text:
    CITY OF KALAMAZOO v. PERRIN.
    1. Municipal Corporations — Kalamazoo Charter — Paving—Taxation — Special Assessment District.
    Where the charter of the city of Kalamazoo required that “When any special assessment is to be made pro rata upon the lots and premises in any special district according to frontage or benefits, the city council shall by resolution direct the same to be made by the city assessor and shall state therein the amount to be assessed and whether according to frontage or benefits, and describe or designate the lots and premises or locality constituting the district to be assessed,” a resolution “That the city assessor is hereby authorized and directed to make a special assessment roll containing a description of the property adjacent to the streets so improved as contained in said resolution and between the points hereinafter mentioned, and to be benefited by the improvement so made, and to assess against said property the amount of benefit according to benefits as follows: (describing, among others,'premises involved). The foregoing special assessment being a portion of the cost of paving on said streets to be paid by the abutting property benefited thereby,” was a sufficient compliance therewith to sustain the assessment.

    2. Appeal and Error — Repavement—Concession.
    Where the trial judge in his opinion stated that “it was not only conceded but claimed by counsel for both parties that the improvement in question was reconstruction and repavement and not repair,” and counsel does not deny that said concession was made, the question as to whether said work was repavement or only repair is not open to review in this court.
    3. Municipal Corporations — Repairs—Repavement—Assessment District — Estoppel—Kalamazoo Charter.
    The payment of the cost of repaving a street in the city of Kalamazoo in 1903 by an assessment against the property of the city at large did not estop the city from assessing the cost of a repav’ement in 1913 to the abutting owners, under the provisions of its charter (Act No. 648, chap. 16, § 20, Local Acts 1907).
    4. Same — Street Railways — Paving Between Rails — Delay — Defenses.
    In an action for the amount of a tax assessed against land owned by defendant for repaving a city street, where a street railway company was bound by its franchise to pave between its rails when required so to do by the city council, action by the council allowing it to delay its paving to a later time was not injurious to defendant and did not constitute a defense to said action.
    5. Appeal and Error — Pleading—Practice—Defenses—Review.
    A question of defense not mentioned in the plea and notice filed by defendant is not open to review in this court.
    Error to Kalamazoo; Weimer, J.
    Submitted October 17, 1916.
    (Docket No. 177.)
    Decided December 22, 1916.
    Rehearing denied April 19, 1917.
    Assumpsit by the city of Kalamazoo against George W. Perrin for the amount of a paving tax, before the court without a jury. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Alfred J. Mills, for appellant.

      Marvin J. Schaberg-, for appellee.

       On delegation by city council of power with respect to pavement assessment, see note in 20 L. R. A. 656.

   Brooke, J.

The plaintiff city sues to recover the sum of $126.56; said sum having been assessed against land owned by the defendant abutting West Main street in said city for repaving and resurfacing said street. .

With his plea of the general issue, defendant filed a notice of special defenses. Defendant contends, in effect, that the city was without authority to assess abutting property owners for reconstruction and repaving of the street, and, if it had such authority, it was not properly exercised. The trial judge in his opinion made the following statement:

“Upon the oral argument it was not only conceded but claimed by counsel for both parties, in open court, that the improvement in question was, under the settled law, and for the purposes of this case should be considered, a reconstruction and repavement of the street, and not regarded as repairs to an existing pavement.”

The history of the street in question as to its pavement is, briefly, as follows: It was paved in 1892 and one-third of the expense was assessed to abutting owners. In 1902-03, the original pavement having become worn out, it was repaved by the Central Bitulithic Paving Company, and the entire expense was spread upon the general tax rolls. Under this contract, the paving company guaranteed to keep the pavement in repair for five years after its acceptance. In June, 1908, the city passed a resolution requiring the paving company to put the street in condition under its contract, and in December, 1908, a final settlement was made with the paving company, and the balance which had been retained by the city to insure the performance of its guaranty was paid over to the paving company. It is asserted by the defendant that the street was not put in repair by the paving company in accordance with said resolution, and it is asserted by the attorney for the city that repairs were made in accordance with said resolution, and that the settlement made with the company seven months later was made only after the paving company had fulfilled its contract as to the guaranty. The record fails to disclose what was done under the resolution of June, 1908, with reference to repairs. It does show, however, that on December 28, 1908, a resolution was passed by the common council directing the payment of $1,980.30 to the paving company.

The case was heard by the court without a jury, and a verdict was directed in favor of the plaintiff for the amount claimed.

It is first contended on behalf of the appellant that the provisions of the city charter, which are mandatory, were not followed literally nor in substance by the city council, and that therefore the assessment relied upon is unlawful and inoperative. Section 7, chap. 23, of the charter, being Act No. 475, Local Acts 1897, is as follows:

“When any special assessment is to be made pro rata upon the lots and premises in any special district according to frontage or benefits, the city council shall by resolution direct the same to be made by the city assessor and shall state therein the amount to be assessed and whether according to frontage or benefits and describe or designate the lots and premises or locality constituting the district to be assessed.”

The final resolution passed by the common council with reference to this improvement on May 12, 1913, is as follows:

“Resolved: That the city assessor is hereby authorized and directed to make a special assessment roll containing a description of the property adjacent to the streets so improved as contained in said resolution and between the points hereinafter mentioned, and to be benefited by the improvement so made, and to assess against said property the amount of benefit according to benefits as follows: (Among other streets is Main street from Church street to Michigan Central Railroad, $4,550.00). The foregoing special assessment being a portion of the cost of paving on said streets to be paid by. the abutting property benefited thereby.”

We are of opinion that the resolution is a sufficient compliance with the charter requirements of section 7, above quoted.

It is next contended on behalf of the appellant that the work provided for amounted to a mere repair, and was not in the nature of a repavement or reconstruction, and therefore that no special assessment can properly be levied to defray the costs thereof. It would seem from that portion of the trial court’s opinion above quoted, that this question is removed from the case. The argument of counsel at the hearing below was not reported, so that the record fails to disclose whether the concession as to the character of the improvement was made by counsel for the defendant, except that it is so asserted in the opinion of the trial court. Counsel for defendant in his brief quotes that portion of the opinion of the trial court with reference to his concession, and, while not denying that it was made as stated by the trial judge, proceeds to argue that the improvement was, according" to the resolution of the council, a repair only and not a repavement or reconstruction of the street. We must conclude that the concession was made by defendant’s counsel as set out by the learned trial judge, and that being so, the point is not open to review in this court.

The third point made on behalf of appellant is that because, when the street was paved in 1902-03, the entire cost thereof was assessed against the property of the city at large, the city thereby elected:

“To make all needed repairs in the pavement itself and to relieve the abutting property owners from assessment upon the theory of benefits to be derived therefrom.”

Counsel for defendant does not assert that the city, by its election to charge the entire cost in 1903 to the city at large, thereby estopped itself forever from assessing the cost of repavement to the abutting owners; but that is the logic of the argument under this head. This seems to us not only unreasonable, but is clearly contrary to the charter (section 20, chap. 16, as amended, Act No. 648, Local Acts 1907), which provides:

“The city council shall have power to cause the public streets, highways, avenues, and alleys of said city to be graded, macadamized, paved, repaved, planked, or graveled and otherwise constructed, improved and' repaired and the gutters paved. The cost and expense thereof may be paid by the corporation, or the same,, or any part thereof, may, as the council may by resolu-tion determine, be assessed on the property adjacent, thereto and benefited thereby.”

The last contention of the appellant is based upon' the following facts: Upon the street upon which the improvement was made there is located a double-track electric street railway. The contract referred to provided for the pavement of this portion of the street at the expense of the railway company. Counsel says:

■ “The railway company is however, relieved, practically speaking, from the expense of providing for the repairing of the street. This is prejudicial to the abutting property owners and affects the benefits, if any, resulting from the repairing of the street, to their property.”

It appears that the franchise of the traction com-, pany requires the company to pave between the rails' wherever required so to do by the city council. The space between the rails was not resurfaced, but a ver-] bal understanding was had with the street car com-' pany that they would lay heavier rails on the street and repave between their tracks with brick. It is asserted by counsel for plaintiff that the work of reconstruction and pavement between the tracks is soon to be done by the street car company. We are unable to see how the defendant is injured through the action of counsel in failing to compel, instanter, the street car company to repave between its tracks. Aside from this, we find that the plea and notice filed by defendant contains no mention of this particular defense. The question is therefore not open in this court.

The judgment is affirmed.

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


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    DOWNING v. BROOKS.
    1. Fraudulent Conveyances — Husband and Wife — Solvency.
    A conveyance to a wife, the consideration for which was paid by the husband, who was solvent, was not in fraud of creditors.

