text:
    SHAFFER v. D’ARCY SPRING CO.
    1. Master and Servant — Workmen’s Compensation Act — Agreement's eor Settlement op Claim — Approval op Board.
    A final settlement between claimant and insurer under tbe workmen’s compensation act does not preclude tbe industrial accident board from reopening the case and making an award of further compensation unless the agreement is not only filed with, but also approved by, such- board.
    2. Same — Powers op Industrial Accident Board.
    The denial by the industrial accident board of claimant’s application for a review of the order on which a final settlement was made by claimant with insurer, which settlement was filed with the board, will not, of itself, constitute an approval of such settlement which will preclude the board from subsequently reopening the cause, in the absence of record evidence that it was so intended.
    3. Same — Denial op Application por Review — Res Judicata.
    Under section 14, part 3, of the workmen’s compensation act (Act No. 10, Extra Session 1912, 2 Comp. Laws 1915, § 5467), providing that “any weekly payment under this act may he reviewed by the industrial accident board at the request of,” etc., the denial of a claimant’s application for a review of the board’s order for weekly payments is not res judicata of a subsequent application.
    4. Same — Workmen’s Compensation Act — Evidence — Admissibility.
    On the reopening of a hearing on a claim for damages, it is prejudicial error to admit in evidence on the merits depositions which, after they were taken under an irregular notice and in the absence of the defendants, it was stated to defendants would be used only in procuring a reopening of the case.
    5. Same.
    Part 3, § 14, of the act must be read in connection with the previous section, and thus read the industrial accident board may, on reviewing its former order for weekly payments, provide that its order then made shall close the case, even though plaintiff will not have received the maximum amount allowed by the act.

    Certiorari to Industrial Accident Board.
    Submitted June 25, 1917.
    (Docket No. 100.)
    Decided December 28, 1917.
    Rehearing denied June 20, 1918.
    Isaac Freeman Shaffer presented his claim for compensation against the D’Arcy Spring Company for injuries received in defendant’s employ. From an order awarding compensation on petition to reopen the case, and making such order final, plaintiff and defendant, and the Prudential Casualty Company, insurer, bring certiorari.
    Reversed, and remanded.

      Charles L. Dibble (C. Hubbard Kleinstuck, of counsel), for plaintiff.

      Campbell, Bulkley & Ledyard and Jackson & Fitzgerald (Wilson W. Mills, of counsel), for defendants.

      Ou construction and effect of workmen’s compensation act, generally, see notes in L. R. A. 1916A, 23, L. R. A. 1917D, 80.

   Bird, J.

Plaintiff, while at work for the D’Arcy Spring Company, received an injury to his left leg for which he claimed compensation. His application was duly filed with the industrial accident board and he was awarded, by a committee of arbitration, $6 a week from the date of the injury to December 9, 1914, the date of the award, and also a medical bill for $4.50. Neither party appealed from this award, and it was soon thereafter paid to plaintiff by the defendant casualty company, at which time the following receipt was signed by the plaintiff:

“This receipt means a final settlement. Do not sign it unless you intend to end payments of compensation and close the case.
“Received of Prudential Casualty Company of Indianapolis, Ind., the sum of one hundred thirty-eight dollars and no cents, making in all, with weekly payments already received by me, the total sum of one hundred thirty-eight dollars and no cents, in settlement of compensation under the Michigan workmen’s compensation law, on account of injuries suffered by myself on or about the 15th day of June, 1914, while in the employ of the D’Arcy Spring Company of Kalamazoo, Michigan, subject to review and approval by the industrial accident board.”

Later, in April, 1915, plaintiff petitioned the board to review the former order for weekly payments, and to increase and extend the same on account of his failure to recover from his injuries. In June, 1915, this application was denied. In April, 1916, a year later, plaintiff filed the present petition setting forth his physical condition and praying for substantially the same relief as in the former one. Considerable testimony was taken by both parties and presented to the board upon this application. After due consideration the order was granted and the case set down for a rehearing. Following this both parties took depositions bearing on plaintiff’s physical condition. A hearing was had and the following order made:

“It is ordered and adjudged that said applicant is entitled to receive and recover from respondents compensation at the rate of six ($6.00) dollars per week from the date of the last payment to November 22, 1916, making a total now due of six hundred and twenty-four ($624.00) dollars; this to close the case.”

This order appears not to have pleased either party, as both applied for and received a writ of certiorari from this court to review the same. The defendants question the validity of the proceedings and order on the grounds that:

“(a.) The board had no authority under the law to hear and reopen said cause.
“(b) Because the board had no authority under the law to hear the last petition for review, for the reason that in February, 1915, a receipt in full was made between the parties hereto, which said receipt was approved by action of the industrial board, which thereupon became final and binding upon the parties by section 5, pt. 3, of the workmen’s compensation act (Act No. 10, Extra Session 1912 [2 Comp. Laws 1915, § 5458]).
“(c) Because the case was res judicata for the reason that on July 8, 1915, the board had passed upon the petition to reopen and review, filed by claimant, and had denied the same.
“(d) Because the final judgment is contrary to law.”

The claimant excepts thereto for the following reasons:

“ (a) Because the board had no right to cut off or foreclose the claimant from receiving further compensation in the future.
“(b) Because there was no evidence to sustain the final judgment of the board in this, that all the evidence showed that claimant’s condition was no better at the time the award was entered than it had been at any time in the past since the date of the injury.
“(c) Because the evidence was undisputed that the claimant was permanently and totally disabled.”

(6) It does not appear what consideration passed to plaintiff for the settlement receipt. The amount named in the receipt was the precise amount allowed by the arbitration committee. But assuming that there was some consideration not stated in the record, we are of the opinion that the receipt did not have the effect of divesting the board of' jurisdiction to make further orders in the premises.' The provisions of the act in respect to such agreements is that it “shall be filed with the industrial accident board, and, if approved by it, shall be deemed final and binding upon the parties thereto.”

Two things appear to be necessary to make the agreement final. It must be filed and must also be approved by the board. The agreement in question was filed but never approved. Obviously from the language of the act the legislature intended the board should exercise some discretion in the premises before permitting the agreement of the parties to become final. It does not appear that the board ever acted upon it or that it was ever requested to approve it. Until this is done the agreement is not final. Foley v. Railway, 190 Mich. 507 (157 N. W. 45); Dettloff v. Hammond, Standish & Co., 195 Mich. 117 (161 N. W. 949).

But it is argued that the receipt was on file at the, time the board rejected plaintiff’s first application to review the award, and the board’s denial thereof was in effect an approval of the order. We do not agree with this conclusion. The order itself does not disclose that it was based upon the agreement, or that the agreement was called to its attention or considered. Approval of the agreement by the board required affirmative action upon its part, the proof of which should be found in its official records rather than in inference.

(e) Because the board refused to reopen the case in June, 1915, it is said that order is res judicata, of the present application. The compensation act (part 3, § 14 [2 Comp. Laws 1915, § 5467]) provides that “any weekly payment under this act may be reviewed by the industrial accident board at the request of,” etc. There appears to be no restriction on the power given to the board to review its former orders for weekly payments, and we think it was contemplated that it should have this power. The physical condition of a claimant might be such at one time that the application should be denied, whereas at a later time his condition might demand a review.

After the first application was denied, and before the second one was filed, plaintiff gave defendants notice to take depositions in Kalamazoo on a day certain, but omitted the hour at which they were to be taken. The depositions were taken, but defendants were not present. Subsequently plaintiff’s counsel wrote to defendants’ counsel that:

“It is not intended that these depositions shall present my case on the merits, but simply go to the question of whether I am entitled to an order reopening the case. If it is reopened I will then take other depositions to be used in the argument on the merits.”

When plaintiff’s application was heard on its merits the depositions were received in evidence against defendants’ objection. The notice was clearly irregular under our recent holding in Hamilton v. Macey Co., 195 Mich. 747 (162 N. W. 289), and the letter clearly misled them into the belief that the depositions so taken would not be used upon the hearing upon the merits. We cannot say that this was not prejudicial to defendants’ case and therefore must hold it error.

