author: Brooke, J. Ostrander, J.

text:
    BENNETT v. KALAMAZOO CIRCUIT JUDGE.
    1. Mandamus — Motions—Notice.
    The prosecuting attorney is not required as matter of practice to serve on the members of a grand jury which filed a report criticising official conduct, notice that he would move to strike the report from the records of the court, to entitle him to commence mandamus proceedings against the circuit judge to compel the granting of such motion.
    2. Same — Hearing on Petition — Preliminary Proceedings.
    Where the prosecutor failed to ask to have the petition brought on for hearing in the circuit court, but the opposing counsel asked the court to dispose of the case on its merits, not relying on the technical point in the Supreme Court, the matter will be considered on its merits in mandamus proceedings.
    3. Criminal Law — Presentment—Indictment.
    As distinguished from an indictment, a presentment is the notice taken by a grand jury of any offense from its own knowledge, without a bill of indictment laid before it at the suit of the Commonwéalth, and is usually considered as instructions upon which a prosecution may be founded: it is usually informal and not technically framed.
    4. Same — Prosecuting Attorney — Presentment — Grand Jury— Report — Criticism of Public Official.
    Where the grand jury, after investigating certain charges and crimes and returning indictments against certain re- • spondents, also presented to- the court a report criticising the official conduct of the prosecuting attorney and charging him with criminal conduct and with neglect of duty, but did not indict the official, the report should have been struck from the files of the court on his motion.
    Mandamus by Milo O. Bennett against the circuit judge of the county of Kalamazoo to compel respondent to grant a motion of the relator to strike from the files of the court a report of the grand jury.
    Submitted October 6, 1914.
    (Calendar No. 26,313.)
    Writ granted December 18, 1914.

      Milo O. Bennett, in pro. per.

      Alfred J. Mills, for respondent.
   Brooke, J.

Relator asks for mandamus to compel the respondent to make an order striking from the files of the circuit court of Kalamazoo county a certain report presented to the said court by a grand jury. The report in question follows:

“State op Michigan.
“To the Circuit Court for the County of Kalamazoo:
“We, the members of the grand jury now in session, beg leave to report, in addition to the reports already made, that our investigations have disclosed the existence of a state of affairs in connection with the office of prosecuting attorney for this county which we deem it our duty to call to the attention of the court.
“1. The evidence disclosed that the prosecuting attorney of this county has violated the laws of the State by drawing from the treasury of the county the sum of $245, claiming that amount as fees for services rendered in certain divorce cases, to which we believe he is not legally entitled. Act No. 586 of the Local Acts of the State of Michigan for the year 1907 provides that the salary of the prosecuting attorney for the county of Kalamazoo shall b$ fixed by the board of supervisors, and that such compensation shall be in full for all services that may be rendered for which the county may be liable, and in lieu of all fees which are fixed by law.
“2. That he was advised, as the evidence shows, before drawing said amount that he was not entitled thereto; notwithstanding which he drew the same from the treasury of the county and retains the amount so drawn, and has neglected and refused, and still neglects and refuses, to return the money so drawn to the treasurer of the county.
“3. Our investigation further shows that he has refused to attend sessions of the grand jury, though often requested by the circuit judge to do so, thereby subjecting the county to a great expense of having a special prosecutor to perform the duties for which he was elected and for which he is paid by the county.
“4. Without going into details our investigations further show that from the time the grand jury was summoned, and since it has been in session, that the prosecuting attorney of this county has, through the public press and otherwise, sought to cast discredit upon and to obstruct, hinder, and delay any efforts of the jury to get at the truth or falsity of the many rumors of alleged criminal irregularities within the county and city of Kalamazoo; that he furthermore in furtherance of his schemes has not hesitated to apply the most vile, profane, obscene, and vulgar epithets (too filthy, vile, and disgusting to be embodied in this report), not only to the chief executive of the State, the head of the legal department thereof, but to others who have been engaged in an honest effort to arrive at the truth of matters under investigation.
“5. Our investigation has disclosed in the conduct of criminal business of the county that he is utterly incompetent to discharge properly the duties of the office to which he has been elected. His neglect of duty and his conduct has been of so serious a nature that we feel it our duty to bring the same to the attention of the court and to request that this report or a copy thereof be forwarded to the governor of the State for consideration and for such action as to him shall seem proper.
[Signed] “The Grand Jury of Kalamazoo County,
“By Byron J. Carnes,
“Foreman of Grand Jury.”

The relator charges that the averments and innuendoes contained in said report are false and malicious, and wrongfully tend to impute a lack of integrity on the part of petitioner.

He filed a petition with the circuit judge demanding that said paper be summarily stricken and expunged from the files and records of the court. Respondent’s return to the order to show cause, issued by this court, shows that in fact relator’s petition filed in his court has never been acted upon, for the reason that no notice has been given by relator to members of the grand jury making the report, nor has any hearing upon said petition been demanded by relator. Respondent, however, returns that if he had acted upon said petition, as he is at present advised, he would have denied the prayer of the same for the following reasons:

“(a) Because, as matter of law, it is his judgment that the said grand jury had the lawful right to make said report to the court for the purposes therein set forth.
‘‘(b) Because in the judgment of the respondent, said report was made to the court by said grand jury in good faith, and not from malicious or improper motives.
“(c) Because an ex parte decision to strike said report from the files and proceedings of the court would, in the judgment of respondent, be an adjudication which might embarrass the grand jury and the several members thereof, and render them, at least prima facie, guilty of libeling relator.
“(d) Because the lawful rights of the relator, the members of the grand jury, the court, and the people of Kalamazoo county are such, in the judgment of respondent, as to render it improper to strike said report from the files and proceedings of said grand jury and award the relief prayed by relator in and by his petition to strike same from said files.
“(e) Because the' relator’s remedy, if any, in the premises, is not by writ of mandamus, but by suit, or suits, as against the grand jurors and all who may have taken part in the preparation and publication of said report, if the matters embraced therein are false and untrue, and if said report was not made by said grand jury in good faith and without malicious motives, and respondent states and avers that if all the matters and things stated, alleged, and averred in the relator’s petition in this matter are true, which tbis respondent does not concede, he is not entitled to the relief prayed, and resoondent demurs thereto for that reason.”

We are of the opinion that it was unnecessary for relator to serve notice of his motion to strike said report from the files upon any member of the grand jury. The paper, having been filed, became a part of the records of the circuit court for the county of Kalamazoo and, as such, was peculiarly within the custody and control of respondent. Touching the failure of relator to demand a hearing upon said petition, it is, we think, true that relator should have secured action, one way or the other from respondent, upon his petition before applying to this court for relief. However, we are not inclined to dispose of the case upon this technicality, in view of respondent’s return, and in view of the further fact that counsel for respondent has asked us to disregard the technical defense, and dispose of the question upon its merits. We will, therefore, consider the matter in this court as if, in fact, the respondent had refused upon proper application to expunge the report from the records of the court.

In order to determine the question in issue, it becomes necessary to ascertain, if possible, what duties and functions devolve upon the grand juries in this jurisdiction. Blackstone, in his Commentaries, book 4, page 301, defines the procedure as follows:

“The next step towards the punishment of offenders is their prosecution, or the manner of their formal accusation. And this is either upon a previous finding of the fact by an inquest or grand jury; or without such previous finding. The former way is either by presentment or indictment.
“1. Presentment by indictment. A presentment, generally taken, is a very comprehensive term; including not only presentments, properly so called, but also inquisitions of office and indictments by a grand jury. A presentment, properly speaking, is the notice taken by a grand jury of any offense from their own knowledge or observation, without any bill of indictment laid before them at the suit of the king; as the presentment of a nuisance, a libel, and the like; upon which the officer of the court must afterwards frame an indictment, before the party presented can be put to answer it. An inquisition of office is the act of a jury summoned by the proper officer to inquire of matters relating to the crown, upon evidence laid before them. Some of these are in themselves convictions, and cannot afterwards be traversed or denied; and therefore the inquest or jury ought to hear all that can be alleged on both sides. Of this nature are all inquisitions of felo de se; of flight in persons accused of felony; of deodands, and the like; and presentments of petty offenses in the sheriff’s tourn or court-leet, whereupon the presiding officer may set a fine. Other inquisitions may be afterwards traversed and examined; as particularly the coroner’s inquisition of the death of a man, when it finds any one guilty of homicide; for in such cases the offender so presented must be arraigned upon this inquisition, and may dispute the truth of it; which brings it to a kind of indictment, the most usual and effectual means of prosecution, and into which we will therefore inquire a little more minutely.
“2. An indictment is a written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented upon oath by, a grand jury. To this end the sheriff of every county is bound to return to every session of the peace, and every commission of oyer and terminer, and of general gaol-delivery, twenty-four good and lawful men of the county, some out of every hundred, to inquire, present, do, and execute all those things which, on the part of our lord the king, shall then and there be commanded them. They ought to be freeholders, but to what amount is uncertain: which seems to be casus omissus (omitted cases), and as proper to be supplied by the legislature as the qualifications of the petit jury, which were formerly equally vague and uncertain, but are now settled by several acts of parliament. However, they are usually gentlemen of the best figure in the county. As many as appeal upon this panel are sworn upon the grand jury, to the amount of twelve at least, and not more than twenty-three; that twelve may be a majority. Which number, as well as the constitution itself, we find exactly described, so early as the laws of King Ethelred. (Exeant seniores duodeeim thani, et prsefectis cum, eis, et jurent super sanctuarium quod eis in manus datur, quod nolint ullurn innocentem acensare, nec aliquem noxium celare.) (Let twelve elder freemen, and the foreman with them, retire and swear upon the holy book which is given into their hands that they will not accuse any innocent person, nor screen any criminal.) In the time of King Richard the First (according to Hove-den) the process of electing the grand jury ordained by that prince, was as follows: four knights were to be taken from the county at large, who chose two more out of every hundred; which two associated to themselves ten other' principal freemen, and those twelve were to answer concerning all particulars relating to their own district. This number was probably found too large and inconvenient; but the traces of this institution still remain in that some of the jury must be summoned out of every hundred. This grand jury are previously instructed in the articles of their inquiry, by a charge from the judge who presides upon the bench. They then withdraw to sit and receive indictments, which are preferred to them in the name of the king, but at the suit of any private prosecutor; and they are only to hear evidence on behalf of the prosecution; for the finding of an indictment is only in the nature of an inquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to inquire, upon their oaths, whether there be sufficient cause to call upon the party to answer it. A grand jury, however, ought to be thoroughly persuaded of the truth of an indictment, so far as their evidence goes; and not to rest satisfied merely with remote probabilities; a doctrine that might be applied to very oppressive purposes.”

