text:
    GIDDINGS v. ROGALEWSKI.
    1. Waters and Watercourses — Private Lake — Meandered Waters — Burden of Proof — Trespass.
    In an action of trespass guare clausum fregit, where defendant, in his notice, alleged that a small, shallow, inland lake, without inlet or outlet, wholly upon plaintiff’s premises, was “public, meandered, and navigable waters,” and claimed the right both to fish and go over plaintiff’s premises to reach it, for that reason, the burden of proving his allegation was upon defendant.
    2. Same — Presumptions.
    No presumption that it is meandered arose from its size, location, or relation to other waters, and, in the absence of direct proof, all inferences are to the contrary.
    3. Navigable Waters — Definition.
    The test of navigability is whether the waters under consideration are capable of being used by the public as thoroughfares or highways for purposes of commerce, trade, and travel by the usual and ordinary modes of navigation.

    4. Same — Private Waters.
    A small, unmeandered, shallow, and disconnected sheet of water, wholly upon the premises of a private owner, and which can only be reached by invading private premises, is not navigable.
    5. Trespass Quare Clausum — Fish and Game Laws.
    The right of the State, under its police power, to enforce the fish and game laws upon the lands of a private owner does not take away the owner’s right to maintain trespass against those who invade his close without permission for the purpose of fishing.
    6. Same — Right of Action — Nominal Damages.
    Every unauthorized intrusion upon private lands is a trespass for which the owner has a right of action, and is entitled to at least nominal damages.

      Error to Kent; Perkins, J.
    Submitted June 12, 1916.
    (Docket No. 38.)
    Decided July 21, 1916.
    Trespass quare clausum fregit by Alfred Giddings against Theodore Rogalewski. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      Rodgers & Rodgers, for appellant.

      H. Monroe Dunham and John M. Dunham, for appellee.

      Generally, on the question of navigability of bodies of water, see note in 42 L. R. A. 305.

   Steere, J.

This is an action of trespass quare clausum fregit, which was originally commenced in justice’s court and found its way to the circuit court of Kent county where, upon second trial in that court, it was disposed of by a judgment on directed verdict against defendant of six cents, as nominal damages for unlawful entry upon plaintiff’s premises. Considering himself aggrieved, defendant has appealed to this court for a review of the judgment by a writ of error containing 12 assignments, the essence of his grievance being that the court erred as a matter of law in holding him guilty, under the evidence, of even technical trespass.

The testimony disclosed that upon the day charged, August 6, 1913, defendant, though uninvited and previously forbidden, entered plaintiff’s close and traversed á portion of it to reach a small lake in the interior of and entirely surrounded by plaintiff’s land, upon the margin of which he remained for a time engaged in angling, curtly refusing with defiant response to desist and withdraw when warned away by plaintiff’s wife. His then asserted right to thus go and remain upon plaintiff’s private premises was, as formulated into more gracious phraseology by his special notice under a plea of the general issue—

“that if he entered plaintiff’s close as set forth in plaintiff’s declaration, he entered for the purpose of ’fishing in public, meandered, and navigable waters of this State.”

The waters in relation to which this public right is asserted are locally known as “Giddings’ Lake.” This lake is located upon and entirely surrounded by a farm of 240 acres belonging to plaintiff, lying in the west half of section 1 of Solon township, Kent county, Mich., and comprising the S. W. *4 and S. V2 of the N. W. % of said section. The lake is estimated to cover from 20 to 25 acres. Plaintiff testified that it had an irregular margin, and approximated its dimensions as “60 rods north and south with a varying width east and west of about 20 rods. While the depth varies, it is nowhere deep. Portions of its margin are marshy, and at some places it is shallow for several rods from shore, while at others it deepens more rapidly. The general depth off shore is estimated as 8 or 10 feet, with places towards the easterly shore where a depth of from 12 to 16 feet is found. It is concededly boat-able over its limited surface beyond the shore shallows. Plaintiff had owned most of the land inclosing this lake for more than 30 years, and all the land under and around it for over 20 years. The shortest distance from any point around the lake to lands belonging to others, or to a highway, is at the south end, which is from 35 to 40 rods north 6f the section line. It is entirely surrounded by an unbroken shore, and no surface streams flow into or out of it. Over 30 years ago plaintiff planted some fish in the lake, perch, blue gills, bass, and other kinds, obtained by bim from a stream which he states was “north of Sand Lake,” where there is, or was, a mill “and they .catch the fish with nets.” On two or three subsequent occasions he supplemented his original planting with some wall-eyed pike and bass, obtained for him by a rural mail carrier named Roscoe from the State hatchery. Plaintiff testified- that while he never fished in the; lake himself, fish are yet there and he kept a rowboat at the north end, pulled' up on the shore near his home when not in use, with and from which his wife and other members of- his family sometimes rowed around and fished in the lake.

For the purpose of draining some low, marshy land .lying south of the lake, plaintiff started to dig a ditch some 60 rods long southerly through this swamp to lead across the highway south of his property to a small stream called White creek, which flowed through the farm of a neighbor to the south, in section 12. Without obtaining permission from the owner of the intervening land at the south, he began the ditch at the highway on the south side of his farm and dug it north through the land he desired to drain to within 4 or 5 rods of the lake, as he testified, and stopped there because he did not want to drain or lower the lake or connect it with other waters. The ditch remained in this condition for nearly 10 years, plaintiff being unable to obtain permission to extend it across the' highway and through intervening high land to the south; but about 10 years before this action was begun, he obtained the desired consent and connected the ditch with White creek. At the time of the trial the distance from the north end of the ditch to the lake was shown to be about 49 feet.

It was claimed by the defense that after the ditch was extended southerly to White creek a subterraneous channel developed through the intervening bank of the lake to the north end of the ditch, affording connecting waters by which fish could and did pass in and out of the lake to and from White creek, the waters of which by intervening creeks and rivers connected with Lake Michigan. This was denied by plaintiff, and the case appears to have progressed largely on the theory that whether or not such subterraneous channel existed was the controlling question, much of the testimony introduced by both sides being devoted to that issue. Without going into details as to what occurred during the trial touching that question, it is sufficient to state that the court ultimately took it from the jury and directed a verdict for plaintiff as stated. It appears beyond question that, against plaintiff’s personal protest and posted warnings forbidding trespassing, defendant and others who were ardent witnesses in his behalf persisted in invading plaintiff’s demesne, going back and forth upon his private premises and around this lake when and as they pleased, for the ostensible purpose of fishing in its waters, claiming the right to do so because, as defendant stated, “there were State fish in that lake.” For the defense it is urged that, if not conclusively shown, the question whether fish could freely migrate tó and from this lake to other waters was at least an issue which should have been submitted to the jury; that if it was found they could and did, plaintiff had acquired no property in them, and the ownership was in the whole people of the State, as held in People v. Collison, 85 Mich. 105 (48 N. W. 292); People v. Horling, 137 Mich. 406 (100 N. W. 691), and other authorities cited, and defendant; had the right both to fish for them in those waters and! go over plaintiff’s private premises to reach them, under sections 5859, 5860, 2 Comp. Laws (2 Comp. Laws 1915, §§ 7694, 7695), which provide as follows:

“Section 1. The people of■ the State of Michigan enact, That in any of the navigable or meandered waters of this State where fish have been or may hereafter be propagated, planted or spread at the expense of the people of this State or the United States, the people shall have the right to catch fish with hook and line, during such seasons and in such waters as are not otherwise prohibited by the laws of this State.
“Sec. 2. No action at law shall be maintained against any persons entering upon such waters for the purpose of such fishing, by the owner, lessee or persons having the right of possession of adjoining lands, except for actual damage done. In any such action, the defendant under proper notice may dispute on the trial the plaintiff’s right to either title or possession of the land claimed to be trespassed upon.”

We find no proof in this record to sustain defendant’s allegation in his notice under a plea of the general issue that these are meandered waters. If true, the plat and field notes of the government survey of that township would presumably demonstrate the fact to a finality. The burden of proving the allegation was upon defendant. This comparatively small and shallow sheet of water lies in the interior of a single section, no government run line of which would touch or come near it. No presumption that it is meandered arises from its size, location, or relation to other waters. In the absence of direct proof all inferences are to the contrary.

The grounds upon which it is contended this lake is “navigable waters” are that it is boatable, and that fish frequenting it can pass in and out by an underground channel connecting with other waters. Both facts, if shown, fail to furnish the test of navigability. The true test is whether the waters under consideration are capable of being used by the public as thoroughfares or highways for purposes of commerce, trade, and travel — of affording a common passage for transportation and travel by the usual and ordinary modes of navigation. Moore v. Sanborne, 2 Mich. 519 (59 Am. Dec. 209); Tyler v. People, 8 Mich. 320; 59). This small, unmeandered, comparatively shal Baldwin v. Shooting Club, 127 Mich. 659 (87 N. W. low and disconnected sheet of water, entirely surrounded by the single farm of a private owner, and which can only be reached by invading private premises, does not possess these essential attributes. The public right of access to such waters at some point is manifestly an important, if not determinative, factor in the law of navigability. It is difficult to conceive of a highway beginning, extending its whole length, and ending, in the interior of the private estate of a single owner.

That fish, bred in and frequenting private waters, may nevertheless pass back and forth to and from other waters by some connecting water and thus, like wild animals, be or become ferae naturae, and consequently belong only to the State, though subject to capture in season and in prescribed manner by all those who have a right to be where they are found and captured, does not give the right to invade and trespass upon private premises in order to reach them, although the State may have jurisdiction over private waters to enforce the fish laws and control the manner and time of their taking, as it has over private lands to enforce the game laws. Aside from the claim that this lake is open to the public for fishing purposes, and plaintiff’s farm is a highway to reach it, no question is made as to his ownership, title, and right to exclusive possession of all the land around and under the lake. The jurisdiction of the State to enforce the fish and game laws there under its police power does not, and cannot, take away his right to maintain trespass against those who invade his close without permission, especially when forbidden, and wander over his private premises in pursuit of fish or game.

