text:
    LOWRIE & ROBINSON LUMBER CO. v. CAMPBELL AVENUE METHODIST EPISCOPAL CHURCH.
    1. Equity — Pleading—Plea Puis Darrein Continúanos.
    In a suit to enforce a mechanic’s lien wherein defendant filed a plea of former adjudication and complainant by a plea in the nature of a plea puis darrein continuance set up the fact that the judgment relied upon by defendant had been vacated since the last continuance, the issue was one of law for the court.
    2. Judgment — Res Judicata — Vacating Decree.
    That the decree of a court of chancery, previously entered in a distinct suit, had been vacated on complainant’s motion made after the filing of his bill of complaint, sufficiently answered defendant’s contention that the claim had been adjudicated by such decree.
    Appeal from Wayne; Murphy, J.
    Submitted January 17, 1912.
    (Docket No. 89.)
    Decided May 31, 1912.
    Bill by the Lowrie Sc Robinson Lumber Company against the Campbell Avenue Methodist Episcopal Church and others for the enforcement of a mechanic’s lien. From an order sustaining a plea to the bill of complaint, complainant appeals.
    Reversed.

      Ralph B. Wilkinson, for complainant.

      Walter M. Trevor, for defendants.
   McAlvay, J.

Complainant, a Michigan corporation, engaged in Detroit in the business of selling lumber at retail, sold and delivered certain lumber, between October 3. 1908, and September 10, 1909, to E, Lampman & Son, contractors, who were erecting a church building for defendant M. E. Church upon its property. This lumber was actually used in the construction of the building. The complainant having duly and regularly filed its statement of account and claim of lien on November 8, 1909, within 30 days after the said lumber was furnished, as provided by law, later, on November 5, 1910, began proceedings to foreclose the same by filing its bill of complaint in this suit, together with a notice lis pendens, filed with the register of deeds of Wayne county, as provided by law, to continue its lien pending such proceedings, naming as defendants all parties interested; and subpoenas were issued and served upon defendants.

On November 23, 1910, the appearances of defendants M. E. Church and Lampman & Son were entered. Later, on January 25, 1911, time by stipulation having been extended therefor, the defendants respectively filed pleas to the bill of complaint of a former adjudication. Complainant, on May 4th and 18th, filed pleas in the nature of pleas puis darrein continuance, and these defendants then moved to strike these pleas from the files. The court after a full hearing, by an order and decree, overruled the complainant’s pleas and sustained the pleas of defendants, giving complainant time to join issue upon the pleas, or to move for leave to amend its bill, which order was signed, filed, and entered May 11,1911. From this order complainant has appealed.

The allegations set up in defendants’ pleas, relied upon as a former adjudication, were to the effect that the Deman Bros. Company, on January 26,1910, commenced suit for the enforcement of a claimed mechanic’s lien against the same property, among others making complainant a party, and upon a subpoena, duly issued, the return shows service February 1, 1910; that complainant failed to appear and answer, and the bill was taken as confessed by it on November 28, 1910; that on the same date, certain of. the other defendants consenting, a decree was entered in favor of Deman Bros. Company for the amount of its lien, which decree, among other things, contains the following, which is the part relied on:

“It is further ordered, adjudged, and decreed that the said defendant Lowrie & Robinson Lumber Company, a Michigan corporation, has no right of lien against the premises of said defendant Campbell, Avenue M. E. Church, and that the lien heretofore filed against the property of said defendant church shall be, and the same hereby is, dismissed and declared to be null and void.”

In the Deman Bros. Company case, no notice Us. pen-dens was filed to preserve the lien. A motion was later made by defendant Lowrie & Robinson Lumber Company, complainant in this suit, before the Honorable George S. Hosmer, circuit judge, who had heard the case and rendered the decree therein, to vacate that part of the decree, above quoted, relative to the lien of the complainant herein, which motion was granted March 10, 1911, as follows (omitting formal parts):

“A motion to vacate the decree heretofore entered in this cause as to the Lowrie & Robinson Lumber Company having come on to be heard, Wilkinson & Younglove appearing for Lowrie & Robinson Lumber Company, Walter M. Trevor for the Campbell Avenue M. E. Church and E. Lampman & Son, and no one appearing for Deman Bros. Company, after due service on them of notice of this motion, the court, after listening to the arguments of counsel, doth order, adjudge, and decree that so much of the decree heretofore entered in this cause as refers to the lien and claim of the Lowrie & Robinson Lumber Company be, and the same is hereby, vacated.”

This is the order and decree relied upon by complainant in his pleas in the nature of pleas puis darrein continuance. These answers of complainant to defendants’ pleas of a former adjudication in bar of the action were filed and brought to the attention of the court before the order from which complainant appeals was granted.

This pleading of complainant, by whatever name it is called in the record, must be considered as a reply to the-pleas of defendants. No question is raised as to the form of the pleading, or that it insufficiently pleaded the fact that “since the last continuance” the decree relied upon in the pleas, in so far as material to the issue, had been vacated and set aside; and that such was the fact is not disputed. The situation then presented no question of fact. It was the same as if nul iiel record had been the reply, upon which the pleas must be determined as a matter of law. 9 Enc. Pl. & Prac. p. 627 et seq.; Gray v. Pingry, 17 Vt. 419 (44 Am. Dec. 345).

The reply of the complainant was a complete answer to the claim that there was at that time a former adjudication which was a bar to its action; and the court should have so determined by overruling defendants’ pleas. Other questions are presented which are vitally important to the final determination of the case. The only question presented by defendants’ pleas has been decided by us against their contention. The other questions will all be reached upon a hearing on the merits.

The order and decree of the circuit court is reversed and set aside, with costs to complainant. A decree will be entered in this court in accordance with this opinion, allowing defendants 80 days in which to answer complainant’s bill of complaint.

Moore, C. J., and Steers, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    LABADIE v. PERRY.
    Municipal Corporations — Contracts—Sidewalks—Public Improvements — Implied Contract.
    A property owner living in a village is not liable for a cement walk, constructed in front of his property by a contractor who had an agreement with the village to construct crosswalks, sidewalks, etc.,' the village to pay half the cost of walks built in front of private property; where no notice was given such owner to construct the sidewalk under section 2778, 1 Comp. Laws, and no attempt was made to assess the owner for such public improvement, or determination reacted to require him to pay any part of the expense. 1 Comp. Laws, § 2776. No implied contract arises from defendant’s knowledge and acceptance of the benefits.
    Error to Wayne; Donovan, J.
    Submitted January 17, 1912.
    (Docket No. 109.)
    Decided May 31, 1912.
    Assumpsit in justice’s court by Antoine Labadie and another against James G. Perry for work, labor, and materials. Defendant appealed to the circuit court from a judgment for plaintiffs. A judgment for plaintiffs on a verdict directed by the court is reviewed by defendant on writ of error.
    Reversed, and no new trial granted.

      Ignatius J. Salliotte, for appellant.

      Ari F. Woodruff (Frank W. Atkinson, of counsel), for appellees.
   McAlvay, J.

Defendant seeks to review, upon writ of error, a judgment rendered against him in a suit brought by plaintiffs in justice’s court in assumpsit to recover from defendant for material, work, and labor claimed to have been furnished for the construction of 300 feet of sidewalk at 6 cents per foot, built in the village of Eord, Wayne county, in the year 1897. Upon the trial in the circuit court, at the close of plaintiffs’ case, defendant by his counsel moved to direct a verdict for defendant, stating the ground of his motion. After some colloquy between court and counsel, not necessary to be quoted, a verdict was directed for plaintiffs, to which ruling defendant excepted. Upon this directed verdict the judgment was entered.

The facts in the case do not appear to be in dispute. Plaintiffs entered into a written contract with the village of Eord to furnish all material and labor and build. and construct, at their own cost and expense, certain cement crosswalks, alley crossings, intersections, and sidewalks within said village according to certain specifications, for the following prices: 12 cents for sidewalks and intersections; 13 cents for alley crossings; 16 cents for crosswalks; “the said village to pay all crosswalks, alley crossings, and intersections, and to pay 6 cents per foot for all sidewalks built in said village.” Defendant was not a party to this contract, and was not notified by the village that it sought to charge him or his real estate abutting upon these sidewalks with the cost of its construction, and no proceedings were ever taken by the village authorities to assess the same against his real estate. Defendant never had any understanding or agreement with plaintiffs to build this sidewalk for him, or that he would pay for its construction.

The theory of plaintiffs was that they could recover from him upon an implied contract, that no notice was required other than his knowledge of the fact that the sidewalk was constructed in front of his lots. The village of Ford is not a party to this suit, and has never notified or required defendant to build such sidewalk, or determined that he should pay the whole or a part of the expense of constructing it.

Defendant assigns error upon the refusal of the court to grant his motion to direct a verdict in his favor, and for directing a verdict in favor of plaintiffs. The village of Ford is incorporated under the general law for the incorporation of villages in this State.

