author:
Moore, C. J.
      Grant, J.

text:
    FOX v. MICHIGAN CENTRAL RAILROAD CO.
    1. Carriers—Injury to Passenger—Intoxicated Passenger-Contributory Negligence.
    A passenger in a state of beastly intoxication is not chargeable with contributory negligence in going on the platform of a moving train so as to bar recovery for injuries received from a fall from the train.
    2. Same—Sufficiency oe Evidence.
    In an action against a railroad company for injuries to an intoxicated passenger, caused by his falling or being thrown from the platform of a train while in motion, evidence examined and held to justify a refusal to direct a verdict for defendant. Grant, J., dissenting.
    3. Release—Joint Tort Feasors—Intoxicated Passenger—Injuries.
    Where plaintiff was injured while intoxicated by falling from a railroad train, and his wife thereafter sued to enforce her statutory right of action against the saloonkeepers, and their bondsmen, from whom plaintiff had obtained the liquor, which cause of action plaintiff and the wife thereafter released, such release did not discharge any right of action plaintiff had against the railroad company for the injuries sustained.

      Error to Calhoun; Hopkins, J.
    Submitted October 20, 1904.
    (Docket No. 56.)
    Decided December 14, 1904.
    Case by Arthur E. Eox against the Michigan Central Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      S. S. HuTbert (O. E. Butterfield and Henry Russel, of counsel), for appellant.

      Hatch & Page, for appellee.
   Moore, C. J.

The plaintiff, while intoxicated, stepped off the platform of a moving train belonging to defendant. He sued, and recovered a judgment for the injuries he received. The case is brought here by writ of error.

No error is assigned in relation to the admission of testimony or the charge of the court. The only one assigned is:

“The court erred in not sustaining defendant’s motion to take the case from the jury upon the grounds stated in said motion.”

The reasons stated in the motion are:

“ (1) Because the contributory negligence of the plaintiff bars his recovery, because, among other points, as a matter of law, he was not in the exercise of due.care or ordinary care in going out upon and being on the platform of the moving train while he was in that intoxicated condition; and because the brakeman did act with sufficient promptness to satisfy the law, the plaintiff- not being entitled to throw upon the brakeman the risk, hazard, and necessity of accurately and instantly judging plaintiff’s intoxicated condition, and of acting effectively in regard thereto; and because the negligence of the company was not gross, wanton, and reckless. * * *

“ (2) The release by the defendant to William G. None-man and others, in evidence in this case, is a complete bar to this action.”

It is said:

“ When a situation involving an instant choice of acts— of alternatives—is forced upon A. by the negligence of another, A. is not held, at his peril, to choose and act correctly, and with that same careful judgment which he would have exercised if he had time for a deliberate, instead of instant, determination. * * * Under the cir-

cumstances, the company can only be held for gross, wanton, and reckless negligence. Under all the circumstances, the failure of the brakeman to instantly and correctly sense the situation, especially when considered with his subsequent prompt effort to deter plaintiff from going out on the platform—an act which did not necessarily involve danger to plaintiff—cannot be considered as gross, wanton, or reckless.” Citing sections 103,104, Baldwin on Personal Injuries.

The testimony of Miss Bestel and Mr. Hoskins, which is not contradicted, is to the effect that at the station, just before taking the train, plaintiff “was very much under the influence of liquor; beastly drunk; staggering around.” The plaintiff was a witness, but claimed he was so drunk when he was on the train and at the time of the accident that he could remember but little about what occurred. His testimony throws very little light upon the situation. The only testimony giving a connected account of what occurred is the testimony of one of the passengers (Mr. Anderson), which in part is as follows:

“Saw him on March 7, 1902, in the Michigan Central depot at Marshall, about noon. My attention was called to him because he was staggering and very intoxicated. In every way, he looked like an intoxicated person. I was going to Battle Creek on the noon train that day, and did go on that train. Saw plaintiff on the train, but did not see him get on. First time I noticed him was after we reached Nichols Station, or was about leaving that station. I was sitting in the front end of the smoker, about the third or fourth seat from the front, on the left-hand side. * * * He was beastly drunk. He was staggering, and his face was covered with drool, and all over his mouth, and his clothes were displaced. I saw the brakeman at that time. I called the brakeman’s attention. He came up to the front of the coach as we were leaving Nichols Station, and I called his attention to plaintiff, who was trying to get out of the door. I said: ‘ That man ought not to be allowed on the platform.’ He didn’t say anything. I saw he was not going to start to stop him, and I started for the door. The brakeman certainly must have heard me, because he turned around and looked at him when I spoke. The brakeman had time, after I spoke to him and told him that plaintiff ought not to be allowed on the platform, to have intercepted him, if he had acted at once. I got to the door, and started to open the door, and the brakeman came right behind me. Plaintiff was on the platform, and just as I opened the door he fell off the platform under the coach on the left-hand side. He looked, apparently, to have gone under the wheels, but I cannot say. I said to the brakeman: ‘You ought to stop this train. That man is run over.’ He said, ‘ O, no; he is not;’ and he didn’t stop the train.”

On the cross-examination he testified:

Q. Mr. Anderson, how soon after Mr. Fox went to the door and started out on the platform did you start after him ? A. Just a very few seconds. I do not know how many.

Q. And the brakeman. was practically right on your heels? A. He was back of me; yes, sir.

Q. Going the same way that you were ? A. He had started back through the car, and, as I started toward the door, followed me toward the place where Fox was. * * * At the time I started out on the platform after plaintiff, the plaintiff was trying to open the door. He was staggering so he could hardly get it open. He grabbed for the knob and missed it, and grabbed for it again. He was so drunk he could hardly stand up.

Q. This was after you told the brakeman that he ought not to let that man out on the platform ? A. No, sir; he was trying to get on the platform, but he had not got out yet.

Q. You saw plaintiff fumbling with the door knob, or groping for it and trying to get it, and then you spoke to the brakeman, that he ought not to let him get out ? A. I said that he ought not to be allowed on the platform. I did not say he should not do it.

Q. Then Fox, continuing in his efforts, got the door open, and you started after Fox? A. No, sir; Mr. Fox started to open the door, and had it nearty open, and then I started to stop him from going out.

Q. And the brakeman after you ? A. Yes, sir.

Q. It was all a matter of a few seconds? A. Yes, sir.”

On the redirect examination he testified:

Q. You stated the brakeman started after you called his attention, that he looked at Fox, and that he started back? A. Yes, sir; he did not start toward Mr. Fox. He started back. I think he had time to reach Fox before he got on the steps, when I called his attention to him. It was only two or three seats back. I spoke out loud, and I am sure he heard me, because he looked at Fox, and paid no further attention to him. He said nothing until he got out on the platform. I asked him to stop the train, and he said, ‘ No, he is not hurt,’ and we could not see him from the platform. ”

The testimony of the policeman who helped place the plaintiff on a stretcher when he was found lying on the ground and was removed to the hospital was to the effect that “plaintiff was then so drunk as not to realize his condition, and was not able to help himself.” This testimony is uncontradicted. The defendant showed upon the trial that an unsuccessful effort had been made to produce the brakeman as a witness at the trial.