The right of the people to fish in navigable or meandered waters where fish are propagated, planted, or spread, and to which they have lawful access by land or water, even though such waters may superimpose the subaqueous lands of a private owner, is not decided nor involved here.

Every ^unauthorized intrusion upon the private premises of another is a trespass, and to unlawfully invade lands in his possession is “to break and enter his close” and destroy his private and exclusive possession. The party whose private possession has been thus interfered with has a right of action for the protection of his property, and is entitled to at least nominal damages, which are presumed to follow from such invasion of another’s rights.

The judgment is affirmed, with costs.

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


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    HOLLAND CITY STATE BANK v. MEEUWSEN.
    Evidence — Written Instruments — Parol Evidence.
    In a suit upon a promissory note given plaintiff for the purpose of releasing defendants’ property from execution, parol evidence that it was given conditionally for a specified purpose was not admissible, as it was but an attempt to reduce a written instrument from an absolute, unqualified undertaking according to its written terms to a conditional, defeasible agreement.

    Error to Ottawa; Cross, J.
    Submitted June 13, 1916.
    (Docket No. 48.)
    Decided July 21, 1916.
    Assumpsit by the Holland City State Bank against John Meeuwsen and others on- a promissory note. Judgment for plaintiff on a verdict directed by the court. Defendants bring error.
    Affirmed.

      Charles E. Misner and Charles E. Soule, for appellants.

      Arthur Van Duren and George E. Kollen, for appellee.

      As to right to show by parol evidence that indorsement unrestricted in form, was made for purpose of collection only, see note in 17 L. R. A. (N. S.) 839.

   Steere, J.

Plaintiff recovered judgment in the circuit court of Ottawa county, upon a directed verdict against defendants, for the sum of $419.04, as a balance then due upon the following promissory note:

“Holland, Mich., March 21, 1914.
“Six months after date we promise to pay to the order of Holland City State Bank, $503.26, five hundred three dollars and twenty-six cents, with interest at the rate of seven per cent, per annum, payable at Holland City State Bank, Holland, Michigan, value received.
“Due Sept. 21.
“[Signed] John Meeuwsen.”-
And indorsed on the back thereof:
“[Signed] Johannes Meeuwsen.
“[Signed] Teunis Eilander.
“[Signed] Cornelius Bazan.
“[Signed] John Van Lente.”

Defendants’ signatures to the note, its protest for nonpayment when due, and the prima facie balance yet unpaid, are not in dispute.

It is contended in defendants’ behalf that under a notice of special defense they had introduced testimony showing, or tending to show, that their signatures to this note were obtained fraudulently, that it was given without consideration and delivered conditionally for a specified purpose, thus at least raising an issue of fact, which should have been submitted to the jury under appropriate instructions; and the court therefore erred in directing a verdict for plaintiff.

It appeared that the maker of this note, John Meeuwsen, had frequently signed, either as maker or indorser, notes given by one Benjamin Van Raalte to the Holland City State Bank, plaintiff herein, from which Van Raalte was in the habit of borrowing. Meeuwsen states that “by doing it so often I learned to write my name that way.”

Two of Van Raalte’s notes to plaintiff, indorsed by Meeuwsen, which had become past due and not paid or provided for by the maker, were put in judgment against both maker and indorser; following which execution was duly issued and a levy made upon certain property of Meeuwsen to satisfy the judgment which amounted to $503.26. The note here sued upon was given for that amount by Meeuwsen, indorsed by the other defendants who were his friends and neighbors, to obtain a release of the levy, on the day advertised' for sale of the property seized under the execution, and when the sheriff,' who was accompanied by plaintiff’s attorney, was about to proceed with the sale. Meeuwsen either had not attempted to protect his indorsement of the Van Raalte notes, or had been unsuccessful in the attempt and an unsatisfied judgment stood against both, to collect which Meeuwsen’s property was levied upon. What Van Raalte’s financial condition was at the time the note in question was given, March 21, 1914, and whether he was execution proof, are inferential; but it is shown that he became a bankrupt on April 2, 1914, 12 days later, and that defendant Meeuwsen filed a sworn statement of claim against him in the bankruptcy proceeding for $503.26, just the amount required to satisfy the judgment, paying plaintiff the interest on this note when it fell due six months after it was given, and two months later $100 on the principal.

In view of these facts, the claim that this note was given without consideration calls for scant attention. The indorsers were accessory promissors for the maker’s accommodation, lending their credit to him at his request, and it will scarcely be contended that a consideration to them is a condition of their liability.

The fraud claimed is based upon alleged representations, assurances, and promises given by plaintiffs attorney that he could and would collect the amount of the execution from Van Raalte and the signers of the note would not be called upon to pay it. It was testified by them, or some of them, against objection, that when oh the advertised day of sale plaintiff’s attorney accompanied the officer to defendant John Meeuwsen’s place with the execution, John complained to him that Van Raalte ought to pay it, and it was a shame that he did not, to which the attorney agreed and proposed that if John would give a new note to the bank with sufficient signers he would collect the money from Van Raalte if John would pay him 25 per cent, for collecting it, and assured them, as indorser Johannes Meeuwsen states it:

“If we would give a note to satisfy the bank for 24 hours, so he could sue Van Raalte, so he would have the money; that is what we were giving the note for; * * * we signed that note just simply for accommodation, for a few days, until that money was collected.”

Much more testimony to this effect was given by the two Meeuwsen brothers. Eilander testified that the attorney said, before they signed the note on March 21, 1914, “he had made Meeuwsen á good offer; that he would arrest Van Raalte and collect the note for 25 cents on the dollar”; and that Meeuwsen agreed he would pay the attorney 25 cents on the dollar “for everything that he collected from Van Raalte for him.” Neither this witness, Bazan, nor Van Lente testified that they were induced to indorse the note by the attorney’s promises and representations. Van Lente only testified that he signed the note in the bank at the request of John Meeuwsen; Razan testified that he signed the note at the request of one of the Meeuwsen brothers, and although at the farm, on March 21st, there was no conversation with him there about signing a note, but he heard of it..

The evidence is conclusive that all these defendants knew just what they were signing. Those claiming they were deceived into doing so knew the note was payable to plaintiff, ran for six months, and was to prevent an execution sale of John Meeuwsen’s property. The representations of the attorney, if made to the full extent testified to by any witness, were but promises of future performance on his part in connection with a contract between him and Meeuwsen to collect the amount involved for a commission. His duties as attorney for plaintiff were to collect or protect the execution levy. There is no evidence or presumption of authority on his part to release the execution without consideration, on the contingent signing and temporary delivery of a note, which was a nullity in any event under his claimed promises; neither is it shown plaintiff had any knowledge that this negotiable paper, fair on its face, was modified or rendered worthless by a collateral, oral,' private agreement between the maker and plaintiff’s attorney, for the latter’s services. Under the undisputed facts in this case, defendants’ testimony along those lines, as the trial court ultimately held, was wholly incompetent,. and but an attempt to reduce this written instrument from an absolute, unqualified undertaking according to its written terms to a conditional, defeasible agreement, by proof of a contemporaneous, oral contract. The court properly rejected such evidence. Sheffler v. Sherman, 167 Mich. 42 (132 N. W. 466), and cases there cited.

We note, also, as suggesting that the questions raised in this case may be somewhat academic at this time, that in denying defendants’ motion for a new trial on October 26, 1915, the trial judge states as one of his reasons for so doing: “The judgment has been fully satisfied by the defendants.”

The judgment is affirmed.

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


text:
    PEOPLE v. TURTON.
    1. Criminal Law — Cross-Examination—Evidence—Seduction.
    Chastity of the complaining witness in a seduction case must be shown to have existed at the time of the alleged offense. And a full cross-examination and searching inquiry into any matters which might directly, or indirectly, throw any light upon these questions and to tend to test the integrity of evidence offered by the prosecutrix, as to her reasons for yielding, frame of mind and mental processes, was a substantial right of the accused.

    2. Same — Witnesses.
    Where the prosecutrix is a young, inexperienced girl, the courts very. rightly hold that promises and means are sufficient which would not move one of mature years.
    3. Same — Pregnancy—Evidence.
    The reception of testimony that the prosecutrix was pregnant in March was incompetent in the light of other proofs of a medical expert that she was then not more than a month advanced and that it would be impossible that she could have been in such condition as a result of Intercourse at the time laid in the information, and its admission in connection with a charge submitting to the jury the question as an issue of fact, constituted prejudicial error.
    Exceptions before sentence from the recorder’s court of the city of Detroit; Connolly, J.
    Submitted June 15, 1916.
    (Docket No. 128.)
    Decided July 21, 1916.
    John Turton was convicted of seduction.
    Reversed.

      Grant Fellows, Attorney General, Charles H. Jasnowski, Prosecuting Attorney, and Paul W. Voorhies, Assistant Prosecuting Attorney, for the people.

      Charles T. Wilkins, for respondent.

      For authorities passing on the question of evidence of specific instances to prove character for chastity of complaining witness in prosecution for seduction, see note in 14 L. R. A. (N. S.) 727.

   Steere, J.

Respondent was convicted in the Detroit city recorder’s court, on September'16, 1915, of having, on December 17, 1914, seduced one Gladys Rickert, an unmarried woman, and the case has been removed to this court for review on exceptions before judgment.