The material provisions of this statute relative to sidewalks, giving the municipality authority to contruct and to require abutting owners to construct and maintain sidewalks within such villages, briefly stated, are as follows: The council is given control of all sidewalks in the public streets and alleys of the village, and may prescribe the grade thereof and change the same when deemed necessary. It is given power to build, maintain, and keep in repair sidewalks and crosswalks in the public streets and alleys, to charge the expense of constructing and maintaining such sidewalks upon the lots and premises adjacent to and abutting upon such walks, also authority to require the owners and occupants of lots and premises to build and rebuild, maintain, and keep in repair such sidewalks, upon grades fixed, and of character of materials and within such time as required by ordinance or resolution, and bear all the expense of the same, “or the council may by a two-thirds vote of all the trustees elect pay such part of the expense of building or rebuilding such walk as they may deem proper from the general street fund or district fund.”

Power is given the council by ordinance or resolution to require abutting owners and occupants to remove snow, ice, and all other obstructions from such walks:

‘1 Provided, that the council may by a two-thirds vote of all the trustees élect, provide by ordinance for the rebuilding, maintaining, and keeping in repair of all sidewalks within the village, and for the removing of all ice and snow therefrom, and for keeping the same free from incumbrances, and pay the expense thereof from the general street fund, or from the street district fund.” [1 Comp. Laws, § 2777.]

This statute makes provision for the enforcement and payment to the village for expense incurred by it on account of anything done relative to sidewalk construction, etc., which was chargeable to owners or occupants, by providing for a special assessment of such expense, with 10 per cent, penalty upon abutting premises to be collected as other village taxes or in an action of assumpsit against the owner or occupant. There is also a provision giving the council general supervision and control of all sidewalks within the village, with like authority as is given by general laws of the State. No village ordinances appear to have been enacted upon the subject. The legislative plan and intent in this legislation is not complex. It may be said to have provided that the municipality controls the sidewalks, that it could construct them and could require the lots benefited to bear the expense, or it could require the owners to build and pay for them, or by a two-thirds vote lay such part of this burden as seemed proper upon certain funds.

The same power and authority is given relative to rebuilding, etc. No provision whereby power is given to the municipality to lay any burden upon the owners or occupants of abutting property except as stated, and, when such burden is so placed, the method as provided for its enforcement, is by assessing it against the property and collecting as other village taxes, or collecting the assessment by an action in assumpsit. No attempt has been made by the municipality to make the expense of constructing this sidewalk a liability against defendant or his property. The contract plaintiffs made with the village does not indicate that such was the intention. In order to charge defendant with liability for the construction of this sidewalk, compliance on the part of the village with the provisions of the statute was absolutely necessary. The village could not contract for defendant, or create liability against him by contracting with plaintiffs to construct this sidewalk. No implied contract arises in this case on account of acceptance of benefits. Under the statute, the village had power to construct this sidewalk and pay for the same out of the general street fund or district fund, and upon this record no presumption to the contrary arises. Defendant had a right to assume that the village authorities would comply with the provisions of the statute. In no view of the case could any action be maintained by plaintiffs against him. A verdict should have been directed as requested by defendant.

The judgement is reversed, and no new trial granted.

Moore, C. J., and Steere, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Ostrander, J.

text:
    BARFOOT v. WHITE STAR LINE.
    1. Negligence — Landlord and Tenant — Contributory Negligence-Elevators.
    The question of plaintiff’s contributory negligence in falling down an unguarded elevator shaft, at a time and place where the light was insufficient, was properly submitted to the jury, in an action against the owner of the premises based on Act No. 285, Pub. Acts 1909.
    2. Same — Automatic Gates — Statutes.
    Automatic gates as prescribed by the statute are designed to prevent entrance to the shaft when the elevator is not at the particular floor where they are located and for the protection of persons desiring to use the elevator as well as of those who do not intend to do so.

      3J Same — Landlord and Tenant — Ownership. |
    There was evidence tending to show defendant’s ownership of the premises, where it appeared that the defendant had leased the building for three years, that the lessee obtained its rights of defendant, which made all repairs, receipted for rent, furnished heat, and on one occasion wrote the lessee stating that it would provide automatic gates for and paint the elevator.
    4. Same — Evidence—Letter.
    Such letter was competent to show defendant’s assertion of dominion over the building, — not to determine its duty to plaintiff or as an admission of its statutory duty and obligation.
    5. Same — Landlord’s Duty Under Labor Law.
    The owner and lessor of a building, part of which is used for manufacturing purposes by the tenant, is liable to one injured by reason of its failure to install the automatic gates required for elevators by Act No. 285, Pub. Acts 1909, assuming that the person injured is within the class for whose benefit the requirement was enacted.
    6. Same — Trial—Opening Statement — Error.
    Prejudicial error was not made out by defendant because plaintiff’s attorney stated in his opening that he would prove certain alterations were made at the shaft after the injury, but further stated, upon objection of counsel for defendant, that the testimony was not competent to show negligence, and could only be received to show who was chargeable with the duty; it further appearing that the testimony was excluded when plaintiff offered it.
    7. Same — Evidence.
    Nor was it error to permit plaintiff to show his injured arm to the jury.
    8. Same — Opinion.
    Defendant was not prejudiced by the exclusion of a question of its attorney whether plaintiff could have seen that the elevator was not there, if he had had a good, bright light; the question called merely for an expression of his belief.
    Error to Wayne; Codd, J.
    Submitted January 15, 1912.
    (Docket No. 15.)
    Decided May 31, 1912.
    Re-bearing denied July 22, 1912.
    Case by Clarence Barfoot against the White Star Line for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Gray & Gray, for appellant.

      Bowen, Douglas, Daman & Barbour, for appellee.
    Plaintiff stepped into the shaft of a freight elevator and was injured. He sued the owner of the building, basing his right to recover upon the fact that the opening to the shaft was not provided with an automatic gate or door and upon the duty to provide such a gate or door alleged to rest upon the owner by reason of the provisions of section 12 of Act No. 285 of the Public Acts of 1909. The building was not occupied by the alleged owner, but by tenants, one of which, a manufacturing concern, occupied the third floor. The plaintiff was not an employé of the owner, or of the lessee, but was the employé of a third person and was engaged in installing for the use of the lessee of the third floor an electric motor. The statute relied upon is entitled:
    “An act to provide for the creation of a department of labor; to prescribe its powers and duties; to regulate the employment of labor; to make an appropriation for the maintenance of such department, and to prescribe penalties for the violation of this act.”
    Section 12 of the act reads:
    “ It shall be the duty of the owner, agent or lessee of any manufacturing establishment where hoisting shafts or well-holes are used, to cause the same to be properly inclosed and secured. It shall be the duty of the owner, agent or lessee to provide or cause to be provided at all elevator openings in any manufacturing establishment, workshop, hotel or store, proper trap or automatic doors or automatic gates so constructed as to open and close by the action of elevators either ascending or descending. The deputy factory inspector shall inspect the cables, gearing or other apparatus of elevators in manufacturing establishments, workshops, hotels and stores at least once in each year, and more frequently if necessary, and require that the same be kept in a safe condition, and shall have power to condemn any elevator if in his opinion the same be unsafe, and stop the operation of such elevator until the same be put in a safe condition.”
    For a violation of or failure to comply with any of the provisions of the act a penalty of not less than $10 nor more than $100, or imprisonment for not less than 10 nor more than 90 days, or both a fine and imprisonment, may be imposed. The statute gives no private right of action for any violation of its provisions.
    Plaintiff had been working in the building four or five days. His duties required him to work a portion of the time in the elevator shaft which was inclosed and upon the sides of which wires were trained. He had used the elevator, operating it himself up and down the shaft, a dozen or more times. He knew that no automatic gate or door to the shaft had been provided, that the gate was elevated by hand and pulled down by hand, and that to keep the gate from descending by its own weight employes about the place used a plug or stop.
    Plaintiff described how he came to be injured as follows:
    “ Just as I was preparing to leave I heard that the Edison man was there. I asked where he was. He had gone down to see the meter. So the only way I knew to get to where the meter was was to use the elevator, and I went towards the elevator shaft, so I got up there and for three or four days previous they had been carrying down white powder on the elevator. It made the elevator floor very light. At that time I suppose— It was the light coming up the elevator shaft and it made this spot a little lighter than the surrounding floor. I thought it was the floor of the elevator, because anybody working around elevators knows that they do not always stop right at the floor; they are often a foot or a foot and a half above or below. I supposed that the elevator was there and was going up to -it. I had never before been around an elevator shaft where the gates were not automatic; where they would not come down of their own accord if the elevator left the floor. I stepped on what I supposed was the floor of the elevator. It was dark. It was not real dark, but it was not light. Well, that is the last I remember. * * * You have not worked around in elevators before this which were not equipped with automatic gates ?

      “A. No.

      “Q. Was this an automatic gate ?
    “il. No, sir.

      “ Q. Had you ever— About how many times had you gone up and down that elevator shaft in that elevator ?

      “A. Why possibly a dozen times.
    “ Q. In the course of what ?

      “A. In the course of doing the wiring at the shaft.
    “Q. Did you ever approach that elevator with the gate up when the platform was not there ?
    “A. No, sir.

      “Q. Tell the jury what it was that as you approached the shaft that made you think the elevator was there.

