text:
    SCHOOK v. IRON CIRCUIT JUDGE.
    Judgment — Finality—Appeal and Error — Motion to Re-open— Judicature Act — Equity—Transfer from Law Side.
    Under the practice existing immediately prior to the date when the judicature act took effect, after a suit for specific performance had been determined in the Supreme Court and a final decree entered dismissing the bill, the cause was disposed of and the defeated party could not secure an order of the circuit court transferring the proceeding to the law side of the court, though the application was filed after the said act took effect. 3 Comp. Laws 1915, § 12351; Act No. 314, Pub. Acts 1915.
    Mandaums by Paul Schook against Richard C. Flannigan, circuit judge of Iron county to require respondent to enter an order granting relator’s application to transfer an equity suit to the law side of the court, made after final decree in the case of Schook v. Zimmerman, 188 Mich. 617 (155 N. W. 526).
    Submitted April 4, 1916.
    (Calendar No. 27,162.)
    Writ denied June 1, 1916.

      Fred H. Abbott (M. J. Sherwood, of counsel), for relator.

      M. S. McDonough and Charles H. Watson, for respondent.
    On the 21st day of December, 1915, the opinion of. this court was filed in the case of Schook v. Zimmerman, 188 Mich. 617 (155 N. W. 526), and on the same day a decree was entered in accordance therewith dismissing complainant’s bill of complaint without prejudice. The conclusion of the court in dismissing the bill was based on the ground that the proofs
    -“do not show a contract sufficiently certain in essential particulars to permit enforcement of specific performanee by a court of equity, and no alleged grounds which give the chancery court jurisdiction are sustained by proofs.”
    On January 3, 1916, the records and files in the case, including a certified copy of the decree of this court, were filed in the office of the circuit court of Iron county, having been remitted to that court in accordance with the provisions of section 26, chap. 50, Act No. 314, Pub. Acts 1915, being identical with section 554, 1 Comp. Laws (3 Comp. Laws 1915, § 13761), which reads as follows:
    “When an appeal shall have been so heard and determined, the records and files sent from ’the circuit courts in chancery, together with the proceedings and decree or order of the Supreme Court therein, and all things concerning the same shall be remitted to the circuit court in chancery, for the proper county, when such further proceedings shall be thereupon had as may be necessary to carry such decree or order into effect.”
    A motion was thereupon filed by the plaintiff in the circuit court in chancery asking that the court transfer the suit to the law side of the court, under the provisions of section 2, chap. 11, Act No. 314, Pub. Acts 1915 (3 Comp. Laws 1915, § 12351), to wit:
    “If at any time it appear that a suit commenced in equity should have been brought as an action on the law side of the court, or if it appear that an action commenced on the law side of the court should have been brought in equity, it shall be forthwith transferred to the proper side, and be there proceeded with, .with only such alteration in the pleadings as shall be essential.”
    The trial judge .who heard the motion denied it, and mandamus is sought by the relator to require the respondent to grant the motion as made by his counsel. In his answer to the order to show cause the respondent gives the following reasons for his action:

      “The circuit court for the county of Iron, in chancery, is without jurisdiction to entertain the motion, because: First, the cause has not been remanded by the Supreme Court to the circuit court for the county of Iron, .in chancery; and, second, if the cause has been remanded, it has not been remanded with authority or direction to said circuit court' for the county of Iron, in chancery, to take further proceedings therein.
    “If it may be said that the case has been remanded to said circuit court for the county of Iron, in chancery, the motion should nevertheless be denied, because the rights of the parties are to be determined according to the practice of the court in force at the time of the entry of the decree of the Supreme Court, dismissing the bill, and not according to the practice of the court which took effect after the case had been finally disposed of.”
   Kuhn, J.

(after stating the facts). The claim of the relator is based entirely on the provision in the new judicature act (section 2, chap. 11, Act No. 314, Pub. Acts 1915 [3 Comp. Laws 1915, § 12351]), which permits transferring a cause from one side of a court to the other. This act went into effect January 1, 1915, ten days after the decree of this court was entered dismissing the bill. At the time of the decree of this court there was no rule of practice in force in this State which permitted the action here sought to be taken. The decree is plain and definite in its terms, and when it was made dismissing the bill it ended the case. It follows that when the judicature act went into effect the suit here in question was ended, and no longer in existence. In our opinion, the conclusion reached by the trial judge is right, and the writ here sought must therefore be denied, with costs to the respondent.

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


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    CRAIG v. WAYNE CIRCUIT JUDGE.
    1. Process — Mandamus—Executors and Administrators — Wills.
    In mandamus proceedings in this court by the executors of an estate to compel the circuit judge to vacate- an order restraining them from paying to a divorced husband any money due him from the estate and ordering him to pay amounts due under the divorce decree, the executors cannot object that service upon the husband was improper.
    2. Jurisdiction — Courts—Probate Courts — Equity—Wills.
    Chancery courts having jurisdiction in alimony matters where estates are involved, the order entered by the court was not an encroáchment on the jurisdiction of the probate court. Ostrander and Bird, JJ., dissenting.
    3. Mandamus — Discretionary Writ.
    Mandamus being a discretionary writ, it will not issue where it would work an injustice.
    Mandamus by Alice B. Craig and another as executors of the estate of Cornelia H. Blodgett, deceased, against Joseph Barton, acting circuit judge of Wayne county, to compel respondent to vacate an order restraining petitioners from paying to Ralph C. Blodgett any money due him from said estate and ordering him to pay amounts due under decree of divorce.
    Submitted April 27, 1916.
    (Calendar No. 27,171.)
    Writ denied June 1, 1916.

      George P. Palmer, for relators.

      Dingeman & Schueler, for respondent.
    The circuit court for the county of Wayne, on March 31, 1909, granted a decree of divorce in the case of Lillian D. Blodgett v. Ralph C. Blodgett. The parties had three children, whose custody was temporarily awarded by the decree to the mother, Lillian D. Blodgett, with the provision that Ralph C. Blodgett, the father, should pay for their support the sum of $6 per week “while they will remain in the custody of the said Lillian D. Blodgett and until they shall respectively attain the age of 14 years.” The children have remained with the mother from the time of the decree, and are still with her. The father paid but little money under the decree, and on or about September 7, 1909, moved to Bowling Green, Ky., where he has since resided. On September 30, 1915, there was due under the decree the sum of $798.
    Cornelia H. Blodgett, the mother of Ralph C. Blodgett, died on June 27,1915, leaving a last will and testament, and the relators were appointed executors, and have duly qualified. Under this will the residue of Mrs. Blodgett’s estate was to be divided between her five children in equal shares, and it is estimated that the share of Ralph C. Blodgett would amount to $600, which is now in the hands of the relators. On September 30, 1915, Lillian D. Blodgett filed a petition in the Wayne circuit court in chancery, setting up the foregoing facts and asking the court to enjoin the executors of the estate of Cornelia H. Blodgett from paying over to Ralph C. Blodgett any sum due him from said estate, and requesting leave to serve the petition and order to show cause on George P. Palmer, who, prior to the entry of the decree in said cause, acted as 'solicitor for Ralph C. Blodgett. The order to show cause was granted, and on the hearing the trial court granted an order restraining and enjoining the relators from turning over to Ralph C. Blodgett any money or property in their hands as executors belonging to Ralph C. Blodgett, and ordered Ralph C. Blodgett to pay the complainant the amount due her. The relators thereupon filed a petition that the order entered in said court and cause be vacated, for the following reasons:
    (1) That the order is illegal, and they cannot be properly made parties to this cause.

      (2) That the court has no right to enter the order complained of; that it is against the rights of said executors.
    (3) That the order is unwarranted in law, and is an encroachment on the jurisdiction of the probate court for the county of Wayne, as agents of which the relators are acting.
    The petition was denied, and the cause has been brought here by the relators, who pray for a writ of mandamus to require the respondent to vacate the order complained of and dismiss the petition filed in said cause.
   Kuhn, J.

(after stating the facts). Objection is made at this time that improper service was had on Blodgett, and that the service provided for by the court below was unauthorized. This question is raised for the first time by the executors in this court, and we do not see how they are really concerned whether the service upon Blodgett was properly had or not, as it can in no wise affect their rights. So far as the relators are concerned, the proceeding had was purely incidental.

We cannot see any merit in tl^e contention of the relators that the order made is an encroachment on the jurisdiction of the probate court. The order made does not interfere with any of the duties which the executors owe the estate or the probate court, nor does it interfere with any step which might be taken by the probate court in the administration of the estate of which the relators are executors. They are simply restrained from turning over whatever share Ralph C. Blodgett might have in the estate until the further order of the court. The chancery court has taken jurisdiction in alimony matters where estates were involved. See Creyts v. Creyts, 143 Mich. 375, 377 (106 N. W. 1111, 114 Am. St. Rep. 656); Pingree v. Pingree, 170 Mich. 36 (135 N. W. 923). Blodgett himself did not appear to contest the proceedings, and does not attempt to excuse his misconduct in refusing to comply with the court’s decree, nor his refusal to support his children. We have said that mandamus is a discretionary writ, and should not issue when it would work an injustice. See Fletcher & Sons v. Circuit Judge, 136 Mich. 511 (99 N. W. 748), and cases therein cited.

We are of the opinion that the issuance of the writ in this case would work an injustice, and that it should therefore be denied, with costs to the respondent.

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

Ostrander, J. I think the writ should issue for the reason that the chancery court is without jurisdiction to issue the injunction.

