and caution as the ordinarily prudent man would have used under such circumstances. This duty includes the duty of having his automobile under control when approaching and passing street intersections, and of operating it at such a speed as is reasonable and proper, having regard to the traffic conditions of the street and the safety of the people.”

It is most strenuously urged by defendant that the charge as a whole does not define the issues of negligence, nor limit the jury to the consideration of the specific negligence charged in the declaration. We think the portion of the charge quoted above, taken together with the definition of negligence in another portion thereof, and the repeated admonition of the court that the plaintiff could recover only if she convinced the jury by a preponderance of the evidence that she was free from negligence and that her injury resulted from the negligent act of the defendant, fairly instructed the jury upon the law involved in this phase of the case. In her declaration plaintiff set out that she was injured—

By having her general nervous system severely shocked, her head and shoulders and back severely strained and wrenched, and thereby causing curvature of the spine, and her right arm and hand severely injured, and also inflicting other painful and severe injury to the body and abdomen, and thereby so bruising plaintiff in her left side as to cause a swelling or abscess, of a tumorous nature to form, which, has caused plaintiff to suffer,” etc.

It will be noted that no claim is made in the declaration that plaintiff had suffered an injury to her legs. Upon her direct examination she testified as follows:

“Then I had nervous chills, hundreds of them. I shook just like a leaf day after day and formed a large lump under my right knee. It remains there yet, and my feet are numb. They are just like no feet, just as if they were coming to from being asleep.”

Plaintiff’s husband, on direct examination, testified:

“When I was giving her a bath, I discovered those lumps under her knee. They were under one knee. They were about as large as the bottom of that tumbler and oval, and on the other one was about the size of a guinea egg, a walnut, or something of that kind.”

Dr. Reynolds, plaintiff’s physician, also upon direct examination testified:

“Q. Now, with reference to the leg, let me call your attention. Did you discover anything under her knee ?
“A. There is a bunch there I think. I was thinking there might be two, but I guess there isn’t but one.
Q. What was that caused from, Doctor, if you know ?
“A. Well, it is an enlargement of a gland, but I don’t know what caused it in this case. It might have been an injury and might not.”

All the foregoing testimony seems to have been admitted without objection on the part of the defense.

When the proofs were closed, however, defendant preferred the following request:

“ (14) No claim is made in the declaration of damages for injuries to plaintiff’s knees; hence no damages can be awarded for such injuries.”

This request was refused, and the court charged:

“ The damages claimed by the plaintiff in her declaration are for the pain and suffering from the time of the injury up to the present time, whatever she may have suffered physically and mentally, by reason of her injuries or the nervous condition from the time of the accident up to the present time she is entitled to recover for if you find for the plaintiff.”

We think this instruction erroneous. It has been repeatedly held that recovery may not be had for injuries not pleaded. Fuller v. Mayor, etc., of Jackson, 92 Mich. 201 (52 N. W. 1075); Hally City of Cadillac, 114 Mich. 99 (72 N. W. 33). It cannot be said, as claimed by plaintiff, that in making up their verdict the jury were not influenced by this testimony. At the time of the trial the swellings beneath the knees afforded practically the only external evidence of plaintiff’s injury.

Defendant’s 15th request, as to the credibility of witnesses, was in proper form, and should have been given. Knowles v. People, 15 Mich. 408; Hamilton v. People, 29 Mich. 173; O'Rourke v. O'Rourke, 43 Mich. 58 (4 N. W. 531); Gerardo v. Brush, 120 Mich. 405 (79 N. W. 646).

The judgment is reversed, and a new trial granted.

Bird, C. J., and Ostrander, Moore, and Blair, JJ., concurred.


text:
    STRELOW v. AMERICAN COLOR CO.
    1. Corporations — Stockholders’ Liability — Judgment Creditors — Exhaustion op Legal Remedies.
    Before filing a bill in equity to enforce the liability of stockholders for partly paid stock, the creditor must reduce his claim to judgment and exhaust his legal remedies. 3 Comp. Laws, §§ 9755-9780.
    2. Equity — Judgment—Arbitration—Creditors’ Bill.
    Equity will not take jurisdiction of a bill of complaint to enforce stockholders’ liability, filed by a creditor who has secured an award of arbitrators against the corporation, but not a judgment, and who does not show an execution issued and returned unsatisfied.
    Appeal from Wayne; Murphy, J.
    Submitted June 30, 1910.
    (Docket No. 39.)
    Decided September 27, 1910.
    Bill by Albert Strelow against the American Color Company and others for an accounting, and to enforce the payment of unpaid stock subscriptions. From an order sustaining demurrers to the bill, complainant appeals.
    Affirmed.

      Charles Engelhard, for complainant.

