text:
    KROLIK v. LANG.
    1. Fraud — Directed Verdict — Evidence—Financial Statement— Question of Fact.
    In an action for fraud and deceit, based on an alleged false financial statement given by defendant to plaintiffs for tbe purpose of securing credit, evidence tbat defendant admitted to plaintiffs, after credit had been extended to him, tbat bis indebtedness was greater than tbe statement showed, presented an issue of fact for tbe jury as to whether material parts of tbe statement were deceitful and false in fact.

      2. Same — Evidence—Intent—Former Financial Statements.
    Evidence of two former financial statements made by defendant, showing a financial gain in his business, was admissible for the purpose of showing that plaintiffs were deceived, and also, in' the light of subsequent events, to show an intent on the part of defendant to deceive.

    3. Same — Evidence—Intent.
    Evidence that about a year after giving the alleged false financial statement, defendant’s stock was sold on chattel mortgage foreclosure for $500; that defendant and his wife gave a real estate mortgage for $575, the full amount due on the chattel mortgage, and organized a corporation and continued the business, with defendant as manager, taken in connection with defendant’s previous statements showing a profitable business and increasing assets, amounting, when the statement in question was made, to $7,000, and net worth of $4,000, was admissible for the purpose of showing the whole transaction and enabling the jury to pass upon the correctness of defendant’s statement, as well as his motives in making it.
    4. Trial — Instructions—Requests to Charge.
    Where the charge as given clearly covered the requested instruction, no error was committed by the trial court in refusing to charge as requested.
    5. Same — Instructions.
    It was not error for the court to refuse to single out and dwell separately upon disconnected portions of the circumstantial evidence, or to direct the jury what inference should be drawn from or weight given to each, considered separate from the other testimony, when deciding the substantial and controlling issue of fact, to which all the evidence admitted was directed.
    6. Same — Fraud—Instructions.
    Where there was evidence of fraud for the jury to consider, and the court fairly submitted the issue, under proper instructions, the judgment of the court below will not be reversed.

      Error to Lapeer; Smith, J.
    Submitted April 14, 1915.
    (Docket No. 81.)
    Decided July 23, 1915.
    Case by Henry A. Krolik and-others, a copartnership, doing business under the firm name of A. Krolik & Company, against John W. Lang for fraud and deceit. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Herbert W. Smith, for appellant.

      Arthur E. Fixel and Max H. Finkelston {Earl Love-joy, of counsel), for appellees.

       Generally as to fraudulent representations in obtaining credit, see notes in 14 L. R. A. 264; 35 L. R. A. 421, 433; 37 L. R. A. 608.

       As to admissibility of evidence of other acts to show intent, see notes in 62 L. R. A. 222, 240; 43 L. R. A. (N. S.) 667.
      As to burden of proof as to fraud, see note in 33 L. R. A. (N. S.) 837.

   Steere, J.

Plaintiffs commenced this action in tort, filing a declaration in a plea of trespass on the case charging defendant with fraud in obtaining goods on credit from them by means of a false financial statement, setting out and particularly charging, as the fraudulent act on which credit for the indebtedness sought to be recovered was obtained, a statement of his financial condition made to and for them on February 18, 1910. At the time this indebtedness accrued, and for some years previous, defendant owfied and operated a general store in Dryden, Lapeer county, Mich., and purchased merchandise of plaintiffs, who composed a mercantile copartnership, located in Detroit, engaged in the wholesale dry goods business. While thus dealing, defendant furnished plaintiffs at different times written statements of his financial condition as a basis for their extending him credit for mer-' chandise which he purchased from them on time, and had made the statement counted upon prior to the extension of credits here involved.

At the time this action was begun, defendant was indebted to plaintiffs for goods purchased from them on credit, claimed to have been extended to him on the strength of his financial statement while doing business in his own name, consisting of a balance for merchandise and four notes for earlier purchases of different dates and amounts drawing interest at 7 per cent, per annum, which had been protested • for nonpayment, totaling $474.17, interest amounting at time of trial on November 11, 1914, to $18.45. He was then acting as manager of a general mercantile business owned by a corporation known as the J. W. Lang Mercantile Company, which plaintiffs claimed had in a questionable way, so far as defendant was concerned, succeeded him and was located in the same building where he formerly conducted his own business when buying goods of plaintiffs. He owned one share of stock in the corporation and his wife 13; the balance belonging to others connected with the concern.

The statement set out in plaintiffs’ declaration, claimed to have been false and fraudulent both as to liabilities and assets, is as follows:

“Financial Statement: J. W. Lang, Dryden, Michigan, made the following statement of my financial conditions and affairs to A. Krolik & Company, of Detroit, Michigan, this 18th day of February, 1910, for the purpose of obtaining goods from them from time to time, upon credit and for the purpose of inducing them to grant me an extension of time upon my indebtedness to them.
“Assets: Stock in trade in Dryden, Michigan, $6,000. Good notes and accounts, $1,400. Good securities, none. Cash on hand, $200. Total, $7,600.
“Liabilities: Owe for merchandise, $1,500. Owe for borrowed money, $450. Mortgages on real estate, none. Other indebtedness, none. Incumbrances on stock in trade, $1,500. Incumbrances on other chattels, none. Total liabilities of every kind, $3,450. Net worth, $4,150.
“The foregoing is a true and correct statement of my assets and liabilities. Insurance on stock in trade, $2,000. Insurance on other property, none. Judgment and suits pending, none.
[Signed] “J. W. Lang.”

Defendant pleaded the general issue.

The case was tried by jury, resulting in a verdict and judgment for the amount claimed, which does not appear to have been questioned; the issue on the trial being whether credit for the indebtedness shown was obtained by deceit and false representations upon which plaintiffs relied.

Defendant’s various assignments of error group into three complaints, as follows: Refusal of the court to direct a verdict for defendant, admission of incompetent and prejudicial evidence, and refusal to give defendant’s fourth, fifth, and sixth requests.

The sixth request is for a directed verdict on the ground of absence of any evidence tending to show that the financial statement upon which plaintiffs claim to have relied was false, and its refusal goes with the alleged error in not granting defendant’s motion for a directed verdict at the close of plaintiff’s testimony. The gist of a fraudulent misrepresentation is that it is intended to produce a false impression or belief in the mind of the other party. The representations in this case, which were statements of fact and not of opinion were in writing. There can be no question as to what they were or their purpose. They were of material facts peculiarly within the knowledge of defendant, made directly to and with the intention of inducing plaintiffs, in reliance upon, them, to grant him an extension of credit. That they believed those representations and by reason of them were induced to do as he requested, is shown and not disputed. Whether material parts of the statement were deceitful and false in fact was the issue on the trial. It was shown that when plaintiff’s agent was unsuccessfully attempting to collect this indebtedness after it was past due, and confronted defendant with his financial statement that his net worth was over $4,000, he replied:

“Pcan’t help but conclude my indebtedness was more than I gave you in my statement, otherwise I have no explanation. I couldn’t account for it.”

An examination of the record, as a whole, satisfies us that the testimony, which it is not deemed necessary to review in detail, fairly raised an issue of fact for the jury upon that contention.

Error is assigned on the admission, against objection, of two financial statements given plaintiffs by defendant prior to the time of giving the one upon which fraud is alleged. These statements showed a financial gain in defendant’s business up to and including the time the statement of February 18, 1910, was made, and were introduced as an element tending not only to show plaintiffs were deceived but, in the light of subsequent events, an intent on the part of defendant to deceive. For this purpose previous representations and relations between the parties and subsequent facts relating to the same subject-matter are admissible. It is an elementary rule that much latitude may be allowed in admission of circumstantial evidence in cases where fraud is charged (14 Am. & Eng. Enc. Law, p. 195; 20 Cyc. p. 110), “and no rigid rule of evidence can be applied to measure the admissibility of circumstances, for they arise out of the condition, relation, conduct, and declarations of the parties, and those are infinitely diversified” (Stauffer v. Young, 39 Pa. 455). This court said in Ross v. Miner, 64 Mich. 206 (31 N. W. 187):

“But it is quite possible that fraud can be made out by proof of subsequent acts throwing light on what was done before the dealings assailed.”