    2. Same — Discharge of Debt.
    A creditor of the husband cannot complain of said conveyance where he afterwards paid the indebtedness then owing and later contracted a second debt.
    3. Same — Husband and Wife.
    Nor can the conveyance be attacked as in fraud of creditors, where the consideration for the same was equal in value to the amount of a debt owing by him to her.
    4. Same — Third Parties — Good Faith.
    Conveyances and mortgages by a debtor and his wife to third persons who were acting in good faith and without notice of the rights of creditors, the abstract of title not disclosing any interest of complainant, who had no judgment or decree against the debtor, cannot be attacked as fraudulent.
    Appeal from Barry; McDonald, J., presiding.
    Submitted October 24, 1916.
    (Docket No. 3.)
    Decided December 22, 1916.
    Bill by Theodore C. Downing against Myron B. Brooks, Edward A. Fiebach, Farmers’ & Merchants’ Bank of Nashville, William L. Chase, executor of the last will of Ida A. Brooks, deceased, James E. Birney, and others, in aid of execution. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Colgrove & Potter, for complainant.

      W. S. Powers, for defendant Brooks.

      Thomas-Sullivan (Charles W. Niehols, of counsel), for defendants Fiebach, Farmers’ & Merchants’ Bank, and Chase.

      Warner & Raudabaugh, for defendants Birney.

       Authorities discussing the question of transaictions between husband and wife and other relatives as fraud on creditors, are collected in a note in 32 L. R. A. 67.

   Brooke, J.

The bill of complaint filed in this case is of extreme length, giving in detail the dealings between the plaintiff and defendant Brooks, as weil as setting forth the dealings between defendant Brooks and the other parties. It seems to have been filed with a double aspect, in aid of execution and as a judgment creditors’ bill. A demurrer interposed • on behalf of defendant Brooks was sustained, and from this order no appeal was taken.

The contest in the court below centered about the claim of the plaintiff that the defendant Brooks and his wife fraudulently disposed of certain real estate for the purpose of defeating plaintiff’s claim, and that the defendants Fiebach, the Farmers’ & Merchants’ Bank, and Chase, as executor of the estate of Ida A. Brooks, were active participants in said fraud.

The learned circuit judge who heard the case disposed of the questions involved upon the merits. After a careful perusal of the very voluminous record, we have no hesitation in agreeing with his conclusions. The opinion filed by him, though brief, is concise and sufficiently full to advise- the parties in interest' and the profession of the questions involved and the conclusions reached. We, therefore, adopt it as our own.

' “This suit has grown out of a series of business transactions between defendant Myron B. Brooks and Barry and Downing, at one time bankers of Nashville, Mich. The result of their dealings was that in May, 1906, Brooks was indebted to them in the sum of $5,-463.44 and in payment thereof conveyed to them certain property and paid $263.44 in cash. At the time of this settlement a part of the property conveyed which was known as the evaporator property was resold to Brooks upon land contract for a consideration of $4,700. A couple of years later the evaporator buildings were destroyed by fire, and Brooks then ceased to make further payments on the contract. The complainant, who is the surviving partner of Barry & Downing, began foreclosure proceedings, and on the 19th of September, 1913, obtained a decree, in which it was determined that there was due on the contract the sum of $7,225.76, and in which a sale of the property was ordered. After the amount realized from the sale was deducted there was a deficiency of $5,880.45, for which Mr. Brooks was personally liable. Execution was issued and levies made on certain parcels of real estate which Brooks and his wife, Ida Brooks, had recently conveyed to Birney Bros., and to Edward A. Fiebach. The complainant then filed this bill in aid of execution, alleging that the conveyance to the Birneys on the 8th of March, 1912, and that to Edward A. Fiebach on the 11th day of February, 1913, were fraudulent and void as to his rights. That the Farmers’ & Merchants’ Bank, of Nashville, was a party to the fraudulent conveyance to the Birneys, and took an assignment from Mr. Brooks of the $1,500 mortgage given to secure part of the purchase price, knowing that Brooks was disposing of it so as to evade payment of his indebtedness to complainant. The defendants all answered, denying the allegations of fraud stated in the bill, and defendant Brooks demurred to paragraphs 12, 13, 14, 15, 16, and 17, which demurrer has been heretofore heard and sustained, and the effect of which is that complainant" cannot recover in this action equitable interests, debts, choses in action, leasehold interests, stocks, and securities. These claims of the parties, which are here only briefly stated, present the issues involved in this hearing.
“The allegations in the bill relative to the conveyance to Edward A. Fiebach are not sustained by the evidence.
“This property formerly belonged to the estate of George R. Howell, deceased. Mr. Brooks bought up claims against the estate, amounting to $1,459.53. In January, 1902, in consideration of these claims and other property, he received a deed from Amanda Howell, the widow, and Hazel Howell, a daughter. This deed was not recorded, and was subsequently returned to the grantors. Amanda Howell had a life estate, and Hazel was a minor. When Hazel became of age, she repudiated this deed, and under a new arrangement as to consideration joined her mother in a quitclaim to Ida Brooks on July 26, 1905, and Ida Brooks conveyed to Fiebach February 11, 1913. In view of the undisputed evidence, it cannot be claimed that there was any bad faith in these transactions as to this property. Ida Brooks got her deed in 1905. At that time, her husband, Myron B. Brooks, was solvent, as is evidenced by the fact that in May of the following year he had sufficient unincumbered property, apart from the Howell property, to fully pay his indebtedness to the complainant. But this transaction with his. wife cannot be questioned for two other reasons: First, that he afterwards actually paid the indebtedness due complainant at that time; and, second, because it conclusively appears from the evidence that at the time he was in fact indebted to his wife, Ida. A. Brooks, in an amount equal to the value of the. property.
“The allegations in the bill relative to the transaction between Brooks, Birney Bros., and the Farmers’’ & Merchants’ Bank, of Nashville, are not sustained', by the evidence. Mr. Brooks may have intended to dispose of his property to avoid the payment of his-, indebtedness to complainant, but so far as Birneys and! the bank are concerned the good faith of the transaction cannot be questioned. The evidence shows that; the Birneys paid full value for the property; that the abstract of title submitted to them did not disclose any interest of complainant, that they had no knowledge of his claims, and that as a matter of fact complainant at that time had no judgment or decree against Brooks. As to the bank there is no evidence that Mr. Hough, the cashier, who was acting for it, had any knowledge or information, or reason to believe, that the dealings between the Birneys and Mr. Brooks were fraudulent. They were not fraudulent. The bank was acting in the customary way and in line with its business,, and.. did not knowingly participate in any fraudulent attempt to defeat complainant in his efforts to collect his indebtedness from Mr. Brooks.
“For the reasons above stated a decree may be entered, dismissing the bill of complaint, with costs to be taxed.”

The decree is affirmed, with costs of both courts.

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


author: Bkooke, J.

text:
    WHITTLESEY v. SMITH.
    Contracts — Corporations — Services — Performance — Directed ’ Verdict.
    Where plaintiff sued on a contract, entered into with defendant corporation through its president, for the compensation he was to receive for procuring the underwriting of bonds to be issued by defendant for the purpose of liquidating its floating indebtedness, and consent of the necessary two-thirds of the stockholders to the issuance of said bonds, to be obtained by plaintiff, was never procured, and the bonds were never issued, a verdict for defendant was properly directed by the court below.
    Error to Wayne; Van Zile, J.
    Submitted October 9, 1916.
    (Docket No. 6.)
    Decided December 22, 1916.
    Assumpsit by Matthew B. Whittlesey against J. Henry Smith and Peter Smith & Sons Company, a corporation, for services rendered. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Affirmed.

      /. O. Murfin, for appellant.

      Yerkes & Cochran {Edward Donnelly, of counsel), for appellees.
    Plaintiff is an attorney at law. Defendant J. Henry Smith is president and principal stockholder of the other defendant, Peter Smith & Sons Company. The corporation was capitalized for the sum of $500,000 $250,000 common and $250,000 preferred. All the common stock except qualifying shares was owned by the defendant J. Henry Smith. All the preferred stock was owned by persons other than J. Henry Smith. The preferred stock had been issued for the purpose of raising money to erect a ten-story building on the southwest corner of Griswold and State streets, in the city of Detroit. The cost of the building proved to be largely in excess of the estimate, and in the fall of 1913 the defendant Peter Smith & Sons Company found itself indebted to one or more banks in the sum of upwards of $200,000 upon short-time paper. In this predicament it is the claim of plaintiff that defendant J. Henry Smith appealed to him: First, to secure a tenant for a portion of the property; second, to effect a sale of the entire property for the sum of $500,000; and, lastly, to .undertake to formulate a scheme for the funding of the floating debt for more than $200,000, with a provision for payment at a later date. For this service it is plaintiff’s claim he was promised by defendant J. Henry Smith the sum of $5,000. With reference to the bargain the plaintiff testified in part as follows:
    “I was not able to sell the building for that price. And then in further conversation with Mr. J. Henry Smith, his financial condition, or the condition of his company was developed, and I learned how much that they owed at the bank. I suggested to him that thére was a way of refunding that indebtedness and carrying it over a period of years, to enable them to pay it off a part at a time, and not to be called on it — to be called for the whole of it any one time. In the meantime it might be possible thereafter to sell the building. We talked over the assets of the corporation; he told me what assets they had. He gave me a so-called trial balance about that time. * * * I suggested on those two assets, as well as the earning power of the grocery company, that he could put a $250,000 bond issue as a lien on the building, with the collateral of the lease, or his interest in that lease as security, and sell that as present bonds.