Bird, J., concurred with Ostrander, J.


author: Bird, J.

text:
    BROOKS v. BELLOWS.
    1. Logs and Logging — Work and Labor — Pleading—Contracts— Common Counts.
    Where plaintiff was prevented from completing a logging contract by the defendant’s refusal to furnish funds for labor and supplies in accordance with the contract, he may recover for his work and labor at the contract price, so far as the contract has been executed, what the services were shown to he reasonably worth, under the count of indebitatus assumpsit or quantum meruit.

      2. Pleading — Contracts—Modification—Variance.
    Where the modification, of a contract was not alleged in the declaration, evidence of such modification was erroneously admitted.
    3. Same — Appeal and Error — Variance.
    But where it did not appear that defendant was surprised or placed at any disadvantage by reason of the defect, there having been a previous trial of the case and he being fully informed as to the position of plaintiff, the error is' not important enough to merit a reversal.
    4. Evidence — Scale—Logs and Logging — Contracts.
    Where a logging contract provided that the scaling should be done by a scaler approved by both parties, but they failed to agree, evidence of a scale made by defendant’s scaler was admissible, and that it was so made up as to advise plaintiff of the amount cut by each of his men would not make it objectionable, in an action for work and labor done under the contract.
    5. Bes Judicata — Judgment—Agency—Appeal and Error.
    The question as to whether the scaler was the agent of defendant or of both parties, having been passed upon by this court in a previous decision (179 Mich. 421), it will not be considered again.
    Error, to Benzie; Lamb, J.
    Submitted October 6, 1915.
    (Docket No. 19.)
    Decided June 2, 1916.
    Assumpsit by Oscar H. Brooks against Edwin H. Bellows for work and labor. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Warner, Baudabaugh & Person, for appellant.

      M. G. Paul, for appellee.
   Bird, J.

Plaintiff contracted to lumber 160 acres of timber land in Benzie county for defendant. He entered upon the work, and when nearly finished he was obliged to abandon it, according to his version, because defendant refused to keep his agreement to furnish funds for labor and supplies. Plaintiff claims that at the time he quit work there was owing him on the contract $1,609.45. The defendant refused to pay this or any amount, and plaintiff brought this suit to recover the same. The declaration was in assumpsit. It set out the contract with the common counts added. The theory of plaintiff was that he was entitled to compensation for the work and labor performed at the contract price. The case was submitted to the jury on that theory, and he recovered a judgment of $1,500. For a more detailed statement of the controversy, see same title, 179 Mich. 421 (146 N. W. 311).

1. Defendant takes the position that no recovery should have been permitted under the declaration, for the reason that plaintiff’s claim is based upon a special count, which is deficient in allegation, and that no recovery could be had under the common counts, because the contract was executory. The declaration set out the contract, and alleged specifically what plaintiff had done in compliance therewith, and that he was prevented from completing it by reason of the refusal of the defendant to furnish funds for labor and supplies in accordance with the contract. Had plaintiff sought to recover damages for the breach of the contract, and for profits he would have made had he been permitted to finish it, counsel’s contention would be sound, but plaintiff did not seek to do that. He undertook to and did recover for his work and labor at the contract price, but only so far as the contract had been executed. He counted nothing upon the executory part of the contract. Under this situation he was entitled to recover under the count of indebitatus assumpsit, or under the quantum meruit, by showing what the services were reasonably worth. Hosmer v. Wilson, 7 Mich. 294 (74 Am. Dec. 716); Howell v. Medler, 41 Mich. 641 (2 N. W. 911); Mooney v. Iron Co., 82 Mich. 263 (46 N. W. 376). The objection is not well taken.

2. Complaint is also made because the trial court allowed plaintiff to give evidence of a modification of the contract without any allegation to support it. It is claimed that the modification should have been set up in the declaration. Counsel is undoubtedly correct in this position. If the contract were modified, it should have been declared on as modified. Penwell v. Wilkinson, 97 Mich. 110 (56 N. W. 235). When this objection was made, plaintiff should have asked for and been given an opportunity to amend his declaration. But it does not appear that defendant was surprised or placed at any disadvantage by reason of the defect. There had been a previous trial of the case, and he was fully informed as to the position of the plaintiff. We think the error is not important enough to merit a.reversal of'the case.

3. The contract entered into by the parties provided that the scaling of the logs should be done by a “good, competent scaler approved by both parties.” Subsequently they were unable to agree upon a scaler, and plaintiff claims he consented that Frost, defendant’s scaler, might scale the logs as long as his work was satisfactory. Frost, at the request of plaintiff, while scaling, kept an account of the logs in such a way as to disclose how many feet were cut by each of plaintiff’s employees, thereby furnishing plaintiff a basis for making payment to them. This scale so furnished by Frost was received in evidence over defendant’s objection that it was incompetent and not the best evidence. We see no error in admitting it. The scale was made and furnished by defendant’s agent, and the mere fact that it was so made up as to advise plaintiff of the amount cut by each one of his men would not thereby make it objectionable. The question as to whether Frost was the agent of defendant or of both parties is reargued in this connection. This question under substantially the same state of facts was passed upon by this court in its former opinion. It will therefore be unnecessary to consider it again.

4. Error is assigned because the trial court refused to direct a verdict for the defendant. Considering the state of the plaintiff’s case, the trial court could not well comply with the request without passing upon issues of fact. The parties were in direct conflict over several questions. Among them was the question as to how much timber had been cut; as. to whether the scaler was the agent of defendant, or whether he represented both of the parties; as to whether certain modifications claimed by plaintiff were made in the contract; and also as to how much was remaining plaintiff’s due, if anything. The trial court submitted the issues of fact involved in an unusually lucid charge, and we think he did so without error.

The judgment must be affirmed, with costs of this court to plaintiff.

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


text:
    GILLETTE v. GRAND TRUNK WESTERN RAILWAY CO.
    1. Master and Servant — Personal Injuries — Negligence—Assumption of Risk — Directed Verdict.
    In an action- for personal injuries by a - fireman against a railroad company for negligence in permitting a rope to hang over the running board of an engine, on which plaintiff tripped and was injured, the accident happening in the daytime, and the conditions being in plain sight, and having continued for some time, held, that plaintiff assumed the risk.

      2. Same — Handrail—Defective Condition.
    Where plaintiff’s duties were such that he frequently made use of the running board and handrail on an engine, the defective condition of which must have been known to Mm, held, that he assumed the risk.
    3. Same — Safe Place — Assumption of Risk.
    While it is the rule that the duty of the master requires him to furnish his servant a reasonably safe place in which to work, and reasonably safe appliances to work with, which duty he cannot so delegate as to relieve himself of responsibility, yet, where the defects and dangers are obvious and known to the servant, who makes no complaint, he will be held to have assumed the risk.

    Error to Calhoun; North, J.
    Submitted October 14, 1915.
    (Docket No. 98.)
    Decided June 2, 1916.
    Case by Arthur H. Gillette against the Grand 'J'runk Western Railway Company for personal injuries. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      Henry R. Rathbone and Maxwell B. Allen, for appellant.

      Harrison Geer (W. K. Williams, of counsel), for appellee.

      For authorities on the question as to whether a servant may assume the risk of dangers created by the master’s negligence, see notes in 4 L. R. A. (N. S.) 848; 28 L. R. A. (N. S.) 1215.

   Bird, J.

Arthur Gillette was employed as a fireman for defendant on one of its freight locomotives, running between Battle Creek and Milwaukee Junction. On the morning of the 8th day of June 1914, he was going east on his run, and when near Hazlett Park, he was ordered by the engineer to go to the front of the locomotive and shut the door of the headlight. The train was then running about 10 miles an hour. Plaintiff obeyed the order. He opened the window in front of his seat on the left-hand side of the locomotive, passed through it, and proceeded along the running board to a point nearly over the steam chest, when he stepped down on the lower running board, which was about 3 feet long, and from there onto a step provided for use when working with the headlight. He closed the door, and stepped back onto the short running board, and as he did so he claims his foot caught in the loop of a rope which was used in fastening the bail of the classification light to the upper handrail. This he claims had the effect of throwing him slightly off his balance. In the attempt to regain it the guard rail turned in the sockets and broke his hold, and in consequence thereof he fell to the ground and was severely injured.

The negligence counted upon for a recovery was the act of defendant in permitting the rope.to hang in close proximity to said running board, and the failure of defendant to fasten the hand or guard rail in the socket by pin or set screw, so that it would not revolve therein. It was charged that the failure of defendant in these respects resulted in making the place unsafe for plaintiff. Counsel for defendant maintains that the trial court was right in holding that plaintiff, assumed the risk, and it is further contended by them that the plaintiff failed to make out a case of negligence against the defendant.

1. It was shown that the classification lamp, which was used to designate the kind of train it was, was fastened to the guard rail in question by means of a bracket, and the lamp was fastened to that by a clamp. The rope was used to fasten the bail of the lamp to the upper rail, a piece of which hung down over the short running board. If it can be said to be an act of negligence on the part of the defendant in permitting the rope to hang in this way over the short running board, we think it must be held that plaintiff assumed the risk of passing it, as it was daylight, and the rope was in plain view, and the testimony showed that, it had been in use for some time.

2. We are also of the opinion that the defect in the handrail, if it were one, was known to the plaintiff. True, he says he had not discovered it until the day of the accident; but his testimony, taken as a whole, fairly shows that he must have been acquainted with its condition. After testifying that he did not know how far the handrail would turn in the socket, he was asked:

“Q. Half way around?
“A. I couldn’t say.
“Q. But to take hold of it, it would turn a little one way or the other?
“A. Yes, sir.”