Plaintiff assigns error on that part of the order which provides that “this shall close the case.” The substance of the argument is that the board has no power to decree that claimant shall receive no further compensation if his injuries continue, and he has not already received the maximum amount allowed by the act. It is quite possible that this construction of the act might be the proper one, were it not for the section which authorizes the board on a review of the weekly payments to “end it.” Part 3, § 14, compensation act, heretofore quoted. This is the section which authorizes the present proceeding, and it expressly gives the board the power to “end it.” This section must be read in connection with the previous section upon which plaintiff bases his argument. When so read it is evident that the board had the power to do just what it did do.

For the error indicated the proceeding must be vacated and the case remanded for further action in accordance with the rules and practice of the board.

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


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    SHERMAN v. CONSUMERS’ POWER CO.
    1. Highways and Streets — Personal Injuries — Defective Streets — Question for Jury.
    In an action against a lighting company for personal injuries sustained by plaintiff as the result of the breaking of a front axle of his loaded dray as he was driving across a trench constructed in the course of laying a cable in the street, held, that jury questions as to the depth of the trench and whether the street was reasonably safe for travel were presented.

      2. Same — Duty of Public Service Company to Restore Street.
    It is the duty of a lighting company to restore a city street in which it has laid its cable to a condition of reasonable safety.
    3. Same — Negligence—Notice.
    Notice to the lighting company of the dangerous condition of the street as a result of its imperfect repair after the laying of its cable was not necessary in order for it to be chargeable with negligence.
    4. Same — Personal Injuries — Negligence—Question for Jury.
    In determining whether a traveler who sustained personal injuries as a result of a defect in' a city street, the existence of which defect was known to him, was guilty of contributory negligence, the true test is: Was the danger arising from the defect obviously of such a character that no person in the exercise of ordinary prudence would attempt to pass over the street at that point?
    5. Same.
    Whether, in attempting to drive across the trench, a known 1 depression in the street, plaintiff was guilty of contributory negligence, held, to have been a question of fact for the jury.
    6. Same.
    Where the danger is not clearly obvious, a person is not guilty of contributory negligence as a matter of law in attempting to drive across a known depression in a street, even though such depression could be avoided.
    Error to Newaygo; Barton, J.
    Submitted June 21, 1917.
    (Docket No. 109.)
    Decided December 28, 1917.
    Case by Earl Sherman against the Consumers’ Power Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Cross, Vanderwerp & Foote (Clyde J. Holmes and W. D. Kline, of counsel), for appellant.

      William J. Branstrom, for appellee.
   Bird, J.

In the fall of 1915 the defendant company installed a boulevard lighting system for the city of Fremont. While engaged in the work it cut a trench from 10 to 12 inches deep and. from 10 to IS inches wide from curb to curb across Main street, and laid in the sand beneath the macadam pavement a wire cable. After the cable was laid the trench was refilled with the materials taken therefrom. This resulted in leaving a ridge across the street. In a short time the materials settled and the ridge gave way to a depression, which appears to have been deeper in the middle of the street where most of the traffic crossed. While the street was in this condition plaintiff drove over it with a dray loaded with bags of feed. When the front wheels dropped into the trench the strain broke one of the front axles, by means of which plaintiff was thrown from the load to the ground, a distance of 10 feet, striking on his right knee and permanently injuring it. He recovered a judgment of $1,377.25 and defendant assigns error upon the refusal of the trial court to direct a verdict in its behalf.

At the conclusion of the testimony defendant requested a directed verdict on two grounds:

(a) That no actionable negligence had been shown.

(b) That plaintiff was guilty of contributory negligence.

(a.) It is insisted that there was no evidence that the street was not reasonably safe and fit for travel because the greatest depth of depression did not exceed 2 Ys inches, and that this depth is not great enough to raise a question of fact as to whether the highway was in reasonable repair. Citing Jones v. City of Detroit, 171 Mich. 608 (137 N. W. 513); Jackson v. City of Lansing, 121 Mich. 279 (80 N. W. 8); City of Dayton v. Glaser, 76 Ohio St. 471 (81 N. E. 991); Hamilton v. City of Buffalo, 173 N. Y. 72 (65 N. E. 944); Powers v. City of New York, 121 App. Div. 433 (106 N. Y. Supp. 166); Lalor v. City of New York, 208 N. Y. 431 (102 N. E. 558, Am. & Eng. Ann. Cas. 1916E, 572).

The two Michigan cases cited deal with depressions 3 inches in depth. In the other cases cited the depressions were 4 inches. While it is necessarily very difficult to fix any precise depth which will raise a question of fact as to whether the highway was in reasonable repair, we think that where the proofs show, as they did here, that the depression where plaintiff passed over it was from 12- to 13 inches wide and from 7 to 9 inches in depth, with hard perpendicular sides (caused by cutting down through the concrete pavement), it presents a fair question for the jury whether the highway was in reasonable repair and fit for travel. Defendant’s counsel argues the question based upon measurements made many months after the injury occurred, which then showed about 2 inches depression, whereas plaintiff testified that he measured the trench within a month after the injury and- found it to be 7 inches in depth in the center where he crossed, and about 13 inches wide. He further testified that it was deeper at the time he passed over it, it being between 8 and 9 inches deep at that time. The question was one for the jury to determine the depth of the trench, and whether under all the conditions the highway was reasonably sáfe for travel.

It is further urged that no actionable negligence was shown, because it appears that the materials taken from the trench were replaced and the way made reasonably safe for travel, and it is argued that if it subsequently became unsafe defendant should have had notice of its condition. If the highway were out of repair it was made so by the operations of defendant, and it was its duty to restore it to a condition of reasonable safety. Williams v. Sager, 165 Mich. 635 (131 N. W. 103). This case was an action against a paving contractor for leaving the street in a defective condition without guarding it. It was there said:

“Whether defendant rightfully or wrongfully made the excavation in the public highway, he was liable for an omission to properly guard and protect the public against injury, and his duty to the plaintiff in that regard could neither be increased nor diminished by his promise to the city.”

No notice was necessary to advise defendant that the highway had subsequently become unsafe if it were the result of imperfect repairs on its part, but if notice were necessary the plaintiff appears to have supplied it in this instance as the record shows that Mr. Rumsey, the engineer and sole representative of the defendant, who directed the improvement, was notified of the condition of the street prior to the accident and that he promised the mayor of the city he would repair it.

It is asserted that plaintiff was guilty of contributory negligence (a) because he had previous knowledge of the defect, and (5) because there was another route which he could have traveled from the station to his place of business.

(a) The argument is made by defendant that plaintiff knew of the defect; that he conducted a flour and feed store on Main street not far from the defect; that it was daylight, and that his act in driving into the trench was contributory negligence as a matter of law. Citing Smith v. City of Jackson, 106 Mich. 136 (63 N. W. 982); Black v. City of Manistee, 107 Mich. 60 (64 N. W. 868); Church v. Village of Howard City, 111 Mich. 298 (69 N. W. 651, 66 Am. St. Rep. 396); King v. Township of Colon, 125 Mich. 511 (84 N. W. 1077); Hodge v. City of St. Louis, 146 Mich. 173 (109 N. W. 252).

On the other hand, plaintiff contends for the oft-repeated holding of this court that it is not negligence, as a matter of law, for one to attempt to pass over a highway known to be defective, and cites Lowell v. Township of Watertown, 58 Mich. 568 (25 N. W. 517); Harris v. Township of Clinton, 64 Mich. 447 (31 N. W. 425, 8 Am. St. Rep. 842); Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011, 5 L. R. A. 143, 13 Am. St. Rep. 457); Argus v. Village of Sturgis, 86 Mich. 344 (48 N. W. 1085); Finn v. City of Adrian, 93 Mich. 504 (53 N. W. 614); Sias v. Village of Reed City, 103 Mich. 312 (61 N. W. 502); Germaine v. City of Muskegon, 105 Mich. 213 (63 N. W. 78); Sehwingschlegl v. City of Monroe, 113 Mich. 683 (72 N. W. 7); McTiver v. Township of Grant, 131 Mich. 456 (91 N. W. 736); Belyea v. City of Port Huron, 136 Mich. 504 (99 N. W. 740); Wolverton v. Village of Saranac, 171 Mich. 419 (137 N. W. 211).