The definition of a “presentment” as distinguished from “indictment” is set out in 20 Cyc. p. 1335, § B-2, as follows:

“A presentment in its limited sense is the notice taken by a grand jury of any offense from its own knowledge or observation without a bill of indictment laid before it at the suit of the Commonwealth. It is generally regarded in the light of instructions upon which an indictment must be found. In some jurisdictions either under statute or apart from statute, grand juries have the power to make presentment of offenses which are within their own knowledge and observation or are of public notoriety and injurious to the entire community. But in other jurisdictions it is held that the grand jury has no power to present any person for a criminal offense except by indictment.”

It is said in Hirsh on Juries, p. 209, § 725, par. 2:

“In addition to bills of indictments and specific offenses, the grand jury have the right to present to the court such public wrongs as in their judgment should be brought to the notice of the court.”

In a charge to a grand jury delivered by Mr. Justice Field, and reported in 2 Sawy. (U. S.) 667 (Fed Cas. No. 18,255), the following definition of “presentment” is found:

“A presentment differs from an indictment in that it wants technical form, and is usually found by the grand jury upon their own knowledge, or upon the evidence before them, without having any bill from the public prosecutor. It is an informal accusation, which is generally regarded in the light of instructions upon which an indictment can be framed.
“This form of accusation has fallen in disuse since the practice has prevailed — and the practice now obtains generally — for the prosecuting officer to attend the grand jury and advise them in their investigations.”

The identical question here presented seems to have arisen in the State of New York in the case of In re Osborne, 68 Misc. Rep. 597 (125 N. Y. Supp. 313). There a grand jury was summoned to take action regarding the American Ice Company. The deputy attorney general attended the grand jury and instructed them to find “no bill,” because of lack of evidence. The grand jury, however, did present to the court a report assailing the conduct and integrity of the deputy attorney general. This is a late case, being tried in 1910. In ordering the report expunged from the records, the court says:

“It has become a custom of almost invariable occurrence that the grand jury, at the close of its term, makes a presentment on some subject on which, frequently, no evidence has been heard. This, no doubt, proceeds from the zeal of its members to promote the general welfare by calling attention to certain conditions which they believe should be remedied. So long as they are confined to matters of general interest, they are regarded as harmless, even though a waste of time and effort, and after the ephemeral notice of the day has passed they are allowed a peaceful rest. But it is very different when the motives and conduct of the individual are impugned, and he held to reprobation, without an opportunity to defend or protect his name and reputation, for it must be borne in mind that, if the gentlemen of the grand jury were to meet as an association of individuals and give expression to the sentiments contained in a presentment, little attention would be paid to them, and a healthy regard for the responsibility of utterances injurious to the individual would, in all probability, restrain exaggerated and unfounded statements. The mischief arises from a prevalent belief that a grand jury making the conventional presentment speaks with great. authority and acts under the sanction of the court, thereby giving to its deliverance a solemnity which impresses the mind of the public. This is a grave error. The powers and duties of a grand jury are defined by law. No matter how respectable or eminent citizens may be who comprise the grand jury, they are not above the law, and the people have not delegated to them arbitrary or plenary powers to do that, under an ancient form, which they have not a legal right to do. * * *
“Some States have abolished the grand jury system. This State yet preserves it, and it may be wise that it does so, for it is an institution that has indelibly impressed upon the pages of history a record for the protection of the citizen against the arrogance and oppression of power and has inspired in the hearts of the lawless and corrupt a healthy fear of its powers and honesty. But its. action should be checked when, from thoughtlessness or misconception * * * it arraigns the citizen in phrases accusing him of acts or conduct which in themselves are not criminal, thereby precluding him from the right guaranteed by the Constitution to every man to meet his accusers face to face before a jury of his peers, but which are the most insidious and harmful because they must remain without answer or denial. Such is this case, and in the interests of justice I am constrained to protect the attorney general and his deputies from an injustice by directing that the paper presented to the court by the grand jury, bearing date the 7th day of April, 1908, and entitled ‘a presentment,’ be stricken from and expunged from the records of this court.”

In the case of Rector v. Smith, 11 Iowa, 802, which was an action for libel against grand jurors for filing a report reflecting upon the conduct of plaintiff as county judge, it was held that the plaintiff could not recover, on the ground that the presentment was made without malice and supposedly in discharge of duty. The court, however, made the following comment upon the duties of the grand jury:

“It is made the duty of the grand jury when they find that an indictable offense has been committed within their county, to present the same by indictment. See Code, § 2897. By section 2992 it is made the special duty of the grand jury to inquire into the matters specified in the four subdivisions of this section. It is under the provisions of this section that the defendant claims that the law authorized and justified him in presenting to the court, as a grand juror, the report in regard to the actions of plaintiff as county judge. The grand jury have no power, nor is it their privilege or duty to present any person for a criminal offense except by indictment. If the misconduct of an officer does not amount to a crime, and is not of such magnitude as will justify the jury in finding an indictment, their powers over the offense complained of are at an end.”

It would appear that the statutory enactments relative to the duties of grand juries in Iowa were without effect upon the determination.

In State v. Darnal, 1 Humph. (Tenn.) 290, it is said:

“The presentment is in the form of a bill of indictment, and is signed individually by the grand j.urors who returned it. In England, as we have had occasion .heretofore to observe, an offender never was put upon trial upon a presentment, but on a return of a presentment by the grand jury, which was merely an informal information of the offense having been committed, the attorney general prepared a bill of indictment thereon, stating an offense in legal and technical form, and, upon this the person charged was put upon his trial. But such has not been the practice in the State of Tennessee. Here, when the grand jury, or any one of their body, is cognizant of an offense, the practice is to inform the attorney general thereof in the first instance, who prepares a bill of indictment upon the information, which is delivered to the grand jury and is by them returned, instead of the old informal presentment.”

In the case of Grand Jury v. Public Press, 4 Brewst. (Pa.) 313, in speaking of presentments, the court said:

“Like an indictment, however, it must be the act of the whole jury, not less than 12 concurring in it. It is, in fact, as much a criminal accusation as an indictment, except that it emanates from their own knowledge, and not' from the public accuser; and, except that it wants technical form, it is regarded as instructive for an indictment. That a grand jury may adopt such a course of procedure without a previous preliminary hearing of the accused is undoubted; it is equally true that in making such a presentment the grand jury are entirely irresponsible, either to the public or to individuals aggrieved, the law giving them the most absolute and unqualified indemnity for such an official act.”

In the case of In re Jones, 101 App. Div. (N. Y.) 55 (92 N. Y. Supp. 275), decided in 1905, a report or presentment was filed by the grand jury criticising certain officials of the court. It was sought to have the same expunged from the records. This relief was denied by the court, but at page 58 of 101 App. Div. (92 N. Y. Supp. 277), it is said:

“I think that if under the guise of a presentment the grand jury simply accuse, thereby compelling the accused to stand mute, where the presentment would warrant indictment so that the accused might answer, the presentment may be expunged, but I do not think that a presentment as a report upon the exercise of inquisitorial powers must be stricken out if it incidentally point out that this or that public official is responsible for omissions or commissions, negligence, or defects.”

In this State there are but two matters upon which a grand jury have statutory right to make reports or presentments, i. e., trespass on public lands, 1 Comp. Laws, § 1395, and violation of the election laws, §11443 (5 How. Stat. [2d Ed.] §14910). 3 Comp. Laws, §§ 11891, 11893 (5 How. Stat. [2d Ed.] §§ 15062, 15064), provide how indictments shall be found, but contain no provisions for the filing of a report or presentment reflecting upon the conduct of public officials.

An examination of the report filed by the grand jury in the instant case shows that it contains reflections of the gravest character upon the official conduct of the petitioner, if it does not actually charge him with the commission of a felony.

