text:
    PEOPLE v. LINTZ.
    1. Criminal Law — Receiving Stolen Automobile — Elements of Offense — Intent—Question foe Juey.
    In a prosecution for having purchased and concealed a stolen automobile in violation of section 15301, 3 Comp. ■ Laws 1915, guilty knowledge is an' essential element of the offense, and, when denied, is a question of fact for the jury.
    2. Same — Intent—Trial—Instructions.
    Where the evidence showed that the car was purchased by defendant’s employee from two boys, but defendant denied knowledge that it was stolen, an instruction by the court to the jury that if defendant “knew that this car was purchased of two boys that that circumstance itself was sufficient to charge him with knowledge that it was a stolen car,” standing alone was erroneous.
    3. Same — Trial—Instructions—Curing Error.
    But where such instruction was immediately modified by the statement “that is, the fact that two boys brought that_ car there for sale was sufficient to put him upon inquiry,” when taken in connection with instruction previously given that-“the prosecution must show * * * beyond all reasonable doubt that he knew at the time he purchased said automobile * * * that said auto'mobile had been stolen,” ete,, held, that the jury were not misled.

      See note in 22 L. R. A. (N. S.) 833.

      4. Same — Evidence—Discretion of Court.
    While the court might properly have permitted defendant to answer the questions as to what kind of schooling or education he had, whether he had ever had any training in bookkeeping, there was no error in rejecting the answers, such questions being within the discretion of the court
    Error to Genesee; Brennan, J.
    Submitted October 17, 1918.
    (Docket No. 119.)
    Decided December 27, 1918.
    C. H. Lintz was convicted of having purchased and concealed a stolen automobile, and sentenced to imprisonment for not less than one year or more than five years in the State reformatory at Ionia.
    Affirmed.

      Charles S. Abbott, George W. Cook, and Marshall Frisbie, for appellant.

      Roy E.JBrownell, Prosecuting Attorney, and H. B. Freeman, Assistant Prosecuting Attorney, for the people.
   Bird, J.

Defendant was convicted in the Genesee circuit court of having purchased and concealed a stolen automobile in violation of the following statute:

“Every person who shall buy, receive or aid in the concealment of any stolen money, goods or property, knowing the same to have been stolen, if the property purchased, received or concealed exceed the value of twenty-five dollars, shall be punished by imprisonment,” * * * 3 Comp. Laws, § 15301.

Defendant operated a garage and sales agency in the city of Flint. At about three o’clock in the morning of October 30, 1917, two boys 18 years of age drove into defendant’s garage a Hudson touring car which they had stolen the evening before on the streets of Detroit. When defendant came to the gar? ~e in the morning his attention was called to the car and he was advised by his brother, who was in his employ, that the car was for sale. As he was on the point of leaving for Detroit he instructed his brother “if he could buy the car and buy it right, to do so.” Later in the day the car was purchased by one of his employees for $200. It was taken at once to the repair shop where the tires were taken off and others substituted therefor; the top was replaced by a closed top and the serial and chassis numbers were mutilated. Defendant admitted that he purchased the car but denied that he had any knowledge that it was a stolen car. Whether he had such knowledge was the seriously contested point in the case. The jury found the defendant guilty as charged and the proceedings are now before us for review on writ of error.

Error is assigned on the following instruction:

“Now, it is undisputed that the car was taken to the C. H. Lintz garage on the morning of the 29th day of October, 1917, by these two boys — or the morning of the 30th, I should say. Now, if Mr. Lintz — I charge you if Mr. Lintz knew that this car was purchased of two boys that that circumstance itself was sufficient to charge him with knowledge that it was a stolen car — that is, the fact that two boys brought that car there for sale was sufficient to put him on inquiry, if he had such knowledge, and this you must find beyond a reasonable doubt from the evidence in this case.”

Counsel argue that to so instruct the jury was error; that guilty knowledge was a question of fact for the jury and that when the court instructed them that this circumstance was sufficient to charge defendant with guilty knowledge, he invaded the province of the jury.

Guilty knowledge under this statute is an essential element, and, when denied, is a question of fact. We, therefore, agree with counsel that it was error to instruct the jury that “this circumstance itself was sufficient to charge him with knowledge that it was a stolen car.” The weight to be given to this circumstance was for the jury and it was for them to say whether the circumstance, considered in connection with other testimony, was sufficient to charge defendant with knowledge that the car was a stolen one. People v. Levison, 16 Cal. 98 (76 Am. Dec. 505); 34 Cyc. p. 530, and notes. We do not understand that the prosecutor contends otherwise. His contention is that when this part of the charge is read in connection with other portions of the charge, and particularly the portion immediately following, the erroneous instruction is so modified that the error disappears. The trial court, evidently feeling that he had gone beyond the safety zone, immediately, and in the same connection, said: “that is, the fact that two boys brought That car there for sale was sufficient to put him upon inquiry.”. This instruction was proper. Roscoe’s Criminal Evidence (5th Am. Ed.) p. 876. This was a fact which the jurj. had a right to consider in determining whether defendant had guilty knowledge. This instruction is unlike those given in the cases cited by counsel. In those cases the instruction went farther and advised the jury as to the sufficiency of certain proofs and the necessary inferences to be drawn therefrom. Being of the opinion that the latter instruction was a proper one the question gets around to this: Did the jury understand that the latter instruction was a substitute for the first, and were they misled by it?

Previous to giving the instructions in question the trial court had instructed the jury very fully with reference to the rights of the defendant and the duty of the people. He had theretofore said to them that:

“It is not enough to show that Lintz purchased the.automobile, or that he received and had said automobile in his possession, or that he received and had and aided in the concealment of said automobile. These standing alone do not constitute the criminal offense charged. But the prosecution must show by competent evidence beyond all reasonable doubt, that he (Lintz) knew at the time he purchased said automobile, or received said automobile, or aided in its concealment, that said automobile had been theretofore stolen, and unless the prosecution so shows beyond all reasonable doubt that Lintz knew said automobile had been stolen you must find a verdict of ‘not guilty.’ * * *
“I charge you that Mr. C. H. Lintz cannot be' held criminally responsible for the criminal acts of his employees unless he participated therein or had knowledge thereof. If Mr. C. H. Lintz authorized one of his employees to purchase an automobile and furnished the money for such purpose, and Such automobile proved to have been a stolen car, if Mr. C. H. Lintz did not know that such car was a stolen car then he would not be liable criminally. * * *
“I charge you that in this case that' even if you become satisfied by the evidence that the serial numbers on the stolen car in question in this case were changed, and .also find that they were even changed by the respondent or at his direction, your verdict, under the law, would still have to be that of not guilty, unless you also were able to find from the evidence, that this car in question was a stolen car and that the defendant knew that it was a stolen car.”

From these instructions we think the jury must have understood what defendant’s rights were and what they must find before they could convict him, and, therefore, must have been in a position not only to see but to understand the force of the correction which the court made of the erroneous instruction. We, therefore, conclude that the jury ,were not misled by it.

Complaint is made because defendant was not permitted to answer the following questions:

“Q. Mr. Lintz, what kind of schooling or education did you have? Have you ever had any training in bookkeeping?”

Counsel say that one’s schooling and educational training is frequently a big aid in shielding one against the tricks and artifices of designing crooks and criminals. After defendant had been before the jury as a witness and been subjected to a long examination by both counsel, these questions do not appear to have been very important. When opposing counsel have finished with an important witness the jury usually have some well-defined idea of his mental attainments. We think no error would have been committed either in admitting or rejecting the answers. They belong to a class of inquiries which are ordinarily within the discretion of the trial court.

Another error is assigned on the charge and is argued, but we think it will be unnecessary to consider it inasmuch as the prosecutor has called attention to an omission in defendant’s quotation of it.

Finding no prejudicial error in the record the judgment of conviction must be affirmed.

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


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    WUDLICK v. CHICAGO & NORTHWESTERN RAILWAY CO.
    1. Master and Servant — Personal Injuries — Negligence — Directed Verdict.
    In an action against a railroad company for personal injuries received by plaintiff, one of its section hands, while attempting to pass under a steam shovel being operated by another company, evidence that plaintiff was going after some tools where they had been left the night before by order of his foreman, that he was not directed to reach the tools the way he took, and that there were other ways he could have taken and reached them in safety, held, sufficient to support a directed verdict for defendant, there being no evidence of negligence on its part.
    2. Same — Workmen’s Compensation Act — Federal Employers’ • Liability Act — Negligence—Defenses.
    Although defendant had not elected to come under the workmen’s compensation law, plaintiff cannot recover under either the Federal or State law unless some negligence on the part of defendant is shown.
    Error to Gogebic; Cooper, J.
    Submitted October 24, 1918.
    (Docket No. 46.)
    Decided December 27, 1918.
    Case by Vinco Wudlick against the Chicago & Northwestern Railway Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      James A. O’Neill, for appellant.