Under these general rules, plaintiffs were permitted to introduce evidence, against objection, that on March 23, 1911, defendant’s stock of merchandise was sold on chattel mortgage foreclosure for $500 and bid in by the president of a local bank which held the mortgage, and subsequently sold to defendant’s wife; she and defendant later giving a real estate mortgage for $575, being the full amount due on the chattel mortgage, and the bank giving a bill of sale of the stock to her. Following this, the corporation was organized and business continued in its name, with defendant manager, as before stated. These transactions, in connection with defendant’s previous statements, showing a profitable business with increasing assets, amounting, when the statement was made in 1910, to $7,5(30, and net worth of defendant over $4,000, were relevant evidence for a full understanding of the transaction under consideration and competent for the jury to consider in passing upon the correctness of defendant’s statement as well as his motives in making it. We discover no error in admission of the evidence objected to.

Defendant’s fourth and fifth requests, on refusal of which error is assigned, are in substance a repetition of objections to this line of testimony, asking the court to instruct the jury that the sale of the stock in 1911 for $500 could not be accepted as evidence that the statement in 1910 was false, and the purchase of the stock by defendant’s wife after the chattel mortgage sale, as she had a perfect right to do, was. no evidence that said statement was false.

Error is also assigned on the failure of the court to give defendant’s second request “that fraud is never to be imputed where the transaction may be fairly reconciled with honesty.” Though in different language, the charge clearly covers this proposition.

Of the fourth and fifth it is sufficient to say that it was not the duty of the court to single out and dwell separately upon disconnected portions of the circumstantial evidence, or to direct the jury what inference should be drawn from or weight given to each, considered separate from the other testimony, when deciding the substantial and controlling issue of fact in the case, to which it was made plain all the evidence admitted was directed.

The court fully and fairly explained to the jury the exact issue of .fact for them to decide with the rules of law to be borne in mind when canvassing the testimony and deciding the issue within their province, saying in part:

“Plaintiff insists that these goods were procured by means of a fraud, or fraudulent statement, concerning which I will speak at length later on. The burden of proof is upon the plaintiff to establish the fraud. In other words, fraud is never to be imputed with the transaction, nor can fraud be presumed without evidence, nor is it essential that the defendant first prove there was no fraud. Fraud is never presumed, but must be proven. The law presumes that every person transacts business honestly, and in good faith, and the burden of proof of fraud is on the party who charges fraud. In this case the burden is upon the plaintiff.
“The fraud claimed in this case is the defendant on the 11th day of February, 1910, made a financial statement for the purpose of obtaining credit from the plaintiff. If the plaintiff has failed to prove that the financial statement made by the defendant on the 11th day of February, 1910, was at the time made false, then your verdict will be for the defendant of no cause of action. * * * Now, as this case stands, gentlemen, if you fail to find any fraud in writing (Exhibit C), then the verdict must be for the defendant. * * * Speaking generally, to entitle the plaintiffs to recover in this action, they must show, by a fair preponderance of the evidence, that the defendant did make this statement in 1910; that the statements made by the defendant to the plaintiffs were untrue in fact at the time he made them, or that some material part of that statement was untrue; also that the statement was made by the defendant with the intention and for the purpose of obtaining a standing thereby with the plaintiffs, and therefore credit for the goods; that the plaintiffs believed these statements to be true, and relied upon them, and, by reason of such statement, were induced and did sell the goods to the defendant and gave him credit therefor, and plaintiffs would not have given him credit had he not made the false statement.”

In Ferris v. McQueen, 94 Mich. 367 (54 N. W. 164), this court said:

“The rule is that fraud may be proved, like any other fact, by facts and circumstances which satisfy the mind of its existence, and it is a question for the jury when there is any evidence to warrant the finding. As was held in Freedman v. Campfield, 92 Mich. 118 [52 N. W. 630], when there is a scintilla of evidence, the verdict will not be disturbed.”

There was more than a scintilla of evidence in this case for the jury to consider on the question of fraud. We conclude that the issue was fairly submitted to the jury under proper instructions, and discover no error committed in the progress of the trial requiring the verdict to be disturbed.

The judgment is affirmed.

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

The late Justice McAlvay took no part in this decision.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    ANDREWS v. CITY OF SOUTH HAVEN.
    1. Municipal Corporations — Electricity—Trade.
    Art. 8, sec. 23, of the Constitution authorizes cities to operate electric light plants and to supply the inhabitants with light, heat and power. See, also, 1 Comp. Laws, § 3258 et seq.

      2. Same — Competition—Injunction.
    In the exercise of proprietary and business powers of a municipal corporation, it is governed by the same rules which control a private individual or a business corporation: in such case the fact that a city engaging in a commercial line of activity competes with and damages one of its inhabitants in his trade or business does not entitle him to relief against municipal action for the city owes him no immunity from competition.
    3. Same — Equity.
    Nor is a taxpayer who sells electrical appliances entitled to restrain a municipal corporation from competing with him in the selling of electric light fixtures, in which branch of business it engages as an incidental part of its power and light business, in the absence of any showing that taxation was thereby increased or that damage accrued to him as a taxpayer by reason of such commercial enterprise.
    Appeal from Van Burén; Des Voignes, J.
    Submitted April 16, 1915.
    (Docket No. 131.)
    Decided July 23, 1915.
    Bill by Albert E. Andrews against the city of South Haven for an injunction and other relief. From an order sustaining a demurrer to the bill, complainant appeals.
    Affirmed.

      Thomas J. Cavanaugh, for appellant.

      Fred C. Cogshall, for appellee.

       As to power of municipality to engage in private enterprise, see notes in 31 L. R. A. (N. S.) 117, 119; 51 L. R. A. (N. S.) 1143.

   Steere, J.

This is an appeal to review a decree sustaining defendant’s demurrer to complainant’s bill, filed to restrain alleged ultra vires municipal trading, and dismissing the same.

In outline, the material facts disclosed by said bill are as follows: Complainant, who is a resident property owner and taxpayer of the city of South Haven, where he maintains a regular place of business, and is engaged in selling and installing electrical' fixtures, bulbs, supplies, wiring, etc., and equips buildings to use electrical current for lighting and other purposes, charges that defendant is engaged in like business in excess of its corporate authority, in competition with him, unlawfully using public funds for that purpose. Defendant is a city of the fourth class, organized, existing, and “doing business supposedly” under the Constitution of this State and Act No. 215, Pub. Acts 1895. There is in said city a private gas plant which supplies the community with gas for lighting purposes. The city owns and, through its board of public works, operates, a municipal lighting plant from which it supplies itself and inhabitants with electric lights. It keeps on hand, purchased with public money raised by taxation and transferred to a fund for that purpose, a stock of electrical fixtures and accessories similar to those dealt in by complainant, which it sells to its inhabitants, also furnishing to them, for hire, its regularly employed electricians to install wiring and electrical equipment in their private residences and places of business, advertising that it will perform such work, furnish and install fixtures, supply attachments, light bulbs, and all electrical accessories, for private individuals on their premises, in their private residences or places of business, substantially at cost. The bill further alleges that, as a result of the city thus engaging in competition with complainant, he is suffering, and will continue to suffer, irreparable loss and damage; charges that it is not essential or necessary for the city to engage in such business in order to supply its inhabitants with light, and that under the charter it has no authority to do so; therefore prays for an injunction restraining said municipality from “engaging in and carrying on the business aforesaid in the manner aforesaid, and from using the funds of the city raised by taxation for other purposes to buy supplies and keep them for sale and to pay the electricians for the purpose of disposing of their time to private individuals for hire in the manner aforesaid, and from keeping and selling to private individuals wire, fixtures, bulbs, electrical supplies, or accessories in any amount or of any kind whatsoever.”

The direct and only question raised by this bill and the demurrer to it is the right of the city, while operating its electric plant and supplying its inhabitants with current, to also in that connection do electrical wiring on their private premises and furnish fixtures and other accessories essential and convenient in using electricity.

The corporate power of a city to own and operate a municipal electric plant and supply its inhabitants at prescribed rates light, heat, and power is conferred by statute and the Constitution. In the act under which defendant was incorporated, authority to supply light is conferred, and by the Constitution, adopted later, heat and power are included as follows (section 23, art. 8) :

“Subject to the provisions of this Constitution, any city or village may acquire, own and operate, either within or without its corporate limits, public utilities for supplying water, light, heat, power and transportation to the municipality and the inhabitants thereof.”

The general act providing for incorporation of cities of the fourth class (chapter 88, 1 Comp. Laws), under which defendant was organized, contains various provisions upon the subject of municipal lighting. Section 3258 (2 How. Stat. [2d Ed.] § 5784) confers the power as follows:

“It shall be lawful for any city incorporated or reincorporated under the provisions of this act to acquire by purchase or to construct, operate and maintain, either independently or in connection with the water works of such city, either within or without the city, works for the purpose of supplying such city and the inhabitants thereof, or either, with gas, electric or other lights at such times and on such terms and conditions as hereinafter provided.”