It was held in McTiver v. Township of Grant, supra, that the true test is: Was the danger arising from the known defect obviously of such a character that no person in the exercise of ordinary prudence would attempt to pass over the highway at that point? The defect in question had existed for several weeks, and was passed over daily by the traveling public, and plaintiff admitted that he had driven over it several times. Plaintiff’s testimony shows that he had the defect in mind a few moments before he reached it, but his attention was attracted away from it momentarily to his high spirited horses, one of which was afraid of some approaching automobiles. This testimony appears to bring the question within the latter class of authorities and within the realm of fact.

(b) Even if there were another way by which plaintiff could have avoided passing over the trench, the danger of doing so was not so obvious that he would be guilty of negligence as. a matter of law in attempting it. Harris v. Township of Clinton, supra; Argus v. Village of Sturgis, supra; Germaine v. City of Muskegon, supra.

As we find no reversible error in the refusal of the court to direct a verdict the judgment will be affirmed.

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


text:
    BARKLEY v. VILLAGE OF HIGHLAND PARK.
    Municipal Corporations — Personal Injuries — Notice op Injury —Notice op Claim.
    Under a village ordinance relating to the service of a notice of personal injuries, within 60 days after an accident, on the village, and providing that it shall he a defense in an action for personal injuries that a verified claim has not been presented to the council for allowance, one claiming damages for injuries may give an unverified notice at any time within 60 days after the injury and may present a separate verified claim after the expiration of the 60-day period.
    Certiorari to Wayne; Lamb, J., presiding.
    Submitted June 7, 1917.
    (Docket No. 13.)
    Decided December 28, 1917.
    Case by Lucy Barkley against the village of Highland Park for personal injuries. From an order granting a motion to dismiss, plaintiff brings certiorari.
    Reversed.

      Monaghan, Monaghan, O’Brien & Crowley, for appellant.

      Claude H. Stevens, for appellee.
   Bird, J.

Plaintiff claims to have been injured on a _ defective sidewalk in defendant village on the 19th day of September, 1914. Within 60 days thereafter, on November 17, 1914, she served on defendant a written notice of her injury, together with a detailed statement of the attending circumstances. On January 17, 1917, she filed her verified claim for damages with the council, and after considering the same payment was refused, on January 29, 1917, because her verified claim was not filed within 60 days from the happening of the accident. Suit immediately followed, but was later dismissed upon motion of defendant for the same reason assigned by the council. Whether the suit was properly dismissed is the one question to be considered on this record.

Section 26 of chapter 8 of defendant’s charter provides in part as follows:

“This village shall not be liable in damages sustained by any person in the village, either to his person or property, by reason of any defective street, sidewalk, crosswalk or public highway, or by reason of any obstruction, ice, snow or other incumbrance upon such street, sidewalk, crosswalk or public highway, situated in the village unless such person shall serve or cause to be served within sixty days after such injury shall have occurred a notice in writing upon the clerk or deputy clerk of the village, which notice shall set forth substantially the time when and place where such injury took place, the manner in which it occurred, and the extent of such injury as far as the same has become known and that the person receiving such injury intends to hold the village liable for such damages as may have been sustained by him.”

See same provision in Act No. 3, Pub. Acts 1895, chap. 7, § 7.

Section 5 of chapter 8 of defendant’s charter also provides that:

“The council shall audit and allow all accounts chargeable against the village; but no account or claim or contract shall be received for audit or allowance, unless it shall be accompanied with a certificate of an officer of the corporation, or an affidavit of the person rendering it, to the effect that he verily believes that the services therein charged have been actually performed, or the property delivered for the village, that the sums charged therefor are reasonable and just, and that to the best of his. knowledge and belief, no set-off exists, nor payment has been made on account thereof, except such as are endorsed or referred to in such account or claim. Every such account shall exhibit in detail all the items making up the amount claimed and the true date of each. It shall be a sufficient defense in any court to any action or proceeding for the collection of any demand or claim'against the village for personal injuries or otherwise that it has never been presented, certified to or verified as aforesaid, to the council for allowance; or, if such claim is founded on contract, that the same was presented without the certificate or affidavit aforesaid, and rejected for that reason; or that the action or proceeding was brought before the council had a reasonable time to investigate and pass upon it.”

See same provision in Act No. 3, Pub. Acts 1895, chap. 5, § 7.

Counsel insist that plaintiff has literally complied with these provisions; that the notice required by section 26 of the charter was served within the required 60 days; that the notice was not verified, and it is contended that the charter does not require it to be verified; that before suit was commenced a claim, duly verified, was filed with the council in compliance with section 5 of chapter 8 of defendant’s charter.

Defendant asserts that the real issue is whether or not a claim against the village under this charter must be served within 60 days; its contention being, as we understand it, that the two provisions of the charter must be considered together, and that, so construed, the claim as well as the notice of injury must be served within 60 days from the date of the injury. It is also insisted by the defendant that the case of Griswold v. City of Ludington, 116 Mich. 401 (74 N. W. 663), is authority for this contention.

1. Plaintiff has attempted to satisfy the charter provisions by separating the requirements and giving notice at one time and filing her claim at another, and the question to be determined is: Is this permissible? There is no question raised that the notice does not furnish the information which section 26 demands. It is not verified, but there is no requirement in section 26 that it shall be verified. It was served within the 60 days, and it gives the village notice in the language of the section that she “intends to hold the village liable.” If this section is to be construed independently of any other provision, we must hold that the notice served was a compliance in every respect with section 26.

But counsel for the village argues that the notice was not verified in accordance with section 5, and therefore of no force. Counsel for plaintiff replies that section 26 does not require verification. It is right here that the real contention lies. Counsel for the village assumes that the notice was both a notice and k claim. Plaintiff insists that it was simply and solely the notice required by the section and in no sense a claim. The charter provisions appear to leave it optional with one to include his claim in the notice, or give the notice within the 60 days and afterward file his claim. Of course, if he elects to include the claim in the notice, it must then be verified. If, however, he elects to give the notice, and afterward file his claim, the notice need not be verified, but the claim must be when filed. To follow defendant’s construction would be to create by construction á limitation on the time in which a claim could be filed, which obviously was never intended by the legislature, as there is no hint in either section that any limitation is placed upon the time when a claim could be filed. Section 5, with a slight variation, is an old section which has existed for many years in the special charters of certain cities of this State. See Lay v. City of Adrian, 75 Mich. 438 (42 N. W. 959). Section 26 is a new section which was suggested by the legislative committee appointed to revise the laws of cities and villages, and which revision was later adopted by the legislature of 1895. The sections were placed in different chapters by the legislature, and there is no reference in either to the other. For aught that appears in the statute or charter, they are independent provisions, and should be so construed. They rest upon different reasons. Section 26 was obviously passed for the purpose of compelling timely notice to be given to a municipality that suit against it for damages was contemplated and to compel the furnishing of data which would enable it to make an early investigation for itself, whereas section 5 was obviously passed to protect municipalities against excessive and fictitious claims and to give them opportunity to investigate before being sued.

2. The facts in Griswold v. City of Ludington, supra, differ from the facts we are here considering in this: In that case the plaintiff combined her notice with her claim and filed it with the council, but did not verify it. The concluding words of the claim were:

“On account of all of which injuries, bruises, wounds, and disabilities, costs, expenses, charges, loss of time and services, pains, sufferings, and permanent injuries, I claim damage from the said city of Ludington to the amount of $5,000.”

This was not a compliance with the statute, because the claim was not verified. An attempt was after-wards made to supply the verification by filing an affidavit with the council, but the court held it came too late. In the case we are considering the claim was not filed with the notice as will be seen by the concluding words:

“The undersigned desires to notify the village of Highland Park that she intends to hold the said village liable for the damages she has sustained; or may in the future sustain, by reason of the injuries above narrated received through the accident occurring on September 19, 1914, above mentioned.”

One makes a claim for damages and names the sum; the other notifies the council that plaintiff intends to hold the village for her damages without making any specific claim or naming any sum.

It is said in Griswold v. City of Ludington that:

“Under section 1, chap. 22, the claim must be made within 60 days after such injury, and the verification must accompany the claim.”