      “Q. What did Mr. Smith say with respect to that suggestion?

      “A. After talking it over he asked me if I could secure somebody to buy those bonds. I told him I thought I could. Then we discussed the matter further, and it developed it would be necessary, in order to put a lien on the assets, to get the consent of two-thirds of the preferred stockholders. I made the agreement with him that I would secure the underwriting. By that I meant I would secure somebody to buy the bonds in one block at a discount, with his co-operation to get the consent necessary of two-thirds of the preferred stockholders to allow the loan being put on this building, to use that lease interest as collateral to this bond issue.

      “Q. Was there anything said about what he would pay you as your compensation for this work?

      “A. He told me if I negotiated it $5,000. * * *

      “Q. As I understand the proposition that you made was this in substance: That if the company, through its preferred stockholders, would agree to make this bond issue, you would find somebody who would purchase the bonds; isn’t that, in substance, the agreement?

      “A. The proposition I made was, I stated this morning, was this: That I could find an underwriting for $250,000 of the bonds secured by the assets that Mr. Smith agreed to put up; that I would get the consent, with his co-operation, of two-thirds of the preferred stockholders. I did not get the consent of the preferred stockholders. I didn’t have his co-operation, either.”

      The record discloses that the consent of only about $40,000 of the $250,000 of preferred stock was secured for the bond issue, and that the preferred stockholders met on November 3,1913, in response to a call for the purpose of authorizing the directors and officers of said company to issue $250,000 worth of bonds, but, instead of authorizing said issue, they appointed a committee to examine into the financial affairs of the defendant Peter Smith & Sons Company, which committee was to report later. This committee reported on January 12th, and at an adjourned meeting on January 19th passed the following resolution:
    “Resolved that the proposition to issue bonds contained in the original notice of this meeting be not approved.”
    Later they recommended that, upon receipt of an assignment by J. Henry Smith of his interest in a certain lease on State street, the consent of the preferred stockholders should be given to the issuance of $250,-000 worth of bonds, of which $200,000 should be pledged with the creditor banks as collateral to the indebtedness; the remaining $50,000 to be used at the discretion of the board of directors for the security and retirement of other current indebtedness of the corporation.
    After plaintiff’s failure to secure the assent of the requisite amount of preferred stock for the issuance of the bonds, which happened in December, 1913, the plaintiff took no further part in the negotiations between the preferred stockholders and the defendants.
    At the conclusion of the plaintiff’s case the court directed a verdict for the defendant in the following language:
    “The contract never was in writing, a valid contract; that there were certain things to be done which had to be accomplished before a contract could be said to be made, among them the obtaining of the consent of two-thirds of the preferred stockholders. Now, the proofs in the case show that they never did that, and more than that, that the proposition that was made here was rejected by the preferred stockholders as well as the common stockholders, and that there was never any basis of the contract; that the contract was never made; that under none of the counts of the declaration could the plaintiff recover except there was a contract actually existing; that is to say, under the quantum meruit. It is not such a case as would support such a recovery, and I therefore direct in this case that you find a verdict for the defendant, no cause of action.”
    In this court appellant argues his case under four assignments of error which may be consolidated into one, namely, that the court erred in holding the plain-' tiff could not recover and in refusing to submit the question to the jury.
   Bkooke, J.

(after stating the facts). Plaintiff in the court below and in this court distinctly disclaims any right to a judgment against defendant J. Henry Smith. It appears to be his claim that, as president and principal stockholder of the defendant Peter Smith & Sons Company, J. Henry Smith had authority to enter into the contract in question on behalf of the corporation, and that the plaintiff in reliance upon said contract .entered upon and accomplished the substantial performance thereof. His testimony seems to indicate that in their negotiations he was misled by statements of J. Henry Smith with reference to the terms upon which the preferred stock had been sold. He further seems to charge the defendant Smith with a failure to co-operate with him in securing the consent of the preferred stockholders to the bond issue. While these claims might require consideration in an action in which the plaintiff sought to recover from Smith damages growing out of Smith’s failure to carry out his agreement with the plaintiff, we are unable to see how they are pertinent to the consideration of the liability of the corporation to the plaintiff under the alleged contract.

Assuming the contract to have been made between the plaintiff and defendant corporation acting through J. Henry Smith, and further assuming that such contract was not ultra vires the authority of Smith as president of the corporation, we are forced to the conclusion that the learned circuit judge was correct in directing a verdict for the defendant upon the ground that there was no performance on the part of plaintiff. Both he and Smith knew that in order to effect a bond issue which would take precedence as a security of the preferred stock it would require the assent of two-thirds of such preferred stock. This assent plaintiff undertook to secure, and himself testifies that he failed to secure it. Plaintiff says, “He [Smith] told me if I negotiated it, $5,000,” in reference to a question as to what his compensation was to be.

It is, we think, clear from this record that he not only failed to secure the assent of the preferred stockholders which was a condition precedent to the issuance of the bonds, but he likewise failed to secure an underwriting of the bonds through Mr. Seagraves or anybody else. The most that can be said of his arrangement with Mr. Seagraves is that the president of the First National Bank had agreed to finance Mr. Seagravés in the purchase of the bond issue at a discount of 10 per cent, if the statement of assets and liabilities of Peter Smith & Sons Company could be verified by an accountant. It does not appear that the defendant corporation was advised that the bonds would have to be discounted to the amount of 10 per cent, or that it assented to such discount; neither does it appear that any verification was made by the bank of the financial statement of the defendant corporation. The arrangement made by the plaintiff with Mr. Seagraves and the bank was, at most, preliminary, tentative, and certainly unenforceable.

Judgment is affirmed.

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


author: Person, J.

text:
    REYCRAFT v. McDONALD.
    Libel and Slander — Privilege—Sanity—Statutes.
    Statements made by defendant to the judge of probate, no* one else being present, in instituting proceedings to have-plaintiff’s sanity judicially determined under Act No. 100, Pub. Acts 1909 (1 Comp. Laws 1915, § 1325), were absolutely privileged and cannot be made the basis of an action for slander, notwithstanding defendant did not belong to any of the classes of persons authorized by said act to bring such proceedings.
    Error to Emmet; Shepherd, J.
    Submitted January 12, 1916.
    (Docket No. 128.)
    Decided December 30, 1916.
    Case by John J. Reycraft against Dudley McDonald for slander. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Sherman T. Handy (Francis T. McDonald and Me-sick & Miller, of counsel), for appellant.

      Wade B. Smith, for appellee.
   Person, J.

This is an action for slander, and at the trial the circuit judge directed a verdict for defendant. Plaintiff brings the case to this court by writ of error. The alleged slanderous words were used in a statement made by defendant to the probate judge of the county, in his official capacity, to the effect that plaintiff was insane and needed hospital treatment. The statement was made in the office of the judge of probate when only defendant and the judge were present. It is clear from the record that it was for the purpose of instituting proceedings by which plaintiff’s alleged insanity should be judicially determined. Upon the information received by him at the time from defendant, the judge prepared a proper petition for an order direct-^ ing the admission of plaintiff to an asylum or institution for the care of the insane, and the petition was signed and verified by defendant. Notice of such petition, and of the time and place of the hearing thereon, was duly served upon plaintiff, who, with his attorney, thereupon appeared at the probate office for the purpose of the investigation. In the meantime it had been discovered by the judge of probate that defendant had no authority under the statute to make the petition, and he so announced to plaintiff’s attorney. The attorney replied that they would waive the question of jurisdiction and proceed with the merits of the matter; but it being the opinion of a physician, who had been consulted, that plaintiff was not insane, the proceedings were dismissed.

The declaration in the instant case counts solely upon the statement made to the judge of probate. It does aver that:

Defendant “on the 8th day of February, A. D. 1912, at the county aforesaid, did speak, declare and publish of and concerning said plaintiff in his said business or profession in the presence of Andrew L. Deuel, and divers other good and worthy persons, certain scandalous, defamatory and false words, to wit: ‘John J. Reycraft (meaning the plaintiff) is insane and in need of hospital treatment.’ ”

But the words “divers other good and worthy persons” must be held to refer to others supposed to be present when the statement was made to Judge Deuel. They cannot be held to relate to distinct utterances of which the dates and circumstances are not given. The record shows, however, that there was no other person present at the conversation between the judge and defendant.