      “A. The gate being up; because I had never seen the elevator before that the gates were not down when the elevator went away.

      “Q. What was the condition of lights around that shaft ?

      “A. Why it was quite dark. It was not dark, but it was dusk. There was not much light in there.”
    On cross-examination he testified that when he used the elevator he pulled out the stop or plug and pulled the gate down, never took the elevator away from the floor when the gate was not down, and had never seen the elevator away from the floor when the gate was not down.
    “Q. Then you knew this morning when you went over towards the shaft that the gate was not an automatic gate ?

      “A. Yes.

      “Q. You knew if it was pulled up it would not close?

      “A. Yes.
    “Q. You looked to see as you went over towards the elevator whether the platform was there ?

      “A. Yes.
    “ Q. You took particular pains to see whether the platform was there ?

      “A. I looked to see whether it was even with the floor or a foot below or a foot above. It was dark.
    “ Q. It appeared as though it was there ?
    “A. Yes. * * *
    “<0. There was not light enough to let you see whether or not the elevator was there ? '

      “A. No, sir; not at that time. * * *

      “Q. You remember going towards the elevator?

      “A. Yes.

      “Q. Was the gate up ?

      “A. Yes.
    “(0. You took particular pains to see whether the platform was there ?

      "A. Yes.
    “Q. Before you stepped in ?

      “A. Yes.

      "Q. That you remember ?

      “A. Yes.
    “(0. Was there any artificial light there at that time ?

      “A. There was one lamp somewhere near but it would not work, as I recollect it it had no globe on or had burned out.

      “Q. It was not burning on that occasion ?

      “A. No.
    “Q. If it had been burning you would have been assisted in ascertaining whether the elevator was there ?

      “A. It was not close to the elevator.
    “0. Where was it ?

      “A. In front of the elevator shaft, five or six feet to one side.

      “Q. Was there any other lights there or if it had been burning would it have given you a view of the elevator ?

      “A. No, sir; not as I see. * * *
    “Q. Could any light have been put there that would have given you any assistance in ascertaining whether or not the elevator was there ?

      “A. Yes.

      “Q. There was no such light there ?

      “A. No, sir; there was not.

      “Q. Of course if you had had sufficient light to see that the elevator was not there you would not have stepped in ?

      “A. Decidedly not.”
    Testimony to prove that defendant was owner of the premises consisted of a written lease of the third floor of the building dated January 22,1909, made by defendant to the Colonial Manufacturing Company which was in possession when plaintiff was injured; proof of the payment and receipt of rent accordingly; a letter dated January 4, 1909, written by defendant to the Colonial Manufacturing Company confirming oral arrangements for the lease and containing this sentence:
    “ The White Star Line will provide automatic gates to elevator and paint the elevator with white water paint.”
    The term created by the lease was three years from January 1, 1909. The same relation had existed between the parties thereto prior to January 1, 1909. The lessor agreed to heat the third floor, but electric power, elevator power, and janitor service were to be provided by the lessee. A representative of the lessee testified:
    “This elevator was used by our company and it was 'already installed in the building when we took possession of this floor. Our landlord all of the time that we occupied the premises was the White Star Line. The White Star Line repaired the elevator. The White Star Line paid for the power. Our company never made any repairs to the elevator or the shaft. These were all made by the owner of the building. About the time of the execution of the lease we had some correspondence with the White Star Line relating to the elevator. We had been asking to have the shaft of the elevator painted white and for an automatic gate to be installed. This was by correspondence and also orally.”
    At the close of plaintiff’s case, defendant moved for a directed verdict, and the motion was renewed when the taking of testimony was concluded. Error is assigned upon refusals to direct a verdict as requested. Defendant preferred certain requests to charge, and, after the verdict, moved for a new trial and the motion was denied. Error is assigned upon the rulings. In this court the errors discussed in the brief for appellant are based upon the refusal of the court to direct a verdict in its favor because (1) the want of a proper light at or near the elevator was the proximate cause of the injury; (2) plaintiff was guilty of negligence contributing to his injury; (3) it was not proven that defendant was an owner, agent, or lessee within the meaning of the statute. Error is also assigned upon exceptions to rulings admitting and excluding testimony.
   Ostrander, J.

(after stating the facts). Contentions 1 and 2 may be considered together. An automatic gate at the entrance to an elevator shaft serves the purpose of preventing entrance into the shaft when the elevator is not at the particular floor and of permitting entrance when it is there. It is not designed and used for the single purpose of keeping people not intending to use the elevator from falling down the shaft, but for the safety as well of persons desiring to use the elevator. See Murphy v. Veneer Works, 142 Mich. 677, 680, 681 (106 N. W. 211). It is not conclusive of the question of plaintiff’s negligence that he used care and, as he believed, sufficient care to ascertain that the elevator was where, within his experience, the open gate indicated it to be, although he knew the gate did not operate automatically. Assuming that the statute was enacted for his benefit and that the statute duty is imposed upon defendant, a breach of the statute duty is made out which, concurring with other circumstances, caused the plaintiff’s injury. Whether, under all the circumstances, plaintiff was careless was a question for the jury.

Plaintiff does not claim that defendant owed him any duty in the premises unless the statute duty to provide automatic gates to the elevator was imposed for his benefit. It is important to understand the scope of defendant’s contention. It contends that the remedy for a violation of a statutory obligation is on the part of the public and is penal in its nature. It is said in argument that—

“ In some instances individuals have been given a remedy against a person for the violation of a statutory duty, but this has been where the duty imposed by the statute or ordinance was also a common-law duty.”

And further:

“ It is only in special instances, and the case at bar is not one of them, that persons are permitted to recover damages because of a violation of a duty imposed upon them solely by statute.' The most common illustration of such a principle is found in actions brought by a servant against his master for injuries that resulted from the failure to provide certain safety appliances required by statute. This principle would be applicable in the case at bar if the Colonial Manufacturing Company were the defendant and was sued by one of its employés for an accident such as sustained by Barfoot, but it is not applicable where the defendant is the owner of the premises and not in possession, and the plaintiff and defendant have no contract relations.”

I do not understand by this language that it is claimed that if the statute imposes upon the owner of the building the duty to provide automatic gates for elevators, and if the duty is imposed for the benefit of a class of persons who may have their remedy, if injured, upon the statute, that plaintiff is not one of the class of persons entitled to the remedy. The point that he is in no event one for whose benefit a thing was enacted is not presented in the defendant’s requests to charge, is not adverted to in the charge which was given, and is not debated in the brief for the appellee. Therefore I assume, for the purposes of this opinion, that it is conceded, not disputed, that if the defendant owed a duty to provide automatic gates at the elevator opening, and for its failure there is a private remedy on the statute, plaintiff may have the remedy.

The preliminary question, namely, whether there was testimony tending to prove that defendant was owner of the building, must be answered favorably to plaintiff whether we do or do not consider the letter of January 4, 1909, admissible in evidence. I think the letter was properly admitted, not for the purpose of determining the duty of defendant to plaintiff, or as án admission that the statute duty and obligation rested upon it, but to show defendant’s assertion of dominion over the building. In admitting it over an objection that it was incompetent and immaterial, I think the court committed no error, although the reason stated by the court for its admission was the one “ of showing notice on the part of the defendant regarding this automatic gate.” It is said in argument that the testimony tends no more to prove that defendant was owner than that it was agent of the owner, or a lessee, and that speculation respecting the precise character of defendant’s dominion was, and should not have been, permitted. Defendant was charged as owner of the building, and the testimony admitted tended to prove that it was owner.

Whether the statute duty is imposed upon an owner of premises who does not occupy them but has leased them to others is a question depending for its answer upon the meaning to be given to the statute. The statute of Westminster (1 Stat. p. 213 [13th Edw. I, chap. 50]), gives a remedy by action on the case to all who are aggrieved by the neglect of any duty created by statute. In 1 Comyns’s Digest, Action upon Statute (F) it is laid down that—

“ In every case where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law.”

See Couch v. Steel, 3 El. & B. 402.

This familiar doctrine is amplified by Mr. Justice Cooley in his work on Torts (1st Ed.), pp. 653, 654, in the following language and a copious reference to adjudicated cases:

“Where the statute imposes a new duty, where none existed before, and gives a specific remedy for its violation, the presumption is that this remedy was meant to be exclusive, and the party complaining of a breach is confined to it. It is upon this ground that it has been many times held that when the right to exact tolls has been conferred upon a corporation, and a summary remedy given for their collection, the corporation must find in this summary remedy its sole redress when an attempt is made to evade payment. So if performance of the duty is enjoined under penalty, the, recovery of this penalty is in general the sole remedy, even when it is not made payable to the party injured. But the rule is not without its, exceptions ; for if a plain duty is imposed for the benefit of individuals, and the penalty is obviously inadequate to compel performance, the implication will be strong, if not conclusive, that the penalty was meant to be cumulative to such remedy as the common law gives when a duty owing to an individual is neglected. And if the duty imposed is obviously meant to be a duty to the public, and also to individuals, and the penalty is made payable to the state or to an informer, the right of an individual injured to maintain an action on the case for a breach of the duty owing to him will be unquestionable.
“ There are always questions of difficulty respecting the remedy when a statute imposes a duty as a regulation of police, without in terms pointing out what shall be the rights on the one side and the liabilities on the other, if the duty is neglected. Is the duty imposed on public grounds exclusively, and if not, what persons or class of persons are within its intended protection ? These are the problems which such statutes usually present.”