      W. L. Jenks, F. L. Wilson, and Bowen, Douglas & Eaman, for defendants.
   Brooke, J.

Complainant, who was a creditor of defendant American Color Company, on December 14, 1906, caused an attachment to issue against the property and effects of said defendant. On December 19, 1906, an agreement was entered into between the parties to that suit to liquidate the damages by arbitration. On May 1, 1907, the arbitration committee signed a finding, fixing the amount of complainant’s claim at the sum of $2,275.84. The said defendant was a tenant of complainant, and there appears to have been past due on account of rent the further sum of $1,250. Complainant had another claim against said defendant for repairs amounting to $87.20. None of these claims were placed in judgment, and, of course, no execution therefor was returned unsatisfied, in whole or in part. On May 17,1907, complainant filed his bill in this cause, setting out gross mismanagement on the part of the officers of said defendant, and averring that many of the stockholders (also made defendants) had not paid in full for the stock standing in their several names. He prayed that the Security Trust Company (already acting as trustee for the defendant American Color Company under a mortgage) be appointed trustee to collect the assets of said defendant, and distribute the same among the bona fide creditors thereof;

“ That an account be taken to show the true condition of the company, and the amounts so due from the various said stockholders and all the members of the company, and that the necessary orders and decrees may be entered requiring their proportional contributions for the amounts so unpaid on their said stocks, to the extent necessary to make up the deficit or shortage required to pay in full all legitimate claims and expenses of administration and of this proceeding, and for the enforcement and collection of such orders and decrees according to law.”

To this bill of complaint defendants Ramage, Hopkins, Charles W. Thompson, W. Thompson, Jr., Jenks, and Pepper demurred. The principal ground of demurrer is—

“That it appears affirmatively from said bill of complaint that said complainant is not a judgment creditor of said defendant American Color Company in any manner or form whatsoever, and it further appears that the main purpose of said bill of complaint is to enforce a liability on this defendant for unpaid subscriptions to the capital stock of said defendant American Color Company.”

Prom a decree sustaining the demurrer complainant appeals.

Complainant’s position, as we gather it from a very voluminous brief, is:

(1) That it is not necessary for him to have reduced his .claims to judgment in order to maintain his bill to compel payment of unpaid stock subscriptions; and

(2) That, if a judgment is necessary, the arbitration award is equivalent in law to a judgment.

His first contention has been directly passed upon in McKee v. Garbage Co., 140 Mich. 497 (103 N. W. 906). It was urged there, as it is in the case at bar, that independent of the statute (chapter 269, §§ 9755-9780, 3 Comp. Laws), equity courts exercised jurisdiction over directors, managers, trustees, and other officers of corporations for many of the purposes specified in the statute, and exercised that jurisdiction at the instance of any creditor, whether he had proceeded to judgment or not, or whether his claim was due or not. This court in disposing of complainants’ contention there said:

“ We cannot recognize that principle in this State, because we have already deliberately repudiated it. See Bank of Montreal v. Lumber Co., 90 Mich. 345 (51 N. W. 512). Complainants cannot therefore maintain their suit on any general principle of equity.”

In C. H. Little Co. v. Cemetery Ass’n, 135 Mich. 248 (97 N. W. 682), it was held that, aside from the remedies and proceedings provided by chapter 269, §§ 9755-9780, 3 Comp. Laws, courts of equity have jurisdiction in many cases, but it was further held that—

“ It is the common-law duty of a creditor in such cases to proceed first against the property of the corporation, to ascertain if any can be found to satisfy his debt, before proceeding against the stockholders. The proceeding against the stockholders would be entirely unnecessary if there were tangible assets subject to the payment of creditors.”

In effect, complainant asks us to overrule our holding in McKee v. Garbage Co., supra, together with the decisions upon which it is based. No good reason is perceived for such a course. It seems to us that it is imposing no hardship upon a creditor to, ask him to first exhaust his legal remedy by judgment and execution against the assets of the corporation itself before permitting him to inquire into the relations existing between the corporation and its stockholders. He has no interest in the subject, unless the corporation itself is unable to pay its debt.

Is the arbitration award the equivalent of a judgment ? Many decisions as to the effect of an award are cited in-complainant’s brief, but .none of them answer this question in the affirmative. It is, we think, clear that it is rather' the basis for a judgment than its equivalent. An execution could in no event issue upon the award itself without a precedent judgment. But, if complainant’s contention as to this question is correct, it does not meet the situation. The object of the statute and of the common-law rule is to insure the exhaustion of the assets of the corporation itself before recourse can be had to unpaid stock subscriptions, and this can be done only by issuing an execution against such assets. Its return unsatisfied, in whole or in part, clothes the court with jurisdiction to proceed against the delinquent stockholders.

The decree is affirmed, with costs.

