author: Grant, J.

text:
    MANN v. PERE MARQUETTE RAILROAD CO.
    1. Railroads — Side Tracks —Contracts—Public Policy — Exemption from Liability for Negligence.
    A contract by a railroad company with a shipper to build a side track, which exempts it from liability for loss by fire resulting from its own negligence, is not void on the ground of public policy, since in putting in the side track it was not acting as a common carrier, and might make such terms as the parties could agree upon.

      2. Same — Accidental Fires.
    Fire caused by a properly equipped and managed railroad engine creates no liability.
    3. Same — Instructions.
    Where a railroad company, by the terms of a contract with a shipper for the construction of a side track, was exempted from liability for loss by fire due to its negligence, it was error for the court, after reading the contract to the jury, to instruct them that it was for them to determine whether the loss sued for came within the contract, without also instructing them that the contract relieved the railroad company from its negligent acts.
    4. Contracts — Construction—Side Tracks — “Vicinity.”
    A contract exempting a railroad company from liability for loss by fire of any property “situated or hereafter placed in the vicinity ” of a side track to be built under the terms of the contract, was intended to cover any property situated in the mill and lumber yard which the track was to accommodate, and the question whether lumber situated in such yard was in the vicinity of the track when burned was not for a jury to decide.
    5. Same — Fires—Combustible Material.
    •A provision in a contract that plaintiffs should keep the grounds adjacent to a side track “ reasonably free and clear of inflammable and combustible material,” so as to prevent fires starting from sparks of engines, was not complied with, where for a year there had been allowed to remain on the premises a pile of sawdust, shavings, and small pieces of boards, nearly a foot deep, extending 400 feet along the track and 40 feet distant therefrom.
    ¡6. Same — Exemption oe Railroad erom Liability.
    A contract by a railroad company to build a side track for a shipper, which exempted the company from liability for loss to property in the vicinity of the side track by fire due to its negligence, exempted it from liability for fire caused by sparks escaping from an engine while entering upon a track leading to the side track, solely for the purpose of switching cars for the shipper.
    7. Railroads — Switching—Fires—Contributory Negligence.
    It was negligence for plaintiffs’ foreman, knowing that defendant’s engine threw sparks that would set fires, to secure the engine, in a time of high wind, to do switching in a yard covered with dry shavings and other combustible materials.

      Error to Muskegon; Russell, J.
    Submitted October 7,. 1903.
    (Docket No. 4.)
    Decided December 22, 1903.
    Case by Robert K. Mann and William G. Watson, co-partners as Mann, Watson & Go., against tbe Pere Marquette Railroad Company, for damages caused by fire-communicated from defendant’s engine. From a judgment for plaintiffs, defendant brings error.
    Reversed.
    Plaintiffs are lumbermen, and own a large mill plant near Muskegon. Desiring to have a side track on each side of their mill for the purpose of shipping in and shipping out products, they applied to the defendant to put in such tracks. Thereupon the following contract was executed by them:
    “Agreement, made this ninth day of November, A. D. 1901, between R. K. Mann and W. G. Watson, both of Muskegon, Michigan, and doing business under the name of Mann, Watson & Company, hereinafter for convenience called the first party, and the Pere Marquette Railroad Company, hereinafter called the second party:
    “The first party hereby requests the second party to construct two -side tracks, to be located at Muskegon, Muskegon county, Michigan, No. 1 connecting with the South Horn track about 200 feet east of location stake 45, and extending westerly about 580 feet, No. 2 connecting with the Brewery siding about 300 feet west of location stake 30, extending easterly 300 feet, for the convenience of the first party in receiving and shipping freight. In consideration of the representations, promises, and undertakings of the first party, and upon the conditions and with the reservations hereinafter stated, the second party hereby agrees to comply with such request as soon as practicable after the execution of this agreement.
    “Wherefore, this writing witnesseth:
    “1. Said side tracks shall be constructed substantially according to the plan hereto attached, six hundred and eighty feet, or thereabouts, thereof being upon land owned or controlled by the first party, and two hundred feet, or thereabouts, upon land owned or controlled by the second party. The first party hereby represents that they have lawful authority to permit the second party to construct and use said side track, according to said plan and the terms of this agreement, beyond the line indicated on said plan as the limit to the second party’s premises; and the first party hereby grants to the second party the right to construct and use said side tracks in accordance with the terms hereof, and hereby agrees to indemnify and save the second party harmless of and from all damages, costs, ■and expenses that may be suffered or incurred by it on .account of any claim of trespass or other claim by any third party or parties arising from the construction or use •of said side track.
    “2. The material for the construction-.of said side track -shall be furnished as follows: By the second party. The said side tracks, including ties, rails, switches, and crossing material, if any, shall be and remain the property of the second party, and under its exclusive control, except as herein otherwise stated. And the second party shall have the right to use the whole or any party of said tracks for other business than that of the first party, when it -will not interfere with the first party’s business, without .any allowance therefor to the first party, and without .restriction except as herein stated.
    “3. The principal inducement for the construction of said side tracks by the second party is to secure as much •as possible of the freight to be shipped to or from the first party in connection with the business carried on by the first party along or near said proposed side tracks, and, in ■consideration of the agreements of the second party herein contained, the first party hereby agrees that, from the ■date hereof, all freight shipped by the first party in connection with said business (and all freight shipped to them, so far as they control the shipment thereof) shall be shipped over the railroad of the second party, whenever it, either alone or in connection with other lines, shall be willing to •carry the same at rates equally favorable with those actually offered by another carrier. And the first party shall, ■at all times during the continuance of this agreement, give the second party opportunity to meet the rates of a competitor before shipping any such freight by another carrier. The first party further agrees that all freight, the destination or>place of shipment of which shall be off the lines operated by the second party, shall, so far as the first party may be able to control the same, be so routed as to give the second party the benefit of the longest possible Raul over lines owned or operated by the second party. It is agreed that, if at any time the first party shall fail to-observe the true intent and meaning of this paragraph, the second party shall have the right, after fifteen days’ notice to the first party, to terminate this agreement, and to enter upon the lands referred to, and remove said side track and all its connections.
    “4. The first party recognizes that the use of said side track involves risk of loss by fire originating from the second party’s engines. As a further inducement and consideration for the construction of said side track, the first party hereby assumes all such risk of fire, and releases the second party from all liability, statutory or otherwise, for any loss or injury by fire sustained in respect to buildings owned by the first party, or personal property belonging to or in charge of the first party, now situated or hereafter placed in the vicinity of said sidetrack, whether such loss or injury be due to negligence of the second party or its employes, or to other causes; and the first party further agrees to keep the grounds adjacent to said side track, on each side, reasonably free and clear of inflammable and combustible material, so as to prevent the starting of fire, by means thereof, to the property of the second party and others, as well as to the property of the first party; and the first party hereby assumes all duty concerning the condition of said grounds, and releases the second party from all liability, statutory or otherwise, on account of fires that may be due, in whole or in part, to the condition of said grounds. The first party further agrees that, before or at the time of procuring fire insurance on any of their buildings or personal property now or hereafter situated in the vicinity of said side track, they will distinctly give notice to each and every insurance company about to issue a policy to the first party on such buildings or personal property, of the substance and purport of this agreement, so that each interested insurance company shall know that it will acquire no right, by subrogation or otherwise, to recover of the second party for any loss by fire; and the first party agrees to indemnify the second party from all damage, costs, and expenses on account of claims that may be made against the second party by any insurance company on account of the burning of any buildings or personal property located in the vicinity of said side track.
    “5. The first party agrees that they will not erect, or v permit to be erected, any structure, temporary or otherwise, over or above said track, at a lower level than twenty-two feet above the track rails, nor nearer to the sides of the rails than six feet, without first obtaining the written consent of the second party; and, as a further inducement and consideration for the construction of said side tracks, the first party assumes all risk of injury to any building or structure, and the contents thereof, now or hereafter situated in the vicinity of said side tracks, caused by an engine or car coming in contact with said building or structure, whether due to negligence of the second party’s employés or to other causes; and the second party is hereby released from all liability therefor.
    “6. Said side tracks shall be maintained by the second party, and the cost of such maintenance shall be borne by the second party.
    “7. In case the first party shall fail in the performance of any of the agreements on their part herein contained, the second party shall have the right, at once and without notice, to terminate this agreement; and it may at its option, after sixty days’ notice in writing'to the first party, elect to terminate this agreement. In either case it . shall have the right to enter upon the property of the first party and remove said track and connections; but the second party, its successors and assigns, shall have the right to maintain and use said track, pursuant to this agreement, so long as the business reached thereby shall be conducted in the vicinity thereof; and the first party shall not grant or attempt to grant to any party any right to use the same at any time.
    “ 8. The successors and assigns of the second party shall succeed to all the rights and privileges accorded by this agreement to the second party, and shall be entitled to enforce the agreements of the first party herein contained; and any assignment by the first party of his rights under this agreement shall be subject to the written consent of the general manager of the second party, and be void unless given with such consent. ”
    The location of the mill, tracks, etc., will better appear from the sketch found on the following page.
    The side track west of the mill, constructed under the above contract, commenced at the South Horn track, at point A, and terminated at point B, and is called B21. The east side track commenced at “Sta. 33,” and ter-