Of the formidable number of assignments of error presented, we find but two which are regarded as calling for serious consideration. They involve alleged undue restriction upon cross-examination of the complaining witness and admission of testimony touching her claimed pregnancy. The prosecutrix, who was sole witness to establish the essential elements of the offense charged, testified, in part, that she was a divorced woman 21 years of age, was married December 21, 1913, and during her married life was- twice separated from her husband, who left her each time; that she filed a bill for divorce from him September 3, 1914, obtained a decree December 5, 1914, became engaged on December 13, 1914, to defendant, with whom she had kept steady company since October, and was seduced by him December 17, 1914, just twelve days after she had reverted to the status of an “unmarried woman” and her seduction made legally possible under the statute. Of the circumstances under which her acquaintance with defendant was formed, she testified that she first met him in a cigar store on the evening of October 8,1914, as she and a girl friend were returning from attending a show; that just as they were passing by the cigar store at the corner of Woodward and Jefferson avenues, in Detroit, a clerk in that store whose name she did not then know, and to whom she had never spoken, although she had before waved to him when passing by, motioned to them to come in, and on their complying he introduced himself and defendant to them by assumed names, as she later learned, after which the men asked them to wait, and they would take them home; that later, on defendant’s suggestion, they all went to the “café part of the Victoria Hotel,” which she described as “some out of the way place, back of the Victoria Hotel,” where there were stalls, in one of which drinks were served to them; that the cigar clerk, whose true name she learned was Chronister, was with the other girl, and she went with defendant, whose true name, as he told her that night, was Turton; that while there she drank a glass of beer and two lemonades, during which time she told defendant she was a married woman, and “would not go any place with him until after I had got my divorce,” although she stated in her direct examination “we had ‘been keeping steady company since October.” The foregoing statements are culled from her testimony only for their bearing upon defendant’s right to a sifting cross-examination, and not as fairly representative of the whole nor as indication of an opinion on the merits of the prosecution. Her account of the event which gave rise to this prosecution is as follows:

“We were home alone that evening, we were sitting on the davenport, planning about getting married, and Mr. Turton asked me to have intercourse with him, I did not want to, and he says, ‘Well,’ he says, ‘you might as well; we are going to be married soon; no one will ever know, the difference.’ There wasn’t nobody else at home then beside myself and the defendant. I allowed him to have intercourse with me.
“Q. Why?
“A. On the promise of marriage. * * * That was the only reason that actuated me in allowing him to have intercourse with me. That was on December 17, 1914.”

This court has several times held that the offense charged here is not committed unless the woman was chaste at the time of the alleged seduction. Greenman v. O’Riley, 144 Mich. 534 (108 N. W. 421, 115 Am. St. Rep. 466). To constitute the offense defendant must not only be shown to have had carnal intercourse with the prosecutrix, but her assent must have been obtained by an inducement or promise made at the time which overcame her natural sentiments of modesty, purity, and virtue, and without which promise she would not have consented; the promise and surrendering her chastity in consequence thereof being the gist of the offense. People v. De Fore, 64 Mich. 693, 699 (31 N. W. 585, 8 Am. St. Rep. 683). Both prosecutrix’s veracity and virtue were vital questions in the case. A full cross-examination and searching inquiry into any matters which might directly or indirectly throw any light upon those questions and tend to test the integrity of her testimonial assertions as to her reasons for yielding, fráme of mind, and mental processes in that connection was a substantial right. To that end and as bearing upon her previous manner of life, knowledge, and worldly experience in the relation of the sexes, defendant’s counsel sought in cross-examination, but was not permitted, to interrogate her as to her relations with her former husband, the facts relating to her obtaining a divorce from him and the allegations in her sworn bill of complaint for divorce. As bearing upon such an inquiry in a case where the age and experience of complainant are as indicated .here, the following reflections in People v. Smith, 132 Mich. 58 (92 N. W. 776), appear pertinent:

“Where the woman is a young, inexperienced girl, the courts very properly hold that promises and means are sufflcient which would not move a woman of mature years. * * * The complaining witness in this case, however, was not a young and inexperienced girl. She was nearly 20 years of age, and, it is apparent, knew quite well the consequences of her act.”

In this peculiar class of cases, which, as a rule, necessarily turn on the testimony of the woman claimed to have been seduced, the right to test the probability of her story, her character, and willingness to fairly tell the truth, by a searching cross-examination is universally recognized. The proposed inquiry should have been allowed. Its denial unduly, and we thinji prejudicially, restricted defendant’s substantial and important right, through his counsel, to a full cross-examination of the accusing witness.

The complaining witness was asked in her direct examination if she was then pregnant, and permitted to answer that she was. The question was timely objected to as incompetent and having no bearing on the case “unless it is the result of the intercourse alleged in this information.” In overruling this objection the court said:

“She has testified that there was not any other man who had intercourse with her from December 14, 1914.”

In this the court was laboring under a misapprehension, arising, perhaps, from her statement that prior to the time of her alleged seduction on December 17, 1914, she did not have intercourse with any other man except her husband. The record discloses no testimony by her as to whether she did or did not have intercourse with any man after December 17, 1914, beyond the inference from her statement that she was seven months advanced in pregnancy. A physician who had examined her some time in March, 1915, was permitted to testify, over objection, that she was then pregnant, about a month advanced according to his diagnosis ; that it had resulted from ap intercourse during the preceding month, and would not be the result of an intercourse in December, 1914. Both his and her testimony touching the subject make clear that her alleged pregnancy did not result from the intercourse of December 17,1914, alleged-in the information. This testimony as to pregnancy was wholly incompetent to prove a seduction during an intercourse which took place long before that by which she became pregnant, and was clearly inadmissible. People v. Payne, 131 Mich. 476 (91 N. W. 739). It, however, wrought into the evidence and impressed upon the jury the features of a prospective bastardy case, inferentially against defendant, upon a trial for seduction which, almost inevitably, prejudicially led to a confusion of issues. Although the offense charged was properly defined to the jury by the court, and they were told the complaining witness’ pregnancy was not the issue, yet in denying, after reading to the jury, defendant’s request to charge that there was no proof the complaining witness was pregnant by reason of the intercourse charged in the information, the court clouded the issue by saying:

“I leave that as a question of fact for you to determine, gentlemen of the jury.”

For the foregoing reasons, we conclude the verdict must be set aside, and a new trial granted.

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


author: Brooke, J.

text:
    FORD v. KALAMAZOO CIRCUIT JUDGE.
    Corporations — Criminal Law — Fraudulent Sale op Stock — Statutes — Insolvency—Notice.
    Where respondents, the owners of all the common stock of a Michigan corporation, voted to increase the capital stock from $300,000 to $500,000 by issuing $200,000 of preferred stock, of which there was sold to other parties $30,780, and respondents subscribed for the balance, paying therefor partly by cash and partly by giving individual notes, which were paid or liquidated about two years later by a special cash dividend which was declared on the common stock, and it was not shown or admitted that, at the time the issue of preferred stock was authorized by the corporation, it was insolvent, or, if such was the fact, that respondents knew of such condition, no offense under section 14872, 5 How. Stat. (2d Ed.), 3 Comp. Laws 1915, § 150S0, entitled, “An act to prevent the issue and sale of fraudulent stock by incorporated companies,” was committed.

    Mandamus by Frank F. Ford, prosecuting attorney for Kalamazoo county, against Walter H. North, presiding as judge in the Kalamazoo circuit, requiring respondent to vacate and set aside an order quashing an indictment against M. Henry Lane, Frank B. Lay, Sr., and Victor L. Palmer, jointly charging said respondents with the offense of fraudulently issuing stock of a Michigan corporation, under section 14872, 5 How. Stat. (2d Ed.).
    Submitted June 23, 1916.
    (Calendar No. 27,170.)
    Writ denied July 21, 1916.

      Frank F. Ford, Prosecuting Attorney, in pro. per. (Charles W. Nichols, of counsel), for plaintiff.

      Alfred J. Mills, for defendant.

      As to liability of corporation for fraud or forgery of its officers in the issue of its stock, see notes in 19 L. R. A. (N. S.) 331 and 41 L. R. A. (N. S.) 187.

   Brooke, J.

This is an application for a writ of mnadamus, requiring the circuit judge for Kalamazoo county to vacate and set aside an order, by the terms of which an indictment against one Frank B. Lay, Sr., was quashed. It appears that said Lay, together with M. Henry Lane and Victor L. Palmer, was jointly indicted under section 14872, 5 How. Stat. (2d Ed.) (3 Comp. Laws 1915, § 15080). The title and first section' of said act follow:

“An act to prevent the issue and sale of fraudulent stock by incorporated companies. .
“Section 1. The people of the State of Michigan enact, Any person or persons who shall fraudulently issue or cause to be issued, any stock, scrip, or evidence of debt, of any bank, insurance, mining, plank, or other incorporated company of this State, or who shall sell or offer for sale, hypothecate, or otherwise dispose of any such stock, scrip, or other evidence of debt, knowing the same to be so fraudulently issued, shall be deemed guilty of a felony, and on conviction thereof shall be punished by imprisonment in the State prison not more than ten nor less than one year.”

The first count in the indictment is as follows:

“The grand jurors for the people of the State of Michigan in and for said county of Kalamazoo inquiring in and for the body of said county upon their oaths do present: That heretofore, to wit, on the 2d day of October, 1909, at, to wit, the city and county of Kalamazoo and State of Michigan, M. Henry Lane, Frank B. Lay, Sr., and Victor L. Palmer, late of the city and county of Kalamazoo and State of Michigan, being then and there officers and directors and solev stockholders of the Michigan Buggy Company, a corporation incorporated under the laws of the State of Michigan, did feloniously and fraudulently issue, and cause to be issued, to Harold W. Pomeroy, 20 shares of the preferred stock of the said Michigan Buggy Company, a corporation then and there incorporated under the laws of the State of Michigan and having its principal place of business at the city and county of Kalamazoo, State of Michigan, of the par value of $200, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.”

