author: McAlvay, J. Bird, J,

text:
    KIPLINGER v. KIPLINGER.
    1. Divorce — Alimony—Permanent Alimony.
    Alimony awarded in a gross sum by a divorce decree is not intended as a division of the husband’s estate, but as his contribution to the support of the wife.
    2. Same — Husband and Wife — Damages — Division of Property.
    From an estate of §7,000, principally cash, defendant, who was capable of earning $300 or more a month, should be required to pay §3,500 as permanent alimony to his wife whose health his cruelty had impaired, and who possessed a small property of her own, subject to mortgage, worth about §4,000 or more. Bird, J., dissenting.
    3. Same — Injunction.
    The dissolution of an injunction restraining defendant from disposing of his funds on deposit in a bank was improvidently ordered before the entry of the final decree, but after the decision of the court was made; the restraining order is reinstated and defendant adjudged to have full rights to enforce the decree.
    4. Same — Contracts—Antenuptial Agreement.
    Alimony should not be refused complainant because of an oral antenuptial agreement that she should retain her individual control over her property.

      Appeal from Wayne; Donovan, J.
    Submitted June 17, 1912.
    (Docket No. 110.)
    Decided November 8,1912.
    Bill by Grace Rodger Xiplinger against Charles E. Xiplinger and others for divorce and an injunction to restrain defendant from withdrawing funds o_n deposit. From a decree for complainant, denying any alimony and dissolving a preliminary injunction, she appeals.
    Reversed as to alimony, injunction reinstated.

      M. J. Lehman & Sons, for appellant.

      Harry H. Wait, for appellee.
   McAlvay, J.

Complainant filed her bill for divorce against defendant in the circuit court for the county of Wayne on the ground of extreme cruelty, and also charging adultery. The Detroit United Bank of Detroit and the Old National Bank of Battle Creek were made parties defendant, and an injunction was prayed and granted against all the defendants for the purpose of preventing the principal defendant from interfering with complainant or her property and from disposing of the household goods and furniture, and from disposing of his moneys, of which about $7,000 consisted of cash on deposit in said banks. Defendant Xiplinger answered at length, denying all extreme cruelty and any illicit relations with the woman named in the bill of complaint, or any other woman. The banks answered, admitting the amount of cash on deposit at the time. Issue was joined, and the case was heard upon pleadings and proofs taken in open court. A decree of divorce from the bonds of matrimony was granted complainant on the ground of extreme cruelty, and a small amount of temporary alimony was allowed, but the court denied complainant any permanent alimony. An opinion was filed November 10, 1911, granting a decree of divorce on the ground of extreme cruelty, and later, on December 4th, further proofs having been taken upon the question of alimony, no change was made in this decision, and a decree was settled, signed, and filed December 9th. On December 5th, before this decree was signed, an order was made by the judge who heard the cause dissolving the injunction which restrained defendant from withdrawing his funds from the banks named, or otherwise disposing of his property. On December 7th complainant moved to vacate and set aside such order, claiming, among other things, that it had been made without notice to complainant or any of her solicitors, and because they had no opportunity to be heard upon the motion granting an absolute dissolution of the injunction. This motion did not come on to be heard until after the expiration of the term of the said judge, and was heard by another member of that court and denied. Complainant has appealed from the decree of the court, the order dissolving the injunction, and the order denying the motion to vacate such order for dissolution. ■

Complainant upon this appeal asks for a modification of the decree in the matter of the disallowance of permanent alimony, claiming that, under the evidence and the decisions of this court, permanent alimony should have been allowed, and also claiming that the. order dissolving the injunction should not have been granted, and that such order should have been set aside.

These parties were married in Pretoria, South Africa, February 22, 1906. Shortly afterward, they came to the United States, and resided for a time in Davenport, Iowa, where they attended a chiropractic school, from which they graduated, since which time the defendant has been engaged in practice. After leaving Davenport, Iowa, they resided for a brief time in several places, and finally came to Detroit, where they lived for three years prior to their separation. They have no children. From the undisputed evidence in the case, as appears from the record, this defendant, prior to the time of the separation and filing this bill by complainant, was guilty of extreme cruelty toward her, and on many occasions assaulted her violently in a brutal and inhuman manner, from which she suffered mentally as well as physically, and has, on account of such treatment, been on the verge of nervous collapse. His conduct with reference to other women was reprehensible. He was in correspondence with a woman who wrote love letters to him, and he met her in her room at a hotel in Detroit, where, she was registered under an assumed name, under such circumstances as to leave no doubt in the mind of . the court that he sustained illicit relations with her.

Upon the matter of permanent alimony, which was denied by the court, it appeared that defendant Kiplinger had about $7,000 in cash, a good business as a practitioner, with an income of $300 or $40o'a month and no children; that most of his property had been earned by their joint efforts since their marriage. It appears he also retained all of the household furniture and effects. Before her marriage with defendant, complainant had some property in her own right. The real estate was situated in Leith, Scotland, and consisted of a building from which but a small income was realized, and upon which there was a mortgage of $5,000, which the record shows is about all that could be realized from a foreclosure. She also had some personal property to the amount of about $4,000, and the record shows that at times their necessities required that she should use, and did use, her own means. It would appear that, because complainant had some means of her own, and because of a claimed antenuptial agreement, the court who heard the case refused to grant permanent alimony. The record shows that there was an agreement between these parties before marriage relative to her individual property, which she desired to keep and control; but the record as clearly shows that no agreement in writing was ever entered into by complainant, and that no antenuptial agreement was ever made between the parties which should be taken into consideration in determining the question of her right to permanent alimony.

In a recent case before this court, the question of permanent alimony was fully considered, in which Mr. Justice Steers, speaking for the court, said:

“ While this is a statutory award of permanent alimony in a gross sum, under a decree of absolute divorce ending the domestic relations and community of interests, the significance of such an award should not be lost sight of. Alimony, by whatever authority it is conferred, is an incident of marriage, and based on the underlying principle that it is the duty of the husband to support his wife, not necessarily to endow her. Primarily, it signifies, not a certain portion of his estate, but an allowance or allotment adjudged against him for her subsistence, according to his means and their condition in life during their separation, whether it be for life or for years. In practical application an award of permanent alimony in a gross sum may result in a division of the husband’s estate; but the controlling element not to be lost sight of is his compulsory contribution for her support and maintenance under obligations of the marriage contract.” Bialy v. Bialy, 167 Mich. 559 (133 N. W. 496).