      Frank A. Bell, for appellee.
    The plaintiff in this case, a man 51 years of age, had been employed by the defendant railway company as a section hand for nine months prior to the time he received the injury which constitutes the basis. of this action. Prior to his employment by the defendant he had worked for about two years in the woods. He was injured on the 11th day of October, 1916, under the following circumstances: The defendant railway carried ore from the premises of the Newport Mining Company. To facilitate such operation the Newport Mining Company maintained and operated at its stock pile a large 60-ton Bucyrus steam shovel with which it loaded the ore upon cars furnished by the defendant railway company. The stock pile ground was between 600 and 700 feet long, running north and south, and from 100 to 150 feet wide, east and west. The steam shovel was operated along the easterly edge of the stock pile from south to north upon temporary tracks which, as it advanced north, would be brought from the rear and attached in front. The loading track upon which the cars of the defendant company stood while being loaded by the steam shovel was placed from 15 to 18 feet east of the line upon which the shovel operated northerly. After the steam shovel had operated through the stock pile to its northerly extremity it would be returned to the southerly end of the stock pile and again repeat the operation. This change in the location of the steam shovel would necessitate the shifting to the'west of the temporary loading track used by the defendant railway company to place its cars during the process of loading. On the day preceding the accident to the plaintiff, he, with some 15 or 20 other section hands, had been engaged in the operation of moving the temporary loading track to the west so that the steam shovel, which was in position to continue the loading process, might reach defendant’s cars. Plaintiff and his fellow workers had worked an hour overtime on the night of the 10th of October in order to complete the shifting of the track but had not been able to quite finish the job. Plaintiff said:

      “We was pretty near through, but we had some blocking to be done under the ties.”
    At 7 o’clock on the night of the 10th the workmen were instructed to leave their tools where they were and go home. The next morning, October 11th, plaintiff and the other members of the gang met according to custom at the car house and were there instructed by the foreman to go to the Bonnie mine where they had left their tools overnight and to proceed from there to the Pabst mine where there was a job for them to do. The distance between the car house where this order was given and the point at the Bonnie mine where they had left their tools was nearly a mile, and there were several routes between the two points which the men might take. Plaintiff and three of his companions chose a certain route which caused them to approach the stock pile from the west. This brought the steam shovel between them and the loading track some 15 or 18 feet east of the line upon which the steam shovel stood. The exact time at which the accident occurred is not clear, but it was apparently some time between 7:15 and 8 o’clock in the morning. In the meantime the defendant railway company had placed empty cars upon the loading track east of the steam shovel and when the four men, including the plaintiff, approached the steam shovel from the south and west, it was in operation loading the cars to the east. Plaintiff described the accident as follows:
    “When I got in sight of the steam shovel with Povlak ahead, Mike second and I coming third, I saw this Charley Povlak and Mike Wesilich going through and I seen the dipper way up and I thought I was going to be safe and I started through myself. Mike Wesilich and Povlak passed through in front of the shovel. They went through all right then after I seen Charley Povlak and Mike Wesilich went through, I thought I was going to be safe and I started through. Just as I got through, the dipper came down and squeezed me and I heard the craneman holler. That is all I could hear. I fell down and I heard the craneman holler. When I first came in sight of the steam shovel that morning, I seen the engineer or whatever you call him. He was inside the shovel where he belonged. He was sitting down to his place where he belonged. I seen those two fellows go through and I started to go through myself. I don’t know just exactly which way he was looking. I thought to myself that he was looking down, but I didn’t watch him very much; I wanted to get by. The dipper was up in the air at that time.

      “Q. Was it moving when you saw it first?

      “A. No.

      “Q. And when was the first time that you knew that they were using the shovel, that it was moving?

      “A. I never seen the shovel in motion but the time that I got at the shovel, and after I was injured I
    didn’t know anything. It was daylight at that time. ❖ * ❖

      “I went through in front of the steam shovel to get my tools because I seen Charley Povlak and Mike Wesilich go through and I had to go because they went through. I go through there just because I had to go 1,000 feet either way around until I would reach my tools; 1,000 feet either way, north or south or whatever it is.”
    The operator of the steam shovel was sworn by the plaintiff and examined under the statute. He described the shovel as being a structure from 30 to 35 feet long with a frame 5 feet 7 inches wide and a boom extending in front 35 or 40 feet to which was attached a bucket carrying two and one-half cubic yards. He testified that when in operation the bucket would make four round trips from the stock pile to the cars in one minute; that in operation the engine made a noise which could be heard from 100 to 1,000 feet away; that it was his duty in the operation of the shovel to keep his eyes upon movements of the crane and bucket and that from his position upon the shovel and by reason of the intervening portions of the structure it was difficult for him to see any one attempting to pass in front of the shovel; that in any event he did not see either plaintiff or his companions attempting to pass in front.
    In commencing this action plaintiff joined the Newport Mining Company and the operator of the steam shovel as parties defendant. At the conclusion of the testimony, on motion of his own counsel, he was permitted to enter a nonsuit in favor of the mining company and the shovel operator. A motion was then made on behalf of the defendant railway company for the direction of a verdict upon various grounds and a verdict was so directed by the learned trial judge upon the ground that plaintiff’s testimony, given its most favorable construction, failed to show any actionable negligence upon the part of the defendant. In reviewing the case in this court plaintiff claims:
    “1. That the question of the defendant’s negligence in sending plaintiff into a dangerous place without warning him of the danger, and in failing to furnish him a reasonably safe place for the performance of the work required of him, was for the jury.

      “2. That, the defendant not having elected to come under the workmen’s compensation act, the defenses of the ’ plaintiff’s contributory negligence or assumption of risk, were not open to it.’r
   Brooke, J.

(after stating the facts). Plaintiff himself testified:

“We left our tools between the shovel and the railroad cars 35 feet away from the shovel to the north.”

Frank Malko, one of the three men who accompanied him at the time he was hurt, testified:

“We left our tools at the place we was working, about 300 feet or maybe more from the steam shovel.”

Plaintiff as well as other witnesses sworn in his behalf testified that there were other ways in which they could reach the point where their tools lay in perfect safety. Whether the tools were lying at a point 35 feet from the shovel or 300 feet therefrom would seem to be unimportant as in either event they were in a safe place.. It cannot be claimed on behalf of plaintiff that he was ordered to reach his tools along the way he took nor can it be said that any custom existed which made it necessary or proper for him to follow that extremely hazardous course. He was accustomed to working in the immediate vicinity of steam shovels and must be held to have had knowledge of the danger attendant upon his act. This is not asserted as bearing upon plaintiff’s assumption of the risk of injury from his act, but in its relation to the question of defendant’s negligence. It is clear that plaintiff cannot recover against defendant either under the Federal or State law unless some negligence on the part of the defendant is shown. Lydman v. DeHass, 185 Mich. 139, and Miller v. Railroad Co., 185 Mich. 432.

We have no hesitation in holding that the verdict in this case was properly directed.'

Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ.,' concurred. Ostrander, C. J., did not sit.


text:
    RATHBONE v. DETROIT UNITED RAILWAY.
    • 1. Trial — Instructions—Requests to Charge.'
    Where a requested .instruction was fully covered in the charge as given, there was no error in its refusal.
    2. Railroads — Crossing—Warning.
    In operating a heavy motorcar at a rate of 50 or 60 miles per hour, there would rest upon the company the common-law duty to give notice of its approach to a crossing.
    3. Trial — Negligence—Instructions.
    An instruction dealing with the negligence of two defendants, where the court had previously instructed that one defendant was guilty as a matter of law, and leaving the question of the negligence of the other defendant to the jury, held, not misleading.
    4. Damages — Excessive Verdict — Expectancy.
    Where, at the time of the trial, eight years after his injury, plaintiff was 84 years of age, and still had an expectancy of more than three years, considering the pain and suffering he has endured, and his loss of earnings of $900 per year, it cannot he said that a verdict for $11,000 was excessive.
    See notes in 15 L. R. A. 426; L. R. A. 1915F, 30.
    Error to Wayne; Codd, J.
    Submitted October 8, 1918.
    (Docket No. 14.)
    Decided December 27, 1918.
    Case by William Rathbone against the Detroit United Railway and another for personal injuries. Judgment for plaintiff. Defendant railway brings error.
    Affirmed.

      Corliss, Leete & Moody (William G. Fitzpatrick, of counsel), for appellant.

      James H. Pound, for appellee.
   Brooke, J.

This case was once before in this court and is reported in 187 Mich., at page 586, where a sufficient statement of the facts will be found. A second trial has again resulted in a verdict in favor of the plaintiff, this time in the sum of $11,000 and against both defendants. It is again reviewed in this court under assignments of error grouped by counsel for appellant as follows:

a. Refusal to charge as requested.
b. The charge as given.
c. Overruling defendant’s motion for a new trial.