A review of all the cases cited upon both sides of the question, and such others as we have been able to examine, leads us to the conclusion that inherently, apart from statutory sanction, the grand jury has no right to file such a report, unless it is followed by an indictment. The evils of the contrary practice must be apparent to all. While the proceedings of the grand jury are supposed to be secret, it is clear that in the present instance that secrecy was not inviolate, for the objectionable report found its way into the press of Kalamazoo within a few hours after it had been filed. Whether the matter contained in such report be true or false, it can make no difference with the principle involved. In either event the accused person is obliged to submit to the odium of a charge or charges based, perhaps, upon insufficient evidence, or no evidence at all, without having the opportunity to meet his accusers and reply to their attacks. This situation is one which offends every one’s sense of fair play and is surely not conducive to the decent administration of justice. Upon the coming in of said report, we are of the opinion, that it was the duty of the trial court to have refused to accept it, or file it with the records of his court. Having received and filed it, upon the application of the petitioner, it was plainly his duty to have expunged it from the files. The writ will issue as prayed.

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

Ostrander, J.

I concur in the result. I think the paper in question was not a “presentment” by the grand jury..


source: Caselaw Access Project

author: KUHN, J.

license: Public Domain

text:
    TURNBULL v. MICHIGAN CENTRAL RAILROAD CO.
    1. Pleading — Partnership—Names—Fictitious Name.
    Under Circuit Court Rule 7, the defense, in an action for wrongful delivery of freight by a carrier, that plaintiff is a partnership, engaged in business under an assumed or fictitious name, in violation of Act No. 101, Pub. Acts 1907 (2 How. Stat. [2d Ed.] § 2626 et seq.), is an affirmative defense and requires a special notice with the plea of the general issue.
    2. Carriers — Bill of Lading — Freight — Delivery to Wrong
    Person.
    While it is true that the consignee is prima facie the owner of goods forwarded by common carrier, the carrier surrenders the freight to a third person, at its peril, on the order of the consignee, contrary to shipping instructions contained in an order form bill of lading, and is liable to a bona fide holder of the bill of lading, if the carrier did not require that the instrument be surrendered before delivery of the goods, or to the owner of the freight if he thereby loses the price.
    3. Same — Bill of Lading^Surrender.
    The provision in the^bill of lading that the goods shall not be delivered without the surrender of the bill of lading is not intended for the sole benefit of the carrier.
    Error to Lapeer; Smith, J.
    Submitted October 6, 1914.
    (Docket No. 5.)
    Decided December 18, 1914.
    Case by Elgin Turnbull and another, copartners under the firm name of the Turnbull Elevator Company, against the Michigan Central Railroad Com-, pany for the misdelivery of freight consigned with draft annexed to the bill of lading. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Cooley & Hewitt (Humphrey, Grant & Humphrey, of counsel), for appellant.

      Geer, Williams & Halpin, for appellees.
    In this case a verdict was directed for the plaintiffs, the action being brought against the defendant as the initial carrier, under the Carmack amendment to the Hepburn act, for the wrongful delivery of 250 bags of beans by the terminal carrier, the Evansville & Terre Haute Railroad Company. The consignment of beans was delivered to the agent of the defendant at Lapeer, Mich., and the bill of lading issued by the defendant was the regular order form blank, in terms being as follows:
    “Michigan Central Railroad Company.
    “Order Bill of Lading — Original.
    “Received, subject to the classifications and tariffs in effect on the date of issue of this original bill of lading, at Lapeer, May 22, 1912, from........the property described below, in apparent good order, except as noted (contents and condition of contents of packages^unknown), marked, consigned and destined as indicated below, which said company agrees to carry to its usual place of delivery at said destination, if on its road, otherwise to deliver to another carrier on the route to said destination. It is mutually agreed, as to each carrier of all or any of said property over all or any portion of said route to destination, and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all the conditions^ whether printed or written, herein contained (including conditions on back hereof) and which are agreed to by the shipper and acceptéd for himself and his assigns.
    “The surrender of this original order bill of lading properly indorsed shall be required before the delivery of the property. Inspection of property covered by this bill of lading will not be permitted unless provided by law or unless permission is indorsed on this original bill of lading or given in writing by the shipper.
    “The rate of freight from-to-is in cents per 100 lbs.
    “Consigned to order of A. J. Thompson Co.
    “Destination: Evansville, State of Ind.
    “Notify A. J. Thompson Co.
    “At Chicago.
    “Route: C. & E. I.; E. & T. H. Car Initial: 46254.
    “Car No.......L. S.......
    “No. Description of Articles Weight
    “Packages and Special Marks (Subj. to Corr.)
    “250 Bags Beans 41250
    “S L & C “Allow Inspection
    “1330 Lapeer, Mich. 3
    [Signed] “Turnbull Elevator Co., Shipper, “Per D. P. S.
    “A. G. Barber, Agent,
    “Per O.”
    The plaintiffs drew a draft upon the A. J. Thompson Company for the purchase price, attached it to the bill of lading, and deposited both in the bank for collection; the bank crediting plaintiffs’ account with the amount of the draft.
    The consignment moved forward over the lines of the defendant, was delivered by it to the Chicago & Eastern Illinois Railway; and was carried by it and the Evansville & Terre Haute Railroad Company to the destination. Upon arrival there the consignee was notified by the terminal carrier, and an order was given Ragon Bros, allowing them inspection of the consignment, which was granted by the terminal carrier. The following order was then given by A. J. Thompson Company:
    “Chicago, June 3, 1912.
    “E. & T. H. R. R. Co.:
    “Please deliver Parsons & Scoville Co. 250 bags beans out of car 46254 without surrender original bill lading, on payment of chgs.
    “Arthur J. Thompson Co.
    “per Zinia.”
    Upon surrender to it by Parsons & Scoville Company of this written order of the consignee (the A. J. Thompson Company), and upon receipt of confirmation of that order by both telegram and letter signed by said consignee, the terminal carrier delivered the consignment in accordance with the order of the consignee to Parsons & Scoville Company without surrender of the original bill of lading. The bank being unable to make collection of the draft from the A. J. Thompson Company, the consignee, the draft and the original bill of lading were returned to the plaintiffs, and their account in the bank was charged with the amount of the draft. As a result this litigation was instituted.
   KUHN, J.

(after stating the facts). As a preliminary question it is contended that, the plaintiffs being copartners doing business as the Turnbull Elevator Company, there had not been a sufficient compliance with Act No. 101, Public Acts of 1907 (2 How. Stat. [2d Ed.] § 2626 et seq.), so as to permit plaintiffs to maintain this suit. Irrespective of whether there was in this case a sufficient compliance with the statute, we are of the opinion that the defendant is not in a position to urge this defense, as there was no notice to that effect given with the plea. This defense is clearly an affirmative defense, and unless pleaded it must be considered that it was waived. Circuit Court Rule 1(b) provides:

“An affirmative defense, such as payment, release, satisfaction, discharge, license, fraud, or failure of consideration in whole or in part, and any defense which by other affirmative matter seeks to avoid the legal effect of or defeat the cause of action set forth in plaintiff’s declaration, must be plainly set forth in a notice added to the defendant’s plea. The signature of the defendant’s attorney following such a notice shall be a sufficient signing of both the plea and the notice.”

This defense is affirmative matter upon which defendant relies “to defeat the cause of action set forth in plaintiff’s declaration.” It is true that in Cashin v. Pliter, 168 Mich. 386 (134 N. W. 482, Ann. Cas. 1913C, 697), under the plea of the general issue, this court passed on the merits of the question, but an examination of the records and briefs in that case shows that it was not brought to the attention of this court, and the question of whether it was necessary to specially plead this defense under Rule 7, supra, was not decided. It has been held in other jurisdictions that the defense that the plaintiffs are doing business under an assumed name without having complied with a statute such as Act No. 101 is an affirmative defense and is waived unless pleaded in the answer. Carlock v. Cagnacci, 88 Cal. 600 (26 Pac. 597); California Savings & Loan Society v. Harris, 111 Cal. 133 (43 Pac. 525); Vaughan v. Kujath, 44 Mont. 484 (120 Pac. 1121); Reilly v. Hatheway, 46 Mont. 1 (125 Pac. 417); Bowman v. Harrison, 59 Wash. 56 (109 Pac. 192); Hale v. Transfer Co., 66 Wash. 459 (119 Pac. 837).

The other question which is before us is whether or not there was a misdelivery of this consignment of beans by the carrier in view of the shipping instructions of the consignor, as shown by their bill of lading. It is contended by the defendant and appellant that this question is .governed by the decision of this court in the case of Nelson Grain Co. v. Railroad Co., 174 Mich. 80 (140 N. W. 486). In that case a shipper consigned beans to his own order, notify X, under a bill of lading with a surrender provision. Later, by means of a spurious bill of lading, he ordered the carrier to deliver, to X, which the carrier did without requiring the surrender of the genuine bill of lading. The court said:

"Having made delivery of the shipments to the parties named in the bills of . lading upon the order of Botsford and Barrett as directed in the bills, we think the defendant should be held to have performed its full duty in the premises.”

In other words, the consignor-consignee, who had control of the goods and.upon whose order they were to be delivered, ordered a delivery to X. The consignor-consignee thus waived his right and his protection under the surrender provision, and is estopped from asserting it against the carrier, which made the delivery as ordered.

I do not think it can be said that the stipulation in the bill of lading that the surrender thereof shall be required before delivery is solely for the benefit of the carrier, and we did not so hold in the Nelson Grain Co. Case, as it was there said:

"Whether the stipulation in the bill of lading that surrender thereof shall be- required before delivery is considered to be for the benefit of the carrier or the shipper would seem in this case to make no difference, for the plaintiff was not the shipper.”