The general doctrine has been many times approved by this court (Syneszewski v. Schmidt, 153 Mich. 438 [116 N. W. 1107]; Layzell v. Coal Co., 156 Mich. 268 (117 N. W. 179, 120 N. W. 996]; Murphy v. Veneer Works, supra; Kleinfelt v. Coal Co., 156 Mich,. 473 [121 N. W. 118, 132 Am. St. Rep. 532]) and in respect to provisions of former statutes now incorporated in the very act relied upon by the plaintiff. It must be held that section 12 of the act imposes upon certain persons a duty which, but for the statute, would not exist for the benefit, not only of the public, but of a class of persons liable to be injured by its violation.

As has been stated, I assume in this opinion, but do not decide, that plaintiff is one of the class for whose benefit a thing was enacted by the statute. The question- is whether defendant, owner of the building, is the owner referred to in section 12. It is to be regretted that in framing a statute which attempts to impose upon various persons duties of such importance, and which provides so considerable penalties for violations of the duties, more precise language is not employed. The identity of the person or persons liable to be fined and imprisoned on account of the omission to do a particular thing ought not to be left in doubt by the law imposing the penalty. Comparison of the various provisions of the law, one with another, affords us little aid. There is, however, this distinct provision found in section 23, namely, that factory inspectors shall have power to order all improvements “ herein specified” such as the repairing of elevators, the installment of wash and dressing rooms and water-closets, and necessary orders concerning the same shall be served on the owner of the building or premises. The section concludes with the proviso:

That whenever the owner of such buildings or premises as mentioned in this act be a nonresident of this State said order may be made on his resident agent or the tenant of such buildings or premises. If the tenant be required to make such improvements he may deduct the cost thereof from the amount of rent for use of such buildings or premises.”

No power is given to the factory inspector to order the construction of an elevator. Section 12 confers upon him power to inspect cables, gearing, or other apparatus of elevators in manufacturing establishments, workshops, hotels, and stores at least once in each year and to require that the same be left in a safe condition, to condemn an unsafe elevator and stop its operation. The extent of the power thus conferred need not be considered. There is found in section 12, when read with section 23, support for the conclusion that the duties imposed by section 12 rest upon the owner of the building. Support for the same conclusion is found in the fact that an elevator as a structure is usually, if not always, an integral part of a building, like a passageway and a staircase.. An elevator cannot be installed in a completed building without a considerable disturbance of the structure of the building itself. In a new building it is a part of the plan of the building itself — a permanent thing. I construe the statute as imposing the duty upon the owner of the building, and regard the words “manufacturing establishment ” as meaning, in the particular section we are considering, premises in or on which a manufacturing business is conducted. With this construction, the words agent” and “lessee ” have a reasonable meaning.

There are statutes in other States similar in character but distinctly different in terms. In Pennsylvania two decisions (Schott v. Harvey, 105 Pa. 222 [51 Am. Rep. 201], and Keely v. O’Conner, 106 Pa. 321) involved the .meaning of the act of June 11, 1879 (P. L. 128), entitled: “An act to provide for the better security of life and limb in cases of fire in hotels and other buildings.” It provided that every storehouse, factory, manufactory, or workshop of any kind in which employés or operatives are usually employed at work in the third or any higher story should be provided with a permanent, safe, external means of escape therefrom in case of fire, and it was made the duty of the owners, superintendents, or managers thereof to provide such fire escape. In the first case, one of first impression, there was a suit brought upon the statute against the owner of the land and building who was not in possession but had leased the premises to the factory owner. It was held:

“A number of authorities were cited showing the construction which has been placed upon the word ‘ owner ’ both by the legislature and the courts. But the meaning of the word depends in a great measure upon the subject-matter to which it is applied, and, as it is used in each of the instances cited in an entirely different connection, they throw scarcely a glimmering of- light upon the question. The term ‘owner ’ is undoubtedly broad enough to cover either view of the case. A tenant for years, a tenant for life, and a remainderman in fee is each an owner. So there may be a legal and an equitable estate; the trustee and the cestui que trust are both owners. When, therefore, the legislature used" a term of such varied meaning we must presume they intended such an owner as is in the possession and occupancy of the premises, who has the immediate dominion and control over it, and the manner of whose use of it makes a fire escape necessary. Had the owner in fee been intended, it was easy to have said so. This view meets all the requirements of the act. It places the responsibility where it properly belongs, upon the person in the possession and occupancy of the property as owner for the time being, and the nature of whose business renders the erection of fire escapes necessary to protect the lives of his employés.”

In the second case the same rule was applied. It is said in the brief that, following these decisions, the legislature of Pennsylvania amended the statute of 1879 so as to impose the duty in question upon the “owner or owners in fee or for lifethus creating a certain responsibility.

In Lee v. Smith, 42 Ohio, 458 (51 Am. Rep. 839), the provision of the statute in question imposed upon “any owner or agent for owner of any factory,, workshop, tenement house, * * * ” the duty to provide a fire escape. The case was heard on demurrer; the court concluding that the words “ owner of any factory ” did not mean “ owner of the building” when the owner of the building and the owner of the business carried on therein were not the same person. These cases are relied upon by defendant. _In Illinois an act relative to fire escapes for buildings imposed a duty to provide for them upon the owner or owners, trustees, lessees, or occupant of any building not so provided, and required that all buildings of a certain height thereafter erected for certain purposes should be provided with fire escapes before their completion. The court construed the act as imposing the duty upon the owner of the building whether in or out of possession. Landgraf v. Kuh, 188 Ill. 484 (59 N. E. 501). This ruling was affirmed in Arms v. Ayer, 192 Ill. 601 (61 N. E. 851, 58 L. R. A. 277, 85 Am. St. Rep. 357). A similar statute in Missouri imposed a duty to provide fire escapes upon “the owner, proprietor, lessee, or keeper of any hotel,” etc., and it was held that both the owner and lessee were liable for injuries to a lodger in a leased hotel due to a failure to construct the escapes; the initial duty being on the owner. Yall v. Snow, 201 Mo. 511 (100 S. W. 1, 10 L. R. A. [N. S.] 177, 119 Am. St. Rep. 781, 9 Am. & Eng. Ann. Cas. 1161).

In Minnesota a statute provides that all hoistways, hatchways, elevator wells, and wheel holes in factories, etc., shall be securely fenced, inclosed, etc. The duty was imposed in terms upon no one. Suit was brought by an employé of the lessee of a building against the owner of the building for damages for injuries suffered because of a violation of the statute. It was held that the duty rested; in the first instance, upon the owner of the building; some consideration apparently being given to the fact that the owner turned the building over to the lessee with the unguarded opening. Tvedt v. Wheeler, 70 Minn. 161 (72 N. W. 1062). See, also, McLaughlin v. Armfield, 58 Hun (N. Y.), 376 (12 N. Y. Supp. 164); Welker v. Brewing Ass’n, 103 Minn. 189 (114 N. W. 745). Some of these decisions, and others, are authority for the proposition that, if the statute had named no one to perform the duty and had in general terms required the elevators to have automatic gates, the initial duty in the premises would rest upon the owner of the building. The use in our statute of the words “ owner ” or “lessee ” may be considered as the legislative designation of persons upon whom the duty would in any event devolve; upon the owner first, upon both or either at the election of the person injured. The court was not in error in ruling that upon the owner of the building was imposed the duty to provide automatic gates for the elevator.

Counsel for plaintiff stated in the presence of the jury, in making his opening statement, that he would prove that after plaintiff was injured defendant painted the elevator shaft and provided an automatic gate. The statement was excepted to, and counsel for plaintiff stated that it would not be proper as bearing upon the question of defendant’s negligence, but would be offered to prove where the legal duty rested. The testimony was not admissible. The defendant had promised to paint the elevator shaft and provide an automatic gate, but had delayed. The testimony was not received when it was offered, and, in view of the conclusions above announced, defendant was not prejudiced by the statement or by the offer of corresponding testimony.

It is complained that plaintiff showed his injured arm to the jury. Considerable discretion is lodged with the trial judge in regard to such matter, and I cannot think that it was not properly exercised in this case.

The complaint that defendant was not permitted to show that there was no light at the elevator shaft, and the general condition with respect to light, and the absence of light, is without foundation. The particular question upon which the exception is based is, “ If you had had a good, bright light, you would have seen it (the elevator) was not there ? ” The question called for no fact, but at best for an expression of belief.

No prejudicial error is made out, and the judgment is therefore affirmed.