It is true the verification must accompany the claim, because the statute so provides, but it does not provide that the claim must be made within 60 days. There is nothing in either section which will sustain this construction. It should therefore give way to the construction herein expressed.

The judgment is reversed, and a new trial ordered, without costs to either party.

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


text:
    JOBB v. JOBB.
    1. Divorce — Extreme Cruekty — Evidence—Sufficiency.
    On a bill by a wife for divorce, evidence held, insufficient to show that defendant was guilty of extreme cruelty.
    2. Same.
    Where a husband intentionally strikes his wife a severe blow on the stomach with his fist, and she is ill for several days as a result, he is guilty of extreme cruelty, so as to warrant a decree for divorce.
    3. Same — Extreme Cruelty — Condonation.
    The act of a wife in discontinuing a suit for divorce on the ground of extreme cruelty and continuing to live with her husband, agreeing to forget the past, constitutes a condonation of the offense.
    4. Same.
    Condonation of an act of extreme cruelty on the part of a husband towards his wife constitutes a complete defense in a subsequent suit where the acts have not been repeated and no other acts are relied upon.
    Appeal from Alcona; Widdis, J.
    Submitted June 28, 1917.
    (Docket No. 101.)
    Decided December 28, 1917.
    Rehearing denied October 7, 1918.
    Bill by Emily Jobb against George J. Jobb for a divorce. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Herman Delinks, for plaintiff.

      John H. Killmaster, for defendant.
   Bird, J.

The parties to this suit are husband and wife. Before their marriage both had been previously married and both had several children. They had resided in the city of Toledo for several years, and were married in that city in September, 1912. At that time defendant was about 50 years of age, and the inference from the record is that plaintiff was somewhat younger. They continued to reside in Toledo about two years after their marriage, after which they moved to their present home on a 40-acre farm in Hawes township, Alcona county. In July, 1915, plaintiff filed a bill in the Alcona circuit court praying for a decree of divorce on the ground of extreme cruelty. This suit never came to a hearing. Defendant was desirous that she should continue to live with him, and plaintiff testified that by reason of his good promises and advice of her counsel she finally consented to remain, and both agreed to forget their troubles. That suit was discontinued. Matters went along smoothly for a time, but finally lapsed into the, old rut, and she filed this bill in which she set up substantially what she alleged in the first bill.

Two acts of personal violence are charged; one occasion being when they were having some controversy defendant took hold of her wrist and held it so firmly that it was black and blue for several days. The other occurred while they were in bed. Defendant struck plaintiff a blow on the stomach with his fist, which made her ill, and from which she did not recover for several days. Defendant explains the first-claimed assault by showing that plaintiff attacked him, and that he took hold of her wrist and held her so as to prevent her from injuring him. In reply to the second charge defendant explains that he was sleeping, and dreaming that he was fighting with a dog, and thinks it grew out of the fact that on the previous day he had parted two dogs that were fighting.

The remaining cruelty charges are made up of disagreements and quarrels over various things, such as depriving her of certain prerogatives about the house, his grumbling about household expenses, his dislike of company, his rudeness, his refusal to allow her to take the horse to go to town or to church, his refusal to furnish her with milk and cream on certain occasions. his disinclination to purchase things for the house, and clothing for the plaintiff. These and other similar complaints were causes of most of the controversies. Many of the complaints were those which are not uncommon in households where strict economy is being practiced. Plaintiff is the owner of property in Toledo, from which she receives a monthly income, and not a little of their difficulty grew out of this fact. Defendant appeared to think that plaintiff ought to use her income in clothing herself.

After reviewing all the testimony in the record, we are not persuaded that we should disagree with the conclusions reached by the chancellor. He was of the opinion that relief should be denied and the bill dismissed. The charges of extreme cruelty outside of the acts of personal violence are not sustained. When considered in connection with defendant’s explanations, they do not appear to be very serious. This cannot be said of the acts of personal violence.

The blow which plaintiff received while in bed, if shown to have been intentional, would have entitled her to relief in the first suit. Upon cross-examination she expressed herself as not being sure that his explanation was untruthful, but whether intentional or otherwise plaintiff condoned it when she discontinued her first suit and agreed to forget the past. There is no charge in the present bill that the acts of personal violence have been repeated, nor is there any other act of cruelty alleged since that time which would revive her right to count and rely upon the charges in her first bill. In view of this the condonation would appear to be a complete defense. Eistedt v. Eistedt, 187 Mich. 371 (153 N. W. 676). We think the chancellor reached the right conclusion.

The decree will be affirmed. No costs will be allowed either party.

Kuhn, C. J., and Stone, Osteandee, Mooee, Steeee, Beooke, and Fellows, JJ., concurred.


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    HENZE v. ROGATZKY.
    1. Fraudulent Conveyances — Consideration—Husband and Wife —Services of Wife as Consideration for Deed.
    The services of a wife in her husband’s bakery belong to him and do not furnish an adequate consideration for a conveyance of real estate by the husband to the wife, as against creditors of the husband.
    2. Same — Rights of Creditors — Deeds—Inadequacy of Consideration.
    A conveyance by a husband to his wife of his real property is not supported by an adequate consideration, as against creditors, where he owes her about $1,100 and the property conveyed by him is worth $15,000.
    3. Same.
    Even though the loan by the wife to the husband was a valid obligation any surplus over and above the loan and homestead exemption equitably belonged to creditors of the husband’s estate, or so much thereof as was necessary to satisfy their claims.
    Appeal from Wayne; Lamb, J., presiding.
    Submitted June 22, 1917.
    (Docket No. 129.)
    Decided December 28, 1917.
    Bill by William E. Henze, administrator of the estate of Richard Rogatzky, against Mathilda Rogatzky to set aside a deed. From a decree for plaintiff, defendant appeals.
    Affirmed.

      William E. Henze, in pro. per.

      Harry H. Wait, for defendant.
   Bird, J.

Gustav Rogatzky presented his claim against his deceased brother’s estate to the commissioners and it was allowed at the sum of $3,920.01. There being no available assets in the estate to satisfy the same the administrator filed this bill to set aside a conveyance of real estate which deceased made to defendant, his wife, the day of his death. The real estate in question consists of two lots situate on Michigan avenue between Fifteenth and Sixteenth streets, in the city of Detroit. The lots, with the improvements thereon, are said to be worth the sum of $15,000, with an incumbrance of $2,700. The deceased was a baker and followed his trade for many years at this location. It was the contention of the administrator that the conveyance was void as to creditors because without consideration. The consideration named in the deed was $1.

Defendant denies that the conveyance was without consideration, and alleges it was made up as follows: That upwards of 20 years ago she inherited $500 from her people, and loaned the same to her husband to pay on the purchase price of this property; that during the 20-odd years she has worked in the bakery, assisting her husband, besides attending to her regular household duties; and that in consideration of these two items the deceased often promised that he would convey the property to her, and finally on the day of his death he did so.

At the conclusion of the hearing the chancellor was of the opinion that the conveyance was in the nature of a testamentary disposition of the property, and therefore passed to defendant, subject to the debts of the deceased. A decree followed which set aside the conveyance as against the claims of creditors.

We are of the opinion that the chancellor reached the right conclusion. The services of the wife would not furnish a consideration for the conveyance, at least as against the claims of the husband’s creditors. Michigan Trust Co. v. Chapin, 106 Mich. 384 (64 N. W. 334, 58 Am. St. Rep. 490); Ball v. Phenecie, 94 Mich. 355 (53 N. W. 1114). The services which she rendered were those of a clerk in the bakery, waiting upon customers, and they were rendered for and belonged to the husband. There is some testimony to the effect that the deceased stated to others that he intended to deed the premises to defendant in consideration of her faithfulness, and to several persons he stated that he was going to make a joint deed. The most that can be claimed for this testimony is that it shows an unexecuted intention of rewarding her for the long and faithful support she had given him.

The loan to him of $500 is not satisfactorily established, but, conceding it to be established, we think she failed to show an adequate consideration for the deed as against her husband’s creditors. Case Manfg. Co. v. Perkins, 106 Mich. 349 (64 N. W. 201). A loan of $500 made 20 years ago would amount to no more than $1,100 or $1,200 at the present time, if simple interest were computed at the legal rate for the whole time.