Error is assigned upon the failure of the court to give defendant’s fourth and fifth requests to charge as follows:

“If the jury believes that the road roller did not start to come upon or towards the track until such time as the car was within the distance from the crossing in which it was possible to stop, then defendant would not be shown to be negligent on the ground of having failed to control his car and avoid the collision. * * *
“If his track was clear and there was nothing in the situation, position or movement of the road roller to suggest danger to the motorman until such time as he got so close to the crossing as to render it physically impossible to stop before reaching it, the speed of his car considered, then the motorman would not be held negligent in failing to stop his car in time to avoid the collision; neither would the speed of his car, if lawful and proper, before the obstruction or danger became apparent, be rendered negligent and improper by reason of the fact that he could not stop the car in the distance intervening.”

The court charged the jury at great length in part as follows:

“It is their duty, gentlemen of the jury, to operate their cars, to have their servants operate those cars with due consideration of all of the circumstances surrounding that operation. If they exercised their functions in the same way that pertains to railroad companies generally, furnish its road and run it in the customary manner, which is found to be safe and prudent, they did all that is incumbent upon them and performed that degree of care required to be exercised toward or received by passengers upon steam railroads, they did all that is required.
“Now, gentlemen of the jury, there is a little variance in the testimony as to the speed of the car at the time of the collision. That is, the speed at which it was operated. The business of the country demands of railroads, rapid transit of persons and property, and it cannot be said that the speed which has been testified to in this case is of itself as a matter of law, a negligent speed when running through the country outside of villages or cities or other thickly settled communities. It is, however, your duty to take into consideration all of the circumstances surrounding the operation of the car at the time in question. It is for you to say as a matter of fact, whether or not the speed of the car was such a speed as a careful and prudent person would have used under all of the circumstances surrounding the case. You have heard the testimony, and considerable testimony has been brought to your attention in that respect, as to the condition of the track, regarding highways and cross* ings and all other matters, the foliage upon either side of the track. All of these matters. It is for you to say from that testimony, taking that testimony and the evidence which you believe to be controlling and the circumstances at the time in question, as to whether or not the speed of the car was such a speed as^a careful and prudent person would have used, under the circumstances in question. If you find that it is such a speed as would be used by a careful and prudent person in the operation of a car at that time and place, then that act cannot be an act of negligence on the part of the servant of the defendant company, and the defendant company is absolved from all liability resulting therefrom. A person in the operation of a highly speeding object in going through woods and over public highways must exercise the care that such conditions require, and the question for you to find out is, Did the servant of the defendant company do that? If he did, he discharged his duty, and if he did not and if by reason of his failure to discharge his duty or to act in this respect as a prudent and careful person would do, under all of the circumstances, the plaintiff is entitled at the hands of the defendant, to recover for his full damages, if damage resulted to him by reason of this fact. Now, gentlemen of the jury, the defendant carrier is not an insurer of the safety of its passengers, and it can only be held liable for injuries caused by its negligence, and under the evidence in this case, the question of the defendant carrier’s liability is to be determined by the rules which govern the operation of steam railways in the open country rather than by rules governing the operation of cars in the streets and highways of cities, villages or thickly populated communities. No presumption of negligence arises because of the happening of the accident and plaintiff’s injury and the burden of proof rests upon the plaintiff to show that the defendant railway company was negligent. The railway company had the right to operate its cars at a high rate of speed and the rate of speed alone is not in and of itself negligence. Interurban cars are not limited in the rate of speed that they may run across highways, provided proper care is taken in approaching the same. As I say, they have a right to operate cars at a high rate of speed and the rate of speed alone is not in and of itself negligence, but is to be determined in the light of all of the circumstances surrounding the case. . The motorman in approaching the highway crossing had a right to believe that any person intending to use the highway for the purpose of crossing the track, would use reasonable care and caution to ascertain and determine whether or not a car was coming. It appears from the testimony in this case that the car, the car upon which the plaintiff was riding, if going at the rate of 50 miles, an hour could not be stopped in less than 950 or 1,000 feet and tha,t when going faster more distance would be required to make the stop. After you have determined the rate of speed at which the car was going, you will then have to determine the distance from the crossing that the motorman had a view of the same, and if you believe from the evidence that the length of view was sufficient to enable the motorman to stop his car so as to avoid striking any obstacle which was on or in dangerous proximity to the track at the time the observation was made, and that no such obstacle was on or in dangerous proximity to the track at such time, then I charge you, gentlemen of the jury, that the motorman had the right to continue on toward the crossing without slackening speed, in reliance on the belief that no one would proceed on or near the track until his car had passed the crossing, and if on reliance in such belief, the motorman got so near the crossing before he saw, or by the exercise of a high degree of care, he should have seen the danger, that it was practically and physically impossible for him to stop his car, then he would not be negligent and plaintiff could not recover against the railway in this case. If the jury believe- that the motorman saw or should have seen the driver of the traction engine when he went on or approached the track, if they believe the driver did so, the motorman had a right to. believe and to act upon the belief that the driver would not undertake to drive his train on or over the track until the car had passed the crossing, and if the motorman saw or should have seen the traction engine standing still at a safe distance from the track, he had a right to believe .that it would remain stationary and that it would not be driven upon the track before the car passed the crossing. The motorman under such circumstances could not be required to check or slacken the speed of his car in anticipation of any act of control of the engine which would cause it to leave a place of safety and go into a place of danger in or near the track ahead of the car, and if while so operating his car he got so close to the crossing before he saw, or should by the exercise of due care and caution have seen that the engine was proceeding toward the track, as to make it impossible to stop the same by the use of every possible means and device at hand before striking the engine, then I charge you, gentlemen of the jury, that the motorman could not be held to have been guilty of any negligence and the plaintiff could not recover against the railroad company.
“In approaching a crossing the duty rests upon the person operating a car to give warning. * * *
“I think I have already in the other requests which I have given or charges which I have made, covered the fourth request asked for by the defendant. Now, gentlemen of the jury, if the track was clear and there was nothing in the situation, position or movement of the road roller to suggest danger to the motorman until such time as he got so close to the crossing as to render it physically impossible to stop before reaching it, the speed of his car considered, provided you find that such speed was the proper speed under all of the circumstances surrounding the operation of the car, then the motorman would not be held negligent in failing to stop his car in time to avoid the collision, and neither would the speed of his car, if lawful and proper before the obstruction, or danger became apparent, be rendered negligent and improper by reason of the fact that he could not stop' the car in the distance intervening. * * *
“Now, as you have heard, there is a dispute as regards the responsibility in this case. It is as you Snow, the duty of the plaintiff himself to assume the burden of proof to show the acts of negligence upon the part of either one or both defendant companies. The form of your verdict in this case, unless the plaintiff has satisfied you by a fair preponderance of evidence that this accident was caused by negligence on the part of either one of the defendants, would be no cause of action. If you find that it was caused by an act of negligence upon the part of either one of these defendants you will so indicate by finding a verdict in favor of the plaintiff and against either one of the defendants that you find is liable therefor under the rules of law which I have pointed out, or against both of them, if you find that they are both negligent in the operation of those vehicles at the time in question. Now, if you find that this damage was caused by an act of negligence on the part of either one solely, you are so to indicate and find a verdict in favor of the plaintiff against that defendant that you find to be negligent and if you find the other defendant was not negligent you will find a verdict of no cause of action or not guilty as against that defendant. You can find a verdict for the plaintiff as against either of the defendants or against both of them, but you cannot find separately. If you find against both of them you cannot separate the responsibility. If you find from the evidence in this case that both defendants were guilty of negligence, which proximately caused the accident in question, then you will find for the plaintiff against both of the defendants and award the plaintiff such sum as against both of the defendants as you find from the evidence he has suffered by reason of the accident. But there can be no separation or degree of liability, as to the two joint defendants. If both have been guilty of the negligence which you find from the testimony, your duty will be to return a verdict in such sum as you believe will fully compensate the plaintiff for the injuries received and the damages he has sustained, but it must be one verdict as against both of the defendants. If you find for the plaintiff, you will, of course, assess the amount of his damages. If you find that one — that the negligence of one of these defendants was the proximate cause, as I stated before, and that the other defendant, through its agent did not commit an act of negligence which was the proximate cause of the accident, then you will return against that defendant in such a sum as you find the plaintiff has been damaged by reason of the accident the amount which you find to be his damages and against the other defendant which you find is not guilty, no cause of action. I trust I have-made myself clear upon that point. * * *
“The Court: My attention has been called to certain testimony given in this case with regard to the operation by the defendant, the Good Roads Construction Company, of the roller at the time in question. I find that the testimony is undisputed that there was but one person upon the roller; that there was no pilot upon the road roller as required by the statutes of this State. The statute of this State requires that a steam engine of this kind must have, in operating upon a public highway, must send ahead a person to give warning of the approach of a vehicle, that the lack of this constitutes negligence. That testimony is undisputed. Therefore, gentlemen of the jury, I charge you that the act of the driver of the roller, was an act of negligence as a matter of law in the operation of that road roller without a pilot as required by the statute in this State. I think that covers the principles that, are applicable to the case and you may follow an officer.”