It is manifestly for the benefit and protection of both shipper and carrier. But, while it affords a benefit to the carrier, the carrier certainly need not insist upon it when it would be fully protected in a delivery without a surrender.

In the Nelson Grain Co. Case, Mr. Justice Brooke, in his opinion, also says:

“The bills of lading here considered are entirely unambiguous, and show conclusively that Botsford and Barrett were the shippers, and that the shipments were made to their order.”

And again:

“An examination of that paper (the bill of lading) shows that the plaintiff was an utter stranger to the transaction, except that as to the last bill its name appears beneath that of Botsford and Barrett, shipper, with the prefix ‘per.’ This can have but one meaning, viz., that the beans were shipped by Bots-ford and Barrett; the plaintiff acting for them in the transaction.”

In the instant case the plaintiff is the consignor, and not a stranger to the transaction, and gave no order for the delivery of the beans, and so it cannot be said that the surrender provision in the contract of shipment, the bill of lading, was waived. Here the shipper placed his property in possession of the carrier, which gave him a bill of lading, making a contract'between them which in most positive terms says that its surrender shall be required before the delivery of the property, and upon this agreement the shipper had a right to rely.

It is true that prima facie the consignee is the owner of the goods shipped, but it is equally true, and the rule is well established, that, when there is an order bill of lading outstanding, the carrier delivering the goods without requiring the presentation of the bill does so at its peril, and is liable to a bona fide holder thereof, This is sustained by the following decisions: McEwen v. Railroad Co., 83 Ind. 368 (5 Am. Rep. 216); The Thames, 7 Blatchf. 226, Fed. Cas. No. 13,859; First Nat. Bank of Clarkston v. Navigation Co., 25 Idaho, 58 (136 Pac. 798); Merchants’ Nat. Bank v. Steamboat Co., 102 Md. 573 (63 Atl. 108); Canandaigua Nat. Bank v. Railway Co., 155 App. Div. (N. Y.) 53 (139 N. Y. Supp. 561); Barnum Grain Co. v. Railway Co., 102 Minn. 147 (112 N. W. 1030, 1049).

Because of this conclusion, we consider it unnecessary to discuss the question of the liability of the carrier under the provisions of the uniform bills of lading act, Act No. 165, Public Acts of 1911.

The judgment is affirmed.

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


author: Kuhn, J.

text:
    OSBORNE v. TOWNSHIP BOARD OF RICHLAND TOWNSHIP.
    1. Mandamus — Parties—Intoxicating Liquors.
    In mandamus proceedings against a township board to compel respondent to grant a petition signed by relators and others requesting the board to refuse a license to an applicant who desired to engage in the retail liquor business, whether the fact that the relators were such petitioners was sufficient to confer upon them a private right not possessed by other individuals to institute the proceeding for a writ of mandamus, — qumre.
    2. Same — Parties—Petition.
    But where the prosecuting attorney of the county appeared in behalf of the petitioners and signed the petition for the writ in the capacity of prosecuting attorney and represented them in both circuit and Supreme Court, his action sufficiently evidenced his approval of the proceeding by the petitioners and sufficiently conformed to the requirements of 1 Comp. Laws, § 2556 (1 How. Stat. [2d Ed.] §1152).

      Certiorari to Ogemaw; Sharpe, J.
    Submitted October 6, 1914.
    (Calendar No. 26,327.)
    Decided December 18, 1914.
    Mandamus by William H. Osborne and others against the township board of Richland township and others to require respondents to reject an application for retail liquor license. Respondents review the order granting the writ of certiorari.
    Affirmed.

      S. E. Hayes & Son, for appellants.

      George Bennett, Prosecuting Attorney (William T. Yeo, of counsel), for appellees.
   Kuhn, J.

This is a proceeding by writ of certiorari to review an order of the circuit court granting a writ of mandamus. . The respondent Fred Rice, on April 11, 1914, filed an application with the township board of the township of Richland, praying for a license to engage in the retail liquor business in the said township. On the same day a petition addressed to said township board, signed by each of the above relators and 104 other qualified electors of said township, protesting against the issuing of the license, was filed with the clerk of said township. At a meeting held by said township board, the said application and petitions were considered, and the said application was laid on the table. On the 25th of April, 1914, the respondent Fred Rice filed with the township clerk a liquor dealer’s bond, signed by himself as principal and the Michigan Bonding & Surety Company as surety. On the same day, at a meeting of the township board, the application and bond of respondent Rice were approved, notwithstanding the protesting petition of the 111 qualified electors. At the hearing of the petition of the relators for a mandamus, no appearance or answer was made by either the township board or the county treasurer, respondents herein, and the only appearance and answer thereto was by respondent Fred Rice.

The questions brought here for review were stated in counsel’s brief as follows:

“(1) Because the proceedings were brought by the relators, who are private parties.
“(2) Because the only persons who have the right or authority to so petition and to bring such proceedings are the attorney general or the prosecuting attorney.
“(3) That a private citizen does not possess the right to ask for a writ of mandamus without permission of the court.”

It appears, from an examination of the petition addressed to the circuit court for the county of Ogemaw, that the name of George Bennett is signed to said petition as prosecuting attorney in and for said county, and not as private attorney for the relators. The brief in this court is also filed by him in his official capacity.

It is urged by petitioners that the relators have a peculiar interest in the case, not in common with other citizens of the said township of Richland, in that their petition was ignored by the said township board, which gave them a right to ask for the relief granted to them by the circuit court, and that under the weight of authority they had a right as private individuals to launch this suit. Irrespective of whatever merit there may be to this claim, it is conceded that, if the petitioners had no right as private individuals to bring this action, the prosecuting attorney is the proper official to institute such a proceeding, by virtue of section 2556, 1 Comp. Laws (1 How. Stat. [2d Ed.] § 1152). And while it is true that his name does not appear as petitioner, it is clearly evident that he approves of the action in his official capacity; he having signed the petition as prosecuting attorney and represented the petitioners in that capacity, both in the circuit court and in this court. We think this is clearly sufficient to show that he has acquiesced in and approves of the action of the petitioners in his official capacity, and therefore the objections urged are purely technical and without merit. See Village of Wolverine v. Cheboygan Circuit Judge, 162 Mich. 713 (127 N. W. 744).

The order of the circuit judge, granting the writ of mandamus, is affirmed.

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


text:
    STEVENS v. FORREST.
    Contracts — Tender—Saees—Breach of Contract.
    Although a contract for the sale of 2,000 tons of coke to be shipped in carload lots which were to be paid for in cash on receipt of each car, was not breached by the seller returning by mistake to the purchaser a check that his clerk thought was too small, where he later expressed a willingness to accept the payment; nevertheless failure on the buyer’s part to pay for 15 cars- of coke, except under new conditions, not named in the contract, accompanied by his threat to decline further performance, operated as a breach of a non-severable condition and entitled plaintiff, the seller, to rescind.
    Error to Genesee; Wisner, J.
    Submitted October. 9, 1914.
    (Docket No. 42.)
    Decided December 18, 1914.

      Assumpsit by Frederick B. Stevens against George Forrest for the purchase price of some coke. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Lee & Parker, for appellant.

      Robert A. Howard (A. M. Schwarz, Morris Becker, and Ray B. Johnston, of counsel), for appellee.
   Kuhn, J.

The plaintiff and the defendant in June, 1911, entered into a contract, by the terms of which the plaintiff, who was a coke dealer in Detroit, agreed to sell to the defendant, who was a retailer of coke in Flint, 2,000 tons of coke, at the following prices: $2.25 for egg, $2.10 for stove, and $2 for chestnut, per ton, f. o. b. cars at ovens, to be paid for cash on receipt of each car less 1 per cent. After some coke had been shipped, a question arose between the parties as to the price to be paid, and in October of the same year a new agreement was made, by which the plaintiff was to ship 17 cars, in addition to 4 cars then in transit, at the prices fixed in the June contract, and the balance of the 2,000 tons at a price 10 cents per ton for each grade in advance of the old price.

The defendant paid cash on receipt of all cars of coke until December 14, 1911, when the defendant, in payment of a car of stove size coke billed to him by the plaintiff at $60.64, sent the plaintiff a check of $56.04, which was payment for stove coke at the price fixed in the June contract, $2.10, less 1 per cent, discount. The plaintiff returned the check, refusing to accept it, but later admitted that it was- an error of his billing clerk, and .that the amount in defendant’s check was correct. The defendant thereupon refused to make any more payments, and after some correspondence, on January 19, 1912, plaintiff sent defendant a letter, claiming $736.21 due him for coke delivered at the agreed prices, and refusing to deliver any more, unless that amount was paid him. To this defendant replied that he would pay $100 on the arrival of each car of coke, the average cost of which was about $50, the difference between the cost of the car and the payment to apply on the old account until it was balanced; and, if the plaintiff did not accept this proposition, he would purchase the coke at the best price he could and charge the loss to the plaintiff. Plaintiff did not agree to this, and brought suit, which resulted in a verdict directed in his favor in the sum of $826.40.