As indicating the opportunity he had of learning of its condition, and his frequent contact with it, the following excerpts taken from his testimony will show:

‘T as fireman have passed along these walks a great many times. When I got out of my cab, I got out on this running board, and as soon as I got on the running board I took hold of this rail to steady myself. I had been there at times when the train was running. Whenever occasions would require it, I would go along this running board with my hand ahold of the handrail. When I have gotten to the end of the running board, I had to step down to another running board, a distance of perhaps two feet or a little better, and I would still, while walking along that short running board, keep hold of the rail, or lower handrail.”
“Those lamps were fastened right to the short rail, and every time I went to clean the cage I would have to use that to get up.”
“Coming from Milwaukee Junction to Durand, if we had to take a siding at any of the stations, we would have to cover the headlight. That was part of my duties, and to cover that headlight I would have to walk along these running boards, and then step upon these steps or brackets that are on the side of the engine to put the cover on to shut off the light.”
“As soon as it became dark, I got out and lighted the lamps.”

He further testified that it was his duty to clean and light the classification lamps, to clean the inside of the headlight, to clean the jacket above the running board, and when he attended to these duties he made use of the running boards and handrails. It is a rule well understood that the duty of the master requires him to furnish his servant with a reasonably safe place in which to work, and with reasonably safe appliances to work with, and he cannot so delegate this duty as to relieve himself of responsibility. Swoboda v. Ward, 40 Mich. 420; Quincy Mining Co. v. Kitts, 42 Mich. 34, 39 (3 N. W. 240); Parkhurst v. Johnson, 50 Mich. 70 (15 N. W. 107, 45 Am. Rep. 28); Smith v. Car Works, 60 Mich. 501, 502 (27 N. W. 662, 1 Am. St. Rep. 542); Marshall v. Furniture Co., 67 Mich. 167 (34 N. W. 541, 11 Am. St. Rep. 573); Van Dusan v. Letellier, 78 Mich. 492 (44 N. W. 572). But in connection with this rule it is held that, where the defects and dangers are obvious to the servant, he will be regarded as having assumed them. Kean v. Rolling Mills, 66 Mich. 277 (33 N. W. 395, 11 Am. St. Rep. 492); Illick v. Railroad Co., 67 Mich. 632 (35 N. W. 708); Fisher v. Railway Co., 77 Mich. 546 (43 N. W. 926); Pennington v. Railway Co., 90 Mich. 505 (51 N. W. 634); La Pierre v. Railway Co., 99 Mich. 212 (58 N. W. 60); Peppett v. Railroad Co., 119 Mich. 640 (78 N. W. 900). If by taking hold of the handrail it would turn a little one way or the other, as plaintiff testified, the conclusion is irresistible that he must have known of its condition before the day of the accident, as his duties required him to go out upon the running board several times each trip which he made. At these times he says he took hold of the rails. The plaintiff had been employed as a fireman by defendant for over a year; he had been employed as a fireman on this particular engine from the 6th day of February down to the 8th day of June, at the time he was injured, and when on his run he was daily in contact with the handrail in question. It was also shown that the handrails on the other engines which he fired were constructed the same way. It does not appear that he made any complaint to any of his superiors that the handrail was out of order, or that it was in need of repairs, or that it was dangerous. We think the trial court was right in holding that plaintiff assumed whatever risk there was arising therefrom.

The judgment is affirmed.

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


text:
    LOBENSTEIN v. WHITEHEAD & KALES IRON WORKS.
    1. Master and Servant — Personal Injuries — Trial—Directing Verdict.
    The testimony of certain witnesses who were offered on the retrial of an action for negligence is reviewed after reversal in this court, and held, to be sufficient to support the verdict for plaintiff, though the proofs were less strong on the second than on the first trial.
    2. Same — Contributory Negligence — Inexperience.
    Where the testimony showed that decedent was inexperienced in the work of constructing a swing scaffold and defendant claimed he should have held onto the girder while he was tying on a plank and was negligent for standing on the plank, the trial court properly submitted to the jury the issue as to the sufficiency of care exercised by deceased.

      3. Same — Fellow Servants — Negligence.
    Decedent’s superior, who ordered him to work in the unsafe place, was not such fellow servant as to bring defendant within the rule of' nonliability, in a case where the proofs showed that the superior employee had received directions so to proceed from defendant’s superintendent.

    Error to Wayne; Mayne, J., presiding.
    Submitted October 5, 1915.
    (Docket No. 4.)
    Decided June 2, 1916.
    Case by William P. Lobenstein, as administrator of the estate of George Stierle, deceased, against Whitehead & Kales Iron Works, a corporation, for the unlawful killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Goodenough & Long, for appellant.

      William Look and Duncan C. Beath (Henry F. Chipman, of counsel), for appellee.

      As to wbat acts of superior servant master is liable, see comprehensive note in 51 L. R. A. 584.

   Bird, J.

In his declaration, William Lobenstein, administrator of the estate of George Stierle, deceased, charges defendant iron company with having employed the deceased to operate a hoisting machine, and that while so employed, it directed him to engage in another and more dangerous employment, in which latter employment he was killed by falling from a building upon which he was directed to work. Upon the first trial a verdict was directed in favor of the defendánt. On review in this court, it was held that the testimony was sufficient to submit to the jury upon the question of the defendant’s negligence. See 179 Mich. 279 (146 N. W. 293). Upon a retrial of the case, the defendant again requested a directed verdict. The trial court refused the request and submitted the question of defendant’s negligence to the jury, and they found a verdict for the plaintiff. The .principal assignment of error is directed to the refusal of the court to direct a verdict for the defendant.

It is claimed the testimony on the retrial bearing on the defendant’s negligence was so changed from that offered on the first trial that it did not make an issue of fact. The testimony upon which plaintiff relied on the first trial for establishing the negligence of the defendant was given by the foreman, Joseph Darge. On the second trial his testimony was substantially the same, except certain portions of it, in which he described the dangerousness of the work deceased was ordered to do, were eliminated by order of the court. Material portions of his testimony were contradicted by Steger, superintendent of defendant company, and Duke, his assistant. We have examined the testimony upon the second trial with care, and we have reached the conclusion that, while plaintiff’s testimony bearing upon the negligence of the defendant was weakened from what it was on the former trial, it still presented a question of fact for the consideration of the jury.

Another ground on which the defendant rested his motion for a directed verdict was the contributory negligence of the deceased. Counsel in this connection criticizes the way and manner in which the deceased went about the work of constructing the swing scaffold, and observes that, while tying the rope around the plank, the deceased should have remained on the girder, or, if he stood on the scaffold, he should have held onto the girder. The testimony tended to show that the deceased was inexperienced in such work, and it could not be expected that he would go about it with the intelligence of one who was an experienced structural steel worker. At any rate, the question as to whether he exercised reasonable prudence under the circumstances was one which was properly submitted to the jury.

A further reason suggested for a directed verdict was that Darge, the foreman, and the deceased were fellow servants, and therefore defendant was not liable for the deceased being in an unsafe place. The difficulty with this suggestion is that Darge testified' he ordered the deceased to assist him in the particular work, because of the direct order of the superintendent, who represented the master. The question as to whether Darge and the deceased were fellow servants as to the work done by the deceased outside of his regular employment, and the work done by direct order of the master, is not very important under the plaintiff’s theory of the case.

The question of the assumption of risk is again raised by this assignment. What Mr. Justice Stone said on that question in the former opinion of this court, we think fully answers the objection made at this time.

We think it unnecessary to consider the remaining assignments of error.

The judgment is affirmed, with costs of this court to the plaintiff.

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


text:
    CITY OF OWOSSO v. BARBER ASPHALT PAVING CO.
    1. Municipal Corporations — Bond of Indemnity — Interpretation.
    Defendant gave the plaintiff city a bond to indemnify it against any liability for infringing the patent of a third party who threatened to enjoin the laying of a pavement, and executed a further undertaking against the cost of maintaining an asphalt pavement. Litigation commenced by the third party resulted in an adverse judgment on an appeal to the U. S. Circuit Court of Appeals taken by the complainant who was awarded costs of both courts. Plaintiff paid the costs of the appellate proceedings, but not ' those of the lower court, as they were not taxed. In other litigation that arose over the liability of defendant for failure to perform its agreement for maintenance the city prevailed. Later it executed a release to defendant growing out of the liability of the paving company upon its contract for improving and maintaining the streets and defendant was to waive its right of appeal; and was to be released from any liability present or prospective growing out of the improvement of either of the streets. When the costs were finally taxed in the Federal court, defendant claimed it was discharged from liability. Held, that the release was intended to cover nothing but the controversy which had arisen over the contract to maintain the pavement, that the bond against infringement was not released or discharged, and defendant should reimburse plaintiff for the taxable costs in the case.
    2. Same — Costs—Interest—Federal Courts.
    Interest on a judgment in the United States District Court, covering the costs of a proceeding in equity which had been reversed on appeal was properly allowed from the date of judgment until the taxation of the said costs. U. S. Comp. Stat. 1913, § 1605. But in Michigan courts a different rule prevails. 2 Comp. Laws, § 10308. Cf. 2 Comp. Laws, § 4865.