The deceased undoubtedly wished defendant to have his estate, but we are not inclined to construe his act as intending she should have it to the exclusion of lawful claims. If we concede that the loan was a valid obligation, defendant still has property worth nearly $10,000, over and above the loan and homestead exemption. This sum equitably belongs to the creditors of the estate, and should be devoted to the payment of their claims, or so much thereof as is necessary to satisfy them. Blue v. Schurtz, 115 Mich. 690 (74 N. W. 178).

As this view is in keeping with the conclusion reached by the chancellor, the decree will be affirmed, with costs.

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


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    ROSS v. STOLL.
    1. Taxation — Exemptions—Building and Loan Associations— Mortgages.
    Under Act No. 91, Pub. Acts 1911, § 2 (1 Comp. Laws 1915, § 4269), exempting building and loan mortgages from the mortgage tax under section 1 of said act, only mortgages owned by building and loan' associations are covered.
    2. Appeal and Error — Scope of Review.
    The Supreme Court will not consider a question available only on writ of certiorari to review mandamus proceedings where such writ is not utilized.
    Certiorari to Wayne; Hosmer, J.
    Submitted October 23, 1917.
    (Calendar No. 27,518.)
    Decided December 28, 1917.
    Mandamus by George W. Ross to compel Otto Stoll, register of deeds of Wayne county, to receive and record a land contract. From an order granting the writ on the payment of the tax required by Act No. 91, Pub. Acts 1911, plaintiff brings certiorari.
    Affirmed.

      Berger & Milburn, for appellant.

      Charles H. Jasnowski, Prosecuting Attorney, and Paul W. Voorhies, Assistant Prosecuting Attorney, for appellee.
   Bird, J.

This proceeding was instituted by petition praying for a writ of mandamus to compel defendant to receive and record a certain land contract which was tendered to him, together with the usual recording fee of $2.

The petition discloses that in June, 1915, one Henry C. Fuller and wife were the owners in fee of certain unimproved real estate in the city of Detroit. Being desirous of improving it, they contracted with Walter J. Miller, a contractor, to erect a building thereon for $3,400, and to loan them the money, the same to be repaid at the rate of $25 a month, with interest at the rate of 6 per cent. In order to secure the repayment of the loan Fuller and his wife conveyed the premises to Walter J. Miller, by warranty deed, and took back a land contract providing for a reconveyance of the premises upon the payment of $4,900. This sum represented the amount of the loan plus the value of the lot. The $1,500 was immediately indorsed on the contract, leaving the amount due upon the contract the sum of $3,400. Subsequently the Fullers assigned their interest in the contract to the plaintiff. He tendered the contract with the recording fee of $2 to the defendant, and requested him to record it. Defendant refused, and placed his refusal on the ground that the paper tendered was an executory contract to secure the payment of money, and therefore came within the statutory definition of a mortgage, under section 1 of Act No. 91, Pub. Acts 1911 (1 Comp. Laws 1915, § 4268), and consequently was subject to the tax of 50 cents a hundred on the $4,900.

Plaintiff concedes that the contract should be construed as a mortgage under the mortgage tax law, but takes issue with defendant that the contract is subject to the tax. He contends it comes within the last proviso of section 2 of the act, which reads: “Provided, further, No tax shall be imposed upon any building and loan mortgage.” Plaintiff reasons that this loan was made and the contract executed for building purposes, and is therefore clearly exempt under the foregoing proviso.

At its session of 1887 the legislature passed an act providing for the incorporation of “building and loan associations” (Act No. 50, Pub. Acts 1887, 2 Comp. Laws 1915, § 9995 et seq.). Since that time several amendments have been made thereto. Two years later the shares of such associations and mortgages owned by them were exempted from the general tax law (2 Comp. Laws 1915, § 10011). As a result of this act and the doing of business thereunder, the term “building and loan” has come to have a fixed meaning, not only with the general public, but with the legislature. We think it was this restricted meaning that the legislature had in mind when it used the term “building and loan mortgage” in the foregoing proviso. Indeed, it could hardly have used the language in the general sense contended for by plaintiff without exempting from the operation of the act an amount of securities which would have left the law with but little use as a revenue producer. Another reason which inclines us to this construction is that it would be extremely difficult for a county treasurer to determine what portion of a given loan had been used, or would be used, for building operations, and what portion thereof had been, or would be, used for other purposes. Evidently the legislature did not intend that a county treasurer should be called upon to make such a determination. If it did, it would have so indicated, and provided some method by which it might be accomplished. The words “building and loan mortgage” as used in the proviso must be construed as referring only to mortgages owned by building and loan associations.

Plaintiff takes the further position that, if the contract is subject to the tax, the basis of computing it should be $3,400 instead of $4,900. The defendant insists that the amount named on the face of the paper must control unless it is an indemnity mortgage, and there is no claim that this is such a one. This question is argued at some length by counsel in their briefs. They concede that the question is not properly before the court, but they are desirous of having the question determined, as it .is constantly arising, to the annoyance of the county treasurers of the State. The trial court held in accordance with appellant’s contention on this phase of the case, so he has no ground for complaint. As defendant did not avail himself of the writ of certiorari, as he might have done, we shall be obliged to adhere to our rule and decline to pass upon the question.

The judgment of the trial court is affirmed.

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


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    CONGDON v. MICHIGAN UNITED TRACTION CO.
    1. Street Railways — Automobiles — Crossing Accidents — Contributory Negligence.
    An automobile driver is guilty of contributory negligence where he approaches an intersecting street on which street cars run at a low rate of speed, and, when 150 feet from the intersection, he sees a ear pass on the further track in one direction, and, when he reaches a point 50 feet from the intersection and ascertains that there is no car coming on the near track in the opposite direction, he proceeds to cross without looking for another car coming on the further track until it is too late.

    a. Same.
    The rule that a person attempting to cross street railway tracks is not guilty of contributory negligence in attempting it, where, in the exercise of common prudence, he may think there is a reasonable time to cross safely, is inapplicable where the driver of an automobile is placed in such a position that be has no other choice than to attempt to speed up and cross the tracks.
    Error to Kalamazoo; Weimer, J.
    Submitted October 16, 1917.
    (Docket No. 138.)
    Decided December 28, 1917.
    Rehearing denied June 20, 1918.
    Case by Herbert E. Congdon, administrator of the estate of Napoleon Pare, deceased, against the Michigan United Traction Company for the negligent killing of plaintiff’s, decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Jackson & Fitzgerald, for appellant.

      Sanford W. Ladd (Warren, Cady, Ladd & Hill, of counsel), for appellee.

      Authorities discussing the question as to whether attempting to cross in front of observed street car is contributory negligence, are collated in a note in L. R. A. 1917C, 692.

   Bird, J.

Plaintiff’s decedent, Napoleon Pare, was killed as a result of a collision between the automobile in which he was- riding and a street car, at the intersection of Portage and Lake streets, in the city of Kalamazoo. Lake and Portage streets cross each other at nearly right angles. Lake street extends east and west. The general direction of Portage street is north and south, but bears slightly to the northwest and southeast, and defendant operates a double-track railway thereon. The southeast corner of the intersection is occupied by a two-story brick building, known as Gamble’s drug store, the southwest corner by a furnace shop, the northwest comer by a church, and the northeast corner by a residence.

It was well on toward midnight on April 18, 1915, when William Sharpless was driving his automobile in a westerly direction on Lake street with Mr. Frank Barrett on the seat beside him, and plaintiff’s decedent, his wife, and foster daughter in the rear seat. As he approached the intersection of Lake and Portage streets he saw a car pass to-the south on the west track. As soon as he was near enough to the intersection to see past Gamble’s drug store he looked to the south and kept going on his westerly course at the rate of six or eight miles an hour. Just as the forward wheels of his automobile entered on the east track his attention was attracted by Mr. Barrett to another south-bound car which was then very close. He concluded that he could not stop without stopping on the west track on which the car was coming; consequently he. increased the speed of his machine and attempted to cross in front of it. The street car collided with the rear end of his automobile, and threw plaintiff’s decedent out upon the pavement, receiving injuries from which he died the following day.