A careful examination of that portion of the charge first above quoted convinces us that the substance of the fourth request to charge was fully covered in .the charge as given. The court gave the fifth request verbatim, but interpolated the words:

“provided you find that such speed was the proper speed under all the circumstances surrounding the operation of the car,”

as appears from the second excerpt above set out. We are of opinion that the qualifying language was proper under the evidence introduced and the issue presented.

Error is assigned upon that portion of the charge in which the court said:

“In approaching a crossing, the duty rests upon the person approaching to give warning,”

—and in this connection it is asserted that at the time the accident occurred there was no statute covering the subject and that therefore at most the question of whether a warning should have been given was one of fact for the jury.- We cannot agree with counsel for appellant in this claim. In operating a heavy motor car at. a rate of. 50 or 60 miles per hour there would surely rest upon the company the common law duty to give notice of its approach to a crossing. The whole tenor of the charge is such as to impose upon the defendant the duty only to:

“furnish its road and run it in the customary manner which is found to be safe and prudent,”

and to exercise:

“that degree of care required to be received by passengers upon steam railroads.”

We are of opinion that no error was committed' by the court in the use of the language to which exception was taken.

Error is assigned upon the third excerpt of the charge above quoted. The criticism of this portion of the charge is that the language was, “unhappy and confusing to the highest degree.” This view is not so apparent to the court as it is to counsel. A former verdict was set aside because of an attempt on the part of the jury to apportion the damages between the two defendants and the court apparently took extra precautions to avoid such an error on the part of the jury on the second trial. • We do not think the jury could have been misled by what was there said. It is true that the last excerpt above quoted tells the jury that the defendant Good Roads Construction Company is guilty of negligence as a matter of law. Had the court had this fact in mind when delivering that portion of the charge to which exception is taken it is likely that a somewhat different instruction would have been given, and one to the effect that the plaintiff must recover in any event against the Good Roads Construction Company, and could only recover against both defendants in case the railroad company was found to be negligent. Taking the instructions together, however, we are impressed that the question of the negligence of the railroad company was the important question for the determination of the jury, and that that was submitted under instructions entirely fair to that defendant.

Error is assigned on the refusal of the court to set aside the verdict for various reasons and among others that the verdict was excessive. When the case was in this court before under the record as it then stood, a majority of the Judges sitting were of opinion that a verdict for $10,000 was excessive. At the time of plaintiff’s injury he was in his 77th year and had an expectancy of life of about 5% years. At the time of the last trial in 1917, which was nearly eight years after'his injury, he was about 84 years of age and still had an expectancy of life of upwards of 3 years. Aside from the fact that the record upon this trial, on the question of earnings, is fuller than that upon the first trial, it is apparent that plaintiff by continuing to live far beyond his expectancy, according to the mortality tables, has demonstrated his right to recover for pain and suffering endured, at least up to the date of the last trial. Under the evidence in the record as it now stands upon the question of earnings and because of the lapse of time between the accident and the trial here under consideration, we are finable to say that the damages awarded are excessive.

The judgment is affirmed.

Ostrander, C. J., and Bird, Moore, Steere, Fellows, and Stone, JJ., concurred. Kuhn. J., did not sit.


text:
    STAFFAN v. CIGARMAKERS’ INTERNATIONAL UNION OF AMERICA.
    Insurance — Beneficial Associations — Mutual Insurance — NonPayment of Dues — Forfeiture—Estoppel.
    Where a member of a local cigarmakers’ union was habitually delinquent in the payment of dues, of which the secretary of the international union had knowledge, and the local union urged him to pay to avoid suspension, although he was more than eight weeks in arrears and already suspended under the constitution, and he continued to pay, and the local union to accept, his dues without regard to the provisions of the constitution as to reinstatement, held, that the international union is estopped from dropping him from membership and forfeiting his benefit policy at a time when he was in arrears less than eight weeks. Ostrander, C. J., dissenting.
    Error to Washtenaw; Sample, J.
    Submitted October 10, 1918.
    (Docket No. 28.)
    Decided December 27, 1918.
    Assumpsit by Mary E. Staffan against the Cigar-makers’ International Union of America for the amount of a benefit certificate. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      A. J. Sawyer and H. A. Baker, for appellant.

      Lehman & Lisle (George J. Burke, of counsel), for appellee.
   Brooke, J.

Plaintiff is the widow of Chauncey L. Staffan. Staffan had been a member of the defendant Cigarmakers’ International Union of America since September 15, 1894. He died October 11, 1917. The defendant is an association for the amelioration of labor, commonly called a labor union. It has headquarters in the city of Chicago and is made up of local unions maintained all over the United States, Canada, and Porto Rico, whose members are engaged in the cigarmaking industry. The parent body and the local unions of which it is made up operate under a constitution which the members take an obligation to support. Section 73 of said constitution provides:

“Any member other than retiring card holders, owing dues or assessments for eight weeks or more, stánds suspended from benefits. The death benefit shall not be included in the suspension from benefits in eight weeks’ arrearage. If the member or 20 cents dues paying members within two weeks from such suspension places himself within the eight-week limit and remains within such limit for ninety days from date of suspension, he shall be restored to his previous rights. Failing to comply with the above he shall stand suspended.”

Section 144 is as follows:

“Including the fifty dollars funeral or cremation expenses, there shall be paid upon the death of a member the following sums, viz.: If the decedent shall have been such member continuously for five years or longer period less than ten years next preceding his death, the sum of two hundred dollars. If the decedent shall have been such member continuously for ten years or longer period less than fifteen years next preceding his death, the sum of three hundred and fifty dollars. If the decedent shall have been such member continuously for fifteen years or longer next preceding his death, the sum of five hundred and fifty dollars.”

Section 144b is in part:

“Should any member be adjudged incurably insane or should any member be adjudged insane and committed to an institution for the insane and there remain for the period of two years and it shall then be the opinion of the officer in charge of such member that such insanity is incurable, then the amounts above provided to be paid in case of the death of such member (except the fifty dollars funeral or cremation expenses) shall become due and payable as in case of such member’s death.”

An exhibit taken from the ledger of the local union shows that Staffan on August 26, 1916, was in arrears 28 weeks ; that he. made payments on account thereof until at the end of 1916 he was in arrears 14 weeks. During the year 1917 he made payments reducing his obligation so that on June 23, 1917, he was less than 8 weeks in arrears. On that date the exhibit shows that he was dropped from the rolls under the provisions of section 144b above quoted. Staffan having been a member of the organization for upwards of 20 years, plaintiff was entitled to be paid the sum of $550 under the provisions of section 144 unless the fact that her husband had been in arrears more than 8 weeks during the year 1916 and the early part of the year 1917 operated to defeat her claim.

It is the contention of defendant that the provisions of section 73 relative to suspension are self-executing and that Staffan was automatically dropped from the rolls under the provisions of said section and never was reinstated under the provisions of section 67 which follows:

“Any member suspended by any local union can be reinstated on payment of $5, which may be paid in five weekly installments, or all at once, at the option of the union. But he shall forfeit all previous rights and benefits, and be considered the same as a new initiate. But this shall not be so construed as to mean the invalidation of any indebtedness, local or international, previously incurred. Nor shall any local union increase or diminish the fee herein set forth for the reinstatement, of any suspended member.”

