source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    HATCH v. WASHTENAW CIRCUIT JUDGE.
    Execution — Stay—Mandamus—Bonds—Statutes.
    Mandamus will not lie to compel a circuit judge to grant a stay of execution issued on a judgment rendered on November 2d, where the bond was not filed till December •5th following; section 23, chap. 22, of the judicature act (Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 12812), requiring such bond to be. filed within 20 days after the judgment is rendered.
    Mandamus by William B. Hatch to compel Edward D. Kinne, circuit judge of Washtenaw county, to vacate an order denying a stay of execution.
    Submitted January 11, 1918.
    (Calendar No. 28,283½.).
    Writ denied January 31, 1918.

      Hatch & Gillette, for relator.
   Per Curiam.

November 2, 1917, the plaintiff obtained a judgment against the defendant in the circuit court. On December 5, 1917, an execution was issued thereon. December 5, 1917, the defendant filed a bond for the purpose of staying the execution and petitioned the court to recall the execution. This the court declined to do, and defendant asks for a writ of mandamus to compel him to do so, relying upon the case of Peterson v. Wayne Circuit Judge, 108 Mich. 608.

The statute calling for construction is Act No. 314, of the Public Acts of 1915, chap. 22, § 23 (3 Comp. Laws 1915, § 12812), and reads:

“No stay of proceedings upon any verdict or judgment rendered in any circuit court in this State shall hereafter be granted or allowed for the purpose of moving for a new trial or settling a bill of exceptions * * * for a longer period than twenty days, unless the party applying for such stay, if judgment shall have been rendered against him, shall execute to the adverse party a bond,” etc.

A reference to the case cited shows it is not controlling.

The language of the statute is not ambiguous.' If the party seeking to appeal desired a stay of execution it was easy to get it by filing the requisite bond within the time fixed by the statute. Not having done so he is not entitled to have the execution recalled.

The application for the writ of mandamus is refused with costs.


author: Bied, J.

text:
    DETROIT, TOLEDO & IRONTON RAILROAD CO. v. WESTERN UNION TELEGRAPH CO.
    1. Contracts — Assignments—Personal Character.
    An executory contract between a railway company and a telegraph company to jointly construct, maintain, and operate a telegraph line along the railroad right of way for a term of years, was not necessarily personal in its character and could, consistent with the rights of the telegraph company, be assigned by the railway company to its successor and be by it specifically enforced.
    2. Same — Insolvency — Lack of Mutuality — Termination of Contract.
    Where plaintiff went into possession of the railway property, which was sold under foreclosure proceeding in the Federal court, and began to operate it with the aid of the telegraphic system, promptly electing to he bound by the terms of said contract, there was no lack of mutuality, although the Federal court gave plaintiff 90 days in which to disavow any contract of its predecessor.
    3. Same — Insolvency — Lack oe Mutuality — Termination oe Contract — Estoppel.
    It would he inequitable to permit defendant to terminate said contract on the ground of lack of mutuality because of the insolvency of plaintiff’s predecessor, and its passing into the hands of a receiver, where said question was not raised during the six years of the receivership, and not until after the mutuality had been restored by the substitution of a responsible party.
    4. Mortgages — Foreclosure—Contract Rights.
    Rights in property which are acquired subsequent to the attaching of a mortgage lien are extinguished by the foreclosure and sale of the mortgaged property; there being no privity of contract between the holder of the rights subsequently acquired and the purchaser.
    5. Contracts — Sale oe Assets — Transfer of Contract Rights.
    Where the decree of the Federal court contemplated that the interest of the mortgagee, the receiver, and the railway company should pass to the purchaser, and in pursuance thereof the transfers were executed by the master in chancery, the receiver, and the mortgagor railway company, the rights of said railway company in said contract which had passed to the receiver, were transferred to plaintiff, and are enforceable by a court of equity.
    Appeal from Wayne; Sullivan, J., presiding.
    Submitted June 18, 1917.
    (Docket No. 38.)
    Decided February 19, 1918.
    Bill by the Detroit, Toledo & Ironton Railroad Company against the Western Union Telegraph Company for the specific performance of a contract. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Stevenson, Carpenter, Butzel & Backus (Samuel R. Williams, of counsel), for plaintiff.

      Corliss, Leete & Moody (Albert T. .Bmedict, of counsel), for defendant.
   Bied, J.

The Detroit, Toledo & Ironton Railway Company, the predecessor of plaintiff, entered into a contract with defendant on the 29th day of August, 1906, which had for its object the construction, maintenance, and operation of a telegraph line along the right of way of the railway extending from the city of Detroit to Ironton on the Ohio river. In substance, this contract required the defendant telegraph company to furnish the poles, wire, and other materials for the construction of the line, and a foreman to direct its construction. It made it incumbent on the railway company to grant an easement over its right of way for the line, and to furnish the labor to construct, maintain, anckoperate the same, and to furnish office room at the several stations, in which to operate the system. The contract is specific as to' what each party shall furnish, pay for and receive, but we think it unnecessary to recite them in detail. The contract was to continue for a period of 25 years and longer unless one of the parties gave notice to terminate it. In pursuance of this , contract the work was done and the line operated. So far as the record shows the parties worked in harmony under the contract, and the railway expended upwards of $20,000 in discharging its obligations thereunder. In the year 1908 the railway found its way into the hands of a receiver by reason of the foreclosure of certain mortgages on its property. The receivership lasted about six years, during which time the receiver operated the railway and telegraph system and discharged the contract obligations of the railway company. At the expiration of this period the property was sold under the direction of the Federal court and purchased by plaintiff in March, 1914. Soon after taking possession thereof plaintiff was notified by defendant that it elected to terminate the contract on account of the foreclosure proceedings, and threatened to discontinue service and remove its line. To prevent defendant from carrying its threats into execution plaintiff filed this bill. At the hearing on the merits the trial court granted the relief prayed for in the bill, and defendant has appealed.

Plaintiff takes the position that the contract was a valid one, that the Detroit, Toledo & Ironton Railway Company had an enforceable interest therein, and that, having assigned' that interest to plaintiff, it can now be enforced in its behalf. The defendant contends that the contract was not assignable, that when plaintiff took possession of the railroad property by virtud of the foreclosure proceedings, the contract was at an end and afterward neither party could enforce it against the other. These contentions appear to raise the following questions:

(1) Was the contract assignable?

(2) Was the contract assigned?

1. The test of the assignability of an executory contract is laid down in Northwestern Cooperage & Lumber Co. v. Byers, 183 Mich. 534, as follows:

“That where an executory contract is not necessarily personal in its character, and can, consistent with the rights and interests of the adverse party, be fairly and sufficiently executed as well by the assignee as by the original contractor, and when the latter has not disqualified himself for the performance of the contract, it is assignable.”

This rule was followed in the recent cases of Voigt v. Heating Co., 164 Mich. 539, and the C. H. Little Co. v. Transit Co., 197 Mich. 481.

Applying this test to the contract under consideration, we find no difficulty in concluding that it falls within the class of contracts which are assignable. The so-called personal element which enters into it is very small. It is hardly conceivable that the particular corporation which happened to own the railway property at the time, or the personnel of its official force, influenced the defendant in any great degree to enter into the contract. We think it was rather the fact that the company owned a line of railway, had a right of way which extended from the city of Detroit to the Ohio river, and the density of population and traffic through which it passed, that moved the defendant to make the contract. It is difficult to suggest any reason why it should have refrained from entering into the contract had some other railway corporation owned the property. The contract was made to supply an essential element in the operation of the railroad and to aid defendant in extending its commercial telegraphic service into new territory. Counsel say that the personal element manifests itself in that part of the contract which makes the employees of the railway custodian of the funds received for the transmission of commercial messages. While a custodian of money involves a position of trust, and ordinarily would indicate a selection based on the honesty and responsibility of the custodian, it is not of much force in the present case as the contract does not appear to have been made by defendant with reference to any particular employee or employees who had been or would be. employed by the railway company. It had reference to the railway employees generally whose positions were subject to change. We think the contract was one which could be complied with as well by plaintiff as by its grantor because it had title to the railway property and therefore had it within its power to comply with its terms.

While the railway company became unable to carry out its contract on account of insolvency, its obligations thereunder appear to have been discharged by the receiver and no attempt was made by defendant to put an end to the contract during the period of receivership, nor did defendant attempt to take advantage of any right it may have had to terminate the contract until after the sale and the property had passed into the possession of plaintiff, a responsible party, against which the contract could be enforced. But it is argued that because the decree of the Federal court gave plaintiff 90 days in which to disavow contracts made by its predecessor, a period was thereby created in which defendant could not have enforced the contract, and in consequence thereof its mutuality passed out of it. While the decree gave to plaintiff this privilege it did not exercise it after the position of defendant was called to its attention, but instead it promptly elected to be bound by the terms of the contract. We think it is not going too far to hold that when plaintiff went into possession of the railway property and began to operate it with the aid of the telegraphic system without which aid it could not have been operated, it thereby elected to be bound by the contract. But aside from this consideration, it would be inequitable to permit defendant to avoid the contract because of a lack of mutuality when it did not raise the question until after its mutuality had been restored by the substitution of a responsible party.