Moore, C. J., and Steere, McAlvay, Brooke, Blair, and Stone, JJ., concurred. Bird, J., did not sit.


text:
    PEOPLE v. ANGLE.
    Criminal Law — Trial—Appeal and Error.
    Respondent, charged with a-violation of'Act No. 237, Pub. Acts 1899, did not have a proper trial, and his conviction could not be reviewed on error upon a verdict of guilty, directed at the close of the evidence of the people, as requested by respondent and the prosecuting attorney, for the purpose of having this court pass on certain questions; the action of the court constituted a mistrial.
    Error to Jackson; Parkinson, J.
    Submitted January 18, 1912.
    (Docket No. 153.)
    Decided May 31, 1912.
    Seth M. Angle was convicted of publishing an advertisement prohibited by Act No. 237,. Pub. Acts 1899,,
    Remanded for trial.

      Nathan E. Bailey, Prosecuting Attorney, and Mi-Grove Hatch, Assistant Prosecuting Attorney, for the people.

      John E, Henigan, for appellant.
   McAlvay, J.

This case is brought to this court for review by writ of error to Jackson circuit court, upon exceptions before sentence, whereby respondent seeks to set aside a conviction against him for violation of a statute of this State entitled “An act to provide for the examination, regulation, licensing and registration of physicians and surgeons, and for the punishment of offenders against this act, and to repeal acts and parts of acts in conflict therewith.” (Pub. Acts 1899, Act No. 237), and amendments thereto.

Upon the trial, it was admitted that respondent was a regular practicing physician, and licensed to practice medicine. It was not denied that he caused to be published the advertisement set up in the information, and claimed •to be within the prohibition of the statute, and within its definition of “unprofessional and dishonest conduct;” nor was the evidence of members of the medical profession disputed that the diseases mentioned in the advertisement were the diseases mentioned in the statute.

No witnesses were sworn or evidence introduced on the part of respondent. At the close of the people’s case, respondent moved for a directed verdict of not guilty, on the ground of the unconstitutionality of the statute upon which the prosecution was brought, stating the reasons in detail. This motion was denied. Respondent thereupon, by his counsel, for the avowed purpose of having the questions passed upon by this court, asked the court to direct a verdict of guilty against him. The prosecutor then made a like request, for the same purpose. The court realizing, as the record shows, that such was not the usual and regular proceeding in a criminal case, “under the circumstances, and by the concurrent judgment of both counsel,” for the reasons they had given, accommodated the respondent, .and instructed the jury to return a verdict of guilty against him.

Following these proceedings, the bill of exceptions reads:

“It was understood, upon a conference between counsel for the parties and this court, that in directing a verdict the respondent should not waive any right to have the case reviewed upon all exceptions, except the court’s directing the verdict, instead of having the jury retire.”

In accordance with this understanding, respondent has assigned errors upon all his exceptions taken during the trial, including his exception to the refusal of the court to direct a verdict of not guilty. Both parties have filed briefs in which these errors assigned by respondent are discussed.

This record presents an unusual state of facts. No conviction has been had in accordance with the established rules of law and practice in the trials of criminal cases, whether felonies or misdemeanors. Counsel and the court did not understand that the motion made on behalf of respondent to instruct a verdict of guilty against him was bona fide intended to be taken as a plea of guilty. Such an inference would contradict the plain meaning of the record made at the time. Otherwise an affirmance of the conviction would necessarily have followed, doubtless to the surprise of respondent. It is unnecessary to say that this court does not approve of the practice here undertaken by counsel and court, in order to be able to. get questions before us for determination. The record clearly shows a mistrial. In contemplation of law, there has been no trial. 21 Enc. Pl. & Prac. p. 1007, and notes.

The cause is remanded to the circuit court, where a trial will be had.

Moore, C. J., and Steers, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    FRAAM v. COVELL.
    Waters and Watercourses — Surface Waters — Equity — Drains.
    By a decree enjoining defendant from collecting water from low places on his property and discharging it upon the highway and through a culvert under an electric railway therein, casting upon complainant’s farm in greater quantity than would naturally flow there, the water so collected, the trial court properly determined the issue as to defendant’s right to cast surface waters upon and to partly submerge defendant’s property.

    Appeal from Kent; Sessions, J., presiding.
    Submitted January 18, 1912.
    (Docket No. 117.)
    Decided May 31, 1912.
    Rehearing denied October 7, 1912.
    Bill by George Fraam against Chester F. Covell and others for an injunction and other relief. From a decree for complainant, defendants appeal.
    Affirmed.

      Bmedley, Linsey & Lillie, for complainant.

      Colin P. Campbell (Kleinhans & Knappen, of counsel), for defendants.

       Liability for injury from water precipitated upon adjoining property, see note in 36 L. R. A. (N. S.) 1172.

   Ostrander, J.

Between the land of complainant and that of defendant Covell is a highway, in which is laid and operated an electric railroad. The highway and the roadbed of the railway are both constructed and maintained at a height considerably above the surrounding land. The bill of complaint charges that defendant Covell collected surface water upon his land and, by connivance with the highway commissioner of the defendant township, carried it to and upon the premises of complainant by means of an artificial drain, constructed through and under the roadbed of the highway; said roadbed constituting. an artificial barrier to the passage of the water.

The answer made by defendants is, in substance: That the surplus water, the land being in a state of nature, would find its way from defendant’s to complainant’s land; that such natural flow of water was obstructed by artificial barriers; that the conduit constructed under one of these artificial barriers, namely, the highway, operates only to permit the water to flow as it naturally would flow; that the conduit was constructed in the highway to free it from a body of water for which there was no other outlet or escape and to save the roadbed from destruction; that the action of the highway commissioner was the performance of official duty, not contrived or brought about by defendant. It is said, also, that defendant Covell did not collect the water which was discharged through the conduit.

There is little dispute concerning the facts. The cause was submitted on the testimony produced by complainant. It appears that all of the land in question, and more, was once owned by defendant Coveil, through whom complainant takes his title. Originally, portions of Covell’s land, being lower than the surrounding land, received and held, until it disappeared by evaporation and percolation, the surplus surface water of a considerable watershed. There were pockets or depressions (cat-holes) in which the water stood after rains and after the melting of the snow. There was no watercourse on the land; but, that portion of which complainant’s land was a part being lowest, most of the water found its way there. Through this natural basin the highway was constructed, separating lowland on one side of the road from that on the other and making a barrier to the flow of the water to the lowest point on the land. The railroad bed constructed upon the side of the highway, and immediately in front of complainant’s premises, was another barrier to the movement of surface water. When the railroad was built, a ditch or gutter was made on each side thereof and from one gutter to the other, under the roadbed, a 12-inch tile was laid. When the highway was laid out in 1860, a log culvert was put in under the part designed for travel. Later, the owner of the land, the father of defendant Coveil, laid a 4-inch tile drain from a pond or sag hole on the south side of the road to another sag hole on the north side thereof, where complainant’s land is. Still later, when the highway was graded and the roadbed elevated, a plank culvert was constructed through and under it. The culvert under the road disappeared. Such water as flowed under the highway was conveyed by the 4-inch tile. Complainant’s immediate grantor, complaining about the water cast upon her land by the tile drain, closed it, and defendant Coveil filed his bill of complaint against her and others to enjoin the obstruction of the drain. That cause reached this court, where a decree dismissing the bill of complaint was affirmed. Covell v. Bright, 157 Mich. 419, 423 (122 N. W. 101). It is stated in the opinion that the record did not present a case of interference with the flowage of a natural water course or with the natural flowage of surface waters; that what was involved was a prescriptive right to discharge water through an artificial drain. (Id. p. 423). It was held that the testimony did not sustain the conclusion that the grantee of Covell, who held by warranty deed, took the land burdened with the prescriptive right. It was after this decision went down that the highway commissioner constructed a new culvert under and through the roadbed of the highway, through which and through the culvert under the railroad roadbed a considerable amount of water which was collected on the south side of the highway was immediately discharged upon the land of complainant.

The trial court found, and the testimony fully sustains the finding, that the defendant Covell had so connected the three swales, or swamps, on his land, by means of ditches and tile drains, that nearly all of the water was conducted to a point on his land next to the highway, and that by this means the water, if there had been no artificial barrier, would have been, and by means of the new 12-inch tile culvert it was, discharged upon complainant’s land in greater volume and in shorter time than it would have gone there if the land had remained in its natural state; that formerly, and for more than 20 years, such of it as crossed the highway, by an artificial way, passed through the 4-inch tile drain; that the right to so conduct the water had been denied by the courts. The logical conclusion from the facts found is, and was by the court found to be, that defendant Covell may not, of right, discharge this water through the new 12-inch tile drain; the effect being to drain his own land and, at times, to submerge and injure the land and premises of complainant. The right of the township authorities to conduct the water along the highway is not denied, and is not involved. The right of the township to turn it upon the land of complainant is denied.

The decree of the court below was right and is affirmed, with costs to the appellee.

Moore, C. J., and Steere, McAlvay, Brooke, Blair, and Stone, JJ., concurred. Bird, J., did not sit.


author: Brooke, J.

text:
    HOCKENBERRY v. DONOVAN.
    1. Husband and Wife — Fraud — Marriage Settlement — Release of Wife’s Interest.
    Upon a consideration of conflicting testimony, complainant’s claim that she was induced by fraud to enter into an agreement with her intended husband, releasing dower and her statutory rights as his wife, in consideration of marriage and of a similar release on his part, is held not proved.
    2. Same — Construction of Contract — Dower.
    Under provisions waiving all right of participation in her prospective husband’s estate as his wife or widow, barring dower and homestead rights, and waiving all rights of distribution in personal property thereof and all statutory interest, complainant lost any rights she may have had under Act No. 285, Pub. Acts 1909.