John E. Kranich, the secretary of the local branch of which Staffan was a member, testified» that the last payment made by Staffan brought him within the 8 weeks’ limit fixed by the constitution. He further testified:

“At the time he was committed I wrote for instructions and they told me what entry to make.
“Q. In doing that you did not intend to suspend Mr. Staffan from the union?
“A. By the constitution he was suspended.
“Q. Was he ever before the local union?
“A. No, but if,—
“Q. Was he ever suspended by the local union?
“A. No. He never paid, the back dues without being urged. I went to see him, I didn’t really say to him he would have to pay up or I would have to drop him, but he finally did make it all up and at his death he had paid every assessment that was necessary to bring him within the constitution, he paid enough in amount to make 30c a week.
“Q. I believe you testified he was never suspended by this local union?
“A. He never was. * * * If we suspend a, man we do not still go around collecting dues from him, if he had been suspended under section 67 of our constitution he could have been reinstated on the payment of $5. He was not suspended by the local union, the International Union does the suspending. No matter what I do, I could pay sick benefits or do anything I have a mind to, to use up all the funds, but when the financier comes around he goes over all the books and checks up the items and if there are any sick benefits paid or dues collected that oughtn’t to have been' he checks it.
“Q. Does he notify the member that he is suspended?
“A. Why, yes.
“Q. Was Staffan ever notified that he was suspended?
“A. He was dead. No action was taken while Staffan lived.
“Q. He paid his dues to the local?
“A. Yes.
“The Court: What did the witness testify to as to the custom?
“Q. The .financial secretary comes around how often?
“A. About every five years.
“Mr. Balser: He testified they are automatically suspended.
“Q. Did other members ever fall behind?
“A. Yes, sir. There were several members who fell behind and were suspended. Staffan was never suspended.
“Q. Did other members ever fall behind?
“A. Yes, sir. There were several members who fell behind and were suspended. Staffan was never suspended by the local. The local secretary of this organization is the officer upon whom is laid the collection of assessments and weekly dues. It is one of my duties as secretary to collect either, 15, 20, or SO cents from each member each week and any assessment which may be levied by the C. I. U. A. That money is placed in the bank by the treasurer and is drawn on by the C. I. U. A., and money which Staffan paid into this fund from 1894 as assessments and benefits were drawn the same as the money from anybody else. He was never suspended. I do not know just what day it was I saw Staffan before he was committed, I would say about a week before, you couldn’t talk much of anything to him then, he did all the talking. I did think he paid the 50c before he was committed. He paid that in four installments and paid it off, that was entirely all right. The money is now in the hands of the C. I. U. A., and no money has ever been returned to Mr. Staffan, only that he got sick benefit under the constitution,”

• — and on cross-examination:

“A. The C. I. U. A. did not know, they have no way of knowing. The C. I. U. A. had no way of knowing until after Mr. Staffan’s death that Mr. Staffan had ever been back in his dues. On page 125 it is shown that Staffan was some 28 weeks back in the payment of his dues, but it is true that he paid along until he caught up, the local union accepted his money so that at the time of his death he was inside the eight-week limit or period and the $2.61 that he was back would not cut any figure as bearing on the claim he might have for $550. $500 of that money is for the wife and $50 is for funeral expenses.”

Further on re-examination:

“The financial secretary came here last on October 17, 1917. That was after Staffan’s death, before that he was here about 1912. I do not know whether Mr. Staifan [was] behind in his dues in 1912. I haven’t that in this book. It is true, members get behind in their dues and I go around and touch them up. We have to pay the local assessment. I go around and collect it and take it as dues and they expect to get the benefit of it.
“Q. And you lead them to believe they .will if they pay,—
“A. I am not trying to lead anybody. I suppose I might of told Chauncey Staifan that he would better hurry up and pay up or I would suspend him.
“Q. And he did pay up?
“A. He paid up.
“Q. And get within the limit, and all the suspending that is ever done is done by the local union?
“A. Well,—
“Q. And if you once suspend him and he wants to get back in, it costs,$5, that is true?
“A. Yes, it costs* him $5 to get back, but we are governed by the local union. It would not make any difference to me personally if Chauncey’s'wife got the money, I would like to see her get it, but as an officer of the union I cannot pay it, I have to live up to the constitution and see that it is enforced. Under the constitution if there is no beneficiary designated the wife is the beneficiary and Mrs. Staifan is entitled to this benefit if it is paid. * * *
“I do not know whether Staifan was ever behind in his dues prior to the time the secretary came around and before in 1906 or 1907 when he was sick, I cannot tell what happened then. I was at Howell. Staifan was allowed to pay up. The money was taken as dues. * * *
“This book which I hold in my hand is a day-book Ex. 5. Some of the entries were made in 1906.
“Q. State whether or not that book shows whether Chau'ncey Staffan was behind in his dues in the year 1906?
“A. It does not show, no. This day-book shows he paid $6.60 dues.
“Q. If he had been up in his dues he would not have paid that much?
“A. No, that is not quite sure. He was secrétary around 1906 before the last time. He was not suspended but he lost his office as secretary, he continued tp pay his dues.
“Q. And the C. I. U. A. secretary had knowledge of the fact he was behind?
“A. Why, sure.”

Upon an examination of this testimony we think it affirmatively appears that Staffan was in arrears as early as the year 1906. It appears that the financial secretary of the supreme body visited the locals about once in five years; that he was here in 1917, in 1912, and presumably in 1907. The visits in 1907 and 1912 occurred after Staffan’s delinquency in 1906 and the secretary of the supreme body according to the testimony of Kranich had knowledge of such delinquency. It further appears that during the years 1916 and 1917 Staffan was urged to make payments to the local in order to prevent suspension and that he made such payments for that purpose to a point which finally, and shortly before his commission as an insane person, brought him within the constitutional period of 8 weeks.

It is elementary that the law abhors forfeitures and will avoid them whenever reasonable ground can be found for so doing. We are of opinion that the facts in this case bring it clearly within the rule laid down in Wallace v. Mystic Circle, 121 Mich. 263, wherein we quoted with approval the following:

“If the company has, by its course of conduct, acts, or declarations, or by any language in the policy, misled the insured in any way in regard to the payment of premiums, or created belief on the part of the insured that strict compliance with the letter of the contract as to payment of the premium on the day stipulated would not be exacted, and the insured in consequence fails to pay on the day appointed, the company will be held to have waived the requirement, and will be estopped from setting up the condition as cause for forfeiture. In determining whether there has been a modification of the terms of the policy by subsequent agreement, or a waiver of the forfeiture incurred by the nonpayment of the premium on the day specified, the test is whether the insurer, by his course of dealing with the insured, or by the acts and dealings of his authorized agents, has induced in the mind of the insured an honest belief that the terms and conditions of the policy, declaring a forfeiture in event of nonpayment on the day and in the manner prescribed, will not be enforced, but that payment will be accepted on a subsequent day or in a different manner; and when such belief has been induced, and the insured has acted on it, the insurer will be estopped from insisting on the forfeiture. See Jones v. Assurance Co., 120 Mich. 211.”

See, also, Lord v. Protective Society, 129 Mich. 335. The recent cases of Edgerly v. Modern Maccabees, 185 Mich. 148, and Sumerlin v. American Fraternal Stars, 202 Mich. 154, upon which defendant seems to principally rely, have been examined. We are of opinion that the facts in the case at bar are so at variance with those considered in the cases cited as to render them inapplicable here.

Judgment is affirmed.

Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred with Brooke, J.

Ostrander, C. J. In my opinion Staff an stood suspended at the time of his death.


author: BROOKE, J.

text:
    SMITH v. BATTJES FUEL & BUILDING MATERIAL CO.
    1. Master and Servant — Workmen’s Compensation Act — Discontinuance op Compensation — Injuries from Malpractice — Evidence — Finding of Industrial Accident Board.
    In proceedings under the workmen’s compensation law by the employer and insurer to discontinue the payments made by the latter under said act, evidence that the total disability of plaintiff’s arm might have been caused by the original fracture received in the course of his employment, however skillfully the arm was treated by the surgeon who reduced the fracture, held, sufficient to support the finding of the industrial accident board that plaintiff was entitled to continue to receive said payments, notwithstanding the physician who treated plaintiff had compromised a suit started by him for malpractice by the payment of a substantial sum.
    2. Same — Admissions—Evidence—Question for Board.
    Averments in plaintiff’s declaration in his suit for malpractice that the condition of his arm was the result of malpractice and not. of the original accident were not conclusive against him in these proceedings, but might be considered by the board in connection with all the other evidence in the case.
    3. Same — Aggravated Injury — Release of Employer.
    The employer or its insurer is not entitled to be credited on the amount due to an injured employee a sum received by such employee from a physician for alleged malpractice in the treatment of the injury for which compensation is being paid, in the absence of any such provision in the workmen’s compensation act.
    See notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.
    Certiorari to Industrial Accident Board.
    Submitted October 15, 1918.
    (Docket No. 54.)
    Decided December 27, 1918.
    Elmer L. Smith, presented his claim for compensation against the Battjes Fuel & Building Material Company for injuries received in defendant’s employ. From an order denying petitions for the discontinuance" of payments under an award, defendant and the State accident fund bring certiorari.
    Affirmed.

      Thomas, Shields & Silsbee, for appellants.