There were 31 other counts in the indictment identical with the first count, except as to the date of the issuing of the certificates, the persons to whom issued, and the amount of the stock. A motion to quash said indictment was made upon the following grounds:

“(a) That the title of the act upon which said indictment is based is insufficient, and said statute is unconstitutional and void.
“(5) Because said indictment charges no crime under said statute, and does not advise the respondent of the supposed criminal charges, which he is required to meet.
“(c) For the several reasons set forth in plea in abatement numbered seven (7) pleaded to said indictment.”

In his opinion granting the motion to quash, the learned circuit judge said:

“At the time of hearing this motion to quash it was agreed between counsel in open court that the facts which the people expect to prove, and which the prosecutor contends constitute the charge made, are as follows :
“That on or about the 14th day of September, 1909, the defendants, Frank B. Lay, Sr., M. Henry Lane, and Victor L. Palmer, who at that time were the owners of all the common'stock of the Michigan Buggy Company, a Michigan corporation, unanimously voted to increase the capital stock from $300,000 to $500,000 by issuing $200,000 of preferred stock. No question is raised as to the legality of the corporate proceedings in authorizing this issue of preferred stock. Between the date of September 14, 1909, and November 19, 1909, there had been sold and paid for in cash to parties other than those above named $30,780, of this issue of preferred stock. The record of these sales and the transferring of the stock, as well as of all other sales and transfers that had to do with this issue, was in the hands of the Kalamazoo Savings Bank, which acted as register and transfer agent of the sales of said stock.
“The sales above mentioned were doubtless to a greater or less extent consummated in consequence of the issuing and circulating of a prospectus relative to the sale of this preferred stock. In this prospectus it was stated that the purpose of the issue of the preferred stock was to enable the company to enter into the manufacture of automobiles, and that the proceeds of the issue were to be used in the equipment of the automobile manufacturing department and general business and that such investment would show an increase in the earnings, and that the proceeds of the sale of the stock were to be used in a manner that would give a corresponding increase in the assets of the company.
“On November 19,1909, the defendants in this cause subscribed for $150,000 of this issue of preferred stock. Of this amount Victor L. Palmer subscribed for $9,000 and paid for the same in cash. The other two defendants subscribed for $28,000, which was paid for by them in cash, and also for the further amount of $113,000, for which they gave their individual notes, the amount due from the defendant Frank B. Lay, Sr., on his note incident to such transaction being $54,500. Later on, and on or about the 30th day of December, 1909, the defendants Frank B. Lay, Sr., and M. Henry Lane subscribed for the. remaining portion of said $200,000 of preferred stock, which amounted at that time to $19,220 par value. Said defendants paid for this subscription in cash, which they borrowed on their personal notes from the Kalamazoo National Bank.
“From the foregoing transaction there was passed to the credit of the Michigan Buggy Company the sum of $87,000, and the company had the notes of the defendants Lane and Lay for $113,000. Interest was paid on these notes by the maker from time to time, and on the 16th day of December, 1911, a special cash dividend was declared by the defendants on the common stock of said Michigan Buggy Company, they still being the owners of all the common stock. The notes which Lane and Lay had givén for the issue of the preferred stock in the principal sum of $113,000 were paid, or liquidated by this special dividend which was due to them from their common stock. Pending the payment of these notes the stock for which the defendants Lane and Lay had given the same was retained in the hands of the Kalamazoo Savings Bank, and in fact was not detached from the stubs in the stock book. Some portions of the stock for which the defendants Lane and Lay subscribed were made out in the names of third parties, and without the knowledge or consent of such parties; and some of this stock was sold to third parties, in which event the cash received therefor was in the first instance credited by the bank to the Michigan Buggy Company, and thereafter the defendants Lane and Lay received the Michigan Buggy Company’s check therefor.
“The defendant Frank B. Lay, Sr., takes the position that if all the above facts are established, still it would not be proven that he had committed an offense within the statute under which this prosecution is brought. Doubtless if we were to adhere to the strict rules of practice, this, question would not necessarily be passed upon at this time; but the parties to this cause agree that this is the important question with which they are confronted, and likewise it is one which might easily have been raised and passed upon at this time if the offense had been charged in the indictment in the manner in which defendant claims that it should have been charged; and these agreed facts have practically been made the basis of the argument heard upon and the disposition of the reason marked ‘5’ and assigned in support of the motion to quash.
“It seems to me that it would be a great advantage to both the people and to the defendant to have it determined at this time whether or not the agreed facts hereinbefore stated constitute an offense which is indictable under the statute cited. Section 15127, 5 How. Stat. (2d Ed.) (3 Comp. Laws 1915, § 15828) provides that:
“ ‘Whenever two or more persons shall be Included in the same indictment, and it shall appear that there is not sufficient evidence to put any defendant on his defense, it shall be the duty of the court to order such defendant to be discharged from such indictment, before the evidence shall.be deemed to be closed.’
“This section, evidently contemplates the discharge of the defendant after the trial is actually in progress, but since in the case at bar the material facts are agreed upon for the purpose of this motion, there is as much, or more, reason for making a ruling at this time which will obviate the delay and expense incident to the trial if it is to be determined that the agreed facts do not constitute the offense sought to be charged in this indictment.
“I have given the motion to quash careful consideration, and while I do not find the act is unconstitutional, I do find that the motion should be granted and the indictment should be quashed because no crime is charged under the statute, and because the respondent is hot advised of what particular acts he is charged with which are claimed by the people to constitute the criminal offense sought to be set forth in the indictment, and, further, that said motion to quash should be granted for the reason that if the agreed facts hereinbefore recited were established beyond a reasonable doubt, still the defendant would have to be released from custody because such facts do not constitute the commission of a crime in violation of section 14872, 5 How. Stat. (2d Ed.) (3 Comp. Laws 1915, § 15080.)”

With reference to the first ground urged, it is said that the statute is unconstitutional for the reason that it offends that constitutional provision that (Art. 5, § 21):

“No law shall embrace more than one object, which shall be expressed in its title.”

The argument is made that the title gives notice of an act prohibiting the sale of fraudulent stock by incorporated companies, whereas, the body of section 1 does not deal with incorporated companies, but refers only to natural persons. In the light of what we have to say later touching the second point raised, we find it unnecessary to pass upon the constitutionality of the act.

Assuming the statute to be valid, counsel for respondent insists that - the indictment does not conform thereto, and charges no offense thereuntjer. In argument it is admitted by counsel for respondent that when a statute creates an offense and sets out the facts which constitute it, the offense may be sufficiently charged in an indictment in the language of the statute, as has been recently held by this court (People v. Glazier, 159 Mich. 528 [124 N. W. 582]; People v. Driessen, 178 Mich. 118 [144 N. W. 526]), but it is claimed that in the case at bar the statute does not sufficiently set out the facts which constitute the offense to enable a respondent to know with what he is charged and to prepare his defense thereto. It is pointed out that the indictment is silent as to the date of the corporate action taken by the company to authorize the issue of the preferred stock, and that no allegation is made that the preferred stock of the company was fraudulent or spurious. These ■ considerations evidently led the learned circuit judge, who heard the motion before the court, to hold that no crime was charged under the statute.

It is unnecessary to determine whether he was right or wrong in so holding, for the reason that under the stipulated facts contained in the judge’s opinion, we are unable to see how respondent could have been properly convicted of an offense under the statute.

It is not shown that, at the time the issue of preferred stock was authorized by the corporation, the corporation was insolvent, or even in financial difficulties, and it is not intimated that, even if such was the fact, the respondent knew of such condition. The course of dealing followed by the respondent and his associates with reference to the preferred stock points strongly to another conclusion. They bought and paid for in cash many thousands of dollars worth, of this stock, and the purchase price was covered into the treasury of the company. The mere fact that the company declared a dividend upon the common stock which respondent used to retire the note he had given to the corporation in part payment for his purchase of preferred stock seems to be without probative value. If such cash dividend upon the common stock had been declared by the officers of the corporation at a time when they knew that the corporation was insolvent, or not in a financial condition reasonably able to pay such dividend, a different question would be presented, but under the agreed statement of facts no such situation appears.

We agree with the learned circuit judge that if the people were able to prove beyond reasonable doubt all the facts set forth in the agreed statement of facts, they would fall short of proving an offense under the statute, and that upon the receipt of such proof the court would be obliged to direct the acquittal of respondent. Under such circumstances, it would be idle to proceed to trial.

The order quashing the indictment is affirmed.

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


text:
    MALLOY v. GRAND TRUNK RAILWAY CO. OF CANADA.
    1. Pikes — Locomotives—Railroads—Directed Verdict.
    In an action for the negligent burning of plaintiff’s barn, alleged to have been caused by a spark from defendant’s locomotive, evidence examined, and held, that it could not be said, as a matter of law, there was no testimony that a cinder from a particular engine caused the fire.

      2. Same — Pleading—Time—Variance.
    In such action, while. the declaration must allege a specific time, and must prove it as alleged, yet the rule must be applied with reasonable limitation; and a variation of an hour between the averment and the proofs was not fatal, particularly where the defendant, from the averment, was able to meet the proofs made by plaintiff.