      minated at point C, and is called B18. The place marked with a star is where the fire originated. The places

    marked X indicate the location of the lumber piles which were burned. The west siding can only be used by running cars northerly along the South Horn track to point A, and there switching and taking them onto siding B21. The track east of the mill can only be used in connection with the Brewery track, which connects with the South Horn track. Therefore, in order to use either of these side tracks, the South Horn track or the Brewery track must be used as a part of the same operation.
    The movements of the engine at the time were as follows: It went frem the South Horn track onto B21, hitched onto cars standing on that track, pulled them out onto the South Horn track, and then shoved those cars south on the South Horn track to a distance south of the switch connecting the South Horn track with the Brewery track. Then the engine moved back north to said switch, and passed in onto the Brewery track, and hitched onto seven or eight cars standing on said track east of the mill, which track was entirely filled with cars. The engine then pulled those cars south until it passed out onto the South Horn track. As it passed out onto the South Horn track, a fire was discovered 30 or 40 feet west of the South Horn track. From the South Horn track to the lumber piles the ground was covered with sawdust and shavings. They were very dry, and a very strong wind was blowing from a southerly direction directly towards the lumber piles. The fire was discovered in a few minutes, and some of the plaintiffs’ employés were sent with pails of water in the attempt to put it out. It was, however, impossible. The wind carried the lighted shavings, and the fire soon covered the space — about 400 feet — between where it originated and the lumber piles, set the piles on fire, and they were entirely consumed.
    In reply to special questions, the jury found that the engine was not in good condition when it left the defendant’s shops, April 2d, 20 days before the fire; that it was not properly inspected at weekly intervals; that at each inspection after April 2d, and before the fire, it was not found to be in good condition. The jury also found that the engine was properly managed while engaged in the work upon the plaintiffs’ premises.

      The further statement of facts, so far as essential, will be made in connection with the points determined.

      Frederick W. Stevens (Benton Hanchett, of counsel), for appellant.

      William Carpenter (Robert E. Bunker, of counsel), for appellees.
   Grant, J.

(after stating the facts). Counsel for plaintiffs contend in their supplemental brief that the contract is void because it exempts a common carrier from loss resulting from its own negligence, and that such contracts are void as against public policy. This case does not fall within those where contracts to exempt from liability are held void on the ground of public policy. It is a fundamental rule of law that what one may refuse to do entirely he may agree to do upon such terms as he pleases. In contracting to put in these side tracks, the defendant was not acting in the capacity of a common carrier. It was under no legal obligation to put them in. It might have refused. It is a fact known to all, and appears upon this record as well, that engines, when properly equipped and properly managed, will oftentimes set fires, and the court so said to the jury. In Burud v. Railway Co., 62 Minn. 243 (64 N. W. 562), the court say that a court, ‘as well as a jury, is justified in taking notice of the fact that it is impossible, by means of any present known appliances, to so construct and equip a locomotive that it will not sometimes scatter sparks and cinders. There was no occasion to contract against properly equipped and properly managed engines, for fire caused by such would not create any liability. The only purpose of such a contract was to avoid the consequences of its own negligence, and to avoid lawsuits growing out of alleged negligent acts. It had a perfect right, both in reason and authority, to contract against such liability. This is well settled both by our own decisions and those of other jurisdictions. Coup v. Railway Co., 56 Mich. 111 (22 N. W. 215, 56 Am. Rep. 374); Michigan Southern, etc., R. Co. v. McDonough, 21 Mich. 165, 193 (4 Am. Rep. 466). In the latter case, speaking through Justice Christiancy, the court said:

“Having the right to refuse altogether, they must have the right to refuse except upon just such terms and conditions as they saw fit to require.”

See, also, Lake Shore, etc., R. Co. v. Perkins, 25 Mich. 329 (12 Am. Rep. 275.

Many authorities upon this point are cited in the defendant’s briefs, among which are Stephens v. Railway Co., 109 Cal. 86 (41 Pac. 783, 29 L. R. A. 751, 50 Am. St. Rep. 17); Hartford Fire-Ins. Co. v. Railway Co., 175 U. S. 91 (20 Sup. Ct. 33); Baltimore, etc., R. Co. v. Voigt, 176 U. S. 498 (20 Sup. Ct. 385); Quimby v. Railway Co., 150 Mass. 365 (23 N. E. 205, 5 L. R. A. 846). The late case of Russell v. Railway Co., 157 Ind. 305, 316 (61 N. E. 678, 55 L. R. A. 253, 87 Am. St. Rep. 214), is directly in point.

The court read to the jury that provision of the contract exempting it from loss by fire, and then said to them that it was for them to determine whether the loss came within the contract. The vice in this instruction lay in the fact that it did not instruct the jury that the contract relieved the defendant from its negligent acts. It was clearly the duty of the court to so instruct the jury. The court’s instruction upon this point was as follows:

“ It will be for you to say as to whether, taking everything into consideration, — the entire surroundings, the entire evidence in the case, — it was the contemplation of the parties, according to this contract, that the plaintiffs in this case were to assume and bear the burden of any loss that might result because ‘of the increased danger to the defendant by putting in and operating these two new side tracks; and if this loss, as I say, was caused by reason of the proper operation and necessary management of cars on those two tracks, or either of them, why, the plaintiffs haven’t any right to complain in this case; and in that case, if you so find, and find that is established by the evidence in this case, by a fair preponderance of it, the plaintiffs cannot recover.”

The plaintiffs did assume the increased danger, and the exemption from liability agreed upon was not limited to losses caused by the “proper operation and necessary management of its cars.” There was no ambiguity in the contract, and its construction belonged to the court.

The court also erred in leaving to the jury the question of whether the destroyed property was situated in the vicinity of the side tracks. The contract is explicit upon this point. It releases the defendant from all liability for loss by fire of any property “situated or hereafter placed in the vicinity of said side track, whether such loss result from negligence or other causes.” It needs no authority to sustain the proposition that this property was situated in the vicinity of the track. The fire was started at a point about 40 feet from the track. Sawdust, shavings, and dry pieces of boards were situated upon the property at this point, and between that and the lumber piles, 400 feet distant. The lumber piles were situated very near the track, at a point farther north. The plaintiffs assumed the duty to keep their grounds in safe condition, and released defendant from all liability on account of fires that were due in whole or in part to the condition of the grounds. This property was situated on these grounds. The contract clearly recognized that the entire premises of the plaintiffs were adjacent to and in the vicinity of these tracks. Did they intend to leave it to a jury to say that property 30, 40, or 500 feet from these tracks, and situated upon the premises, was not upon land adjacent to and in the vicinity of the tracks ? Such a contention, in my opinion, finds no basis either in reason or authority. Construing these expressions according to their common and approved use, the entire territory covered by this fire was in the vicinity of these tracks. See Timmerman v. Dever, 52 Mich. 34 (17 N. W. 230, 50 Am. Rep. 240). In People v. White-Lead Works, 82 Mich. 471 (46 N. W. 735, 9 L. R. A. 722), the term “vicinity,” used -in the opinion, was clearly intended to include all such persons as were near enough to be affected injuriously by the business sought to be prohibited. See, also, Langley v. Barnstead, 63 N. H. 246; State v. Jungling, 116 Mo. 162 (22 S. W. 688); Coyle v. Railroad Co., 27 Mo. App. 584. The combustible character of the materials which the plaintiffs put upon these premises in close proximity to the track, and the danger in any high wind and dry time to the property if a fire should occur, were known to both parties, and it was in relation to these and other circumstances that they used the term “vicinity.”