The complainant in this case, a woman of refinement in broken health, is not only not at fault, but she has suffered, at the hands of this defendant, irreparable injury, and is entitled to permanent alimony for her support and maintenance in a gross sum in such an amount as this court, in the exercise of its judicial discretion, taking into consideration all the circumstances of these parties, may determine, and such amount is fixed at the sum of $3,500.

Complainant also upon this appeal asks this court to set aside the order heretofore mentioned dissolving the injunction, and also the order made later in said cause denying the motion to vacate and set aside such order. From this record it appears that there is no doubt that the order dissolving the injunction was improvidently made, under the circumstances of this case, where defendant has no real estate and all his available personal estate was safeguarded to her by the injunction. It was made on the day following the final decision of the court relative to permanent alimony and before the decree had been drawn, settled, and signed. In making the motion to set aside this order December 7, 1911, two days after it was made, complainant acted with due diligence. The counter affidavit of the solicitor for the defendant was. not filed until more than a month and a half after the term of office of the circuit judge who made the order expired, and on the same day upon which said motion was.heard before another circuit judge of said circuit court and denied. Both of these orders should be and are hereby vacated and set aside, and the said injunction in a}l respects is reinstated and given full force and effect, leaving complainant to such remedy as she may have in the premises to enforce this decree. The decree of the circuit court, as indicated by the foregoing opinion, is modified, and a decree will be entered according to the terms of this opinion, complainant to recover the costs of both courts, to be taxed.

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

Bird, J,

In view of all the circumstances of this case, I think, the award of permanent alimony is too large. The parties had been married but a few years, and complainant has an estate nearly as large as defendant’s. The award should not exceed $1,000.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    ROULO v. SCHILLER BUND.
    1. Insurance — By-Laws—Constitution—Contracts.
    Provisions of the by-laws of a mutual- benefit association, dispensing with notice to defaulting policy holders that is expressly required by the constitution of the order, must yield in case of irreconcilable conflict, to the constitutional requirements, by which the policy will be governed.

      2. Same — Presumption.
    In interpreting by-laws of a local body, they will be presumed to have been enacted in contemplation of general constitutional requirements of the order.
    3. Same.
    Where a by-law of a lodge required all members to pay assessments promptly to the secretary before a stated date, or lose the benefits of the association without special notice, the court will harmonize the by-law with constitutional provisions requiring notice to the member of his default, and if-notice was not given, the policy remained in force.
    Error to Wayne; Mandell, J.
    Submitted June 13, 1912.
    (Docket No. 99.)
    Decided November 8, 1912.
    Assumpsit by Elizabeth Roulo against the Schiller Bund upon a benefit certificate. Judgment for plaintiff upon a directed verdict. Defendant brings error.
    Affirmed.

      John H. Dohrman, for appellant.

      Charles L. Coulson (George X. M. Collier, of counsel), for appellee.

      As to 'conflict between by-laws and certificate, or policy, of mutual benefit society or - insurance company, see note in 47 L. R. A. 681.

   McAlvay, J.

Plaintiff, the beneficiary named in a certain beneficiary fund certificate issued to her husband by the defendant, a mutual benefit insurance society, organized and doing business under the laws of the State of Michigan, brought suit against defendant to recover the amount claimed to be due her as such beneficiary. Joseph Edward Roulo, the deceased husband, was received as a member of the local verein or lodge No. 3, in Detroit, of the Schiller Bund, February 26, 1907, and the following; certificate was issued to him:

“Schiller Bund.
“ German Life Insurance Society of the city of Detroit, county of Wayne and State of Michigan, incorporated under the laws of the State.
. “ Beneficiary Fund Certificate.
“ Know all men by these presents, that Joseph Edward Roulo, has been accepted as a member in the Schiller Bund, Schiller Verein No. 3, and that as such member, he is entitled to all the rights and privileges of the bund, and that after his demise an amount not exceeding the sum of one thousand dollars shall be paid out of the benefit fund of the society to his wife, Elizabeth Roulo, in conformity with paragraphs 18 and 19 of the constitution of the society.
“This obligation is only valid and in force if the above-named member of the society has in every respect complied with the laws of the Schiller Bund, and in case of his failure to do so this obligation to become null and void and of no effect.
“In testimony whereof, we, as officers of the executive committee of the Schiller Bund, have hereunto affixed the seal of the bund, as well as our own signatures at Detroit, this 26th day of February, A. D. 1907.
“The President of the Executive Committee of the Schiller Bund,
“Julius Sommerfield.
“ The Secretary of the Executive Committee of the Schiller Bund,
“William Haase.
“ Signature of the member:
“Joseph Edward Roulo.
“ Witness to above signature:
“August Sievert,
“ President of Verein No. 3;
“Ernest Voss,
“ Secretary of Verein No. 3.”

He died September 14, 1910. The last payment made by him to the society, as appears from his passbook, was on July 28, 1910. The trial resulted in a judgment in favor of plaintiff upon a directed verdict for $997.60. A like motion made by defendant at the same time was denied, and later a motion for a new trial was also denied.

The case is here for review upon a writ of error. The brief of defendant and appellant is confined to a discussion of the error assigned upon the direction of a verdict for plaintiff. The determination of this question rests entirely upon the construction given to the provisions of the constitution of the above corporation and the by-laws of the verein or local lodge No. 3, of which deceased was a member. It appears from the notice attached to the plea, that defendant relies upon the claimed failure by plaintiff’s decedent to pay assessment No. 180, of the month of August, 1910, before the 28th day of said month or at any time, and that thereby at the time of his death he was not entitled to any benefit under his certificate, which had become null and void by his failure to comply with the requirements of the constitution and by-laws of the defendant. It is an admitted fact upon the record that plaintiff’s decedent died on the date mentioned, and no question is raised as to proofs of death or proper presentation of plaintiff’s claim under this certificate as beneficiary, or that he was in arrears for nonpayment of any other assessment, and one payment of 50 cents for quarterly dues. The following provisions of the constitution and by-laws require consideration:

“Article 17. — Membership.
“ Subsec. m. — Every member of the bund shall receive, after initiation, a certificate of his or her class, duly executed, and shall signify his or her acceptance of the laws of the bund with his or her full signature.
“ Subsec. n. — Every member is obliged to pay all assessments called by the executive committee promptly, failure to do so forfeits all rights and privileges as a member.”
“Subsec. v. — A member failing to pay dues to the society within the prescribed time shall lose benefits in the bund as well as a member not paying the assessments.”
“Article 20.
“ The assessments are called by the executive committee and not more than one assessment shall be called for each death. The executive committee shall, however, have power to call an assessment every six months for the purpose of establishing a reserve fund. One assessment per month shall be levied without further notice until the reserve fund shall have reached the required amount. After the reserve fund has reached the required amount the executive committee may relinquish this rule. Should a member fail to pay an assessment within the time specified, such member shall be out of benefit, but thirty days’ time may be given to pay the arrearages, and if paid within this time the member shall again be considered in good standing from the date of such payment. Should a member neglect to pay the assessments during this time it shall become the duty of the secretary to notify the member before the 28th day of the second month by registered letter to pay the assessment together with 50c for costs within ten days after the 28th day of the second month, otherwise, the member shall be stricken from the roll. The executive committee may grant thirty days’ further time to a member about to be stricken. The executive committee shall have power to call assessments in all cases where it shall consider it for the benefit of the bund to see that two full assessments be on hand and ready for payment at all times in the beneficiary fund. The final accounting of an assessment, or determining the amount of the respective beneficiary shall take place 60 days after calling the ássessment through the secretary of the bund.”