Excessive speed in violation of the ordinance of the city and negligent operation of the car were relied upon for a recovery. At the conclusion of the testimony defendant requested a directed verdict on the ground that the testimony showed conclusively that William Sharpless, the driver, was guilty of contributory negligence. The trial court denied the request at the time, but reserved his right under Act No. 217, Pub. Acts 1915 (3 Comp. Laws 1915, § 14568 et seq.), to do so after the jury had passed upon it. The jury returned a general verdict in favor of the defendant, and also a special one as will be seen by the following special question and answer:

“Q. Did William Sharpless fail to look to the north for a car approaching from that direction at a point where he could have avoided the accident?
“A. Yes.”

Subsequently an application was made by plaintiff for a new trial alleging several errors in the rulings and charge of the court. The argument of this motion persuaded the-trial judge that he had made certain errors in his charge, but he announced that in his opinion they were immaterial, because he was convinced that he should have directed a verdict when the motion was made on the ground that Sharpless was guilty of contributory negligence as a matter of law. Under his reserved right he then directed a verdict for the defendant on this ground. Plaintiff has brought the case up for review.

It appears to be conceded that defendant’s negligence was established. It was shown that the car was going at a rate of speed very much in excess of that prescribed by the ordinance, and no attempt was made to dispute it.

After making a careful examination of the testimony, we think it shows without dispute that Sharp-less, the driver, was driving at a moderate rate of speed in the middle of Lake street, not to exceed 6 or 8 miles an hour as he approached the intersection, and could have stopped within 5 or 6 feet; that when he was 150 feet east of the intersection he saw a car pass to the south on the west track; that when he reached a point 50 feet east from the east line of Portage street he could determine whether a car was approaching from the south; that, after he assured himself that no car was approaching from that direction, he did not glance to the north again until his attention was called to it by Mr. Barrett, and at that moment the front wheels of the automobile were entering upon the east track, with the street car only 90 feet away and coming rapidly; that, as it appeared to him, he had but one choice, and that was to go across, because if he attempted to stop he could not do so before reaching the west track. With this, thought in mind he made the attempt and failed. It further appears that Sharpless was. familiar with the situation, and knew that cars went to the car bam over these tracks at about that time of night.

The weakness of plaintiff’s case lies in the fact that the driver did not look to the north after he observed that no car was approaching from the south, assuming that another car would not follow so closely behind the one which had just passed. The obstructions on the northeast corner of the intersection were such that he had a view of Portage street before he reached the east line of it, and after he reached it he had an unobstructed view for several blocks. After Sharp-less looked to the south and assured himself that no car was approaching from that direction, he had ample opportunity, and it was his duty, to glance to the north again to reassure himself that no car was approaching from that direction. McGee v. Railway Co., 102 Mich. 107 (60 N. W. 293, 26 L. R. A. 300, 47 Am. St. Rep. 507). It is urged that he did look north on Portage street before he reached the east line thereof, and saw no car approaching. In these days of rapid street transportation it will hardly do to attempt to cross a track relying solely upon observations made from 60 to 120 feet away, nor upon a custom that one car will not closely follow another. A mere glance to the north as he was entering Portage street would have disclosed the approaching car and averted the collision.

But counsel argue that it is a proper case for the application of the rule that:

“Where, in the exercise of common prudence, a person may think there is reasonable time to cross a street railway safely, he is not chargeable with negligence in attempting it.” Chauvin v. Railway, 135 Mich. 85 (97 N. W. 160); Seebach v. Railways Co., 177 Mich. 1 (142 N. W. 1086), and cases cited.

The difficulty of applying this rule to the facts of the present case is that in the cases cited where this rule has been applied the plaintiff in approaching the track had a reasonable opportunity to elect whether he would wait or go across. In this case Sharpless had placed himself in a position, by his failure to look to the north, where he had no choice nor election. There was only one thing left for him to do, and that was to take the chance of getting across. In order to have the benefit of this rule it was necessary “that the circumstances were such as to make it an open question whether, in the exercise of common prudence, * * * he might reasonably have thought there was time to drive across in safety.” Manos v. Railway, 168 Mich. 155 (130 N. W. 664, L. R. A. 1917C, 689). The circumstances which confronted Sharpless when he first saw the car will not permit of the application of this rule.

The contributory negligence of Sharpless is clearly shown by his own testimony, and, as his negligence is imputed to plaintiffs decedent, no recovery can be had.

As we agree with the conclusions of the trial court, the judgment will be affirmed.

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


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    HOWES v. BARNEY.
    1. Executors and Administrators — Ejectment — Right oe Administrator to Maintain Action.
    The administrator of an estate has no interest in real estate and no right of possession thereof so as to maintain an action of ejectment where there is no personal property and there are no debts or liabilities against the estate, under 3 Comp. Laws, § 9354 (3 Comp. Laws 1915, § 13850), providing that an administrator shall have the right of possession of the real estate, as well as the personal estate, hut, whenever it appears, on application by the heirs, that there are no debts or liabilities outstanding and unpaid against the estate or that the personal estate is sufficient for the payment of all claims or liabilities, the probate court shall order the real estate delivered unto the possession of the heirs.
    2. Same — Expenses of Administration.
    .Expenses incurred in the administration of an estate are not a liability against the estate until they have been passed upon by the probate court.
    Error to Calhoun; North, J.
    Submitted October 15, 1917.
    (Docket No. 130.)
    Decided December 28, 1917.
    Ejectment by Samuel A. Howes, administrator with the will annexed of the estate of Oliver Barney, deceased, against Fred W. Barney and others. Judgment for plaintiff on a directed verdict. Defendants bring error.
    Reversed, without prejudice to parties in interest.

      James M. Powers and Walter S. Powers, for appellants.

      Leland H. Sabin, for appellee.
   Bird, J.

The history of this case is a long story. On a previous occasion another phase of the controversy was before this court, and is reported in Barney v. Barney, 187 Mich. 145 (153 N. W. 730), where an extended statement will be found. In view of this, only such of the history as seems to be material to the present case will be stated.

In the year 1900 Oliver Barney, an old resident of Calhoun county, died, as was supposed at that time, intestate. In August, 1898, he deeded his farm to his grandson, Oliver Wm. Barney, reserving a life interest to himself and wife. In July, 1900', an administrator was appointed and the estate was administered. Fred Barney, a son of the deceased, in De-' cember, 1901, filed a bill in the Calhoun circuit court praying for a decree, setting aside the deed of the farm to his son, Oliver W., on the ground that his father, Oliver, was mentally incompetent at the time of its execution. In this suit his mother and son, Oliver W., were made parties defendant. Oliver W. was then only 18 years of age, and consequently was represented in the suit by a guardian ad litem. The hearing resulted in a decree setting aside the deed, and declaring the title to the farm to be in Fred Barney as sole heir of Oliver Barney. After making some preliminary arrangements with his mother he went into possession of the farm, and has ever since claimed to own it. The son, Oliver W., continued to live with him for a time and matters went along smoothly, just as though they were settled, until July, 1913, when Oliver W. Barney presented to the probate court a paper purporting to be the last will and testament of his grandfather, Oliver Barney, in which he was given the farm subject to a life use by the mother, and petitioned to have it probated. He explained the circumstances of his possession of the will by saying that soon after he arrived at the age of 21 years, upon going into his room one day he found the will lying on his bed; that he read it over and filed it away and made no mention of it until just before offering it for probate. The will was admitted to probate, and plaintiff was appointed administrator with the will annexed. The order of the probate court was affirmed in the circuit court and in this court. About a year thereafter the plaintiff as administrator with the will annexed commenced this suit in ejectment against Fred Barney and his tenants to recover the possession of the .farm. A directed verdict for the plaintiff passed in the circuit court. The defendant, Fred Barney, has brought the case to this court for review.