By the contract, plaintiffs assumed the duty and agreed to keep the adjacent grounds on each side of the tracks “reasonably free and clear of inflammable and combustible material, so as to prevent the starting of fire, by means thereof, to the property of the second party and others, as well as to the property of the first party.” The plaintiffs, in fact, did nothing to comply with this provision of the contract. Their conduct was the same as if no contract existed, and there was no danger of fire. The most inflammable material was left close alongside the tracks, and when, from whatever source, the fire caught, it was in a few moments beyond control. Plaintiffs knew that this material was very dry, that there was a very high wind, and that from even well-equipped and well-managed engines sparks do escape. This material, to a depth of nearly a foot, had been lying at the place where the fire caught for nearly a year, and between that and the lumber piles they had meanwhile been drawing and dumping the same kind of inflammable material,- — -shavings, sawdust, and small pieces of boards. Did this contract mean that it was to be complied with by distributing this most inflammable material close to the defendant’s tracks, without any covering or other means of protection ? If it did, then this clause of the contract is meaningless, and imposed no duty upon the plaintiffs. So inflammable was the material that, in the high wind then prevailing, plaintiffs’ witnesses described it as “jumping right ahead. Something would fly in the air all on fire. It would take it up and carry it 20 or 30 feet at a time,— faster than we could follow it up. It catched from one place to another.”

Did plaintiffs contract to do nothing more than- to place this material there and leave it ? Ata very small expense it could have been covered with sand or dirt or cinders for a sufficient distance alongside the track to prevent fires. Or, as we know is often done, barrels of water could have been kept in such dangerous places near the track, ready for instant use. Or, knowing the increased danger on account of the wind, and the extreme dryness of the combustible material, a man could have been employed to watch during the short time used in switching. According to the plaintiffs’ own witnesses, they knew that fire escaped from this engine several days before, and had set fires alongside the track; they knew that the wind, as one of the witnesses said, “ was blowing a gale;” and yet they ordered the defendant to enter upon the premises to do the work under the contract. It seems to me too clear for further argument that plaintiffs did not comply with the contract, and that they failed to do the very things which the contract contemplated they should do, and which, if done, would have avoided the loss. It is no reply to the obligation of the plaintiffs under this contract to say that it is customary for mills like that of the plaintiffs to scatter this combustible material about their yards. Let this be granted, and it follows that this is the very condition against which the parties contracted, and imposed upon the plaintiffs the duty to obviate the danger and to assume the risk. If this mill had been the property of the defendant, and the land where the lumber was piled that of plaintiffs, and the fire had caught in this material upon the defendant’s land, and spread to the lumber piles on the adjoining land, the railroad company could not have defended upon the ground that they used an approved engine and managed it properly. It would have been negligence to leave such inflammable material in close proximity to passing trains, which are apt, especially in cases of high winds, to set fires. Yet plaintiffs ask the court to hold that they were complying with this contract by dumping this material where they knew that fires are apt to occur, and they took not even the slightest precautions to prevent it. It is too clear to require argument that a very small expense would have prevented the fire.

It is also urged that exemption from liability is, under the contract, limited to the two side tracks which the defendant agreed to, and did, construct. The side tracks were contracted for with the knowledge that they would be useless unless they were used in connection 'with the South Horn track and the Brewery track. The greatest danger from fire was along the west side of the South Horn track. There plaintiffs deposited their most inflammable material. It was under the instruction of the plaintiffs that the defendant’s engine entered the premises, and it was taken there solely to do their work. It was while it was engaged in this work that the fire occurred. The engine would not have been upon plaintiffs’ premises but for these side tracks. Plaintiffs’ foreman gave the instruction; jumped onto the engine at the southerly end of the mill on the South Horn track; rode down past the switch, and up the Brewery track, and onto the east side track, where he jumped down and entered the mill. Hnder the plaintiffs’ contention, the defendant would be liable if the fire escaped a moment before it entered the side track B21, or if it escaped when within an inch of the switch, but the moment that it passed beyond the switch, or outside the South Horn track, the exemption would apply. This side track and the South Horn track are very near to each other for the whole distance of the side track. Is it reasonable to suppose that the defendant, in putting in this side track, agreed that it would be exempt only for a less and comparatively slight danger, and should be liable for the-greater danger? We think the fair construction of this contract is that the defendant was to be exempt from liability while entering upon the South Horn track or upon the Brewery track in connection with, and for the express purpose of using, these side tracks in the business of, and solely for the use of, the plaintiffs, and under their direction.

As already stated, plaintiffs’ foreman had knowledge of the fact that this engine threw sparks; yet he made no complaint, and instructed defendants’ employés to bring this engine upon plaintiffs’ property for use when there was the greatest liability to fire. Plaintiffs’ foreman, who represented them, testified: After ■ jumping onto the engine,—

“ I spoke to the engineer about being careful about working his engine. I told him we had had a fire the day preceding, and the Saturday before that, right after his engine went by, and I told him — the wind was blowing very hard, and it was very dry — I would like to have him be careful working his engine in going by the corner. He gladly told me he would do so.” 1

It thus conclusively appears that plaintiffs, according to their own testimony, knew that this engine threw sparks; that it was apt to set fire; that they not only made no objection or protest, but, with full knowledge of the facts, not only invited, but directed, the defendant to bring it upon the premises to do their work, and at a time when the danger was greatly increased by the wind blowing, as this witness said, “a gale.” The engine was properly managed, as the jury have found, and was therefore managed as plaintiffs, through their foreman, requested it should be. These facts bring the case within the rule of Marquette, etc., R. Co. v. Spear, 44 Mich. 169 (6 N. W. 202, 38 Am. Rep. 242); Spear v. Railroad Co., 49 Mich. 246 (13 N. W. 610). In that case the same defect was claimed as in this, with the same result following, namely, throwing sparks which caused fires. In that case Mr. Spear called the attention of the proper railway officials to this fact, and they promised to fix it, but “ put off the fixing.” In the opinion the court say:

“ It seems almost unnecessary to do more than to recite this evidence in order to dispose of the case. Instead of showing a cause of action, it effectually disproves the existence of one. This was not the case of a defective locomotive moving through the country, and scattering desolation among those to whom its proprietors owed the duty of a care corresponding to its dangerous nature, but it was a case of private employment, whereby the proprietors of the engine were solicited to send it upon the private business of the employers into a place where the latter well knew, and had for a long time known and understood, it was likely to do mischief.”

Instead of instructing the jury in accordance with that case, the court instructed them as follows:

“If the conditions at the time indicated that to switch the cars on Mann, Watson & Co.’s premises would be attended with unusual risk of setting fire, it was negligence on the part of the railroad company to do the switching at that time.”

It was not the fault of the defendant that its engine was there. It was not the duty of the defendant to refuse the use of its engine when requested. By the terms of the contract, it was bound to furnish it. Presumably, the plaintiffs knew the condition of the ground better than did the defendant’s employés. They knew the danger, and, if they did not desire to have the work done then, it was their duty either to keep the engine away, or protect the premises from the dangers incident to its use, and covered by their contract. If either was negligent for the switching under these conditions, it was the plaintiffs, not the defendant.

Under the above disposition of the case, it is unnecessary to determine whether there was evidence of negligence to submit to the jury.

Judgment reversed, and no new trial ordered.

Moore, Carpenter, and Montgomery, JJ., concurred. Hooker, C. J., took no part in the decision.


source: Caselaw Access Project

author: Grant, J. Grant, J.

license: Public Domain

text:
    FINKBINDER v. ERNST.
    l. Surface Water — Adjoining Proprietors — Rights and Liabilities.
    A landowner has no right to injure an upper proprietor by " damming against surface water, the course of which has gradually changed through natural causes alone.