The following by-laws of Yerein No. 3, Schiller Bund, were put in evidence and are material:

“ Paragraph 15. To cover the necessary cost of management, every member is obliged to pay quarterly in advance the sum of 50c to the financial secretary. Upon failure to do so the member loses all benefits accruing from the bund.
Paragraph 16. All members are to make all payments promptly to the financial secretary within the time specified, that is, every month - up to the 28th, otherwise' they shall be out of benefit without special notice.”

The record shows from the passbook of plaintiff’s decedent that from the time of his initiation, February 14, 1907, up to and including July 28, 1910, his initiation fee and all assessments in serial number from 134 to 179, inclusive, and all quarterly dues which were charged against him, with the exception perhaps of the quarter beginning July 1, 1910, were paid and receipted for by E. Yoss, financial secretary of Yerein No. 3. These payments are not disputed. They were made by the deceased at his house to a Mr. Schultz, at the time vice president of the above verein, who took the book and the money to the secretary who entered the payments and signed his name.

Appellant claims tha,t, under the provisions of the bylaws above quoted, deceased, not having paid assessment No. 180 when due, on the 28th day of August, 1910, forfeited all right and privilege of benefit as a member; that these provisions are self-executing. Subsection “n” of article 17 of the constitution, already quoted, makes provision for the payment of all assessments promptly, and failure to do so forfeits all rights and privileges as a member. Subsection “v,”also above quoted, provides that failure of a member to pay dues “within the prescribed time shall” deprive him of “the benefits in the bund as well as a member not paying assessments.” Article 20 of the constitution of the bund, above quoted, provides explicitly for all assessments which may be called by the executive committee, the only body authorized to make any. assessments, as follows:

(1) Not more than one assessment shall be called for each death.

(2) The executive committee shall have power to call an assessment every six months for the purpose of establishing a reserve fund.

(3) “ One assessment per month shall be levied without further notice until the reserve fund shall have reached the required amount.” Then said committee may relinquish its rule.

Article 20 of the constitution also provides that—

‘ ‘ Should a member fail to pay an assessment within the time specified such member shall be out of benefit, but thirty days’ time may be given to pay the arrearages and if paid within this time the member shall again be considered in good standing from the date of such payment.”

Further provision is made as follows:

“ Should a member neglect to pay the assessments during this time it shall become the duty of the secretary to notify the member before . the 28th day of the second month by registered letter to pay the assessment together with 50c for costs within ten days after the 28th day of the second month, otherwise the member shall be stricken from the roll.”

By this constitutional provision, a positive duty is imposed upon the society through its secretary to notify a delinquent member, in the manner pointed out, to pay such assessment, with costs, before his benefits become forfeited. In this case this duty was not performed. Petherick v. Order of the Amaranth, 114 Mich. 420 (72 N. W. 262); Dick v. Order of the Amaranth, 150 Mich. 215 (113 N. W. 1125).

The whole contention of appellant rests upon the provisions of the by-laws 15 and 16, above quoted, regarding payment of dues and assessments; it being claimed that, if such payments are not made on or before the 28th of the month, all benefits are forfeited. If this contention is correct, these by-laws are directly in conflict with the provisions of article 20 of the constitution, which we have restated at length for the purpose of ascertaining whether there is a conflict between these provisions, or whether they can be reconciled. Paragraph 15 of the by-laws quoted fixes the quarterly dues at 50 cents, payable quarterly in advance. ‘ ‘ Upon failure to do so a member loses all benefits accruing from the bund.” Paragraph 16 requires members to make all payments promptly within the time specified; “that is, every month up to the 28th, otherwise they shall be out of benefit without speciál'notice.”

The clear provisions of the constitution of the order of which deceased was a member must be considered as its fundamental law, and if by fair construction the provisions of these by-laws cannot be reconciled therewith, the fundamental law must govern. These provisions of the constitution require affirmative action on the part of the local body. In the instant casé no such action is claimed to have been taken. On the contrary, it is insisted that no action is required.

In our opinion, the by-laws may be construed to be in harmony with the fundamental law of the order. In support of this construction we find that the two by-laws relied upon by appellant are upon the same subjects as subsections “n” and “ v” of article 17 of the constitution, above quoted, and in terms they are very similar. It is evident that the local body had in mind, in the enactment of these by-laws, the provisions of the constitution upon these matters, and it will be presumed that the intention was to be in accord with such provisions. The constitutional provisions of article 17, being subdivisions “ n ” and “v” must be read together and in connection also with the provisions of article 20, relative to the necessity of notice to be given to a delinquent member. These paragraphs of article 17 of the constitution provide that a member delinquent in payment of assessments and one delinquent for nonpayment of dues are to be treated alike before rights to benefits are forfeited. This is made clear from a reading of the subsection relative to dues, which provides that a delinquent “shall lose benefits in the bund as well as a member not paying assessments,” a reasonable interpretation of which would be “in the same manner,” or “under the same conditions,” “as a member not paying assessments.” In further support of this construction, we find that payments under both by-laws were treated exactly alike. Attention is called to the evidence in the record, which shows that it was not expected or required that dues should be paid earlier than assessments, but both were paid and accepted on or before the 28th of each month. This has been the practical construction given to these by-laws by the officers and members of this order.

In the instant case, as already determined, affirmative action on the part of the order was required to be taken before the right of a member to benefits could be forfeited. It is admitted that no such action was ever taken.

We, agree, therefore, with the conclusion of the trial court that the right of the deceased and his beneficiary to benefits under the certificate in question had not been forfeited, and that plaintiff was entitled to recover. The trial court was not in error in directing a verdict for the plaintiff for the amount stated.

The judgment of the circuit court is affirmed.