On behalf of defendant it is claimed that the statement made to- Judge Deuel regarding plaintiff’s insanity was absolutely privileged, because made in the course of judicial proceedings. Plaintiff insists that it was not made in the course of judicial proceedings, inasmuch as defendant was not authorized to institute such proceedings, and his petition gave the court no jurisdiction over the person of plaintiff; and this is the only question in the case which we think it necessary to discuss.

It is true that defendant was not authorized to make the petition. The statute reads as follows:

“The father, mother, husband, wife, brother, sister or child of a person alleged to be insane, or the sheriff, or any superintendent of the poor, or supervisor of any township, or any peace officer within the county in which the alleged insane person resides, or may be, may petition the probate court of said county for an order directing the admission of said person to an asylum or institution for the care of the insane.” Act No. 100, Pub. Acts 1909; 2 How. Stat. (2d Ed.) § 3656; 1 Comp. Laws 1915, § 1325.

Undoubtedly the authority of the probate court to commit a person to an asylum on the ground of insanity is purely statutory, and it is conceded that defendant did not belong to any of the classes of persons authorized to make the petition. But does this fact make his communication to the probate judge any less privileged?

In Flynn v. Boglarsky, 164 Mich. 513 (129 N. W. 674, 32 L. R. A. [N. S.] 740), the defendant therein, with others, presented to the police justice, regarding plaintiff’s conduct, a certain petition which the latter conceived to be slanderous. It was conceded that the petition was not one that the justice could act upon. It gave him no jurisdiction to issue any process against the parties complained of; but this court held that it was absolutely privileged, saying:

“The matter stated in this petition was clearly pertinent and material to the subject of the investigation desired. * * * The magistrate had jurisdiction over such matters. We are not disposed to narrow or abridge the right of a citizen to make even an oral complaint before a magistrate charged with the duty of investigating the matters complained of. * * * Such communications are made in the strictest confidence, and are as sacred in the eyes of the law as the communications between client and lawyer, or patient and physician.”

We think defendant’s communication to the probate judge in this case was equally a matter of absolute privilege. It was made for the purpose of instituting legal proceedings, and to a court having jurisdiction of the subject-matter. Whether the defendant was authorized to make the petition, and whether it empowered the court to act in the particular case, were themselves questions for judicial determination.

Our conclusion upon this phase of the case makes it unnecessary to consider the other points raised.

The judgment is affirmed.

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


text:
    PAYNTON v. PAYNTON.
    1. Divorce — Fraud—Default—Vacating Decree.
    Where complainant husband told defendant that he could not procure a divorce without her consent, which he tried to obtain, he was merely expressing an opinion and was not guilty of actual fraud, requiring the decree to be vacated.
    2. Same — Publication of Notice — Reopening Case.
    And the publication of the notice in a comparatively obscure paper, and failure to give defendant actual notice, although he knew her address, were not fraudulent where complainant complied with the statute, although such conduct may well be taken notice of in a proceeding to reopen the case.
    3. Same — Res Judicata.
    A decree of the Illinois court denying a divorce to complainant on the ground that defendant was an habitual drunkard established the fact that defendant was not an habitual drunkard at that time, but would have no tendency to show that she had not become one when this suit was started four years later.
    4. Same — Vacating Decree — Third Parties — Discretion of Court.
    Where the court below denied a motion to vacate a decree of divorce, giving in part as his reason for doing so that in the meantime an innocent woman, relying on the decree, had married complainant, the action of the court is largely a matter of discretion, and, unless abused, this court will not interfere.
    5. Same — Practice—Chancery Rule — Sworn Answer — Meritorious Defense.
    Where defendant failed to file a sworn answer showing a . defense on the merits to complainant’s case, as required ■ by Chancery Rule 7, with her petition praying to have a default decree of divorce vacated, the order of the court below denying the petition will be affirmed.
    Appeal from Berrien; Bridgman, J.
    Submitted June 8, 1916.
    (Docket No. 32.)
    Decided December 30, 1916.

      Bill by George C. Paynton against Anna Bertha Paynton for a divorce. From an order denying defendant’s motion to set aside a decree entered on default, she appeals.
    Affirmed.

      O’Hara & O’Hara, for complainant. -

      Rolland E. Barr, for Lillian H. Paynton, intervener.

      John J. Sterling and Miles J. Devine, for defendant.
   Person, J.

On the 8th day of July, 1915, complainant obtained a decree of divorce in the present case. He was at the time, and for more than two years had been, a resident of Berrien county, in this State. The defendant, however, resided.in the city of Chicago, and service was obtained upon her by publication. On August 14th, about five weeks after the divorce was granted, he married again. His present wife intervenes in these proceedings. On November 3, 1915, defendant filed a petition, asking that the decree of divorce be vacated, her default set aside, and she permitted to file an answer, plea, or demurrer to the bill. No copy, however, of any proposed answer, plea, or demurrer was tendered with the petition. On December 31, 1915, after a full hearing, the court refused to reopen the case, and made an order denying the prayer of the petition. This is an appeal from that order.

It seems to be conceded that all of the proceedings in taking the decree were regular. There was a proper affidavit of defendant’s nonresidence, an order of publication granted by the circuit judge, due publication of the order, the entry of defendant’s default, and evidence sufficient to warrant a divorce. In accordance with a local rule of the court, the decree was neither signed nor filed until 30 days after the hearing.

It is claimed in the petition that the course pursued by complainant in obtaining the decree was a fraud upon defendant and upon the court, and such charge is based upon the following averments in the petition:

First. That almost to the time of filing his bill complainant was negotiating with defendant for her consent to a divorce.

Second. That he had told her he could not obtain a decree without her consent.

Third. That the order of publication was printed in a comparatively obscure paper for the purpose of keeping it from her knowledge as much as possible, and that he gave her no actual notice of his application for a divorce, although well knowing her residence and address.

Fourth. That he caused the proceedings to be suppressed and kept from the other newspapers.

Fifth. Because the charge that defendant had become an habitual drunkard, upon which the divorce was granted, had been decided adversely to complainant, after a full hearing in a divorce suit instituted by him against her in Chicago in the year 1911, and was res adjudicata.

It cannot well be said that any of these acts on the part of complainant were actually fraudulent. His attempt to secure defendant’s consent to a divorce was unsuccessful, and there is no claim of collusion between the parties. Neither did his attempt to gain her consent have any tendency to deceive her as to his intention to procure a divorce, but rather the reverse. She says in her petition that he told her he could not procure a divorce without her consent. This necessarily was a matter of opinion, and did not imply that he would not attempt to procure one. The law did not require him to give her notice of the proceedings otherwise than by publication of the order, and it permits its publication in any newspaper printed in the county. What he evidently aimed at was to keep strictly within the law and furnish her with no other knowledge of the proceedings than such as the law expressly required. Such a course cannot be said to be fraudulent, although it well may be taken notice of by the court when brought to its knowledge in a proceeding to reopen the case.

The decree of the Illinois court seems to have been a final decree establishing the fact that defendant was not an habitual drunkard when it was rendered in 1911; but that, of course, would have no tendency to show that she had not become one when this suit was begun in 1915.

In declining to reopen the case the circuit judge said:

“The complainant and the defendant have not lived together for almost seven years. There is no claim of intention or desire on the part of the defendant to ever again live with complainant. According to her own statements she can have no love or regard for him, and, if her statements are true, she must loathe and abhor him. On the other hand, if complainant’s statements are true, defendant is a woman for whom he can have little regard or respect. Under such circumstances, the marriage having been really dissolved (even without the court understanding all the circumstances) , there can be little advantage to anybody by again reuniting the parties, even though the court might in the first instance, with full knowledge, have denied the decree.
“There are certain facts connected with the case that do not impress the court pleasantly or favorably. If only the original parties were interested and the court has any discretion in the matter, possibly a different feeling might prevail. An innocent woman has been brought into the case. She, relying upon the decree of this court, has assumed in good faith the marriage relation with the complainant. If this motion prevails, upon her will fall a large part of the distress and suffering incident to the proceeding.”

The action of the court upon such an application as this is largely a matter of discretion; and such discretion will not be interfered with on appeal unless clearly shown to have been abused. McCullough v. McCullough, 187 Mich. 404 (153 N. W. 674), and cases there cited. And, under all of the circumstances, we are not prepared to say that the refusal of the circuit judge to reopen this case was an abuse of such discretion. McCullough v. McCullough, supra.