By section 3266 (2 How. Stat. [2d Ed.] § 5792) authority is given the common council to enact such ordinances and adopt such resolutions as may be necessary to carry that object into effect, and to protect and control the property owned and used for that purpose.- The act also provides for a board of public works with authority to fix rates, subject to direction of the council, charged, amongst other thihgs, with the following “duty, power and responsibility” (section 3269 [2 How. Stat. (2d Ed.) § 5795]):

“Second. The construction, management, supervision and control of such electric or other lighting plants as are or shall be owned by the city.”

Section 3270 (2 How. Stat. [2d Ed.] § 5796) provides :

“The said board shall have power to make and adopt all such by-laws, rules and regulations as they may deem necessary and expedient for the transaction of their business, not inconsistent with the ordinances of the city or the provisions of this act.”

In this inquiry the governmental powers of a city, by which it regulates and controls its citizens in a sovereign capacity, are not involved. The question raised here relates only to the proprietary or business powers of the city, by means of which it may act and contract for its own private advantage and that of its inhabitants combined. In the exercise of the latter powers, the municipality, acting through its officers, is governed by the same rules which control a private individual or business corporation under like circumstances. Omaha Water Power Co. v. City of Omaha, 147 Fed. 1 (77 C. C. A. 267, 12 L. R. A. [N. S.] 736, 8 Am. & Eng. Ann. Cas. 614). In such case the fact that a city engaging in a certain line of activity, commercial in its nature, competes with and thereby damages one of its inhabitants in his business, does not entitle him to relief, for the city owes him no immunity from competition.

The electric light plant which defendant owned and operated, although a municipal public utility, was a business concern or enterprise. In its operation and business management the city had the right and power to do those things naturally connected with and belonging to the running of such a business which a private corporation would have in the same connection. Pond on Public Utilities, § 8. The power to engage in this municipal business activity for the public welfare is necessarily conferred in general terms. To go into details of administration and specify each particular thing which could or could not be done would be unwise and practically impossible. As to details and methods of conducting such authorized business, involving exercise of special knowledge and business judgment, there must be many implied powers. A strict, illiberal, or narrow construction which might hamper the exercise of a reasonable discretion by the municipal authorities in such matters, because the power is given in few words, is not, with perhaps a few exceptions, the tendency of decisions in most jurisdictions. The courts as a rule are not disposed to interfere with the management of an authorized business, conducted by the municipal authorities presumably in the interest and for the benefit of the city and its; inhabitants, unless dishonesty or fraud is manifest, or the vested power with its implied discretion has been clearly exceeded or grossly abused. In Torrent v. City of Muskegon, 47 Mich. 115 (10 N. W. 132, 41 Am. Rep. 715), Justice Campbell, in writing the opinion, foreshadowed the rule which, by the great weight of authority, is applied in construing general powers to a municipality, to engage in certain modern business activities for the public welfare, saying in part:

“If cities were new inventions, it might with some plausibility be claimed that the terms of their charters, as expressed, must be the literal and precise limits of their powers. * * * There are many flourishing cities whose charters are very short and simple documents. Our verbose charters, except in the limitations they impose upon municipal action, are not as judiciously framed as they might be, and create mischief by their prolixity. But if we should assume that there is nothing left to implication, we should find the longest of them too imperfect to make city action possible.”

In City of Henderson v. Young, 119 Ky. 224 (83 S. W. 583), where the issue was the right of the city to furnish electricity for light and other purposes to customers beyond the city limits, it is said:

“In the management and operation of its electric plant, a city is not exercising its governmental or legislative powers, but its business powers, and may conduct it in the manner which promises the greatest benefit to the city and its inhabitants in the judgment of the city council; and it is not within the province of the court to interfere with the reasonable discretion of the council in such matters.”

Little direct authority is to be found upon the exact question raised by the facts disclosed in complainant’s bill. The two cases cited by counsel for complainant most favorable to his contention are Attorney General v. Leicester Corporation, 74 J. P. Rep. 385, and Keen v. City of Waycross, 101 Ga. 588 (29 S. E. 42). The first-named involved the right of the “undertakers,” representing the municipal corporation which was authorized to supply electrical current only at the consumer’s terminals, to deal in and furnish wiring, electrical fittings, lamps, and other accessories. The court held they could not, basing its decision upon limitations found in the legislation and provisional order in connection therewith having the force of law, saying in part :

“I also think that there is nothing in the sections of the act of 1847 inconsistent with the construction of ‘supply’ in the act of 1882 contended for by the plaintiff —namely, that it means the supply of energy to the consumer at his terminals. * * * _When we turn to the provisional order, the interpretation, in my opinion, becomes still plainer, ‘consumer’s terminals’ is there stated to mean ‘the ends of the electric lines situate upon any consumer’s premises and belonging to him at which the supply of energy is delivered from the service lines.’ The undertakers have power to charge for supply of energy and for meters and fittings, but for furnishing and laying lines they have no power to charge except in special cases. By clause 21 of the provisional order, however, they are bound to give a supply of energy on demand, and, if the wiring of the house and provision, of fittings is part of the supply, they would be compellable to do it without remuneration, and I think there is force in the plaintiff’s argument that this cannot have been intended by the legislature. In my opinion, ‘supply,’ within the meaning of the act and order, is completed at the consumer’s terminals.”

While that opinion is upon the same subject as the instant case, the controlling reason for the decision has little application here. In that case distinct retrictions were placed upon the authority given the undertakers, or borough officials, by the wording of the act and provisional order, which defined and limited the scope of their action in express terms, the exact meaning of which was declared, to exclusion, as the court found, of the implied power claimed.

In Keen v. City of Waycross, supra, it was held that the city of Waycross .did not have implied authority under its charter, which authorized the erection and maintenance of a system of waterworks and connecting the city’s mains with pipes of water consumers, to engage in a general plumbing business, sell plumbing supplies and material to private citizens, and do contract work in placing the same upon their premises. By analogy, it can be said that certain of the reasons stated in that opinion tend to support the construction contended for by complainant in this case. That opinion followed the rule of strict construction; it being said, in part:

“Unless the city of Waycross can show express legislative authority to engage in the business in which it has embarked, the acts of its officials of which the plaintiff complains are clearly ultra vires. We have no doubt that, under the act of 1889, upon which the city rests, its defense, its board of commissioners have ample power to take such steps as are needful in order to render the waterworks system of the city efficient and beneficial to the public. (See Acts of 1889, p. 829.) But the position of the city that, to bring this result, it was necessary to engage in the plumbing business, is utterly untenable, because obviously not well founded in fact. It might as reasonably be urged that, in order to satisfy its patrons, it was necessary for the city to embark in the ice business, as an incident to its right to supply good drinking water to its citizens.”

Subsequently, however, that court recognized embarking in the ice business as an incident to the right of a city to supply good drinking water to its citizens, in Holton v. City of Camilla, 134 Ga. 560 (68 S. E. 472, 31 L. R. A. [N. S.] 116, 20 Am. & Eng. Ann. Cas. 199), where it was contended that the city had “no right to embark in a purely private and commercial business of manufacturing or dealing in a common commodity of commerce, such as ice; and therefore the use of public funds raised by taxation for that purpose will be illegal.” While other questions not material here were involved in that case and discussed, the court in disposing of the above objection said, amongst other things:

“The object in bringing, by means, of a waterworks system, water in pipes from a distance for use in supplying the needs of a city, is not alone to obtain a sufficient quantity, but also to secure that which is freer from impurities than it is possible to obtain in the city itself. * * * Upon what principle could the doetrine rest that liquid water may be delivered by the city to its inhabitants by flowage through pipes, but that water in frozen blocks cannot be delivered by wagons or otherwise? If the city has the right to furnish its inhabitants with water in liquid form, we fail to see any reason why it cannot furnish it to them in a frozen condition. * * * Nor do we see any rational objection on the idea that the city will be engaging in a manufacturing enterprise. The city might perhaps equally as well be said to be manufacturing when by the use of a filtering process it changes impure water into that which is pure. When, in connection with its waterworks system, it produces ice, it merely, by certain processes, changes the form and temperature of a part of the water supplied by that system. We do not think the operation by the city of Camilla of an ice plant in connection with its waterworks system, for the purpose of furnishing ice to its inhabitants, is in violation of the sections of the Constitution referred to in the plaintiffs petition, or that it is illegal for any reason.”