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


author: Steere, J.

text:
    TOTTEN v. TOTTEN.
    1. Evidence — Assault — Husband and Wife — Self-Serving Declarations.
    In an action for assault and battery, including forcible ravishment, it was competent to show by plaintiff that, on the day following, she complained to her husband of defendant’s wrongful act.
    3. Same.
    Error did not occur on the trial in refusing to strike out testimony that defendant had asked a witness to,“go on his bond ” after plaintiff’s husband had approached him threateningly the day following the assault.
    3. Same — Trial—Cross-Examination.
    Nor was it error to permit plaintiff’s attorney, on cross-examination, to ask a witness, who gave testimony in support of defendant’s claim of an alibi, whether he had been charged with and tried for statutory assault upon a girl of less than 15 years of age.
    4. Rape — Trial—Charge—Force Used — Civil Liability.
    Where plaintiff in one count charged assault and battery and in a second charged forcible ravishment, and her evidence supported a recovery under the second count, defendant, who denied that he had assaulted or ravished plaintiff and who claimed an alibi, was not entitled to a requested instruction that because plaintiff’s evidence showed she was taken unawares and frightened so she could not resist, the jury might find that plaintiff consented to the unlawful relations.

      5. Assault and Battery — Rape—Resistance.
    A married woman is entitled to recover for assault and battery accompanied by rape, if the act was perpetrated against her will, whether or not she resisted to the limit.
    6. Same.
    In such civil action the charge of carnal knowledge does not change the nature of the action for assault and battery, it is> only matter of aggravation, affecting the measure of damages.
    7. Same — Trial—Evidenoe.
    Instructions given upon plaintiff’s request that if defendant’s witnesses testified falsely in support of his alleged alibi, the fact might be considered as bearing upon defendant’s guilt, was not error, nor was defendant prejudiced by failure of the court to charge similarly as to plaintiff’s witnesses, in the absence of any request for such a charge.
    8. Same — Charge—Punitive DamAges.
    The court should have given a requested instruction that plaintiff was only entitled to compensation, and anything, beyond that was unauthorized, that the jury could not award an additional sum as punishment for the alleged wrong; the error was not obviated by instructing the jury that the purpose of awarding damages was to compensate plaintiff for her injuries, and not to punish defendant, the language of the charge being advisory rather than mandatory, and in view of plaintiff’s statement that her purpose in commencing suit was to punish defendant, not to get money, the charge was insufficient.
    9. Damages — Reputation—Good Name — Evidence.
    Without special averments of the declaration or testimony tending to show that plaintiff was injured in her good name and reputation, it was error to permit the jury to award damages for that element of the alleged assault.
    10. Same — Exceptions—Saving Questions eor Review.
    Upon errors committed by the court in charging the jury, a party may assign error without bringing the matter to the attention of the trial judge. 3 Comp. Laws, § 10247, 5 How. Stat. (2d Ed.) § 12960.
    Error to Kent; McDonald, J.
    Submitted June 21, 1912.
    (Docket No. 64.)
    Decided November 8, 1912.
    Trespass by Myrtle Totten, an infant, by Ryol J. Totten, her next friend, against Bien H. Totten, for assault, battery, and rape. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Rodgers & Rodgers and M. L. Dunham, for appellant.

      Albert B. Cogger and Ellis & Ellis, for appellee.
   Steere, J.

Plaintiff instituted these proceedings against defendant in an action of trespass to recover damages'for an assault and battery committed upon her person, including a ravishment. The assault is alleged to have taken place at plaintiff’s home in the township of Solon, Kent county, Mich., on Friday, the 26th of August, 1910. The case was tried in Kent county circuit court before a jury, and plaintiff recovered a verdict and judgment in the sum of $3,000.

Defendant has removed the case to this court on writ of error, alleging 16 assignments — 12 to the charge of the court, 3 with reference to the admissibility of testimony, and 1 to the court’s refusal to grant defendant’s motion for a new trial. At the time of the alleged assault, plaintiff was a married woman 20 years of age. She had been married 4 years, and was the mother of one child, 21-years old. Her husband, Ryol J. Totten, is a nephew of the defendant, and at the time in question was his tenant. Plaintiff and her husband were occupying and cultivating a farm of defendant, consisting of about 90 acres, located a little over a mile eastward from the village of Cedar Springs, in which village defendant resided with his family. By the arrangement under which plaintiff and her husband occupied the farm, defendant had reserved to himself a small room on the first floor of the farmhouse, called the “clothes press,” to which there was access by a door from without, an inner door connecting with an adjoining bedroom usually occupied by plaintiff and her husband. Defendant was a man 54 years of age, having a wife and two grown daughters. Both he and his wife, singly and together, were accustomed to visit the farm from time to time as any matter of business or inclination suggested. They apparently were on familiar and friendly terms with plaintiff and her husband up to the time of the alleged assault.

On August 26, 1910, plaintiff’s husband was absent from home, having gone to Lansing on an early morning excursion train, returning after midnight of the same day. Plaintiff remained at home alone with her little boy. It is her claim that about 3 o’clock in the afternoon, while she was in her bedroom combing her hair and her child was playing out in the yard, defendant came into the room through the door from the “clothes press,” to which he had access from the outside, and addressed her, first asking where her husband and the hired man were; that his presence did not alarm nor particularly surprise her at first, as he was frequently around the farm, and had control of the adjoining room; that after some commonplace conversation about farm matters, during which he handed her an apple, he proceeded to approach her in an insulting manner, followed by an unexpected assault in which he overpowered her, threw her on the bed, and, with force and violence and against her will, perpetrated the outrage complained of. The defense was a total denial, not only of the assault, but of defendant’s having met plaintiff or been at the farmhouse that day. Much testimony was introduced on each side touching his claim of alibi.

Error is assigned on the ruling of the court in allowing plaintiff to testify against objection that she told her husband of the assault the following day. On direct examination she was asked by her counsel:

“Q. Did you ever tell your husband this?
“A. I did.
“Q. When?
“Mr. Rodgers: I object to that as immaterial and incompetent.”

The objection was overruled and the witness answered:

“ Saturday. That noon to the dinner table.”

A motion was made to strike this testimony out, which was denied. The Saturday referred to was the day following the alleged assault, witness having previously testified to going to her parents’ home on the evening of that day, taking her baby with her.