      Error to Shiawassee; Gilday, J., presiding.
    Submitted October 19, 1915.
    (Docket No. 156.)
    Decided June 2, 1916.
    Assumpsit by the city of Owosso, a municipal corporation, against the Barber Asphalt Paving Company, a corporation, and another, for the recovery of costs paid by plaintiff in a suit in which defendants indemnified plaintiff against loss. Judgment for plaintiff on a verdict directed by the court. Defendants bring error.
    Affirmed.

      Chapman, McNamara & Matthews and Morris M. Townley, for appellants.

      Leon F. Miner and Seth Q. Pulver, for appellee.

      Repealed, but substantially re-enacted by the judicature act. 3 Comp. Laws 1915, § 14465.

   Bird, J.

We are asked by defendants to review a judgment recovered by plaintiff under the direction of the court for $1,842.54 on account of certain costs which the city became liable to pay in another suit in which defendants indemnified the city against loss.

The history of the transactions out of which plaintiff’s claim grows shows that in February, 1903, the defendant Barber Asphalt Company was the successful bidder for the contract to construct certain pavement for the city of Owosso. Before the contract was closed the city was advised by Warren Bros. Company that the pavement proposed to be constructed by the Barber Company was an infringement of a patent owned by it, and in the event that it was constructed, it would look to the city for damages. In order to indemnify the city against loss on account of this claimed patent, the Barber Company executed an additional bond. One was a maintenance bond, agreeing to care for the pavement for a series of years'; the other was a bond indemnifying the city against loss on account of said claimed infringement. The condition of this bond provided that:

“The condition of this obligation is such that the said principal, the Barber Asphalt Paving Company, having been awarded a certain contract by the city of Owosso to pave Washington street from the Shiawassee River bridge south to the south line of Howard street, and Main street from the Shiawassee River bridge west to the Michigan Central Railroad, with bituminous macadam, and the city of Owosso having received information that the said city might be proceeded against by some other company or companies on account of the using by said the Barber Asphalt Paving Company some certain material, formulas and patents, and said city be put to cost and expense on account of the using of such pavement to be laid by the Barber Asphalt Company: Therefore, in consideration of the lettering [letting] of the contract this day executed by said city to the said the Barber Asphalt Paving Company, the said the Barber Asphalt Paving Company agrees to keep harmless said city from any expenses, judgment, attorney fees, or costs that it may have to pay on account of granting of said contract and the use of said pavement, and agrees to pay any costs or expenses arising from injunction or litigation.”

The contract was closed with the Barber Company, and the pavement was constructed. In March, 1904, suit was instituted in the Federal court against the city by the Warren Bros. Company. The Barber Company assumed the defense of this suit in accordance with its agreement. Defendant was successful in the district court, but Warren Bros. Company prevailed in the Court of Appeals (Warren Bros. Co. v. City of Owosso, 166 Fed. 309 [92 C. C. A. 227]), and was awarded costs of both courts. The Barber Company paid the judgment for damages and the judgment for costs in the Court of Appeals, but not the costs of the district court, because they were not yet taxed. Following this litigation a controversy arose between the city and the Barber Company in which the city claimed damages by reason of its failure to maintain the pavement in accordance with its contract. This matter later got into the courts, and the city was awarded a judgment for $7,245. The Barber Company was about to take an appeal from this judgment, when a compromise was effected by which the Barber Company paid the city $6,000, and waived its right of appeal. When this settlement took place, a release was executed by the city dated the 27th of November, 1911. As this controversy must turn upon the construction of this release, we herewith give it in detail:

“Memorandum of agreement between the city of Owosso and the Barber Asphalt Paving Company.
“Whereas, heretofore, on or about March 23, 1903, a contract was executed between the parties hereto wherein the Barber Asphalt Paving Company agreed to pave and keep in repair for the period of eight (8) years West Main street, in the city of Owosso, from the Michigan Central Railroad tracks to the Shiawassee River bridge, and South Washington street from the bridge over the Shiawassee river south to Howard street; and
“Whereas, the city of Owosso subsequently commenced suit against the Barber Asphalt Paving Company on said contract, which cause is known as the ‘City of Owosso v. Barber Asphalt Paving Co. and the National Surety Co., being cause No.......on the docket of the United States Circuit Court for the Eastern District of Michigan, Northern Division; and
“Whereas, a judgment has been rendered in said cause against the defendants; and
“Whereas, it is now desired that the Barber Asphalt Paving Company should waive its right of appeal from said judgment, it being the intention of the parties hereto to amicably adjust all rights growing out of said contract of every kind whatsoever:
“Now, therefore, it is agreed that the Barber Asphalt Paving Company, on or before December 1,1911, shall pay to the city of Owosso the sum of six thousand dollars ($6,000); and in consideration of the foregoing said city agrees to enter full satisfaction of said judgment, including costs, and to discharge the Barber Asphalt Paving Company from all liability whatsoever growing out of the contract for the improvement and maintenance of said streets, and both of them. It is distinctly understood that the payment of said sum and the waiver of the right of said Barber Asphalt Paving Company to appeal from said judgment shall constitute a full release of said Barber Asphalt Paving Company from any liability, present or prospective, growing out of the improvement of either of the streets above mentioned, or growing out of the obligation of said Barber Asphalt Paving Company to keep said streets in repair.
“In witness whereof the parties have caused their corporate names to be affixed by their proper officers and agents this 27th day of November, A. D. 1911.”

Subsequent to this, and in October, 1913, the Warren Bros. Company taxed their costs in the district court against the city. The city made demand upon the Barber Company to pay these costs in conformity with its bond of indemnity, but it refused to do so, claiming that the release which was executed in November, 1911, absolved it from any further duty in the premises. This suit was then instituted to recover on the bond.

The question for solution is whether the bond given to the city to protect it against an infringement suit was discharged by the release executed by the city under date of November 27,1911. In its dealings with the Barber Company the city demanded and received two bonds. One had reference to the maintenance of the pavement, and the other was to protect the city against the patent claims of Warren Bros. Company. When the threatened patent suit materialized, the Barber Company took charge of the litigation for the city and paid the judgment for damages and the costs of the Court of Appeals, in accordance with its agreement, and evidently both parties thereafter regarded that phase of the matter at an end. Then came the litigation in which the city claimed certain damages growing out of a failure of the Barber Company to properly maintain the pavement. For such failure a judgment was recovered by the city. It was then incumbent on the Barber Company either to satisfy the judgment or take an appeal. At this juncture of affairs the matter was compromised by the city accepting something less than its judgment and by the Barber Company waiving its right of appeal. This was the controversy which was disturbing the minds of the parties when the release was executed, and was undoubtedly the only matter of difference which was considered when the compromise was effected. No other controversy between them was pending so far as the parties knew. Obviously both parties regarded the infringement suit as “water that had run by the wheel.” This view is further enforced by the fact that the preamble of the release refers to the agreement to maintain the pavement, the suit for damages on account thereof, and the judgment resulting therefrom. No reference is made to the infringement suit, nor to any unsettled questions growing out of it. The terms of the compromise and the wording of the release tend to show that the thing which was uppermost in their minds was the suit in which judgment had been rendered for the city. These considerations lead to the conclusion that nothing else was intended to be covered by the release except the differences which had grown or might grow out of its contract to construct and maintain the pavement. But it is said that certain language of the release is broad enough to cover and carry with it a discharge of the patent bond. Reference is made to the following excerpts from the release :

“The intention of the parties hereto to amicably adjust all rights growing out of said contract of every kind whatsoever.”

And it was agreed that the city should “discharge the Barber Asphalt Paving Company from all liability whatsoever growing out of the contract for the improvement and maintenance of said streets.”

And that the paving company should be released “from any liability, present or prospective, growing out of the improvement of either of the streets above mentioned.”

The words “growing out of said contract” obviously meant the contract providing for the construction and maintenance of the pavement. The agreement to indemnify the city against loss on account of an infringement suit was not a part of the contract, which obligated it to build and maintain the pavement, but was an agreement held out by the Barber Company for the purpose of inducing the city to award to it the contract. The other general language quoted from the release is followed by restricted words which clearly show that it had reference only to the construction and maintenance of the pavement. We find no trouble in reaching the conclusion that nothing was intended to be covered by the release except matters of difference which had or might grow out of the construction and maintenance of the pavement.

Another question is raised. It is claimed the trial court was in error in allowing interest on the costs from the date of the judgment until they were taxed, which was nearly four years afterward. The reason advanced is that the costs are unliquidated until they are taxed. At the time the judgment was rendered for damages a judgment was also rendered for the costs of both the appellate and the district court. If this were a question arising in the State courts, it would be foreclosed by our statute and the construction which this court has given to it. 2 Comp. Laws, §§ 4865, 10308; Hayden v. Hefferan, 99 Mich. 262 (58 N. W. 59).

Section 966, U. S. Comp. Stat. 1901 (1 U. S. Comp. Stat. 1913, § 1605), appears to provide for interest on judgments in civil cases recovered in the circuit or district court, where the laws of the State in which the court is held permits of it. This would appear to justify the trial court in allowing interest.

The judgment must be affirmed, with costs of this court to the plaintiff.

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


text:
    LA BRANCH v. HERBST.
    1. Execution — Creditor’s Proceeding — Capias ad Respondendum.
    A defendant in custody by virtue of a capias ad respondendum after trial of tbe action under which, he was arrested, and in which a judgment had been obtained, could be compelled to appear in proceedings supplemental to the judgment in the nature of a judgment creditor’s suit (3 Comp. Laws 1915, § 13378), before the time had elapsed in which to charge him in execution, and required to disclose the character and kind of property that he owned.
    2. Same — Satisfaction of Judgment.
    Had the defendant been in custody under a capias ad satisfaciendum when the supplemental proceeding was commenced, he would not have been compelled to respond to the latter, as the common law permitted only one satisfaction if a body execution was levied and it suspended the right to attach property.