The aüthorities cited by counsel for defendant do not throw much light upon the question.

Yan Zile on Bailments & Carriers, § 653, reads:

“ It is a general rule that a passenger must exercise ordinary care and diligence in avoiding injury. But while this is true, it may be said that it is the duty of the carrier to warn the passenger as to dangerous situations, and, failing to do so, the carrier will not be permitted to defend upon the ground of contributory negligence upon the part of the passenger in an action for an injury received because of such danger. This duty to warn the passenger .against danger does not apply, of course, to every case. The circumstances of the particular case are to be taken .into consideration. “As, for example, where a passenger •cannot be said to understand the danger of his situation, or where the passenger is a young person, inexperienced, .and not aware of the danger in which he is placing him,self, or one who is somewhat demented or even intoxicated, or deaf and dumb or blind—such persons require more attention, and the duty of the carrier is to extend to them greater care than to the ordinary passenger. These, of course, are but examples. Each case must stand upon, its own particular circumstances.”

In Cooley on Torts (2d Ed.), p. 768, it is said:

‘ ‘ Where the business of a carrier is to transport both persons and property, his obligation and his consequent liability in respect to the two are different. Eor the safe transportation of the property he is responsible as insurer, with the exceptions already stated, but in the case of passengers he only undertakes that he will carry them without negligence or fault. But as there are' committed to his charge for the time the lives and safety of persons of all ages and of all degrees of ability for self-protection, and as the slightest failure in watchfulness may be destructive of life or limb, it is reasonable to require of him the most perfect care of prudent and cautious men, and his undertaking and liability as to his passengers goes to this extent: That, so far as human foresight and care can reasonably go, he will transport them safely. He is not liable if injuries happen from sheer accident or misfortune, where there is no negligence or fault, and where no want of caution, foresight, or judgment would prevent the injury. But he is liable for the smallest negligence in himself or his servants. And this liability is applied with great strictness, as well as great justice, when he undertakes to transport passengers by the powerful and dangerous agency of steam.”

In East Saginaw City R. Co. v. Bohn, 27 Mich. 503, Justice Cooley, speaking for the court, said:

“ That the duty of the railway company not to permit persons to ride in unsafe places on their cars is the same, and rests upon the same reasons, with their duty not to-make use of vehicles wholly unsafe, appears to me entirely clear. There are, without doubt, some limitations upon that duty, growing out of the manner in which their business is usually and properly conducted, but it does not become necessary to consider those limitations at any length in the present case. Such carriers could not, in reason, be required to be insurers of their passengers against all dangers, nor, perhaps, to employ a person to keep watch upon their passengers to protect them against dangers resulting from their own folly or neglect. Perhaps it is admissible that the driver should be also conductor, in which case he could not be expected to watch against persons falling off the rear platform or crawling out of the window. If, however, it was dangerous for passengers to stand or sit on the front platform, where the driver himself would be, it would not only be his right and duty to notify any who might occupy it of the danger, but, if they were of an age not to be likely to understand the risk, or able to judge for themselves, or if he knew them to be insane or otherwise unable to exercise discretion, the duty would not be fully performed without an enforcement of proper regulations to compel their occupying positions less exposed.”

In Kingston v. Railway Co., 112 Mich. 40, Chief Justice Long, speaking for the court, said:

“The court charged the jury:

“ ‘ If you find that, at the time he was upon this place, he was intoxicated, then he could not recover in this case, because in the case of an intoxicated man the company was not expected and the law would not require of this company that it should guard an intoxicated man against injury, standing in the place he was standing.’

“This charge was erroneous. It was asserted by the plaintiff that he was pushed off or thrown off by defendant’s conductor, and the fact that he was intoxicated would not give the conductor the right to push him off. The question of his intoxication was a matter to be taken into consideration by the jury in determining whether or not the plaintiff was in the exercise of due care in standing upon the running board while he was in that intoxicated condition, but his condition would be no excuse to the company if its conductor negligently and wrongfully pushed him off.

“ In Thomp. Neg. p. 1174, it is said:

“ ‘Intoxication on the part of the plaintiff at the time of the accident does not constitute negligence, in law, warranting a nonsuit or a peremptory instruction for the defendant, but is a circumstance to go to the jury on the question of contributory negligence.’

“This seems to be the general rule. Stuart v. Machias Port, 48 Me. 477; Alger v. City of Lowell, 3 Allen, 402.”

See, also, Pittsburg, etc., R. Co. v. Caldwell, 74 Pa. St. 421; Brennan v. Railroad Co., 93 Mich. 156; Louisville, etc., R. Co. v. Johnson, 108 Ala. 62.

In the case at bar it is shown beyond any reasonable question that the plaintiff, while beastly drunk, was making an effort to go from a place of safety to a place of danger. The attention of the brakeman was called to the situation by a passenger who saw the danger. The brakeman looked and the jury might have inferred he saw the condition of the plaintiff. Instead of going to the drunken inan and attempting to prevent his exit from the car, he went in the other direction. It was not until after the passenger, seeing the failure of the brakeman to act, attempted to prevent the danger, that the brakeman made any effort in that direction. This effort came too late.

Under the facts disclosed by the record and the law we have cited, we do not think it can be said the court erred, as to this feature of the case, in refusing to direct a verdict for the defendant.

This defense is based upon the following facts: Previous to the trial of the case at bar, Mrs. Fox, the wife of plaintiff, sued the saloonmen who sold Mr. Fox the liquor which made him intoxicated, and their bondsmen. Afterwards, and before the case was tried, the case was settled, and Mr. Fox joined in a receipt releasing the defendants in that action from liability. It is now said, the saloonmen who were defendants in that case and the defendant in this case are joint tort feasors, and the release of one released all. The trouble with this proposition is that the wife had a cause of action given to her by the statute against the saloon keepers and their bondsmen, while the plaintiff had no such cause of action, and in joining in said release he did not release any right of action he might have against the railroad company.

Judgment is affirmed.

Carpenter, Montgomery, and Hooker, JJ., concurred with Moore, C. J.

Grant, J.

(dissenting). Plaintiff purchased a ticket and took defendant’s train at Marshall, where he lived, to go to Battle Creek, a few miles distant. He had voluntarily become intoxicated when he purchased his ticket and entered the train, but was able to walk to and board the train1- without any difficulty, so far as this record shows. He entered the water-closet, which was close to the door. As the train reached Nichols Station, a short distance from Battle Creek, he emerged from the closet, stood with his back to the interior of the car, opened the door, went upon the platform, and, through his intoxication, either fell or jumped from the train, supposing the train was leaving Battle Creek, and was seriously injured. He brought suit against the railroad company and recovered a verdict. He alleges in his declaration that he was in a state of intoxication; that his condition was known to the defendant; that the defendant, through its employé, a brakeman, had been notified by a passenger of his condition; that said brakeman was able to prevent the plaintiff from going out upon the platform, but that he made no attempt to do so, and willfully, wantonly, maliciously, and negligently permitted said plaintiff to pass out of said door and onto the platform of said moving train.”