Water sent through pipes to a customer’s residence or place of business is water delivered to him ready for use in its then condition. He may heat or cool it, drink or bathe in it, and make whatever use of it he desires. But electric current delivered to him at his residence or place of business as it is transmitted over the wires, in its then condition, neither affords him heat, power, or light without further mediums and appliances. The statute and Constitution do not in terms limit the service to supplying the energy, but authorize the city to supply its inhabitants with water, light, heat, power, and transportation. It may well be contended that furnishing to customers taking electricity the necessary devices or equipment to produce heat, power, or light from the current is naturally incidental to and an implied power connected with the business of operating an electric light plant. It does not appear that the municipality in so doing is conducting the business by different methods or under other rules than those which are observed by and control private business corporations or private individuals in the operation of an electric plant.

The old law of municipal trading, involving the propriety and expediency of authorizing a municipality to engage in general business in competition with its citizens conducting a private business of like kind, has little bearing here; but the rule remains that taxation can only be for public purposes and municipalities have no express or implied power to engage generally in private business. We are past the general question of the validity of legislation authorizing municipal ownership and operation of plants and their necessary equipment to furnish the concentrated population of cities with certain general needs and conveniences, like water, light, heat, transportation, telephone service, etc.; and it is held that the court will not interfere with any reasonable exercise of the implied powers to operate such plants in a business way, and as any private corporation could or would.

The bill does not show that complainant has sustained or will suffer any loss or damage as a taxpayer by reason of what is charged. No increase of taxation for that purpose is shown. He does allege an improper use, in that connection, of money raised by taxation for thát purpose, to buy the electrical appliances furnished customers at, approximately, cost. Whether this was as a whole profitable in operating the plant by reason of increased sale of electricity, or otherwise, is not shown. To entitle him to equitable relief as a taxpayer, present or prospective damages must be shown. Baker v. City of Grand Rapids, 142 Mich. 687 (106 N. W. 208).

We conclude that the learned chancellor who first passed upon this demurrer correctly determined complainant’s bill did not show that the defendant exceeded its implied discretionary power in the operation of this plant, nor state a case which entitled him to equitable relief by injunction.

The decree sustaining said demurrer and dismissing complainant’s bill is affirmed, but without costs.

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

The late Justice MgAlvay took no part in this decision.


text:
    LAKE v. TOWNSHIP OF SPRINGVILLE.
    1. Municipal Corporations — Negligence—Highways and Streets.
    Where a driver of a horse and vehicle in. which plaintiff was a passenger, traveling a little out of the prepared track in order to avoid a quantity of new gravel, saw that he was about to hit a stake that was placed in the road to define it, and, notwithstanding that his horse could have been guided so as to avoid the obstacle, permitted a wheel to pass over the stake throwing plaintiff to the ground, the driver was guilty of contributory negligence, imputable to plaintiff, a voluntary passenger.

    2. Same — Negligence—Imputed Contributory Negligence.
    The want of care of a driver of a private vehicle is impufable to a gratuitous passenger of mature years.
    Error to Wexford; Lamb, J.
    Submitted April 13, 1915.
    (Docket No. 65.)
    Decided July 23, 1915.
    Case by George A. Lake against the township of Springville for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.
    Gaffney, Miltner & Millington, for appellant.

      Fred C. Wetmore, for appellee.

       As to imputed negligence of driver to passenger, see notes in 8 L. R. A. (N. S.) 597; L. R. A. 1915 A. 761.

   Steere, J.

Plaintiff brought this action in the circuit court of Wexford county to recover damages for personal injuries sustained by falling from a wagon in which he was riding along a highway in defendant township. From a judgment upon directed verdict for defendant, he brings the case here for review upon a writ of error; the material assignment being that the trial court erred in ruling, as a matter of law, that the accident resulted, in whole or in part, from his negligence, or, more specifically, from negligence of the driver of the conveyance in which he was riding, and which is legally imputable to him.

The accident occurred August 25, 1913, upon a main traveled and improved highway running east and west between the villages of Mesick and Sherman, on a straight, level stretch of .the road not far from Mesick, where defendant had regraveled half a mile of the surface of the roadbed during the preceding June and July, stated to have been done “probably 3 weeks, maybe a month, before the accident.” The negligence of which plaintiff complains, and to which he attributes the. accident, was the horizontal distribution of posts, poles, or other obstructions at intervals of from 2 to '3 rods along either side of the graveled way at right angles to the road, to prevent the public from driving elsewhere than upon the graveled portion. This road was built the season before as a “State reward road,” turnpiked about 3 rods wide, with a uniform grade each way from the center, which was about 2 feet higher than the outer edge of the gutters; the central and highest portion being composed of gravel about 8 inches deep and between 8 and 12 feet wide. The road was inspected in the spring of 1913 by an engineer of the State highway department, who declined to accept it until certain low places and washouts had been re-graveled and leveled. The new graveling in question was done to meet this requirement.

Plaintiff lived at Sherman and did business at Me-sick, passing over the road daily. On the evening of the day in question, shortly after 8 o’clock, he caught a ride home with an acquaintance, named Yoker, who had driven over from at or near Sherman with a single rig and was returning. Yoker was driving a young horse drawing a single vehicle, bought for a delivery wagon, which he described as a “very heavy open buggy, skeleton body,” and said of the horse that it was gentle, “past three years old, and I had driven him all summer and had driven him over this road. He was well broken to the buggy, that was all.” Yoker had a boy with him, his nephew, and made room for plaintiff to sit beside him in the single seat by taking the boy in front of him on his lap or, as he states it, between his knees, driving with one arm on each side of the boy, holding to the lines in front. Leaving Mesick, their way first led a short distance north, to where they turned east towards Sherman, and soon thereafter came upon the regraveled portion of the road, along which Yoker drove in the center and upon the gravel for 15 or 20 rods, when he turned diagonally to the left following the track and example of a previous conveyance which he noticed had turned in that direction to get off the gravel. Of his reason he testified:

“It was hard traveling for a horse. * * * It looked pretty hard for a three-year-old colt, and that was the reason I turned off.”

At that time the horse was walking, and it was yet broad daylight. Yoker was familiar with the road and its condition, and knew the purpose of the obstacles at the side, which he states were 3 or 4 rods apart, from 4 to 8 inches in diameter, and not closer than 2 feet from the track. He saw the particular post, to which the accident is ascribed, lying outside the graveled way before he came to it, noticed that the preceding rig, whose track he turned into, had hit the end of it, and with that in mind intended to and thought he would drive so as to miss it, but failed to do so, and one of the wheels on the left side struck the end of the post “with a jar and a noise.” He explains this unfortunate lack of accuracy in driving as follows:

“I pulled the horse off from the gravel to get to where it was better traveling, and in so doing — I was on the right-hand side, and Mr. Lake was on the left-hand side. I pulled to the left, and I sat with the boy between my knees, and I had both hands around the boy, driving, and the horse — not seeing that side, if I had been on that side where the post was'I might, but the horse hit the post, and he jumped.”

When the horse jumped, the lines which Yoker was holding on each side of the boy left his hands, and a series of events, constituting the res gestse of this case, followed in quick succession. The crossbar of the buggy broke as the horse jumped, and as the lines left Yoker’s hands plaintiff raised and “grabbed” for them, succeeding in seizing one, which .broke at the buckle, and as he surged back he lost his balance, falling backward upon and over the end of the seat upon the rear wheel and to the ground. He was a large, heavy man, and the fall seriously injured him. The colt, being then left free to use his own judgment, with a commendable degree of horse sense for one of his age, returned to the graveled portion of the way, from which he had been diverted, and proceeded rapidly along it towards Sherman, for some distance drawing the buggy, with Yoker and the boy riding, but eventually stopped in the road of his own accord. Yoker testified that, as they rode, he “grabbed the boy by the shirt collar” and dropped him into the road over the tailboard of the buggy, and then stopped the horse “by talking to him,” although he intimated as a concurring cause that the gravel “is what winded him.”

The rule is well settled in this State that negligence of the driver of a private conveyance, in which a person of mature years is riding as a voluntary passenger, is imputable to the latter, who is held to have assumed the risk of the driver’s negligence. Mullen v. City of Owosso, 100 Mich. 103 (58 N. W. 663, 23 L. R. A. 693, 43 Am. St. Rep. 436); Colborne v. Railway, 177 Mich. 139 (143 N. W. 32). It was therefore incumbent upon plaintiff, before he could recover, to show that neither he nor Yoker was guilty of any negligence which caused or contributed to his injury.