      3. Same — Proceedings in Nature oe a Creditor’s Biel — Time.
    Any steps taken by virtue of tbe statute would be subject to the limitation that defendant be charged in execution within three months from the return of execution unsatisfied.
    Certiorari to Monroe; Gilday, J.
    Submitted October 14, 1915.
    (Docket No. 85.)
    Decided June 2, 1916.
    Supplemental proceedings in the nature of a judgment creditor’s suit by Alvina La Branch against Henry Herbst for a disclosure and other relief. On application of plaintiff for an order of appearance, etc., an order was issued as prayed. Defendant brings certiorari.
    Writ dismissed.

      Oliver J. Golden, for appellant.

      Thomas A. Conlon and Jesse H. Root, for appellee.
   Bird, J.

Plaintiff caused the arrest of defendant on a capias ad respondendum to answer to an action of trespass on the case. Defendant was apprehended and gave the required bail to the sheriff, and was released from custody. Subsequently bail to the action was perfected. A trial of the matter in the circuit court resulted in a judgment for plaintiff of $1,000, on the 27th day of February, 1915. On the 18th day of March following the defendant was surrendered into the custody of the sheriff by his bondsmen, and the bail was duly exonerated. On the 17th day of April, an execution against the property of defendant was issued. This was returned by the sheriff unsatisfied on the 15th day of May. Subsequently, and on the 29th day of May, upon the application of plaintiff’s attorney, the defendant was ordered to appear before the court and disclose under oath as to his property and choses in action, under chapter 299, 3 Comp. Laws (3 Comp. Laws 1915, § 13378 et seq.). Objection was duly made by defendant’s counsel to the issuance of such an order for the reason that defendant was in custody, and that, while such custody continued, plaintiff could have no other satisfaction. The trial court, however, made the order, but stayed the proceeding upon application of the defendant until the same could be reviewed in this court.

The sole question presented is whether defendant can be subjected to the provisions of chapter 299 while he is in the custody of the sheriff by virtue of process in the same case. Under the statute which was in force when the arrest was made and the judgment rendered plaintiff was required to sue out an'execution against the goods and chattels and property of the defendant before an execution could issue against the body of the defendant. 3 Comp. Laws, § 10303 (3 Comp. Laws 1915, § 12841). This statute was complied with, and execution was issued and returned unsatisfied. Within three months after the execution was returned unsatisfied it was the duty of the plaintiff to charge defendant in execution (3 Comp. Laws, § 10412 [3 Comp. Laws 1915, § 12839]), in default of which, unless good cause were shown, the defendant could be discharged (3 Comp. Laws, § 10413 [3 Comp. Laws 1915, § 12840]). Before this time arrived, and while the,defendant was still held in custody by force of the writ of capias ad respondendum, the order was made requiring the defendant to appear and disclose under oath as to his credits and choses in action.

Had the defendant been in custody under a capias ad satisfaciendum when the order was made, it would have been of no force. The rule of the common law is that, when a creditor has the body of his debtor in execution, his right to proceed against his property by virtue of the judgment is suspended. Tappan v. Evans, 11 N. H. 311; Stilwell v. Van Epps, 1 Paige (N. Y.), 615; Jackson v. Benedict, 13 Johns. (N. Y.) 533.

The filing of a bill in chancery to reach the equitable assets of the debtor while he is in custody under such process has been held to be a violation of the rule. Stilwell v. Van Epps, supra. The reason for the rule appears to be that, where the plaintiff has the defendant’s body in custody under a body execution, it is prima facie a satisfaction of the debt, and, as the law permits of only one satisfaction, no other can be had. We are impressed that this reasoning would not apply where the debtor is in custody by force of a capias ad respondendum, awaiting the time allowed by law after judgment to be charged in execution. When the order was made for defendant to appear and disclose, he was in custody, but the custody was not for the purpose of satisfying the body execution, because that had not yet been issued, but he was in custody waiting to be charged in execution by the plaintiff, and therefore the custody cannot be said to be‘'one that raised a prima facie satisfaction of the debt. If it did not, we can see no valid reason why defendant at that stage of the proceeding should not be made subject to the provisions of chapter 299, 3 Comp. Laws (3 Comp. Laws 1915, § 13378 et seq.). Of course, any proceedings under that chapter would be subject to the statutory provision (section 10412, 3 Comp. Laws [3 Comp. Laws 1915, § 12839]) that the defendant shall be charged in execution within three months from the date that the property execution is returned. We think the order made by the trial court was a valid one, and it is hereby affirmed.

The writ will be dismissed, with costs to the defendant in certiorari.

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


text:
    ROBERTS v. WHALEY.
    1. Master and Servant — Workmen’s Compensation — Dependent —Incompetent Wife.
    In proceedings for compensation for the death of a laborer while he was engaged in digging a sewer, evidence that decedent’s wife had been insane for nine years, and had received no support from her husband during that time, but was maintained by the State, and that decedent was living with his housekeeper, who had borne him two children that were dependent on him, held, to show that the wife was not a dependent within the meaning of the statute, and not entitled to compensation. Act No. 10, Extra Session 1912, pt. 2, § 5; 2 Comp. Laws 1915, § 5435.
    2. Same — Daughter—Presumptions.
    The rights of a daughter, who had lived with another family and had received no contribution from the decedent, were on a similar footing; if she was not in some manner dependent on her parent she was not entitled to share in the award.
    3. Same — Illegitimate Children.
    Two illegitimate children of the deceased, who resided with their father and were maintained by him, were dependents within the meaning of the statute, and, as it was his duty to care for and maintain them, and they were entitled to look forward to his continuing to do so, they should have received the entire award.
    Certiorari to the Industrial Accident Board.
    Submitted October 15, 1916.
    (Docket No. 127.)
    Decided June 2, 1916.
    Rehearing denied September 27, 1916.
    Minnie Roberts, insane wife, Gladys Roberts, a minor child, by W. Henderson, her guardian, Clara Fackler, and Murna Roberts and Ellis Roberts, illegitimate minor children, by Carl H. Reynolds, their guardian, presented their claims for compensation against William H. Whaley and George W. Edwards, copartners as Whaley & Edwards, for the death of N. H. Roberts while in defendants’ employ. From the award of the Industrial Accident Board granting compensation to said Minnie Roberts and Gladys Roberts, said Murna Roberts, Ellis Roberts and said respondents, and their insurer, the United States Fidelity & Guaranty Company, bring certiorari.
    Reversed, and compensation awarded to said appellants Murna and Ellis Roberts.

      Cummins, Nichols & Rhoads, for appellants Roberts.

      Clarke, Lockwood, Bryant & Klein (B. J. Lincoln, of counsel), for appellants Whaley and Edwards and said insurance company.

      F. H. Dusenbury, for appellees Roberts.
   Bird, J.

N. H. Roberts was killed while working in a sewer in Grand Ledge. Application for an allowance was made to the Industrial Accident Board on behalf of his insane wife and daughter, and also on behalf of his two illegitimate children and his housekeeper. Upon a stipulation of facts, an award was made and divided between the wife and daughter. We are asked to review the proceedings on behalf of the illegitimate children, and the defendant insurance company.

The record discloses that Roberts was married to Minnie Fox in the year 1903. In the following year, 1904, the daughter Gladys was born. Two years later, in 1906, the wife became insane and was taken to the asylum. After the mother was taken away, Gladys went to live with a Mr. Henderson, where she has since resided and been cared for by him in his family. Roberts, being left alone, employed a housekeeper. He appears to have become enamored of her, and later lived with her openly as a wife, and two children were born to them, Murna and Ellis, the appellants. At the time Roberts was killed, he was living with and supporting these children, and their mother. The wife, Minnie, was still in the asylum at the time of his death, and had been supported there at the expense of the State, and Gladys had been supported by Henderson, and it appears that Roberts had contributed nothing to the support of either during their absence.

The position taken by the defendant insurance company is that no award should have been made, because neither the wife nor Gladys was living with, nor was either dependent on, Roberts at the time of his death, and, further, that the law will not encourage the immoral relation of the parents by- recognizing their illegitimate children. On behalf of the illegitimate children, it is urged that they are the children of the deceased, and that they actually lived with him, and as a matter of fact, were wholly dependent upon him, and are, therefore, by reason of such dependency, entitled to the award.

1. Is the wife entitled to share in the award?

It appears without dispute that the wife was not living with her husband at the time of his death, and had not lived with him for nine years prior thereto. Therefore it is obvious that if she is entitled to the award, it must be by reason of her dependency on him. That question is one of fact. The stipulation of facts shows that she has been supported by the State for upwards of nine years, and that the deceased has contributed nothing. I am unable to see how upon this record it can be said that she was dependent upon her husband for support at the time of his death. The record simply shows that she was not. For cases supporting this view, see New Monckton Collieries, Ltd., v. Keeling, 4 B. W. C. C. 332; Lee v. “Bessie,” 1 K. B. (1912) 83, 81 L. J. K. B. 114, 105 L. T. Rep. 659, 5 W. C. C. 55; Polled v. Railway Co., 5 B. W. C. C. 620; Devlin v. Main Collieries, 5 B. W. C. C. 349; Niddrie & Benhar Coal Co., Ltd., v. Young, 5 B. W. C. C. 552; Nelson’s Case, 217 Mass. 467 (105 N. E. 357); Bentley’s Case, 217 Mass. 79 (104 N. E. 432); Batista v. Railroad Co. (N. J. Sup.), 88 Atl. 954; In re Jones, Ohio Industrial Com’n, 6 N. C. C. A. 250, note; Finn v. Railway, 190 Mich. 112 (155 N. W. 721).