Attached to defendant’s plea of the general issue was a notice of recoupment, claiming damages in the sum of $2,000 because of plaintiff’s failure to carry out the contract. A motion for a new trial was denied by the court. It is defendant’s claim that the claim of recoupment should have been submitted to the jury. In support of this claim two propositions are relied upon:

“First. That the return of his check sent in payment of an invoice billed at a higher rate than the contract price was a breach of the contract.
“Second. That the contract was entire, and that the mere failure of defendant to pay for one or more installments was not such a breach of the contract as to justify plaintiff in rescinding the contract, and that plaintiff’s subsequent refusal to deliver coke was a breach of the contract for which defendant could recoup damages.”

It is true, as claimed, that plaintiff refused to accept the check, but, when he was satisfied that it was an error, he expressed his willingness to correct it, and in his communication of January 19th, making demand of payment, he made allowance for the error. There is no merit in this contention; as the sending of the check was nothing more than a tender of payment, and should have been kept good when the error was corrected. 38 Cyc. p. 161.

The contract between the parties provided for the delivery of 2,000 tons of coke, to be shipped in car load lots, to be paid for on delivery of each car. It is conceded that the defendant received 15 cars of coke which were not paid for, and it was clearly the right of plaintiff to demand payment therefor before shipping any more. The offer of defendant to pay $100 on each new car shipped, of which practically one-half was to apply on the old contract, was an attempt on defendant’s part to impose new conditions on the contract, which, with his refusal to pay, entitled the plaintiff to refuse to make further deliveries of cars.

The contract was severable, as the shipments were to be made in car lots, and to be paid for as received. Williams v. Robb, 104 Mich. 242 (62 N. W. 352); W. K. Henderson Lumber Co. v. Stillwell & Co., 130 Mich. 124 (89 N. W. 718).

Defendants rely upon the cases of West v. Bechtel, 125 Mich. 144 (84 N. W. 69, 51 L. R. A. 791), and Welsh v. Maple Co., 161 Mich. 16 (125 N. W. 692). We think these cases are readily distinguishable from the case now before us. Both of these cases were brought for damages for breach of contract, and in both cases there was no evidence of an intention of the purchaser to abandon the contract. Here we have a refusal to pay for 15 cars of coke, and when the seller refuses to comply with new terms sought to be imposed by the purchaser, the purchaser threatens to abandon the contract. By his continued refusal to pay and trying to impose new terms, he forces the seller to rescind the contract, and then endeavors to cancel his debt by claimed losses, which, if there were any, were brought about by his own misconduct, and seeks thus to profit by his own wrong.

We are of the opinion that the judge was not in error in refusing to submit, to the jury defendant’s claim of recoupment, and the judgment is therefore affirmed.

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


text:
    WITTEMAN CO. v. BECK MALTING & BREWING CO.
    1. Fraud — Warranty—Distinctions—Sales.
    Representations made by plaintiff in obtaining a contract from defendant to install a carbonating system in its brewery, that, such system would enable tbe defendant to manufacture beer in 15 days, instead of requiring four or five months, as had been required theretofore, and it would thus increase the capacity of the brewery three or four times, amounted only to a parol warranty, and was not ground for the rescission of a written contract of sale and for the installation of the carbonating system, in which contract no warranty appeared.
    2. Same — Evidence—Sales.
    Parol evidence is not admissible to add to an unambiguous writing statements or representations from which a parol warranty may be inferred or implied.
    Error to Alpena; Emerick, J.
    Submitted October 9, 1914.
    (Docket No. 64.)
    Decided December 18, 1914.
    Rehearing denied April 28, 1915.
    Assumpsit by the Witteman Company against the Beck Malting & Brewing Company for the price of machinery sold and delivered. Judgment for defendant. Plaintiff brings error.
    Reversed.

      L. G. Da Foe (Alex J. Groesbeck, of counsel), for appellant.

      Joseph H. Cobb, for appellee.
   Kuhn, J.

This action arose out of a contract for the sale by plaintiff to defendant of a beer carbonating system, to be installed by plaintiff in defendant’s brewery. The contract, dated February 28, 1912, contained, along with provisions which were specifications of the machinery, the following:

“Our expert to erect these plants and remain a sufficient time until your employees are sufficiently posted and competent to operate the system. * * *
“We to install this plant on 30 days’ trial.
“The consideration on your part to be the payment of the following amount: $4,600, namely: Thirty days from first operation of the plant, $1,000 cash, and 15 monthly installments of $250 each. * * *
“We agree to complete the outfit on or before June 1, 1912”

—but contained no warranties.

The machinery was installed by plaintiff’s engineer, and first used on May 23, 1913, and the defendant’s employees were instructed how to operate it. After it began to use the system, the defendant complained of “cloudy” beer, and was obliged to take back considerable quantities from its customers. The change in the flavor of the beer was discussed with plaintiff’s agents Skinner and Ketler, and after one of these conversations defendant ordered another filter, in the hope that the carbonating system would give satisfaction if two filters were used. The plaintiff made repeated requests for payment, but several months elapsed before the additional filter could be had and set up, and, before the defendant had satisfied itself with further tests of the machinery, the plaintiff instituted suit to recover the purchase price of the machinery.

The defendant in its defense gave notice of recoupment and claimed damages to the amount of $10,000. By the old process of manufacturing beer, which defendant had used before the carbonating system was installed, it went through the stages of boiling, cooling, settling, and fermenting during the first 15 days, after which it was stored successively in standards and chip casks about 6 weeks and was then ready, for sale. In this brewery, while the beer was in the chip casks, in order to give it foam, sparkle, and life, a small quantity of new beer, made from sugar, was added to the old beer, which process is known as “krising,” and generally took about 14 days of time. It is claimed for this carbonating system that it forces carbonic acid gas into the beer as it is drawn off, giving it the foam and sparkle, and thus dispenses with this secondary fermentation under the old method.

It was claimed by the defendant that plaintiff’s salesman, in negotiating the sale before the contract was entered into, represented to it that by the use of the carbonating system the beer could be carbonated when it was 15 days old, without the aid of an additional filter, and be as good beer as defendant had been making by the old process in about 2 months, and that defendant could by the use of this system increase its capacity two or three times; that the first run of beer through the carbonating system was unsatisfactory, and the plaintiff’s engineer Skinner promised to have a man sent to correct .this matter; that when plaintiffs engineer Ketler came he informed the defendant that it must have another filter and the beer must be 6 weeks old instead of 15 days old. These claims were denied by the plaintiff, and evidence was introduced in support of the contentions of the parties to the controversy. The learned trial judge instructed the jury that if plaintiff’s agent represented to defendant that the carbonating system could be used successfully on 15-day beer and would increase defendant’s capacity two or three times, and the representation was false, the defendant would have a right to rescind the contract and be relieved from payment, provided it acted with reasonable promptness, and that circumstances might have existed which would allow it more than 30 days to exercise the right.

The jury found for the defendant, allowing it six cents damages, and the case is brought here for the, review of 32 alleged errors. Those upon which the plaintiff relies may be stated as follows:

(1) The admission of testimony in support of defendant’s claim that it was fraudulently induced to enter into the contract by the false representations of plaintiff’s agent.
(2) The admission of testimony in support of defendant’s claim for recoupment of damages on account of bad beer.
(3) The refusal of the court to direct a verdict on the ground that defendant did not exercise its alleged right to rescind promptly.

This case is planted in the pleadings, and was tried, upon the theory that the contract in question was obtained by fraud, and it was under this theory that the learned trial judge in a clear charge submitted the case to the jury.

It is urged that what the defendant is attempting to do, in effect, is to add to the contract entered into by the parties warranties not contained therein, and it is insisted that the rule that there cannot be read into a written contract an express oral warranty should not be evaded by calling facts which constitute an express oral warranty by another name, “fraud.” In support of appellant’s claim the case of Detroit Shipbuilding Co. v. Comstock, 144 Mich. 516 (108 N. W. 286), is relied upon.

We are unable to distinguish the instant case from that case, in principle, as it is clear that the representations the defendant here relies upon to show fraud, viz., that the carbonating system would take beer 15 days old and make as good beer as that which had been allowed to stand in the casks for a period of 4 or 5 months, and thus increase the capacity of the brewery three or four times, are warranties. As it was said in the Comstock Case with reference to such representations: “At most, this amounted to evidence of a parol warranty.” Under this authority we see no-escape from the conclusion that the trial court should have ruled out all the evidence with relation to such representations. We quote again from the Comstock Case (144 Mich. 519, 108 N. W. 287):

“That parol evidence is not admissible to add to an unambiguous writing facts which may aid the implication of warranty, see McCray Refrigerator, etc., Co. v. Woods & Zent, 99 Mich. 269, 275 [58 N. W. 320, 41 Am. St. Rep. 599].”

As there is no question in this case of an implied warranty arising out of the contract, as there was in the Comstock Case, with the elimination of the testimony with reference to the representations, there was nothing to submit to the jury, and a verdict should have been directed for the plaintiff. As no judgment can be entered here, the case will be reversed, and a new trial granted.