Whether placing these posts or poles on each side of the “wagonway or travel track,” especially intended and prepared for vehicles, might, under some circumstances, amount to an unwarranted obstruction, which would impute negligence to the municipal authorities, only becomes material here if plaintiff has shown freedom from contributory negligence. Plaintiff’s evidence shows that the ends of the posts on one side of the wagonway were from 10 to 12 feet from the ends of the posts on the other side. This was built as a State reward road, which the law provides “shall have a wagonway or travel track not less than 9 feet wide,” consisting of gravel or shale of a certain depth, etc. Yoker testified that it was perfectly safe driving on this portion of the road; that there was nothing the matter with the gravel, except it had not become thoroughly packed down, and he turned to the side, looking for a better track, more comfortable for him and the horse.

Authorities cited by plaintiff’s counsel to the effect that it is negligence to leave objects close to the traveled portion of a highway, the natural and probable consequence of which is to frighten horses, have little application here. There is no proof that these posts of themselves, as they lay by the way, had any tendency to frighten this horse or any other. Yoker’s colt is shown to have jumped when driven so that a wheel of the conveyance he was drawing struck the post and moved it with a noise. This unusual event, not the post as he saw it lying there, startled him. Plaintiff makes this clear as follows:

“I was simply talking to him (Yoker) and riding along, and the buggy struck something with a jar and noise. Then I saw a post or pole flop round there, saw it move, and we were quite busy right away then.”

This was not the case of an unknown danger or even temporary forgetfulness of a known danger. The horse was walking and went where guided. Yoker saw fit to turn out to the left, and the offending post, as to him, was on the opposite side of the highway from where he sat, outside the travel track, which was “perfectly safe.” He saw it before he got to it, had it in mind as he reined to the left towards it, intending, as he states, “to get further away from it than the other folks did,” but instead (either through momentary inattention or because the body of plaintiff and the opposite side of the buggy obscured his line of vision) he misjudged and carelessly ran his rear wheel hard against it. With the exercise of a reasonable and ordinary degree of care he easily could have avoided it, and the conclusion is unavoidable that the direct and immediate cause of this accident was his careless driving when turning off from a safe portion of the highway which the municipality had prepared for travel, and upon which he knew it was intended and desired the public should travel. In Goeltz v. Town of Ash- land, 75 Wis. 642 (44 N. W. 770), the general rule is well stated, citing authorities, as follows:

“All these cases hold the general rule that, when the town authorities prepare a sufficiently safe place for the public travel, ‘it is in general the duty of the traveler * * * to remain in the traveled track, or that part of the highway which to a reasonable width has been graded or prepared for that purpose. Hence, if without some sufficient reason for so doing, or for his own pleasure or convenience, he voluntarily deviates from the traveled track, which is in good condition, and in so doing meets with an accident for some cause outside of the traveled track, the town will not be responsible for any damage or injury which he may sustain.’ ”

In Burr v. Town of Plymouth, 48 Conn. 460, where plaintiff turned from the regular track on account of a condition of snow upon it, thinking it safer and better for travel along the side track, it was held that the town was not liable for an error of judgment on the part of the traveler; and the court stated the general principles in passing upon a portion of the charge as follows:

“Towns are not insurers of the absolute safety of travelers; they are only bound to provide reasonable and proper roads for the public travel, and are not obliged to keep the whole width of the highway free from obstructions and in good condition for being driven upon, and the jury ought to have been so instructed, and that if the usually traveled way was reasonably opened and in a .safe condition, and the accident happened because the plaintiff chose, or deemed it more judicious, to take the side path, which proved to be unsafe, the town was not liable.”

The trial court rightly held that the testimony introduced by plaintiff in this case shows conclusively that the injury could have been avoided by use of ordinary diligence on the part of the driver, and that no recovery can be had because of contributory negligence. Bohlfs v. Township of Fair grove, 174 Mich. 555 (140 N. W. 908); Massey v. Columbus, 75 Ga. 653.

The judgment is affirmed.

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

The late Justice McAlvay took no part in this decision.


author: Kuhn, J.

text:
    DETROIT CREAMERY CO. v. VELVET BRAND ICE CREAM CO.
    1. Trade-Marks and Trade Names — Partnership.
    One of a partnership who originated a trade name to be adopted by and used by the firm of which he was a partner had no title in the device as a trade-mark; it was not property except as it became so from association with and as a part of the firm business.
    2. Same — Assignment.
    Trade-marks, as such, cannot he assigned separately from the business to which they have become attached.
    3. Same — License—Transfer.
    Where the trade name or mark “Velvet Brand” had been connected by long association with the business of a firm, a license made by one of the partners after the partnership had sold its business which would tend to deceive the public or operate as a fraud on persons accustomed to deal with the manufacturers was void; a trade-mark being required to indicate the ownership and origin of the goods.
    Appeal from Wayne; Mandell, J.
    Submitted April 13, 1915.
    (Docket No. 70.)
    Decided July 23, 1915.

      Bill by the Detroit Creamery Company against the Velvet Brand Ice Cream Company and others for an injunction, etc. From a decree for complainant, defendants appeal.
    Affirmed.

      George W. Bates (Geer, Williams, Martin & Butler, of counsel), for appellants.

      Dennis B. Hayes and Miller, Smith, Canfield, Paddock & Perry, for appellee.
   Kuhn, J.

This is a suit to enjoin the use by the defendants of the trade-mark “Velvet Brand” in the manufacture and sale of ice cream. The name was originally adopted and used by the firm of A. Easter & Son, and complainant bases its .right to it on a transfer by bill of sale from that firm to the complainant, at the time of its organization in 1900, of all its stock in trade, good will, and everything pertaining to its business. From that until shortly before the commencement of this litigation, the complainant used the name continuously in the sale of ice cream, and by a large expenditure of money in advertising and by extensive sales has identified it with its goods and made it a valuable asset in its business.

The firm of A. Easter & Son was founded in 1894, when Alfred Easter, who had for a number of years before manufactured and sold ice cream in connection with a milk and cream business, took his son Ephraim into partnership with him and gave him a one-fourth interest in the business. In 1898 Ephraim originated the trade-mai*k while in conversation with an advertising solicitor, and proposed its use in advertising the firm product. Alfred Easter at first refused to authorize its use, but later consented; and it was used in the firm advertising, which was paid for by the firm. The trade-mark proved to be a’ great success, so much so that the firm was “swamped” with orders. From June, 1898, to December, 1899, all ice cream manufactured by the firm was sold under the name of “Velvet Brand Ice Cream,” and the name was not used by any one else.

Late in 1899 Alfred Easter and several other dealers organized the Detroit Creamery Company, put in their businesses and additional capital, and secured the investment of outside capital. The new company commenced business in January, 1900. The contract of sale from A. Easter & Son transferred to the Detroit Creamery Company all the stock in trade and the good will of the business and everything pertaining to said business, and bound Alfred Easter & Son, severally and jointly, not to engage in the business in Detroit and vicinity for a period of ten years. The consideration was $70,000, paid in stock, cash, and assumption of indebtedness. Ephraim received $7,800 cash, as arranged between him and his father. That was for his 25 per cent, of the firm business. The sale of the firm business was conducted entirely by Alfred Easter, but they both signed the bill of sale, severally and as a firm. The original bill of sale was lost, and, according to the assertion of Ephraim, a clause was inserted therein by him, giving permission to the. Detroit Creamery Company to use the words “Velvet Brand Ice Cream” for a period of ten years, ending December 31, 1909. This was done for the purpose of reserving in himself ownership of the trade-mark, which he declared he never intended to part with. Of this Alfred Easter claims to have no recollection. He became the manager of the new company, and still holds that office. Ephraim was employed in the office of the company from 1901 to 1913, with a short intermission.

In April, 1914, the defendants organized the Velvet Brand Ice Cream Company, and announced by advertisement that they would commence an ice cream business under that name in Detroit on or before June 1, 1914. The complainant protested in writing against such use of their name, but the defendants began doing business in July, and very soon thereafter the complainant commenced suit.

After hearing the case, the chancellor entered a decree that the complainant was sole and exclusive owner of the trade-mark, and that the defendants be perpetually enjoined from using it. From this decree the defendants appeal.