Bird, C. J., and Ostrander, Moore, and Blair, JJ., concurred.


text:
    VILLAGE OF WOLVERINE v. CHEBOYGAN CIRCUIT JUDGE.
    1. Mandamus — Injunction—Parties to Suit — Prosecuting Attorney.
    In an application for mandamus to compel the dissolution of a temporary injunction issued in a suit by the prosecuting attorney on the relation of residents of a village, to prevent the approval of liquor dealers’ bonds, the objection that the prosecuting attorney is an improper party is not meritorious where the attorney general has intervened and approved of his action.
    2. Intoxicating Liquors — Prosecuting Attorney — Equity — Parties — Approval of Bonds — Restraining Unlawful Action — Public Officers.
    Under 1 Comp. Laws, § 2556, the prosecuting attorney may file a bill to enjoin the unlawful approval of liquor dealers’ bonds by a village council.
    3. Same — Public Officers — Municipal Corporations — Injunction.
    Injunction is the proper remedy to restrain the council of a village from approving a liquor dealer’s bond which has been protested by a majority of the voters. Act No. 321, Pub. Acts 1907.
    4. Same — Action of Council — Approval of Bond — Conolusiveness.
    The action of a village council in holding that a protest of the majority of the voters against the approval of a liquor dealer’s bond did not comply with the statute is not final.
    5. Same — Temporary Injunction — Bond of Liquor Dealers — Approval. '
    It is a proper exercise of discretion to restrain, by a preliminary injunction, the approval of liquor dealers’ bonds and the issuance of licenses to sell intoxicating liquors at retail where the court finds that a majority of the resident voters for governor at the last election protest against the bonds which are executed by a surety company. Aot No. 321, Pub. Acts 1907.
    Mandamus by the village of Wolverine and others to compel Frank Shepard, circuit judge of Cheboygan county, to dissolve a temporary injunction.
    Submitted July 1, 1910.
    (Calendar No. 24,025.)
    Denied September 27, 1910.

      Charles D. Barghoorn and C. 8. Beilley, for relators.

      Franz C. Kuhn, Attorney General, David H. Crowley, Prosecuting Attorney, and Frost & Sprague, for respondent.
   Moore, J.

This is an application for a writ of mandamus to compel the respondent to dissolve a temporary injunction issued by him. Mr. Daley and Mr. Sellick are saloon men. The other relators are members of the village council of the village of Wolverine.

In April, 1910, a bill of complaint was filed by David H. Crowley, prosecuting attorney, on the relation of Fred D. Clark and Casson B. Stonehouse, in which it was represented that said Crowley had been and was prosecuting attorney, and that said Clark and Stonehouse were residents with their families of the village of Wolverine in said county, and the owners of valuable property therein; that the village of Wolverine consisted of six trustees, with its president, Henry Kuehl, and its clerk, Arthur Bonnett, all duly elected, qualified, and acting for said village; that on April 5, 1910, a majority of the qualified electors of ,the village of Wolverine, equal to a majority of the votes cast for governor at the last-general election, filed a petition with said village protesting against the acceptance of bonds offered by any individual, firm, or corporation proposing to engage in the sale of intoxicating liquors, protesting against the acceptance of such bonds on which said bonds any surety or bonding company was given as the surety thereon; that it was the duty of the common council to refuse to accept bonds of any individual, firm, or corporation upon which a bonding company was given as surety; that James Daley and William Sellick, relators, had each secured bonds and proposed to engage in the sale of intoxicating liquors at the village of Wolverine upon which said bonds the Michigan Bonding Company was surety, and that said Daley and Sellick offered and sought to have the village of Wolverine accept said bonds and duly certify to same, and to thereafter present the same to the county treasurer, and that said county treasurer was to be requested to issue a license thereon, and that, notwithstanding the filing of a petition protesting against the acceptance of such bonds, complainants were informed that the common council had no right to accept same and to issue a certificate, and that the common council’s officers and trustees threatened to issue and deliver said bonds and deliver- the certificates aforesaid; that the proposed action of the common council was without authority of law and beyond the powers of said council ; and that its proposed action in issuing and delivering certificates of approval, and the proposed .action of the county treasurer in issuing licenses, is a violation of public duty in that the proposed action was illegal and unlawful, and that licenses obtained upon said bonds would be illegal, and that the place where the sales of liquor would be made would be a nuisance and would work irremediable injury. The bill prayed for a writ of injunction. A demurrer and an answer were interposed to the bill of complaint. A temporary injunction was issued. A motion was made to dissolve this injunction. After a full hearing the motion was denied. This mandamus proceeding was then instituted.

The attorneys for the relators urge (we quote from the brief):

“ There are four questions for discussion in this case, viz.:
“First. Had the prosecuting attorney for and in behalf of the people of the State of Michigan the right to commence this action ?
“Second. Was injunction the proper remedy ?
“Third. The effect of the action of the common council of the village of Wolverine on said petition of protest.
“Fourth. The construction to be placed on Act No. 321 of the Public Acts of 1907, what is meant by the expression therein, ‘ A majority of the qualified electors of any town, village or city, equal to a majority of the votes cast for governor at the last general election.’ ”

We will consider these questions in the order presented.

1. It ought to be stated in this connection that the attorney genera] of the State has intervened and approves of the action of the prosecuting attorney, so that, if the objection made by counsel is technically correct, it ought not to have much weight in an application for a writ of mandamus, which is a discretionary writ. We think, however, section 2556, 1 Comp. Laws, gives the prosecuting attorney full authority to appear in such a proceeding as this.