'There is another reason why we do not feel called upon to interfere with his action. Chancery Rule 7 (131 Mich, xxxvi), in force when these proceedings were had, reads in part as follows:

“Any order entered under these rules may be set aside on special motion, for cause shown, in the discretion of the court, on such terms as may be deemed just and proper. But to entitle a defendant to an order setting aside his default for want of appearance or answer, he shall proffer a sworn answer showing a defense on the merits as to the whole or a part of the complainant’s case.”

The practice required by this rule is not a mere technicality. The court, when exercising its discretion, has a right to know that a material issue will be raised in the case, and that the proceedings will not be delayed. The defendant, in this instance, utterly failed to comply with the rule. She did not tender any answer to complainant’s bill, nor, so far as the record shows, offer to supply the omission when attention was called to it on the argument. An applicable rule of court is, so far as it goes, the law of the case, and we cannot justly reverse the action of the trial court in adhering to it.

The order is affirmed.

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


text:
    CORNELL v. FIDLER.
    1. Assault and Battery — Trespass Vi et Armis.
    In trespass vi et armis to recover damages for assault and battery, where, after blows were struck, hostilities ceased,, and plaintiff started to walk away, when he was struck' by a stone thrown by defendant, the latter was guilty' of assault and battery, although plaintiff struck the first blow in the original altercation.
    2. Same — Question for Jury.
    Where the testimony was conflicting, the question as to whether the plaintiff was leaving the place when hit with the stone, or whether he had renewed the attack upon defendant, was a question for the jury.
    3. Same — Trial—Instructions.
    Instructions by the trial judge that the vital point was as to what happened immediately before the stone was thrown; that the striking of defendant by plaintiff was an assault and would not be justified because defendant used some words that he ought not to have used; that the jury had a right to take into consideration all that took place; that after the first altercation ceased the question was as to who then became the aggressor; that if plaintiff was retreating when defendant threw the stone and struck him, then defendant was guilty of assault, and plaintiff would be entitled to recover damages, were not erroneous and did not take from the jury the right to consider all of the facts connected with the occurrence.
    4. Same — Cross-Examination — Evidence — Character — Disposition.
    Where defendant had taken the stand as a witness, and had testified that he picked up the stone because he was afraid of plaintiff, it was within the discretion of the court to allow plaintiff’s counsel to ask him, for the purpose of showing his character and disposition, if he had not thrown a club at a certain man, and at another time if he had not carried a piece of iron in his pocket and boasted that he would get a certain man.
    5. Same — Witnesses—Credibility—Impeachment.
    Where defendant’s father had testified that defendant had thrown the stone in self-defense, it was proper, for the purpose of affecting his credibility, to ask him, on cross-examination, if he had not stated that the trouble was the work of his son, and, on his denial, to allow a witness to testify that he had so stated.
    6. Same — Overwhelming Weight of Evidence — Appeal and Error.
    Where there was substantial evidence supporting the plaintiff’s theory, and the trial judge denied defendant’s motion for a new trial on the ground that the verdict was against the overwhelming weight of the evidence, this court will not reverse the judgment on that ground.
    7. Trial — Reopening Case — Discretion of Court.
    The reopening of the case after the close of the arguments of defendant’s counsel, and allowing plaintiff to offer further testimony, was within the discretion of the court, and no error was committed where no undue limitations were placed upon the examination of witnesses.
    Error to Gratiot; Searl, J.
    Submitted June 16, 1916.
    (Docket No. 54.)
    Decided December 30, 1916.
    Trespass vi et armis by Clarence Cornell against Mahlon Fidler. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      John T. Mathews and Edwin H. Lyon, for appellant.

      George P. Stone and William M. Smith, for appellee.
   Person, J.

This is a civil action to recover damages for an assault and battery alleged to have been committed on the 19th day of October, 1914. Plaintiff recovered a verdict for $500, upon which judgment was duly entered, and defendant brings the case to this court by writ of error.

It is conceded that plaintiff struck the defendant a blow in the face, in the first instance, but it is claimed by plaintiff that the controversy in which that blow was struck had practically terminated, and that, as he was turning to leave the place, defendant hit him in the back of the head with a stone, inflicting severe injuries.

It appears that the parties had not been on speaking terms for some time prior to the day of the assault. On that day they met on the street in the village of Ithaca where both resided. Plaintiff, who was riding a bicycle, got off his wheel, turned back, and spoke to defendant. Angry words followed, and plaintiff struck defendant. The parties themselves were witnesses upon the trial, and their respective claims as to what occurred can best be stated in their own language. Plaintiff’s testimony as to the affray, abbre-. viating it as much as possible, was as follows:

“I struck him in the face with my left hand. I did not knock him down. I had a pair of tinners’ shears in my right hand. He turned and run pretty near across the road. I followed him a few steps and then stopped. He picked up a stone and came back. His father, Lyme Fidler, came across the road and right around behind me and says, ‘Boys you better get out of this and square it up.’ I says, ‘All right, Lyme; I am willing to do anything that is fair and square.’ _ Defendant spoke up and says, ‘Not by a God damn sight,’ and I thought that was all that could be done, and I started for my wheel. Just as I started there was something went over my head, and in an instant there was something struck me in the back of the head, and that is the last I remember.”

Defendant, upon the same subject, gave the following testimony:

“He struck me with his left hand. I should judge he had his hand around the middle of the shears below the handle. I turned around to get away from him. I went across the road; across the wagon track and picked up some stones. I picked up one on the south side, and one on the north side of the wagon track as I was going back to the walk. In returning to the walk I was going northeast. My father, L. W. Fidler, and my sister, also came out and father came up to where we two men were; came up between us. I stopped. Mr. Cornell was then perhaps ten feet west of me. Father said, ‘Cad, you are too good fellows to be quarreling.’ My father said, ‘Cad, what is the matter?’ Cad says, ‘He is cutting me out of my driveway.’ Father said, ‘He is not; he told me just the other day that he would not cut you out of any driveway.’ Plaintiff said, ‘Yes, he is; he is cutting me out of my driveway.’ And there was something said about we had better cut it out and make up, and Cad says, ‘If you are a mind to drop it right where it is, I will shake hands and try to be a neighbor.’ I says, ‘You cannot strike me in the face and call me a son of a bitch and turn around the next minute and make up.’ I says, ‘You just go on about your business and let me alone.’ He walked back probably eight or ten feet, and I says, ‘It is your wife that is causing a lot of this trouble.’ He says, ‘You cannot find one person .in this town that will say a word against my wife.’ And I says, T can; I can find one; I can find two.’ And he raised those shears and made for me. And I threw the first stone, and he dodged that and made for me just like a sheep, you might say. After I threw the first stone, when he got in three or four feet of me— understand he was running as fast as he could come and watching to dodge the other stone — and as he dodged when he got his head down like this, I took him. He had his hat on. I was running backwards when the second stone I threw hit him in the head.”

There was further testimony about the sequence of events, both from the parties and others, but the foregoing represents their respective theories. In stating the law applicable to these conflicting claims, the trial judge instructed the jury as follows:

“Now, gentlemen, the vital point in this case for you to take up first is whose story is true as to what happened immediately before the stones were thrown. I charge you as a matter of law that while the striking of the defendant by the plaintiff would be an assault, and the plaintiff had no right to strike him, even though the defendant had used some words that he ought not to have used possibly, yet that is not a matter that need be determined by you. You have a right to take into consideration all that took place. I didn’t mean to say you shall not consider everything that took place there from the time they met, but 1 mean that the question that is submitted to you, that you are trying here is not the assault made by the plaintiif upon the defendant when he struck him in the first instance there, but the question for you to determine is whether or not an assault was made by the defendant upon the plaintiif at a time when the stones were thrown. So the first and vital question in this case for you to determine is what the parties were doing just before the stones were thrown, after they got to talking there, after the plaintiif had struck the defendant and the father of the defendant had come out and they had their conversation there, and at a time when they were not fighting at all according to the story of all of them, take it up at that point and determine who then became the aggressor in the next move that was made. And I charge you as a matter of law that if the plaintiif was retreating, if he had turned around, as he claims he had and was going back towards his wheel and was not renewing the attack or quarrel or fight they were having there but was going away from the defendant at the time the defendant threw the stone and struck him, then the defendant committed an assault and battery upon him, and the plaintiff would be entitled to recover damages in this case. On the other hand, I charge you as a matter of law that if you find, as claimed by the defendant, that the plaintiif came at the defendant, perhaps that is the best expression I can use, advanced towards him, you heard the testimony, having the shears in his hands, if he renewed the attack or quarrel or fight they were having there, then he cannot recover in this case, though he was struck upon the head by the stone and even though the injuries came from that, providing you find that the defendant did no more than he had the right to do in self-defense of himself under the rules that I shall presently lay down.”