At the outset of our examination of the case we are met with defendant’s contention that the administrator has not such an interest in the real property of the estate as entitles him to maintain ejectment. The statute which gives the administrator authority to take possession of the real estate provides that:

“(9354) Sec. 7. The executor or administrator shall have a right to the possession of all the real as well as personal estate of the deceased, and may lease the same from year to year, and cancel or modify any existing lease or leases given by the deceased in the same manner that the deceased might have done in his lifetime, and may receive the rents, issues, and profits of the real estate until the estate shall have been settled, or until delivered over by order of the probate court to the heirs or devisees; and shall keep in good tenantable repair all houses, buildings, and fences thereon, which are under his control: Provided, That whenever, on application of the heirs, or devisees, or any of them, it shall be made to appear to the said probate court that there are no debts or liabilities outstanding and unpaid against said estate, or that the personal estate of said deceased is amply sufficient for the payment of all claims or liabilities outstanding or allowed against the said estate, the said probate court shall thereupon, by order, deliver over the said real estate of said deceased to the heirs or devisees of said estate, although the said estate shall not then have been finally settled, and thereupon the right of the said executor or administrator to the possession of the real estate of said deceased, and to receive the rents, issues and profits thereof shall cease: Provided further, That the provisions of this act shall not be construed to interfere with the possession of the homestead.” 3 Comp. Laws, § 9354 (3 Comp. Laws 1915, § 13850).

This statute has been construed by this court on numerous occasions. O’Connor v. Boylan, 49 Mich. 209 (13 N. W. 519); Kellogg v. Beeson, 58 Mich. 340 (25 N. W. 300); Rough v. Womer, 76 Mich. 375 (43 N. W. 573), citing the earlier cases; Pratt v. Millard, 154 Mich. 114 (117 N. W. 552). See Union Trust Co. v. Kirchberg, 174 Mich. 161 (140 N. W. 464). The substance of these constructions is that an administrator has no interest in the real estate and no right to the possession thereof except when there is insufficient personal property to pay the debts and expenses of administration. In commenting upon the statute it was said in Rough v. Womer, supra, that:

“It will be noticed that, while the executor has the right to the possession, that right is given in contemplation that it may become necessary to exercise it in the settlement of the estate for the purpose of the payment of claims against the estate. Hence it_ is that the duty of the executor is not made imperative to exercise the right in all cases, but is only permissible when the necessity arises for its exercise, and until such occasion does arise the heir or devisee, who has entered upon the enjoyment of his property and estate, ought not to be and cannot be lawfully disturbed. In other words, the right is given to the executor, and only accompanies the necessity for its exercise.”

The holding in Pratt v. Millard, supra, is that:

“An administrator, either general or special, has no interest in the real estate, and no right to the possession thereof, except when there is insufficient personal property to pay the debts and expenses of administration.”

The conditions present in the estate we are considering must be tested by this rule. The evidence discloses neither personal property nor debts. It did appear that some expenses had been incurred in administering the estate, but counsel for defendant meets this claim by pointing out that if there were expenses incurred in administering the estate, they had neither been passed upon nor allowed by the probate court, and until they were so passed upon they were not a liability against the estate — citing O’Connor v. Boylan, supra, and Kellogg v. Beeson, supra. We think these authorities sustain the claim made for them. We, therefore, have an. estate in which there is a farm, a sole heir in possession, but neither personal property nor debts, and no expenses of administration, which have reached the stage where they are a liability against the estate. These circumstances bring the case within the contention of appellant that the plaintiff has no such interest as entitles him to the possession of the real estate in question.

The judgment must be reversed, with no new trial, but the reversal will be without prejudice to an action of ejectment by any one who has sufficient interest in the premises to maintain it. Defendant will recover his costs in this court.

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


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    PEOPLE v. MAY.
    1. Appeal and Error — Hearsay Evidence — Striking Out Testimony.
    The defendant in a criminal case cannot predicate error on the fact that certain testimony given by a witness for the people on direct examination stated a conclusion, was hearsay and was not the best evidence where such fact was developed only on cross-examination, and although the testimony was originally given under objection and exception, no motion to strike was made after the cross-examination.

      2. Criminal Law — Larceny—Evidence—Instructions.
    In a prosecution for larceny, evidence of the finding in defendant’s trunk, in which the specific property named in the indictment was secreted, of other property also stolen from the complaining witness, was competent as one of the circumstances of the finding of the property named and also as tending to identify the defendant with the transaction, and, in any event, not misleading in view of the court’s charge to the jury.
    3. Same — Larceny—Possession of Stolen Property — Presumptions.
    The possession of recently. stolen property raises a prima facie presumption that the possessor is guilty of the theft.
    4. Same.
    The presumption of guilt arising from the possession of recently stolen property is not a conclusive one and may be overcome by evidence.
    5. Same.
    The more remote the theft in point of time, the weaker is the presumption of guilt arising from the possession of the stolen property.
    6. Same — Instructions.
    An instruction as to the presumption of guilt arising from the possession of recently stolen property, held, not misleading, when considered as a whole, on the question of the burden of proof, especially since there was direct and positive proof of the defendant’s guilt and the presumption was not relied on to make out a prima facie case.

    Error to superior court of Grand Rapids; Dunham, J.
    Submitted October 11, 1917.
    (Docket No. 164.)
    Decided December 28, 1917.
    Wallace May was convicted of larceny of goods of the value of more than $25, and sentenced to imprisonment for not less, than 2% nor more than 5 years in the State prison at Jackson.
    Affirmed.

      Corie C. Coburn and Irving H. Smith, for appellant.

      Cornelius Hoffius, Prosecuting Attorney, and Fred P. Geib, Assistant Prosecuting Attorney, for the people.

      dn the question as to whether possession of recently stolen goods is evidence of burglary, see note in 12 L. R. A. (N. S.) 199.

   Bird, J.

Respondent was convicted of the larceny of a leather handbag and several articles of cutlery from the store of Heyman Company, in the city of Grand Rapids, of the value of $34.93. It was the theory of the people that respondent, in February, 1917, was on intimate terms with one Frank Martin, who was employed as a night watchman in the Hey-man store, that it was respondent’s habit to visit Martin while he was on duty, and that on these occasions he took quite a large amount of merchandise, which was afterwards discovered in his trunk at a paint shop where he had taken it to have some lettering done.

Herbert G. Heferan, manager of the Heyman store, testified, under objection and exception, that the items of property mentioned in the information were on January 1,1917, the property of the Heyman Company, and that they had never been sold. The objections to this testimony are that it was a conclusion of the witness, was hearsay, and not the best evidence. The basis of these objections is the reply which the witness made when asked, upon cross-examination, how he knew that the articles were the property of Heyman Company. He explained that the card index showed all goods which went into the several departments of the store, and when sold they were checked out. Upon direct examination the witness positively identified the articles as belonging to the Heyman Company. Counsel’s objection was overruled at the time, and properly so; as nothing had yet appeared as to the source of his knowledge. After the cross-examination developed that the witness relied principally upon the card index, or perpetual inventory, no motion was made by counsel to strike out the testimony. The failure to so move deprives respondent in this court of any benefit of the point, even if it be regarded as a meritorious one.

Complaint is made because Martin, the night watchman, was permitted to testify that certain rugs and curtains stolen from the Heyman store were found in the trunk along with the articles named in the information. The ground of the objection was that it “proves different crimes than the one under which this man is charged.” The testimony was clearly incompetent for this purpose, but we think it was competent as one of the circumstances of finding the property, and also as tending to identify the respondent with the transaction. People v. Nagle, 137 Mich. 88 (100 N. W. 273); 25 Cyc. p. 141. The jury could not have been misled as to the purpose of this testimony, as the court instructed them fully for what purpose it could be used. After enumerating the property mentioned in the information, the court said to them:

“Now, those are the goods only that the respondent is charged with stealing in this case. He could not be convicted for stealing anything else, if he did steal anything else; and, so far as the other articles are concerned that yoij see over on the table, they were introduced in evidence as being in the trunk at the time it was claimed the trunk was opened and these articles were found that are charged in the information in this case to have been stolen. They could have no possible bearing in this case in any way except as identifying the respondent here, or perhaps tending to show the intent with which the things were taken, if you should find they were taken by the respondent, that are mentioned and described in the information in this case. The respondent is. not charged with stealing such things as lace curtains, rugs, bedspreads, and other things, and is only charged with taking the things that I have read from the information.”