      Wykes & Averill, for appellee.
    In April, 1915, claimant, while in the employ of defendant Battjes Fuel & Building Material Company, received an accidental injury in which his right arm was broken in at least two places, accompanied by a partial dislocation of the elbow joint. The injury was attended by one Dr. Wedgewood, who was called by the superintendent of the defendant company.. On May 28, 1915, a written agreement was entered into between the claimant and the commissioner of insurance (the risk being carried by the State accident fund), by the terms of which claimant was to receive $6.49 per week during disability. The State accident fund paid under this agreement for 124 weeks or up to about September 1, 1917, when further payments were discontinued for the reason that claimant refused to submit to an operation. In the meantime and on January 29, 1916, claimant becoming convinced that the then condition of his arm, which was entirely useless, was due to malpractice on the part of the attending physician, Dr. Wedgewood, brought suit against said Wedgewood in the circuit court for Kent county. On March 27,1916, this suit was settled by Dr. Wedge-wood, the consideration for said settlement being the sum of $2,125, paid by him to claimant. Two petitions were filed with the industrial accident board by defendants praying for the right to cease making further payments, the first on September 11, 1917, upon the ground that claimant refused to submit to a surgical operation which it was alleged would cure or improve the condition of his arm; the second on the 1st of December, 1917, upon the same ground with the added grounds that claimant had received a second injury in the month of August, 1917, and that he had received the sum of $2,125 from the doctor on account of malpractice in connection with the first injury for which he claims compensation. The testimony of some eight or nine doctors was taken by the board upon the hearing of these petitions and an order was entered by the board denying both of them, the board finding:
    1st. That the present condition of claimanc, which is one of total disability, is due to the original accident and not to Any malpractice.
    2d. That claimant’s refusal to submit to proposed surgical operations upon his arm under the testimony in the case is not unreasonable.
    3d. That his receipt of the money from Dr. Wedge-wood did not constitute an election within the meaning of section 15, part 3 (2 Comp. Laws 1915, § 5468), or of section 1, part 6 (2 Comp. Laws 1915, § 5488), of the workmen’s compensation act.
    4th. That the allegations in his declaration filed against Dr. Wedgewood are not binding and conclusive upon claimant,,but may be considered as evidence only.
    Defendants review the question in this court and contend for the following propositions:
    “1. That by starting the malpractice suit claimant elected to hold Dr. Wedgewood for all damages accruing after the time his arm, under normal conditions, would have healed, and by such election released the State accident fund from all payments thereafter, or at least, from all payments accruing after the settlement of said suit.

      “2. That if the State accident fund is not, on account of the malpractice suit, released from further payments, it is, nevertheless, entitled to have the amount received by claimant from Dr. Wedgewood applied pro tanto to the total compensation which the State accident fund may have to pay.”
   BROOKE, J.

(after stating the facts). It is conceded by counsel for appellants that:

“Dr. Wedgewood’s liability grew out of conditions which section 15, part 3, does not cover. It is our contention, however, that the doctrine of election as followed generally is applicable to this case and that section 15, of part 3, may be useful as showing the general policy of the law as intended to be applied to workmen’s compensation cases.”

In this connection it is urged that in the suit against Dr. Wedgewood claimant took the position that his present condition of total disability is due solely to the alleged malpractice of Dr. Wedgewood; that.he fraudulently abstained from communicating the fact that he received upwards of $2,000 from Dr. Wedgewood to the officers of the State accident fund, and continued to receive from that fund his weekly payment of $6.49; that the position assumed by claimant at this time is of necessity inconsistent with the one taken by him in his suit against Dr. Wedgewood and that having elected to look to Dr. Wedgewood he should therefore now be held to have abandoned any other source of compensation. In this connection it is said:

“When claimant received $2,125 in payment for his injuries, did he not by that act receive full and complete compensation for the then condition of his arm \ If he did he most surely could not expect compensation from the State accident fund, as he had been fully compensated by:
“(a) The State accident fund for the original injury and by
“(b) Dr. Wedgewood for the injury caused by the malpractice.
“If this view is correct, then there should be no further compensation paid. In fact, the State accident fund should have an action back against Smith for that portion of the compensation which they have paid him since the institution of the suit for malpractice.”

In support of the position taken, counsel cite the case of Ruth v. Witherspoon-Englar Co., 98 Kan. 179 (L. R. A. 1916E, 1201, 157 Pac. 403), the headnote of which follows:

“In an action under the workmen’s compensation act a recovery can be had only upon the basis of disability to labor resulting from the injury received in the course of employment, without the intervention of an independent cause, the separate consequences of which admit of definite ascertainment. It cannot be augmented by the fact that the disabling effects of the injury are increased or prolonged by incompetent or negligent surgical treatment, even where the employer is responsible therefor.”

See, also, Della Rocca v. Stanley Jones & Co., Ct. of Appeal, England, Jan. 21, 1914, W. C. & Ins. Rep. 34; annotated in 6 Neg. & C. C. A. 624, and Humber Towing Co. v. Barclay, 5 B. W. C. C. 142 (1911). The difficulty in applying the principle announced in the cases cited to the case at bar lies in the fact that here upon the hearing on the petition there was testimony of physicians to the effect that claimant’s present condition of total disability:

“was entirely due to the original injury in 1915 and that such injury was the proximate cause of his. present condition.”

Another physician testified:

“I would consider Mr. Smith totally disabled, and that this condition of total disability is due in large part to the original injury in April, 1917 (1915?). Approximately the original injury was the cause of his resulting present physical condition. I would state that even if this doctor who treated this arm in the summer of 1915 had done the best that could ordinarily be done by a careful, skilled, prudent, physician this arm would still, or might reasonably still, at the present time, be in a condition resulting in total disability.”

There was other medical testimony before the board from which, if believed by the board, it would appear that by submitting to an operation or operations the condition of-plaintiffs arm would be greatly improved and that thereby he might regain from 25 to 50 per cent, of its normal use. This court, however, does not concern itself with the determination of questions of fact when there is any competent testimony sup-d porting the conclusions reached by the board. In the light of the statements of the physicians quoted above it can hardly be said that there was no testimony in the case warranting the board in concluding that the claimant’s present condition of total disability is due to the original accident.

Not complicated, therefore, with claimant’s action against Dr. Wedgewood, the order of the board denying the petition should be affirmed. Does the fact that claimant started suit against Dr. Wedgewood by declaration in which he averred that his condition of total disability was the result of malpractice and not of the original accident, estop him from now asserting that such condition is due to the original injury? We are of opinion that the board was correct in holding that the averments of the declaration were not conclusive as admissions against the claimant, but might be considered by the board as evidence in connection with all the other evidence in the case. Ruth v. Witherspoon-Englar Co., supra.

The only question remaining is whether defendant State accident fund should have credit for the $2,125 received by the claimant from Dr. Wedgewood in reduction of the amount due from it to claimant under the terms of the statute. Our law makes no provision for- the application of sums received by a claimant from a third party not connected with the original accident in reduction of the master’s liability under the act. If such an application should be made it is a matter for legislative action rather than judicial interpretation.

The order of the board stands affirmed.

Ostrander, C. J., and Bird, Moore, Sthere, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    BANSKI v. MICHALSKI.
    1. Fraud — Cancellation of Instruments — Land Contracts — Exchange of Property — Past Due Payments.
    On a bill to set aside an assignment of a land contract on tbe ground of fraud, evidence that defendant or his agents represented to plaintiffs that there was nothing past due, while in fact there were several hundred dollars past due, held, sufficient to sustain a, decree for plaintiffs.
    2. Same — Rescission—Tender—Equity.
    Where plaintiffs acted seasonably, on discovering the fraud, in repudiating the contract and tendering the property they had received and demanding a return of their own, it is of no importance that defendant has lost his equity in the property transferred to plaintiffs through action of the original owner in taking possession and reselling.
    Appeal from Wayne; Perkins, J., presiding.
    Submitted October 23, 1918.
    (Docket No. 52.)
    Decided December 27, 1918.
    Rehearing denied May 1, 1919.
    Bill by Teofil Banski and another against Anthony Michalski to set aside an assignment of a land contract on the ground of fraud. From a decree for plaintiffs, defendant appeals.
    Affirmed.

      Arthur A. Koscinski, for plaintiffs.

      Charles Bowles, for defendant.
   Brooke, J.