2. Is injunction the proper remedy ?. It has been repeatedly held by this court that, when officers are about to do unlawful and unauthorized acts, an injunction may be issued. See McMullen v. Ingham Circuit Judge, 102 Mich. 608 (61 N. W. 260), and the cases therein cited.

3. It is claimed under this head that the decision of the village council that the petition of protest does not comply with the law is final and controlling. Counsel cite many cases in support of this contention. An examination of these cases will show that they arose under statutes which expressly provided that the action should be final. The statute under consideration has no such provision.

4. It is the contention under this head (we quote from the brief):

The intention of the legislature evidently was that a majority of the qualified electors, who were such qualified electors at the time of the presentation of the petition, should have the right to protest against the acceptance of surety bonds. It is only the persons who are qualified electors at that time who are interested in the acceptance of such bonds, and the protestants must be a majority of such qualified electors. To further define this majority the legislature adds that this majority must be equal to a majority of the votes cast for governor at the last general election.”

The act under consideration is Act No. 321, Pub. Acts 1907. The language which is important here is as follows:

“Section 1. Whenever any bond * * * is by the law of the State * * * required * * * such bond * * * may be executed by a surety company qualified to act as surety or guarantor as hereinafter provided. * * * Provided, further, That where any bond is required for the sale of liquors under the laws of this State, such bonds shall not be executed by any surety company as herein provided, except by and with the consent and approval of the township board, or of the board of trustees or of the common council of any village or city as the case may be, within which said bond is required to be filed: And Provided, further, that the bond of such surety company shall not be accepted by said township board, common council or a board of trustees unless such surety company shall be a corporation of the State of Michigan, organized and existing under the laws of the State of Michigan, and with a capital stock of not less than five hundred thousand dollars: Provided, That whenever a majority of the qualified electors of any township, village or city equal to a majority of the votes cast for governor at the last general election shall file a petition with the township board of any township, board of trustees, council or common council of any village or city, protesting against the acceptance of the bonds offered by any individual, firm or corporation proposing to engage in the sale of intoxicating liquors at retail, it shall be unlawful for such township board of such township, board of trustees, council or common council of any village or city to accept such bonds.”

This language is clear and unambiguous. The circuit judge found that 165 qualified electors residing in the village of Wolverine voted for governor at the last general election. He also found that 101 qualified electors residing in the village of Wolverine signed the petition of protest. We find no occasion to interfere with the action of the circuit judge.

The application of the relators is denied, with costs.

McAlvay, Brooke, Blair, and Stone, JJ,, concurred.


author: Hooker, J.

text:
    MACOMBER v. COTTRELL.
    1. Equity — Pleading and Practice — Decree on Demurrer.
    Although. Chancery Rule 9, subd. e, requires that after a demurrer to the bill of complaint has been sustained, the complainant be given an opportunity to amend, the bill may be dismissed unless it can be effectively amended.
    2. Same — Appeal and Error — Statutes.
    Act No. 299, Pub. Acts 1909, amending 1 Comp. Laws, § 549, is declaratory of the pre-existing practice in circuit courts as to the right to amend, and is not intended to confer an absolute right to amend in all cases, where the demurrer is sustained on appeal.
    3. Same — Amendment—Decree.
    An opportunity to amend complainant’s bill of complaint in the case of Maeomber v. Cottrell, ante, 91, is permitted on a showing of additional facts tending to prove fraud and collusion, and the decree is amended by substituting for the order of dismissal an order remanding the cause with leave to file an amended bill of complaint.
    Bill by Allen E. Maeomber against George Cottrell and others to set aside a compromise agreement and an assignment of a claim and for an accounting: On motion of complainant to amend the decree in the cause reported at page 91, ante.

    Motion granted December 7, 1910.
    (Docket No. 64.)

      William 8. Jenney, for the motion.

      Stevenson, Carpenter & Butzel and James Q-. Tucker, contra.

   Hooker, J.

The cause was heard on appeal from an order overruling demurrer to the bill. The order was reversed and the bill dismissed. The cause is reported ante, 91.

Counsel now ask us to amend the decree; fix a time within which complainant may amend his bill, and remand the cause for further proceedings. This application is upon two grounds. First, the statute, Act 299, Pub. Acts 1909. Second, the proposed statement of further facts set forth in the application now before us.

1. Statute. The practice in chancery requires an opportunity to amend bill or answer after demurrer sustained. Chancery Rule 9, subd. e, former Rule 23. In Creasey v. St. George’s Society, 34 Mich. 51, a decree for complainant without permitting defendant to answer, held premature; “defendant should have had leave to answer.” It seems then that leave is necessary.

In Lamb v. Jeffrey, 41 Mich. 719 (3 N. W. 204), it was held that the bill should not be dismissed on demurrer unless the defects are not amendable, while in Smith v. Blake, 96 Mich. 542 (55 N. W. 978), the same exception was made.

In Bigelow v. Sanford, 98 Mich. 662 (57 N. W. 1037), we said that on sustaining a demurrer which goes to the merits of the whole bill, the bill may be dismissed, etc.