Counsel for defendant assign error upon this portion of the charge, and insist that it was not applicable to the facts for the following reasons, stated in their brief:

“The affray in which plaintiff was struck lasted but a few minutes and was one continuous affray. In charging the jury, Judge Searl divided the affray into two parts and charged the jury, in substance, that they had nothing to do with the first part of the affray in which plaintiff struck the defendant, and stated that, ‘The question for you to determine is whether an assault was made by the defendant upon the plaintiff at the time when the stones were thrown.’ .And the court further charged the jury in that respect as follows: ‘Take it up at that point and determine who then became the aggressor in the next move that was made.’ And in charging the jury the court proceeded upon the theory that there had been an affray which was ended and past and that the defendant was, under those circumstances, subject to the same legal duties and obligations at the time when the stone in question was thrown as though the first part of the affray had not occurred in which plaintiff struck the defendant and called him vile and indecent names.”

It is probably true that the entire transaction occupied a comparatively short period of time. But it is conceded by both parties that after the first part of the affray, in which plaintiff struck defendant, there was a cessation of active hostilities. Defendant had returned from across the road and was standing not far from plaintiff. His father had interfered and urged them to stop quarreling and become friends. Defendant admits that plaintiff had offered to shake hands and try to be neighborly. If it was true, under these circumstances, that plaintiff had finally turned around and was going away, as he claims, when hit on the back of the head with the stone, defendant was guilty of assault and battery.

Whether plaintiff was leaving, the place when hit with the stone, or whether he had renewed the attack upon defendant, .was a question for the jury. As to the real fact the parties are in absolute contradiction.. The charge of the court was a fair explanation of the legal consequences resulting from their conflicting claims, and did not take from the jury the right to consider all of the facts connected with the occurrence. The instructions were not erroneous.

Upon cross-examination plaintiff’s counsel was permitted to ask defendant if he did not, at one time, throw a club at the brother of the county clerk, and if, at another time, he had not carried a piece of iron in his pocket and boasted that he would get a certain man with it. It was objected on behalf of defendant that this was not proper cross-examination. We think the questions were within the discretion of the court. Defendant had testified that he picked up the stone because he was afraid of plaintiff, and it was competent to show his character and disposition. Wilbur v. Flood, 16 Mich. 40 (93 Am. Dec. 203); Leland v. Kauth, 47 Mich. 508 (11 N. W. 292); Ulmer v. Seelman, 159 Mich. 253 (123 N. W. 1124).

Defendant’s father, Lyman W. Fidler, had given testimony tending to support his son’s claim that he threw the stone in self-defense. On cross-examination he was asked if a young man named Davis did not. inquire of him, shortly after the affray, what the trouble was about, and if he did not reply, “It is the work of this darn son of mine.” The witness having denied! both the conversation and answer, Davis was permitted to testify that the conversation did occur, and that the father gave him the answer stated. There was no error in permitting the cross-examination or in receiving the testimony of Davis. The answer which Davis claims the father made to his question was in a way inconsistent with the latter’s testimony exonerating the son. Its weight was for the jury; and they were carefully instructed by the court that it could affect only the credibility of the father, and could not be used as affirmative proof of the son’s conduct.

It is also urged that the verdict was against the overwhelming weight of the evidence. It is true that more witnesses supported defendant’s theory of the affray than plaintiff’s. But there was substantial evidence supporting plaintiff’s theory. And the circumstances of the case may have had much to do with the verdict rendered. It is conceded that the stone thrown by defendant struck the back of plaintiff’s head, and it is conceivable that the jury may have given little credence to the claim that plaintiff was approaching defendant when it was thrown. It was the opinion of the circuit judge, on a motion for a new trial, that the verdict should not be disturbed. We cannot say that he was wrong in this. The rule has recently been considered in Re Cutter’s Estate, ante, 34 (160 N. W. 605), and the cases fully cited.

We have carefully examined all of the other assignments of error, and do not find any upon which the judgment should be reversed. The reopening of the case was within the discretion of the court, and no undue limitations were placed upon the examination of witnesses at that time.

Judgment affirmed.

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


text:
    HOOK v. SOLOMON.
    1. Negligence — Pleading—Variance—Gross Negligence.
    In an action for personal injuries, where plaintiff was knocked down and run over by defendant’s horse and fish wagon, plaintiff’s characterization of the negligence as “wilful” and “wanton” in her declaration does not prevent a recovery for ordinary negligence.
    2. Trial — Directed Verdict — Appeal and Error.
    In reviewing in this court the refusal of the court below to direct a verdict for defendant, the testimony should be construed as favorably to plaintiff as is reasonably possible.
    3. Negligence — Contributory Negligence — Question por Jury.
    In such action, where plaintiff’s testimony was to the effect that the driver of the horse carelessly pulled the line and the horse swung around the corner and injured plaintiff, while defendant claimed that plaintiff suddenly stepped in front of the horse, the questions of defendant’s negligence and plaintiff’s contributory negligence were properly for the jury.
    Error to Wayne; Mandell, J‘.
    Submitted June 14* 1916.
    (Docket No. 115.)
    Decided December 30, 1916.
    Case by Pauline Hook against Louis Solomon for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Jay Fuller (Charles C. Stewart, of counsel), for appellant.

      James D. May, for appellee.
   Person, J.

Plaintiff claims to have been knocked down and run over by defendant’s horse and fish wagon while they were being driven by his son. The accident took place on the 1st day of August, 1913; and this action was brought to recover damages for the personal in j ury received. A j udgment was awarded plaintiff in the sum of $300, and defendant brings the case to this court.

The declaration avers that:

Defendant “wilfully, wantonly, and negligently managed, drove, and operated his said horse and wagon in a careless, dangerous way, and then and there with great force and violence collided with, drove into, knocked down, and ran over this plaintiff.”

It is insisted by defendant that the words “wilful” and “wanton” make the charge one for gross negligence, and that the court was in error in permitting recovery for what may be called ordinary, actionable, negligence. In this defendant is mistaken as to the rule under such a declaration. Simply characterizing the negligence as “wilful” and wanton” does not prevent a recovery for ordinary negligence. Richter v. Harper, 95 Mich. 225 (54 N. W. 768); Keating v. Railroad Co., 104 Mich. 418 (62 N. W. 575); Gorton v. Harmon, 152 Mich. 473 (116 N. W. 443, 15 Am. & Eng. Ann. Cas. 461).

The injury was received on Library avenue at or in the vicinity of its intersection with East Grand River avenue, in the city of Detroit. Plaintiff had come from near the Newcomb-Endicott’s store, and was about to cross Library avenue to King’s store. She claims that she was following the route generally taken in passing between those two stores, send that she was about eight feet from the south line of Grand River avenue. As she came to the west side of Library avenue, going east, she waited for á limousine to pass. The limousine was coming from the north and going south. She says that after it had passed her she started to take a step, or had taken a step, into the street. When asked how far she had stepped into the street, she replied:

“I could not say exactly, about a foot or two'; simply started to step out; I don’t know how far that would be.”

Just as she stepped defendant’s horse and fish wagon, coming from the east on Grand River avenue, turned southerly, knocked her down, and the wagon passed over her leg. This is her story. Defendant claims that she started to cross the street some 60 feet further south and in the middle of the block. According to his theory of the case, she had passed into the street between a couple of vehicles parked on the west side of it, and stepped out suddenly- in front of the horse.

It is defendant’s contention that a verdict should have been directed in his favor. The refusal of the court to do so raises the principal question in the case. Defendant claims that there was a failure to show any negligence in the driving of his wagon, and that the plaintiff herself was guilty of contributory negligence. In determining whether the case should have been taken from the jury it is, of course, necessary that the testimony should be construed as favorably to the plaintiff as is reasonably possible. She says that before stepping upon the street she looked south, and also looked north, and saw the limousine coming. When asked whether she saw any other vehicle following the limousine, she said:

“I did not see further than the limousine. The fish wagon was not coming from that direction; it was coming from east Grand River, coming from up around the corner from Broadway market.”

She says that she did not see it until it was right upon her. A Mrs. Pigott, who stood near by at the time, testified:

“I waited for the limousine to pass and then this boy came around east Grand River, going south, recklessly coming right along, and if he had not been stopped he would have come on the park. He was hanging around the side of the wagon, and did not seem to watch the direction he was going. He came from east Grand River and then turned south into Library road, and Mrs. Hook stepped off this walk, and just as_ she stepped off this boy came around and pulled the line, and instead of taking the center of the street, he pulled the lines, and naturally the horse went over this way, and Mrs. Hook was knocked down.”

Another witness testified that:

“Mrs. Hook took a step off the curb and started for the crossing to King’s, and this wagon came around the corner of Grand River avenue east, and the driver was looking in the back of the rig, and was not watching where he was going and the horse struck her first and knocked her down, and the front wheel passed over her.”