Counsel’s argument in effect amounts to this, that a presumption of dependency arises from the fact of marriage, and. the consequent duty of her husband to support her.

Where the issue of dependency is one of fact, proof that claimant is the wife of the deceased is of course admissible, and in connection with other facts may be of help in determining that issue. Or, if the issue is whether the wife is conclusively presumed to be dependent, proof of the fact of marriage standing alone might raise a presumption that she was living with the deceased at the time of his death, because wives usually live with their husbands. But where proof of marriage is followed by a concession that she had not lived with the deceased for nine years prior to his death, that she had been supported by the State, and that her husband had contributed nothing toward her support during that period, the value of such proof, either on the question of dependency, or in aid of the presumption, has very little force.

The fact that claimant did not voluntarily separate from her husband is urged as a reason why she should be regarded as constructively living with him during her absence. Were this proceeding one to recover for necessaries furnished her by another, or a divorce proceeding, in which permanent alimony was to be awarded to her, this consideration would be important. This proceeding, however, is based upon a statute which provides a fund, not for the benefit of the workingman’s estate, not for the benefit of his creditors, not for those equitably entitled to be supported by him, but the fund is provided for the benefit of those dependent on his labor at the time of his death.

The act provides:

“If death results from the injury, the employer shall pay, or cause to be paid, subject, however, to the provisions of section 12 hereof, in one of the methods hereinafter provided, to the dependents of the employee.” Section 5, pt. 2, Extra Session 1912 (2 Comp. Laws 1915, § 5435).

Unless the claimant is actually dependent upon the employee at the time of his death, she does not come within the class designated by the statute, however unjust or inequitable it may appear. What may have led to the separation is of little importance, if it results in the claimant ceasing to be a dependent upon the employee. For instances where claimants were being cared for in the workhouse, reformatory, and asylum, see Rees v. Colliery Co., 1 K. B. (1903) 259 (72 L. J. K. B. 85, 87 L. T. Rep. 661, 19 L. S. R. 113); Trainer v. Addie & Sons Collieries, Ltd., 42 Sc. L. R. 85 (7 F. 115, 12 S. C. L. S. 460); Berlin v. Chesky, Wis. Industrial Com’n, 6 N. C. C. A. 269, note.

In putting this construction on the act, we do not mean to hold that a wife who is temporarily absent for travel, business, pleasure, or health, as indicated by Mr. Justice Steere, in Finn v. Railway, supra, would be excluded from the benefits of the act, if she has not ceased to be dependent. Our conclusion on this record is that the wife was not a dependent within the meaning of the act, and therefore is not entitled to participate in the award.

2. Is Gladys entitled to share in the fund?

What 'has been said with reference to her mother, in the main applies to Gladys. No presumption of dependency in her behalf can be indulged. In order to indulge the presumption of dependency in* her behalf, it must appear that she was living with the deceased at the time of his death, and that there was no surviving parent. Neither one of these conditions was present, and therefore she is not within the class presumptively entitled to the fund. If she is entitled to participate in the fund, it must be by reason of her having been dependent upon her father at the time of his death. The record conclusively shows that she was not dependent upon him at that time; therefore she is not entitled to participate in the award.

3. Are the illegitimate children entitled to share in the award?

It appears to be conceded upon the record that Murna and Ellis are the children of the deceased. It further appears that they lived with him and were members of his family, and that they were dependent upon him at the time of his decease. They were actually cared for and supported by the deceased, and they had a right to expect a continuation of the support, and care had he lived. This brings them clearly within the statute, and establishes as a matter of fact that'they were dependent,- and therefore entitled to the fund. But it is said they are illegitimate children, and that the law will not encourage the immoral and unlawful relation of the parents by recognizing them. The children are in no wise responsible for their existence or status. They are here, and must' be cared for and supported. They were cared for and supported by the 'deceased up to the time of his death. It was his legal and moral duty to support them, and he was responding to that duty when death overtook him. We think they are clearly within the class entitled to the fund, and it must be passed to them.

The award made by the Industrial Accident Board must be set aside, and the fund awarded to them.

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


author: Bibd, J.

text:
    JASNOWSKI v. JUDGE OF RECORDER’S COURT OF THE CITY OF DETROIT.
    1. Constitutional Law — Statutes- — -Deceptive Advertising — Title of Act — Surplusage.
    Act No. 276, Pub. Acts 1913 (3 Comp. Laws 1915, § 15049)* entitled “An act to regulate and prohibit false, deceptive, fraudulent and misleading advertising in newspapers, periodicals or other publications or by circulars or hand bills,” is not unconstitutional as embracing contradictory provisions, viz., prohibition and regulation, where the act itself provides for prohibition only; the word “regulate” in the title may be eliminated as surplusage.
    2. Same — Statutes—Advertising—Books.
    Neither is the act unconstitutional in that it is broader than its title by extending the inhibition to books, whereas the title mentions only “newspapers, periodicals or other publications,” as under the rule of ejusdem generis the word “books” would be included within the words “other publications.”
    3. Same — Statutes—Police Power — Question of Pact.
    It is not beyond the police power of the legislature to prohibit “deceptive and misleading” advertising .for the alleged reason that the guilt or innocence of the accused would depend upon the whim of successive juries; in any given case it would be a question of fact for the jury.
    4. Indictment and Information — Fraud—Deceptive Advertising —Criminal Law.
    An offense under Act No. 276, Pub. Acts 1913, prohibiting deceptive and misleading advertising in newspapers, etc., was properly charged, where the newspaper advertisement was set out in the information, and respondent was charged with making therein “certain assertions, representations and statements of fact which were untrue, deceptive, and misleading,” and the statements, etc., relied upon were set out in detail.
    Mandamus by Charles H. Jasnowski, prosecuting attorney of Wayne county, against William F. Connolly, recorder of the city of Detroit, requiring respondent to set aside an order quashing an information.
    Submitted October 19, 1915.
    (Calendar No. 26,832.)
    Writ granted June 2, 1916.

      Charles H. Jasnowski, Prosecuting Attorney, and Joseph T. Schiappacasse, Assistant Prosecuting Attorney (Eugene P. Berry, of counsel), for relator.

      Ormond F. Hunt, for respondent.
   Bibd, J.

Frank G. Lafer, a retail dealer in groceries in the city of. Detroit, was informed against for having violated Act No. 276, Pub. Acts 1913 (3 Comp. Laws 1915, § 15049). A motion to quash the information was interposed, on the ground that the act was unconstitutional. The motion was granted, and the prosecuting attorney has moved this court for a writ of mandamus to compel the trial court to set aside its order. The attack upon the statute is aimed at the title. It is said the title is invalid because it violates the constitutional provision that “no law shall embrace more than one object, which shall be expressed in its title.” Art. 5, § 21. The title reads as follows:

“Ah act to regulate and prohibit false, deceptive, fraudulent and misleading advertising in newspapers, periodicals or other publications, or by circulars or hand bills.” •

The precise contention is that the title embraces two objects instead of one, and that they are “repugnant, inconsistent and self-contradicting”; that regulation and prohibition are repugnant to each other.

1. It appears to be agreed by both counsel that the act is a prohibitory and not a regulatory one. If we concede for the purpose of the argument that respondent’s position is sound that the terms prohibition and regulation are repugnant terms, we have then this situation to deal with: A title which gives notice of two distinct objects, but delivers only one of them in the act. Had the act followed the title, and provided both regulation and prohibition, a-different question would have been presented; but we should hesitate to declare the act invalid because the title gives notice of too much, if due notice was given of what the act actually contained. The principal reason back of this provision of the Constitution is to prevent surprise on the part of legislators and laymen by finding more in the act than the title gives notice of, and not to avoid disappointment at not finding in the act all that the title gives notice of. Where the title of the act is broader than the act itself, it has not usually been regarded as a fatal defect unless the title failed to give notice of what the act contained. 26 Am. & Eng. Enc. Law (2d Ed.), p. 575; 36 Cyc. p. 1032; Boyer v. Insurance Co., 124 Mich. 455 (83 N. W. 124, 83 Am. St. Rep. 338); State v. Becker, 3 S. D. 29 (51 N. W. 1018); State, ex rel. Miller, v. Board of Com’rs, 17 Neb. 85 (22 N. W. 228); Cooley, Constitutional Limitations (7th Ed.), p. 210; Strauss v. Heiss, 48 Md. 292; Ash v. Thorp, 65 Kan. 60 (68 Pac. 1067); People v. Wheeler, 185 Mich. 164 (151 N. W. 710); Judson v. City of Bessemer, 87 Ala. 240 (6 South. 267, 4 L. R. A. 742). The title in question gives notice of prohibition and regulation. The act provides for prohibition. We are therefore of the opinion that the word “regulation” may be eliminated and regarded as surplusage. 36 Cyc. p. 1033. This will leave the title free from the objection raised.

2. The further question is raised that the act is broader than the title, because the inhibition in the act against such advertising is extended to books, whereas the title mentions only “newspapers, periodicals or other publications." It is insisted that, if the rule of ejusdem generis is applied, the word “books"' would be excluded. That rule provides that:

“Where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated." (36 Cyc. p. 1119.)