Plaintiffs, on June 17, 1917, were the owners of a house and two lots in the city of Detroit valued at about $5,200, upon which they had paid $1,850. The fact that they desired to become possessed of a farm became known to two real estate agents named Buczynski and Rybicki. Buczynski was associated as a stockholder with defendant Michalski in the Gaffke Realty & Building Company. It appears that Michalski had about a month prior to said date entered into an agreement with one Grochola for the purchase by exchange of a farm of 40 acres in St. Clair county which he desired to sell or exchange. On the said 17th of June, 1917, which was Sunday, the two real estate agents took plaintiffs to the farm in question for the purpose of exhibiting it to them. It is undisputed that on this trip which was made by automobile the agents took along a quart of whisky which was consumed by themselves and plaintiff Ban-ski during the'afternoon. A very superficial examination of the farm seems to have been made by plaintiffs that day. Returning to Detroit rather late Sunday evening the agents left plaintiffs at their home, then went for defendant Michalski, who up to that time had had no acquaintance with plaintiffs. It was represented-to plaintiffs that the farm, together with some little personal property, was worth the sum of $4,500 and that there was then owing, but not due, on the land contract covering the same, the sum of $2,000. Plaintiff Teofil Banski and defendant discussed the question of exchange for several hours Sunday evening and ultimately reached an agreement for an exchange by the terms of which defendant was to pay plaintiff the sum of $150 as difference. The sum. of $50 was paid that night but was immediately turned over to the agents as their commission from plaintiffs. Three days later, on Wednesday, the 20th of June, plaintiff Teofil Banski taking the contract for his house and lots, duly assigned to defendant, accompanied Michalski, Grochola, and a notary public named Gaffke, who acted as interpreter, to the village of Richmond near the farm in question, where in the village bank, after some delay, plaintiff delivered to defendant the assignment of his house and lots and received an assignment of the contract covering the farm and a bill of sale of the personal property thereon. After the transaction was completed the parties drove to the farm where plaintiff made an arrangement with a man living on an adjoining farm to look after the personal property until he should come out to take possession thereof. All the parties to the transaction are Poles. Prior to entering into the contract of exchange plaintiffs seem to have had no advice and were apparently ignorant as to farm values. Within two days after the conclusion of the deal plaintiff went to the farm in question and making inquiries in the neighborhood claims to have discovered that the farm was worth only about one-half the sum at which it had been valued in the trade. He sought the advice of counsel and immediately or on July 18, 1917, made a formal tender to defendant of the sum of $290, represented by $250 cash paid by defendant to him and $40, the value of a horse which had in the meantime died, together with a reassignment of the contract for the farm and a bill of sale of the personal property thereon, and demanded from defendant a return of the contract covering his house and lots. This was refused by defendant, and the next day, July 14, 1917, he filed his bill of complaint herein, praying that said assignment from plaintiffs to defendant be set aside upon the ground of fraud. Having repudiated the transaction, plaintiff paid no further attention to the farm in question and defendant insisting upon his rights under the exchange contract refused to take the farm back. Under these circumstances the owner of the legal title to the farm took the personal .property thereon to satisfy “payments which were due for taxes and stuff,” and on the 23d day of July, 1917, resold the farm to one Prokopik for $2,300. Defendant on cross-examination testified:

“Q. And you admit now there was six or nine hundred dollars that ought to have been paid when Banski got it?
“A. Six or nine hundred was supposed to pay before. My understanding was if I take the farm I pay that and went to see Mr. Karp and have a talk with him. * * *
“Q. Did you know how much was past due?
“A. Past due, as I said there was six to nine hundred.
“Q. And you told him there was not more than $100?
“A. I did not. Did I answer that question three times already?”

While the record is not very clear, the witnesses for the most part testifying through an interpreter, we think it fairly appears that the plaintiffs were led to believe that the balance upon the contract was not to exceed $2,000 and that there was nothing past due thereon. This misrepresentation of fact is quite independent of any alleged misrepresentation as to value and was certainly material. We are favored with no opinion from the learned trial judge who heard and saw the witnesses but from a careful perusal of the record we are satisfied that plaintiffs were induced to consummate the transaction in question through fraudulent representations made by or oh behalf of defendant. Plaintiffs acted seasonably in repudiating the contract, tendering the property they had received and demanding a return of their own. The fact that defendant has lost the farm through the action of the original owner is of no importance. Tender to him was made ten days prior to the resale of the farm by the owner and he could readily have protected himself had he so desired.

The decree is affirmed.

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


text:
    FARR v. CHILDS.
    1. Mortgages — Deed as Mortgage — Equity!
    Although a deed amounts in equity only to a mortgage, a deed is required to revest the title in the grantor.
    2. Same — Consideration.
    Where the grantee in a deed given for security merely conveyed to a third party at the grantor’s request, on the payment of the debt, there was a valuable consideration.
    3. Equity — Jurisdiction—Quieting Tithe — Tithe to Land.
    A court of equity had jurisdiction to enter a decree quieting defendants’ title on their cross-bill asking for affirmative relief, where the 'averments of plaintiff’s bill setting up a claim of title in and possession of certain property and praying for an injunction preventing defendants from interfering with said possession were sufficient to clothe the court with jurisdiction of the parties and subject-matter, although a court of equity is not ordinarily the proper tribunal for the trial of title to real estate.
    See note in 11 L. R. A. (N. S.) 209.

      4. Same — Jurisdiction.
    The court of equity having once acquired jurisdiction, should retain same for the purpose of finally determining the rights of the parties and awarding complete relief.
    5. Same — Mortgages—Deed as Mortgage — Payment op Debt— Estoppel.
    Where the grantee in a deed given for security merely, at the oral request of the grantor, conveyed the premises direct to a prior mortgagee on the payment by the latter of the grantor’s debt, the latter would be estopped from asserting any claim to the land, since he received a valuable consideration in the payment of his debt, and such transaction is not void under the statute of frauds.
    6. Appeal and Error — Question for Review.
    The question as to whether the husband alone could surrender a contract running to himself and wife, not having been raised in the court below, will not be considered By this court.
    7. Equity — Assignment of Contract Interest — Clean Hands.
    Where plaintiff, after a land contract had been paid by the grantee in a deed of the premises which was on record, and after a mortgage against same had been discharged of record, and after said grantee had taken possession of the premises, procured an assignment of the contract to himself, obtained surreptitious possession of the place, which he maintained by force, and thereafter invoked the aid of a court of equity to protect him therein, held, that plaintiff had violated the cardinal rule of equity and did not come into equity with clean hands.
    Appeal from St. Clair; Tappan, J.
    Submitted October 17, 1918.
    (Docket No. 83.)
    Decided December 27, 1918.
    Bill by John A. Farr against Charles A. Childs and another to restrain interference with the possession of a farm. Defendants filed a cross-bill to set aside plaintiff’s deed and to quiet title. From a decree for defendants, plaintiff appeals.
    Affirmed.

      C. L. Benedict and J. F. Wilson, for plaintiff.

      John B. Mcllwain and Clair B. Black, for defendants.
    The bill in this case was filed by the plaintiff for the purpose of securing a preliminary and permanent injunction against defendant, preventing him from interfering with plaintiff’s possession of a certain farm. Plaintiff’s title was alleged to rest on a deed covering the premises made on March 8, 1918, by Cleston Minnie and Eleanor, his wife. A preliminary injunction was issued by the court, followed by a motion for its dissolution made on behalf of defendant. This motion was never decided. The defendant filed an answer and cross-bill. By said cross-bill defendant set up title and possession to the farm in question and prayed that the injunction issued against him might be vacated; that the deed under which plaintiff claimed title be declared to be void and that plaintiff be required to vacate said farm and deliver possession thereof to defendant. Upon the hearing a peculiar state of facts developed. Prior to September 7, 1916, Cleston Minnie and Eleanor, his wife, were the owners of the farm in question. On that date they gave a mortgage to one Louis Lobes for the sum of $800. About six months later and on February 27, 1917, they bought lumber from one James Dunn to the value of $75. Dunn, desiring security, a warranty deed of said premises was executed by Cleston Minnie and wife to Dunn on the last named date and a contract was executed by Dunn to Minnie and wife covering the same property. By the terms of the contract Dunn agreed to convey the property to Minnie and wife upon payment of $75 at the rate of $10 per month. Minnie never paid anything on account of the land contract but secured further lumber from Dunn amounting in value to about $50, which, it seems, was to be added to the sum due from him to Dunn under the contract. Minnie thereafter paid nothing to Dunn, either principal or interest, on account of the land contract, nor to the original mortgagee, Lobes, on account of the $800 mortgage, nor did he pay the taxes assessed upon said farm. Lobes died July 20, 1917, leaving a last will and testament, by the terms of which the residue of his estate went to Nancy L. Childs, wife of defendant. This residue included the $800 mortgage on the Minnie farm. Defendant Charles A. Childs was the executor of the will of Louis Lobes. Desiring to close said estate he interviewed Minnie with reference to the payment of the $800 mortgage. The record shows beyond peradventure that Minnie told Childs that he was unable to pay anything upon the $800 mortgage; that he had conveyed the place to Dunn as security for lumber purchased from him, whom he was likewise unable to pay, and advised Childs that if he would pay Dunn the amount due from him to Dunn that a conveyance might be made from Dunn directly to Childs. Pursuant to this agreement Minnie instructed Dunn to convey the farm directly to Childs upon payment to him; Dunn, of the amount due to him from Minnie, whereupon Childs paid to Dunn the sum of $120 and received a warranty deed of the farm in question bearing date January 23, 1918, and recorded upon the same day. As soon as the deed was executed defendant visited the farm in question, which was. unoccupied, closed and locked the door of the house, closed the door of the barn, and wired the front gate. On the next day, January 24, 1918, the defendant, as executor of the estate of Lobes, discharged the $800 mortgage of record.
    It further appears that Minnie had purchased from plaintiff upon a contract certain furniture amounting to about $45. Some time in February or early in March plaintiff made an examination of the records touching the title to said farm and discovered that the $800 mortgage had been discharged. Thereupon he entered into negotiations with Minnie’s wife, the result of which was that on March 8, 1918, about six weeks after Dunn had conveyed to Childs, Minnie and wife deeded said property to plaintiff and assigned to him the land contract which they had received from Dunn heretofore described. Defendant testified that prior to ¿he receipt of said deed and assignment by the plaintiff, he, Farr, had asked permission from Childs to place some horses in the barn upon said place. This permission Childs refused, but, nevertheless, having negotiated the trade with Minnie and a week before it was consummated, plaintiff caused to be delivered at the barn upon said place a load of hay and on about the 29th of March he made an ar-' rangement with one Bronson to take possession of the place. The house was opened by use of a skeleton key and Bronson moved in. On the 18th of April defendant having learned of Bronson’s entry he, with-one or two others, attempted to eject Bronson from the premises by force. Plaintiff’s son came to Bronson’s assistance and the fracas ended in an armed neutrality, both defendant and Bronson occupying the house the night of the 18th. On the 19th of April the preliminary injunction in this case was served upon defendant and he left the premises in the possession of Bronson. While some of the facts as above stated are contradicted by the plaintiff or by witnesses in his behalf, the learned circuit .judge who heard the case believed them to be sustained by the proofs. He filed an opinion which, after stating the facts, concludes as follows:
    “1. It is my conclusion as a matter of law and fact that defendant Childs’ petition for affirmative relief sets up a cause for relief in a court of chancery.