2. Did the railway’s interest in the. contract pass to plaintiff? The contract with plaintiff’s predecessor was made subsequent to the mortgages which underwent foreclosure. We do not understand that it is contended that the rights of the railway in its contract were covered by the lien of the mortgages as after-acquired property. The decree of the Federal court providing for the sale and transfer, as well as the deeds and bills of sale transferring the same, contemplated that the interest of the mortgagee, of the receiver, and of the railway company should pass to the purchaser, and in pursuance of the request of the purchasers the transfers were executed by the master in chancery, by the mortgagees, by the receiver, and by the mortgagor railway company. If the railway’s interest in the contract was not covered by the mortgage it must have been an asset of the company which passed to the custody of the receiver and from him and the railway company to plaintiff under the deeds and bills of sale. But defendant contends that there was nothing to transfer, that the contract rights were extinguished by the foreclosure sale of the property, and in support of this contention much reliance is placed upon the case of Western Union Telegraph Co. v. Ann Arbor R. Co., 90 Fed. 379. This case was afterwards reversed by the Supreme Court on jurisdictional grounds (178 U. S. 239). But we think the opinion of the court of appeals may be accepted as good law. It goes no farther than to restate the rule that rights in property which are acquired subsequent to the attaching of a mortgage lien are extinguished by the foreclosure and sale of the mortgaged property, the reason being that there is no privity of contract between the holder of the rights subsequently acquired and the purchaser. Had plaintiff’s interest in the property been confined to the interest of the mortgagees which it acquired as purchaser at the foreclosure sale, the case would then be the same as the one cited. But the plaintiff acquired something in addition to that interest. It acquired the railway’s interest in the contract. Having thus acquired the mortgagee’s interest in the property and the railway’s interest in the contract, it stood in the same relation to the contract that its predecessor did. It seems to me that plaintiff was in the same position as though it had, before the receivership, purchased the interest of the mortgagees, and the interest of the railway company. Had it done so, under our view that the. contract is assignable, it cannot be questioned that plaintiff would have had an enforceable interest in the contract. Suppose the position of the parties were reversed and plaintiff was attempting to terminate the contract after having taken an assignment thereof from the railway company and after having purchased the railway property at the mortgage sale, and entered upon the operation of the railway property and telegraphic system, could the railway company succeed in its attempt by claiming it was not bound by the contract? We think not. Our conclusion is that plaintiff has an enforceable interest in the contract which was properly enforced by the decree of the trial court.

The decree will be affirmed.

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


author: Fellows, J.

text:
    MINTZ v. SOULE.
    Dismissal and Nonsuit — Common Law Right of Nonsuit — Statutes — Legislative Intent — Construction. '
    Act No. 200, Pub. Acts 1915, 3 Comp. Laws. 1915, § 14566, providing that whenever the defendant in any civil action shall have entered upon his defense in open court, the plaintiff shall not be allowed to discontinue or submit to nonsuit without defendant’s consent, construed, and held, to be the legislative intent that the act was not to affect the common law right .•£ a plaintiff to submit to a non-suit at any time before verdict is rendered in a case \ where.no witnesses were procured, no defense made on the facts, and only legal questions were raised, but was to apply where defendant had been to the expense and trouble of procuring witnesses, and had entered upon his defense in open court upon the merits.
    Error to Vfayne; Gage, J., presiding.
    Submitted June 22, 1917.
    (Docket No. 125.)
    Decided February 19, 1918.
    Assumpsit by Samuel Mintz against Elmer F. Soule and others upon an appeal bond. Judgment of non-suit for plaintiff. Defendants bring error.
    Affirmed.

      Dingeman & Schueler, for appellants.

      William, Henry Gallagher and Francis T. McGann, for appellee.
   Fellows, J.

This action is brought by plaintiff on the appeal bond given in the case of Mintz v. Soule, 182 Mich. 564.

Upon the trial in the circuit court the plaintiff introduced his proofs and rested. Defendants offered no testimony, but, having rested, made a motion for a directed verdict. This motion was argued, but before it had been finally decided plaintiff asked for a continuance, which was denied; he then asked leave to submit to a nonsuit, which was likewise denied, and a verdict for defendants was directed. Thereafter plaintiff made a motion for a new trial, which was refused. He then made a motion for the vacation of the judgment and for a judgment of nonsuit, which motion was granted, and defendants bring the case here. The trial court reached this conclusion upon the theory that the defendants had not entered upon their defense in open court within the meaning of Act No. 200, Pub. Acts 1915 (8 Comp. Laws 1915, §§ 14566, 14567).

While I entertain doubt as to the correctness of the trial court’s construction of this act, my brethren are’ all agreed that he reached the correct result; that the statute in question was designed to prevent a plaintiff from discontinuing his suit or submitting to a nonsuit without the consent of the defendant, where the defendant, who had been- to the expense and trouble of procuring witnesses, had entered upon his defense in open court by putting in his testimony upon the merits, and that the act was not intended to apply to those cases where no witnesses were procured, no defense made on the facts, and only legal questions are raised. At common law the plaintiff might submit to a non-suit at any time before verdict. Deneen v. Railway Co., 150 Mich. 235; Davis v. Railway, 162 Mich. 240. This practice has been sanctioned by long usage and is a protection against defeat through surprise and disappointment in proofs. This court entertains the view that it was not the legislative intent to modify this practice so long in vogue except as herein pointed out. ■ It follows that the judgment of nonsuit is affirmed.

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


author: Stone, J.

text:
    CAREY v. GRAND TRUNK WESTERN RAILWAY CO.
    1. Interstate Commerce — Master and Servant — Federal Employers’ Liability Act — Railroads—Jurisdiction.

      The decision of the Supreme Court of the United States that the entire subject of the liability of interstate railway carriers for the death or injury of their employees while employed in interstate commerce is completely covered by the Federal employers’ liability act (35 U. S. Stat. 65) is controlling in Michigan, rendering inapplicable the provisions of the Michigan workmen’s compensation act in such cases. New York Cent. R. Co. v. Winfield, 244 U. S. 147.
    2. Master and Servant — Workmen’s Compensation Law — Acceptance oe Act — Intrastate Commerce.
    Where claimant’s husband, a conductor, was accidentally killed while in charge of a freight train composed exclusively of cars containing interstate shipments, an award of compensation under the Michigan workmen’s compensation law was unauthorized, the Federal employers’ liability act (35 U. S. Stat. 65) having exclusive jurisdiction, notwithstanding defendant railroad company had filed its acceptance of the Michigan act, since it would apply to cases arising in intrastate commerce only; defendant being engaged in both interstate and intrastate commerce.
    Certiorari to. Industrial Accident Board.
    Submitted October 16, 1917.
    (Docket No. 154.)
    Decided February 19, 1918.
    Anna, Carey presented her claim for compensation against the Grand Trunk Western Railway Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Reversed.

      W. A. Geer and R. R. Weaver (H. Geer and W. 'K. Williams, of counsel), for appellant.

      John B. Mellwain, for appellee.
   Stone, J.

This case is before this court upon certiorari to the industrial accident board. The record contains the proceedings had before the committee oh arbitration, and an appeal from its decision to the industrial accident board.

The defendant and appellant is a common carrier railroad corporation, engaged in the business of intrastate and interstate commerce in this State and elsewhere. On July 11, 1916, Timothy J. Carey, while in the service of said railway company as conductor of a freight train, composed exclusively of cars containing interstate shipments, consisting of freight from Chicago and elsewhere outside of this State, to points within and beyond this State, and consignments received at various points in Michigan, and destined for points beyond its boundaries, sustained an injury by tripping and falling over a semaphore wire, strung along the railroad track at the Lansing, Mich., station, from which injuries it was claimed that consequences developed causing his death on November 9th following.

The appellant in September, 1912, had filed with the industrial accident board of Michigan a written statement to the effect that it elected to accept the provisions of the Michigan compensation act, which was approved by the board, and the company was permitted to carry its own risk. After the death of Mr. Carey, his widow, Anna Carey, presented a claim against the railway company, seeking an adjustment of the matter according to the terms of the Michigan workmen’s compensation act. The appellant declined in writing to settle the claim as presented, upon the ground that Mr. Carey, at the time of the accident, was engaged in interstate commerce. The plaintiff thereupon filed an application for adjustment of claim, and a hearing was had before an arbitration committee under the said act. The evidence introduced by both parties disclosed that Mr. Carey, and the railway train upon which he was employed as conductor at the time of the accident, were engaged in interstate commerce. The committee awarded compensation, and an appeal was taken to the board, which found that Mr. Carey was engaged in interstate commerce at the time of the accident, and further that the award of the committee on arbitration should be affirmed, and entered an order accordingly.

In this court appellant relied upon the proposition that the accident upon which plaintiff’s claim is based did not occur within the jurisdiction covered by the Michigan compensation act, and the question is raised by proper assignments of error. It is urged by appellant that the Michigan workmen’s compensation act, by its own terms, expressly excludes cases of this nature from adjudication by the industrial accident board. Section 4, pt. 6, of Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5491), reads as follows:

“The provisions of this act shall apply to employers and workmen engaged in intrastate commerce, and also to those engaged in interstate or foreign commerce, for whom a rule of liability or method of compensation has been or may be established by the congress. of the United States, only to the extent that their mutual connection with intrastate work may and shall be clearly separable and distinguishable from interstate or foreign commerce, except that any such employer and any of his workmen working only in this State, may, subject to the approval of the industrial accident board, and so far as not forbidden by any act of congress, voluntarily accept and become bound by the provisions of this act in like manner and with the same force and effect in all respects as is hereinbefore provided for other employers and their workmen.”