    8. Same — Statutes—Barring Dower — Jointure.
    The method of barring dower by jointure as provided by §§ 8931, 8932, 3 Comp. Laws, does not exclude or prohibit the method of barring dower by antenuptial contract, adopted by the parties.
    4. Same — Public Policy.
    Nor was the contract against public policy._

      5. Same — Consideration for Contract.
    Besides tlie consideration of marriage, wljdeh is sufficient to support such a settlement, the mutual agreement of each to waive all interest in the property of the other constituted sufficient consideration.
    Appeal from Eaton; Smith, J.
    Submitted April 2, 1912.
    (Docket No. 6.)
    Decided May 31, 1912.
    Bill by Emma C. Hockenberry against Robert Donovan, administrator of the estate of Clinton Hockenberry, deceased, and others, for the cancellation of an antenuptial contract of settlement, for alleged fraud. From a decree for defendants, complainant appeals.
    Affirmed.

      Adsit & Danhof, for complainant.

      Lyman H. McCall, Horace 8. Maynard, and Frank A. Dean, for defendants.
    The complainant in this case is the widow of Clinton Hockenberry, and the defendants, other than Robert Donovan, who is the administrator of his estate, are a daughter by a former wife and four grandchildren, children of a deceased son of his first wife. Three of the grandchildren, William J., Agnes, and Ruth, are infants from 9 to 14 years of age.
    On December 20, 1902, complainant, then 45 years of age, married Clinton Hockenberry. She had been previously married, and was divorced from her first husband in 1887. On the day of her marriage, and in contemplation thereof, she entered into two contracts with her prospective husband. The contracts follow:
    “This indenture, made this 20th day of December, A. D. 1902, by and between Clinton Hockenberry of the city of Charlotte, county of Eaton, and State of Michigan, party of the first part, and Emma C. Woolley of Grand Rapids, county of Kent, and State of Michigan, party of the second part, witnesseth:
    “That whereas, a marriage has been agreed upon and is intended to be duly had and solemnized between. Clinton Hockenberry and the said Emma C. Woolley; and whereas the said .Clinton Hockenberry is possessed in fee simple of certain lands, messuages, tenements, hereditaments, hereinafter mentioned; and whereas it is the intention of the said party of the second part by this indenture to bar her dower interest as the wife or widow of said first party in and to all such real estate, land, messuages, tenements, and hereditaments and to empower and authorize the said first party at any time during the existence of the coverture between the parties, or at his death, his heirs, executors or administrators to sell, dispose of, assign or convey any and all of said land, tenements, messuages, and hereditaments aforesaid, and to make and execute, a good and sufficient deed therefor independent of and without the consent or privity of the said party of the second part; and also to bar the dower interest of the said second party as the wife or widow of the said party of the first part in and to all property that he may become seised of and not owned by him at the time of their marriage, and to authorize the conveyance thereof in the same manner as real estate now owned and possessed by him; and whereas, it is the intention of said second party to waive as well all her homestead rights or interests in and to any of the said property now owned by said first party, or that may come into his possession and he become seised of during the period of coverture or as the widow of said first party; and whereas, it is also the intention of said second party to waive all her rights, title and interest either as the wife of said first party or as his widow in and to any and all personal property that he may own at the time of their said marriage or at any time during the coverture or at the time of his death:
    “Now, therefore, this indenture witnesseth: That the said party of the second part for and in consideration of the sum of fifty dollars ($50) to her in hand paid the receipt whereof is hereby acknowledged, and a further consideration of the solemnization of marriage between said first party hereto, and said second party and the further consideration of the conveyance by deed by the said first party to said second party of the following described real estate situate in the city of Charlotte, county of Eaton, State of Michigan, described as follows, to wit: The east one-half (■£) of lots numbers one (1) and four (4) on block nine (9). Said second party does hereby agree to waive and surrender all of her right, title and interest which shall or may be hereafter vested in her because of said marriage and as the wife or widow of said first party, and consisting of both dower and homestead rights and interest in and to all lands now owned by said first party, and in and to all lands which said first party may hereafter become invested.
    “ The said party of the second part does hereby and for the consideration hereinbefore expressed waive and agree to waive all her rights of dower which shall or may vest in her by reason of her marriage with the said first party or as his wife or widow in and to all of the lands, tenements and hereditaments of the said party of the first part now has or shall hereafter and during coverture become seised either for life or in fee. And the said second party does hereby and for the consideration hereinbefore expressed waive all homestead rights which shall or may vest in her by virtue of her said marriage with said party in and to the real estate which said first party now has or may hereafter become invested, or which may hereafter be conveyed to and vest in said first party during their coverture as aforesaid as the wife of said first party. And the said second party for the consideration heretofore expressed does agree to waive all her rights, title and interest which shall or may be vested in her by virtue of said marriage with said first party as his said wife or widow, and in and to all personal property which is now owned by him or of which he shall hereafter become possessed, and the said second party does hereby promise and agree that she will at the request of said first party and at any and all times as he may desire execute jointly with him any and all deeds of conveyance of any of the real estate now owned or hereafter owned by him, or which he may hereafter become seised, so that such deeds of conveyance when executed and recorded shall show a perfect record title.
    “It being, however, expressly understood and agreed that the said first party his heirs, executors and administrators may convey any and all of said real estate which he now or shall hereafter be seised of without the second party joining with him or them in such deed, and that such deed of conveyance without the signature of said second party shall pass a clear and perfect title of said land so conveyed and shall bar her dower and homestead rights to the same extent as though said second party had joined with the said first party in such deed or deeds of conveyance. It being the intention of the said second party by this instrument to bar any and all rights of dower or of homestead rights in and to all of the estate of whatsoever nature, lands, tenements, hereditaments and messuages which the said first party now is or shall hereafter become seised of, also to convey and waive all her rights and title in and to any and all personal property now in the possession of said first party or which may be in his possession at any time during his life or at his death, both as the wife or widow of said first party. And the said second party does hereby further agree that in case she shall survive the said first party she will accept in lieu of her dower or homestead interests in and to all of the lands and tenements, messuages, and hereditaments of said first party, and also any and all property of which said first party shall or may become seised between the time of said marriage and his said death, and also in lieu of all personal property of which he may now be possessed or shall be at the time of his death, any device or bequest which said first party may see fit to make for her, said second party, by will or otherwise, if he so elects.
    “In consideration of the premises and undertakings made by the said second party, the said first party does hereby promise and agree by and with said second party that he will without unreasonable delay enter into a contract of marriage with her the said second party herein, and will thereby subject himself and all the liabilities created by the solemnization of marriage, subject to the terms and conditions of this contract.
    “ In witness whereof, the parties hereto have set their hands and seals the day and year first above written.
    “Clinton Hockenberry. [L. S.]
    “Emma 0. Woolley. [L. S.]
    “ Witnesses:
    “Guy M. Rowley.
    “L. H. McCall.”
    “Charlotte, Mich.,.Dec. 20, 1902.
    " In contemplation of marriage, for the purpose of adjusting property between Clinton Hockenberry and Emma C. Woolley, it is agreed mutually between the parties hereto that the said Woolley is to have no interest in any of the property of the said Hockenberry, whether personal or real estate, statutory or dower, except whatever provision the said Hockenberry may voluntarily and of his own free will and accord make for her during the time of their natural lives and it is agreed that the said Hockenberry shall have no interest whatever in any of the property of the said Woolley and any improvements placed upon said property by said Hockenberry or money or other property given to her or other provisions made for her by said Hockenberry, during life shall be her sole property and at death shall descend to her heirs without molestation from the said Hockberry, his heirs or other person whatsoever.
    “ Emma C. Woolley.
    “Clinton Hockenberry.
    “[In duplicate.]”
    Complainant and Clinton Hockenberry continued to live together as man and wife until November 14, 1909, when Hockenberry met with a violent death while hunting.
    The only will found was one dated June 9, 1894. This will was made during the lifetime of his first wife, who died October 12,1896. Of course, no provision was made in that will for this complainant. The will was admitted to probate and an administrator with the will annexed was duly appointed. The administrator filed his final account, produced the antenuptial agreements, and petitioned the probate court for an order of distribution of the estate to Hockenberry’s heirs, exclusive of complainant, Complainant thereupon filed her bill herein, averring that the agreements were obtained by duress and fraud, and praying that they be set aside and held for naught. To this bill, defendants answered by way of cross-bill, praying that said contracts be construed to be valid and of full force and effect. From a decree dismissing complainant’s bill of complaint and granting to defendants the relief prayed, complainant appeals.

       Waiver of right to widow’s allowance by antenuptial agreement, see note in 25 L. R. A. (N. S.) 751.

   Brooke, J.