      2. New Trial — Weight of Evidence — Appeal.
    Where two juries have found in favor of plaintiff on conflicting evidence, the mere fact that the appellate court might-think the verdict against the weight of the evidence is not a sufficient reason for reversing the trial judge’s decision on that point.
    3. Appeal — Evidence—Failure to Except.
    Rulings on the admission of testimony will not be reviewed on error where no exceptions were taken at the trial.
    4. Same — Requests to Charge — Rehearing.
    Where the appellate court declined to consider errors assigned on the refusal of requests to charge, on the ground that no exception was taken to such refusal at the trial, — both court and counsel having overlooked the provisions of Act No. 52, Pub. Acts 1901, doing away with the necessity for such exceptions, — the errors so assigned were considered on application for rehearing.
    5. Same — General Instructions.
    The refusal of requests'to charge is not error where their substance is covered by the general charge.
    Error to Washtenaw; Kinne, J.
    Submitted October 8, 1903.
    (Docket No. 26.)
    Decided December 22, 1903.
    Rehearing denied June 27, 1904.
    Case by Charles Finkbinder against Christian Ernst for the wrongful flooding of plaintiff’s land. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    This unfortunate and expensive controversy between neighbors is before us for the second time. The issue and the facts are sufficiently stated in the opinion then rendered. 126 Mich. 565 (85 N. W. 1127). The record in that case did not contain all the evidence. The present record, of over 400 pages, contains all the testimony, taken stenographically.
    The court instructed the jury as follows:
    “If you find from the evidence that this dam is erected in a passage or channel through which the waters from the lands of the plaintiff naturally flow, without any artificial means; that such flowage of the water from the lands of the plaintiff upon the lands of the defendant is simply due to the face of the country, through the rise and fall of the land, the hills and valleys thereon; and that these waters flow upon the lands of the defendant naturally and without human aid, — then the defendant has no right to erect this dam, and is liable for such damages as the plaintiff may have suffered by reason thereof. On the other hand, if you find from the evidence that the . waters of the plaintiff do not naturally flow upon the lands of the defendant where this dam is erected, that this alleged channel where this dam is erected is not a natural passage for the surface waters which flow down from above from the lands of the plaintiff, then the defendant has a lawful right to erect this dam, and the plaintiff cannot recover.
    “If you find from the evidence that this flowage of water from the lands of the plaintiff is due solely to the action of Mr. Hotrum in running a furrow over his lands, and that but for this action of Mr. Hotrum the waters would not flow west ovej the lands of the defendant, and that this alleged channel upon the lands of the defendant was not a natural passage for the upper land waters, then the defendant would have a right to erect this dam to prevent the flowage upon him of those waters. But if you find from the evidence that, in process of time, these water channels have changed their courses, and by reason of wet or dry seasons, or other natural causes, these channels, wholly through the operation of natural forces, have undergone changes, then these waters must go where the laws of gravitation send them, irrespective of time, and the defendant would have no right to obstruct the flowage of those waters, even though the flowage had extended over only a few years; that is, less than 15. If, however, these changes in the channels of this watercourse are due to mere alluvium or débris or washouts appearing in times of freshets, and caused by unusual or extraordinary conditions, such changes, I think, would not be deemed such natural and permanent changes as would create any vested rights, unless the same had existed for at least 15 years. Rivers and streams sometimes permanently change-their courses, without clearly apparent causes. In such cases I do not think time enters into the determination of the rights of the parties: But wjnere the cause is appar-
    ent, and is due to artificial means, or mere temporary or occasional or extraordinary causes, then a rule of 15 years must prevail, before the rights o'f flowage can be lawfully established.”
    Plaintiff obtained a verdict of $175 for permanent damages.

      A. J. Waters (B. M. Thompson, of counsel), for appellant.

      Lehmann & Stivers, for appellee.
   Grant, J.

(after stating the facts). Under this judgment the defendant may maintain his dam perpetually, thus throwing all the waters accumulating to the east thereof onto the plaintiff’s land, who, upon payment, will be compensated for the permanent injury to his farm.

The main contention on behalf of the defendant is that there was no evidence to support the charge. He insists that there is no evidence tending to show that any water ever flowed upon defendant’s premises, except occasionally, and that such water is carried upon and over defendant’s land by a three-inch tile drain, and that there is no evidence tending to show that the change in the original channel came about by natural causes, but that it was caused solely by cultivation of Mr. Hotrum’s land". Two juries have rendered verdicts for the plaintiff. The learned circuit judge, after the second trial was concluded, entertained a motion for a new trial, in which motion all the points now raised were alleged as error, and carefully considered by the judge. Perhaps the weight of the evidence is with the defendant, but there is conflicting testimony upon all the material points. It is true that Mr. Hotrum, a witness for the plaintiff, testified that he supposed the change in the watercourse came about from ordinary cultivation. It also appears thatthe soil is sandy, and the defendant himself testified, “You could change its course with a boot-heel. ”

We do not deem it essential to review the testimony. It would serve no good purpose. It is sufficient to say that upon all the points there was conflicting evidence. Its weight was for the jury. While we might come to a different conclusion as to the weight of the evidence than did the circuit judge,'yet we do not think this a case in which we should order a new trial for that reason.

Counsel for defendant assign error upon the., refusal of the court to give several requests which they preferred in his behalf. Inasmuch as no exception to such refusal was taken upon the trial, they cannot now be considered. Runnells v. Village of Pentwater, 109 Mich. 514 (67 N. W. 558); Banks v. Cramer, 109 Mich. 168 (66 N. W. 946).

Counsel also allege error upon rulings upon the admission of testimony. No exceptions were taken to the rulings, and they cannot, therefore, be considered.

Judgment affirmed.

Moore, Carpenter, and Montgomery, JJ., concurred. Hooker, C. J., took no part in the decision.

on application for rehearing.

Grant, J.

The briefs of counsel in this case were prepared and filed upon the understanding that Runnells v. Village of Pentwater, 109 Mich. 514 (67 N. W. 558), was still the law; that that decision was neither overruled nor changed by statute. We disposed of the case upon that understanding. A motion for rehearing was made upon the same understanding. Some days after the motion was made, a supplemental brief was filed, calling our .attention to Act No. 52 of the Public Acts of 1901, which provides that it shall not be necessary to except to the re: fusal of a court to give requests to charge, but that error may be assigned without excepting thereto upon the trial. In their supplemental brief counsel for defendant say that they had overlooked this statute. They now insist that the assignments of error based upon the refusal to give certain of their requests be considered on account of this statute.

Speaking for myself, I would deny the rehearing where the case was submitted upon the mutual understanding as to the rule of practice, and mutual ignorance of a statute modifying a decision of the court. My Brethren, however, are of the opinion that they should comply with the statute. We have therefore examined the requests and the charge of the court. Some of these requests are directly in conflict with the charge of the court as found in the opinion. The instruction of the court below we held to be a correct statement of the law. We do not deem it essential to give these requests or to discuss them. It is sufficient to say that the instruction of the court covered the entire ground and correctly stated the law, and there was sufficient conflict of evidence to submit the case to the jury.

Rehearing denied.

Moore, G. J., Carpenter and Montgomery, JJ., concurred. Hooker, J., did not sit.


author: Montgomery, J.

text:
    TAYLOR v. SUPREME LODGE OF COLUMBIAN LEAGUE.
    1. Benefit Societies — Death Claims — Waiver of Defenses.
    A refusal by the officers of a benefit association to pay a death claim solely on the ground that the deceased had never paid an assessment constitutes a waiver of other defenses known to them at the time.
    2. Same — Delivery of Certifioate — Presumption of Payment.
    The delivery of a benefit certificate, reciting that it is issued in consideration of certain payments on delivery thereof, raises a presumption that the payments were made accordingly.
    3. Same — Question for Jury.
    An insurance certificate recited that it was issued in consideration of the payment of a membership fee and $1.44 dues on delivery thereof. The soliciting agent remitted the membership fee and delivered the certificate. The treasurer of the society testified that the dues had not been received. Held, that the question of the payment of the dues was for the jury.
    Error to Calhoun; Winsor, J.
    Submitted October 8, 1903.
    (Docket No. 12.)
    Decided December 22, 1903.

      Assumpsit by Ida E. Taylor against the Supreme Lodge of the Columbian League on a benefit certificate. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Ralph L. Alclrich, for appellant.

      Andrew W. Lockton (Joel O. Hopkins, of counsel), for appellee.
   Montgomery, J.

The plaintiff sued and recovered on an insurance certificate issued to her husband, John I. Taylor, in which plaintiff was named as beneficiary. The two main defenses insisted upon at the trial were: First, that John I. Taylor falsely stated in his application for insurance that he had had no illness within the preceding 10 years, and had not consulted a physician; and, second, that the insured had not paid the dues for the month during which his death occurred.

As to the question arising out of the first contention, it may be stated that a' waiver of this defense was clearly made out. After the death of Mr. Taylor, it appears that the defendant’s officers were in correspondence with Dr. Pitcher, and were informed by him that he had treated Mr. Taylor for an acute ailment some four or five years earlier. With this information before them, they wrote plaintiff’s attorney, in response to a letter demanding a settlement of the claim, declining on the distinct ground that John I. Taylor never paid an assessment. No mention of any other defense is made, the ground of refusal being distinctly stated that the deceased never became a member of the order. This constituted a waiver of other known defenses, and defendant will not, after expense of suit has been incurred, be permitted to shift ground, and assert additional grounds of defense. Marthinson v. Insurance Co., 64 Mich. 372 (31 N. W. 291); Towle v. Insurance Co., 91 Mich. 219 (51 N. W. 987); Burnham v. Casualty Co., 117 Mich. 142 (75 N. W. 445).