It is also urged by appellant that this record fails to disclose the existence of a contractual obligation purporting to require, adjustment of the present claim upon the basis of the Michigan act, but that, did one exist, it would be quite, unenforceable, as opposed to all the principles announced by the Federal decisions, and the following cases are cited: Grand Trunk R. Co. v. Knapp, 233 Fed. 950; Waters v. Guile, 234 Fed. 532; New York Cent. R. Co. v. Winfield, 244 U. S. 147 (Am. & Eng. Ann. Cas. 1917D, 1139); Erie R. Co. v. Winfield, 244 U. S. 170. In the Knapp Case Judge Knappen, referring to the section of the Michigan statute above quoted, said:

“By séction 4, part 6, of the act, its provisions are made to apply to employers and workmen engaged in intrastate commerce, but not to those engaged in interstate commerce, ‘for whom a rule of liability or method of compensation has been or may be established by the congress of the United States/ except to the extent that ‘their mutual connection with intrastate work may and shall be clearly separable and distinguishable from interstate or foreign commerce.’ There is also provision for express and voluntary acceptance of the act by ‘any such employer and any of his workmen working only in this State/ if done with the approval of the industrial accident board.”

The position of the plaintiff is stated in the supplemental brief of her counsel as follows:

“At the time the workmen’s compensation act was passed the Federal employers’ liability act had been in force four years, by which the employer was liable to the employee in an action at lav/ for all injuries received in the line of employment as the result of negligence chargeable to the employer, and in which the common-law defenses of fellow servant, contributory negligence and assumption of risk were taken away. Under this act, however, negligence was essential to recover, and in all cases where negligence could not be shown the employee was without remedy. This was not deemed a sufficient measure of justice to employees. The unquestioned intent and purpose of the legislature in enacting the workmen’s compensation law was to provide a remedy for all injured employees, which legislation was prompted by a universal public demand that such a measure of compensation should be provided, and the cost of it should be borne by the employer the same as any other expense incurred in carrying on his business. Congress had taken a step in that direction, but it was- restricted and inadequate. With the intent and purpose of providing moderate compensation for all injured employees the workmen’s compensation law was enacted leaving it optional, however, with the employer to accept or reject its provisions as he saw fit. The liability of the employer under the Federal act was then an existing remedy for a limited class of cases, but one over which the legislature had no power, or control whatsoever. Any legislation enacted by the State must be in subordination to it.”

In our opinion the question before us is settled by New York Cent. R. Co. v. Winfield, supra, unless a distinction can be made between the New York workmen’s compensation act (Consol. Laws, chap. 67) and ours. In .that case the United States Supreme Court held that the entire subject of the liability of interstate railway carriers, for the death or injury of their employees, while employed by them in interstate commerce, is so completely covered by the provisions of the Federal employers’ liability act of April 22, 1908, as to prevent any award under the New York workmen’s compensation act, where an employee was injured or killed without fault on the railway’s part, while he was engaged in interstate commerce, although the Federal act- gives the right of recovery only, when the injury results in whole or in part from negligence attributable to the carrier. In other words, it was there held that by the Federal act, congress manifested its will to cover the whole field of compensation or relief for injuries suffered by railroad employees engaged in interstate commerce, or at least the whole field of obligation of carriers relating thereto; and that it thereby withdrew the subject wholly from the domain of State action.

The doctrine announced is that by the Federal legislation employees of an interstate railroad company are not within the purview of a State workmen’s compensation act. This doctrine is reiterated in the Erie R. Co. Case. There the New Jersey statute was under consideration. The question presented included whether, by reason of the State statute, the carrier became bound contractually to make compensation, even though it came within the Federal act. Speaking of that statute the court said:

“Unless * * * a notice from one party to the other contain ‘an express agreement in writing,’ to the contrary, it ‘shall be presumed’ that the parties ‘have agreed to be bound’ by this part of the statute. There was no express agreement in this instance and there is no basis for regarding the carrier as in any way bound by this part of the statute save as it provides .that an agreement to be bound by it shall be presumed in the absence of a declaration to the contrary. But such a presumption cannot be indulged here, and this for the reason that by the Federal act the entire subject, as respects carriers by railroad and their employees, in interstate commerce, was taken without the reach of State laws. It is beyond the power of any State to interfere with the operation of that act, either by putting the carriers and their employees to an election between its provisions and those of a State statute, or by imputing such an election to them by means of a statutory presumption.”

But it is said that the workmen’s compensation act of New York, being compulsory upon the employer, renders the Winfield Cases inapplicable here. We are unable to agree with this contention. The Michigan act applies to intrastate transportation. It was not therefore inconsistent with its present contention for the Grand Trunk Western Railway Company to accept the provisions of the Michigan compensation act. Many cases might arise in intrastate business where the workmen’s compensation act would apply. New York Cent. R. Co. v. White, 243 U S. 188 (L. R. A. 1917D, 1 Am. & Eng. Ann. Cas. 1917D, 629), was such a case. There it was held that White was engaged in intrastate commerce. It was said that the test was:

“Was the employee at the time of the injury engaged in interstate transportation, or in work so closely related to it as to be practically a part of it?”

And that question was answered in the negative, and the State board’s award was affirmed.

In New York Cent. R. Co. v. Winfield, supra, Justice Brandéis, in an exhaustive dissenting opinion, covers the field of police regulation. We speak of this to show that the whole subject was before the court and was considered in all aspects. The doctrine of the majority opinion is that the action of congress was paramount and exclusive of State action. We call attention to the phrase, “and so far as not forbidden by any act of congress,” contained in section 4 of the Michigan act, above quoted. May it not be said that congress by occupying the field by its legislation has thereby forbidden the States to legislate upon the subject? In the language of Justice Van Devanter:

“In such a case, the legislation of congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be any further legislation to act upon the subject-matter. Its silence as to what it does not do is as expressive of what its intention is as the direct provisions made by it.”

,In this view there is no conflict between the State and Federal legislation; and we can agree with counsel for the plaintiff that:

“The whole scheme of the workmen’s compensation act discloses an intent on the part of the legislature to avoid invasion of the Federal jurisdiction or any conflict with the Federal law, and to keep within the scope of legislative authority. And it must be presumed that the legislature did not intend by the language used to abrogate, nullify, suspend, or to in any manner interfere with the liability created by the Federal law. It must be presumed it did not intend to do that which it had no authority to do.”

This court has spoken upon the general proposition that the Federal employers’ liability act is exclusive and paramount in regulating the relations of employers and employees engaged in interstate commerce. Fernette v. Railroad Co., 175 Mich. 653, 674; Gaines v. Railway Co., 181 Mich. 376; Holmberg v. Railway Co., 188 Mich. 605. In our opinion the Winfield Cases are as controlling under the Michigan workmen’s compensation act as under the New York act, and that they settle conclusively for all American jurisdictions the question that employees of an interstate carrier, engaged in interstate business, are not within the jurisdiction of the State workmen’s compensation acts.

It follows that the order of the industrial accident board must be reversed.

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


author: Moore, J. Ostrander, C. J.

text:
    WILLIS v. OSCAR DANIELS CO.
    1. Master and Servant — Death—Master’s Liability — Assumption of Risk — Common Law.
    Where a carpenter, who 'had charge of the crew of men engaged in putting up and taking down forms in which concrete was poured, and who saw, or could have seen, in the exercise of ordinary care, just what the situation was, was killed by a fall, there could be no recovery from the master under the common law.
    2. Same — Workmen’s Compensation Law — Applicability — Common-Law Defenses — Actionable Negligence.
    Whether the workmen’s compensation law (Act No. 10, Extra Session 1912, 2 Comp. Laws 1915, § 5423 et seq.) is applicable or not, before a master, who has not signified his intention of coming under the provisions of the law, can be held liable for the accidental death of a servant in' his employ, actionable negligence on the part of the master must be proven.
    3. Constitutional Law — Master and Servant — Workmen’s Compensation Law- — Jurisdiction oe State Over Land Ceded to United States.
    Although section 1, art. 1, of the Constitution of Michigan, declares the State has jurisdiction over the territory embraced within its boundaries, described therein, land ceded by Act No. 17, Pub. Acts 1881, to the United States for St. Mary’s Falls ship canal, lying within said boundaries, reserving to the State only the right to serve process in civil and criminal actions, is not subject to the operation of the State workmen’s compensation act, passed in 1912 (Act No. 10, Extra Session 1912, 2 Comp. Laws 1915, § 5423).
    4. Master and Servant — Workmen’s Compensation Law — Jurisdiction — Statutes—Proviso—Construction.
    The proviso in Act No. 17, Pub. Acts 1881, ceding ,to the United States land for St. Mary’s Falls ship canal, held, to be for the purpose of providing that there should be no neutral territory where civil and criminal process might hot be served, and is no authority for the contention that, in the absence of legislation upon the subject by congress, the legislature of Michigan might legislate upon the subject of employers and employed, rendering the provisions of the workmen’s compensation law operative over the ceded lands.
    Error to Chippewa; Fead, J.
    Submitted October 3, 1917.
    (Docket No. 4.)
    Decided February 23, 1918.
    Case by Flora Willis, administratrix of the estate of John Willis, deceased, against the Oscar Daniels Company for the negligent killing of plaintiff’s intestate. Judgment for defendant non obstante veredicto. Plaintiff brings error.
    Affirmed.

      McDonald & Kaltz, for appellant.

      Davidson & Hudson, for appellees.
   Moore, J.

This case is brought to recover damages for the death of the husband of the plaintiff. He was employed by defendant from the last of July, 1915, to October 20,1915, when he was instantly killed by a fall. Defendant was engaged on a construction contract for the United States government in connection with St. Mary’s Falls ship canal. It was conceded the injury occurred on lands belonging to the-United States government and included in the strip of land described in Act No. 17, Public Acts of Michigan for 1881.