(after stating the facts). It is the claim of complainant that she was induced to execute the first contract (drawn by L. H. McCall) by fraud, and that at the time she executed it she was so agitated and confused that she did not understand or appreciate its legal import. As to what occurred at and immediately before the time of its execution, we have the evidence of her sister, upon the one hand, and, upon the other, the evidence of Mr. McCall, who drew the paper, and Mr. G. M. Rowley, a justice of the peace and business man of Charlotte. The interest and bias of Mrs. Fowler is obvious. The record shows a relationship of an extremely intimate character between the two sisters; and that the complainant (herself childless) had stated thatishe desired Mrs. Fowler to inherit her property.

Mrs. Fowler, who had kept a millinery store in Charlotte for many years, testified that on the day in question Hockenberry called upon her sister at her place of business, and that she was called upstairs, where they were; that Hockenberry said to her,

“Mrs. Fowler, Emma and I have made up our minds to get married tonight. I have a little business with Emma down at Mr. McCall’s office, and I want you to go with her. You see my children don’t want me to get married, and I have had to have a paper drawn up for her to sign. It don’t make a d — n bit of difference to her whether she signs it or not (pardon me, Mrs. Fowler). I will take good care of her while she is my wife, and will amply provide for her in case of my death; but it will satisfy the children, and must be signed before we are married.”

The witness further testified: That she accompanied her sister to the office of L. H. McCall, where the contract was read and executed; that complainant was much agitated, and paid little attention to the paper; that when the reading was commenced complainant said:

“There is no use of your reading that to me. I don’t care anything about it. I have a good understanding with Mr. Hockenberry, and I trust him fully.”

That Mr. Hockenberry and herself were trying to calm the agitation of complainant, when Mr. Hockenberry again assured complainant that it would make no difference to her whether she signed or not, as he would provide for her in case he should die first, to which complainant replied, “ I can trust you, papa.”

Upon cross-examination, this witness testified:

“Q. Did Mr. McCall, at that time, state to you and your sister that your sister, by the terms of that contract, waived all rights in the property of Mr. Hockenberry ?
“A. I think so.
"Q. Did you understand that when he stated it to you ?
"A. I might — yes; I might have understood it, and yet I paid so little attention.”

The hour of this interview is fixed by both this witness and complainant at about 4 o’clock p. m. Standing against this testimony, we have the evidence of L. H. McCall and G. M. Rowley. Mr. McCall is an attorney of experience and good repute. Both testify that the contract was read over to complainant and explained to her, and in particular it was explained to her that if she signed it she would waive all rights in Mr. Hockenberry’s property, real and personal. They deny that upon that occasion Mr. Hockenberry told complainant it would make no difference to her if she signed the paper, as he would provide for her in case he went first. Mr. McCall testifies that Mr. Hockenberry said:

“Well, if you don’t want to sign the contract, the marriage will be off with.”

Both Mr. McCall and Rowley testify that the deed mentioned in the contract was executed and delivered to complainant at this interview. Both these witnesses are of good repute, and neither has the slightest apparent interest in the subject-matter of the case.

That deed was recorded at 9:45 a. m. on the morning of December 20th. It is apparent, therefore, if these witnesses are not mistaken as to the time of delivery, Mrs. Fowler and complainant are mistaken as to the hour at which the contract was signed. Apparently after the first contract was executed, complainant and Hockenberry went to the office of Mr. J. M. C. Smith, where the second contract was drawn and executed. It is worthy of note that there is no averment of fraud, coercion, or lack of comprehension in reference to this contract. Mr. Smith is a lawyer of ripe experience, at present representing his district in Congress. He testifies that he prepared the agreement at the request of both of the parties; that they executed it in his presence; and that he noticed nothing unusual in the appearance of the complainant at that time. Much testimony was introduced by the defense tending to show that complainant had frequently asserted. that she married Mr. Hockenberry, not for his money, but for companionship. A rather noteworthy fact in connection with the hearing in this case is that neither complainant nor her sister were examined in open court. Their depositions, both in chief and upon rebuttal, were taken before a notary public and read at the hearing.

Considering the age and experience of the complainant, the relative situation of the parties, and in the light of the testimony in this record, we have no hesitation in agreeing with the learned circuit judge that the complainant—

“Was not misled as to the contents thereof; that it was explained to Mrs. Woolley by Mr. McCall that if she signed the contract she would waive all rights in the property of Mr. Hockenberry; that she understood that the object of the making of the contract was to bar her participation in the estate of Mr. Hockenberry, if they were married, and she should survive him.”

In the second or “ Smith ” contract, two considerations appear: The covenant of marriage and the mutual agreement of each to waive all interest in the estate of the other. The reason for this contract is apparent, when consideration is given to the fact that complainant herself was at the time possessed of some real estate, aside from that conveyed to her on that day by Hockenberry, and, in case of her death before that of her husband, she desired it to descend to her sister, Mrs. Fowler.

We have no doubt that complainant was acquainted in a general way with Hockenberry’s financial reputation, which was that of a prosperous farmer in the community, and that she deliberately entered into the contract, hoping, perhaps, to be able to induce her prospective husband to make further provision for her by gift inter vivos or by will; and it may be that his untimely end alone prevented the realization of one or the other. In any event, it is, we think, clear that, confronted with the alternative of signing the contract or foregoing the marriage, she chose the former.

It should be remembered that complainant lacked neither years nor experience She had reached that age when sentimental considerations in new marital undertakings are supposed to have little weight. It is difficult to believe that such a woman could be readily coerced or deceived.

But it is urged in her hehalf that, even if the contracts are held to be valid, her dower and homestead rights only are cut off; and that under Act No. 286 of the Public Acts of 1909 she is still the owner in fee of an undivided one-third of the lands of which Clinton Hockenberry died seised. It would seem that a simple reading of the first contract would be a sufficient answer to this claim. In it she repeatedly bars herself from all participation in the estate of Hockenberry as his wife or widow, and all interest which shall or may be vested in her by virtue of her marriage. It can hardly be contended' that the statute in question confers any rights upon widows, except by virtue of marriage. But the second contract is absolutely conclusive upon this point; for in it complainant releases all interest in the property of Hockenberry, “ whether personal or real estate, statutory or dower.” The interest now claimed for her is entirely statutory, which, by the express terms of the instrument, she has waived. It is unnecessary to consider or discuss the point raised by defendants that the statute relied upon can have no bearing, because passed long after the contract in question was entered into.

Complainant contends that the contracts do not constitute a legal jointure or pecuniary provision under 3 Comp. Laws, §§ 8931, 8932, and 8933. This may or may not be true; and it is immaterial whether it be true or not. The fact that the law provides by statute a method of barring dower by jointure does not deprive the intended wife of the power to bar her dower by any other valid form of antenuptial contract. Barth v. Lines, 118 Ill. 374 (7 N. E. 679, 59 Am. Rep. 374); Stilley v. Folger, 14 Ohio, 610; Naill v. Maurer, 25 Md. 532; Logan v. Phillips, 18 Mo. 22; Desnoyer v. Jordan, 27 Minn. 296 (7 N. W. 140); 14 Cyc. p. 940.

Where the parties entering into an antenuptial contract are of mature years and have full understanding of the meaning of the instrument, the agreement, if based on a sufficient consideration, and in the absence of fraud, is valid and enforceable, and is not against public policy. Marriage alone has been held a sufficient consideration to support a marriage settlement. Dunlop v. Lamb, 182 Ill. 319 (55 N. E. 354).

In this case, however, there is another consideration. There is a mutual agreement on the part of each to waive all interest in the property of the other. This constitutes a good consideration. Yarde v. Yarde, 187 Ill. 636 (58 N. E 600). See, also, 1 Bishop on the Law of Married Women, §§ 420, 423, and 427; 21 Cyc. p. 1248; 19 Am. & Eng. Enc. Law (2d Ed.), p. 1233; Schouler’s Domestic Relations (5th Ed.), §§ 171,173; 2 Story’s Equity Jurisprudence (13th Ed.), §§ 1367, 1368, 1370.

After a review of the authorities and a full consideration of the facts, we are convinced that the decree of the court below, dismissing complainant’s bill and finding that the contracts in question were valid and binding upon complainant, is a proper one.

The decree is affirmed, with costs of both courts.