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


text:
    LEVYN v. KOPPIN.
    1. Trial — Jury—Challenges, Number oe — Joint Parties.
    On. the trial of a negligence case brought against two joint defendants, each is entitled to four peremptory-challenges. 3 Comp. Laws, § 10238 (5 How. Stat. [2d Ed.] § 12944).
    2. Evidence — Opinions—Expert Testimony — Conclusions.
    In an action for negligently colliding with decedent, who was proceeding to the curb from a street car from which he had alighted, and who was struck by an automobile owned by one of the defendants and which the other defendant was driving, the trial court committed no error in refusing to admit evidence of one of the plaintiff’s witnesses that decedent had no opportunity to get out of the way of the car, or that there was nothing which he could have done to avoid the injury, the questions calling for conclusions.
    3. Automobiles — Motor Vehicle Law — Negligence—Speed.
    Whether in a business district or in a residence district, the driver of an automobile who sees a pedestrian in the street ahead, is required to slow down and reduce his speed to 10 miles an hour, and to give reasonable warning of his approach, taking every reasonable precaution to insure the safety of such person. Act No. 318, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §§2487, 2493).
    4. Same — Negligence Per Se.
    Violation of the provisions of Act No. 318, Pub. Acts 1903, in this respect, amounts to negligence per se.

    5. Same.
    A charge to the jury that advised them if they found that the defendant operated his car in such manner as an ordinarily “careful and prudent person would, when the accident occurred, plaintiff could not recover, omitted from consideration the point that the defendant was negligent if he violated the statute.
    6. Same — Constitutional Law — Trial.
    The section of the statute creating a liability against the owner of the automobile in case of an injury being unconstitutional (Daugherty v. Thomas, 174 Mich. 371 [140 N. W. 615, 45 L. R. A. (N. S.) 699]), the court properly directed a verdict for the owner, who was not in the car at the time of the accident.
    Error to Wayne; Van Zile, J.
    Submitted October 14, 1914.
    (Docket No. 16.)
    Decided December 18, 1914.
    Case by William M. Levyn and anothér, as executors of the estate of Jacob Levyn, deceased, against Henry S. Koppin and William E. Kludt for negligently killing said testator. Judgment for defendant Kludt on .a directed verdict and for defendant Koppin on the finding of the jury. Plaintiffs bring error.
    Reversed as to said Kludt.

      Selling & Brand, for appellants.

      John E. Moloney and Frank W. Atkinson, for appellees.
   Kuhn, J.

A clear and concise statement of this case, distinct from argument, is set forth in defendant’s brief as follows:

“The plaintiff alighted from the front end of a Woodward Avenue car going north, at the corner of Martin Place, with the intention of proceeding east to the east curb of Woodward avenue, and thence along Martin Place to Harper Hospital. Somewhere between the car track and the east curb he was struck by an automobile driven by defendant Koppin, and as a result of the injuries received, he died.
“The claim of the plaintiff is that Mr. Levyn had gone but two or three steps towards the east curb when he was struck by the automobile driven by defendant Koppin, who had not given warning of his approach, and was driving the automobile at a rate of speed of from 20 to 25 miles an hour, and that Mr. Levyn was exercising due care and was without negligence on his part. It is the claim of defendant Koppin that, on approaching the street car from which Mr. Levyn alighted, he came to a full stop; that Mr. Levyn alighted from the car at practically the same time he started his automobile, and had proceeded east almost to the east curb of Woodward avenue and past the path of his automobile, when he jumped back into the path of the automobile and was struck; that' he gave due warning of his approach by blowing his horn. Testimony was introduced by the respective parties to substantiate their claims, and the case was submitted to the jury as against defendant Koppin, 'and a verdict of no cause of action was rendered.”

A motion for a new trial being denied by the court, the plaintiffs bring the case here by writ of error, and the assignments of error are grouped by counsel as follows:

“(1) Permitting the defendants eight peremptory challenges instead of four. '
“(2) Error in sustaining objections to questions put to plaintiffs’ witnesses.
“(3) Errors in refusal of certain requests to charge offered by plaintiffs.
“ (4) Errors in the charge of the court.
“ (5) Refusal of a new trial.”

Section 10238, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12944), provides that, “in all civil cases each party may challenge peremptorily four jurors,” etc. The action in this case was begun by summons, and service was first made on defendant Kludt, who appeared by Attorney Fred L. Vandeveer and filed a plea of the general issue. An alias summons was issued for defendant Koppin, and after he was served Mr. Vandeveer entered his appearance also for him. No plea had been filed by Koppin up to the time of the trial, and while a jury was being drawn a question arose as to how many peremptory challenges the defendants were entitled to; the plaintiffs’ counsel claiming that the defendants collectively were entitled to but four peremptory challenges. The court allowed Mr. Yandeveer to withdraw as attorney for defendant Koppin and permitted Mr. Moloney and Mr. Henze to appear for him. Six peremptory challenges were exercised by defendants’ counsel after plaintiffs’ counsel had but one peremptory challenge left. This was objected to, and is'made the basis of an assignment of error.

There was no error in allowing four peremptory challenges for each of the parties defendant, which the statute clearly gives as a matter of right. There cannot be any question that the interests of these defendants were several, and they must be considered separately as parties to the suit. Each of them is entitled to the full number of challenges given by the statute as any other construction would do away with its clear intent. 17 Am. & Eng. Enc. Law (2d Ed.), p. 1182; Stroh v. Hinchman, 37 Mich. 490; People v. Welmer, 110 Mich. 248 (68 N. W. 141); People v. Caruso, 170 Mich. 137 (135 N. W. 968, Ann. Cas. 1914A, 857).

The errors relied upon with reference to the exclusion of testimony arose, it is claimed, from the following: Witness Hindeman, who was the conductor of the street car, was asked,

“Now from the time that you saw the automobile to the moment and the time that Mr. Levyn, or this gentleman whoever he was, got off the car, what opportunity did he have to get out of the way of that automobile?”

The witness answered, “None whatever.” On motion, this answer was stricken out as a conclusion. For the same reason the court ruled out the answers of this witness to the following question:

“If he (Mr. Levyn) had looked in that direction (south), what could he have done to have avoided the injury?”

And of witness Vinnett to this question,

“Could you tell from the rate of speed that that automobile was going whether it started up from a full stop at the intersection of Martin Place?”

We are of the opinion that the rulings of the court were proper and correct, as the questions clearly called for conclusions of the witnesses. No conditions were shown which called for knowledge not possessed by ordinary persons, and the jurors were just as able to draw their own conclusions from the conditions and facts presented to them as these witnesses. With reference to the question asked of witness Vinnett, it is also a matter of common knowledge that it would depend largely upon the type and power of an automobile as to how quickly it could attain a fast rate of speed after having been at a complete stop, and it does not appear that the witness possessed any special or particular knowledge of this type of car, or was otherwise qualified to answer the question.

We now come to the principal grounds for reversal urged by counsel for appellant, which are objections relative to the charge of the court. The defendant Koppin admits that he saw Mr. Levyn alight from the car, and that he was in the highway when struck. He was therefore in the roadway of a public highway and the defendant Koppin was approaching him. The duty of the defendant Koppin under this conceded statement of facts is prescribed by section 7, subd. 2, Act No. 318, of the Public Acts of 1909 (2 How. Stat. [2d Ed.] §§2487, 2493), and in consideration of this duty it was immaterial whether it was in a business district or a residence district. It was his duty to slow down to a speed not exceeding ten miles per hour, give reasonable warning of his approach, and use every reasonable precaution to insure the safety of Mr. Levyn. The serious objection to the charge of the court is that the learned circuit judge did not instruct the jury, as requested .by the appellants’ counsel in their requests to charge, that a violation of a statute by the defendant would be negligence per se, in accordance with the holding of this court in Westover v. Railway Co., 180 Mich. 373 (147 N. W. 630).

It is not claimed by the appellee that such an instruction was given by the court in exact language, but it is claimed that in effect the court did so charge in the following:

“As has been said by one of the judges in the State, and which has been approved, I understand, by the court, the owner of an automobile has the right to use the highways of this State, provided in using them he uses reasonable care and caution for the safety of others, and does not violate the law of the State. If the defendant operated his automobile on a public highway at such a high rate of speed as to prevent him from maintaining control of it, and the rate of speed is unreasonable, then he would be deemed to be negligent. In making use of a vehicle which is operable at a high rate of speed largely in excess of the ordinary vehicles of travel, and which is powerful and of great weight, the operator must enlarge to a commensurate extent the degree of vigilance and care necessary to avoid injuries which by the use of his vehicle is made more imminent. This is partly the language of the statute: It is unlawful for any person to drive a motor vehicle upon the public highways of this State during a period from one hour after sunset to one hour before sunrise without displaying lighted lamps, etc. But that is not in this case. When approaching a person walking in the roadway or public highway, the person operating the vehicle should slow down to a speed not exceeding ten miles an hour, give reasonable warning of his approach, and use every reasonable precaution to insure the safety of such person.”

Later on in the charge he instructed the jury as follows:

“And if you find from the evidence in this case that the said defendant Koppin was operating the automobile driven by him in such a careful and prudent manner, as an ordinarily prudent person would, and that this accident occurred while he was so operating the said machine, then I charge you that the plaintiff in this case cannot recover, and your verdict should be for the defendants.”

We are of the opinion that this language allowed the jury to find that if the defendant acted as an ordinarily prudent person, under all the circumstances, and an ordinarily prudent man might have violated the statute of the State of Michigan, either as to the rate of speed, neglect to sound warning, neglect to slow down, or neglect to take reasonable precaution, they might find the defendant free from negligence. As the question of the violation of this statute was the all-important question in the case, so far as defendant’s negligence was concerned, the plaintiffs were entitled to a clear and explicit instruction as to the legal effect of a violation thereof by the defendant, and this, in our opinion, is not found in the charge of the court as given.