At the close of plaintiff’s case defendant moved for a directed verdict, which motion was overruled. This motion was renewed at the close of the testimony and the motion was reserved under the statute. The case was submitted to the jury and a verdict rendered for the plaintiff in the sum of $3,600.

In disposing of the motion reserved the trial judge filed a written opinion from which we freely quote:

“The question was reserved under Act Nov 217, Pub. Acts 1915 ■ (3 Comp. Laws 1915, § 14568), the cause was submitted to the jury upon the theory that the common-law defenses were not available to defendant because of the provisions of the workmen’s compensation act (Act No. 10, Extra Session 1912, 2 Comp. Laws 1915, § 5423 et seq.), and the plaintiff had verdict.
“The question reserved depends upon the determination of what was in force at the place of the injury. The defendant was engaged in cement construction work, under contract with the United States, on the fourth lock of the St. Mary’s Falls ship canal at Sault Ste. Marie. It was conceded that the injury occurred on lands belonging to the United States government by cession from the State of Michigan to the United States under the provisions of Act No. 17 of the Public Acts of 1881. * * *
“The St. Mary’s Falls ship canal was for many years immediately succeeding the admission of Michigan as a State, a source of considerable, controversy between the State and National governments. The State always viewed the project as of national importance and concern and consistently and persistently sought to induce the general government to build the canal or to defray the cost thereof. After many failures, the efforts of the State finally met with success and in 1852 congress granted to the State the right of
“ ‘Locating a canal through the public lands, known as the military reservation at the falls at Saint Mary’s River in said State; and that four hundred feet of land in width extending along the line of such canal be, and the same is hereby granted, to be used by said State, or under the authority thereof, for the construction and convenience of such canal, and the appurtenances thereto, and the use thereof is hereby vested in said State forever, for the purposes aforesaid, and no other.’
"To cover the cost of construction, congress granted to the State 750,000 acres, of the .public lands. 10 Stat. at Large, 35, chap. 92.
"This grant was. accepted by the State with all its conditions and restrictions on February 5, 1853. Act No. 38, Laws 1853. The construction of the canal was provided for by the same act and it was finally completed. * * *
"By Act No. 39, Laws 1873, it was provided:
“ ‘That the jurisdiction of this State is hereby ceded to- the United States of America over all such pieces or parcels of land as are required and selected by the United States for the enlargement and improvement of the Saint Mary’s Falls ship canal. * * *
“ ‘And this cession is upon the express condition that the State of Michigan shall so far retain jurisdiction with the United States in and over the tracts aforesaid, that all civil and criminal process issued under the authority of this State, or any officer thereof, may be executed on said lands, and in the buildings that may be erected thereon, in the same manner as if jurisdiction had not been ceded as aforesaid; and all crimes committed on said territory shall be cognizant by the State courts as though this act had not been made.’
“The financial condition of that part of the canal under the control of the State having finally become satisfactory, congress authorized the secretary of war to accept on behalf of the United States from the State, the Saint Mary’s canal and the public works thereon; whereupon the State authorized the board of control of the canal to transfer the ‘canal and public works thereon, with all its appurtenances and all the right and title of the State of Michigan in and to the same, to the United States in accordance with’ the provisions of the act of congress authorizing the secretary of war to accept the same. The cession was upon the express condition:
“ ‘That the State of Miehigan shall so far retain concurrent jurisdiction with the United States, over the Saint Mary’s Falls ship canal, and in and over all lands acquired, or hereafter acquired, for its use; that all civil or criminal process issued by any court of competent jurisdiction, or officers having authority of law to issue such process, and all orders made by such court, or any judicial officer duly empowered to make such orders, and necessary to be served upon any such person, may be executed upon said Saint Mary’s Falls ship canal, its lands, and in the buildings that may be erected thereon, in the same way and manner as if jurisdiction had not been ceded as aforesaid.’ Act No. 17, Pub. Acts 1881.
“It appears that the State was not the fee owner of the premises upon which the canal was constructed but had only a defeasible title to a right of way. Prior to the grant of 1853 the National government had set the land apart for public purposes as a military reservation and had contested the right of the State to even cross the reserve without permission. It was ‘supposed to be withdrawn from plenary local jurisdiction.’ Ryan v. Brown, 18 Mich. 207. The grant of the right of way established the jurisdiction of the State over the premises but the claims which had been made may possibly account for the restricted reservation of jurisdiction upon the cession of the canal back to the United States, in 1881.
“The specific question to be determined is whether the cession by the State to the United States under the act of 1881 vested the civil jurisdiction in the United States or whether it still rests in the State. If jurisdiction is still in the State, the compensation law of 1912 is. in effect over the premises and the defendant is not entitled to maintain the common-law defenses. If jurisdiction is in the United States, those defenses are open to it, and, under the proofs, would require the entry of a judgment non obstante veredicto.
“By Art. 1, Sec. 8, subd. 17, of the Constitution of the United States, congress is given power
“ ‘To exercise exclusive legislation in all cases whatsoever over such district * * * as may * * * become the seat of government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock yards, and other needful buildings.’
“The mere citation of this provision does not settle the question. * * •*
“The rights of the respective governments must depend upon the effect of the statutes by which the State ceded the land and jurisdiction to the United States. In this connection counsel for plaintiff contends that jurisdiction was not acquired by the United States because the cession of the canal was not for a purpose within the specified purposes of the Constitution; citing Mayor, etc., of New Orleans v. United States, 10 Pet. (35 U. S.) 662, 737, where the court used this language:
‘“Special provision is made in the Constitution for cession of jurisdiction from the States over places where the Federal government shall establish forts and other military works. And it is only in these places, or in the Territories of the United States, where it can exercise a general jurisdiction.’
“The later cases and the contemporaneous construction of the constitutional provision by the legislature of the States do not sustain the dicta above quoted that the jurisdiction of the United States can obtain only in forts and other military works and in Territories; nor do they sustain the contention of plaintiff’s counsel that a basic distinction is drawn in the Constitution between lands devoted to the ‘private’ purposes of the government, such as forts, arsenals, etc., and those devoted to its ‘public’ purposes and used for the benefit of the general people, such as canals; and that in the latter exclusive jurisdiction cannot be vested in the United States. The general term, ‘other needful buildings,’ following the specific words, ‘forts, magazines, arsenals, dock yards,’ has not been given the restricted construction usually applicable to statutes, that general words following specific words are confined to the same class as those specifically set up.
“Exclusive jurisdiction under proper cession, has been sustained in the following instances: A National home for disabled volunteer soldiers, Foley v. Shriver, 81 Va. 573; Sinks v. Reese, 19 Ohio St. 306; postoffiees and Federal court houses, State v. Mack, 23 Nev. 365; customs houses, Sauer v. Steinbauer, 14 Wis. 70; cemeteries, Wills v. State, 50 Tenn. 141.
_ “The legislature of this State has many times indicated its understanding of the purposes for which exclusive jurisdiction may be ceded to the Federal government. Thus, usually with the reservation of jurisdiction to serve process and sometimes with a reservation of criminal jurisdiction, the State has ceded jurisdiction to the United States in the following instances, * * * and, as allied with the canal in question, oyer lands of the Hay Lake channel in St. Mary’s River, Act No. 104, Pub. Acts 1889; and numerous other lands, note to 4 How. Stat. _(2d Ed.) § 10151.
“The term ‘other needful buildings’ as used in the Constitution, has thus been given a broad rather than a restricted interpretation by the courts and our legislature. * * * .
“No court of last resort seems to. have passed upon the precise question here involved but the only judicial authority cited held that canal locks and dams are within the meaning of the constitutional term ‘needful buildings.’ United States v. Tucker, 122 Fed. 518.
“In view of the unanimity of the legislative and judicial authority it must be held that the St. Mary’s Falls ship canal is property over which the State may cede and the United States acquire and exercise exclusive legislative jurisdiction. * * *
“In the Act No. 17, Pub. Acts 1881, instead of retaining concurrent general jurisdiction, as claimed by plaintiff, the State retained concurrent jurisdiction only in so far that civil or criminal process or court orders may be executed upon the canal lands in the buildings thereon in the same way and manner as if jurisdiction had not been ceded. This condition and reservation have no effect upon the cession of legislative authority and do not reserve to the State” any jurisdiction other than to serve its process on the lands. * * *
“It is further contended that the laws of the State of Michigan continue to operate over the ceded territory inasmuch as congress has passed no further law extinguishing the State’s authority. Were the workmen’s compensation law in effect at the time of the cession of the canal in 1881, that law would undoubtedly govern the liability of the master for torts done to the servant upon such premises so long as congress did not take action. Laws in force in ceded territory continue in force until changed by the new sovereign. Chicago, etc., R. Co. v. McGlinn, 114 U. S. 542; Barrett v. Palmer, 135 N. Y. 336 (17 L. R. A. 720); American Ins. Co. v. Canter, 1 Pet. (26 U. S.) 511.
“These decisions, however, do not sustain the proposition that statutes taking effect after the cession will be in force in the ceded territory. Crook v. Hotel Co., 54 Fed. 604. * * *
“In the case at bar, the question is not one of power over subjects or departments of legislation but is one of territorial jurisdiction. After the cession of property and jurisdiction over it, that property is not a part of the State nor subject to its laws. The same contentions here made were urged in the case of Western Union Tel. Co. v. Chiles, 214 U. S. 274, where it was held that a statute of Virginia imposing a penalty for the nondelivery of a telegram had no force within the limits of the Norfolk navy yard, jurisdiction over which had been ceded to the United States prior to the enactment of the law imposing the penalty. This case, moreover, disposes of plaintiff’s contentions regarding the United States not being interested in the present litigation and that the operation of the State law in no way affects the purpose for which land or jurisdiction was ceded. See, also, Western Union Tel. Co. v. Brown, 234 U. S. 542; Kaufman v. Hopper, 151 App. Div. (N. Y.) 28.
“The plaintiff further contends that the United States is not in possession of the premises but that defendant is in possession under authority from the Federal government and. consequently State laws apply, citing Barrett v. Palmer, 135 N. Y. 336. That was a case where jurisdiction had been ceded by the State of New York over lands belonging to the United States and used and occupied as a navy yard. The grant contained the provision that:
“‘The United. States may retain such use and jurisdiction as long as the premises described shall be used for the purposes for which jurisdiction is ceded and no longer.’
“Thereafter, the Federal government leased a portion of the property to the city of Brooklyn for market purposes. The action was brought to recover damages for an unlawful ouster from the possession of two stands in such market. The New York court held that the State courts had jurisdiction because as nothing had
“ ‘been done by congress to displace the laws of this State and the jurisdiction of its courts in regard to private rights and remedies with respect to the lands ceded for the purpose of a navy yard, in Brooklyn, these matters remain unaffected by the act of cession.’
“The Supreme Court of the United States in Palmer v. Barrett, 162 U. S. 399, affirmed the decision but did not adopt the reasoning. It held that the lease to the city was a violation of the condition of cession and so long as it remained in force, the exclusive authority of the United States was suspended. The court expressly refrained from deciding what would have been the effect of the lease had the reservation clause above quoted not been in the act of cession.
“In the case at bar there is no such reservation nor lease of possession. The defendant, if it may be said to be in possession of the fourth lock, is in possession only as a contractor for the United States, engaged in constructing work directly pertinent to the purpose of the cession, and it is always subject to the inspection, supervision and control of government engineers. There is no exclusive possession given it for its own benefit, nor has the government abrogated any of its rights of control. Moreover, the mere fact that the lock is not completed or that it may not be in actual use as an operating lock nor that the whole canal may not be directly used in the work of navigation would not oust the jurisdiction of the United States. Benson v. United States, 146 U. S. 325.
“Act No. 17 of the Public Acts of 1881, therefore, especially when read in connection with Act No. 39 of the Laws of 1873, operated to cede to the United States exclusive jurisdiction over the land conveyed to them by such act. It is fundamental that the cession of territory by one sovereignty to another extinguishes the jurisdiction of the former except as to reservations. The reservation of the right to execute civil and criminal process in the ceded lands merely emphasizes the character of the cession and reserves no other right to the State of Michigan. In re Ladd, 74 Fed. 31; State v. Mack, 23 Nev. 365, and other cases above cited. In consequence of such jurisdiction vesting in the Federal government, the laws of the State of Michigan, enacted after the cession, are not applicable to the case at bar.
“The defendant was, therefore, entitled to maintain the common-law defenses and inasmuch as those defenses would 'preclude recovery, under the facts, the defendant is entitled to have judgment, notwithstanding the verdict.”