I find it unncessary to discuss what duty a railroad company owes to a passenger who.enters a train in an intoxicated condition. See Strand v. Railway Co., 67 Mich. 381. Admitting that the carrier owes a peculiar duty to such a passenger, that duty is only required when the carrier is notified or has knowledge of the intoxicated condition of the passenger. In my judgment, no such notice or knowledge is shown by the evidence in this case.

Plaintiff, after testifying to his drinking just before boarding the train, and to going into the water-closet, said:

“I came out of the water-closet and came to the car door, and came out because I thought I heard the conductor hollering, ‘ Battle Creek.’ I thought the car had started, and was leaving Battle Creek. Came out of the closet and opened the door and started to get off the train. That was my intention. Came out on the platform. The car was in motion. I knew it to be a fact that the car had started. Then I fell off. I do not remember whether I stepped on the steps or not.”

The only testimony relied upon to show that the brakeman knew plaintiff’s condition is that of Anderson, a fellow passenger. The brakeman, after diligent search, could not be found, and we have not the benefit of his testimony. According to the testimony of Anderson, the brakeman was passing through the car, with his back to the door. Anderson saw the condition of plaintiff, as it appeared from his face, and dress, and action, as he emerged from the closet. The brakeman did not see it. It is but a step or two from the closet to the door. Plaintiff stood with his back to Anderson and to the brakeman, when Anderson spoke and said: “That man ought not be allowed on the platform.” Anderson did not tell the brakeman why he made the statement. There was no more in the statement to indicate that he was intoxicated than that, in the judgment of Anderson, he was insane, or for some other reason should not be allowed to go out of the car. The only reason Anderson had for believing that the brakeman heard him was that he turned and looked towards the plaintiff. What was there in the action or looks of plaintiff as he stood by the door, with his back to the brakeman, to indicate that he was in a state of intoxication or that he needed assistance ? Was the brakeman bound to instantly leave his other duties and accept the statement of Mr. Anderson as true, at the risk of imposing liability upon his employer ? Mr. Anderson, seeing that the brakeman did not immediately respond to his statement, got up and started for the door. The brakeman seeing him do this, instantly followed, and, before either could reach him, although they were only about three seats back, plaintiff had opened the door, gone out upon the platform, and fallen or jumped off. All this was done in a few seconds. It would be a rule, in my judgment, not justified by reason or by authority, to say that the brakeman was bound to act instantaneously on such a statement made by a passenger. Plaintiff was sober enough to buy a ticket, walk to and board the train, walk in and out of the closet, go to the door, open it, and walk out upon the platform. He thought he had heard the name of the station where he desired to alight called, and it is very probable that he had heard the brakeman announce that as the next station. If the brakeman heard Mr. Anderson and looked around at plaintiff, there is no testimony to show that at that instant there was anything to indicate to the brakeman that plaintiff was intoxicated. Was the brakeman bound to act instantly upon the statement by a passenger that another ought not to be allowed upon the platform, and to assume that such passenger was drunk, and to rush instantly to his rescue ? I cannot so hold.

I think the judgment should be reversed, and no new trial ordered.


source: Caselaw Access Project

author: Moore, C. J.

license: Public Domain

text:
    CULVER v. SOUTH HAVEN & EASTERN RAILROAD CO.

      Í. Trial—Misconduct of Counsel—Both at Fault.
    Reversal will not be granted for misconduct of counsel where counsel on both sides are equally guilty.
    2. Evidence—Testimony at Former Trial—Impeachment.
    Where, to contradict plaintiff, the court reporter is sworn, and testifies as to plaintiff’s answers to two questions on a former trial, using an abstract from his notes to refresh his recollection, it is not competent for plaintiff to then read to the jury the entire abstract of his testimony on the former trial.
    3. Master and Servant—Injuries to Servant—Pleading- and Proof—Instructions.
    Where, in an action by a brakeman against a railroad company for personal injury, the declaration counts on a defect in the track, an instruction that permits recovery on the theory that a coupler was defective is erroneous, and is not cured by a, subsequent one that plaintiff, to succeed, must make out a case as alleged in his declaration.
    4. Same—Duty op Master— Care Required—Instructions.
    An instruction, in an action for injury to a brakeman, from his foot being caught between a bolt and a spike in the track, that it was defendant’s duty to keep the space between the rails in a reasonably safe condition for the use of its employés, is erroneous; the company not being under the absolute duty to keep its tracks in a reasonably safe condition, but being required only to exercise reasonable watchfulness and care in inspecting its tracks and in keeping them in a reasonably safe condition.
    Error to Van Burén; Carr, J.
    Submitted October 20, 1904.
    (Docket No. 68.)
    Decided December 14, 1904.
    Case by William Culver against the South Haven & Eastern Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Samuel H. Kelley (Edward Maher, of counsel), for appellant.

      T. J. Cavanaugh and L. A. Tabor, for appellee.
   Moore, C. J.

The plaintiff sued defendant to recover damages received by him while acting as a brakeman. He recovered a judgment for $15,000. A motion was made for a new trial, which was overruled. No request was made of the trial judge that he file his reasons for overruling the motion, and none were filed. The case is

brought here by defendant by writ of error.

Counsel for defendant contend:

(1) The verdict was against the overwhelming weight of the evidence.

(2) That Culver was not in the exercise of ordinary care, being guilty of contributory negligence.

(3) That the defendant did not receive a fair trial, owing to misconduct.

(4) That the learned trial court erred in ruling upon evidence.

(5) That the learned trial court erred in charging the jury.

We will consider these questions in the order presented.

1 and 2 may be considered together. Was the verdict overwhelmingly against the weight of evidence ? Can we say, as a matter of law, Culver was guilty of contributory negligence ? Without going into details, we may say an examination of the record satisfies us the plaintiff presented a case making it the duty of the trial judge to submit it to a jury under proper instructions.

This assignment of error relates to the conduct of plaintiff’s counsel during the taking of testimony and while presenting the case to the jury. We have no hesitancy in saying that if the conduct of Mr. Tabor, about which complaint is made, was the only improper conduct of counsel, we should reverse the case, and direct a new trial. The misconduct, however, was not confined to counsel upon one side. We do not feel it our duty to attempt from this record of nearly 300 pages to decide who of the counsel was most to blame. We do say the conduct of Mr. Tabor on one side and Mr. Maher on the other was such as ought not to be permitted in any court of record anywhere.