If this testimony is true plaintiff cannot be said to have stepped in front of defendant’s horse and wagon. The fact was, rather, that a careless driver, without looking to see who was in the way, pulled the horse over upon her. As we have said, this is denied by defendant, who claims that plaintiff suddenly stepped in front of the horse, farther down the street, while the driver was exercising due care. Considering all of the testimony, the negligence of the driver and the contributory negligence of plaintiff were fair questions for the jury. Counsel for defendant criticizes detached portions of the charge, but, taken as a whole, we think it was correct, and very fairly presented the case.

We are unable to discover any just .cause for reversal, and the judgment is affirmed.

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


author: MOORE, J.

text:
    OUDERSLUYS v. CARSTENS.
    1. Appeal and Error — Findings op Court — Saving Question fob Review.
    Where, in a case tried before the court without a jury, the court made a finding of facts and found a judgment in favor of plaintiffs, and on review in this court it is not claimed that the facts found do not sustain the conclusions of law, there is much force in the argument that there is nothing for this court to review.
    2. Same-Findings of Court — Evidence.
    And in view of Circuit Court Rule 26 and section 15 of the judicature act (Act No. 314, Pub. Acts 1915), allowing exceptions to the findings of the court and assignments of error thereon, where no such exceptions or assignments were taken, and there is abundance of evidence to support the finding of the court, the judgment will be affirmed.
    Error to Kent; Lamb, J., presiding.
    Submitted October 16, 1916.
    (Docket No. 150.)
    Decided January 23, 1917.
    Assumpsit in justice’s court by John D. Oudersluys and Hugh T. Rathbun, copartners, doing business as the Crestón Electric Company, against Rudolph D. Carstens and the Gilligham & Smith Enterprises, a corporation, for work done and materials furnished. From a judgment for plaintiffs against defendant Gilligham & Smith Enterprises, said defendant appealed to the circuit court, where the case was heard before the court without a jury. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      H. Monroe Dunham and John M. Dunham, for appellant-

      Hatch, McAllister & Raymond, for appellees.
   MOORE, J.

In November, 1915, the defendant Gilligham & Smith Enterprises was the owner of a certain building which it had used as a theater, and which it rented to defendant Rudolph D. Carstens for a jewelry store. These two defendants entered into a written lease of the premises. At the time of the making of this lease it is claimed Mr. Gilligham, the president of the Gilligham & Smith Enterprises, agreed, among other things, for the defendant appellant to repair and put in some electric wiring, and that the lease was not to take effect until this was done. Mr. Carstens called one of the plaintiffs to show him the building, and told him he was about to rent the property, and that the Gilligham & Smith Enterprises were to do certain electric wiring, and requested the plaintiff to see Mr. Seaman, the manager of the defendant company, about getting the job. It, is claimed Mr.. Oudersluys then went to see Mr. Seaman in regard to the wiring, and Mr. Seaman directed him to “go on and wire it.” The plaintiffs proceeded to do the work, and the amount due therefor was $126.34. It is conceded the work was done, and was worth the amount charged, but each defendant claimed the other should pay for the work. Suit was commenced in justice’s court. From a judgment in favor of the plaintiffs, the defendant appellant appealed to the circuit court, where the case was tried before the court without a jury. The judge made findings of fact, among them the following:

“(4) That the manager of the defendant Gilligham & Smith Enterprises directed the plaintiffs to do the work.
“(5) That upon such direction the plaintiffs did proceed to do the necessary wiring to place the building in a condition for occupancy, and the amount of labor and material furnished by them in doing so amounted to the sum of $126.34, no part of which has been paid, and that this amount is still due to the plaintiffs for said work and labor so performed.”

He found a judgment in favor of the plaintiffs against the Gilligham & Smith Enterprises, defendant, and in favor of defendant Carsten, and concluded his findings as follows:

“These findings of fact and law are made without ■prejudice to any rights or liabilities that may exist between the defendants by way of contribution or otherwise.”

There are 44 assignments of error, but in none of them is it stated that the findings of fact are not supported by the testimony, nor is it stated that the facts found do not sustain the conclusions of law, unless said statement can be found in the twenty-eighth assignment of error, which reads:

“The court erred in its conclusions of law upon the facts as stated in said findings.”

It is argued with much force that the assignments of error do not present anything for this court to review; counsel citing In re Hoffman’s Estate, 183 Mich. 67, 69 (148 N. W. 268, 152 N. W. 952), and Niagara Sprayer Co. v. Wood, 186 Mich. 303 (152 N. W. 1018). We may for the present pass this contention, and consider another phase of the case.

Circuit Court Rule 26 reads in part as follows:

“(d) The finding of the facts by the court shall be treated in all respects as a special verdict, and error may be alleged that the same does not support the judgment as on a special verdict.”

Section 15, chap. 18, of the judicature act (Act No. 314, Pub. Acts 1915 [3 Comp. Laws 1915, § 12587]), reads:

“In such, cases either party may file exceptions to the findings of facts, that such findings are against the clear weight of evidence, and may assign error upon such exceptions, and if an appeal be taken, the same shall be reviewed by the Supreme Court.”

In the instant case there is an abundance of evidence sustaining the finding that the work was done by the direction of the manager of the defendant Gilligham & Smith Enterprises.

Judgment is affirmed, with costs to plaintiff.

Kuhn, C. J., and Stone, Ostrander, Bird, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


author: Mooee, J.

text:
    PEOPLE v. ANDRE.
    Indictment and Information — Assault—Assauht and Battery —Assault with Intent to Do Great Bodily Harm: Less than the Crime of Murder — Modified Sentence.
    Where respondent was convicted and sentenced for assault and battery under an information charging assault with intent to do great bodily harm less than the crime of murder, but not charging a battery, the verdict should stand as a conviction for an assault, which offense was necessarily included in assault and battery, but because the judgment was greater than is allowed in case of an assault, it will be set aside and the case remanded to the court below with directions to proceed to judgment.
    Error to Benzie; Gage, J., presiding.
    Submitted October 16, 1916
    (Docket No. 173.)
    Decided January 23, 1917.
    Elmer Andre was convicted of assault and battery.
    Judgment set aside and case remanded, with directions to the trial judge to proceed to judgment.

      Grant Fellows, Attorney General, and W. E. Daines, Prosecuting Attorney, for the people.

      Covell & Cross, for respondent.
   Mooee, J.

The respondent was arrested upon a complaint charging him as follows: On the 2d day of October, 1915, at the township of Crystal Lake, and in the county aforesaid, one Elmer Andre, late of said township and county, feloniously did make an assault upon one William Robinson with intent then and there to do great bodily harm to the said William Robinson less than the crime of murder.

At the examination before the justice and before any testimony was taken a motion to quash was made by the attorney for the respondent which motion was overruled. The respondent was bound over to the circuit court where an information reading as follows was filed, omitting the formal beginning and ending:

“W. E. Daines, prosecuting attorney in and for the said county of Benzie aforesaid, for and in behalf of the people of the State of Michigan, comes into said court in the March term thereof in the year one thousand nine hundred sixteen, and gives the court here to understand and be informed that one Elmer Andre, late of the township of Crystal Lake in the county of Benzie and State of Michigan, heretofore, to wit: On the 2d day of October, A. D. 1915, at the township of Crystal Lake, in the county of Benzie aforesaid feloniously did make an assault upon one William Robinson with intent then and there to do great bodily harm to the said William Robinson less than the crime of murder. Contrary to the statute.”

The respondent stood mute and a plea of not guilty was entered by the court. Before a jury was-impaneled a motion was made to quash the information and all proceedings. The motion was overruled, and the jury convicted respondent of the offense of assault and battery. Thereupon the court imposed the following sentence:

“Therefore it is ordered, adjudged by the court now here that the said Elmer Andre be confined in the county jail of Benzie county, Michigan, for a period of sixty days, and also that the said Elmer Andre pay a fine of two hundred dollars within forty-eight hours, and that in default of the payment of the said fine of $200 that the said Elmer Andre be confined in said jail for the period of one year from and including this day.”

The various assignments of error present several interesting questions, but an answer to one of them :is decisive of the case. That question is, Can respondent be legally convicted of assault and battery under the information filed against him? It will be noted that the word “battery” does not appear in the inforifiation, nor do the words “did then and there beat, bruise, wound, and ill treat,” which might be regarded as equivalent to a charge of assault and battery, appear therein. See People v. Ellsworth, 90 Mich. 442 (51 N. W. 531).

In Turner v. Circuit Judge, 88 Mich. 359 (50 N. W. 310), it was held:

“A respondent cannot be convicted of assault' and battery under an' information charging him with the statutory offense of ‘assault with intent to do great bodily harm less than the crime of murder/ but not charging a battery; nor can the information be amended, after verdict and before judgment, so as to include such latter charge.”

See, also, Hanna v. People, 19 Mich. 316, and People v. Howard, 179 Mich. 478, 488 (146 N. W. 315).