It is claimed that the rule allowing proof of complaints made to others by the female assaulted, which is an exception to the general hearsay rule, is applicable only to criminal prosecutions, and should not prevail in civil actions, nor be extended to permit a plaintiff in a civil action to bolster up her claim for damages by proof of self-serving statements made by herself after the alleged assault. While the question does not appear to have been squarely before this court in a civil action, it has more than once been held in carefully considered criminal cases that such testimony is competent. Brown v. People, 36 Mich. 203; People v. Brown, 53 Mich. 531 (19 N. W. 172); People v. Gage, 62 Mich. 271 (28 N. W. 835, 4 Am. St. Eep. 854); People v. Marrs, 125 Mich. 376 (84 N. W. 284); People v. Bernor, 115 Mich. 692 (74 N. W. 184). In civil actions, failure of the female to complain, or the continued existence of friendly relations between the parties, is admissible as tending to show the falsity of the charge, and, on the other hand, we think it likewise fairly admissible, as tending to show the genuineness of the charge, to allow proof not only of recent subsequent conduct and appearance, but complaints. The plaintiff in this case gave no details of the conversation or what was said beyond the fact that she told him. This rule is well reasoned in Gardner v. Kellogg, 23 Minn. 463, wherein the court said:

“Whatever may be the reason for the rule as applied to criminal cases — whether it is that statements of this character as to the cause and immediate consequences of the injury, made by the injured party so soon after the injury, and while still under the influence of the smart and suffering occasioned by it, constitute a part of the res gestee, as was held in Thompson v. Trevannion, Skinner, 402, approved in Aveson v. Lord Kinnaird, 6 East, 188, and in Insurance Co. v. Mosley, 8 Wall. (U. S.) 397; or whether it is that silence under such circumstances is so contrary to. human experience, and to the natural and ordinary conduct of a woman suffering under such a wrong, as to raise, if not explained, an unfavorable presumption affecting the credibility of her testimony as a witness, and hence, as is suggested by Woodruff, J., in Baccio v. People, 41 N. Y. 265, 268, affirmative proof is admissible to repel the inference — it would seem quite clear that the rule has for its support a foundation equally as firm and reasonable in civil as in criminal actions. If it is a sound and safe rule to observe in the determination of a controverted fact which is to affect the liberty and dearest personal rights of the citizen, it is difficult to perceive why it ought not to be followed in the ascertainment of the same fact when his pecuniary interests alone are involved.”

Error is assigned on refusal of the court to strike out the testimony of a witness named Durfey as to defendant’s asking him if he would go on his bond. Plaintiff’s husband had testified that after dinner on the day following the alleged assault, shortly after learning it, he had sought out defendant in a poolroom in Cedar Springs, and told him to be at the farmhouse that night at a certain time, and, when asked by defendant why, said, “It makes no difference. You be there, or I’ll send for you.” Durfey testified that the same afternoon defendant approached him, and wanted to know if he would go on defendant’s bonds if he wanted him to; that in reply to the inquiry of what he wanted it for, defendant said he would see him later. It was claimed by the plaintiff that it was fairly inferable from the sequence of facts that inquiry as to bonds was the result of his talk with plaintiff’s husband, and tended to indicate guilty knowledge. We are not prepared to say that such evidence had no probative force, and do not find its admission reversible error.

A witness named Peter Keech, called by defendant in support of his claim of alibi, was asked in the course of a sharp cross-examination:

“Q. Mr. Keech, are you the same Peter Keech that within about a year was on trial in the circuit court here for raping a girl under 15 years of age, in which the jury disagreed ?”

This was objected to as incompetent and immaterial, and the objection overruled. Witness answered that he was, but was not convicted. This ruling is assigned as error. The question was within the discretion of the trial court permissible on cross-examination. In the case of Driscoll v. People, 47 Mich. 413 (11 N. W. 221), it was said:

A witness may be asked on cross-examination within the proper discretion of the court, not only concerning his conviction, but also concerning any serious charge brought against him. Wilbur v. Flood, 16 Mich. 40 [93 Am. Dec. 203]; Clemens v. Conrad, 19 Mich. 170; Hamilton v. People, 29 Mich. 173.”

Three of defendant’s assignments of error, involving refusal of the court to give seven of his requests to charge, raise questions relating to the elements of assault and battery with carnal knowledge, to what extent the assault must have been resisted, and whether it must have been entirely against plaintiff’s will and accomplished by force, in order to permit the recovery of substantial damages. It is alleged on these propositions the court charged inconsistently and “both ways.”

Plaintiff’s declaration contains two counts — one for assault and battery only, without ravishment, and the other for assault and battery accompanied by and including vio- , lent debauchery and carnal knowledge by force and against the will of plaintiff. Her testimony was directed to, and recovery sought under, the latter count. The issue was well defined along these lines. She testified positively to the assault, violence, overpowering, carnal knowledge, that she did not encourage or consent, and that it was against her will. Defendant himself testified that she did not consent, that he had no intercourse with her of any kind on that day, did not see her and was not at the farmhouse, where she claimed the assault took place, at all during the day in question, and all testimony introduced in his behalf was to that effect. It apparently was the claim of defendant that, even should the jury find that he had improper relations with plaintiff on that occasion, it might be inferred that it was with her consent, or that her testimony failed to establish by a preponderance of evidence it was against her consent, and that she resisted to the utmost and continued her resistance until the act was consummated. This is based on plaintiff’s failure to make outcry and active physical resistance. Her testimony relative to that feature of the case is, in part, as follows:

“ When he took hold of me, I was frightened. I was shocked. I never thought of such a thing. I was shocked by his stepping up to me and doing what he did. He made that remark, ‘ I love you,’ and I could not help myself. He had hold of me when he made the remark. My hair was down over my face. I have quite a little hair.. His making this remark and grabbing me frightened me. I was just shocked and I could not help myself hardly at all. I was so surprised and everything else. It made me helpless almost, for I never expected such a thing. I did not strike him, for he had hold of my hands. When I said on cross-examination that I was conscious all the time, I meant that I was conscious to an extent that I hadn’t fainted. I knew what was going on and knew what he did, but was so surprised and frightened and everything else that I couldn’t help myself. If I could, I defended myself as far as I could. I could not do very much simply because he put his face over my mouth and had hold of my hands. I was so frightened that I could not. I was weak and faint. When I get frightened, it makes me faint. I hardly ever scream when I am frightened because it makes me faint. I almost faint away. I was in that condition when this was going on.”