The plaintiff produced a certificate containing the recital :

‘ ‘ This certificate is issued in consideration of the membership fee, and the warranties and agreements contained in the application for this certificate and the applicant’s medical examination, and the compliance with and conformity to all the statutes of the league as they now exist, or as they may from time to time be amended, added to, or repealed, and the payment of one and 44/100 dollars on delivery thereof, and a like payment on or before the last business day of each month thereafter.”

The defendant called the treasurer of the local lodge and the treasurer of the grand lodge. The former testified that the dues had not been received by him, and the latter that they had not been transmitted or remitted to the grand lodge; and it is contended that this testimony overcomes the presumption arising from the delivery of the policy. It appeared, however, that the soliciting agent, Blakesley, did remit the membership fee, and by his direction the policy was delivered. The $1.44 was payable on delivery of the policy as much as was the membership fee. Blakesley was intrusted with the delivery of the policy, and the jury might well have drawn the inference that the full payment was made to him. The jury found that the dues were paid. The presumption of payment arises from the delivery of the policy. Petherick v. Order of Amaranth, 114 Mich. 420 (72 N. W. 262); Wagner v. Supreme Lodge K. of H., 128 Mich. 660 (87 N. W. 903); Illinois Central Ins. Co. v. Wolf, 37 Ill. 354 (87 Am. Dec. 251); Provident Life Ins. Co. v. Fennell, 49 Ill. 180.

As we find a waiver of the alleged breach of warranty, and that there was evidence to support the finding that the dues were paid, the other questions discussed are rendered immaterial.

Judgment affirmed.

Moore, Carpenter, and Grant, JJ., concurred. Hooker, C. J., took no part in the decision.


author: Moore, J.

text:
    WOODWORTH v. CITY OF KALAMAZOO.
    1. Municipal Corporations — Claims por Personal Injuries— Presentation — Construction op Statute.
    Act No. 475, Local Acts 1897, chap. 16, § 2, providing that claims against the city of Kalamazoo, “for personal injuries or otherwise,” shall be presented to the council in detailed form, that, within 30 days thereafter, the evidence in support of the same shall be submitted to the council, or to the committee to whom the claim may have been referred, and that it shall be a complete defense to any action upon any such claim that the claim and evidence have not been thus presented, and further providing that all claims growing out of the negligence of the city shall be presented in the same manner within four months after the claim shall arise, or be forever barred, should be construed as one paragraph, and a claim for a personal injury from a defective sidewalk, not presented to the council within four months, is barred.
    2. Same — Limitation of Actions — Repeal of Statute.
    The provision of the charter of Kalamazoo, barring claims for personal injuries unless presented to the council within four months from tjie time the claim arose, was not repealed by Act No. 155, Pub. Acts 1899, limiting the time for bringing . ■ actions for personal injuries to three years, and repealing inconsistent acts.
    3. Same — Waiver—Reference to Committee.
    A provision of a city charter, requiring claims for negligent injuries to be presented to the council within four months from the time the claim arose, was not waived by the act of the council in referring a delayed claim to a committee, which, after fixing a time and place for hearing, refused to hear the testimony offered by the claimant, and reported to the council that the claim was barred by lapse of time.
    4. Same — Ordinances—Advertising for Claims.
    Nor was such provision waived by advertising, under an ordinance, that all bills and accounts against the city for the current year must be filed with the city clerk by a certain date, or the same would not be allowed in the accounts for such year.
    Error to Kalamazoo; Adams, J.
    Submitted October 9, 1903.
    (Docket No. 38.)
    Decided December 22, 1903.
    Case by Hattie A. Woodworth against the city of Kalamazoo for personal injuries caused by a defective sidewalk. From a judgment for defendant on demurrer to the declaration, plaintiff brings error.
    Affirmed.

      E. M. Irish, for appellant.

      Harry C. Howard, for appellee.
   Moore, J.

The plaintiff was injured on the 5th day of May, 1901, by falling ón a defective sidewalk in the defendant city of Kalamazoo. Her claim was presented to the city council on the 24th day of March, 1902. The council referred it to a committee, and the committee fixed a time and place for hearing. Plaintiff' appeared before the committee and offered to present her evidence. The committee refused to hear it or to pass upon it because, among other reasons, it was barred by the limitation in the charter. A committee report was made to the council, recommending the claim be not allowed, for the above reasons. The council adopted the report, and this damage suit was commenced by declaration. The defendant de- , murred “ because said claim was not presented to the city council within four months after the same arose, as is required by the provisions of the city charter; the same being Act No. 475, Local Acts 1897, chap. 16, § 2.” The circuit court sustained the demurrer. The plaintiff brings the case here by writ of error.

The plaintiff’s claim, as stated by counsel, is:

“First. The city charter, legally construed,- does not require claims for damages for personal injuries to be presented to the city council within four months from the event of the injury.
“Second. That the defendant’s contention would force into the charter a short time limit within which to present personal injury claims, which is too unreasonable and unjust to be placed there by construction.
“Third. That, if the charter could be construed in accordance with the defendant’s claim, the four-mon-ths clause was repealed by Act No. 155, Pub. Acts 1899.
“Fourth. That, even if the charter provision were to be given force, the defendant has waived the benefit of its provisions (a) by receiving the claim and referring it to a committee without objection; (b) by passing City Ordinance No. 156, and advertising for claims under it.”

It is claimed by defendant that the action is barred because the claim was not filed with the council within four months of the injury.

The part of the charter relied upon is found in Act No. 475, Local Acts 1897, chap. 16, § 2, and is as follows:

“Said city council shall have authority to adjust and settle all accounts and claims against said city, and no suit or action shall be maintained against said city on any account or claim until the same shall have been presented to said council, and said council shall have had an opportunity to pass upon the same. The city of Kalamazoo shall not be liable to respond in any action or proceeding to collect any account or. claim of any kind against said city for any greater amount than that named and set forth in the account or claim presented as herein provided.
“In all cases of claims against said city for personal injuries or otherwise, the party having the claim shall present the same to the council in detailed form, giving all the substantial facts upon which the same is based, and shall present to the council, or the council committee to whom the same shall be referred by the council, at such time ánd place as shall be convenient for the council, or council committee to which the claim is referred, as aforesaid, and not exceeding thirty days from the time of presentation of the claim, all the evidence in his possession, or of which he or his attorney has knowledge, tending to prove the facts in the case, and submit the same to the full and complete examination of said council, or council committee: Provided, that said hearing may be adjourned from time to time to suit convenience of the parties, not exceeding thirty days more than herein provided; and it shall be a sufficient and complete defense to any action or proceeding for the collection of any such claim or demand against the city, that such claim or demand, and the evidence upon which the same is based, has not been presented as hereinbefore provided.
“All claims for damages against the city growing out of the negligence or default of said city, or of any officer or employe thereof, shall be presented to said city council in the manner above provided v^thin four months after such claim shall arise, and in default thereof such claim shall thereafter be forever barred. ”

Counsel says:

“The second paragraph above quoted states a special rule as to personal injuries that is complete in itself, and provides that noncompliance with it shall be a complete defense to the action. The third paragraph, which follows it, states a broader and more general rule as to claims for damages growing out of the negligence or default of the city. Standing alone, this last paragraph would include personal injuries arising from negligence, and would do away with the necessity of enacting much of the preceding paragraph, provided it was the intention of the legislature to include personal injuries in the general clause as to negligence claims. Counsel claims that the second paragraph is to be read as an exception to the third, and that it is a case for the application of the rule clearly stated by Judge Christiancy in Crane v. Reeder, 22 Mich. 322, as follows:
“ ‘Where there are two acts or provisions, one of which is special and particular and certainly includes the matter in question, and the other general, which, if standing alone, would include the same matter, and thus conflict with the special act or provision, the special must be taken as intended to constitute an exception to the general act or provision, especially when such general and special acts or provisions.are contemporaiieous, as the legislature are not to be presumed to have intended a conflict,''' — and cites other cases to the same eSect.

We agree with counsel that the law is well settled that where there are two acts, or provisions of one act, one special and particular, and the other general, the special is an exception to the general act; but we do not agree with him in thinking the section of the charter, in order to properly construe it, should be divided into paragraphs. The entire section is devoted to the subject of claims, and, if read as an entirety, giving to the words used their ordinary meaning, we think it clear that claims for personal injuries received because of defective sidewalks must be presented within four months after such claim shall arise. See Davidson v. City of Muskegon, 111 Mich. 454 (69 N. W. 670), and the cases there cited; Blumrich v. Village of Highland Park, 131 Mich. 209 (91 N. W. 129).