A judgment was entered accordingly which is reviewed here by writ of error.

The questions involved from the viewpoint of the appellant are:

1. Does the workmen’s compensation act of Michigan govern the relations of employer and employee respecting injury, or death, to an employee sustained in the course of employment on- work being done for the Federal government under contract, and on land ceded by the State to the United States for commerce purposes, but which land is within the State of Michigan?

2. Regardless of the application of the workmen’s compensation act, should the verdict of the jury in plaintiff’s favor stand?

Taking up the last of the questions first:

The record disclosed that Mr. Willis had worked as a carpenter for several years. He had worked on the contract which defendant had with the government from July until in October. He had charge of a crew of men in putting up and taking down forms like the one upon which he was at work when killed, in which concrete was poured. There is some conflict as to whether the form was being taken down or was being built higher when the accident occurred, but there is no conflict upon the question of whether the deceased saw . or could have seen in the exercise of ordinary care just what the situation was. If the litigation is controlled by the common law it was the duty of the trial judge, upon the record made, to direct a verdict for the defendant under many cases decided by this court, some of which are Beesley v. F. W. Wheeler & Co., 103 Mich. 196; Pilucki v. Spring Works, 117 Mich. 111; Nephew v. Whitehead, 123 Mich. 255; Livingstone v. Plate Glass Co., 146 Mich. 236; Strepanski v. Plaster Co., 162 Mich. 696; Scendar v. Copper Co., 169 Mich. 665; Fryezynski v. Leather Co., 171 Mich. 113; Poirier v. Lumber Co., 182 Mich. 678.

Returning to the first question presented by appellant, namely, that of jurisdiction. Before entering upon its discussion we think it well to say that even conceding that the employer’s liability law is operative over the place of the accident, we think it doubtful if the record discloses a case of actionable negligence on the part of the employer.

In support of the claim that the workmen’s compensation act of Michigan applies to the facts in this case, appellant calls attention to section 1, article 1, of the Constitution of Michigan, which reads: ■

“The State of Michigan consists of and has jurisdiction over the territory embraced within the following boundaries” (and then the boundaries are described) .

The contention is made that because of this and the proviso contained in the act of 1881 the State retains the right to legislate about matters relating to internal, municipal, and local affairs, and particularly over the rights and remedies of persons in their private transactions, such as between employer and employee. We quote from the brief:

"We submit it most certainly does include such legislative jurisdiction. If this is so, could the legislature cede, grant or relinquish this jurisdiction, even though we agree (and we do not) to the interpretation placed upon the act of cession by the trial court?
“It is fundamental that the legislature of the State may not enact any legislation that contravenes an express or necessarily implied provision of the Constitution. The people of the State of Michigan through their Constitution have said that their State “has jurisdiction over the territory” involved in this case. This, we have said, necessarily includes legislativo jurisdiction over the matters stated and like matters, and such as the one involved here. Could the legislature, therefore, by any enactment limit, restrict, cede, or grant away this legislative jurisdiction?
“Moreover every person, firm, private and public corporation employing labor is subject to the provisions of Act No. 10, Public Acts of 1912 (Special Session), known as the workmen’s compensation law. If they elect to come under the act, they must pay compensation for injuries or death of employees sustained in the course of employment. If they do not elect to come under its provisions they are barred from interposing the defenses commonly called the common-law defenses. The defendant is a private corporation operating within the State of Michigan, and nowhere by the provisions of the act is it * * * excluded from its provisions.”

Counsel lay great stress upon the following cases which they claim support their contention: Barrett v. Palmer, 135 N. Y. 336; In re O'Connor, 37 Wis. 379; Fort Leavenworth R. Co. v. Loewe, 114 U. S. 525, and Chicago, etc., R. Co. v. McGlinn, 114 U. S. 542. Other authorities are also cited which may be found by referring to the brief of counsel. A reference to the cases cited show each of them to be distinguishable from the instant case.

We quote from Fort Leavenworth R. Co. v. Loewe, supra:

“These authorities are sufficient to support the proposition which follows naturally from the language of the Constitution, that no other legislative power than that of congress can be exercised over lands within a State purchased by the United States with her consent for one of the purposes designated; and that such consent under the Constitution operates to exclude all other legislative authority.
“But * * * where, therefore, lands are acquired in any other way by the United States within the limits of a State than by purchase with her consent, they will hold the lands subject to this qualification: that if upon them forts, arsenals, or other public buildings are erected for the uses of the general government, such buildings with their appurtenances as instrumentalities for the execution of its powers will be free from any such interference and jurisdiction of the State as would destroy or impair their effective use for the purposes designed. Such is the law with reference to all instrumentalities created by the general government. Their exemption from State control is essential to the independence and sovereign authority of the United States within the sphere of their delegated powers. But when not used as such instrumentalities, the legislative power of the State over the places acquired will be as full and complete as over any other places within her limits.”

In each of the cases cited it will be found either that there was an express reservation of jurisdiction, as in the case from which we are quoting, or as in the case of Barrett v. Palmer, supra, the land was not used for the purpose for which it was ceded.

After all is said, the instant case must be decided upon the construction put upon the following, contained in the act of 1881:

“Provided, that this cession is upon the express condition that the State of Michigan shall so far retain concurrent jurisdiction with the United States over the Saint Mary’s Falls ship canal, and in and over all lands acquired or hereafter acquired, for its use; that any civil or criminal process issued by any court of competent jurisdiction, or officers having authority of law to issue such process, and all orders made by such court, or any judicial officer duly empowered to make such orders, and necessary to be served upon any such person, may be executed upon said Saint Mary’s Falls ship canal, its lands, and in the buildings that may be erected thereon, in the same way and manner as if jurisdiction had not been ceded as aforesaid.”

Does this mean, as contended.by appellant, that, in the absence of legislation by congress, the legislature of Michigan may legislate upon the subject of employers and employed and have the legislation as effective over the ceded lands as though there had been no cession of the lands? If, though the lands were ceded in 1881, the legislature may make effective in 1912 an employers’ liability law, where is the limitation upon legislative authority? May it fix the hours of labor and thus indirectly affect the contracts which the Federal government may be able to make in relation to the construction of locks and other governmental work? Such a construction of the proviso would be exceedingly embarrassing to the general government and we think is untenable. See United States v. Cornell, 2 Mason, 60; United States v. Tucker, 122 Fed., at p. 521, and the many cases cited there; Benson v. United States, 146 U. S. 325. Other authorities are found in the brief of the appellee.