Defendant proffered numerous requests, in varying language, involving the principles above mentioned, typical of which are:

“ (3 ) There is no claim in this case that the plaintiff used any physical force or attempted to use any physical force in resisting the assault of the defendant, or that the plaintiff made any outcry or attempted in any manner to prevent the assault, debauch, and carnal knowledge of her person. The plaintiff claims that the reason she did hot physically resist the said defendant or make an outcry or attempt in some way to defend her person was because she was so Scared that she lost control of herself. N ow, unless the plaintiff has satisfied you by a preponderance of the evidence that she was physically unable to resist the defendant, and that she was physically unable to make any outcry or in any manner endeavor to protect herself and that while she was in this condition the sexual intercourse occurred, then she cannot recover in this action for an assault and carnal knowledge of her person by force and against her will.
“ (4) It is the law that the gist of this action is force and violence, and that to sustain plaintiff’s claim she must show, in addition to carnal intercourse, that defendant accomplished the act by force and violence and against her will. It must also appear that she resisted defendant to the extent of her capability, and that said resistance extended to the time said act was accomplished.”

The court in his charge clearly and correctly defined assault and battery and rape, then stated that in this civil case—

“ The mere fact that she did not resist to the utmost would not excuse the defendant from his unlawful acts, if you find he had intercourse with her without her consent. * * * She could not recover damages for any act to which she consented.”

So far as we can gather from the record, it was plaintiff’s position that defendant was guilty under the second count, which included ravishment, or not guilty at all, and the evidence on both sides so indicates, but the court charged:

“ If you find that the defendant did not have intercourse with her against her will, but did commit an assault and battery upon the plaintiff, she would be entitled to recover such damages as she has shown she has suffered from such assault and battery alone ” — ■

thus allowing the jury to credit her story in part and disbelieve it in part. Whatever else may be said of this portion of the charge, it becomes unimportant, inasmuch as the jury found defendant guilty under the second count of assault and battery accompanied by debauchery/ His instruction upon that branch of the case, that, in order to recover, it is not necessary to prove the limit of resistance provided the act was perpetrated against her will, is in harmony with Shenk v. Dunlcelow, 70 Mich. 89 (87 N. W. 886), in which the requests of defendant embody the same propositions as many of those presented here. The court there said, speaking of the action as an entirety:

“The plaintiff claimed it was not necessary for the plaintiff to show that the assault was committed with such force and violence as to constitute the crime of rape, nor was it necessary to establish any fact in the plaintiff’s case by more than a preponderance of the evidence to entitle her to recover. * * *
“Her statements, if believed by the jury, taken with the other evidence in the case, although they were denied by the defendant, contain all the elements necessary upon which tobase the verdict the jury rendered.”

See, also, Elliott v. Van Buren, 33 Mich. 49 (20 Am. Rep. 668).

In a civil action for assault and battery, a charge of ravishment does not change the nature of the action, but is only matter of aggravation, bearing on the measure of damages. The language used in List v. Miner, 74 Conn. 50 (49 Atl. 856), is applicable. In that case an aggravated assault and battery was charged, as in this case. The trial court said:

“As has been said to you, any unlawful touching of another constitutes, in fact, assault.”

This was claimed to be misleading, and it was urged that the jury must have been misled by a total lack of a charge upon the element of consent; that the charge as to assault and battery—

“ Must have been understood by the jury to mean that if the defendant had carnal knowledge of the plaintiff with her full consent, or even by her solicitation, that he had committed upon her an assault for which she could recover.”

The appellate court disposed of the technical niceties raised upon the charge and refusal to charge on those distinctions as follows:

“If any claim had been made during the trial, by either party, that whatever the defendant did to the plaintiff he did by her consent ánd allowance, or if there had been any evidence upon which such a claim might have been based, there would be some force in the objection that the defendant here makes to the charge; but there was no such evidence in the case, and no such claim was or could be fairly made. The complaint charged a violent assault upon the plaintiff, made, against her will- and consent. The evidence for the plaintiff tended to prove just such an assault as was alleged, and not one of a different kind. The answer unqualifiedly denied any assault at all, and the defendant, by his evidence, denied absolutely that he had ever assaulted the plaintiff or had anything whatever to do with her. Before the jury, then, the claims of the parties were these: The plaintiff claimed that all the defendant did to her was done against and not with her consent and allowance; the defendant claimed her story was untrue from beginning to end, and that he had never assaulted her or had carnal knowledge of her at all, with or without her consent. * * * In view of the cáse as it was before the jury, upon the claims made and evidence adduced by the respective parties, we think the charge, upon the point in question, was sufficient.”

Error is assigned upon portions of the charge relating to witnesses in which the court stated that, in a ease of this kind it was not essential, in order to convict, that plaintiff should be corroborated by the testimony of other witnesses; that evidence which tended to prove defendant committed the assault also tended in the same degree to prove that he was there at plaintiff’s home at thé time of the assault. If the jury found from the evidence that any of defendant’s witnesses testified falsely as to his acts or movements on that day, it might be considered as bearing upon credibility and guilt. The last instruction was given at the conclusion of an instruction in regard to the defense of alibi. These instructions were given upon requests presented by plaintiff, are supported by authority, and should be considered in connection with the charge as an entirety. The objection made to them is chiefly that they were partial, in favor of plaintiff, and should have been elaborated and applied by the court equally to both sides. The court might, with propriety, have done so had defendant requested it, but we do not find the charge upon this point as given error, and it is not error for the court to fail to charge more elaborately, not being requested to do so, especially where the subject has been brought to the attention of the defendant by requests preferred by the opposite side before the charge is given. Barnett v. Insurance Co., 115 Mich. 247 (73 N. W. 372).

Plaintiff, while giving her evidence, declared that she did not bring this suit to get money out of defendant, but said ‘ ‘we brought it to punish him for what he did. ” Upon that subject defendant’s counsel requested the court to charge as follows:

“If you find the defendant guilty in this case, you have the right to give the plaintiff such an amount of damages as will compensate her for the injury done as shown by the evidence in this case. Compensation to the plaintiff is the purpose in view, and, when that is accomplished, anything beyond, by whatever name called, is unauthorized. It is not the province of the jury, after damages have been found for the plaintiff so that she is fully compensated for the injury, to mulct the defendant in an additional sum to be handed over to the plaintiff as punishment for the alleged wrong.”

This was refused. The court, however, in lieu thereof said:

“The purpose of awarding damages, if you find that plaintiff has sustained any, is to fully and fairly compensate her for the injury she has received, and not to punish the defendant.”

This language is advisory rather than mandatory. It is not the equivalent of the request which was refused, and which is a correct statement of the law especially applicable to this case, in view of the emphasis put upon the subject by plaintiff’s testimony that punishment was her purpose. It should have been given as requested.

In instructing the jury as to the measure of damages the court said:

“These damages include not merely physical injury and suffering, but damages to her good name, mental suffering, humiliation, and mortification.”