We have examined the other assignments of error as to the charge, refusal to grant a new trial, and newly discovered evidence; but, in view of the fact that the conclusion above arrived at necessitates a new trial, it will be unnecessary to consider them.

The trial court properly directed a verdict in favor of defendant Kludt, who was the owner of the automobile, but was not in the car at the time of the accident. Subdivision 3, § 10, of Act No. 318, Pub. Acts 1909, by which the owner might be held liable under such circumstances, was declared unconstitutional by. this court in Daugherty v. Thomas, 174 Mich. 371 (140 N. W. 615, 45 L. R. A. [N. S.] 699).

The judgment is therefore affirmed as to the defendant Kludt, but reversed and a new trial granted as to the defendant Koppin.

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


text:
    YOUNGS v. YOUNGS.
    Divorce — Ahmost—Reasonableness.
    An award of alimony of $1,500 from property of complainant valued at $12,000, which was, however, incumbered for about $2,300, held, not inadequate, where complainant was granted a decree against 'his wife and she had not assisted in accumulating any of it.
    Appeal from Lapeer; Smith, J.
    Submitted October 16, 1914.
    (Docket No. 118.)
    Decided December 18, 1914.
    Bill by John P. Youngs against Isabelle C. Youngs for divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      Elmer Shumar arid Geery Williams & Halpin, .for complainant.

      Herbert W. Smith (B. F. Reed, of counsel), for defendant.
   Kuhn, J.

The complainant on October 8, 1906, then 68 years of age, married the defendant, who was 89 years of age. She had been twice previously married, both of which marriages resulted in divorces being granted. As a result of the first marriage the defendant had three children, and after a short acquaintance with complainant, who was a bachelor, their marriage took place. At that time the complainant owned a farm of 207 acres, with the usual stock and farm personalty thereon, incumbered, however, by a $1,500 mortgage. Their domestic happiness did not last for any considerable length of time, as trouble began almost immediately, and resulted in the present bill of complaint being filed December 19, 1912, charging the defendant with various acts of extreme cruelty. The defendant filed an answer in the nature of a cross-bill, making counter charges of extreme cruelty. Upon a hearing of the case, the ‘court granted a decree to the complainant and dismissed the cross-bill, and awarded the defendant $1,500 as permanent alimony, and her costs, including the solicitor’s fee of $125, also various articles of furniture and other personal property.

The complainant in support of his charges produced 17 witnesses who lived in the immediate vicinity of the home of the parties, and the charges made by the defendant against the complainant were of a very serious nature, and if the witnesses who testified in support thereof had been believed by the court she would have been entitled to relief. Both of the parties to the controversy testified, and there was a sharp conflict as to their relations during the time they lived together. It would profit no one to set forth their various claims. The circuit judge, who saw and heard the witnesses, was in a better position to determine who told the truth than we are, and clearly he must not have believed the claims of the defendant and her witnesses.

After a careful review of this record, we are not inclined to disturb the judgment of the court below. It appears that the mortgage on the farm, which at the time of the marriage was $1,500, has been increased to $2,300, and the complainant claimed that his other debts exceeded the sum of $1,000. The farm is of the value of $12,000. It thus appears that the defendant has not assisted the complainant in accumulating any of his property, and in view of this fact, and also that the defendant is still a comparatively young woman, and the court found her at fault for their domestic difficulties, we are also of the opinion that the judgment of the court below upon the question of alimony should not be disturbed.

The decree is affirmed, without costs.

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


author: Brooke, J.

text:
    CONNER v. DETROIT TERMINAL RAILROAD CO.
    1. Adverse Possession — Quieting Titee — Continuity — Boundaries.
    Where complainant and defendant were the owners of parcels of land and a strip about 35 feet wide lying between the two parcels was occupied by the defendant under a claim of adverse possession, based upon an ancient fence which had fallen into decay, and of which only the posts remained during the latter part of the alleged statutory period, the evidence also showing that a portion of the •fence had not been continuously maintained on a large part of the line at the south end of the parcel in dispute, the trial court erred in finding and adjudging that the defendant had secured any rights by adverse possession.
    2. Same — Evidence—Burden of Proof.
    It is elementary that the burden of proving adverse possession rests upon the party who alleges it: strict construction of the doctrine is applied; possession must rest upon clear and positive proof, not inference.
    3. Same.
    As a general rule the law will not presume that possession separate from the title to real property is of an adverse character and every presumption favors the construction that it was in subordination to the title of the true owner; there must be proof that the possession was actual, .continued, notorious, distinct, and hostile.
    Appeal from Wayne; Murphy, J.
    Submitted October 13, 1914.
    (Docket No. 83.)
    Decided December 18, 1914.
    Rehearing denied April 28, 1915.
    Bill by William J. Conner, trustee under the will of R. H. Conner, deceased, against Detroit Terminal Railroad Company, et al., to quiet title to real property. From a decree for the defendants complainant appeals.
    Reversed.

      Arthur Jones (Fred A. Baker, of counsel), for complainant.

      Angell, Bodman & Turner, for defendants.
   Brooke, J.

The bill of complaint in this cause is filed for the purpose of quieting the title to a strip of ground running from Conner’s creek to the Detroit river. At its northerly or Conner’s creek end it is some 18 or 20 feet wide. At its southerly or Detroit river end, it is about 35 feet wide. Private claims 386 and 392 lie side by side; 392 lying immediately west of 386. The strip of land in question is off the westerly side of private claim 386, immediately east of the line between the two private claims. The record discloses that between Jefferson avenue and Conner’s creek a fence was built many years ago. This fence ran southerly from Jefferson avenue, but did not run the entire distance down to Conner’s creek. It was not built upon a true line between the two private claims, but upon a line a few feet east of the true line, which diverged slightly to the east as it ran south. On the south side of Conner’s creek also, at an early date, there appears to have been constructed a post and wire fence on this same line produced. Between Conner’s creek and the river the land is very marshy, being covered with water, for the most part, at some seasons of the year. The boundary line between the two claims north of Conner’s creek is not in dispute. While there is abundance of evidence in the record that a fence was constructed south of the creek upon the same line as that which ran north of the creek to Jefferson avenue, the record discloses that the fence never ran to the extreme southerly portion of the claim, nor was it constantly maintained. In the year 1906 one Herbert L. Russell, a civil engineer, was instructed to go upon the property, in behalf of the owners of private claim 392, and determine the easterly line of that property. With reference to the fence south of Conner’s creek, he testified:

“In that portion there were evidences of the old fence, the posts of which were standing, and quite a good many of the strands of wire were there, although it was not a complete fence, but it was in very fair line.”

No attempt was made in 1906 to reconstruct said fence, but in 1913 the defendants undertook to build a new fence upon the line occupied by the old one. It is undisputed that this line is, as before stated, some 18 or 20 feet east of the true line at its north end, and about 35 feet east of the true line at its south end, and between this fence and the true line lies the property in dispute.

When the complainants learned, of the attempt on the part of defendants to erect a new fence upon the line occupied at an earlier date by the old one, he filed his bill of complaint. He showed his title to that part of lot 386 which would include the strip in question, and asked a decree quieting the title in him. The defendants claimed title to the strip in question by adverse possession. It is not contended on behalf of the defendants that their (paper) title covers anything east of the east line of private claim 392, but they aver, by the existence of the old fence, the line between private claims 386 and 392 has been established by consent of the early owners and their successors in title, and that acquiescence in said line has existed for a period much in excess of the requisite statutory time. I have pointed out the condition of this fence, as disclosed by the testimony of Mr. Russell, in the year 1906. At that time it had been allowed to fall into entire decay and the line of its location could only be determined from occasional posts and a few strands of wire which still remained. By 1913, when defendants undertook to construct the new fence, Mr. Russell testifies that there were evidences of the same old fence south of Conner’s creek, but at that time it seems practically to have disappeared.

A witness, John Pische, Jr., called’on behalf of the defendants, after giving testimony as to a part of the distance south from Jefferson avenue to Conner’s creek, testified as follows:

“Q. There was also a fence south from the creek in an early day?
“A. Towards the river?
“Q. Yes.
“A. Not in my days.
“Q. You didn’t know that fence?
“A. Not from the creek south; there was a fence there in later years, but not really early days.
“Q. Did the fence ever extend from Conner’s creek in the present channel to the Detroit river?
“A. There was no fence in there only these later years.
“Q. Was there ever a fence more than a third of the way from Conner’s creek down to the river?
“A. I would say that would be less than a third, or about a third.”

On redirect examination this witness testified:

“It is only a few years ago that I noticed that fence. On P. C. 392 and the claims west they pastured cattle before it was platted for the past 15 years.”

Mr. Robert Trombley, an old resident, gave testimony on behalf of defendants, but an examination of his testimony with reference to the fence in question and the occupation of the land on either side of the fence seems to limit its applicability to that portion lying north of Conner’s creek.

The most important testimony given on behalf of defendants with reference to the existence of the fence in question, and of the character of the occupation of the land on either side thereof, was given by Messrs. Houghten and French, ice dealers, who had leases of ice privileges upon land both on 386 and 392.