The jurisdiction, reserved was for the purpose of providing there should be no neutral territory where civil and criminal process might not be served.

Judgment is affirmed, with costs to the defendant.

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

Ostrander, C. J.

It is said in the opinion of Justice Moore:

“Returning to the first question presented by appellant, namely, that of jurisdiction. Before entering upon its discussion, we think it well to say that, even conceding that the employers’ liability law is operative over the place of the accident, we think it doubtful if the recprd discloses a case of actionable negligence on the part of the employer.”

I am in doubt as to the meaning, and, given any meaning, the significance of the last-quoted sentence, and- express no opinion upon the point stated. I concur in affirming the judgment.


author: BIRD, J.

text:
    MT. CLEMENS SUGAR CO. v. GRAND TRUNK RAILWAY CO.
    1. Railroads — Demurrage—Question for Jury — Directed ' Verdict.
    In an action against a railroad company fob the recovery of demurrage charges paid under protest by plaintiff, the owner of a beet sugar - factory, under threat of withdrawal of defendant’s switch engine and crew in case of refusal, where the evidence was conflicting as to whether delay in unloading cars during the free time allowed by the law was occasioned by plaintiff or defendant, the issue was properly submitted to the jury, and the court below was not in error in refusing to direct a verdict for defendant.
    2. Same — Appeal and Error — Trial—Instructions.
    Refusal of the trial court to instruct the jury that the switching service on plaintiff’s spur' track was “plant switching,” for which defendant was not liable, was not prejudicial to defendant, where the court in his instructions withdrew from their consideration the question of damages arising from defendant’s failure to switch the cars after they were placed on plaintiff’s spur; such instruction being in accordance with defendant’s contention, it was immaterial whether denominated “plant switching” or “terminal switching.” *

      3. Same.
    Nor could defendant complain of the court’s instruction (that defendant had the right to assess demurrage upon cars consigned to plaintiff which were held at nearby stations, upon its road, because of plaintiff’s inability to handle them; said instruction being in accordance with defendant’s contention.
    4. New Trial — Issues—Overwhelming Weight of Evidence.
    Where the issues of fact were submitted to the jury under proper instructions, defendant’s motion for a new trial on the ground that the verdict for plaintiff was against the overwhelming weight of the evidence was properly refused.
    Error to Wayne; Van Zile, J.
    Submitted June 12, 1917.
    (Docket No. 37.)
    Decided March 1, 1918.
    Rehearing denied June 20, 1918.
    Assumpsit by the Mt. Clemens Sugar Company against the Grand Trunk Railway Company for demurrage charges paid under protest. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      L. C. Stanley (Geer,t Williams & Martin, of counsel), for appellant.

      Thomas A. E. WeadocJc (John C. Weadock, of counsel), for appellee.
   BIRD, J.

Plaintiff owns and operates a sugar factory near Mt., Clemens which is connected with defendant’s railroad system by means of a spur track about two miles north of Mt. Clemens. During the sugar making seasons of 1906-7, 1908-9, 1909-10, 1911-12, plaintiff, under threat of being deprived of the switch engine and crew, paid certain demurrage charges under protest to defendant, amounting to nearly $20,000. It was claimed that these charges should not have been demanded because plaintiff was not responsible for the delay in unloading the cars during the free time allowed by law, but that the fault lay with defendant because of its failure to “spot” the loaded cars at the plant and withdraw the empty ones. It was also claimed that defendant’s failure in this respect was due to its inadequate yard and track facilities at Mt. Clemens, together with its lack of suitable locomotive power and insufficient rolling stock. Defendant denied these contentions and asserted that plaintiff’s failure to release the cars was due to the fact that it ordered more cars shipped at one time than its capacity could take care of, and as a result there were loaded cars awaiting delivery at Mt. Clemens, Milwaukee Junction, Durand, and other nearby stations. Upon this issue of fact much testimony was taken tending to establish the conflicting claims. The question was submitted to the jury and they found the fault lay with defendant, and assessed plaintiff’s damages at the sum of $18,334.02. Defendant has removed the proceedings to this court for review, claiming that the trial court was in error because of its refusal to direct a verdict in its behalf.

1. Plaintiff, to establish its contention, showed that its daily capacity was from 35 to 40 cars of beets; that its tracks would hold 159 cars, and that if defendant had had sufficient trackage to have stored the consigned cars and taken care of the empties, there would have been little or no delay in unloading them; that defendant’s track facilities at Mt. Clemens consisted of a single main track, a passing track three-quarters of a mile in length, a team track which would hold not to exceed 40 cars, and a private siding which it used holding 18 cars; that its track and yard facilities in these years were no greater than they were 30 years ago when Mt. Clemens was much smaller and the traffic much less than at the present time. It was further shown that the spur track to plaintiff’s factory connected directly with the main line track instead of with the siding, and this was the cause of much delay on the part of the switching crew, as they were obliged to wait, in the clear, the passing of 16 regular, besides several extra, trains each day. It further appeared that the lack of trackage compelled defendant to store loaded cars.at Milwaukee Junction, Durand, and other nearby stations, and as a result the beets could not be delivered to the factory fast enough to keep the plant supplied. There was much more testimony along this same line which tended to show that defendant was in fault for failure to deliver the cars at the plant when needed.

On the other hand, testimony was offered tending to discredit some of plaintiff’s testimony in this regard, and other testimony tending to show that the cars were delivered as rapidly as plaintiff could take care of them. The testimony presented a clean-cut question of fact, and was such that the jury might have determined it either way. Counsel’s contention that a verdict should have been directed for defendant on this issue, in the face of this testimony, is not easily understood. We shall simply have to dispose of it by saying we disagree with them.

2. Counsel argue that the trial court was in error in refusing to instruct the jury that the switching service on the spur which plaintiff counts upon as not having been performed or properly performed was “plant switching” for which defendant was not liable. The interstate commerce commission has drawn a distinction between “plant switching” and “terminal switching,”' holding that the former is outside of the contract of the carrier, and, therefore, unlawful as a rebate, while the latter is within its contract of carriage (14 I. C. C. 237-246). This distinction has been discussed by the Federal courts. See Los Angeles Switching Case, 234 U. S. 294. Much controversy was indulged in at the trial as to whether the switching service on the spur at the plant, which was contracted for and rendered by'defendant, was “plant switching” or “terminal switching.” The declaration filed in this case covered a wide range of recovery. It was framed to recover for the demurrage paid under protest; for diverting cars of beets to other sugar factories; for the value of beets frozen and rotted by reason of delayed deliveries; for the wages of servants who were idle because of failure to deliver cars promptly, and for the failure of defendant to promptly switch the cars at the plant. At the close of the testimony the trial court was of the opinion, for various reasons which need not be herein recited, that but one question should be submitted to the jury, and that was the question of damages occasioned by a failure to deliver cars to the spur or exchange track, and the jury were expressly instructed that no damages arising by a failure to switch the cars, after they were placed on the spur should be allowed, as will be shown by the following excerpt:

“I think, gentlemen of the jury, that there is no question but that in this case this railroad company was not obliged to do this switching in the yard of the complainant of these cars, and that whatever was done was volunteered, and that the complainant cannot find fault with reference to that or require it; and that the failure of the company, if there was any failure, and I may not say that there was, if there was any failure that that cannot be considered in this case by you, this failure to do this switching. So no claim of delay can be made on this ground.”

We refrain from any comment as to the correctness of this instruction, but refer to it solely for the purpose of showing that the trial court instructed the jury in accordance with defendant’s contention. In view of this elimination by the court we can see no occasion for discussing the question as to whether switching service on the spur and at the plant should be denominated “plant switching” or “terminal switching.”

3. A considerable portion of the demurrage charge accrued on cars held at Milwaukee Junction, Durand, and other nearby stations. Plaintiff contended that demurrage could not be properly charged until the cars arrived at Mt. Clemens. Defendant insisted this was a proper charge if the cars were held at these stations because plaintiff could not handle them. The trial court took defendant’s view and charged the jury in part that:

“The defendant company had the right to assess demurrage upon cars consigned to plaintiff which were held at Milwaukee Junction, Durand, or any station upon its road, because of the plaintiff’s inability to receive and dispose of them at the factory, and was not called upon to wait until it had brought said cars to Mt. Clemens before charging demurrage upon the same.”

As the trial court agreed with counsel in this contention, it will receive no further consideration.

4. It was urged upon a motion for a new trial that the verdict was against the overwhelming weight of the testimony. The issue of fact was submitted to the jury as favorably to defendant’s case as the proofs would permit, and we think the conclusion reached by them is amply justified by the record. The record is quite persuasive that the real difficulty lay in the lack of terminal facilities of defendant at Mt. Clemens, and in the fact that the switching crew had to use the main track for switching purposes which would have been unnecessary had plaintiff’s spur been connected with the siding. Had it been so connected switching operations could have gone forward while main line trains were passing. The application for a new trial upon this ground was properly overruled.

The judgment must be affirmed.