The language of Justice Shauck in Cleveland, etc., JR. Co. v. Pritschau, 69 Ohio St. 438, 446, is pertinent here:

‘ ‘ If it be assumed that the orderly administration of justice is not to be insisted upon, and that the truth may, by accident, be evolved from such scenes as were here enacted, it is sufficient that the misconduct of counsel was in its natural effect prejudicial to the rights of the plaintiff in error, and it does not appear from the record that it did not in fact result in such prejudice. An examination of the cases cited and others justifies the conclusion that for such misconduct, and even for that which is less flagrant, judgments are always reversed, unless it is made to appear that its natural effect has been averted by court or counsel, or both. * * * Throughout the record a trial judge, personally distinguished for learning and probity, appears as a grieved observer of continued improprieties which he thought himself powerless to suppress. It is entirely clear that he was unable to end them by admonition and entreaty, but he was clothed with ample power to suppress them inexorably. The county in which he sat has the complement of county buildings. * * * It is much more important to observe that the trial judge should not have permitted such conduct on the part of counsel as would result in a mistrial. This was due not only to the parties to the suit, but to the public. * * * The observations of the trial judge from time to time show that he had an intelligent appreciation of the gravity of' the offenses which were committed before, him. Why he thought it less important to suppress them than to give correct instructions to the jury as to the law of the case does not appear.”

Did the court err in the admission of evidence F As a rule, he did not, but in one instance we think an error was made, which may have made a difference with the final result. There had been a former trial of the case, in which Mr. Culver was a witness. For the' purpose of contradicting him the court reporter was sworn as a witness, and testified as to the answers made by Mr. Culver on the former trial to two questions, using an abstract taken from his notes to refresh his recollection. The plaintiff was then allowed to read to the jury the entire abstract of the testimony given by Mr. Culver on the former trial. We do not think this was competent. The other assignments of error in relation to this branch of the case are either not well taken or are not at all likely to occur again.

Did the trial judge err in his charge to the jury F He gave all of defendant’s requests to charge which it was proper for him to give. With one exception, we think the remaining portion of his charge was a correct statement of the law. It is the claim of plaintiff, and so stated in his declaration, that while attempting to couple a car his foot caught between a bolt which projected through the rail of the track and a spike which projected up from the railroad tie, and while thus caught that he was run down by the car and severely injured.

Among other things, the judge charged the jury:

“You are instructed that the defendant owed it asa duty to the plaintiff as a brakeman on the road to keep the coupler on the caboose of the train on which he was directed to work in a reasonably safe condition for use, and so it could be safely coupled onto another car at any time when necessary. And if you find that at the time plaintiff was injured it was broken, or out of repair so it could not be safely used or coupled onto another car, and plaintiff was so informed by the conductor; and because of its being so broken or out of repair the conductor directed the plaintiff to go to the car then being backed up to be coupled ■onto the caboose, but that the coupler on that car was not so constructed that it could be coupled onto the caboose from its sides, but was so constructed that, in order to open it, plaintiff was obliged to go in front of it, between that car and the caboose, and while there in the discharge of his duty, and while in the exercise of ordinary care and prudence, was injured by being run over—then the plaintiff is entitled to recover in this case.”

It will be observed that this charge would permit the .jury to give plaintiff a verdict, for a cause of action not ¡stated in his declaration. It is true that in another part of the charge the jury was told plaintiff must make out a case as alleged in his declaration, but we are not able to say it may not have been misled by the charge we have ■ quoted. The court also charged as follows:

“You are instructed that it was the defendant’s duty to keep the space between the rails and tracks in a reasonably safe condition for the use of its employés when there in the discharge of their duty.”

The duty which the law imposes upon the company is to exercise reasonable watchfulness and care in inspecting its tracks and in keeping them in a reasonably safe condition. The law does not impose the absolute duty to keep them in a reasonably safe condition. Anderson v. Railroad Co., 107 Mich. 591; 3 Elliott on Railroads, § -1268. Under this instruction, if the company had exercised all ordinary care and watchfulness, and the roadbed had for some reason suddenly become unsafe, the company would be held liable. To illustrate: If some one had driven the spike there, or immediately after inspection had placed some obstruction upon the roadbed, thereby making it unsafe, the defendant would have been liable.

For the reasons assigned, the judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Montgomery, J.

text:
    MACK v. SHARP.
    1. Criminal Libel—False Charge of Crime.
    One who circulates a libel may be guilty of the offense denounced by 3 Comp. Laws, § 11762, making it a misdemeanor to falsely charge another with the commission of a crime.
    2. Malicious Prosecution—Defenses —Evidence —Guilt.
    In malicious prosecution, it may be shown that plaintiff was in fact guilty of the offense charged against him by defendant, notwithstanding his acquittal.
    3. Witnesses—Privilege—Attorney and Client.
    It is not necessary that a fee be asked or accepted by an attorney, to entitle a client to protection under the rule against an attorney testifying to disclosures made by his client.
    Error to Livingston; Smith, J.
    Submitted November 15, 1904.
    (Docket No. 84.)
    Decided December 14, 1904.
    Case by Grlenn S. Mack against James Sharp for malicious prosecution. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      William P. Van Winkle and W. E. Scott, for appellant.

      Odell Chapman and Henry C. Smith, for appellee.
   Montgomery, J.

This is an action for malicious prosecution. The plaintiff was, at the instance of defendant, arrested upon a charge of criminal libel. He was acquitted, brought this action, recovered substantial damages, and defendant brings error. Numerous assignments of error appear in the record, but we discuss only such as are likely to arise on a new trial.

The court held and instructed the jury that one could not be guilty of an offense under section 11762, 3 Comp. Laws, who circulates a libel. This view of the law is opposed to the authorities. 18 Am. & Eng. Enc. Law (2d Ed.), p. 1056.

The'court also ruled throughout the case that in this action the defendant was not at liberty to prove that the plaintiff was in fact guilty of the criminal offense imputed to him in the prosecution instituted by the defendant. It is well established by authority that in an action for malicious prosecution it is a complete defense to show that the plaintiff was in fact guilty of the offense charged against Mm by defendant, and this though the proof of guilt is furnished by evidence not known to defendant when the prosecution against the plaintiff was instituted. This testimony is not in such case offered in support of probable cause, but to show that the plaintiff has suffered no wrong by his arrest. The law considers that, if a criminal is fortunate enough to escape conviction, he should rest content with his good luck, and not belabor one who suspected his guilt and acted accordingly. As was said in Newton v. Weaver, 13 R. I. 617:

“ The action for malicious prosecution was designed for the benefit of the innocent, and not of the guilty. It matters not whether there was proper cause for the prosecution, or how malicious may have been the motives of the prosecutor, if the accused is guilty he has no legal cause for complaint.”

See, also, Threefoot v. Nuckols, 68 Miss. 123; Whitehurst v. Ward, 12 Ala. 264; Parkhurst v. Masteller, 57 Iowa, 478; Turner v. Dinnegar, 20 Hun, 465; Lancaster v. McKay, 103 Ky. 616.

Inasmuch as it is essential to the plaintiff’s action to show a termination of the criminal action as a basis for his suit for malicious prosecution, it is competent to establish this fact by the verdict of acquittal. 2 Black on Judgments, § 529. But it is not conclusive evidence of the plaintiff’s innocence. Id.