Under this rule we are of the opinion that the word “books" would be included within the words “other publications," because they are of the same general class as newspapers and periodicals.

3. A third point raised is that, while it was within the power of the legislature to prohibit advertisements which are untrue, it is beyond the police power of the legislature to prohibit advertisements which are “deceptive and misleading." The principal reason assigned is that what might tend to deceive one person might not deceive another, and it would thereby result in leaving the question of the guilt or innocence of the accused to the whim of successive juries. In any given case it would be a question of fact whether the representation of fact in the advertisement was untrue, deceptive, or misleading. This determination would be attended by no more difficulty than is frequently encountered by juries in determining what the intention of the respondent was by what he said and did. This argument could as well be made against many penal offenses on our statute books, where a question of fact is involved. We have no doubt about the power of the legislature in the exercise of the police power of the State to enact such legislation.

4. Several questions are raised against the sufficiency of the information. The newspaper advertisement was set out in the information, and respondent was charged with making therein “certain assertions, representations and statements of fact, which were untrue, deceptive, and misleading,” and setting out in detail the statements, etc., relied upon. We think the information charged an offense under the act.

The writ will issue as prayed.

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


text:
    BROMBERG v. NORTH AMERICAN LIFE INSURANCE CO.
    1. Insurance — Evidence—Coroner’s Verdict — Death—Agency.
    A certified copy of the coroner’s certificate of death obtained by decedent’s brother, who testified that he was acting for his father, the beneficiary, and forwarded by him to defendant insurance company, was competent as an admission, notwithstanding the denial of the beneficiary that he hnew of or authorized the act.
    2. Same — Hearsay—Certificate of Death.
    Under 2 Comp. Laws 1915, § 5607, requiring the coroner to insert the cause of death in his certificate that he files with the board of health, and that a copy thereof shall be prima facie evidence in all courts and for all purposes of the facts recorded therein, the court was not in error in admitting in evidence the copy, which was, however, subject to contradiction.
    3. Same — Evidence—Suicide.
    That deceased died from a gunshot wound in the head, was not feeling well, a revolver being found in his hand, and no appearance of any struggle discoverable, that no one had access to his rooms, save his own family, considered with proofs of death and public record of the coroner’s verdict attributing the cause to suicide, was sufficient to support the verdict of the jury for defendant insurer.

      Error to Wayne; Wiest, J., presiding.
    Submitted January 12, 1916.
    (Docket No. 105.)
    Decided June 2, 1916.
    Assumpsit by Aaron Bromberg against the North American Life Insurance Company on a policy of insurance. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      George W. Bates, for appellant.

      Stellwagen & MacKay, for appellee.
   Bird, J.

Recovery is sought by plaintiff on an insurance policy issued by defendant on the life of Myer Bromberg, December 31, 1910, and payable in the event of death to his father, Aaron Bromberg. The policy contains the provision that it should be incontestible after two years “unless within two years from the date therein, insured shall die by his own hand or act, whether sane or insane.” The defense was that the insured committed suicide. It appears that Aaron Bromberg kept a store on Woodward avenue in Detroit, and he and his son lived in rooms over the store. On the morning of June 11, 1912, Myer did not arise at the usual hour, and his father went to his room to see if he wanted anything. He informed his father that he wanted to remain in bed for a time. At 4 o’clock in the afternoon Max, the insured’s brother, went to his room and found him lying on his back in bed with a bullet hole in his forehead. The bed was covered with blood, and a revolver was lying on a chair near by. The testimony with reference to the position of the revolver was in conflict. The deputy coroner gave testimony that when he arrived the revolver was still in his hand. It appeared that the insured was unmarried, and was in reasonably good health, and, so far as appears, he had no business or other troubles which would cause him to take his life. A directed .verdict was requested by plaintiff. The trial court was of the opinion that the question of suicide was one for the consideration of the jury, and he accordingly submitted the question to them. They found in favor of the defendant. Plaintiff assigned error: First, because certain testimony was admitted ; and, second, because the court refused to direct a verdict in his behalf.

1. A certified copy of the coroner’s certificate of death was obtained by the beneficiary’s son Max, and made a part of the proofs of death and forwarded to the defendant company. This certificate recited that the cause of death “was a gunshot wound in head, self-inflicted while temporarily insane.” ' It was objected to on the ground that the beneficiary did not authorize the sending of it. The son Max, who secured the proofs of death, testified that in so doing, and in forwarding the same to the defendant, he was acting for his father. We think the certificate was admissible. It was a part of the proofs of death forwarded to the defendant in pursuance of the terms of the contract, and the beneficiary relied upon it to satisfy a condition precedent to bringing suit. It was in the nature of an admission, but was subject, however, to explanation by the beneficiary if it misstated the facts or was included in the proofs of death without his authority. Subsequent to its introduction, the beneficiary made his explanation of it, and the jury had the benefit of his denial that it was transmitted to the company with his knowledge or consent.

A certified copy of the coroner’s certificate of death filed with the board of health, reciting that the insured came to his death from a gunshot wound in the head, self-inflicted while temporarily insane, was also offered and received in evidence. It is said that it was error to admit the certificate because it was secondary evidence of the cause of death. In making up this certificate of death and filing it with the board of health, the coroner acted in compliance with the statutes of this State. The statute requires the coroner to insert the cause- of death, and it further provides that such certificate, when made out and filed, shall be prima, facie evidence in all courts for all purposes of the facts recorded therein. 1 How. Stat. (2d Ed.), § 1580 (2 Comp. Laws 1915, § 5607). This certificate, being prima facie evidence of its contents, was subject to explanation or contradiction if not in accord with the facts. We see no error in its admission.

2. It is further contended that the court erred in refusing to direct a verdict for the plaintiff. The claim is that the burden of showing that the insured committed suicide was upon the defendant, and, as there was no proof that he did suicide, a verdict should have been directed for the plaintiff. It is quite true that the burden of establishing the fact that the insured committed suicide was upon the defendant, and had it appeared that the insured was dead from a gunshot wound in the head, and nothing more, plaintiff would have been entitled to the verdict which he requested, because the law will not presume, under such circumstances, that he committed suicide. 1 May on Insurance, § 325. But when such testimony is followed by other testimony showing the attendant circumstances, and they show in part that on the day in question the insured was not feeling usually well; that when his body was discovered, a revolver was found in his hand; that there was no evidence of any struggle.preceding the shooting; that so far as appears no one had access to his room save his own family, and the public records and the proofs of death, made soon after the occurrence, show the cause of death to be suicide — we think an issue of fact is thereby raised for the consideration of the jury. Furbush v. Casualty Co., 133 Mich. 479 (95 N. W. 551).

The judgment must be affirmed with costs of this court to the defendant.

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


author: Person, J.

text:
    TUFFELMIRE v. TUFFELMIRE.
    Divorce — Extreme Cruelty — Evidence.
    Conflicting evidence in a proceeding for divorce reviewed and held to sustain defendant’s cross-bill and a decree in her favor upon the charge of cruelty.

    Appeal from Kent; Brown, J.
    Submitted January 12, 1916.
    (Docket No. 113.)
    Decided June 2, 1916.
    Bill by Frank Tuffelmire against Nellie Tuffelmire for a decree of divorce. Defendant filed an answer in the nature of a cross-bill asking for a decree of divorce. From a decree for defendant, complainant appeals.
    Affirmed.

      C. G. Turner, for complainant.

      Allan B. Wallower (Cogger & Cogger, of counsel), for defendant.

      Authorities on the question as to whether profanity and obscenity are grounds for .divorce as cruel and inhuman treatment are .gathered in a note in 12 L. R. A. (N. S.) 820. And as to failure of husband to support family as grounds for divorce, as cruelty, see note in 43 L. R. A. (N. S.) 260.

   Person, J.

Complainant brought this suit for the purpose of obtaining a divorce from defendant and the custody of their four minor children. The defendant filed an answer in the nature of a cross-bill in which she also prays for a divorce and the custody of the children. After hearing the* testimony the circuit judge made a decree granting the divorce in accordance with the prayer of the cross-bill. The decree also provides that the defendant shall have the custody of the children until the further order of the court, that she may take such of the furniture belonging to the parties as she may select, and that the complainant shall pay her the sum of $5 per week to be used towards her maintenance and the support of the children. The complainant appeals from this decree, but finds no specific fault with the provision for alimony, if it should be held that the defendant is entitled to the divorce.

The complainant charges that the defendant is a woman of ungovernable temper, who frequently indulges in violent fits of passion, and that she is in the habit of using profane and indecent language to him and about him. He also claims that she has been in the practice of continually accusing him of running with other women, and that she has threatened to shoot him. She denies in her answer the use of profane or indecent language, as well as the threat to shoot complainant, and charges in turn that he is a man of furious and ungovernable temper, and that he curses and swears at her in a violent manner in the presence of the children, and has threatened to strike her. She admits that she has accused him of intimacy with other women, and avers that she has just cause for making the accusation. She also charges that he has neglected to properly clothe and care for either herself or the children. Considerable testimony was given upon each side, with much of detailed circumstance.

The circuit judge, after hearing all of the testimony in open court, and seeing the witnesses, seems to have been impressed with the belief that the defendant’s testimony was the more worthy of credence. We have carefully examined the record, and cannot say that he was wrong in this. Counsel for complainant calls attention to the fact that the allegations in defendant’s cross-bill are very general in their nature, and fail to point out specific instances of cruelty. It is true that the cross-bill is somewhat faulty in this respect, but the testimony under it seems to have been taken without any objection upon this ground, and we think it is too late to raise the objection now.