In Aldine Manfg. Co. v. Phillips, 118 Mich. 171 (76 N. W. 371), we held that the opportunity should have been given below had it been asked, which we would not presume. See, also, Bank of Michigan v. Niles, Walk. Ch. (Mich.) 396; Church v. Holcomb, 45 Mich. 29 (7 N. W. 167).

The rule announced in Bigelow v. Sanford seems to show that the circuit court has power to dismiss a bill where a general demurrer is sustained, and that it is proper where the bill cannot be effectively amended. That it is a proper rule seems plain for it would be unfortunate if it should be necessary to go to a hearing of the merits on an amended bill or upon demurrers to the same to ascertain that the amended bill or answer could not be amended. Such a rule would, in the latter case, put it in the power of a complainant to protract the litigation for as long a time as he should be able to file new pleadings. Bigelow v. Sanford is in line with the practice generally. 1 Enc. Pl. & Prac. p. 481; Fed. Eq. Rule 35; Riddle v. Whitehill, 135 U. S. 627; 1 Enc. Pl. & Prac. p. 488; Hardin v. Boyd, 113 U. S. 761; Shackleford v. Bankhead, 72 Ala. 476.

It is contended that the statute, 1 Comp. Laws, § 549, as amended by Act No. 299, Pub. Acts 1909, requires an opportunity to amend in all cases of hearing on demurrer on appeal to this court. This statute was passed in 1883, prior to which no appeal could be taken from an order overruling a demurrer. We are of the opinion that it should be construed to be declaratory of the pre-existing practice in circuit courts and its application to cases in this court upon appeal, the question being heard de novo, and that it was not the intention to make the giving an -opportunity to amend mandatory in all cases. The rule has never been so construed although the language seems to be equally broad. We see no reason for giving the statute a different construction from that given the rule. We must, therefore, overrule the first ground relied on.

2. Amendment. The dismissal of the bill was based on an affirmative showing of a compromise therein contained, and while we recognize the fact that .settlements or compromises of pending litigation may be set aside for fraud, we were of the opinion that the bill did not contain allegations warranting such relief, but affirmatively showed the contrary.

The new application is based on new and other allegations of fraud and collusion. We do not wish to pass upon their sufficiency at this time. We recognize, however, and approve the practice which gives complainants an opportunity to amend in all cases where the defects in the bill are not such as to be necessarily fatal, beyond the power of amendment, and think it should be followed in this as well as the lower court, and that ordinarily doubts of the ability to amend and the propriety of an amendment should be resolved in favor of giving an opportunity. In view of the facts now alleged, we think it advisable to amend the decree, substituting for the order of dismissal an order that the cause be remanded with leave to the complainant to file an amended bill within 30 days after notice of the filing of the record in the circuit court.

Costs will be allowed on this motion.

Moore, MoAlvay, and Brooke, JJ., concurred. Blair, J., concurred in the result.


author: Blair, J. Hooker, J.

text:
    PEOPLE v. STEWART.
    1. Criminal Law — Evidence—Opinion—Identification—Trial.
    Prejudicial error does not result from permitting a witness to give his opinion that a person whom he saw on the night the alleged crime was committed was respondent, and after-wards striking it out on discovering, from further examination, that he had no sufficient basis for the opinion.

      2. Same — Arson—Identity of Respondent.
    It was not error to submit the case to the jury under evidence that respondent, charged with arson, alighted from a car just before the fire, near the place of it, and that the conductor of the car knew her, and that she got on another car about, two hours later, and subsequently denied, to the sheriff, having alighted from the car at the point described.
    S. Same — Identity—Evidence.
    Identity is not necessarily to be proved by direct evidence, but may be established by circumstances pointing to one person.
    4. Same.
    That conflicting testimony as to the time of the fire was introduced, a part of which, given by respondent’s witnesses, tended to show that she could not have set the fire in the time which she had, did not require the direction of a verdict.
    5. Trial — Argument—Criminal Law — Arson.
    While it was reprehensible for the prosecuting attorney to state, in his argument, that it is common knowledge that people burn buildings for insurance, no prejudice can be held to have resulted, in view of the fact that the court instructed the jury to ignore the statement. Hooker, and Moore, JJ., dissenting from the conclusion that the argument was improper.
    6. Arson — Variance—Information.
    Although the information charged respondent with setting fire to three buildings, she might properly be convicted of the offense if the proofs showed that she set fire to one of them.

      7. Same — Identity—Evidence.

      Held that the testimony of the conductor of a car, who identified respondent, was for the jury.
    8. New Trial — Criminal Law — Verdict — Affidavits of Jurors.
    On motion for a new trial, in a prosecution for arson, affidavits of jurors showing that they considered the failure of respondent to take the stand as a witness, may not be received to impeach the verdict.
    9. Same — 'Weight of Evidence.

      Held that the weight of evidence did not require the granting of a new trial.
    Exceptions before judgment from Lenawee; O’Mealey, J.
    Submitted November 12, 1909.
    (Docket No. 165.)
    Decided September 28, 1910.
    Laura A. Stewart was convicted of arson.
    Affirmed.

      John A. Riley and Smith, Baldwin & Alexander, for appellant.