Counsel assigns error on the following instruction:

“Now, if you find that these goods were in the possession of this respondent here, has he explained away that presumption satisfactorily to you? If you find that these goods were in his possession shortly after they were stolen, if you find they were stolen, then I say the presumption that would arise as to his guilt, if any, is not conclusive, and can be overcome, but it is the duty of the respondent to overcome that.”

The point raised against this instruction is that it placed the burden of proof on respondent to establish his innocence. The foregoing excerpt taken from the charge, standing by itself, is open to criticism because it comes very nearly doing what counsel claims for it. The jury may have understood that, if they found certain things to be true, the burden of proof shifted to the respondent. People v. McWhorter, 93 Mich. 641 (53 N. W. 780); Baker v. State, 80 Wis. 421 (50 N. W. 518). But we think this excerpt should be considered together with the entire instruction on that question. It follows:

“If you find that that property at any time was in May’s possession, if you find that the property was in the trunk, and if you find that the trunk was in his possession, and if you find that he took that trunk down and put it in the basement, then this property was in his possession.. Was it stolen property, and if it was stolen property, how long was that after it was stolen, if it was stolen at all from the Heyman Company? Was it soon after or long after? I think the only testimony upon the question is that it was there in the store in January and was found to be missing later. Because it is the rule, and I will state it to you not from memory, that if one is found in possession of stolen goods shortly after they are taken, a presumption arises that the party in whose possession those goods are found is the thief, if the goods were stolen; and it is always considered as a circumstance bearing upon the probability of respondent’s guilt in taking them. It is a circumstance which may, if unexplained, raise a presumption of guilt. It is a presumption, however, that may be overcome by other evidence. It is not a conclusive presumption. Possession of stolen property within a short time after it is alleged to have been stolen raises a presumption of guilt; but it is not a conclusive presumption, but one which may be overcome by other facts and circumstances in the case, and which you may believe to be true. And the further away from the time the goods’were stolen that they are found in the possession of a man the weaker is the presumption as to his guilt. Now, I say, if you find that these goods were in the possession of this respondent here, has he explained away that presumption satisfactorily to you? If you find that these goods were in his possession shortly after they were stolen, if you find they were stolen, then I say the presumption that would arise as to his guilt, if any, is not conclusive, and can be overcome; but it is the duty of the respondent to overcome that. But in the end, considering all of the testimony, the burden is upon the people to satisfy you of the respondent’s guilt beyond a reasonable doubt.”

Considering the instruction as a whole, is it likely the jury were misled.into the belief that the burden of proof shifted to defendant upon the whole case to establish his innocence? The instruction contains a very clear statement of the presumption and under what circumstances it would arise. Its application to the present facts was explained in detail, and whatever misgiving they might have had with reference to it must have been cleared up by the closing sentence of the instruction that:

“In the end, considering all of the testimony, the burden.is upon the people to satisfy you of the respondent’s guilt beyond a reasonable doubt.”

It should also be taken into consideration in determining this question that the people were not relying upon the presumption to make a prima facie case. There was direct and positive proof that defendant took the articles charged in the information.

Upon the whole record we think the judgment of conviction should be affirmed.

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


text:
    HAINES v. LEONARD WAREHOUSES, INC.
    1. Negligence— Elevators — Personal Injuries — Contributory Negligence — Question for Jury.
    In an action by an employee of the owner of a moving van against a warehouseman to recover damages for injuries due to stepping into an aperture between an elevator platform in the building and the floor while assisting his employer in removing a box from the platform, evidence held, to present a jury question whether plaintiff was guilty of contributory negligence.
    2. Principal and Agent — Authority of Agent — Question for Jury.
    In an action by an employee of the owner of a moving van against a warehouseman to recover for personal injuries sustained by falling into an aperture ^between an elevator platform and the floor in the building while assisting his employer in removing a box from the platform preparatory to carrying it to the van, evidence held, to present a jury question whether defendant’s checker had the apparent authority to invite plaintiff and his employer on the premises to remove the goods so as not to constitute plaintiff a trespasser.
    Error to Wayne; Mandell, J.
    Submitted October 23, 1917.
    (Docket No. 168.)
    Decided December 28, 1917.
    Case by Bateson Haines against the Leonard Warehouses, Incorporated, for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Vandeveer & Foster, for appellant.

      Carey, Armstrong & Weadock, for appellee.
   Bird, J.

Defendant corporation operates a storage warehouse at the corner of Jefferson and Orleans streets in the city of Detroit. One J. Navarre Atkinson, having stored his household goods in defendant’s warehouse, applied for their release on the morning of September 29, 1916. He was informed that they would not be ready for delivery until an hour or so later. At the appointed time Atkinson returned with a moving van in charge of Vogt, the owner, and plaintiff Haines, Vogt’s employee. After the goods were lowered from the upper floor, and while they were still on the elevator, Atkinson notified Vogt and plaintiff that the goods were ready to be moved. They went inside the warehouse and to the elevator, which was some distance from the door. Jones, defendant’s checker, stood near the elevator with a list of the goods and said to them to call the numbers on the articles as they were removed so that he could check them off the list. Plaintiff approached the elevator and took hold of a gas stove, tipped it toward him, and assisted in taking it away without going on the elevator. When he returned, he found Vogt in the act of removing a box. He stepped on the elevator, took hold of the opposite end, and they started to carry it away. As they did so, plaintiff stepped into the aperture between the elevator platform and the floor, which was 5% inches in width and extending the entire length of the platform. As a result thereof, plaintiff fell, dislocating his ankle and breaking one of the small bones in his left leg. The trial court submitted to the jury, the question of defendant’s negligence, and also the plaintiff’s contributory negligence, and they returned a verdict for the plaintiff of $1,000.

It was plaintiff’s contention that he was on defendant’s premises by implied invitation, and it thereby became defendant’s duty to keep the premises in a reasonably safe condition for him while removing the goods; that leaving an aperture of 5% inches between the elevator platform and' floor without being covered and without warning him of its existence was actionable negligence on its part. Defendant’s counsel in this court does not seriously combat the charge that defendant was negligent, but they insist that the trial court was in error because of its refusal to direct a verdict for the defendant on the ground that plaintiff was guilty of contributory negligence.

Counsel calls attention to certain testimony of plaintiff in which he stated that he observed the numbers on the boxes and crates of furniture and similar objects smaller in size than the aperture* and the inferences drawn therefrom are that plaintiff either did see the opening, or ought to have seen it, because it was obvious. In determining this question, the testimony should be considered as a whole. The testimony further shows .that plaintiff had never been inside the warehouse before the day in question; that it was at the noon hour while the employees were at lunch, and the electric lights were turned off, and as a result the warehouse was poorly lighted; that when he assisted in carrying the stove he did not go on the elevator, and when he assisted in carrying the box he could not see the floor where he was walking and had no reason to apprehend that the opening exceeded the ordinary opening between elevators and floors. We are of the opinion that the testimony as a whole presented a question of fact for the jury as to plaintiff’s negligence.

It is further urged in this connection that plaintiff was a trespasser, and that the only duty defendant owed him was to refrain from wilfully injuring him, and that Jones, the checker, was acting outside the scope of his authority and against the express command of his master, when he invited plaintiff to come on the premises. Henry Lusk, the warehouse foreman, testified that he had instructed Jones “not to permit outsiders to come into the warehouse,” the practice being to have the truckers convey the goods to and from the vans at the outer door.

Plaintiff was at the warehouse on his master’s business, a business in which defendant was interested. Jones was in immediate charge of the movement of the goods, and at the time was the sole representative of defendant present. Defendant’s truckers had gone to lunch, and plaintiff and Vogt were invited by Jones •to move the goods. There is no claim that either Vogt or plaintiff had any knowledge of defendant’s rule that outsiders were not allowed in the warehouse. As between Jones and his master, Jones may have exceeded his authority; but, as between Jones and the plaintiff, the testimony tends to show that he had the apparent authority which he exercised. 26 Cyc. pp. 1533-1535. The question, therefore, as to whether Jones had the apparent authority under all the circumstances, was properly submitted by the trial court to the jury.

The trial appears to have been a fair one, and, as we find- no reversible error, the judgment must be affirmed.

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