It may be conceded, for the purposes of the discussion of the questions here involved, that Ephraim B. Easter was the originator of the idea of having the firm of which he was a member use the trade-mark here in question. But it does not follow, as a matter of law, that this would make him the owner thereof in the slightest degree. It is the well-established law of trade-marks that a trade-mark does not exist as an extrinsic thing, and therefor it is not in any sense property when so considered. Its existence as property and its value as such is created only when it has become associated with and is a part of the business with which it has been connected. It becomes endowed with attributes of property when affixed to merchandise, because, when so affixed, it represents the good will of the producer of the merchandise to which it is affixed, and its value consists of the extent that the information it conveys or implies is of value. This seems to be sustained by the entire weight of authority in trade-mark law. See note to Falk v. Trading Co., 180 N. Y. 445 (1 L. R. A. [N. S.] 704); Paul on Trade-Marks, § 92; Rogers on Good Will, Trade-Marks, and Unfair Trading, p. 99; Williams v. Farrand, 88 Mich. 473 (50 N. W. 446, 14 L. R. A. 161); Derringer v. Plate, 29 Cal. 292 (87 Am. Dec. 170); Atlantic Milling Co. v. Robinson (C. C.), 20 Fed. 217. Mr. Justice Holmes, in note B-x, to 2 Kent’s Commentaries, *366 (13th Ed. p. 506; 14th Ed. p. 592), says:

“So it would seem that, while a person may transfer the right to use a trade-mark along with the business to which it relates, it cannot be separately sold. Kidd v. Johnson, 100 U. S. 617; Carmichael v. Latimer, 11 R. I. 395 (23 Am. Rep. 481). It would seem a sufficient reason for this that; the mark having come to designate a certain manufacture of goods, it would be a fraud on the public to allow it to be used on goods not of that manufacture.”

The record discloses that the Detroit Creamery Company, complainant herein, acquired all the assets, good will, and everything pertaining to the business of A. Easter & Son as a going concern in January, 1900. But it is the contention of the defendants that the use of the trade-mark or trade-name on the part of the complainant was to be limited to a period of 10 years from that date. It appears, however, that the use of this name was confined for a period of 14 years to the product of the complainant company, and it only had value as such in connection with such product. It has been universally held that a trade-mark, as such cannot be assigned separately and distinct from the property to which it has been attached, and likewise the rule has been laid down that a naked license to use a trademark is of no more validity than an assignment thereof. Both are void. 38 Cyc. p. 876. The rule is thus stated in 28 Am. & Eng. Enc. Law (2d Ed.), p. 405:

“As a general rule, a valid license cannot be granted for the use of a trade-mark. This rule is based upon the principle that a trade-mark must indicate the ownership and origin of the goods, and hawing once become associated with the product of an individual or a person, to permit the use of the same mark by several persons, even by authority of the. owner, would be to authorize a fraud and deception upon the public by representing goods made by the licensee as emanating from the original adopter of the mark.”

It necessarily follows as a corollary from this that it would be impossible to transfer the property with which a trade-mark was connected and retain title in the trade-mark separate and distinct from the property. An attempt to use such trade-mark in connection with some other business than that to which it was attached would be clearly, under the reasoning above set forth, a fraud and deception upon the public as representing goods as emanating from the company which originally adopted the mark, and by its use gave it its value in connection with its business.

We think it is clear that Ephraim B. Easter never had any title or ownership in the trade-mark in question separate and distinct from his ownership in the partnership property which was conveyed to the complainant company; and, it being established beyond question that the trade-mark was necessarily connected with and was a part of the good will of the business of said partnership which was transferred to the complainant company, it follows that it was legally impossible for him to retain ownership in something which did not have any separate and distinct legal existence.

In Royal Baking Powder Co. v. Raymond (C. C.), 70 Fed. 376, Showalter, J., said:

“In Allan’s Law of Good Will (page 26) it is said that ‘a trade-mark cannot exist apart from a business.' It may be more accurate to say that a trade-mark cannot exist apart from the good will of a business, since what is known as the good will may persist for a time after such business has in fact ceased. A manufacturing establishment, for instance, may, with all its machinery and appliances and its store of products, be destroyed by fire, and a year or two may pass before such manufactory is rebuilt, and the business started again; but, when started, the old customers, in part at least, will resume trade connections. Here the business stops for a time, but the good will involving the trade-marks remains a property more or less valuable during the interval of cessation. I can conceive such a stoppage of business by accident or design, even for a series of years, where the good will, including the trade-marks, may still be found extant; that is to say, valuable, upon resumption. But when it is not shown in some satisfactory way that the trade reputation of a suspended business continues to have value (can be exchanged or sold, for instance, for a price), a court cannot say that a good will remains; in other words, that there still attaches to the old proprietor any dominion over, or property right in, a mark which may once have had, but which no longer has, significance for him in the world of trade.”

See, also, Bulte v. Igleheart Bros., 137 Fed. 492, 498 70 C. C. A. 76), and Hopkins, Law of Trade-Marks, where it is said:

“Inasmuch as there can be no title in a trade-mark apart from the good will of the business in which it is used, it follows that, in an assignment of the business and good will of the owner of the mark, the title to the trade-mark, without being specially mentioned; passes to the assignee.” Section 15.

The attempt on the part of Ephraim Easter to convey or license to the defendant the bare words “Velvet Brand” or “Velvet Brand Ice Cream,” wholly apart from the good will, goods, and business in which they had originated and which they had been continuously associated with since 1898, was void. It was an attempt to lead the public to believe that it was obtaining from the new company the old brand of ice cream, the reputation of which had been created and established by the complainant company.

We are of the opinion that the chancellor who heard the case arrived at a proper conclusion in determining that the complainant company was the sole and exclusive owner of the trade-mark in question and enjoining the defendants from the use of it.

The decree is therefore affirmed.

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

The late Justice McAlvay took no part in this decision.


text:
    ZOTERELL v. REPP.
    1. Physicians and Surgeons — Malpractice—Skill Required— Evidence — New Trial.
    Plaintiff, a scrub woman, who needed medical attention, consulted defendant as her physieian, who advised her as he claimed that she required an operation, which, when performed, disclosed a diseased condition of the ovaries. Defendant removed the one of the ovaries which was in the worse condition, having obtained her consent, as he claimed, anticipating the condition discovered, to this form of operation. Afterwards a hernia developed at the point of incision and plaintiff was again admitted to the hospital and had a second operation by the defendant during which the remaining ovary was removed. Plaintiff claimed that defendant was negligent in failing to correct and cure the hernia by the second operation and that he was guilty of malpractice in performing the ovarian operation without her consent. It was plaintiff’s contention that defendant only advised her that the first operation was of a minor nature and that she objected to the removal of the ovaries and did not know that they had been so removed until after the second operation. Upon the trial the court submitted the case to the jury upon the issue of the necessity of the operations performed and whether plaintiff had in fact consented to them. No medical testimony was adduced by plaintiff to establish the claim that any act done by defendant was improperly done or that he omitted any treatment which would have cured her hernia. There was also testimony by experts that hernias frequently resulted from operations. Held that the court did not err in denying plaintiff’s motion for a new trial.

    2. Same — Negligence—Malpractice.
    Where counsel in the course of his argument to the court disclaimed the right to recover for malpractice, in the absence of medical testimony tending to show the omission of any particular act or treatment, the court was not in error in declining to submit to the jury the question of negligence in causing the hernia or in failing to remedy it.
    3. Same — Due Cake — Evidence.
    All that the law requires of a medical practitioner is that he bring and apply to the case such degree of skill and care as are possessed by practitioners of the medical profession in the place where the operation was performed. The bare fact that full recovery did not result or that the operation was not fully successful is not evidence of negligence.

    4. Same.
    Matters involving professional skill and alleged negligence or failure to do what ought to have been done arising in the course of a trial for malpractice must be shown by testimony of those who are learned in the profession.
    5. Same — Due Cake.
    And where physicians produced by defendant testified that the operations as defendant claimed they were performed were necessary and properly executed, that post-operative hernias were liable to develop after same and that the early removal of such condition was advisable, also, that the development of the hernia was not evidence of want of skill and plaintiff produced no evidence to contradict or dispute this, the court was not in error in limiting the issue to that of consent and the necessity or propriety of performing the operations.
    Error to Wayne; Codd, J.
    Submitted April 15,1915.
    (Docket No. 101.)
    Decided July 23, 1915.
    Case by Rosa Zoterell against William A. Repp for malpractice in the performance of certain operations. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Charles C. Conklin and John Boughton (Henry F. Chipman, of counsel), for appellant.

      Douglas, Eaman & Barbour and Clark, Lockwood, Bryant & Klein, for appellee.

       As to liability of physician for performing surgical operation without consent of patient, see notes in 1 L. R. A. (N. S.) 439; 7 L. R. A. (N. S.) 609, 50 L. R. A. (N. S.) 880.

       As to degree of care and skill required of physician, see note in 37 L. R. A. 830.