      Burton L. Hart, Prosecuting Attorney, and Earl O. Michener, Assistant Prosecuting Attorney, for the people.
   Blair, J.

The respondent was convicted upon an information charging that on the 23d day of March, 1908, she—

“Feloniously, unlawfully, and wilfully did set fire to and burn certain buildings, to wit, one frame dwelling house on section twenty-three (23), one frame barn on section twenty-three (23), one frame building on section twenty-three (23), all in said township of Palmyra, said buildings then and at the time of the committing of the felony aforesaid, being insured against loss or damage by fire by the Farmers’ Mutual Fire Insurance Company of Lenawee county, with intent then and thereby to injure the said Farmers’ Mutual Fire Insurance Company of Lenawee county, the insurer of said buildings as aforesaid,” etc.

On the night of March 23, 1908, an unoccupied dwelling house and two barnes belonging to respondent were destroyed by fire. The buildings were located a few rods south of the Lake Shore Railway track and about half a mile west of Grosvenor, a station at the junction of the main line and the Fayette branch. From Grosvenor a highway known as the Al. Harrison road runs south, intersecting the Toledo & Western Electric Railway at Parker’s schoolhouse, about half a mile from Grosvenor. About 60 rods east of the Parker schoolhouse, on the Toledo & Western line, is a stopping place known as the “Parker Stop.” The village of Blissfield is about a mile and a half east of the Parker Stop. West of the Parker schoolhouse, about one-half mile, the electric line crosses the Fayette branch, and the crossing is known as “Harrison’s Crossing.” Harrison’s Crossing is distant a little more than a half mile from respondent’s buildings.

“You could get to Harrison’s by climbing one fence if you passed in a straight line, passed down Mrs. Stewart’s lane, and climbed over the wire fence into her field. It is then clear field all the way except the Lake shore track. By going a little bit to the west, you could go through there by climbing one fence. These fences were the ordinary wire fences, 58-inch fence. It would be close to a mile and a half to go around the road from Harrison’s stop to the Stewart buildings. * * * There is a lane running south from the Stewart buildings to the woods and Mr. Gambee’s lane runs west up to her place. I do not know as these lanes meet. Mrs. Stewart’s lane leads south to her pasture or wood lot. Then you go across this pasture or wood lot of hers, and you strike the Gambee lane going east to the Al. Harrison road.”

The electric line runs from Toledo, its eastern terminus, to Adrian, its western terminus. Respondent left Adrian for Toledo at about 3 o’clock in the afternoon of March 23d, intending to stop over at Blissfield in order to collect some money due her from Jackson Rogers. She left the house of Mr. Rogers about 6:30 p. m., saying she was going to visit Elias Adriance. The station agent of the electric line testified that he “noticed her around there about the time the 6:41 limited car went west, but did not see her after the car went through.” The conductor of the west-bound car due at Blissñeld at 6:41 p. m. testified that the car was seven or eight minntes late at Blissñeld; that the respondent came to the vestibule of the' car, and asked him if the car stopped at Harrison’s Grossing, and he told her it depended on whether the man was there to throw the derailer; sometimes he was there and threw it for them and sometimes he was not; that she said she wanted to go there and would take the chances; that she got off the car at Harrison’s Crossing at about 6:56 or 6:57 p. m. Respondent boarded the east-bound car at Parker’s Stop between 8:10 and 8:13p. m., and continued her journey to Toledo.

There is a sharp conflict in the testimony as to when the fire broke out. The time of the discovery of the fire, as stated by the witnesses for the people, ranged from 7:15 to 7:30 p. m., standard time. The witnesses for the respondent placed the time at, or a few minutes before, 7 p. m., standard time. Several of the witnesses going to the fire met a woman going south on the Al. Harrison road. The third day after the fire a woman’s tracks were found near respondent’s barn and in her lane and in the Gambee lane leading into a clover field 60 or 80 rods from the Al. Harrison road. Respondent told the sheriff that, after supper at Jackson Rogers’, she went over to Elias Adriance’s house and found no one at home, and that she then went out to the car lino and walked west and met the car at Parker’s Stop. According to one of the witnesses, Elias Adriance lived in Blissñeld about a block north of the electric line, and about a mile and a half from the Parker Stop. Respondent was convicted, and brings the record to this court for review upon exceptions before sentence.

We shall discuss such of the assignments of error argued by counsel for respondent as in our opinion merit consideration. The principal assignments relate—

(1) To the admission of certain testimony for the purpose of identifying respondent with the woman met by certain of the witnesses on the Al. Plarrison road.
(2) The refusal of the court to direct a verdict of acquittal.
(3) Prejudicial argument by the prosecuting attorney to the jury.
(4) The instruction of the court that, if respondent set fire to and burned either of the buildings mentioned and set forth in the information, she should be found guilty.
(5) The refusal of the court to give respondent’s 20th request to charge.
(6) The refusal df the court to grant respondent’s motion for a new trial.