    3. Same — Evidence—Great Weight of Evidence.
    While the evidence in the case, both upon the question of setting the fire and the condition of the engine, was such' as to raise a question of fact for the jury, where the evidence showed that the barn was located at a comparatively great distance from the track, that there had been frequent showers the day prior to the fire, that no other fir.es had been set-in the vicinity, and that the engine in question had never before been charged with setting fire, arid the evidence was very convincing that the engine was in a good state of repair on the morning the fire was set, a verdict for plaintiff should have been set aside because it was contrary to the great weight of the evidence, on defendant’s motion for a new trial. Ostrander, Bird, and Moore, JJ., dissenting.
    Error to Bay; Collins, J.
    Submitted June 8, 1916.
    (Docket No. 31.)
    Decided July 21, 1916.
    Case by James W. Malloy against the Grand Trunk Railway Company of Canada, a foreign corporation, for the negligent burning of plaintiffs barn. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Harrison Geer (William K. Williams, of counsel), for appellant.

      Gilbert W. Hand, for appellee.
    The plaintiff was the owner of a barn situated 250 feet east of the right of way of defendant railway company’s track, about midway between Saginaw and Bay City. This barn was destroyed by a fire between 8 and 10 o’clock in the forenoon of October 11, 1914. The declaration charges that the fire was set by a passing engine of the defendant company at about the hours of 8 o’clock a. m. It further charges that said engine was not in good order, and was improperly managed while passing said barn. The action is brought under section 6295, 2 Comp. Laws (2 Comp. Laws 1915, § 8305).
    Plaintiff’s first witness, Schaefer, fixed the time that the train passed as “8 o’clock, between 8 and 9, somewhere along there,” and identified it as a freight train. He testified that he saw the barn on fire at a point near the peak, and near the cupola on the roof, about 10 or 15 minutes after the train passed. On cross-examination he expressed the opinion that when he saw the train go by it was nearer 8 than 9 o’clock.
    Plaintiff’s next witness, Joseph Brandimore, identified the passing train as a freight train, and fixed the time of its passage at about 8 o’clock. He noticed the fire 15 or 20 minutes after the train passed, on the roof at the southwest corner. On cross-examination he said the time was around 8 o’clock; that it might have been a quarter after 8, but could not have been as late as naif-past 8. He said the train passed before 9 o’clock; that he could not be mistaken about that— “it was between 8 and 9.”
    Plaintiff’s next witness, Edward Brandimore, saw the train go by “about 8 or a quarter after 8, between 8 and 9 o’clock anyway,” and noticed the fire 10 or 15 minutes later. On cross-examination he said, “I know she was a freight.”
    Benjamin Trombley positively identified the passing train as a freight train, and, without giving the hour of its passage, said that he discovered the fire about 15 minutes after the train passed, on the peak of the roof.

      Richard Trombley, in rebuttal, testified that he saw the train pass, believed it to be a freight, and fixed the time as shortly after’ 8 o’clock — “I would say it was between 8 and half past 9” — and observed the fire which started in the cornice and went up the roof.
    On behalf of defendant the train sheet for October 11th was introduced in evidence, and it was shown that the only freight train passing north over defendant’s line at that point on the forenoon of October 11th left Durand at 1:30 a. m. and arrived at Bay City at 4:30 a. m.; that the only other train running north over defendant’s line in the forenoon of said day was a passenger train which left Durand at 7:12 a. m., left Saginaw at 8:50 a. m., and arrived at Bay City at 9:51 a. m. This passenger train, according to the testimony of the engineer who operated the engine which hauled it, passed the barn, which was burned, later than 9:15 a. m., perhaps 9:30 or 9:35 a. m. Defendant produced further testimony from its records, and the man who made them, tending to show that the fire netting in engine No. 2248, which was the engine passing the barn on the morning in question, was renewed on September 7, 1914, and that all of its equipment for arresting sparks was on that date in good repair. The evidence of defendant’s inspector was introduced, and this witness, testifying from his records, said that he inspected engine No. 2248 on the 27th day of September, 1914, and found everything in first-class condition.
    Witnesses for both plaintiff and defendant testified that an engine, properly equipped and properly managed, would not throw sparks containing sufficient vitality to cause fire a distance of more than from 50 to 70 feet.
    The record discloses the fact that in the vicinity of the fire there had been five showers during the 10th of October. It further appears that from the track to the barn, a distance of 250 feet, the ground was covered with dead grass, which was untouched by fire. At the time of the fire the wind was blowing from the southwest with a velocity of about 20 miles per hour.
    On behalf of the defendant it was shown that the country In the vicinity of the barn was frequented by parties for the purposes of fishing and hunting, and that the doors of the barn which was destroyed had at times been found open.
    At the close of the testimony defendant made a motion for a directed verdict on the ground that plaintiff’s testimony amounted to no more than a showing that the engine might have set the fire, and that it failed to negative other causes which might have produced the conflagration. This motion was denied, and the case was submitted to the jury under a charge which, in our opinion, was fair, if the case should have gone to the jury at all. The jury returned a verdict in favor of the plaintiff in the sum of $1,186.75.

        As to effect of variance between allegation and proof as to time, in an action against a railroad comnany for setting fire, see note' in 441 L. R. A. (N. S.) 635.

   Brooke, J.

(after stating the facts). The first and second propositions argued by counsel for defendant are the following i

“(1) The trial judge erred in refusing to direct a verdict for defendant, for the reason that plaintiff failed to sustain the burden of proof of showing that the fire was set by one of defendant’s locomotives as alleged in the declaration.
“(2) Time in a case of this nature is material and must be proved as alleged.”

It is said in argument that this court has held in several cases that while it is not necessary for the plaintiff to show by eyewitnesses that the fire was set by a particular engine of defendant, it is necessary for the plaintiff to produce evidence which would reasonably lead an inquiring and unbiased mind to the conclusion that a cinder from a particular engine caused the fire. Clark v. Railway Co., 149 Mich. 400 (112 N. W. 1121, 12 Am. & Eng. Ann. Cas. 559); Hewitt v. Railway Co., 171 Mich. 211 (137 N. W. 66, 41 L. R. A. [N. S.] 635); Beach v. Railway Co., 190 Mich. 592 (157 N. W. 285).

Referring to the facts, we find that several witnesses testified that the fire started at or near the peak of’the roof of that portion of the barn situated nearest the railroad track. It also appears that none of the witnesses who saw the fire saw any person emerge from the barn at or after the time of its discovery. Under these conditions we do not think it can be said, as a matter of law, there was no testimony which would reasonably lead “an inquiring and unbiased mind to the conclusion that a cinder from a particular engine caused the fire.”

But it is said that the evidence is uncontradicted as to the time of the fire, which plaintiff’s witnesses fixed between 8 and 9 o’clock, and a witness on behalf of defendant with certainty at 8:30 o’clock. It is further urged that, inasmuch as the passenger train did not pass the barn until after 9:15 a. m., and as that train was the only train which passed the barn, it was a physical impossibility that it should have emitted the spark which caused the fire. In this argument defendant overlooks the fact that several of the witnesses for plaintiff testified positively that the fire was discovered a few minutes after the passage of the train. The fact that they fixed the time of its passage at between 8 and 9 o’clock instead of 15 or 30 minutes later is, we think, of no very great consequence. Defendant claims that plaintiff is bound to allege a specific time in his declaration, and that such time should be proved as alleged, citing Hewitt v. Railway Co., 171 Mich. 211 (137 N. W. 66, 41 L. R. A. [N. S.] 635). An examination of that case will show that it is not controlling. That the declaration must allege a specific time, and must prove it as alleged, is true, but this rule must be applied with reasonable limitation. The purpose of the pleading is to enable the defendant to prepare his defense. A variation of an hour between the averment of a declaration and the proofs is not fatal, particularly where, as in the case at bar, the defendant, from the averment, is able to meet the proofs made by the plaintiff thereunder.-

.It is the claim of defendant that, having shown by reputable and uncontroverted evidence that the spark arrester in the engine in question, as well as all its other appliances, was in good condition, and such as good railroading requires under the statute, and, further, that the engine at the time it passed the barn was properly managed, a verdict should have been directed in its favor, under the authority of Dolph v. Railroad Co., 149 Mich. 278 (112 N. W. 981); Clark v. Railway Co., 149 Mich. 400 (112 N. W. 1121, 12 Am. & Eng. Ann. Cas. 559); Penn. Fire Ins. Co. v. Railroad Co., 184 Mich. 375 (151 N. W. 578). In the Dolph Case the building burned was located 80 feet from the track, ,and it was there said:

“And it was a conceded fact that all properly constructed engines will sometimes emit fire”

—and it was held that the statute does not make it an. issue of fact that must, under all circumstances, be left to the jury. In the case at bar we have testimony to the effect that an engine in good repair and properly managed will not emit sparks containing sufficient vitality to cause fire at a distance of more than from 50 to 80 feet. We have further testimony as follows:

“Q. The fact that a spark carries more than 50 to 60 feet means what with reference to the condition of the engine?
“A. Well, it would mean that if the conditions of the ground where they light, that they would be liable to set something on fire.
“Q. You say a spark will carry 65 feet in an engine in good order. If it carries 200 feet, what does that show with reference to the'netting in the engine?
“A. If it carried 250 feet, it would have to be some help to carry it that far.
“Q. There would have to be a hole in the netting?
“A. There would have to be some wind to carry it that distance.
“Q. With the netting or fire-arresting devices defective, would there be any limit to the distance that the fire would carry?
“A. I don’t think there would.
“Q. That is, on an engine with defective devices for arresting sparks the sparks might carry how far?
“A. That is hard to tell; I couldn’t say.
“Q. State whether or not they carry much farther than 80 feet.
“A. Yes; they would.”