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


text:
    PEOPLE, ex rel. BROWN, v. PARSONS.
    1. Municipal Corporations — Charter—Construction—Absurdity.
    A section of a city charter will not be given a literal construction, where such construction would lead to a manifest absurdity.
    2. Elections — Lansing Charter — Construction—Intent — Members of City Council — Eligibility as Candidates.
    Section 53 of the charter of the city of Lansing, .providing that “No member of the city council shall, during the period for which he was elected, be elected or appointed to, or be competent to hold, any office or position or receive any employment directly or indirectly connected with the city government,” construed, and heXd, to be the intent to prevent the holding of two offices by one man at the same time, and the holding by one man of a second office during the period of the term of his first office, and not to disqualify aldermen from succeeding themselves or from being elected to the office of mayor or city treasurer for the term succeeding their terms as aldermen.
    Certiorari to Ingham; Collingwood, J.
    Submitted March 13, 1918.
    (Calendar No. 28,333.)
    Decided March 13, 1918.
    Mandamus by the people of the State of Michigan, on the relation of William C. Brown, prosecuting attorney of Ingham county, to compel Judson A. Parsons, clerk of the city of Lansing, to remove certain petitions from his files and to refrain from placing certain names upon the official ballot for city offices. Judgment for relator.
    Respondent brings certiorari. Reversed.

      Cummins & Nichols, Edward Cahill, and Walter S. Foster, for relator.

      Joseph H. Dunnebacke, City Attorney, Jason E.

      Nichols, Frank L. Dodge, and Warner & Raudabaugh, for respondent.
   Per Curiam.

Certiorari to mandamus. The learned circuit judge held that under the provisions of section 53 of the charter of the city of Lansing certain aldermen were disqualified to succeed themselves in office by election, and that certain other members of the council were disqualified to be elected to the office of mayor and of city treasurer; The charter provision is as follows:

“No member of the city council shall, during the period for which he was elected, be elected or appointed to, or be competent to hold any office or, position or receive any employment directly or indirectly connected with the city government.” * * *

Given a literal construction this section of the charter leads to the manifest absurdity that the moment a citizen was elected a member of the city council, he would thereupon become disqualified to hold the very office to which he had been elected. It is obvious that the legislative body (in this case the people) had no such intention, but that their purpose was to provide against the same evils which, brought about the adoption of section 7 of article 5 of the Constitution of the State. This section has been repeatedly construed by this court, notably in the case of Fyfe v. Kent County Clerk, 149 Mich. 349, and in Murtha v. Lindsay, 187 Mich. 79.

We are of opinion that the evils sought to be remedied by the enactment of the legislation in question were the holding of two offices by one man at the same time, and the holding by one man of a second office during the period of the term of his first office. Given this construction, the provision in question affords the protection sought.

The order of the lower court is reversed.


author: Ostrander, J. Ostrander, C. J.

text:
    HENDRICKSON v. HARRY.
    On Rehearing.
    1. Witnesses — Competency—Husband and Wipe — Divorced Wipe — Alienation op Affections.
    In an action by a husband for the alienation of his wife’s affections, the divorced wife was a competent witness as to acts of physical violence by plaintiff toward her, and her feeling toward, and affection for, him; the action not being instituted in consequence of adultery. 3 Comp. Laws 1915, §§ 12551, 12555.
    2. Same — Appeal and Error — Evidence.
    In such action, where the trial court, following a colloquy between court- and counsel, stated he understood the divorced wife was offered as a witness for the purpose of showing acts of physical violence, and plaintiff’s counsel made no suggestion that the court misunderstood the offer, the Supreme Court, on appeal, will regard the incident as an offer made and denied to prove assault upon the wife by plaintiff.
    3. Same — Husband and Wipe — Evidence—Admissibility.
    The divorced wife, being a competent witness, generally, Is subject to cross-examination like any other witness, except that she may not testify as to communications between herself and husband during coverture.

      4. Husband and Wipe — Alienation of Affections — Damages.
    The mere fact that a husband and wife are not, for a period, on friendly terms, is no excuse for an outsider to interfere in their domestic relations, although the real injury he may do may he less than where happy family relations are destroyed..
    Error to Houghton; O’Brien, J.
    Submitted April 10, 1917.
    (Docket No. 131.)
    Decided September 27, 1917.
    Resubmitted March 5, 1918.
    Former opinion reversed March 27, 1918.
    Case by William Hendrickson against Absalom Harry for the alienation of his wife’s affections. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Galbraith & McCormack (J. F. Hambitzer, of counsel), for appellant.

      Burritt & Burritt, for appellee.
   Ostrander, J.

In December, 1915, plaintiff’s wife filed her bill for a divorce in the circuit court for the county of Houghton, in chancery, and in June, 1916, a decree of divorce was entered in said cause, which recites that it satisfactorily appeared that the material facts charged in the bill were true. Among the facts charged in the bill are the following: Shortly after marriage, the husband began to drink liquors to excess, and in October, 1910, while the parties were living in Superior, Wis., and from then to July, 1911, he on divers days and times beat, struck, kicked, and choked his wife'and neglected to furnish her necessary food and clothing. About November 1, 1910, he came home drunk and assaulted his wife; a police officer interfering in his pastime of beating her. On Christmas Eve, 1910, he came home drunk, and assaulted and beat his wife, knocked her down, kicked her, and threatened to kill her. In the spring of 1911, while she was ill and confined to her bed and under care of a physician, he refused to supply fuel for heat, or any provision or sustenance, and she was dependent upon charitable neighbors for food and necessary attention. He gave her a beating July 4, 1911. He was much of the time a loafer, requiring his wife to work as waitress in hotels and restaurants; he using the money she earned for drink." He habitually used in her presence obscene and profane language, and called her vile names. She left him July 5, 1911, going to the home of her parents, where she thereafter resided, and where she was when she filed her bill for divorce. In her bill she describes herself as Senja Hendrickson. She states therein that there has been no issue as the result of the marriage, and she gives the date of marriage as October 14, 1909.

Plaintiff filed his declaration in the cause at bar November 6, 1914, alleging marriage to Hilma Hendrickson, “his present wife,” February 28, 1908; alleging further that he always enjoyed her respect, love, affection, and society until defendant’s wrongdoing, which began about August 1, 1913, and consisted of attention, protestation of respect and affection for his wife, and other arts and wiles, had the effect of destroying and alienating the affection which his wife had for him, depriving him of her society, comfort, and aid. The record advises us that upon a trial of the issue joined in this cause a verdict for $1,500 for plaintiff was returned, and that a judgment was entered on the verdict. The errors assigned by defendant are:

'“(1) The court erred in permitting the plaintiff to testify, under objection, that he had heard from other people that they, had seen Hilma Plendrickson with Harry; it being an indirect way of corroborating plaintiff without legal proof.
“(2) The court erred in that, after Ellen Juntinen testified she had never been in the house of ill fame in Hancock and never had pleaded guilty to being a prostitute, the attorney for the defendant, upon cross-examination of said Ellen Juntinen (formerly Ellen Lake), propounded the following question: ‘Did Gust Wickstrom ever take you out of Madge Beital’s house in South Range?’ To which the attorney for the plaintiff objected, and his objection having been sustained by the court as being incompetent and improper.
“(3) The court erred in not permitting the defendant to show physical acts of violence committed by the plaintiff, against his wife, Hilma Hendrickson, before the commencement of this suit.
“ (4) The court erred in holding that the testimony of Hilma Hendrickson showing her state of mind and affection at the time of the beginning of the acts complained of August 1, 1918.”

The fourth assignment is without meaning unless words are supplied; the third and first lack precision, although they may be aided by reference to the exception upon which they are based. No comment is made by counsel upon the difference in the dates set up in the bill for divorce, which was received in evidence, from the dates testified to upon the trial, although it is apparent that, if the dates in the bill are correctly given, the wife had separated from her husband some two years before defendant’s alleged misconduct began.

1. Plaintiff was testifying, had been cross-examined, and had admitted that he had called his wife a whore. On redirect examination, he said he called her that because “I see her with Harry.” He was asked if he had heard from other people that they had seen her with Harry, and answered, “Yes.” Objection was made (the question having been answered) that the testimony was incompetent. His counsel suggested that, as affecting plaintiff’s conduct, what he had heard was competent, the court said, “Restrict it to that purpose,” no other ruling was made, and defendant excepted. As counsel for both sides left the matter at this point, it may be assumed, I think, that the ruling made amounted to this: The testimony was not competent to prove that any one else had seen plaintiff’s wife and Harry together; but, plaintiff having been told that others had seen them together, the fact explained plaintiff’s conduct towards his wife. If we .assume, also, that the jury understood the matter in this way, the ruling, though of doubtful propriety, cannot be treated as reversible error. In the connection in which it was given, the testimony really amounts to nothing.

2. Plaintiff produced as a witness Mrs. Ellen Juntinen, who gave testimony tending to prove that defendant sought to rent of her rooms to be occupied. by himself and plaintiff’s wife two or three nights a week. On cross-examination the witness had said she had been arrested once, with Hendrickson, the case being dismissed, they having been brought to jail Saturday night, where they remained until Monday- morning; that she had never pleaded guilty to being a prostitute, but between her first and second marriage she had had a child. She admitted knowing Gust Wickstrom, a night watchman in Hancock. She was asked:

“Q. Did Gust Wickstrom ever take you out in Madge Bietila’s house in South Range?”

To this the court sustained an objection, and defendant excepted. In argument it is said:

“The testimony has her in company of Hendrickson on different occasions. There is testimony to the effect that she bore a bad reputation, and she gave some damaging testimony to assist Hendrickson, and therefore we contend that- it was competent to show, if we could, that she was taken from a house of ill fame and was a prostitute therein, as bearing upon her credibility and also as bearing upon the relations between her and Hendrickson.”

That the purpose of the question was the one stated in argument is not made clear by the question. If the declared purpose had been served by an answer, it is not clear that Hendrickson’s relations with this woman affected at all the conduct of Hendrickson’s wife. How far cross-examination of this nature shall proceed is to be determined by the trial judge in the exercise of judicial discretion, and it is not made to appear that discretion was in this instance abused. The rule was recently restated in People v. Cutler, 197 Mich. 6.