Plaintiff’s counsel cite the case of Josselyn v. McAllister, 25 Mich. 45, as sustaining the ruling of the circuit judge. It does not appear that the precise question of whether the actual guilt of plaintiff could be given in evidence as a defense was discussed in that case. It is true that testimony which might have amounted to an admission of one element of the offense was held properly excluded on the ground that defendant was not shown to have had knowledge of the fact when the prosecution was instituted by him. It was said that, “if Josselyn acted without any knowledge or suspicion of the supposed fact, it could in no way affect his motives”—a proposition obvious enough in itself, and quite conclusive as to the admissibility of the proposed testimony in that case, for the opinion shows there were joined in that action counts for malicious prosecution and false imprisonment, and by a reference to the report of the case at a former hearing (22 Mich. 304) it will be seen that the counts for malicious prosecution were disposed of on the first trial at the circuit, so that in the first opinion it was very pertinently said, “ As no state of facts relied upon would have made the arrests lawful, the defense depends, so far as this class of testimony is concerned, purely on the consideration of malice.”

The case of Patterson v. Garlock, 39 Mich. 447, also cited, does not sustain the ruling below. Indeed, some of the language employed by Mr. Justice Graves makes strongly for what we hold to be the correct rule. In that case testimony offered by the plaintiff to establish his innocence was received. The court held that, while it was not bound to make affirmative proof of his actual innocence, yet such testimony was admissible.

Mr. Justice Graves said:

“ It requires no reasoning to show that, where the question is whether one man has fair ground to charge another with a crime, it cannot be laid down that the abstract fact of his guilt or innocence must be necessarily impertinent and immaterial.”

There was error in the court’s ruling.

One Byron Hicks was called as a witness' to testify to statements made to him by Mack at about the time of his arrest. Mr. Hicks is an attorney, and testified that this conversation occurred in his office. The court excluded the testimony on the ground that the relation of attorney and client existed. The record shows that the witness did in fact advise the plaintiff at that time, and that he asked the plaintiff certain questions relating to the matter. He testified that he could not state whether the plaintiff consulted him as to the law or not, but we think his further testimony discloses that he was so consulted. It is not necessary that a fee be asked or expected in order to entitle the client to invoke the protection of this relation. Weeks on Attorneys, § 143. It should be stated that Mr. Hicks does not appear to have been in any sense a volunteer witness, and that his testimony bears every evidence of candor.

The other questions presented are so far dependent on those discussed that they are quite unlikely to arise again.

The judgment is reversed, and a new trial ordered..

The other Justices concurred.


author: Per Curiam.

text:
    SCHMID v. BENZIE CIRCUIT JUDGE.
    Mandamus—Judge—Discretion—Trial.
    Mandamus will not be granted to compel a circuit judge to proceed with the trial of a chancery case while an action at law between the same parties, involving the same subject-matter, is pending on writ of error in the Supreme Court; his refusal to proceed under such circumstances not being an abuse of discretion.
    Mandamus by Frederick Schmid to compel Clyde C. Chittenden, circuit judge of Benzie county, to proceed with the trial of a case in chancery.
    Submitted November 15, 1904.
    (Calendar No. 20,746.)
    Writ denied December 14, 1904.

      B. M. Thompson, for relator.

      D. O. F. Warner and Thomas Smurthwaite, for respondent.
   Per Curiam.

The merits of the controversy involved in the present proceeding are stated in Mack v. Village of Frankfort, 123 Mich. 421; Schmid v. Village of Frankfort, 131 Mich. 197.

While' the suit at law was pending, brought by the relator against the village of Frankfort, the village filed a bill of complaint, setting forth the invalidity of the park bonds, which are the subject of litigation; that Mack & Schmid, the purchasers thereof, were not bona fide purchasers; and asked that the bonds be declared void and be delivered up and canceled, and for an injunction to restrain the defendant from negotiating the bonds. The relator, the defendant in the suit, answered, asserting that they were good-faith purchasers, and that they paid full value therefor, and asked that the bill be dismissed. The answer also set up the validity of the bonds in the hands of the relator as bona fide purchasers, prayed affirmative relief that the village be decreed to pay the interest then due upon the bonds, and the bonds be declared valid. The complainant’s default for not answering the cross-bill was entered. Subsequently the solicitors for the respective parties stipulated that the default be set aside; that the replication and plea be treated and considered as filed; that the cause be considered at issue, and be for hearing and submitted at the then term of court. That stipulation was, on motion, set aside by the respondent, and the respondent refused to proceed with the hearing of the chancery case until the termination of the suit at law, in which verdict and judgment have been entered against the relator, and which is now pending on writ of error in the Supreme Court.

The relator asks the writ of mandamus to compel the respondent to proceed with the hearing of the chancery case. We do not think that the respondent has abused his discretion in refusing to hear the case until the determination of the suit at law, now pending in the Supreme Court.

For this reason, the writ will be denied.


author: Hooker, J.

text:
      In re BUTLER.
    1. Criminal Law—Habitual Criminals—Statutes—Repeal.
    Sections 11785 and 11786 of the Compiled Laws, providing for additional punishment of habitual criminals, are not repealed by section 2112 pertaining to an allowance of good time for good behavior in prison.
    :2. Same—Sentence—Presumptions.
    Though a convict previously convicted cannot be subjected to the increased penalty provided by 3 Comp; Laws, §§ 11785, 11786, unless he is sentenced to imprisonment for at least a year for the offense committed, without reference to the increased penalty, where a criminal has been twice convicted, and is sentenced on a third conviction to imprisonment for 20 years for larceny, it will be presumed that he was. given the maximum punishment of 5 years’ imprisonment for-the larceny, and that the remainder of the sentence was therefore properly imposed, under section 11786.
    3. Habeas Corpus—Irregular Sentence—Writ op Error.
    Where a criminal has been properly convicted, but irregularly sentenced, the irregularity cannot be reviewed by habeas corpus, since the writ cannot be substituted for a writ of. error.
    Habeas corpus proceedings by James Butler to obtain Ms release from imprisonment in the State prison at Jackson.
    Submitted November 17, 1904.
    (Calendar No. 20,816.)
    Prisoner remanded December 14, 1904.

      Thomas, Cummins & Nichols, for petitioner.

      Charles A. Blair, Attorney General (George S. Law,, of counsel), for respondent warden.
   Hooker, J.

On October 19, 1897, the petitioner was* sentenced to confinement in the State prison for 20 years upon a conviction of the offense of larceny from a dwelling in the daytime, the penalty for which is such confinement for a period not exceeding 5 years. It was alleged, in the information and proved upon the trial that he had been twice before convicted and sentenced to terms of one-year or more, and the brief for the petitioner states that-“it is supposed that this penalty was imposed by reason of the provisions of sections 11785 and 11786 of the Compiled Laws of 1897.” These sections are as follows:

“When any person shall be convicted of any offense, and shall be duly sentenced therefor to confinement in the State prison of this State, for one year or more, and it shall be alleged in the indictment on which such conviction is had, and admitted or proved on the trial, that the convict has before been sentenced to a like punishment by any court in this State, or in any other of the United States, for a period not less than one year, he shall be sentenced to be punished by imprisonment in the State prison not more than seven years, in 'addition to the punishment prescribed by law for the offense of which he shall then be convicted.