There was no evidence in the case of damage to her good name, but the court stated to them that it was an element of damages. Injury to reputation or good name were neither alleged nor proven. There was not a scintilla of proof as to loss of social standing, that she had been shunned, slighted,- or slurred by her friends and neighbors, or that any one regarded her with less respect. This transaction, as she related it, was absolutely unknown to her friends and neighbors, or the public, until she and her husband advertised it, that the circumstances of the assault did not make it public, and that she was not compelled to disclose it by reason of her physical condition is shown by her own testimony. Neighbors lived across the road, not far away, and a hired man named Baldwin was on the premises. She remained around her home until towards 6 o’clock that evening, and then went after the cows as usual. The hired man testified that she helped him do the chores,® milking four cows. In the evening she went to the neighbor’s across.the way, who noticed nothing unusual, and remained there visiting until her husband returned, when she went home with him. The only evidence of anything which was noticeable at that time given by any witness is the testimony of her husband that she appeared down-hearted, and he heard her sobbing two or three times during the night. There is no proof of loss of good name or circumstances beyond her control making the matter public or a known disgrace. This court has more than once held that damages in case of tort must be proven before they can be recovered. Cousins v. Railway Co., 96 Mich. 386 (56 N. W. 14); Spray v. Ayotte, 161 Mich. 593 (126 N. W. 630); Pratt v. Hamilton, 161 Mich. 258 (126 N. W. 196).

In the case of Kepler v. Hyer, 48 Inch 499, involving a criminal assault upon a female, the court held, apparently irrespective of allegations and proofs, that injury to reputation or character in such a case cannot be made the basis on which to estimate damages. In the case of Fay v. Swan, 44 Mich. 544 (7 N. W. 215), which involved an assault with intent to ravish, this court held that the jury in estimating damages could take into account the disgrace as well as physical suffering caused by the assault. An examination of the record in that case discloses that the word “ disgrace ” was apparently not used as synonymous with good name or reputation, but rather as meaning a sense of shame, humiliation, or feeling of disgrace affecting plaintiff’s mental suffering. While the question of necessary publicity was not discussed in that case, it appeared that plaintiff was forced to obtain the services of a physician and unavoidably make known to him the transaction. That case is not in conflict with the well-reasoned rule stated in Sletten v. Madison, 122 Wis. 251 (99 N. W. 1020). The court there said:

“The most obvious of the errors assigned is presented by an instruction to the jury to include as an element of damage to be compensated, ‘ loss of reputation.’ Respondent’s counsel offers neither argument nor citation in support of the proposition that loss of reputation is an element of the general damages resulting from an assault, even when accompanied by sexual solicitation; indeed, seems to concede the contrary, but urges that the instruction could not injure the defendant because there was no evidence of any loss of reputation. The conclusion is non sequitur. Instruction to the jury to make allowance for such an element was a direct invitation to them to draw on conjecture or imagination as to its existence in absence of any evidence, and for that reason alone would be erroneous, even if the element mentioned would be proper as special damages when supported by the proofs. [Citing cases.] * * * Hence the conclusion is irresistible that without direct allegation of such injury as special damage, supported by proof, there can ordinarily be no recovery for this element of damage in an action for assault. We are not prepared to say that there may not be cases where the assault, especially when associated with attempts upon the chastity of a woman of pure character and good reputation under circumstances of publicity, may not affect her fair name and her standing in the community to her actual, nay, pecuniary damage. The proneness of the human mind to suspicion is such that the mere fact of sexual attempt upon a woman may arouse suspicion of conduct or character on heir part to have invited it with hope of success, and the fact that she is known to have been so solicited may derógate from the pre-existing belief in her virtue and decorum. We shall not decide in the present case whether that may, under special circumstances of both allegation and proof, ever be an element of special damage in an action for assault. That is not the situation here, for there is neither allegation nor proof of any such facts. The recovery permissible in this case was only for those general damages which so customarily accompany an assault that the law presumes them at least in- some degree. As we have said, these do not include injury to reputation. Hence we conclude the instruction complained of was error.”

The court, in his reasons for refusing a new trial, and counsel for plaintiff in their brief, admit, in effect, that there is no positive evidence of injury to good name and that the instruction upon that subject was erroneous, but state that it was an inadvertent and harmless error, in view of the rest of the charge and the fact that able counsel at defendant’s table, listening to the charge, apparently did not notice it, and did not call the court’s attention to the matter. It was clearly stated as an element of damages, and the first element mentioned in addition to physical suffering. The statement is nowhere contradicted or corrected in the charge and stands as a part of it. In view of the verdict, we cannot say that the jury did not take their cue from this instruction, and that it did not enter into and constitute a portion of their award. It is rather to be presumed that it did.

If manifestly an inadvertence, as indicated to those listening to the charge, it would seem to be the duty of plaintiff’s counsel, rather than defendant’s, to call the attention of the court to it. Under the practice which formerly prevailed, it would have been the duty of counsel for defendant to then take exceptions, thereby calling the attention of the court to the matter and thus give opportunity to make correction; but latterly, for reasons which we do not seek to fathom, the legislature provided that it is not necessary in such cases to except to the charge given to the jury, but the party deeming himself aggrieved by any portion of the charge may remain silent, and subsequently, when removing the case to this court for review, assign his errors upon the charge. 3 Comp. Laws, § 10247 (5 How. Stat. [2d Ed. ] § 12960. The question of damages in this case was a most important one, upon which the jury should have been plainly, fully, and correctly instructed.

For the reasons stated, the judgment is reversed, and a new trial granted.

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


author: Brooke, J.

text:
    McGOUGH v. HOPKINS.
    Fraud — Vendor and Purohaser — Price.
    It was fraud for the holder of an option on real property to represent to a prospective purohaser that he had an option on " the property for §2,500, at which price he would sell, when in fact the option fixed the purchase price at §2,000: the purchaser was entitled to the property at the price plaintiff was to pay, and the court should have directed a verdict for defendant, in an action for the §500 excess remaining unpaid on the price.

      Error to Grand Traverse; Mayne, J.
    Submitted June 10, 1912.
    (Docket No. 57.)
    Decided November 8, 1912.
    Assumpsit by Joseph H. McGough against James Hopkins for an alleged balance due for the purchase price of certain lands. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      John W. Patchin, for appellant.

      Covell & Gross, for appellee.
   Brooke, J.

This action is in assumpsit; the plaintiff filing the following bill of particulars:

“ 1911, April 21, $500, balance due on sale of real estate, to wit: Lots 35, 36, 39, 40, and 43 of Hannah & Lay Company’s 11th addition to the village, now city, of Traverse City, from the plaintiff to the defendant, at his request.”