3. The third assignment of error is made somewhat certain and specific by the exception, from which and the record context it appears that the offer made was to prove, by the wife, herself, acts of physical violence of the plaintiff, and her state of mind and affection for the plaintiff at the time of the beginning of the alleged wrongs complained about by plaintiff. The testimony was excluded. In this connection attention is called to the language of the offer, or of One offer, to prove which contains the recital that she was shown by the record to be “the divorced wife of the plaintiff.” The record shows that the trial began on April 27, 1916, that judgment was rendered April 28, 1916, and that the decree of divorce was made June 8, 1916. The statement of facts made by counsel for appellant gives the date of the divorce as June 8, 1916. It would appear, therefore, that when offered as a witness she was the wife of the plaintiff. Yet counsel for appellant discusses at some length the subject of the effect off divorce upon the competency of husband or wife to testify in relation to confidential communications. The court ought not to be required to discover at its peril, or the peril of litigants, the points presented for decision. I think we must treat the subject as though she was both wife and witness, and, as counsel have done so, we must proceed as though no charge of adultery or criminal conversation was directly or indirectly involved. The statute (3 Comp. Laws, § 10213, 3 Comp. Laws 1915, § 12555) is:

“A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent, * *
* nor shall either, during the marriage or after-wards, without the consent of both, be examined as to any communication made by one to -the other during the marriage.”

The wife is not a party to this suit; the husband is a party. The offer was to examine her as a witness against him, without his consent. The statute forbids it. Had the maritál relation ended when the testimony was proposed, a different question would have been presented. See (the point, however, not appearing to have been raised) Derham v. Derham, 125 Mich. 109 (83 N. W. 1005). In People v. Marble, 38 Mich. 117, the marriage relation had ended when the husband gave his testimony. See, generally, Perry v. Lovejoy, 49 Mich. 529 (14 N. W. 485).

4. What has been said disposes, also, of this point.

The judgment is affirmed, with costs to appellee.

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

On Rehearing.

Ostrander, C. J.

This cause was submitted at the April term, 1917. An opinion went down September 27, 1917, which may be found reported ante, 42. The judgment was affirmed. The action is for damages for alienating the affections of plaintiff’s wife; the recovery was substantial. At the trial the defendant called as a witness Hilma Hendrickson, who was sworn and gave her name. The record shows the following matter:

“Mr. Burritt: Now, I desire at this time, if your honor pleases, to make an objection to this witness testifying to any fact or alleged fact, circumstances as it occurred or took place between her and her husband and this defendant during the time they were living together as husband and wife., I call the court’s attention to that so that if there should be any inquiry made—
“The Court: I think I’ll excuse the jury.
"(Jury retired from the court room).
"(Argument on objection by Mr. Galbraith).
“Mr. Burritt: The plaintiff objects to the witness, who was the wife of the plaintiff down to the date it appears by the records that the decree of divorce was granted, and objects to her testifying as to any communication made by her to her husband at that time or by her husband to her and base the objection on next to the last subdivision of the statute.
“The Court: I will sustain that objection as to the communications but Mr. Galbraith admits that they are not admissible, but he is going to offer, as I understand it, to show acts of physical violence committed by the husband against the wife before you began your action. What have you to say about that?
“Mr. Burritt: I object to it, and I don’t see how you can show acts of physical violence. If she is a witness and narrated physical acts she would be prohibited from cross-examination.
“The Court: I think I will sustain that.
“Mr. Galbraith: I’ll make a further offer to show by the witness, Hilma Hendrickson, who is shown by the record to be the divorced wife of the plaintiff, William Hendrickson, her state of mind and affection at the time, planted as the time of the beginning of the wrong complained of, namely, the 1st of August, 1913.
“Mr. Burritt: We object to that as incompetent.
“The Court: I think I’ll sustain that objection. It - seems to me that if she testified to her state of mind it would be impossible to make such a cross-examination in fairness to this plaintiff without going into their marriage relations. I think it falls- under the same objections, and I will sustain it. I think you have a point there that is certainly worthy of consideration.”

It is assigned as error:

“ (1) The court erred in permitting the plaintiff to testify, under objection, that he had heard from other people that they had seen Hilma. Hendrickson with Harry, it being an indirect way of corroborating plaintiff without legal proof.
“(2) The court erred in that after Ellen Juntinen testified she had never been .in the house of ill-fame in Hancock and never had pleaded guilty to being a prostitute, the attorney for the defendant, upon cross-examination of said Ellen Juntinen (formerly Ellen Lake) propounded the following question: Did Gust Wickstrom ever take you out of Madge Beital’s house in South Range? To which the attorney for the plaintiff objected, and his objection having been sustained by the court as being incompetent and improper.
“(3) The court erred in not permitting the defendant to show physical acts of violence committed by the plaintiff against his wife, Hilina Hendrickson, before the commencement of this suit.
“ (4) The court erred in holding that the testimony of Hilma Hendrickson showing her state of mind and affection at the time of the beginning of the acts complained of August 1st, 1913.”

In the former opinion these alleged errors were considered, but upon the record then presented were ■•considered as. though the record showed the witness to be the wife of plaintiff at the time she was offered as a witness. Later this court was moved to remand the record and grant a rehearing, the ground being that by inadvertence the record in another divorce suit, begun by another woman named Hendrickson, had been returned with the writ of .error instead of the record actually put in evidence. The motion to remand was granted and the record has been amended. The motion for rehearing was granted. The cause is now before us upon the corrected record,' which shows that a decree of divorce was. signed and filed June 7, 1915, while the trial of the instant cause was begun April 27, 1916.

Upon this record the only question to be determined is whether the testimony of the divorced wife is competent to prove any of the things embraced in the offer made by counsel. In this connection, counsel for appellee say that there was no offer made to prove that plaintiff assaulted his. wife or otherwise offered her physical violence, that the suggestion in this behalf came from the court in the colloquy above set out. But it will be noticed that argument preceded the statement made by the court, the details of which argument are not set out, and that at the time it was not suggested by counsel for appellee that the court misunderstood the offer or that no such offer had been made. On the contrary, counsel for appellee made objection as to a specific offer to the competency of the witness and his objection was sustained by the court. Under the circumstances this court will regard the offer as made and denied.

The applicable statutes in force when the cause was tried, 3 Comp. Laws 1915, §§ 12551, 12555, read as follows:

“ (12551) Sec. 63. No person shall be excluded from giving evidence in any matter, civil or criminal, by reason of crime or for any interest of such person in the matter, suit, or proceeding in question, or in the event of such matter, suit or proceeding, in which such testimony may be offered, or by reason of marital or other relationship to any party thereto; but such interest, relationship, or conviction of crime, may be shown for the purpose of drawing in question the credibility of such witness, except as is hereinafter provided.”
-“(12555) Sec. 67. A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent, except in suits for divorce and in cases of prosecution for bigamy, and where the cause of action grows, out of a personal wrong or injury done by one to the other, or grows out of the refusal or neglect to furnish the wife or children with suitable support, and except in cases of desertion or abandonment, and cases arising under act one hundred thirty-six of the Public Acts of nineteen hundred five, relating to marriage, and cases where the husband or wife shall be a party to the record in a suit, action, or proceeding, where the title to the separate property of the husband or wife so called or offered as a witness, or where the title to property derived from, through or under the husband or wife so called or offered as a witness, shall be the subject matter in controversy or litigation in such suit, action or proceeding, in opposition to the claim or interest of the other of said married persons, who is a party to the record in such suit, action or proceeding; and in all such cases, such husband or wife who makes such claim of title, or under or from whom such title is derived, shall be as competent to testify in relation to said separate property and the title thereto without the consent of said husband or wife, who is a party to the record in such suit, action or proceeding, as though such marriage relation did not exist; nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage, but in any action or proceeding instituted by the husband or wife, in consequence of adultery, the husband and wife shall not be competent to testify.”

According to the letter of the law the witness Hilma Hendrickson was a competent witness for the defendant except that she could not testify to communications made by herself to her husband and by him to her during their marriage, this action being treated by counsel for both parties as not being one instituted in consequence of adultery. It is said for plaintiff, appellee, that if she is permitted to answer as to her feeling towards and affection for him, the real reason for her state of mind at the time must be developed by cross-examination, which it is obvious cannot be conducted without inquiry into the domestic relations; that

“Had she been permitted to testify that at said time she had lost her affection for her husband, the question would at once arise as to why she had lost her affection for him. Had she been permitted to testify that she lost her affection for her husband on account of his acts of physical violence against her, the cause of such acts of physical violence would necessarily have to be inquired into. In any event, it would be impossible to cross-examine the witness so as to show the real reason for her loss of affection for the plaintiff, without going into their marriage relation.”

It must be held that the divorced wife was a competent witness, generally, for the defendant — and for that matter for the plaintiff — and it appearing that no objection was made that the offer to prove was too broad, no suggestion made that it should be more specific, it is held that the court should have permitted the examination to proceed until testimony was called for which she was not competent to give. What questions may be asked her cannot be anticipated, nor can this court upon this record lay down any rules for the trial court beyond the.one above stated. The witness will be subject to cross-examination like any other witness, and her credibility and the weight of her testimony will be for the jury.

It is to be remembered, too, that the mere fact that a husband and wife are not for a period on friendly terms does not furnish an excuse for the interference into the domestic relation of an outsider, although the real injury he may do may be less than when a tranquil, happy family life is destroyed.

The judgment is reversed, with costs to appellant.

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