It is further urged by counsel for complainant that defendant’s cross-bill does not state that complainant was of sufficient ability to provide a suitable maintenance for her, and that it does not aver that he either grossly, wantonly, or cruelly refused or neglected to provide such maintenance. The principal charges, however, in the cross-bill relate to cruelty, and are evidently sufficient, if true, to sustain the decree. They refer, practically, to the same kind of cruelty charged by the complainant against the defendant. And the circuit judge specifically found that the charges of cruelty made by the defendant are true.

Outside of the foregoing the questions to be determined relate entirely to the facts, and in determining the facts, it is a very great advantage to have seen and heard the witnesses.' But, without this, we are of the opinion that the circuit judge was right in his view of the testimony. Certainly, if either party told the truth, it cannot be urged that the welfare of the children requires the continuance of such a home as was being made for them.

No benefit can come from any minute review of the facts, and the decree will be affirmed, with costs.

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


author: Moore, J.

text:
    MORRILL v. MORRILL.
    1. Divorce — Desertion—Evidence.
    Testimony tending to show that the wife in a suit for divorce, after some marital troubles during which the parties lived apart, attempted to return to the husband, who moved away to another farm owned by the parties jointly, and they had not thereafter lived together, held, to support ■ a decree awarding a divorce to the complainant wife.
    2. Compromise and Settlement — Contracts—Offer and Acceptance — Withdrawal of Offer.
    Where the complainant was urged to make a settlement of her property rights for less than they were actually worth, and reluctantly signed an agreement, but was advised by the party who secured her signature that defendant declined to accept it and she at once announced her withdrawal of the offer, it was not accepted before withdrawal and no valid contract was effected, though the writing was presented at the trial, signed by the husband.

    3. Same — Alimony—Solicitor’s Fees.
    An award of alimony, in the form of a farm, jointly owned by husband and wife, to the wife, worth $6,000, and providing that on the payment to her of $437 she should release her interest in the other real estate of defendant, was reasonable, out of property worth about $8,000, defendant being required to pay $120 as temporary alimony and $50 as solicitor’s fees.
    Appeal from Van Buren; Des Voignes, J.
    Submitted April 12, 1916.
    (Docket No. 102.)
    Decided June 2, 1916.
    Bill by Cora M. Morrill against Frank E. Morrill for a divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      David Anderson, for complainant.

      Thomas J. Cavanaugh, for defendant.

      As to the effect of divorce on property held jointly by husband and wife, see notes in 30 L. R. A. 333, 10 L. R. A. (N. S.) 463.

   Moore, J.

This is a divorce proceeding commenced in January, 1915. The parties have one daughter, who was 24 years old when the case was tried. They were married May 29, 1889. Their married life has not been harmonious. One phase of their troubles reached this court. It is the case of Morrill v. Morrill, and is reported in 138 Mich. 112 (101 N. W. 209, 110 Am. St. Rep. 306, 4 Am. & Eng. Ann. Cas. 1100). The decision in that case was rendered in November, 1904. December, 1904, the parties went to living together, and in the following spring moved to a farm owned by the wife, situated about one mile from the farm owned by them by the entireties, and lived at this place until the fall of 1907, when Mrs. Morrill and her daughter Elsie took rooms in the village of Lawrence, in order that Elsie might attend the high school without being obliged to travel back and forth. Mr. Morrill made no objection to this arrangement, and visited his wife and daughter frequently, taking the cream from the farm, to Lawrence, where the wife made the butter, and supplied her husband with baking. In the spring of 1908, when Mrs. Morrill indicated her intention of returning to their home, Mr. Morrill moved over to the farm owned by the parties jointly. When his wife and daughter returned to the home, the husband had moved, taking many of the household goods. The parties have never lived together since. Each one has continued 'in a separate abode. September 17, 1910, Mrs. Morrill filed a bill of divorce, charging desertion. An oraer was made that defendant pay his wife $20 per month for her support during the pendency of the suit, which was then allowed to lie dormant, and the payment of $20 a month was continued until June, 1914, when a paper, to which reference will be made later, was signed, and Mr. Morrill ceased his monthly-payments. On January 30, 1915, the suit filed in 1910 was dismissed, and the bill in this case was filed. Later it was brought to trial, and a decree entered, granting complainant a divorce and settling the property rights of the parties. The case is brought here by appeal. Counsel for appellant say:

“We insist: (1) That the plaintiff is not entitled to a decree dissolving the bonds of matrimony under the testimony in this record; (2) that if she is, then she should be held to be bound by her proposal of settlement and the acceptance; (3) that the award of alimony is not in keeping with the facts developed upon the trial, in this: That the plaintiff gave no assistance in earning any part or portion of the property, but, on the contrary, by reason of vexatious litigation and arbitrary living apart from the defendant, forcing him by order of the court and otherwise to substantially maintain her separate and apart, she depleted his estate.”

We will first consider the question of whether the plaintiff is entitled to a decree of divorce. While the testimony is somewhat contradictory, it fairly shows that when the wife and daughter decided, at the .close of the school year, to return to the farm where they had lived nearly 3 years, and where the husband was then living, he at once decided to move away, and did so. The complainant testifies that she urged him to return to the farm, and he declined. She then proposed that she and her daughter would go to him, but it is clear that he did not encourage their coming. A neighbor testified that, after she had a talk with complainant, who said she had begged defendant to live with her, she saw and talked with defendant, and that he told her the parties could never live together. In defendant’s testimony the following appears:

“Mrs. Morrill pulled up and went to Lawrence and lived there until the next spring. The occasion of that —her excuse was that Elsie shouldn’t drive back and forth or go back and forth on the train. I said, ‘All right, go down.’ I got along nicely. I did not have a housekeeper. I had nobody. I was baching it. I went back and forth once or twice a week to Lawrence. I had cows at the farm, milked the cows, skimmed the milk, and took the cream down to her. She made a little butter, and I brought some back. We got along seemingly all right when we were separate and apart, only seeing each other occasionally. Well, it came springf, and I kind of looked the situation over and said, T will go back, I guess, to the other place.’ I was running both places at the same time. I had 115 acres of grapes to look after. At that time there was 65 acres of grapes on the Ihling place. The more I had the poorer I got, so I thought I would simmer down to as small as I could.
“Q. Well, did you have any talk with her, or she go to see you, or did you go to see her? * *
“A. Why she would come over and say, ‘Well I have a notion to come over and live with you.’ I says, ‘There is no key to the door.’ I said, ‘The only way you can lock it is to stay on the inside. There never has been a key to the front door.’
“Q. Well, did she say anything at that time about living in the neighborhood?
“A. She said she wouldn’t live in that neighborhood. But she used to say jokingly, T am coming over to live,’ but I knew by the tone of voice that she said it in that she didn’t mean it. I have been there since that time, keeping my own house, getting my, own meals, looking after myself.”

This case was heard in June, 1915. The parties had not lived together since the spring of 1908. The record shows the complainant desired to live with defendant. He moved from where they had lived upon her farm, and failed to provide any place on his farm where she and her daughter could live with him. His testimony gives one the impression that he has no desire to live with her, and that his chief objection to the divorce is the amount of alimony awarded to her.

2. Should complainant be bound by an alleged agreement to settle for her property rights for $4,150? The complainant says she was importuned to make this proposal of settlement, and that she very reluctantly consented to sign it; that she was told by the person who procured her signature that defendant, when it was presented to him, declined to accept it, and that she at once stated that she withdrew her offer. She also stated she never knew defendant had signed the paper until it was presented in court. We do not think it was shown that the offer was accepted before it was withdrawn.

3. Is the award not in keeping with the facts developed upon the trial? We think it is not clear that complainant is wholly - responsible for the litigation and trouble between the parties. Defendant, while testifying in referring to the farm owned by the entireties, said:

“Knowing the farm as I do, and operating it these years, $6,000 is a fair market value. I have no objection if the court should conclude in this case that the divorce should be entered to having this property sold and the proceeds divided, or any other arrangement the court might make, except that it is my honest judgment that I do not want it at any greater price than $6,000."

At the conclusion of all the testimony the court inquired of counsel about this farm in case he decided a decree of divorce should be granted:

“Do I understand that the court would be at liberty to set that entire 80 acres over to her at that price on the theory of $6,000, or is the proposition to put it on the market rather than concede that price? Do you understand me? What I want to know is this: Whether the defendant is willing that that property be actually determined by this court at $6,000 whether he takes it or the other party. (Mr. Cavanaugh confers with defendant.)
“Mr. Cavanaugh: Yes; they can have the option on it at $6,000 if they want it; they can have it.
“The Court: I wanted to know so that I may the better — in looking this matter all over — I-may not find my way clear to do that, but should I do so, I wanted to know exactly what that proposition was.
“Mr. Cavanaugh: Yes, your honor, they can have it at $6,000, or we will take it at the same price, and we don’t care which.”

In his decree the circuit judge mentions eight separate parcels of land owned by the defendant with their values, and also finds the value of his personal property and the amount of his debts, and finds him the owner of property of the net value of $7,913. He. places the value of the farm , owned jointly at the sum of $6,000. He decreed to the complainant the farm owned by the entireties subject to the mortgage, and upon the payment to her of $487.66 she shall release to him her interest in all the rest of the real estate. She was also decreed $120 as temporary alimony and $50 solicitor’s fees.

A careful examination of the, record satisfies us the decree should be, and it is, affirmed, with costs to complainant.

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