And also the following:

“Q. If an engine has a defective screen or defective spark-arresting device, state whether or not there is any limit to the distance that the sparks will fly, any reasonable limit.
“A. Well, as far as a limit is concerned, I could not place a limit upon the distance they would go. They may carry under a heavy wind farther than — farther at different times.
“Q. State whether or not they would carry a distance of 200 feet.
“A. With a defective spark-arresting device in the front end of a locomotive I should say that they would carry 200 feet with a strong wind, a medium wind.
“Q. Would it carry that far and set a fire?
“A. I should think so. I have known them to do so.
“Q. If an engine had holes in the screen, state whether or not they would carry as far as 250 feet.
“A. With a heavy wind I should judge they would.”

We are unable to say in^this case, as was said in the Dolph Case, that no question of fact was presented for the determination of the jury as to whether the engine and its appliances were in proper condition. The case upon this point falls within the reasoning of the Pennsylvania Fire Ins. Co. v. Railroad Co., 184 Mich. 375 (151 N. W. 578), and the cases therein cited.

The third and last point argued by counsel for defendant is that the court erred in denying a‘motion for new trial, on the ground that' the verdict was against the great weight of evidence. While the evidence in the case, both upon the question of setting the fire and the condition of the engine, is such as to raise a question of fact for the determination of the jury, we are of opinion that the verdict should have been set aside by the trial judge because it was contrary to the great weight of evidence. We are led to this conclusion by a consideration of the following facts: The barn was located at a comparatively great distance from the railway track; there had been frequent showers the day prior to the fire; no other fires had been set in the vicinity, and the engine in question had never before been charged with setting fire. The evidence as to the state of repair and condition of the engine on the morning the fire was set was very full and convincing.

From a careful examination of the entire record, we have concluded that a motion for a new trial should have been granted. Brown v. Railroad Co., 183 Mich. 574 (149 N. W. 1031).

Judgment reversed.

Stone, C. J., and Kuhn, Steere, and Person, JJ., concurred with Brooke, J.

Moore, J. I think the case should be affirmed.

Ostrander and Bird, JJ., concurred with Moore, J.


author: BROOKE, J.

text:
    YOUNG v. HILSENDEGEN.
    Sams — Peima Facie Case — Evidence—Directed Verdict.
    In an action for goods sold and delivered, testimony by plaintiff that defendant admitted the account In the justice's court," that monthly statements had been sent to the defendant, who paid no attention to them, that in a telephone conversation defendant said he wished he owed plaintiff twice as much, and that the goods were actually delivered, made a prima facie case justifying a directed verdict for plaintiff, where no defense was made.
    Error to Wayne; Barton, J., presiding.
    Submitted June 26, 1916.
    (Docket No. 52.)
    Decided July 21, 1916.
    Assumpsit by Matthew A. Young against George J. Hilsendegen in justice’s court for goods sold and delivered. From a judgment for plaintiff defendant appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      William, G. Fitzpatrick (William, G. Weber, of counsel), for appellant.

      Barbour, Field & Martin, for appellee.
    This action is brought to recover the price of certain automobile supplies which the plaintiff claims he sold the defendant during August, 1914. Suit was commenced in justice’s court by oral pleadings, and judgment was given the plaintiff in the sum of $209.50. The defendant appealed to the circuit court, where plaintiff again prevailed. At the trial in the circuit court the plaintiff, who was the only witness sworn on the trial, testified that, after sending defendant several monthly statements of the amount owed by him, he (the plaintiff) called the defendant up by telephone, asking him if he got his mail at the office, to which defendant replied that he did; that plaintiff said he thought probably he did not, as he had not paid any attention to the account, and plaintiff stated that the defendant thereupon said, “I only wished I owed you twice as much”; that the defendant never disputed the account, and admitted it in the justice’s court; that he knew that the goods were delivered to the defendant.
    At the close of plaintiff’s case the defendant requested the trial judge to direct a verdict for the defendant, and before the motion was passed upon the plaintiff stated that he had further proofs to offer, if necessary. The court overruled the motion, to which defendant’s counsel excepted, and stated that he had no defense to offer. The plaintiff thereupon moved for a directed verdict, which motion was granted.
   BROOKE, J.

(after stating the facts). The single question before us raised by the assignments of error seems to be as to the sufficiency of plaintiff’s prima facie case. It is the contention of the defendant’s counsel that the plaintiff failed to make out his case by either proper or sufficient evidence. To this we' cannot agree. Taking into consideration plaintiff’s testimony that the defendant admitted the account in the justice’s court; that, although monthly statements had been sent to the defendant for several months, no attention had been paid to them by the defendant; the fact that in the telephone conversation in referring to the account the defendant said, *T only wished I owed yoü twice as much”; and the testimony of the plaintiff that the goods were actually delivered, we are of the opinion that a prima facie case was made. See 31 Cyc. p. 1172; Rossman v. Bock, 97 Mich. 430 (56 N. W. 777); Pabst Brewing Co. v. Lueders, 107 Mich. 41 (64 N. W. 872).

The judgment is affirmed.

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


text:
    PEOPLE v. SMITH.
    1. Criminal Law — Statutory Rape — Instructions.
    In a prosecution for statutory rape, it was not error for the court to refuse to give respondent’s request to charge as to penetration and reasonable doubt, where every element contained in the 'request was fully covered by the general charge.
    2. Appeal and Error — Trial—Saving Questions for Review.
    Where, in such prosecution, the court permitted the jury to return into court and have the stenographer read all the testimony of the prosecuting witness, without haying submitted also the testimony of the respondent, who made no request to have his testimony read, and where no exception was taken to the action of the court, no question is presented to this court for review.
    S. Criminal Law — Appeal and Error.
    Where the trial court submitted the disputed question of fact to the jury under a charge extremely full and fair to the respondent, and this court is unable to discover any error in the trial, it cannot disturb the verdict for conviction, notwithstanding the improbability of the story told by the complaining witness.

      Exceptions before sentence from Charlevoix; Mayne, J.
    Submitted June 15, 1916.
    (Docket No. 130.)
    Decided July 21, 1916.
    Glenn Smith was convicted of statutory rape.
    Affirmed.

      Rollie L. Lewis, Prosecuting Attorney, for the people.

      Harris & Ruegsegger, for respondent.
   Brooke, J.

Respondent was convicted of having committed the crime of statutory rape upon the person of one Pauline Cutter, who was 14 years of age at the time of the commission of the alleged offense. Upon the trial the girl, Pauline, testified in part as follows:

“When I got over to Glenn Smith’s, I went into the house and sat down and read there. George Goodrich came in and built the fire for dinner. Then George went out of doors. I was on the lounge in the front room. George was out by the woodpile fixing a bicycle. Then Glenn came in and sat down in a chair there, talking with me about the dance the night before. Then he came over and laid down beside me on the couch. Then he got on top of me and pulled up my clothes. I was pulling them down with one hand. He was holding onto the other hand. Then we had sexual intercourse. I resisted. I tried to get out. After we had this sexual intercourse, he got up off me and went out of doors, and I got up and went into the dining room. Then George Goodrich came in and put the dinner on. We ate dinner and I went to school in the afternoon. Glenn came in to dinner with us.”

Respondent was a young man 25 years of age. He went upon the stand in his own defense, and flatly denied having had carnal knowledge of the girl, Pauline, or at any time having taken indecent liberties with her person. He was able to produce some evidence tending to corroborate his statement that, at the time when the offense is alleged to have been commit-ed, he was asleep upstairs in the house in which the witness Pauline claimed to have been ravished; he likewise produced several neighbors who had known him for many years who testified to his previous good character. The testimony of the girl Pauline stands absolutely without support in the record.

The first three assignments of error relate to rulings of the court relative to the admission or exclusion of evidence. Though touched upon in the brief, they were not discussed in the oral argument, and we think them without merit.

The first assignment refers to the overruling of the respondent’s objection to the question: “Did Glenn put his arms around you and kiss you that night?” After some hesitation and repeated questioning, an answer in the affirmative was elicited from the witness. It is urged that the course of examination indicates that the witness was intimidated and therefore gave the answer desired by the prosecutor. The whole matter becomes insignificant in the light of the evidence given by respondent, who frankly testified that, as the brother of the foster mother of the girl Pauline he had frequently kissed her.

The fourth assignment relates to the refusal of the court to grant the following request:

“Before you can find the defendant guilty of rape you must be satisfied beyond a reasonable doubt that the private, male organ of the defendant penetrated the private part of Pauline Cutter at the time and place she has described; and I charge you that the only evidence of such penetration is her testimony that she then and there had sexual intercourse*with the defendant; and, while the term ‘sexual intercourse,’ as commonly used, includes penetration and copulation, yet you must be satisfied beyond a reasonable doubt that this witness, when she used the term, used it with full knowledge of its real significance; and in determining her knowledge and understanding of the term, you must consider her age, environment, and education, and the fact that she had advanced only to the seventh grade in the rural public schools, to decide whether or not she meant by the use of this term that the private, male organ of the defendant entered her private part. And unless you find that by the use of this term she meant that there was actual penetration as I have described, then,' under the evidence in this case, you cannot find the defendant guilty of rape.”