Counsel says the charter provision is repealed by Act No. 155, Pub. Acts 1899, which reads:

“ Section 1. That no action shall hereafter be brought in any courts of this State to recover damages for personal injuries unless the same shall be brought within three years from the occurrence upon which the claim for liability is founded.
‘ ‘ S®C. 2. All acts or parts of acts in any wise contravening any of the provisions of this act are hereby repealed.”

It is claimed section 2 contains a sweeping repealing clause of all other statutes of limitation for personal injuries. We do not think the provisions of the charter as to the time for presentation of claims to the council are in contravention of the provisions of this public act relating to the time in which the action must be brought in the courts of the State.

It is claimed the city waived its defense by referring the claim to a committee; counsel citing many cases. This feature of the case is controlled against the contention of counsel by the recent case of Blumrich v. Village of Highland Park, 131 Mich. 209 (91 N. W. 129), where the Michigan cases are collated and construed.

It is urged the defense is waived by City Ordinance No. 156, and advertising for claims under it. The material parts of the ordinance, so far as they relate to this case, read as follows:

“Section 1. The City of Kalamazoo Ordains: That all claims of every kind and nature against the city of Kalamazoo shall, before being audited, adjusted, or settled, be presented and filed with the city clerk in a fully itemized form, showing the day and date and all informa-. tion necessary to a full and complete understanding of the nature and justice of such claim or claims. Claims shall be verified by the party presenting the same when demanded by the committee whose department is chargeable with such claim, or the purchasing or claims committee, on blanks to be furnished by the city clerk at the expense of the city. All oaths pertaining thereto may be, administered by the city clerk without expense to the claimant. All claims, except the city pay roll, must be presented before 12 o’clock noon of the Monday preceding the first regular meeting of each month. No claim will be considered or allowed during the current month if presented after that time, unless by the unanimous consent of the council. Claims will be passed upon by the city council at the first regular meeting of each month, unless for some special reason action may be deferred by the city council.”
“Sec. 8. It shall be the duty of the city clerk to advertise in the daily- papers of ,the city of Kalamazoo, in a prominent position, at least three times in each week during the first three weeks of March in each year, that all bills and accounts against the city of Kalamazoo for the current year ending March 31st must be filed in the office of the city clerk on or before the 25th day of March, at 12 o’clock noon, or the same will not be audited and allowed in the accounts for the then current year.”

The averment in the declaration is:

“That the city clerk advertised for claims, in accordance with section 8 of said ordinance, during the first three weeks of March of the year 1902, and that it had been his custom to so advertise during said time ever since said ordinance was passed and became a law, and that it was generally understood in the city of Kalamazoo that claims against the city were to be filed and could be filed in accordance with said ordinance, and the plaintiff so understood, and that her said claim was filed within the time allowed by the same.”

A reference to section 8 shows it was “all bills and accounts against the city ” which were required to be filed on or before March 25th. The ordinance does not indicate an intention to waive the charter provisions in relation to negligence cases, and we do not think that is its effect.

Judgment is affirmed.

Carpenter, Grant, and Montgomery, JJ., concurred. Hooker, C. J., took no part in the decision.

       The section is here divided into paragraphs in accordance with the contention of plaintiff's counsel.


author: Carpenter, J.

text:
    WILCOX v. WILCOX.
    Fraudulent Conveyances — Mortgages—Evidence.

      Held, under the evidence on a bill in aid of execution, that the mortgages sought to be set aside were given in good faith and for a bona fide indebtedness, justifying a decree dismissing the bill.
    Appeal from Jackson; Peck, J.
    Submitted October 21, 1903.
    (Docket No. 62.)
    Decided December 22, 1903.
    Bill by Rena Wilcox against Homer Wilcox and others in aid of execution. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Blair, Smith & Townsend, for complainant.

      Wilson & Cobb, for defendants.
   Carpenter, J.

.May 13, 1898, an execution, issued to collect a certain judgment rendered in favor of complainant and against defendant Homer Wilcox, was levied upon the land in controversy. This suit was subsequently commenced in chancery to set aside several mortgages. Each of these mortgages was executed by defendant Homer Wilcox; and ran to one of his codefendants. The hearing was had in the court below on pleadings and proofs, and a decree rendered' dismissing complainant’s bill. The only questions raised on this appeal relate to three of the mortgages above referred to, viz., the mortgage running to Caroline Pinkerton (sister of defendant Homer Wilcox), the mortgage running to defendant Ella Slack (former housekeeper of defendant Homer Wilcox), and the mortgage running to Stanley Wilcox (son of defendant Homer). After this suit-was commenced, and before the hearing, the first two of said three mortgages were assigned to defendant Stanley Wilcox.

It is a sufficient answer to all of complainant’s contentions to say that, in our judgment, the testimony proves that these mortgages were good-faith securities, for a bona fide indebtedness, and that they were delivered. The issue is one of fact, and its discussion would serve no useful purpose.

The decree of the court below is therefore affirmed, with costs.

Moore, Grant, and Montgomery, JJ., concurred. Hooker, C. J., took no part in the decision.


text:
    KUDNER v. BATH.
    Mechanics’ Liens — Assignment—Bankruptcy Proceedings — Settlement — Notice.
    An assignee of a mechanic’s lien is not affected by a settlement, made without notice to him, between the owner of the land and the trustee in bankruptcy of the assignor, appointed in proceedings instituted subsequent to the assignment.
    Appeal from Wayne; Donovan, J.
    Submitted October 22, 1903.
    (Docket No. 65.)
    Decided December 22, 1903.
    Bill by Charles Eudner against Charles Bath, Howard B. Latourette, and Elizabeth M. Frelinghuysen to enforce a mechanic’s lien. From a decree for complainant, defendant Latourette appeals.
    Affirmed.
    This is a proceeding in chancery to foreclose a mechanic’s lien by the complainant, as assignee of one James M. Young. Defendant Latourette is the assignee of a land contract from defendant Frelinghuysen. Bath was the purchaser from Latourette. The bill was taken as confessed against Bath and Frelinghuysen. Young-had a contract with Bath to do the brickwork upon the house to be erected upon the land for $734. Bath paid him $255. Young did extra work amounting to $13.90. Young made out his bill against Bath, showing a balance due of $492.90, and duly assigned the same to the complainant. The answer sets up that on September 11, 1900, Young was adjudged a bankrupt, and that on the 21st day of February, 1901, defendant settled Mr. Young’s claim with the trustee in bankruptcy, by order of the bankruptcy court, for $50. It was claimed that the work of Mr. Young was improperly done. The court rendered a decree in favor of complainant for $204.63.
    By the terms of the assignment and the contemporaneous power of attorney, the purpose of the assignment was (1) to pay complainant for services rendered and to be rendered to Young, (2) to settle with and.pay the laborers and material men whom Young owed, arid (3) to pay any balance over to Mr. Young. Settlements with the laborers and materialmen were effected, the amounts being paid by Mr. Latourette. The assignment to complainant was made August 28,1900, petition in bankruptcy filed the 11th of September, 1900, and an amendment thereto filed September 25th, stating that the assignment was made to secure the payment of certain labor and other claims. On October 12th of the same year Mr. Bath filed a petition in the bankruptcy case, setting forth that he was named as debtor of said bankrupt to the extent of $492, and averring that, if the assignment to complainant was valid, he was not indebted to the bankrupt estate. On February 21,1901, the trustee in bankruptcy filed a petition setting forth that there was a dispute between Young and Bath as to the amount due from Bath to Young, and that Bath offered to pay $50 in full settlement, and recommending that the offer be accepted. On the same day an order to that effect was made, and defendant Latourette paid the $50 to the trustee in bankruptcy, receiving his receipt in full therefor.

      Charles Kudner, in pro. per.

      Wilkinson, Post & Oxtoby, fox’ appellant. ■
   Grant, J.

(after stating the facts). The defenses are that complainant can claim no lien against the property, (1) because Mr. Latourette, without notice of complainant’s rights, settled the balance due to Young under the order of the bankruptcy court; (2) that the complainant was not entitled, under his assignment, to a lien for services performed by him after Mr. Young was adjudicated a bankrupt, but should be limited to what was due at that time.