   Steere, J.

Plaintiff was defeated by the verdict of a jury in an action brought against defendant in a plea of trespass on the case to recover damages for negligence and professional misconduct while attending her as a physician and surgeon; it being charged that he performed upon her without her consent two major surgical operations which deprived her of the ability to bear children and resulted in an abdominal postoperative hernia. Defendant, a regular physician and surgeon, has been engaged in general practice since 1895, specializing in surgery and gynecology. At the time of the events complained of he was attending physician and surgeon for diseases of women at St. Mary’s Hospital in Detroit. The operations performed by him upon plaintiff consisted of correcting a displaced uterus and removal of her ovaries. Plaintiff is an Austrian, by birth who, when physically able, found employment at different places in unskilled domestic service such as washing dishes, house cleaning, scrubbing, etc. She was married in Austria in 1900, and had borne two children, one of whom was deceased and the other still living in the “old country.” She had lived in Detroit 6 years and was 33 years of age at the time of this trial. In 1908 she was ill and treated by Dr. Schorr during about three months for “a condition that was constitutional, causing pain in her whole body.” He testified that he found she had a retroverted womb, but did not then advise an operation, although conditions then existed which might point to the necessity of an operation, as to which, however, physicians might differ. While working as scrub woman at the Library Park Hotel in Detroit, in 1909, she was in poor health and consulted Dr. McElveen who lived at the hotel. He found her weak and run down, not strong enough to continue her work nor in a condition to earn her living by manual labor. After a physical examination he determined that she needed hospital treatment, and, learning that she was without means, gave her temporary tonic treatment and a card to Dr. Hoffman of the poor commission, in order that she might, through that channel, be admitted to the hospital as a patient. Dr. Hoffman then inquired into the case, and, finding, as stated on Dr. McElveen’s card, that she was not able to have the required operation where she lived, gave her a paper entitling her to admission as a patient in St. Mary’s Hospital. She was received at the hospital about February 1, 1909. Her case being, of the class which brought her under defendant’s care and treatment, he took charge of her as a patient. She spoke the German language, as did also defendant, Dr. Stafford, his assistant, and Dr. Andrees, the then interne at the hospital. There was some difference in their testimony as to the length of time she was in the hospital before being operated upon. She testified she was admitted on Monday, was examined by and in daily consultation with defendant, receiving medicine and treatment, until Friday; when the first operation occurred. Defendant testified she was in the hospital under his care and observation for nine days before the operation, which occurred February 12, 1909. It disclosed to him, as he claims to have anticipated and advised her, not only the necessity of adjusting the uterus, which was misplaced and bound down by adhesions, but that both ovaries were diseased, the right being in a cysted condition and the left atrophied and shriveled. He then removed the right one, which was in the worse condition, and testifies that he would have removed the left had he felt at liberty to do so, but that in his diagnosis before operating the necessity of removing the right was more clearly indicated, and in his talks with her she had only distinctly consented to its removal, stating to him that she did not desire to be deprived of those organs if it could be avoided because she was contemplating marriage and wished to be in a condition for motherhood, which he had informed her would be possible with one normal ovary. He also claims to have subsequently advised her of the nature of the operation she had undergone, of the removal of the right ovary and the condition of the left, which he did not then remove. On her discharge from the hospital she went to the home of her brother. Some six or eight months later she returned to defendant, complaining of trouble and pain in her left side, at that time also having a postoperative hernia, which had developed at the lower extremity of the incision made in the first operation. Being again admitted to the hospital another operation was performed by defendant, on January 23, 1910, in which the left ovary was removed and remedial treatment of the hernia administered. She recovered from this so as to be discharged from the hospital in about three weeks, but it was later found that the attempted repair of the hernia was not entirely successful, and she was yet afflicted with it at the time of the trial.

Plaintiff claimed and testified that on her consultations with defendant before the first operation he had advised and told her a minor operation only was necessary to relieve her condition; that he had spoken of removing the ovaries, to which she objected, and she did not know they had been removed until after the second operation when he told her that both had been taken out, one at each operation. She claimed and testified that this was done against her express objection and entirely without her knowledge or consent; that she submitted to the first on his representation that it would be a small or minor operation to relieve the condition of her womb; that she did not even know it would be necessary to “cut her open,” or cut into the abdominal cavity; that the second operation was, as she understood and consented to it after consultation with the doctor, chiefly to repair the rupture, to which she consented ,only for that purpose, relying on his assurances; that after ascertaining what he had done and finding that he had failed to cure the rupture, though he offered to operate agáin for that purpose, she was afraid he would make it worse, and declined to again go to the hospital. Defendant claimed and testified she was fully advised of her condition and the nature of both proposed operations before they were performed; that her cas'e and condition were discussed and explained to her by him and his assistants, in the German language which she best understood; that she consented to both operations and to the removal of her ovaries as stated; nothing being done without her previous knowledge and consent. The testimony introduced at the trial was chiefly directed to the issue of her consent, and the necessity and propriety of the op.erations, and the court submitted to the jury in a full and careful charge the question whether or not the operations as performed, including removal of the ovaries, were consented to by plaintiff, positively instructing that if she did not understand and consent, she was entitled to recover, saying in part as follows:

“In this case, and in any case of an operation, the consent of the person operated upon is essential to justify the party operating in the performance of such operation, and regardless of how successful the operation may have been, how successfully performed, or how much such operation may have been needed, unless consent was given, it is an unlawful operation, and the party operating is liable for whatever damages may have resulted therefrom, according to the testimony in the case. And this consent must be with knowledge and understanding of the operation itself. If you find that the consent of the plaintiff at the time of the first operation was given for the treatment of the uterus only, and at the second operation for the repair of the hernia only, and that she did not consent to the operation for the removal of one of the ovaries at the first, and the other at the second, operation, and that the defendant did remove the ovaries at the time stated, then the consent to- the operation for the cleaning of the uterus the first time and the consent to the operation to repair the hernia at the second time, cannot excuse the defendant for the performing an operation for the removal of the ovaries. In other words, consent must be given to the operation made. * * * If, on the contrary, you find that the consent was given understanding^ by the plaintiff, to the operations in question, and that they were performed under that consent, it is your duty, if you find that from the testimony, to return a verdict in this case of not guilty.”

Plaintiff submitted five requests covering the subject of consent, damages, etc. Omitting repetitions, the charge clearly covered the material parts of the first four; the fifth was as follows:

“If you find that the operation was performed as claimed by the plaintiff against her consent, you will, under the circumstances stated by her, allow her exemplary or added damages because of the wantonness, carelessness, and disregard of plaintiff’s wishes and rights.”

This request became immaterial in view of the verdict rendered by the jury that the operation was not against plaintiff’s consent. The court also instructed the jury as follows:

“The question is not raised in this case by testimony that has been given from the stand,' as to any lack of skill in the performance of the operation in question. That is not before you. There is no charge in the testimony that these operations were not skillfully performed. * * * In this connection, however, gentlemen of the jury, it is your duty to take into consideration, as bearing upon the question of whether or not consent was given. And I admitted for your consideration the testimony * * * of experts who were not there, to testify as to the probability and need of an operation of the character that was admittedly made. These matters you are to take into consideration as bearing upon the probability or nonprobability of the plaintiff having consented to the operation in question. * * * They have a bearing upon the question, and it is your duty to consider them.”

Plaintiff moved for a new trial, claiming the verdict was against the weight of evidence and assigning numerous other reasons, the chief ground of complaint around which the others appear to center being directed to the portion of the charge last quoted, and the conduct of the trial leading up to that proposition, which is perhaps best exemplified in the following excerpt from the motion:

“Because the question of whether the defendant was guilty of malpractice, or merely negligent, or lacked skill, in his failure to heal and cure plaintiff, as alleged in the declaration, should have been submitted to the jury, under the testimony; and the court in charging the jury gave them a wrong impression of what issues were involved; and put plaintiff on the defensive, by implication, that because she had not used proper diligence, she had not been healed, and therefore was not entitled to damages, when in truth she had gone to defendant twice for this purpose; that she had suffered for over one year under defendant’s care, from a hernia he had produced but could not heal; these facts tending to show malpractice, lack of skill, or negligence on the part of defendant.”