It does not follow, however, that the verdict must fail entirely. While the information did not include the offense of assault and battery, it did include an assault. The jury could not have returned a verdict of assault and battery without finding that an assault had been committed. The verdict should stand as a conviction for an assault. Because the judgment was greater than is allowed in case of an assault (see People v. Harrington, 75 Mich. 112 [42 N. W. 680]; In re Kenney, 147 Mich. 678 [111 N. W. 189], and the many cases cited there) it is set aside.

The case will be remanded, with directions to the trial judge to proceed to judgment.

Kuhn, C. J., and Stone, Ostrander, Bird, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


text:
    PEOPLE v. MANISTEE CIRCUIT JUDGE.
    1. Mandamus — Exceptions, Bill of — Extension of Time — Abuse of Discretion.
    Where the action of a circuit judge in denying a motion to extend the time for settlement of a bill of exceptions, after a proper showing, amounts to abuse of discretion, mandamus will lie to review the same.
    2. Exceptions, Bill of — Extension of Time — Discretion of Court —Certificate of Stenographer.
    Where a transcript of the evidence was ordered, and, when it was not furnished within. the time limited for the settlement of the bill of exceptions, an extension of time was granted upon motion based upon tbe stenographer's certificate, under the statute, that it had been ordered and would be furnished as soon as possible, a motion for a second extension, based upon the affidavit of the attorney for the relator to the effect that the transcript had not yet been furnished, should have been granted without the filing of a second certificate, the original being in the files of the court, and the denial of the motion was unwarranted and amounted to abuse of discretion.
    Mandamus by the people of the State of Michigan against Charles A. Withey, circuit judge, to compel respondent to set aside an order refusing to grant an extension of time for settling a bill of exceptions.
    Submitted January 2, 1917.
    (Calendar No. 27,579.)
    Writ granted January 23, 1917.

      Grant Fellows, Attorney General, and L. W. Carr, Assistant Attorney General (Clare Retan, Assistant Attorney General, of counsel), for relator.

      Thomas Smurthwaite, for respondent.
   Brooke, J.

This is an application for a writ of mandamus requiring respondent to vacate and set aside an order refusing to grant relator an extension of time for the purpose of settling a bill of exceptions. The following dates are important:

On April 7, 1916, judgment was entered in the circuit court of Manistee county adjudging one Hattie Belle Spencer to be the common-law wife, and so heir at law, of one James S. Madison, deceased, and against the contention of the people of the State of Michigan that the said James S. Madison, deceased, died without heirs, and therefore that his estate escheated to the State of Michigan.

On May 17, 1916, a transcript of the stenographer’s minutes was ordered by relator from Claude Curtis, official court stenographer of the nineteenth judicial circuit. By stipulation of the parties, an order was entered extending the time for settling a bill of exceptions from April 20, 1916.

On June 17,1916, a motion was made by relator for further extension of the time for the settling of a bill of exceptions, at which time relator filed the following certificate:

“Pursuant to the so-called judicature act, I hereby certify that the State, by the Attorney General, has ordered the record in the James S. Madison estate hearing, had at the last term of the circuit court for the- county of Manistee, and that . the same will be furnished as soon as possible.
“Claude M. Curtis,
“Official Court Stenographer
“Nineteenth Judicial Circuit of Michigan.
“Dated at Ludington, Mich., June 16, 1916.”

The respondent granted the motion and extended the time to July 15, 1916.

On July 6,1916, relator made the following motion:

“Now comes the above-named appellant, the people of the State of Michigan, by Grant Fellows, its attorney, and moves the court now here for an order extending the time for settling a bill of exceptions in the above-entitled cause to August 1, A. D. 1916. This motion is founded on the certificate of Claude Curtis and the affidavit of Clare Retan herewith filed, and on the records and files of this court in this cause and the rules and practice of this court.
“Grant Fellows,
“Attorney for Appellant.”

This motion was supported by the following affidavit :

“State of Michigan,
“County of Ingham,
ss.:
“Clare Retan being duly sworn deposes and says that he is one of the attorneys for the appellant and has principal charge of said appellant’s case. Deponent further says that on the 17th day of May, 1916, he ordered a transcript of the testimony taken in the hearing in the above-entitled case had in the circuit court for the county of Manistee from Claude Curtis, circuit court reporter in and for said county. Deponent further says that said Claude Curtis has not as yet furnished deponent with a transcript of said testimony. Deponent further says that, owing to his inability to secure the transcript of said testimony, said appellant is unable to settle a bill of exceptions within the time prescribed by the order of this court.
“Clare Retan,
“Assistant Attorney General.”

Upon the same day counsel for relator, wrote the official stenographer as follows:

“July 6, 1916.
“Mr. Claude Curtis,
“Ludington, Mich.
“Dear Sir:
“The time for a settlement of a bill of exceptions in the Madison case expires on the 15th instant. We are moving the court for a further extension of the time and will you, therefore, at your earliest convenience forward your certificate to Judge Withey at Reed City.
“Very respectfully,
“A. B. Dougherty,
“Deputy Attorney General.”

And likewise wrote the respondent a letter as follows:

“July 6, 1916.
“Hon. Charles W. Withey,
“Circuit Judge,
“Reed City, Mich.
“Dear Sir:
“Mr. Curtis has not as yet furnished us with a transcript of the testimony taken in the Madison case and it will, therefore, be necessary for us to secure a further extension of the time for settling the bill of exceptions. I have written Mr. Curtis requesting him to forward his certificate to you.
“Very respectfully,
“A. B. Dougherty,
“Deputy Attorney General.”

Respondent denied the motion for the following reasons:

“(1) There was lack of diligence on the part of the appellant in ordering the transcript of the testimony taken Upon the trial of said cause.
“(2) There was no showing of diligence, or of any effort, to procure the said transcript of the testimony within the time heretofore allowed by the court for the settlement of the bill of exceptions, and no reason was given, or shown, why there had been such delay in the matter, notwithstanding the fact that two previous extensions of the time originally,allowed by the court had been granted, and
“(3) There was no certificate of the stenographer of said court, showing that he had been unable to get the said testimony transcribed within the time previously allowed by the court for settling said bill of exceptions.”

So much of section. 62, chap. 18, of the judicature act (Act No. 314, Pub. Acts 1915 [3 Comp. Laws 1915, § 12634]) as is involved reads as follows:

“The court or the circuit judge at chambers may allow such time as shall be deemed reasonable to settle such exceptions and reduce the same to form: Provided, that no more than twenty «days shall be allowed for such purpose, except upon the production of a certificate from the stenographer of said circuit stating that the party desiring such extension has ordered a transcript of the testimony necessary for the preparation of said bill of exceptions, and that the same will be furnished as soon as possible by said stenographer.”

Counsel for respondent rely upon the following cases: Lake Shore, etc., R. Co. v. Circuit Judge, 116 Mich. 399 (74 N. W. 529); Fitzgibbons v. Circuit Judge, 152 Mich. 209 (115 N. W. 1053); Carrier v. Circuit Judge, 155 Mich. 344 (119 N. W. 575); Harper v. Circuit Judge, 155 Mich. 543 (119 N. W. 913); Northern Assurance Co. v. Circuit Judge, 169 Mich. 238 (135 N. W. 104); Burgess v. Circuit Judge, 171 Mich. 583 (137 N. W. 247).

We have examined all the cases relied upon with care, and, while it is apparent that a motion to extend the time for settlement of a bill of exceptions is addressed to the sound discretion of the circuit judge, this court has never held that, where a proper showing is made for such extension, the action of a circuit judge in denying the motion will not be reviewed, particularly when such action amounts to abuse of discretion. In the case at bar, we are of the opinion that the relator acted with reasonable prudence. A transcript of the evidence was ordered about five weeks after the entry of judgment, and, when it was not furnished within the time limited for the settlement of the bill of exceptions, a motion was made for an extension, based upon failure of the stenographer to furnish a transcript and upon his certificate under the statute that it had been ordered and would be furnished as soon as possible. Nine days before the expiration of this extension, a second motion was made, based upon the affidavit of the attorney for the relator, to the effect that the transcript of the testimony had not yet been furnished. This second motion was based, not alone upon the affidavit of 'counsel for the relator, but upon the records and files of the court in the cause, included in which was the certificate of the official stenographer filed upon the hearing of the first motion for the extension. The return of the respondent, to the effect that upon the hearing of the second motion he did not have before him the certificate of the official stenographer required by the statute, is in our opinion without force. The judicature act does not require a litigant seeking a second extension to file a second certificate from the official stenographer. The facts required to be certified to by the stenographer are two only:

First, that a transcript has been ordered; and, second, that the same will be furnished as soon as possible.

This information once conveyed to the court is sufficient to warrant repeated extensions by the court in the exercise of a sound discretion.

The mandamus will issue as prayed.

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