Mr. Young, after his assignment, could not affect complainant’s rights by any statement he might make in his petition to be declared a bankrupt, unless such statement were ratified by the complainant. The assignment is conceded to be valid, and the proceedings to enforce the lien regular. Complainant neither did nor said anything to now estop him from asserting his rights under the assignment. He had no notice or knowledge of the proposed settlement in the bankruptcy court. Under the assignment, complainant had the right to proceed, by suit or otherwise, to collect, had a lien upon the amount recovered for his services, and was entitled to deduct the same from the amount collected. The sole effect of the bankruptcy proceedings was to change the payee of the surplus. They did not affect the legal rights or interest of complainant in or to the subject-matter of the assignment. Any balance which would become due after paying the claims secured, and complainant for his services, became payable .to the trustee in bankruptcy, instead of Mr. Young.

Decree is affirmed.

Moore, Carpenter, and Montgomery, JJ., concurred. Hooker, C. J., took no part in the decision.


text:
    PAMMENT v. WARNER.
    Equity Practice — Amendments—New Issue.
    An amendment to a bill in chancery, introducing a new issue, should not be permitted after the testimony has all been taken. So held where a bill to set aside a deed, given in consideration of an agreement of support, set up the incapacity of the grantor and the nonperformance of the agreement as grounds for relief, and it was proposed to amend by setting up a failure to secure the performance of the agreement by a lien on the land, as agreed.
    Appeal from Ingham; Wiest, J.
    Submitted November 3, 1903.
    (Docket No. 73.)
    Decided December 22, 1903.
    Bill by Daniel Pamment, individually and as administrator of the estate of Nathaniel Pamment, deceased, against Emma L. Warner and Orestes B. Warner, to set aside a deed. Prom a decree dismissing the bill, complainant appeals.
    Affirmed.

      Q. A. Smith and O. J. Hood, for complainant.

      Boltin H. Person (Seymour H. Person, of counsel), for defendants.
   Carpenter, J.

March 30, 1896, Nathaniel Pamment delivered to his daughter, the first-named defendant, a warranty deed, executed by him as grantor, conveying to her as grantee 60 acres of-land, constituting his homestead, and situated in the township of Leroy, Ingham county, in this State, and at the same time the father transferred to the daughter his personal property and household furniture. The only consideration for these transfers was a collateral contract, executed by Emma, as party of the first part, and Nathaniel, as party of the second part, by the terms of which said Nathaniel obtained a life lease in the property, and by which “the party of the first part agrees to board and clothe and care for in sickness and in health and to pay all doctor bills that may be necessary during the life of the party of the second part; also the party of the first part hereby agrees, in addition to the above, to pay to the party of the second part the sum of twenty dollars each year during his life, in equal monthly oayments, and at his death to pay all funeral expenses.”

Soon after the execution of this paper, defendant Emma married the codefendant, Orestes B. Warner. Nathaniel Pamment lived in the family of defendants, on the property in controversy, from that time until March 20, 1900, when he left them, and took up his residence with his son, Daniel, the present complainant in this suit. On the 7th of the following April, he commenced this suit in chancery for the purpose of obtaining a decree setting aside said transfers upon the ground that the defendants did not perform the agreement in said collateral contract, and upon the ground that at the time he executed the deed he was “enfeebled by age in his bodily and mental faculties,” and that the deed was consequently “a fraud upon his rights.” On the 31st of January, 1901, Nathaniel Pamment died, and the suit was thereafter prosecuted by his son, both in his individual capacity and as administrator of his father’s estate. The case was heard upon pleadings and proofs taken in open court.

After the testimony had all been taken, but before argument, complainant’s counsel desired to amend the bill by adding the charge that the performance of the agreement of the defendant Emma, in the collateral agreement, was not secured by a lien upon the land, as agreed, and that for this reason the deed should be set aside. The trial court refused to permit this amendment upon the very proper ground that it would introduce a new issue in the case, and made a decree dismissing complainant’s bill.

Complainant’s counsel argue that these transfers should .be set aside on three grounds: First. the grantor was mentally incompetent to make them; second, their execution was procured by undue influence; and, third, defendant Emma and her husband did not perform the-agreement in the collateral contract. Assuming that the averments of the bill are sufficient to enable complainant to rely upon the first and second of these grounds, — and those averments require a very liberal construction, indeed, to justify this assumption, — it is quite sufficient to-say that a careful examination of the record convinces us that the grantor was mentally competent to make these transfers, that they were not procured by undue influence, and that defendant Emma and her husband have not so failed to perform said agreement as to justify a decree setting them aside. The issue is purely one of fact, and a further discussion would be unprofitable.

The decree of the court below will be affirmed, with costs.

Moore, Grant, and Montgomery, JJ., concurred. Hooker, C. J., took no part in the decision.


text:
    FREDERICKSON v. NELSON.
    Assault and Battery — Instructions to Jury.
    In an action for assault and battery, where plaintiff’s testimony tended to prove that defendant threw her to the ground,.and inflicted injuries resulting in a miscarriage, a charge to the jury that plaintiff could not recover unless they should find that the injuries inflicted by defendant resulted in a miscarriage was error.
    Error to Kalkaska; Chittenden, J.
    Submitted November 4, 1903.
    (Docket No. 82.)
    Decided December 22, 1903.

      Trespass vi et armis by Mary Frederickson against Rasmus Nelson. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Charles A. Withey (J. E. Richardson, of counsel), for appellant.

      Ernest C. Smith, for appellee.
   Carpenter, J.

Plaintiff commenced this suit to recover damages for an assault and battery. Her testimony tended to show that, without provocation, defendant assaulted her, and threw her to the ground, and inflicted injuries which afterwards resulted in a miscarriage. Defendant’s testimony tended to prove that plaintiff was the aggressor, and that he did nothing except to repel an assault committed by her. The issue was submitted to a jury, who rendered a verdict for defendant.

Complaint is made of the following portion of the charge of the court:

“Before the plaintiff can recover, you must find the following facts: First, that the defendant, Rasmus Nelson, first assaulted the plaintiff, or that he used unreasonable and unnecessary force in repelling an assault made upon him; that, as a result of injuries unlawfully inflicted by the defendant, a miscarriage resulted.”

What is the proper construction of this language ? If it informed the jury that the plaintiff could not recover unless a miscarriage resulted from her injuries, the instruction was clearly erroneous. While we are bound to assume that the trial judge did not intend to convey that meaning, we are also bound to say that the jury naturally would, and it is to be presumed did, so understand it. Nor can we say that the impression created by this language was removed by other portions of the charge.

The other errors complained of raise no question which can be discussed with profit.

Judgment reversed, and new trial ordered.

Moore, Grant, and Montgomery, JJ., concurred. Hooker, C. J., took no part in the decision.