In lieu of granting the request as presented, the court charged the jury as follows:

“I will now charge you in relation to the term ‘sexual intercourse’ used by the complaining witness. She says she is a girl of 14 years of age at this time — she claims she will be 15 in March next. She made use of the term sexual intercourse — described the offense as taking place as an act of sexual intercourse. Witnesses are usually presumed to know the English language, the use and significance of common terms and phrases, to understand them, and make use of them as they are generally and commonly understood; and yet it is always a question Of fact for the jury to determine, when phrases and terms are used, whether the witness did, in fact, know and understand the terms as they are' ordinarily used. And in this case it is for you to consider whether the girl Pauline Cutter actually did know and make use of the term in its usual and ordinary meaning and significance. In rape it is necessary that there should be penetration, that the male sexual organ should actually enter, penetrate the female organ; this is the sexual offense charged, and that is what is meant, ordinarily, by the term sexual intercourse — the penetration of the female or sex organ by the male organ or sex organ of the man, and in rape as it was formerly understood there must be emission. These two things must concur, but, in the offense charged here, under this statute it is necessary that there should be penetration of the female organ by the male organ to constitute the offense as charged —of rape — and that is what is ordinarily meant by the term intercourse, sexual intercourse, and in this case it is for you to say, considering the age of the witness, her education, her bringing up to this time, her environment or surroundings, it is for you to say when, on the witness stand, she testified that she had sexual intercourse with Glenn Smith on the 7th day of September last — it is for you to say whether there was actual penetration; as, under the- statute, to make out the claim of rape there must have been penetration as I have made use of the term, the entering of the female sex organ by the male sex organ. Penetration is all that is necessary to show in order to constitute this offense. The girl, Pauline, has been before you, you have heard her testimony, you have been able to ascertain and determine her degree of intelligence and her use of the words and phrases in the English language; it is for you to say whether, when she made use of the term, sexual intercourse, she meant such a use of the term as is generally understood by the use of that phrase as I have defined it. If she did, then you should consider that she meant to make use of that phrase in its full significance; if she did not so make use of the term sexual intercourse, then there is absolutely no testimony in this case that the respondent is guilty of the offense charged. If, when she made use of the term sexual intercourse, she understood the term and used it in its ordinary significance, then there is testimony in the case from which you might find the respondent guilty in connection with the other testimony in the case, if you believe it.”

It is strenuously urged on behalf of the respondent that the instruction as given did not cover the request, because it failed to instruct the jury that they must find beyond reasonable doubt that there had been “penetration.” A reading of the charge shows that. the court very carefully instructed the jury as to the necessary ingredients of the crime charged, as well as to the presumption of innocence, and as to what constituted reasonable doubt. We are of the opinion that every element cdntained in this request, conceding it to have been proper, was fully coveréd by the general charge.

The fifth assignment is not discussed.

The sixth assignment is based upon the action of the court in permitting the jury, after retiring, to return to court and have the stenographer read all the testimony of the witness, Pauline Cutter, without having submitted also the testimony of the respondent. The record discloses that the testimony of this witness was read by order of the court at the request of the jury, that no request was made on behalf of the respondent to have his testimony read to the jury, and that no objection was made or exception taken to the action of the court.

The seventh assignment of error relates to the same matter as the fourth and has been sufficiently discussed thereunder.

The eighth assignment is not discussed.

On behalf of the respondent, both in brief and in oral argument, counsel strongly urges the extreme improbability of the truth of the story told by the complaining witness. It is pointed out that, while the crime of rape is difficult to prove, it is even more difficult to refute, and that, because of the justifiable, popular abhorrence of the crime, there is always great danger that one charged with its commission, though innocent, may be convicted. It is argued that the life of this young man, hitherto of unblemished reputation, should not be ruined by a prosecution based upon the wholly uncorroborated statement of a comparatively ignorant girl of 14, who had at one time been an inmate of the Industrial School for Girls at Adrian.

All that is said in argument upon this point may well be admitted, but it is an argument to be addressed rather to the jury or to the trial court, upon a motion for a new trial, than to the appellate court. This court is properly concerned only with the determination of legal questions, raised by appropriate assignments of error. The trial court submitted the disputed question of fact to the jury under a charge extremely full and fair to the respondent. A jury of his peers have pronounced him guilty, and, being unable to discover any error in the course of the trial, we cannot disturb their verdict.

The case is remanded, with instructions to the court below to proceed to judgment.

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


text:
    ENGLER v. ENGLER.
    Mortgages — Foreclosure — Death — Condition — Construction —Parol Evidence Rule — Deeds—Bills and Notes.
    Where complainant, an aged parent, executed to his son and daughter-in-law a deed with a defeasance clause providing that if the defendants should “well and truly pay or cause to be paid the said five per cent, on the said $1,200” to the said complainant “or his assigns, when the same respectively fall due, then these presents shall become void upon the death of said” grantor, “otherwise to remain in full force and virtue,” the grantees at the same time executing to the grantor a promissory note for $1,200 for a term of ten years, also providing it should become void after the payee’s death, the contract, which was fully in writing, did not require the aid of oral testimony to construe it, and constituted security for the entire principal, not the interest merely, subject to foreclosure after the maturity of the note, which defendants did not pay.

    Appeal from Monroe; Gilday, J.
    Submitted June 13, 1916.
    (Docket No. 74.)
    Decided July 21, 1916.

      Bill by Aaron Engler against John F. Engler and Anna E. Engler for the foreclosure of a mortgage. From a decree for complainant, defendant Anna E. Engler appeals.
    Affirmed.

      Thornton Dixon, for complainant.

      Willis Baldwin and A. B. Bradgon, Sr., for defendant Anna E. Engler.

      The question of right to foreclose deed intended as security for debt, as an equitable mortgage, is discussed in a note in 22 L. R. A. (N. S.) 572.

   Brooke, J.

The bill of complaint in this case is filed for the purpose of securing foreclosure of a mortgage. The mortgage was drawn upon an Ohio form, and is in fact a deed absolute, containing a defeasance clau'se in the following language:

“Provided, always, and these presents are upon this condition, that whereas, the said John F. Engler and Anna E. Engler have executed to the said Aaron Engler, their certain promissory note for $1,200.00, a copy of which is as follows:
“‘$1200.00. Toledo, 0.,'Jun.e 16th, 1902.
“ ‘On or before ten years after date we promise to pay to the order of Aaron Engler twelve hundred dollars at Toledo, Ohio, with interest at the rate of five per cent, per annum, payable semi-annually. Value received. This note is to become null and void and canceled at the death of Aaron Engler, provided the said 5 per cent, interest is fully paid as herein provided.
“‘[Signed] John P. Engler.
“‘[Signed] Anna E. Engler.’
“Now-, if the said John F. Engler and Anna E. Engler shall well and truly pay' or cause to be paid, the said five per cent, on the said $1,200.00 to the said Aaron Engler or his assigns, when the same respectively fall due, then these presents shall become void, upon the death of said Aaron Engler, otherwise to remain in full force and virtue.”

The plaintiff in the case is the father of defendant John F. Engler. The defendants, at the time of the execution of the instrument in question, were husband and wife. It is conceded in the record that interest, as reserved in said instrument, was paid by defendants to plaintiff for only two years after its date. Thereafter, though at what time the record does not disclose, defendant Anna Engler secured a divorce from her husband, John Engler, who, in compliance with the decree as to alimony, quitclaimed to her his interest in the farm covered by the mortgage, the title to which was held jointly by him and his wife. At the time of the execution of the mortgage the plaintiff was upwards of 70 years of age, and at the time of the hearing in February, 1916, he was eighty-six. Some oral testimony was introduced tending to show the understanding of the parties at the time the mortgage was given; the plaintiff claiming that the principal was to be repaid to him at the expiration of 10 years, and the defendant Anna testifying that it was the distinct understanding between all of the parties that the mortgage should stand as security for the payment of the interest only.

We are of opinion that it is unnecessary to enter upon the consideration of the oral testimony as to what the actual agreement was, as the parties themselves reduced it to writing and executed it in the most solemn manner known to the law. It therefore becomes necessary to examine the instrument and to determine from such examination what the contract means. After a hearing the learned circuit judge entered a decree in favor of the plaintiff for both principal and interest, with the usual provisions that the land covered by the mortgage should be sold, and the proceeds, so far as necessary, used to satisfy the same. From this decree Anna Engler, being the only party defendant in interest, appeals.

It is her claim that a fair reading of the defeasance clause clearly indicates that the mortgage was intended as security for the payment of the interest only. It is said that any construction that would make the $1,200 principal due for nonpayment of the interest would be in the nature of a penalty. This view would find some support, if reference was had only to the last section of the defeasance clause. Referring, however, to the note itself, which is made a part of the defeasance clause, we find a distinct and unequivocal promise to pay the principal sum of $1,200 on or before 10 years after date, together with interest at the rate of 5 per cent. It is true that this promise is followed by the stipulation that the note is to become void and canceled at the death of Aaron Engler, provided that the said 5 per cent, interest is fully paid as therein provided. The contingency provided for in the note, has, however, not happened within the time limited by the note. ' It was probably within the contemplation of the parties at the time the instrument was executed that Aaron Engler, the mortgagee, because of his then advanced age, would not live until the note became due. The event has proved contrary to this expectation. Having provided the due date of the note, and payment thereafter not having been made according to its terms, we can see no reason in law or in equity why this man in his extreme old age should be deprived of the principal of the loaii which he made to his son and daughter-in-law. " .