“When any such convict shall have been twice before sentenced to imprisonment at bard labor, for a period of not less than one year at each time, by any court in this State, or in any other of the United States, he shall be sentenced to imprisonment at hard labor for life, or for a term of not less than seven years in addition to the punishment prescribed by law for the offense of which he shall then be convicted.”

Two points are relied upon as grounds for the petitioner’s discharge: (1) That sections 11785 and 11786 were repealed by section 3113; (3) that under section 11785 it was necessary to the validity of an increased sentence that the record show that, at least one year of the term was not included in the additional penalty imposed under section 11786.

Section 3113 is a statute pertaining to an allowance of good time for good behavior in prison. It is in no sense an imposition of additional penalty upon confirmed criminality, to be imposed by the court, but is a reduction of such penalty, to be allowed by the prison board, upon the basis of the prisoner’s conduct subsequent to sentence. In re Canfield, 98 Mich. 644.

The second point is a technical one. It is first argued that under neither of these sections (11785 and 11786) can one be subject to increased penalty unless he is sentenced to confinement for at least one year for the offense committed, without reference to the penalty. If this be conceded, we are justified in presuming that the maximum punishment (i. e., five years) was imposed under the statute punishing such offense, and that the remainder was imposed under the provisions of section 11786. Again, the defendant’s conviction was affirmed, after sentence, by this court. See People v. Butler, 122 Mich. 36. If the technical error now relied upon had been then raised it would have been considered, but it was not. Had it been held fatal, the cause would have been remanded for sentence, when the full penalty could have been imposed, as before. It is even doubtful if this question could have been raised in habeas corpus in the first instance. See the following authorities cited by the attorney general: In re Underwood, 30 Mich. 502; Hamilton’s Case, 51 Mich. 174; In re Coffeen, 38 Mich. 311; In re Maguire, 114 Mich. 80; In re Bishop, 172 Mass. 35. These cases sustain the rule that when there is a valid conviction and an irregular sentence, which may, under the law, be corrected by a new sentence, habeas corpus will not be permitted to perform the function of a writ of error.

The petitioner’s prayer is denied, and he will be remanded to the custody of respondent.

The other Justices concurred.


text:
    RUMSEY v. AUDITOR GENERAL.
    Bill of Review—Tax Sales—Deoree—Validity—Vacation.
    Where a petition to file a bill of review shows a decree authorizing a sale of petitioner’s lands for nonpayment of taxes, which decree petitioner claims is invalid, and the answer, in effect, admits that there are no taxes against the land which have not been extinguished, and that there is no existing lien, petitioner should be allowed to file such bill to set aside the decree.
    Appeal from Gratiot; Stone, J.
    Submitted November 16,1904.
    (Docket No. 87.)
    Decided December 14, 1904.
    Petition by Chauncey J. Rumsey against Perry F. Powers, auditor general, and another, for leave to file a bill of review. From a decree dismissing the petition, petitioner appeals.
    Reversed.

      Nichol & Locke, for petitioner.

      M. B. Salter, for respondent.
   Moore, C. J.

This proceeding contains many of the features passed upon in Rumsey v. Griffin, ante, 413. The petitioner is the same person. It relates to the same tax ■and to the same tax proceedings, but to a different description of land.

The petition contains this averment:

“Your petitioner further shows that the said lands of your petitioner are now held by the State of Michigan under and by virtue of the said State bid, and the said auditor general holds out and pretends that he has authority to and will sell said lands or the State’s bid.”

The answer in this case differs very materially from the other. It says:

“1. The S. W. i of S. E. section 14, town 9 north, range 1 west, county of Gratiot, was assessed for drain taxes in 1882 under the drain law of 1881. That such drain taxes were reassessed under the provisions of the drain law of 1885, and returned, advertised, and subsequently bid to the State, but, acting under authority of law, the auditor general did on June 30,1900, cancel such bid, and reject the taxes so returned to him, and charge the same back to the county of Gratiot. That such taxes have not been, and could not be, for the reason, charged back, reassessed upon the S. W. j of S. E. J of section 14, and they are therefore actually, and as a matter of fact, wholly extinguished.

“ 2. For the reason that there are no taxes under the assessment for drain purposes made in 1882, now delinquent under the original assessment or a reassessment, and charged against such land, the allegations of petitioner are not of force, as they do not and cannot refer to an existing lien, and petition should for this reason, and for the reason that there are no taxes of 1882 for drain purposes now charged against the S. W. i of S. E. {- of section 14, 'be dismissed.”

This case, like the other, was heard upon petition and answer, and the petition dismissed. This action of the trial court does not give the petitioner the relief to which he was entitled under the pleadings. The petition shows a. decree authorizing a sale of petitioner’s lands, which decree the petitioner claims is invalid. The answer admits, in effect, that there are no taxes against the land which have not been extinguished, and no existing lien. If this is true, the decree should be set aside. The petitioner should be allowed to file his bill of review to accomplish that purpose.

The decree of the court below is reversed, and one will be entered here in accordance with this opinion.

The other Justices concurred.


author: Carpenter, J.

text:
    FRIESEKE v. FRIESEKE.
    1. Guardian ad Litem—Neglect—Relief in Equity.
    Equity will relieve an insane defendant from the consequences of the neglect of her guardian ad litem appointed on complainant’s nomination.
    2. Bill of Review — Insane Defendant — Decree Obtained, Through Neglect of Guardian.
    Where a decree of divorce against an insane defendant rests entirely upon testimony elicited by leading questions to which her guardian ad litem made no objection and the decree was-not opposed though barely supported by the evidence considered in its most favorable light, an application by defendant’s general guardian to file a bill of review should be granted.
    3. Same—Decree for Alimony.
    The application should also be granted in such a case where it appears that through the guardian’s neglect defendant’s allowance for permanent alimony in lieu of dower was based! on evidence disclosing only one-fifth the value of complainant’s property.

      4. Guardian ad Litem—Propriety of Appointment—Nominee of Complainant.
    A near relative or close friend of an insane defendant should he appointed guardian ad litem, rather than some person nominated by complainant.
    Appeal from Shiawassee; Smith, J.
    Submitted November 16, 1904.
    (Docket No. 88.)
    Decided December 14, 1904.
    Bill by Herman C. Frieseke against Marie Frieseke for a divorce. On petition of defendant for a rehearing, the petition was dismissed, and defendant appeals.
    Reversed.

      Watson & Chapman, for complainant.

      Albert L. Chandler, for defendant.
   Carpenter, J.