text:
    C. H. LITTLE CO. v. WOODWARD AVENUE CEMETERY ASS’N.
    1. Equity Practice — General Demurrer — Bill Good in Part.
    If a bill in. chancery contains any ground of equitable relief, a general demurrer must be overruled as to the whole bill.
    2. Equity Jurisdiction — Corporations—Subscriptions to Stock —Payment.
    Equity has jurisdiction, independent of statute, to compel the payment of subscriptions to the capital stock of a corporation for the benefit of its creditors.
    ■ 3. Same — Cemetery Associations.
    3 Comp. Laws, § 9780, exempting the “proprietors of incorporated burying grounds” from the provisions of the chapter of which it is a part (i. e., chapter 269, relating to proceedings against corporations in chancery), does not prevent the chancery court from entertaining a suit by a judgment creditor of a cemetery association organized under 3 Comp. Laws, § 8399 et seq., whose execution has been returned unsatisfied, to compel the stockholders of such association to pay the amount unpaid on their stock subscriptions.
    Appeal from Wayne; Brooke, J.
    Submitted November 5, 1903.
    (Docket No. 93.)
    Decided December 22, 1903.
    Bill by the C. H. Little Company against the Woodward Avenue Cemetery Association, Daniel L. Davis, Silas A. Hillman, Frank G. Jacobs, and others, to compel the payment of subscriptions to the capital stock of defendant corporation. From an order sustaining in part a demurrer to the bill, both parties appeal.
    Reversed (complainant prevailing).
    The bill in this case alleges that on November 20, 1902, the complainant recovered a judgment in the justice court, at Detroit, against the defendant the Woodward Avenue Cemetery Association, a corporation, for the sum of $242.22 damages, and costs; that a transcript of said judgment was duly taken to the circuit court for Wayne county, an execution issued, and returned in due time wholly unsatisfied, and that the consideration for said judgment was a note given for goods, wares, and merchandise sold the cemetery association, to be used upon the land, for the betterment thereof, in which the cemetery association claimed to have some interest, located on Woodward avenue, in the township of Greenfield, in Wayne county; that its articles of association were filed, and that defendants Jacobs, Hillman, Davis, and others were subscribers to the capital stock of said association; that it further appears by the affidavit of Charles Wright, the treasurer thereof, that all of the capital stock had been subscribed for, and that 20 per cent, of the amount of capital subscribed for had actually been paid in, but complainant avers upon information and belief, and charges the fact to be, that such 20 per cent, had not at the time thereof been paid in, nor any part thereof, and that none of the capital subscribed for has since been paid in by said subscribers, or any or either of them, or any part thereof, and that said subscribers, conspiring together to defraud its creditors and defeat them in the collection of their accounts, and particularly complainant herein, maliciously and willfully caused said affidavit to be executed and filed with said articles of incorporation, well knowing the same to be false and untrue; that it was the object of the cemetery association to buy the 40 acres of land out Woodward avenue, and to make and maintain perpetually thereon a burying ground and cemetery, and sell lots and rights of burial therein, and that said cemetery association was organized under 3 Comp. Laws, §§ 8399-8412, being “An act to authorize and encourage the formation of corporations to establish rural cemeteries, and provide for the care and maintenance thereof;” that the project of establishing a cemetery as aforesaid has been abandoned; that it now has no land, and no tangible property subject to levy and sale under execution, and that, so far as known, the only asset of said association is the liability of said subscribers to the capital stock thereof for their subscriptions thereto; and that this bill is filed for the purpose of enforcing payment of the unpaid subscriptions to said capital stock, and the whole thereof, or such portion as may be necessary to satisfy any decree which may be entered herein, with costs. The prayer for relief is that the court may ascertain and determine the amount remaining unpaid by, and dué from, each and every of the subscribers to the capital stock of the cemetery association, and that it order, direct, and enforce, by proper proceedings herein, payment of the unpaid portion thereof, or so much thereof as may be necessary for the purpose aforesaid, into this court, or to a receiver, for the use and benefit of complainant, from any or all of the said subscribers, and in case it shall be determined that such order cannot be enforced as against any such subscriber or subscribers by reason of his or their insolvency, or that he or they be not within the jurisdiction of this court, then that the remaining subscribers, or any of them, may be ordered and directed to pay in the full amount remaining unpaid on their subscriptions, and that a receiver be appointed, etc.
    The defendants Jacobs, Hillman, and Davis demurred to the said bill' for the following reasons:
    1. That the only provisions of the statutes of this State under which the complainant can claim the relief asked for in its bill in this case are found in chapter 269 of the Compiled Laws (sections 9755-9780), and that section 26 (3 Comp. Laws, § 9780) of said chapter provides that “ the provisions of this chapter shall not'extend to any incorporated library or lyceum society; to any religious corporation, or any incorporated academy or select school; nor to the proprietors of any burying ground incorporated under the laws of this State.”
    2. That the claim upon which judgment was rendered in favor of the complainant and against the cemetery association was not a labor claim.
    3. That no liability is imposed upon stockholders for the debts of a cemetery association under the act under which this cemetery association was organized.

      Upon the hearing of this demurrer, it was sustained, as to any relief against any of the defendants, to the extent of 80 per cent, of the amount of the capital stock of the company, and overruled as to 20 per cent, of the amount of the capital stock of the company; and it is as to this 20 per cent, that the defendants Jacobs, Hillman, and Davis appeal. Complainant also appeals.

      Willard E. Warner, for complainant.

      Patterson & Patterson, for defendant Jacobs.

      D. L. Davis (P. B. Bromley, of counsel), for defendants Davis and Hillman.
   Grant, J.

{after stating the facts). The court erred in sustaining the demurrer in part and overruling it in part. When a bill in chancery contains any ground of equitable relief, a general demurrer must be overruled as to the whole bill. The complainant is entitled to an answer, and all the questions will arise upon the final hearing upon pleadings and proofs. Williams v. Hubbard, Walk. Ch. 28; Clark v. Davis, Har. Ch. 227; Thayer v. Lane, Id. 247; Hawkins v. Clermont, 15 Mich. 511. However, inasmuch as both parties have appealed, have fully argued the question involved, and are evidently desirous of its adjudication, we determine the question.

The defendant corporation was organized under Act No. 12, Laws 1869, entitled “An act to authorize and encourage the formation of corporations to establish rural cemeteries, and provide for the care and maintenance thereof.” 3 Comp. Laws, §§ 8399-8412. Section 2 (3 Comp. Laws, § 8400) of the act provides for articles of incorporation, which shall state the amount of land which it is proposed to purchase, the amount of capital required to make such purchase and to fence and improve the grounds, the number of shares, and the names of the subscribers to the stock, with the number of shares subscribed by each, etc. Section 3 (3 Comp. Laws, § 8401) provides that, at the time of the subscription to said capital stock, 20 per cent, of the amount subscribed by each must be paid into the treasury, and when the whole amount of the capital stock is subscribed, and said 20 per cent, actually paid in, a copy of the articles of association, together with the affidavit of the treasurer that 20 per cent, has actually been paid in, may be filed in the office of the county clerk.

Chapter 269 of the Compiled Laws relates to proceedings against corporations in chancery. It provides, among other things, that circuit courts in chancery shall have jurisdiction over directors and other officers of said corporations, to compel an accounting of their official conduct-, etc. It provides, also, for sequestering the property of a corporation where a judgment at law or decree in chancery shall be obtained, and an execution returned unsatisfied. Section 9780, 3 Comp. Laws, reads:

“ The provisions of this chapter shall not extend to any incorporated library or lyceum society; to any religious corporation, or any incorporated academy or select school; nor to the proprietors of any burying ground incorporated under the laws of this State.”

It is the contention of the defendants that the bill in this case is filed under chapter 269, and that the section above quoted prohibits the maintenance of the bill in this case. If this contention be maintained, it follows that there is no liability imposed upon the stockholders of the corporations enumerated in section 9780 to pay for their stock which they have subscribed and own. A corporation for cemetery purposes may buy land, issue its obligation to the purchaser, due at a future time, and may contract for building the necessary house or houses thereon, the erection of fences, etc.; but, when these creditors ask for payment, the corporation may, through its directors and stockholders, say to them: “We have no tangible property which you can reach upon execution. We have not paid for our subscriptions, and you cannot compel us to, because the statute prohibits it.” Such a proposition is shocking to the moral sense of every honest man. It is not reasonable to suppose that the legislature intended the statute to relieve stockholders in these corporations from all liability for payment-of their stock. Courts will not so construe the statute if any other construction is reasonably possible. The statute, upon its face, is not susceptible of this construction. It contemplates that the capital stock of the corporation shall be paid into its treasury to meet its legal obligations. It expressly provides that 20 per cent, shall be paid in as a prerequisite tó the filing of its articles of association. Until this amount is paid, it is doubtful whether there is any legal incorporation. The stockholders of the corporation are not the proprietors of a cemetery; the corporation is the proprietor.

Aside from the remedies and proceedings provided by chapter 269, courts of equity have jurisdiction in many cases. The remedies therein provided are not exclusive. If there were no statute upon the subject, equity would have jurisdiction to compel stockholders to pay the amount of the capital stock into the treasury of the corporation for the payment of its debts. In Brown v. Mining Co., 105 Mich. 653 (63 N. W. 1000), the bill was filed to wind up the affairs and distribute the assets of the corporation. The bill was dismissed. We held that “the court had jurisdiction of the subject-matter independently of the statute.” So, in this case, the remedy provided by the statute is merely cumulative. See, also, Jordan v. Everett, 93 Tenn. 390 (24 S. W. 1128); Jones v. Boston Mill Corp., 4 Pick. 507 (16 Am. Dec. 358); Biddle v. Moore, 3 Pa. St. 161. The bill in this case is in form the same as would be filed if no statute existed. It does not refer to the statute. 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. But, as already stated, this act upon which the defendants rely does not exempt them from proceedings to compel the payment of their subscriptions. It will not be doubted that the directors might make an assessment and sue the stockholders for the purpose of paying the debts of the corporation, and that it would be their duty, both morally and legally, to do so. What they have the power to do, and what, in good conscience and law, they ought to do, courts of equity have the jurisdiction to compel them to do.

The case is remanded for further proceedings in accordance with this opinion. The complainant will recover the costs of this court.

Moore, Carpenter, and Montgomery, JJ., concurred. Hooker, C. J., took no part in the decision.