William McMillen, a witness for the people, testified:

“It was raining that night, disagreeably rainy night. I met a lady in front of Al. Harrison’s house about half a mile north of the Toledo & Western Railway. This lady was Mrs. Stewart, and I knew her by her walk.”

On cross-examination the witness testified that, on the examination in justice’s court, he said he could not describe the woman except that she wore dark clothing, and that he did not know the woman for certain.

“What has taken place since you were sworn before that justice of the peace that has made you certain, if you were not certain then ?
“A. Have I said I was certain that was Mrs. Stewart ?
“Q. Didn’t the prosecutor just now ask you who the woman was, and didn’t you say it was Mrs. Stewart, the defendant ?
‘A. That is my best judgment.
“Q. Didn’t you testify upon that examination that you didn’t know whether she was white or black ?
“A. Yes, sir.
“Q. And that was the truth, wasn’t it ?
“A. Yes, sir.'”

On redirect examination th8 witness was asked:

“Q. Mr. McMillen, following up that testimony, wasn’t you asked, e Did you have some judgment that night as to who it was ?’ and didn’t you answer, ‘ I did ? ’
“A. Yes, sir.
“Mr. Riley: I move to strike out that question and answer. He is asking the witness as to his judgment.
“Mr. Hart: I am asking if the testimony wasn’t that on the examination. * * *
“Q. State now what your best judgment was as to the person you met that night, who she was ?
“A. Mrs. Stewart.”

To the admission of this answer, respondent took exception and assigns error. After further examination of the witness by the circuit judge, he said:

I think this testimony may all be stricken out of this recbrd as to the identity. The present view of the court is that this is too visionary. There is nothing of substance upon which the conclusion could rest as to the identity of that person.”

Ora Butts also testified in behalf of the people as to the identity of this same woman; that he met a woman about 15 rods from Al. Harrison’s, going south.

She wore dark clothes and a hat with very little trimming on it, dark colored, and I noticed the general walk of the person and her general appearance. We passed this lady, I was afoot with Mr. Miller, and went to the fiz’e. She was on the east side of the road. I spoke to her. I said, ‘ Q-ood evening,’ and she made no reply.”

In the course of the examination of this witness the following occurred:

The Court: Gentlemen, that we may have an understanding about striking out the testimony of the other witness on this question that is reserved here, it is merely the opinion of the witness that is stricken out, and not the facts and circumstances detailed by him and from which he attempted to and did draw an opinion; but it is the opinion itself, and that alone that is stricken out of the testimony.
“ Mr. Hart: As I understand, the question was reserved until morning with this witness ?
“The Court: Yes, sir.
“Mr. Miehener: Then the only question is, they may detail everything they saw, but they can’t give an opinion who that person was ?
“ The Court: His personal opinion and conclusion is what was stricken out. All of this testimony besides that remains in the case.”

After this announcement by the court, the following occurred:

“Q. Now, on the night in question, when you met this lady on the highway, did you notice anything about the lady that you would be able to state who it was ?
“A. What do you mean by that ?
“Q. Anything about the dress or appearance or walk or anything?
“A. I went by the walk, and I noticed her hat as much as anything.
“Q. And you had known Mrs. Stewart a long time before that ?
“A. Yes, sir.
“Q. And knew her general walk?
“A. I did.
“Q. I will ask the question, you may state, Mr. Butts, who the lady was you met, if you know. * * *

Later the witness was asked:

“Q. Did you notice the hat the lady had on that night ?
“A. I did.
“Q. You may state now whether you have seen the • hat since ?
“A. I saw it once since — the day of the hearing of the examination in Mr. Humphrey’s office when Mrs. Stewart had on that hat.”

Witness was then shown a hat marked “Exhibit C,” and testified that he had never seen the hat before, and that the lady he met in the road near Harrison’s on the night of the 23d of March was not wearing that hat. Several witnesses, including a milliner who claimed to have sold a new hat to respondent at Toledo on March 24th, testified that the hat (Exhibit C) was the old hat that she was wearing on the 23d of March, and that the hat was left in Toledo for several days, and the new hat worn in its place.

Counsel for respondent contend that it was error for the court to permit the witness William McMillen to state that the woman he met in the highway on the night of the fire was the respondent, and also to permit the witness to give his best judgment upon the question after the court had stricken out his answer that it was the respondent, and also complained of the same rulings as to the testimony of Ora Butts. In the course of the charge to the jury the court used the following language:

“ You are instructed that the testimony of the witnesses William McMillen and Ora Butts as to their opinion that they identified the defendant on the night in question, has been stricken out, and you will not consider the same in your deliberations.”

We do not think it can be said, under the repeated rulings of the court and his final instructions to the jury at the close of the case, that the jury could have been misled into supposing that they were at liberty to consider the opinion of the witnesses McMillen and Butts as identifying the respondent with the person met.