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

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


author: Bkooke, J.

text:
    JOLMAN v. ALBERTS.
    1. Trial — Negligence—Conduct of Counsel — Cross-Examination.
    Where a physician, under cross-examination in a negligence case was asked if he did not expect to get his bill out of the litigation, and the interrogatory was objected to as incompetent, the court ruling it out and advising counsel that it was improper and insulting, etc., no prejudicial error resulted, and the action of the court was not reversible.
    2. Evidence — Negligence.
    In conjunction with testimony that the injured party was permanently affected, proof as to the age of plaintiff and his wife was not improperly received and justified the admission of the mortality tables.
    3. Same — Husband and Wife — Medical Testimony.
    Where plaintiff claimed damages for an injury that his wife had suffered, it was not improper to ask the physician of the wife what was her then condition.
    4. New Trial — Witnesses—Motions—Prejudicial Occurrences.
    Where the wife of plaintiff collapsed as she was about to give testimony on the stand and remained unconscious for several hours, it was not erroneous to deny the defendant’s motion for a new trial, and the action of the trial court was a reasonable and proper exercise of discretion which, unless appellant could show an actual miscarriage of justice, would be affirmed.
    5. Same — Damages—Verdict—Reasonableness.
    One thousand dollars, held, not too high a sum for money paid out and loss of the services of the wife, as shown by the record.
    Error to Muskegon; Sullivan, J.
    Submitted June 13, 1916.
    (Docket No. 49.)
    Decided July 21, 1916.
    Case by Peter Jolman against Frank Alberts for personal injuries to plaintiff’s wife and damage to his buggy. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Clink & Farmer, for appellant.

      Carpenter & Jackson, for appellee.
   Bkooke, J.

This case grows out of the same accident which gave rise to the case of Jolman v. Alberts, 186 Mich. 643 (158 N. W. 170). In the earlier case the wife recovered a judgment against the defendant. In the case at bar the husband brings suit to recover damages which he has suffered because of injuries to his wife in said accident. The elements of his damages are hospital charges, physician’s charges, loss of service, and cost of repairs to his buggy* which was injured in the collision.

The first five assignments of error are based upon alleged errors in the receipt or exclusion of testimony. We think them without merit.

The' sixth assignment refers to the following incident: One of the physicians, who had had principal charge of the plaintiff’s wife after the accident, was under cross-examination by defendant’s counsel, and had testified to the amount of his bill, $377.75, whereupon counsel for defendant asked the following question:

“Q. And you expect to get that bill out of this litigation, don’t you?
“Mr. Carpenter: That is objected to as incompetent.
“The Court: Just wait a minute. I don’t think that is a proper question at all. It is an insulting question, and I think counsel should be reprimanded for it.
“Mr. Cross: We take an exception to the language of the court.
“The Court: Yes, I don’t think it is right.
“Mr. Clink: Exception to the court standing up, and pointing his finger at me, and telling me that is not a proper question, in a threatening way. I asked it in good faith, and I think it is competent.
“The Court: Pay heed to what the court has said, too.”

We are of opinion that the ruling of the court upon the question was proper. The manner of the court and language used might well have been modified.

It is the claim of counsel for defendant that, because of the attitude of the trial court, prejudice followed in the minds of the jury, which found ultimate reflection in their verdict. We are unable to agree with this view, for reasons hereinafter stated.

The seventh, ninth, and tenth assignments of error' relate to the admission of testimony as to the ages of 'the plaintiff and his wife, in connection with the admission of the mortality tables. We find no error in the position taken by the court, in the light of the evidence of two physicians, who testified that, in their opinion, the injury suffered by plaintiff’s wife would be permanent.

The eighth assignment is based upon the action of the court in permitting a physician to answer the following question:

“What is her present condition ? [referring to plaintiff’s wife].”

Inasmuch as the claim of plaintiff was based upon his assertion that his wife had, in the accident, received an injury from which she was still suffering, we think the evidence was properly received.

The eleventh assignment of error is based upon the action of the court in overruling a motion, made at the conclusion of the testimony, that the present trial be declared a mistrial. The motion was predicated upon the following incident: In the course of the trial the plaintiff called as a witness his wife. She proceeded to the stand, and while the oath was being administered to her she collapsed upon the floor and lapsed into apparent insensibility, which, according to the record, continued for some hours and necessitated her removal to a hospital. The argument is made that this incident, which occurred in the presence of the jury, was highly prejudicial to defendant’s case; that it tended to inflame the minds of the jury, and to prevent them from giving that calm and dispassioned consideration to the evidence in the case to which the defendant was entitled; and that this state of mind was clearly reflected in their verdict, which it is claimed was excessive. The learned circuit judge, in deciding the motion, said that, had Mrs. Jolman herself been a party to the case, he would have had no hesitation in granting it.

With reference to incidents such as that under consideration, which, though infrequent, sometimes do occur in the course of a trial, it may be said that the presiding judge should, in the exercise of sound discretion, primarily determine whether they are prejudicial to that point which would require him to discharge the jury and announce a mistrial. In such disposition as the trial court may make, this court should not interfere, unless it plainly appears from an examination of the record with special reference to the verdict that there has been a miscarriage of justice.

In this case we are unable to so find. The recovery was in the sum of $1,000. Uncontradicted and apparently credible testimony placed the actual liabilities incurred, or money paid by the plaintiff, at nearly $900, exclusive of payments made for household service during the incapacity of his wife. It is therefore certain that, if entitled to recover, the plaintiff has not recovered too much.

The remaining assignments of error have either been passed upon in our former opinion in the companion case, or because of lack of merit require no discussion. Judgment affirmed.

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


text:
    BURCH v. BARENDSEN.
    Garnishment — Evidence—Agency—Husband and Wife — Claimant of Fund — Banks—Deposit as Agent.
    Where there was competent evidence to show that the husband deposited money which accrued from real property of his wife, as agent, in a separate bank account and that he had collected and owed her a larger amount than the balance garnisheed, and the creditor in garnishment proceedings could not establish the husband’s individual ownership of the agency account, the trial court was not in error in directing a verdict for the claimant wife. Bird, J., dissenting.
    Error to Kent; Perkins, J.
    Submitted June 12, 1916.
    (Docket No. 40.)
    Decided July 21, 1916.
    Garnishment proceedings in justice’s court by John K. Burch against Benjamin F. Barendsen. Amanda Barendsen intervened as third party claimant. Judgment for intervening claimant on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      Martin H. Carmody, for appellant.

      Eastman & Eastman, for appellee Amanda Barendsen.
   Brooke, J.

On October 21, 1913, plaintiff recovered a judgment against defendant, Benjamin F. Barendsen, in the sum of $192.20. On October 31, 1913, garnishment proceedings were instituted against the People’s Savings Bank. On November 3, 1913, the bank disclosed that it was indebted to “B. F. Barendsen, Agent,” in the, sum of $31.60, and on November 11, 1913, made the further disclosure to the effect that Mrs. B. F. Barendsen claimed the fund.

The sole question involved in this case, which has now occupied the attention of three courts, is whether this fund of $31.60, in the hands of the garnishee defendant, belongs to the defendant, Benjamin F. Barendsen, or to his wife. Upon the trial of that issue in the circuit court the plaintiff swore no witnesses. The third party claimant, Mrs., Barendsen, was sworn in her own behalf, and likewise called her husband, the principal defendant, as a. witness. Both husband and wife gave positive and unequivocal testimony to the effect that the bank account, which was opened on October 3, 1912, in the name of “B. F. Barendsen, Agent,” was in fact the account of the wife. Both testified that the actual business in connection with the account was transacted by the husband, for and on behalf of the wife, that no money was deposited in said account, except such as was the property of the wife, or such as was made by the husband as repayment of loans made by the wife to him. The wife was able to show by reference to recorded conveyances her ownership since marriage of several pieces of real estate, some of which she had sold, and others of which she had rented for some years. It was her claim, as well as that of her husband, that the proceeds of these sales and rentals, in part, were deposited in the bank, and that the amount of such proceeds was far in excess of the bank balance at any time.

In the court below a verdict was directed in favor of the third party claimant, the wife. In this court it is the claim of the appellant that the addition of the word “Agent” to the name of Benjamin F. Barendsen does not change the rule of law which presumes that a bank deposit is prima facie the property of the person in whose name the deposit is made (Keidan v. Winegar, 95 Mich. 430 [54 N. W. 901, 20 L. R. A. 705]; Detroit Savings Bank v. Haines, 128 Mich. 38 [87 N. W. 66]; Metcalf v. Williams, 104 U. S. 93), and that the burden of proof rested upon the third party claimant to show clear title to the fund.

Admitting the legal principle claimed by plaintiff, counsel for claimant contends that the burden so cast has been fairly borne, and that there is no testimony in the record contradicting that given by the husband and wife. Counsel for plaintiff contends that, while no affirmative testimony was offered on his behalf, an inspection of the bank account itself, coupled with the cross-examination of the two witnesses sworn in the defense, which it is claimed tended to show the improbability of the truth of their several statements, was sufficient to carry the question to the jury under the authority of the following cases: Molitor v. Robinson, 40 Mich. 200; Dibble v. Assurance Co., 70 Mich. 1 (37 N. W. 704, 14 Am. St. Rep. 470); Schulz v. Schulz, 113 Mich. 502 (71 N. W. 854); Wilson v. Royal Neighbors of America, 139 Mich. 423 (102 N. W. 957).

The learned circuit judge, after listening to a very full examination and cross-examination of the witnesses, concluded that there was no question of fact left for the determination of the jury. He seems to have been influenced to this determination largely by the fact that arising out of the property, the title to which was, or had been, in the wife, there had come to the wife sums largely in excess of the amount deposited. As to the wife’s ownership of these several properties, there can be no question, as the conveyances were of public record. After careful scrutiny of the record, we are of opinion that the learned circuit judge made a proper disposition of the case, and that no other conclusion could be reasonably drawn from the evidence. Wierengo v. Insurance Co., 98 Mich. 621 (57 N. W. 833); Jakoboski v. Railroad Co., 106 Mich. 440 (64 N. W. 461); Cron v. Railway, 132 Mich. 497 (93 N. W. 1078).

Judgment affirmed.

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

Bird, J. I think this was a case for the jury.