This is an appeal from an order denying a rehearing after a decree of divorce had been pronounced in favor of complainant and against defendant. The facts, so far as material to this decision, are these t At the time this suit was commenced defendant was insane, and confined in the insane asylum at Pontiac. The subpoena was served upon her personally. After the lapse of time for appearing, complainant filed a petition for the appointment of a particular named person as guardian ad litem for defendant. This petition, together with notice of hearing the same, was also served on defendant and the superintendent of the asylum. At the day set for hearing said petition the trial court appointed complainant’s nominee guardian ad litem. This nominee was not related to defendant, and does not appear to have been a special friend of defendant. The solicitor for the guardian ad litem and for complainant stipulated for an early hearing of the case. On this hearing, complainant, his daughter, and said guardian ad litem (the latter testifying to the condition of defendant), were the sole witnesses. Upon this testimony, and on the day of the hearing, complainant was given a divorce on the ground that defendant had been guilty of extreme cruelty, and alimony in the shape of an annuity of $200 during her life was given defendant in lieu of dower and all other claims upon complainant.

It is stated in the petition for rehearing, among other things, that the complainant’s charges of extreme cruelty were untrue; that the testimony given on the hearing, if properly analyzed, did not warrant a decree of divorce; that complainant himself has been guilty of acts of extreme cruelty, which are there specified; that the allowance for alimony is grossly inadequate, because complainant has property amounting in value to over $40,000.

In his answer to this petition, respecting the charges of his own extreme cruelty and the valuation of his property, complainant contents himself with saying that he objects to their consideration, “for the reason that they do not in any manner tend to weaken complainant’s cause for a divorce, but, if the facts were all true, which this complainant denies, they would only tend to show that complainant might be entitled to a divorce.”

Under the circumstances we must conclude, even if complainant had made a case entitling him to a divorce, which is extremely doubtful, as we shall hereafter show, defendant had a complete defense to that case in her counter charges, and that the allowance for alimony was grossly inadequate. (For the award of alimony, as will more fully appear hereafter, must have been made on the assumption that complainant was worth about $8,000.)

It is clear, therefore, that the decree works an injustice to defendant, and it ought to be vacated unless it may be said that she did not avail herself of the proper opportunity to present her testimony. It cannot be said that defendant neglected the proper opportunity to present her case, because she personally did not attend to her defense. She was incapable of doing that. Under the circumstances she had to depend upon the good faith and diligence of her guardian ad litem. That guardian ad litem, as heretofore stated, was the nominee of complainant, and apparently not a special friend of defendant’s. We accept the decision of the trial court, which exonerated said guardian ad litem from all charges of bad faith. But if, through his neglect, defendant lost rights because her case was not properly presented, the consequences should in equity—and this is a suit in equity—be chargeable to complainant, who nominated him, rather that to defendant, who was powerless to act.

Assuming, as claimed by said guardian ad litem, that, though he used all diligence, he could find no testimony tending to prove the charges of complainant untrue, it was nevertheless his duty to defendant to insist that complainant should obtain no unfair advantage by asking leading questions, or in any other way; to object to a decree against defendant unless the testimony clearly warranted it; and to see that the financial condition of complainant be clearly proved, in order that a proper award of alimony be made to defendant.

Said guardian ad litem, though represented at the hearing by a solicitor, made no objection to leading questions. To show the opportunities he neglected, we quote from complainant’s testimony:

Q. I want to know if you know of any time when she would exclude herself from the children ? A. Yes.

Q. When was it ? Shut herself away from the children ? A. Yes. * * *

Q. What interest did she manifest in the success of your daughter while she was away from home ? Did you talk and try to read the letters your daughter wrote, or talk about your daughter or Fred while in school ? What was her manner ? Appear to care anything for them ? A. No, she never had any interest, and, knowing that fact, we never talked much about it.

Q. Some time in her record you must have learned she cared nothing about them ? A. Yes.

“ Q. When was it that you learned from her manner that she cared nothing about hearing about what your children were doing in school ? A. That gradually grew on her all these years; kept getting worse from time to time until it reached this stage.

“Q. Did you ever start in to read your daughter’s letters? A. I often showed her the letters, laid them down for her to read. I never read them to her that I can remember.

“Q. She paid no attention to them? A. That I can’t remember. I can’t say she didn’t read them, but not to my knowledge. She didn’t pay any attention to them. As far as her manner indicated itself, she rather not pay any attentión to them. * * *

“Q. That finally became her manner toward you, and the domestic relations between the children and each other ? A. Yes.

“Q. That continued for a space of— A. For that time.

For more than ten years? A. Yes, for most of our married life'.

“Q. What can you say about this conduct toward yourself and. towards your children having destroyed all the social relations and tender relations of home, so far as the wife was concerned ? A. I can only say this: That it destroyed them entirely. There was no harmony in our household. Not that we had any words, or anything of that kind, but there was a cold indifference during all our life.

“ Q. You set out in your bill that it caused you great mental anguish and suffering. Is that true? A. Yes, sir.

“Q. How did it affect your children as to taking all the playfulness and joy and pleasure from them in the home? Did it destroy that ? A. It made our household gloomy, of course, excepting such times as they would come to me.”

We quote from the examination of complainant’s daughter:

Q. About how long after the marriage was it before she began to manifest a coldness toward you and your brother, if at all ? A. Almost immediately. * * *

Q. Was it cold indifference toward you children? A. Yes, sir.

u Q. What can you say of that making the household a very solemn and melancholy place ? A. Well, it did.

Q- Did it take all the good time and enjoyment of you children and your father out of your home ? A. It certainly did. * * *

Q. Did her manner indicate to you that she didn’t care anything about it, and would be better pleased if you weren’t succeeding very well ? A. Yes, sir. * * *

Q. Did it grow worse as time went on ? A. Yes, sir.

Q. Was it almost unbeárable along the latter years ? A. It was.”

It is to be presumed that this testimony—weak as it is— would have been still weaker if it had not been drawn out hy these leading questions. This presumption finds support in certain other testimony, namely:

Complainant himself testified:

“I, of course, don’t say by that [referring to his testimony that defendant’s action made his home unpleasant] she is entirely to blame. Of course, things were unpleasant between us all, and, of course, it made it unpleasant.”

And the daughter testified:

‘ ‘ She was cold and distant in a way, and still in a way ■she was kind. She was kind toward father. I cannot say that she ever ill-treated him to my knowledge.”

It is obvious that by asking these leading questions ■complainant obtained an advantage—an unfair advantage—and it was clearly the duty of the guardian ad litem to object to it.

"Complainant testified that during the latter portion of their married life defendant occasionally occupied a separate bed for more than a month at a time. Unless this ■constituted an act of extreme cruelty—and I do not understand that to be claimed—it may be said that the record •does not show that defendant ever did to complainant or to complainant’s children a cruel act, or ever said to complainant or to complainant’s children a cruel word.

I think it fair to say that the ground upon which complainant seeks a divorce is that his home was unpleasant partly, and only in part, because defendant, by her manner and actions, indicated toward his children cold indifference ; and this indifference was mingled with kindness. If this matter had been presented, as it should have been, hy the guardian ad litem to the trial court, we cannot believe that a decree of divorce would have been granted complainant.

Neither did the guardian ad litem, acting through his solicitor, make proper proofs respecting complainant’s, wealth. As already stated, the only witness upon that subject was complainant himself, and the only testimony on that subject was brought out by the cross-examination of the solicitor of the guardian ad litem. We quote that testimony:

Q. I wish you would tell the court what are your present means. Give a general idea as to your property. * * * A. That would be hard to estimate at this time for the reason my property—my brother and I own éverything together.