      “2. That as between themselves, Childs and Minnie had a legal right to conclude the oral arrangement whereby Childs should pay Minnie’s debt to Dunn and Dunn should convey the premises to Childs.
    “While it is the law that agreements and contracts for the transfer of title to real estate must be in writing, in this case Dunn acted for Minnie and executed the deed that Minnie would have executed.
    “The transaction was entirely completed, the oral agreement consummated and Minnie’s debt was paid by Childs as he agreed to do.
    “Minnie could not attack the validity of this contract that was fully performed for him — Minnie, through Dunn — and fully performed by Childs by payment of Minnie’s debt of $120, as agreed.
    “And under the proofs of this case Farr as a subsequent assignee of Minnie cannot question the validity of the consummated contract that his assignor is estopped from attacking.
    “3. It is further my conclusion as a matter of fact and law that plaintiff Farr had actual and constructive notice of Childs’ possession of the premises in question under his deed from Dunn.
    “For the reasons given, counsel for the defendant Childs may prepare and notice for settlement a decree, setting aside the deed from Minnie to Farr, L. 217, page 585, and dismissing plaintiff’s petition.”
    From a decree rendered in accordance with said opinion plaintiff appeals.
   Brooke, J.

(after stating the facts). Plaintiff in his original brief makes the contention that the only title held by defendants under their deed from Dunn is the assignment of a mortgage interest which was never foreclosed. While it is true that Minnie’s deed to Dunn and the land contract back from Dunn to Minnie and wife were understood by the parties to operate as security, merely, for the payment to Dunn of the amount of Minnie’s lumber bills, yet while the transaction amounted in equity to a mortgage it was nevertheless a deed in form and it required a deed from Dunn to revest the title in Minnie. McArthur v. Robinson, 104 Mich. 540. Dunn’s title instead of being reconveyed to Minnie was conveyed directly to defendants at Minnie’s request and for a valuable consideration, to wit: the payment of Minnie’s debt to Dunn, amounting to $120.

It is asserted that the answer and cross-bill should have been stricken from the files and no testimony received thereunder as being in violation of Circuit Court Rules No. 21, § 10, No. 24, § 1, and No. 26, § 2. With this view we are unable to agree. The bill set up a claim of title in and possession of the property in question and prayed for an injunction preventing*defendants from interfering with said possession. The averments of the bill were clearly sufficient to clothe the court of equity with jurisdiction of the parties and subject-matter of the suit. The answer and cross-bill asserted title and possession in defendants and prayed that the deed under which plaintiff claimed title be declared invalid. While a court of equity is not ordinarily the proper tribunal for the trial of title to real estate (Andries v. Railway Co., 105 Mich. 557, Cromwell v. Hughes, 144 Mich. 3), we are of opinion that where plaintiff himself had sought relief in a court of equity and had by the averments of his bill clothed it with jurisdiction, the court should retain same for the purpose of finally determining the rights of the parties and awarding complete relief. Hall v. Nester, 122 Mich. 141.

In the plaintiff’s reply brief he argues that Minnie’s oral instruction to Dunn to convey to Childs directly upon payment to Dunn by Childs of his, Minnie’s, debt of $120, is insufficient under the statute of frauds (3 Comp. Laws 1915, § 11975); that what Minnie conveyed by his action was an interest in lands and therefore void under the statute. In this connection it must be remembered that the legal title stood in Dunn at the time Minnie instructed him to convey to Childs; that he, Minnie, received a valuable consideration for said conveyance through the payment of his debt to Dunn and that the transaction was fully consummated by the payment of his debt and the making and delivery of the deed. Under such circumstances, of course, Minnie would be held to be estopped from making any claim to the lands in question. Faxton v. Faxon, 28 Mich. 159, 2 Herman on Estoppel, p. 1059. A case in principle not to be distinguished from the one at bar is Sullivan v. Dunham, 42 Mich. 518. In that case the vendee handed the land contract back to the vendor and the vendor convejred the title to another. The court said:

“For the particular purpose to be accomplished in this case, however, this was completely effectual, for it is not pretended that Gordy’s title from Sullivan is defective for want of the written surrender. This, however, does not appear to us important, as we think the judgment may be sustained on familiar principles.
“When the agreement sued upon was made between Sullivan and Dunham, each party was owner of -an interest in the land which was afterwards traded with Gordy. It was agreed between them that Sullivan might dispose of both interests to Gordy, accounting to Dunham for what he obtained, according to a certain basis which was agreed. He did trade accordingly, and Dunham now calls upon him to .account as he agreed. Now it is of no importance whether or not the authority given by Dunham to Sullivan was sufficient in law; for, as already stated, the title has passed to Gordy, and if Sullivan’s authority to trade with him was originally insufficient, Dunham by demanding his share of the price and bringing suit to recover, has affirmed the transaction, and ratified whatever was before imperfect.
“The agreement that Dunham should surrender his contract in order that the trade with Gordy might be made, evidently meant no more than this: that he should give up the contract and make no further claim under it. It is not at all likely that the word ‘surrender’ was used or understood by the parties in any technical sense. Dunham was. to permit Sullivan to dispose of his interest in the land: that was the Essence of the agreement, and it had been complied with. By his consent in the first place to what Sullivan proposed, and his acquiescence afterwards, he has precluded himself from asserting any further rights under the contract.”

In the case at bar instead of handing his contract to Dunn, Minnie asserted (falsely as it now appears), that he had lost or mislaid the same. See, also, Miner v. Boynton, 129 Mich. 584. It is finally asserted on behalf of plaintiff that inasmuch as the contract from Dunn ran to Minnie and wife, Minnie alone could not surrender the same; citing Bauer v. Long, 147 Mich. 351. Under the facts disclosed m this case we think it fair to assume that Minnie, in the transaction, acted for himself and his wife. They had abandoned the farm several months before the transaction in question; had paid nothing upon either the $800 mortgage, the Dunn contract, or the taxes. It is unnecessary, however, to pass upon this question as it was not raised in the court below and therefore should not be considered in this court. Gleason v. Stone, 200 Mich. 187, and Ward v. Carey, 200 Mich. 217.

We think it quite clear from a perusal of this record that plaintiff, after he discovered that the Lobes mortgage was discharged, conceived the idea of acquiring the farm in question for the amount of Minnie’s. debt to him plus $75 apparently due to Dunn. In furtherance of this design he obtained surreptitious possession of the place; maintained possession by force and thereafter invoked the aid of a court of equity to protect him therein. As was said in the case of Toledo, etc., R. Co. v. Detroit, etc., R. Co., 61 Mich. 9:

“It needs no discussion to show that an injunction against a party’s holding his own possession is the same thing as turning him out of possession, and is utterly illegal before a final decree.”

Here defendant was in such possession of the property as its character and condition required and plaintiff’s invasion thereof was clearly unwarranted and in our opinion in bad faith. Plaintiff by his acts has violated the cardinal principle of equity jurisprudence that he who seeks equity must come into court with clean hands. For this reason alone his bill should be dismissed.

The decree is affirmed.

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