Moore, C. J., and Steers, McAlvay, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Stone, J.

text:
    HARRIS v. CRAWLEY.
    1. Evidence — Theaters and Shows — Merry-go Round — Trial-Personal Injury.
    In the trial of a personal injury case, in which plaintiff claimed that defendant, the operator of a merry-go-round, started the machine before she had an opportunity to seat herself securely, after plaintiff’s counsel had inquired whether witness had noticed any guards, no error was committed by the trial court in permitting defendant to state, in answer to a question of his attorney, that he had never seen a machine with a railing about the outside to fence in children riding thereon.
    2. Negligence — Infant—Contributory Negligence.
    The degree of care required of an infant is in proportion to its capacity and maturity, and is to be determined in every case according to the peculiar circumstances involved.
    8. Same — Minors.
    The court did not prejudice plaintiff by instructing the jury that plaintiff was chargeable with the care that an ordinarily prudent person would have employed under the same circumstances, taking into consideration plaintiff’s age, intelligence, and experience.
    Error to Eaton; Sessions, J., presiding.
    Submitted April 10, 1912.
    (Docket No. 99.)
    Decided May 31, 1912.
    Case by Bernice Harris, by her next friend, against Peter Crawley for personal injuries. Judgment for defendant. Plaintiff brings error.
    Affirmed;

      G. B. Blaster and A. G. Fleury {Elmer N. Peters, of counsel), for appellant.
   Stone, J.

In this case the plaintiff seeks to recover damages from the defendant for injuries sustained by her in a fall from a “ merry-go-round ” owned and operated by the defendant at the Pair Grounds in Eaton county, on September 24, 1908. The case has been here before (161 Mich. 383 [126 N. W. 421]), when a_ judgment for the plaintiff was reversed and a new trial granted. It has been again tried, resulting in a verdict and judgment for the defendant, and the plaintiff-appellant seeks to reverse the judgment for alleged errors in the admission of evidence, and in the charge of the trial court.

At the time of her injury, the plaintiff was 13 years of age. The negligence claimed by the plaintiff was that the defendant started the machine, or “merry-go-round,” before she had a reasonable opportunity to place herself in a position of safety and security upon the machine; and that the defendant knew that she was in an unsafe and dangerous position, and had not been able to place herself in a secure position, and, knowing that, he not only started the machine, but continued it in operation and did not assist her in any way to secure a safe position; and that while said machine was in operation she fell and received severe injuries without any fault or negligence on her part. This was denied by the defendant, who offered testimony tending to show that the plaintiff selected and took her position upon one of the “horses,”or seats, before the machine started, and that he requested her to change her position and sit with her feet inside, instead of outside, the seat, but that she said she always rode that way. And it was further claimed by the defendant that the plaintiff jumped off the machine just after it had started. There were many witnesses examined who were present at the time of the injury, and there is much conflict in the testimony.

It was undisputed that the plaintiff had ridden upon like machines before; that the defendant was operating the machine for profit to himself; and that he invited the public generally and persons of the age of the plaintiff to ride upon the machine, they paying a sum of money for the privilege. Upon the trial of the case, the defendant, upon his direct examination, was permitted to answer the following question against the objection of the plaintiff:

“Q. Did you ever in the course of your life see a J machine that had a railing around the outside to fence' the children in ?”

To which the plaintiff excepted, and the question was answered in the negative.

The trial court submitted the case to the jury under a very full and explicit charge, in which the following language occurred:

“ If you do not find from the evidence that the defendant was negligent, that will end the case, and it will he your duty to render a verdict of no cause of action. If you find for the plaintiff upon that question, it will then be your duty to determine whether or not the negligence of the defendant was proximately and directly the cause of the injury sustained by the plaintiff. If you find that it was not, it will be your duty to render a verdict in favor of the defendant; if you find that it was, it will then be your duty to consider and to determine the question whether or not the plaintiff herself was guilty of any negligence which contributed in a;ny degree to her injury. (If you find that she was guilty of any negligence which contributed in any degree to her injury, she cannot recover, and your verdict will be in favor of the defendant.) And the test in that regard is this: Did the plaintiff upon that occasion act in the manner that an ordinarily prudent and careful person of her age, intelligence, and experience would have acted under the same or like circumstances. In this connection I will give you certain other requests that have been preferred by counsel for defendant : ‘ If you should find that the defendant has been guilty of the negligence charged in plaintiff’s declaration, then your next inquiry should be: Has the plaintiff herself been guilty of negligence, because if she has, and that negligence contributed toward her injury, she cannot recover. (If you find that the plaintiff, notwithstanding her age, was of ordinary intelligence and was capable of understanding the danger she would incur by leaping or falling from this machine while in motion, then she would be chargeable with the same care and prudence required of a grown person, and any negligence on her part, even of the slightest, which contributed to her injury, would relieve the defendant from liability, and your verdict should be for the defendant.) If the plaintiff voluntarily jumped from the machine and so was injured, there would not only be no negligence on the part of the defendant, but her negligence would be the direct cause of the accident, and you should find for the defendant. If you should find that the plaintiff just prior to the accident was sitting in an unsafe place or in an unsafe manner, and that she had been warned by the defendant and others, or by the defendant alone, in time to change her position, and had stubbornly refused to do so, in that case she had assumed the risk and you should find for the defendant.’ Gentlemen, as I say, the question for you to determine is this: Did the plaintiff upon that occasion act in the prudent and careful manner that an ordinarily prudent and careful person would have acted under like or the same circumstances, taking into consideration her age, her intelligence, her experience, taking into consideration the position and the character of the machine, taking into consideration all of the circumstances and conditions that surrounded that occurrence as you find them to be from the evidence in the case, and if you find that she herself was guilty of any negligence which contributed to her injury, she cannot recover in this case. If you find that she was not guilty of negligence, and that defendant was guilty of negligence, and that the defendant’s negligence resulted in her injury, it will then be your duty to render a verdict in favor of the plaintiff for some amount, and it will then become your duty to determine the amount of damages which she has sustained.”

In their brief in this court, counsel for appellant have argued the second, fourth, and fifth assignments of error.

By the second assignment of error it is urged that the court erred in permitting the defendant to answer the question above quoted. In view of the fact that the plaintiff’s witness Newark in his direct examination had testified as follows: “I did not notice guards; I think I would have seen them if there had been any because I was near enough ” — we do not think the court erred in permitting the defendant to answer the question above quoted, and in overruling the plaintiff’s objection thereto.

By the fourth assignment of error it is claimed that the court erred in giving that portion of the charge above quoted in the first parentheses. By the fifth assignment of error it is claimed that the court erred in that portion of its charge embraced in the second parentheses above quoted.

The last two assignments of error may well be disposed of together. It is urged by appellant that the court here erred by laying down a rule that would charge the plaintiff with the same degree of care and .prudence that is required of an adult person, and authorities are cited claimed to support this position, and among others there are Wright v. Railway Co., 77 Mich. 123 (43 N. W. 765); Lehman v. Steel Works, 114 Mich. 260 (72 N. W 183); Baldwin on Personal Injuries (2d Ed.), §§ 189, 199 A reference to this last authority will show, in section 189, that author uses the following language:

“If the infant has sufficient intelligence and experience to understand and know the danger he may incur, he will, to that extent, be chargeable with contributory negligence. His age and intelligence is a criterion of the degree of care required or expected from him ” — citing many Michigan cases, including Henderson v. Railway Co., 116 Mich. 368 (74 N W 525), and Trudell v. Railway Co., 126 Mich. 73 (85 N W 250, 53 L. R. A. 271), where it is held that it is the intelligence and not the age of the child which must control.

A reference to section 199 shows that the same author uses the following language:

“ When children become older, while not wholly irresponsible, they are only required to exercise the care of a child of equal age, and the ordinary childish care and prudence of children of that age. The care and caution required of a child is according to its maturity and capacity only, and this is to be determined in each case by the circumstances of that case.”

In Lehman v. Steel Works, supra, the plaintiff was nine years of age, and the question of contributory negligence was submitted to the jury. Chief Justice Long there quotes from East Saginaw City R. Co. v. Bohn, 27 Mich. 503, as follows:

“ It would be unreasonable and cruel in the extreme to hold such a child responsible for a prudence and foresight beyond his years, and for a perception and comprehension of dangers which are only learned by experience, or by observation and reflection ” — citing many of the previous holdings of this court.

The rule as laid down in Wright v. Railway Co., supra, is this:

“That the care and discretion to be used by children, and for which they must be held chargeable, must be proportioned to their age and capacity; and, while it must be ordinary care, it is not the ordinary care required of an adult under the same circumstances.”

There the plaintiff, who was 4 years old, was in charge of a brother 13 years of age. We think the correct rule is stated in the following cases: Henderson v. Railway Co., supra; Trudell v. Railway Co., supra. In this last cast the injured boy was seven years and four months old. Justice Long, speaking for the court, said:

“Age is not the true test in such cases. It is the intelligence of the boy, not his age, that must control.”

Zoltovski v. Gzella, 159 Mich. 620 (124 N. W. 527, 26 L. R. A. [N. S.] 435, 134 Am. St. Rep. 752). In Knickerbocker v. Railway Co., 167 Mich. 596 (133 N. W. 504), the following language is quoted with approval:

“As to any given event, a child is responsible for just such care for his own safety as may reasonably be expected of one of his age, development, and intelligence, under the circumstances characterizing the particular event.”

Many cases are there quoted and referred to upon this subject. See, also, Gibbs v. Dayton, 166 Mich. 263 (131 N. W. 544).

Taking the entire portion of the charge above quoted together, it will be noted that the trial court called the attention of the jury in three or more instances to the rule that they must consider the age, intelligence, and experience of the plaintiff, and stated the law correctly, when all that was said is considered. In our opinion, the assignments of error cannot be sustained, and it must be held that there was no error in the portion of the charge complained of.

The judgment of the circuit court is affirmed.

Moore, C. J, and Steers, MoÁlvay, Brooke, Blair, and Ostrander, JJ., concurred. Bird, J., did not sit.