It does not appear that the verdict was against the great weight of evidence on the issues submitted to the jury under the rules recognized in determining motions for a new trial on that ground. That the nature of her trouble and the probable necessity of removing her ovaries was explained to and discussed with her is shown, we think, by her own testimony, for she stated she told him she did not want them taken out. The testimony of defendant and Dr. Andrees, who assisted in the operation, is positive and clear in detail that the matter was fully discussed with her and explained in language which she could understand; that in discussing the matter she was told, with the rest and care which had been given her in the hospital, she was in a fair condition to go home if she wished, and if she grew worse she could return; that the following day she decided upon having the operation, and the matter was explained to her again, the condition of her right ovary being particularly discussed, after which she consented to its removal; that she fully understood the occasion of the second operation was to remove the left ovary which had been found diseased and functionless on the first operation and should have been, but was not, then removed, because she had not fully consented, and submitted to the second for that purpose, telling defendant to do what was necessary for her to get well. We see no occasion to disturb the verdict of the jury on the issue of consent.

We find it difficult to reconcile the position taken and claims made by plaintiffs counsel during the progress of the trial with the present contention that the court, in charging the jury, gave a wrong impression' of what issues were involved and, as implied, ignored plaintiffs claim of “malpractice, lack of skill, or negligence on the part of defendant” because “he had pro-, duced, but could not heal,” a herilia. Plaintiffs requests to charge were based on the claim that the two operations were unauthorized, and did not ask instructions upon or submission to the jury of the questions of malpractice or unskillful treatment. During the progress of the trial and in argument of the law to the court at the close of the testimony counsel for plaintiff made no claim of right to recover on the ground of malpractice or lack of skill, and objected to evidence offered by defendant which might tend to negative such claim. Dr. Carstens, a practitioner of medicine for many years, a specialist in diseases of women and chief of staff in that branch of practice in Harper Hospital, was called as an expert by defendant, and during his examination was asked whether from his experience he considered a hernia such as was disclosed in this case evidence of malpractice or unskillfulness on the part of the surgeon, and plaintiff’s counsel objected to the question as immaterial, irrelevant, and incompetent, to which the court said: “In what way is it immaterial? You charge that it was the result of unskillfulness” — and counsel replied:

“ ‘Malpractice’ is the word he used in the question. In view of the fact that our declaration does not cover malpractice, there is no evidence in the case of that sort, and I think it is immaterial.”

When counsel were discussing the legal phases of the case to the court at the close of the evidence, counsel for defendant said:

“During the progress of the trial of this case I have understood, by statements of counsel for the plaintiff, that they were claiming in this case for damages for the performance of an operation not authorized by the plaintiff, and that they were not claiming anything on the ground of malpractice or want of care in the performance of the operation.”

And in answer to remarks of the court that he had understood there was no question as to skillfulness or lack of skillfulness in the operation, counsel for plaintiff said in part:

“I don’t claim that there was; we have a declaration here that is clear, if it is understood — this declaration is clear if it is understood. I don’t think Dr. Repp made any mistake in the manner in which he handled his knife that day. We have no proof that he did anything wrong there. So I cannot go to the jury on that. I claim that it was his duty to advise the plaintiff of the nature and effect of the operation. * * * If that is his duty, we are entitled to go to the jury on that point, provided we have the testimony, and we have the testimony on that point. He advised her to have a minor operation and so forth. That is trespass upon the case, if we show those facts. He performed a major operation, more serious than the one he told her he would do. This is trespass on the case, not trespass. * * * He performed an operation without her knowledge and consent. Now, here is the only difference between Judge Lockwood and I in this case. I do not think that we have proven that he was unskillful in the handling of his knife; there is no testimony of that. * * * Our allegation is that the case of hernia was brought on by an unnecessary operation. He should keep her advised as to what he was going to do.”

The question of plaintiff’s understanding of and consent to the two operations having been submitted to the jury and decided in the affirmative, no other question could have arisen in the nature of the case under plaintiff’s declaration but that of negligent malpractice, and if that could, in any aspect, be considered as before the court after counsel’s statement of his position, it must necessarily relate to the post-operative hernia which had developed, of which ocular demonstration appears to have been made. In other words, counsel for plaintiff now contends and claims to have insisted during the trial, but to have been misunderstood by the court and opposing counsel, that, having the requisite skill, learning, and experience in his profession, defendant carelessly and negligently failed to apply and exercise the same in operating upon and caring for plaintiff, as a result of which a hernia followed the operation. This, of course, would be negligent malpractice, and counsel distinctly stated to the court on the trial, “our declaration does not cover malpractice.” Assuming that in so stating counsel only intended to disclaim as to ignorant malpractice, or lack of knowledge and skill, and that the questions of carelessness and neglect were before the court even though there was consent to the operations, we fail to discover competent evidence in the record to raise that issue for the jury. The complaint is of the result of the operation, with no expert testimony pointing to anything done which ought not to have been done, or to any particular thing neglected which ought to have been done which honest and intelligent skill, treatment, and vigilance in that profession ordinarily demands in such a case.

The difficulties and uncertainties in the practice of medicine and surgery are such that no practitioner can be required to guarantee results, and all the law demands is that he bring and apply to the case in hand that degree of skill, care, knowledge, and attention ordinarily possessed and exercised by practitioners of the medical profession under like circumstances (Pelky v. Palmer, 109 Mich. 561 [67 N. W. 561]; Miller v. Toles, 183 Mich. 252 [150 N. W. 118]); and the bare fact that full recovery does not result, or that a surgical operation is not entirely successful, is not in itself evidence of negligence.

As to those matters of special knowledge strictly involving professional skill and attention, unskillfulness, negligence, or failure to do that which ought to be done must be shown by the testimony of those learned in such matters. In Wood v. Barker, 49 Mich. 295 (13 N. W. 597), the rule as to competent evidence in this class of cases is stated as follows:

“Where all the testimony in the case is in favor of the treatment pursued, and the question is one of medical skill which can only be tested by those familiar with such matters, it was error to let the jury draw adverse conclusions,. which could only be based on their unprofessional notions of how such injuries should be treated.”

The same principle is clearly reiterated m the late case of Miller v. Toles, supra.

None of the physicians and surgeons called as a witness, whether testifying from personal knowledge and observation or as an expert in answer to hypothetical questions based upon assumed facts of which there is distinct evidence in the record, questioned the necessity and propriety of the operations performed and the care and treatment given plaintiff by defendant, nor expressed any opinion that the post-operative hernia was attributable to want of skill or negligence. It was shown by Drs. Brady and Carstens, surgeons-and specialists in gynecology of long experience, that the operations as described were necessary and properly performed; that post-operative hernias following such abdominal operations are liable to develop, and no physician can tell why or when it may happen in any particular case. Dr. Carstens, in answer to a hypothetical question based upon the testimony as to her condition, said:

“If in the condition you describe, I should consider it necessary to remove it. Those cases are incurable; they continue to develop cysts; the cysts get larger. The average woman’s life with a cystic ovary is only two years and a half. The larger they get the more dangerous they are. For that reason we encourage an early removal, if we find that sort of a condition.”

Asked if from his experience he considered a hernia in this case any evidence of malpractice or unskillfulness on the part of the surgeon, he answered:

“I do not. * * * That can happen in any sort of a case, any kind of an abdominal operation, by any surgeon. * * * I don’t know anybody that has not had it happen some time or other. * * * It may happen all the time; we think about it and guard against it, but in spite of anything it happens occasionally.
“Q. Do you think this hernia could be repaired on her now?
“A. I think so, certainly. It could when I saw her last. I don’t know about it now.”

We find no testimony in the record contradicting this. Dr. Schorr, called by plaintiff, who treated her in 1908 and then found conditions which might by some be regarded as pointing to the necessity of an operation, testified that it was not possible to tell positively whether an ovary was diseased or encysted until an operation is performed, and in answer to a question based upon conditions found at the time of the operations in 1909 and 1910, said:

“If an ovary, is diseased it destroys its functions of reproduction. If an ovary is diseased it would not be of any value as a reproductive organ. An ovary in that condition would be better removed as far as the health and life of the patient is concerned. If a condition did exist as you have stated, I think the operation was necessary for the life of the woman. Sometimes when a woman is in a worn-down condition a wound will not heal as quickly as otherwise. I examined the hernia. I do not consider it a bad hernia for the reason that it could be repaired. * * * Simply cut through the skin and go down to where the muscles are that separate it and bring them together and pare the edges so that they will grow together and there would be a union. The principal membrane could be left intact, and you would not have to go into the abdomen at all. That is a common operation. Hernias are quite frequent.”

We are of opinion that the trial court committed no error in instructing the jury that if plaintiff understandingly consented to the operations in question, and they were performed under and according to such consent, there was no evidence in the case to sustain a recovery.

The judgment is affirmed.

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

The late Justice McAlvay took no part in this decision.