Mr. Houghten’s testimony is, in part, as follows:

“Q. At the time you went on the land in 1891 or 1892, will you tell the court whether there was any fence along the east dyke side on the property which you leased from Mr. Seitz?
“A. Yes, sir; there was a fence from the channel bank or from the dyke, rather, to Conner’s creek. I don’t think it was a new fence.
“Q. At the time you took possession were you given to understand that your right under the lease stopped at that fence?
“A. Yes.
“Q. Who occupied or owned the land on the easterly side of that fence?
“A. Mr. Conner.
“By the Court: That fence of which you speak was north of Conner’s creek?
“A. South of Conner’s creek.
“By Judge Angell: From Conner’s creek to the river?
“A. (by witness). From Conner’s creek to the dyke, which is close to the channel bank.
“By Judge Angell: And Mr. Conner had the property east of that fence?
“A. Yes, sir. I had the ice rights or privileges to the Conner property and the privilege to put a dredge cut in there, and occupied under that arrangement until quite recently, and have executed leases with the Conner heirs or trustees..
“Q. The dividing line, as you understand it, in 1891, between the two properties you. leased was this fence you speak of?
“A. As far as we knew anything about it; that is what Mr. Seitz gave me to understand was our line when we leased the property. When we cut ice we had not to look for a line, we could go on both pieces of property.
“By Mr. Jones; I move to strike out what Mr. Seitz said or what information he received from Mr. Seitz as incompetent.
“By the Court: I wish Mr. Houghten would describe that fence here which he speaks of, south of the creek up to the dyke.
“Witness; It was a fence of cedar posts, I think, 8 feet apart, as near as I can remember; three boards on it, and two, three, or four strands of wire — three or four strands of barbed wire.
“By the Court: What would you say approximately its length was?
“A. From the bank to Conner’s creek, I never measured it, but I should think offhand, it was 1,200 or 1,500 feet. (Witness continuing) : I think our lease of the so-called Seitz property was four or five years. There were some parts of the fence there in 1891. There were some traces of it there. The last I can remember of it there was some posts there and some wire there. I think the boards were all gone. It was there when I took the property, and there was some of it there when we gave up the property. It has been allowed to get out of repair during the period we were there.
“Q. About how far back from the water of the Detroit river, at ordinary stages, was this dyke you speak of?
“A. Sometimes more than others. Sometimes the water was up, within 20 feet of it and sometimes 50 or 75 feet.”

Cross-examination by counsel for complainant:

“I think we leased from Mr. Richard H. Conner the following year after we leased the Seitz property. It was in 1893. It was a five-year lease, and expired about 1898, and it was renewed for five years more. The lease was practically the same; I don’t think it was changed. That expired in 1903, and when it expired we made another new lease with Richard H. Conner for five years more, and then we made a lease with the trustees of the estate which contains practically the same description as in the lease from Richard H. Conner. I think the description is the same. While that lease was pending the HoughtenFrench Company sold out to the General Ice Delivery Company, which now has a lease or understanding for the use of the property. (Witness, shown the lease from the trustees of the Richard H. Conner estate to the General Ice Delivery Company, says that the description is the same as in the leases that Houghten-French Company had.) We had the ice privileges on the Seitz property and all of the property up to the east line of lot 6, which belonged to Mr. Conner. The only time we paid any attention to the lines was when we had to dig a canal to get in on the east side of the Seitz property.
“Q. And that is the only time you paid any atten-; tion to the line?
“A. That is the only time I looked for the line.
“Q. You dug that canal from the fence east?
“A. No; I think we went east of the fence, if I remember right. We dug that canal partly on the Seitz property and partly on the Conner property; I think we took our chances on that.”

Mr. French’s testimony upon the same point follows:

“I live in Detroit, and have since 1871, and was a member of the Houghten-French Company, and was in the ice business for a great many years.
“Q. Did you and Mr. Houghten take a lease from John Seitz of the frontage part of claim 392 years ago?
“A. Yes, sir.
“Q. And later did you and he take a lease from Mr. Richard Conner of some property lying next east of it?
“A. Yes, sir; I went out of the business five years ago the coming spring, and at that time the leases were still in force, and we were operating there in the ice business. I worked for Mr. John Seitz two or three years prior to the time we made this lease with him, working in the ice business, peddling ice, and cutting and storing it. I have known this property for a good many years.
“Q. When Mr. Houghten took the lease from Mr. Seitz about 1891 or 1892, what can you tell us as to whether there was. any fence along on the marsh running back from the river east of his land?
“A. Yes; there was.
“Q. Where was the fence located?
“A. On the east line. I was told that it was the east line between the marsh; between the old Conner’s creek and the river bank, the channel or the old cut that was there.
“By Mr. Jones: I move to strike out the testimony of what he was told and what was supposed.
“A. I understood it to be our line.
“By Judge Angelí: Is that what Seitz told you?
“A. Yes, sir.
“By Mr. Jones: I object to that.
“The fence at that time was in pretty fair shape. It was a little wire fence, short cedar posts sharpened up nicely and put in there and wire strung. After we made our lease arrangements, we cut hay on the marsh every year if it was not too wet to get in there and cut it. The fence got out of repair. Nobody paid any attention to it; and it was gradually taken away more or less. The posts stood there, more or less; a post stood there. It was not in our way when we cut hay any more than to pick up the wires with the mowing machine. The fence was put in there after Mr. Seitz bought the property from Mr. Warren. I didn’t help put that in. I helped build some north of Jefferson avenue, but I didn’t have any hand in that, but I know it was put there about 1874 or 1875, I think.”

Thereupon the following statement was made by the counsel for the complainant:

“By Mr. Jones: I am willing, if your honor please, on behalf of the complainant, to state that the complainant does not deny, and never has denied, that at one time a fence was existing from Jefferson avenue south about half way to Conner’s creek, as the channel now runs, and from the south line of Conner’s creek a major part of the distance to the Detroit river; that that fence existed a number of years prior to the death of Mr. Richard H. Conner, and in a broken-down fashion at the time of his death. I am willing this statement should go upon the record as an admission from the complainant, or as a statement of fact. Had Mr. William J. Conner been cross-examined upon that point, he would have so testified.”

We have quoted this testimony rather at large for the purpose of showing the character of the proofs upon which defendants must rely in order to establish title to the disputed strip by adverse possession.

It is elementary that the burden of proving adverse possession rests upon the party alleging it. The doctrine is to be construed strictly, and such possession cannot be made out by inference, but. only by clear and positive proof. 1 Am. & Eng. Enc. Law (2d Ed.), p. 887.

As a general rule, where the possession of land is separated from the title, the law will not presume that the possession is adverse, but every presumption is in favor of possession in subordination to the title of the true owner. 1 Am. & Eng. Enc. Law (2d Ed.), p. 888. See, also, cases cited on page 541 in Yelverton v. Steele, 40 Mich. 538. In this case it is said, quoting from Mr. Justice Duncan from a note to Taylor v. Horde, 2 Smith’s Leading Cases, 561, that in order to constitute a bar to the assertion of a legal title by the owner of it, adverse possession must be “an actual, continued, visible, notorious, distinct, and hostile possession.”

While not controlling, the following facts are significant: The deed from Seitz and wife to Joseph H. Berry of private claim 392 does not purport to convey any portion of private claim 386, upon which the disputed strip lies. On the 15th of February, 1906, Mr. Joseph H. Berry deeded to the Detroit Terminal Railroad Company a strip of property for its right of way, described as follows:

“All that certain piece or parcel of land situate and being in the • village of Fairview, county of Wayne, and State of Michigan, and described as follows, to wit: A strip of land 66 feet in width from the easterly side of private claim 392, being the east 66 feet of the said private claim, the said strip extending from Jefferson avenue southerly to the harbor line of the Detroit river, and containing 8 acres of land, more or less.”

The railroad, grantee in said deed, built upon the 66 feet lying west of the true line between the two private claims. No part of the strip in dispute was occupied by said railroad company as its right 'of way under said deed.

From these facts it is argued by counsel for complainant that neither Mr. Berry nor his grantee, the railway company, regarded the old fence line as the true dividing line between the claims in question. The cases of Diehl v. Zanger, 39 Mich. 601, Hoffman v. City of Port Huron, 102 Mich. 417 (60 N. W. 831), Husted v. Willoughby, 117 Mich. 56 (75 N. W. 279), F. H. Wolf Brick Co. v. Lonyo, 132 Mich. 162 (93 N. W. 251), and Gildea v. Warren, 173 Mich. 28 (138 N. W. 232), relied upon by defendants, and accepted as controlling by the learned circuit judge, seem to us to be clearly distinguishable from the case at bar. In the instant case the fence relied upon as fixing a boundary line by the acquiescence between adjoining landowners never extended the entire distance upon the line claimed by the defendants, and it was not maintained continuously. The character of the land upon their side of the fence should be taken into consideration. It was such as to render actual husbandry impossible, and, probably, even pasturage of little value.

Under the proofs contained in this record, we are of the opinion that it would be carrying the doctrine of adverse possession to a point farther than it ever has attained in this State to hold that this old fence, erected many years ago through a marsh, and which was thereafter allowed to fall into decay and disuse, was sufficient to establish a boundary line between the two private claims, and thereby dispossess complainant of real estate to which he has the legal title.

The decree of the circuit court will be reversed, and a decree will be entered in this court in accordance with the prayer of the bill. .

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