We think the court would not have been justified in directing a verdict of acquittal; on the contrary, it seems to us that, in the absence of any affirmative testimony on the part of the defense to explain the whereabouts of respondent during the period between her leaving Mr. Rogers’ house at 6:30 p. m. and her boarding the car at Parker’s Stop at 8:10 p. m., the record fully sustains the verdict. Her connection with the crime is not established by direct testimony as to her participation, but by the converging force of numerous circumstances which point quite clearly in one direction. The case largely hinges upon the testimony of the conductor of the 6:41 west-bound car. While it is true that this witness failed at first to pick out the respondent when asked to do so, and while his testimony as to how he identified her is somewhat incoherent, he still affirmed positively that she was on his car that night, that he had seen her before, and knew her name.

I am positive that she was the lady that got on my car at Blissfield that night, and who got off at Harrison’s Crossing.”

The testimony of the conductor is also supported by the testimony of the station agent, who testified that he saw her around the station when the 6:41 car went through, but did not see her after it had gone. It is true that respondent, in her statement to the sheriff, denied having gone to Harrison’s Crossing, but such statement was only to be considered with the remainder of her statement, and not as substantive testimony in her behalf in the case.

The jury were certainly at liberty to disbelieve the testimony of the conductor and station agent, if they saw fit to, but they also had the right to accept it, if convinced of its truth as establishing the fact of respondent’s alighting from the car at Harrison’s Crossing, and to consider this fact in connection with her denial that she had gone there. This fact being established, as the jury must have found it was, it is difficult to resist the conclusion that the woman who was met on the Al. Harrison road within half a mile of the fire and going south towards the electric line was the same woman who boarded the 8:15 car at Parker’s Stop, and who had left the west-bound car at Harrison’s Crossing. Identity is not necessarily proved by direct evidence, but may be proved by circumstances all pointing towards one person. There are other circumstances disclosed by the testimony which also support our conclusion, but to refer to which would unnecessarily extend this opinion. The principal fact which is inconsistent with the people’s case is disclosed by the testimony of respondent’s witnesses that the fire took place at, or just before, 7 o’clock, standard time, in which event the respondent could not possibly have traveled from Harrison’s Crossing over half a mile and set the fires in the three or four minutes allowed her for that purpose. Some of respondent’s witnesses testified with great positiveness that they discovered the fire at 7 o’clock, and noted the time by their watches. There were other witnesses, however, upon the part of the people, who testified that the fire broke out at various times from 7:15 to 7:30, standard time. This conflicting testimony manifestly raised a question of fact, which was for the jury to determine.

In the course of his argument to the jury, the prosecuting attorney said, “ It is common knowledge that people burn buildings for insurance,” to which remark respondent’s counsel reserved an exception, and the court said:

“I think, gentlemen, you should take nothing from that statement.”

One of the questions in the case was the question of motive for the destruction of the buildings, and respondent produced witnesses who testified that the insured buildings were worth considerably more than the amount of the insurance, and that it was a loss to respondent, instead of a gain, to have the buildings destroyed. This remark was certainly reprehensible, but, in view of the court’s correction, and presuming that the jury was possessed of average common sense, we do not think that the remark could have seriously prejudiced the defendant’s case.

We think the charge of the court was correct. The offense was committed by burning any one of the buildings, and it was not necessary to prove the burning of all three, although she was charged in the information with burning that number. We are also of the opinion that respondent’s ownership of the buildings was suffi ciently proved by the application and policy of insurance, the proofs of loss, and the testimony of numerous witnesses.

By the 20th request to charge, respondent requested that the jury be instructed:

“That the testimony of conductor Jacobs as to the identification of the defendant is not sufficient for your consideration. The witness did not show sufficient knowledge of her so that his opinion rises to the dignity of evidence, and therefore you will not consider the same.”

We think that it is clear that the court would not have been warranted in giving this instruction, since the probative force of the testimony of the witness was for the jury.

We find no error in the refusal of the court to grant respondent’s motion for a new trial. This motion is based upon the affidavits of two jurors to the effect that the jury considered the failure of respondent to take the stand as a witness in her own behalf, and that they consented to the verdict of conviction largely for this reason. As we have heretofore held, the affidavits of jurors are not receivable to impeach their verdict. In re Merriman’s Appeal, 108 Mich. 454 (66 N. W. 372). Neither do we think that the court erred in his ruling that the verdict was not against the weight of the evidence. As we have heretofore stated in our opinion, there was an abundance of evidence, if satisfactory to the jury, to justify their verdict. The charge to the jury was mainly in the language of respondent’s requests to charge, and we see no reason to doubt that the respondent had a fair trial. The exceptions are overruled and the record remanded for further proceedings in pursuance of law.

Brooke and Ostrander, JJ., concurred with Blair, J.

Hooker, J.

(concurring). I do not concur in the statement that it was reprehensible for the prosecutor to say in his argument that “ it is common knowledge that people burn buildings for insurance.” It is as much a fact of which courts and juries may take judicial notice as is the fact commonly known that men commit burglary, robbery, and homicide for gain.

There should be no impropriety in saying to a jury any of these things in a case where the proof warrants the submission of such a question to the jury, for, if it is possible to suppose a juror ignorant of such fact, it would be full time to advise him of it.

I agree in affirming the verdict in the case.

Moore, J., concurred with Hooker, J.'

       Continued from Vol. 162.