Q. What is the income from your manufacturing business ? A. It would be hard to make an estimate on that.

Q. About what? A. A good deal of that is in real estate, and hard to put a price on.

Q. I say about what is your income from the brick business ? A. The income of the brick business ? From two to three thousand a year.

Q. By the Court: You get half of that ? A. Yes, sir.

Q. You own a home ? A. Yes, sir.

Q. What is the value of that ? A. The home I consider worth about $3,000.

Q. What would you say your interest in the brick business? ■ Would you say $5,000 would be a fair valuation of your interest in it ? A. It would be so long as the business continued. If it discontinued, it would not be that.”

We get from this testimony simply an estimate of the value of the home and the value of complainant’s interest in the brick business. It is fairly to be inferred from this testimony that much of the property owned by complainant and his brother is real estate. The value of that real estate is. not shown. It is clear that the guardian ad litem and his solicitor did not bring out evidence which they should have known would have increased the allowanoe for alimony to defendant.

Under these circumstances, we are bound to say that the guardian ad litem neglected his duty; that, as a consequence, defendant did not have the hearing which in equity she was entitled to have; and that the consequences of this neglect should be borne by complainant, whose nominee the guardian ad litem was, rather than by defendant. In such a case, therefore, it is clearly our duty (see Sheldon v. Hawes, 15 Mich. 519; Johnson v. Shepard, 35 Mich. 125; Mickle v. Maxfield, 42 Mich. 310; Murray v. Ingersoll, 100 Mich. 286; Kinsel v. Kinsel, 126 Mich. 693) to reverse the order of the circuit court denying the defendant a rehearing, and to remand the case for further proceedings.

We think it proper to say that complainant should not have been permitted to select defendant’s guardian ad litem. The trial court should have appointed to this office some near relative or close friend of defendant, or some other person who could be relied upon to guard her interests. And under the circumstances of the case we feel called upon to say that the legal guardian of defendant should be substituted in the place of the present guardian ad litem. The defendant will recover costs of this court.

The other Justices concurred.


author: Cabpenteb, J.

text:
    SOUTH ARM LUMBER CO. v. SILVERTHORNE.
    Appeal and Error—Questions Considered—Questions Argued.
    Reversal will be granted only on some ground urged in appellant’s original brief.
    Appeal from Marquette; Stone, J.
    Submitted November 17, 1904.
    (Docket No. 99.)
    Decided December 14, 1904.

      Bill by tbe South Arm Lumber Company against Asa K. Silverthorne and others, copartners as Silverthorne & Co., to enforce a lien for the sawing of certain lumber. From a decree for complainant, defendants appeal.
    Affirmed.

      A. B. Eldredge and A. F. Miller, for complainant.

      Clark & Pearl, for defendants.
   Cabpenteb, J.

Complainant sawed a quantity of lumber for defendants. He brings this suit to enforce a lien against a part of that lumber for a balance of the saw bill claimed to be unpaid.

The only ground stated in defendants’ original brief for the reversal of the decree—and this, therefore (see Gould v. Gregory, 133 Mich. 382), is the only ground upon which we should reverse it—is that the trial court reached a wrong conclusion from the testimony.

It is urged that the proper conclusion of fact to be drawn from this testimony is, not that there was a balance of |1,700 due complainant, as the learned trial judge found, but that it had been paid by defendants.

It is sufficient to say that a careful examination of the testimony convinces us that the trial court reached a correct conclusion.

The decree is therefore affirmed, with costs.

The other Justices concurred.


text:
    SHOOK v. MARION MANUFACTURING CO.
    1. Brokers—Contracts—Sales—Machinery—Commissions—Resales.
    A season contract of agency in writing for the sale of threshing machinery, which by its terms ends September 30th of the season, and provides that no commissions shall be paid for the sale of secondhand machinery once before sold by the agent, has no reference to commissions for the second sale of machines which had once been sold by the agent before the date of the contract.
    3. Same.
    A similar contract for a prior year in existence when the machinery was first sold would not deprive the agent of his commission for its subsequent sale after that contract had expired.

      2. Same—Oral Agreement.
    A provision in such written contract forbidding its change unless approved in writing by the principal does not invalidate ( an oral agreement for commissions on sales not within its terms.
    4. Appeal and Error—Immaterial Errors — Judgment Right on Merits.
    Alleged errors in the rulings admitting testimony will not be considered where, in any view that may be taken of the case, a verdict should have been directed for defendant in error.
    Error to Bay; Shepard, J.
    Submitted November 17, 1904.
    (Docket No. 112.)
    Decided December 14, 1904.
    Assumpsit by Helen M. Shook against the Marion Manufacturing Company for commissions on the sale of certain machinery. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.

      Lee JEJ. Joslyn, for appellant.

      Pierce & Kinnane, for appellee.
   Carpenter, J.

By direction of the trial court, plaintiff recovered a verdict for commissions claimed to have been earned by her in July, 1901, by making a sale of a threshing machine for defendant. This threshing machine was a secondhand one. It had once before, namely, in 1899, been sold by plaintiff, as defendant’s agent, to one Daniel Dean. Dean did not fully pay for it, and defendant reacquired title by the foreclosure of a purchase-money chattel mortgage. For said sale to Dean, plaintiff did not receive, and does not claim, any commission.

Plaintiff effected the second sale of this machine—the sale for which she claims commission in this suit—under a verbal agreement with defendant’s general agent that she should receive her regular commission; that is, the commission provided in a written contract between the parties. Upon the assumption that this verbal agreement was of binding force, the trial court directed a verdict in plaintiff’s favor.

The principal ground upon which defendant asks us to reverse the judgment is that, by a written contract between the parties, plaintiff was not entitled to compensation for making a sale of secondhand machines once sold by her, except under conditions which did not exist in this case. The only written contract set forth in the record bears date December 5, 1900, and was for the season ending September 30, 1901. If this contract should be construed as claimed by defendant—and this is by no means certain—it has no application to the sale in question. That contract has no reference to plaintiff’s commissions for the second sale of machines which had once been sold by plaintiff before the date of this contract.

Neither can we say from the record that the contract with defendant under which plaintiff acted when she first sold the machine in question, namely, when she sold it to Daniel Dean, deprived her of commissions in the event of its being returned and resold.

Defendant contends that a provision in the written contract between the parties forbidding its change, unless such change was approved in writing by defendant, applied to and prohibited the verbal agreement between its agent and plaintiff respecting the commissions in suit. Our conclusion, already stated, that this written contract had no reference to the sale in question, sufficiently shows that, in our judgment, the verbal agreement under consideration was not a change of said written contract. Nor does it appear to be a change of any other written contract.

Complaint is made of rulings admitting testimony. We do not consider these complaints, because, in any view that may be taken of the case, it was the duty of the trial court to direct a verdict for plaintiff.

Judgment is affirmed, with costs.

The other Justices concurred.