The plea was the general issue. The circumstances .giving rise to this action are somewhat unusual. The parties had been business acquaintances for many years; the plaintiff being engaged in the business of selling coal, hay, and feed in the city of Traverse City, and the defendant being likewise engaged in business in said city. One Mrs. Larkins was the owner of the lands described in the plaintiff’s bill of particulars at the time relations arose with reference thereto between the parties. Prior to negotiating with the defendant, the plaintiff seems to have written Mrs. Larkins with reference to the property, and received from her, the following letters:

“Grand Haven, January 27, 1911.
“Mr. McGough.
“Dear Sir:
Tour letter regarding property received. Will not dispose of it to any one else before March 1, and cannot give possession to any one until May 1, as the C. B. Taylor Coal Co. don’t relinquish possession until that time.
“ I will accept two thousand dollars for the three lots with the alley and coal sheds, and if it will make it more convenient for you, you can pay $500 down and I will take a mortgage upon the property for the balance. Interest at six per cent, and you can name your own time. You make the payments anywhere from one to ten years. You can make the payments in three $500 payments. I wouldn’t wish to accept less at one time, as it doesn’t seem to amount to anything if invested in smaller amounts. If mortgage is given, shall require that the building be kept insured for amount sufficient to cover indebtedness which amount in case of fire shall be turned over to me to discharge the mortgage. If you desire the papers to be made out before April 15th, you can notify me and I will come home; otherwise we shall not return before that time.
“ Respectfully,
“ Mrs. J. M. Larkins.”
54 Grand Haven, Jan. 31,1911.
“Mr. McGough.
44 Dear Sir:
44 Yours received. Yes, the three lots includes all of the property north from the alley extending as far north as the oil works and the coal sheds, except the portion that the C. B. Taylor Coal Co. have added since in their possession, and which, according to the contract, they have the right to remove, are included in said property. The sheds, as you undoubtedly know, are partly on the P. M. R. R. property.
441 will be at home about the middle of April and will then make out the papers. The delay will give you more time to make arrangements for the first payment which I feel should be five hundred dollars, after that, as long as the interest is promptly paid, you can take your own time to pay the principal.
44 Respectfully,
“Mrs. Larkins.”
44 February 2, 1911.
** J. H. McGough.
44 In reading your letter, I made a mistake in reading undoubtedly because I read it without my glasses. I read it one hundred where you had written one thousand. Your proposition as stated is more than satisfactory and will make out the papers for the same as soon as we return home, and, after the first payment, you can have as much time as you desire for the balance.
“ Respectfully,
“ Mrs. Larkins.”

Plaintiff testified that these three letters constituted an option to him from Mrs. Larkins. After he had secured this so-called option, he entered into negotiations with defendant, in which he offered to sell the property in question to the defendant for $2,500. The defendant knew the property did not belong to the plaintiff, but did belong to Mrs. Larkins. He agreed to take the property at the sum of $2,500, paying $1,000 down and the balance in three notes of $500 each, due two, three, and four years after date. Upon Mrs. Larkins’ return, the plaintiff instructed her attorney to prepare the deed directly from her to the defendant, which was done; the plaintiff paying . the $500 cash payment to Mrs. Larkins’ attorney. After this was done, he saw the defendant and instructed him to go to the lawyer’s office and get his deed, sign the three notes, and to leave $1,000 in the bank for him, to all of which he testifies the defendant agreed. On arriving at the lawyer’s office, the defendant learned for the first time that the purchase price of the property from Mrs. Larkins was $2,000, instead of $2,500; whereupon he signed the notes and took away his deed, but did not deposit the $1,000 in the bank, as he had agreed with the plaintiff. After some talk between the parties, defendant did pay and plaintiff accepted $500, the amount which plaintiff had paid on account óf the purchase price to Mrs. Larkins, and thereafter plaintiff brought this suit to recover the other $500.

On cross-examination plaintiff testified:

“Q. Now, you agreed with Mr. Hopkins, didn’t you, in your talk — the first talk you had with him — that you didn’t want that property, and that you would let him have it at the same price that you were to pay for it, isn’t that true, Mr. McGough ?
“A. I told Mr. Hopkins I would sell him the property for $2,500, and that that was what it cost me. That is • what I told him, when, as a matter of fact, I had an option on it for $2,000.
“Q. And you led him to believe that you were paying $2,500 for it?
“A. That’s what I told him.
“Q. Well now that wasn’t true, was it, Mr. McGough?
“A. What I am telling you now is true, but I did not pay $2,500 for it; that wasn’t so. I did tell Mr. Hopkins that $2,500 was what it cost me. I never gave him to understand anything different. I calculated to make $500 out of the deal.
“Q. You knew the first time you talked with Mr. Hopkins that you would get the property for $2,000 by paying $500 down ?
“A. I had an option on the property before I ever said a word to Mr. Hopkins about it.”

Plaintiff further testified that he never had any conversation with defendant about a commission or an agreement with him for a commission, but considered the $500 as a commission on the deal. Defendant testified, and this is not denied by plaintiff, that plaintiff told him that “ he was afraid Mrs. Larkins would flunk out of the deal,” and for that reason he wrote his own check for the first $1,000; whereas, as a matter of fact, he gave his check for $500 only. Defendant further testified that after the difficulty had arisen he paid the $500 to the plaintiff in settlement, with the understanding between them that it should be accepted in full settlement of plaintiff’s claim. This was denied by plaintiff. In submitting the case to the jury, the court instructed the jury that the plaintiff was entitled to recover, unless the jury should determine from the evidence that the plaintiff was acting throughout the transaction in the capacity of defendant’s agent, in which event the plaintiff could not recover. He further instructed the jury that the plaintiff would have the same right to recover as against the defendant as though he had had a deed from Mrs. Larkins; the evidence showing that she had made a proposition to sell the property in question to him, and that he had accepted such proposition.

We are oí opinion that upon the facts disclosed these instructions were erroneous. Plaintiff never actually possessed the title to the property, and confessedly agreed that defendant should pay only the amount demanded by the owner, Mrs. Larkins. That amount defendant has already paid.

In Hokanson v. Oatman, 165 Mich. 512 (131 N. W. 111, 35 L. R. A. [N. S.] 423), we held that, where a broker fraudulently misrepresented that the owner’s price was $1,200, where in fact it was but $900, the purchaser could recover the difference in an action in assumpsit for fraud and deceit. See, also, Strachan v. Meyering, 168 Mich. 253 (134 N. W. 11).

While, technically, it may be said that plaintiff was not acting as a broker representing either party, we think the record clearly establishes the fact that in the transaction both he and defendant dealt with the property as belonging to Mrs. Larkins during the negotiations. Under these circumstances the plaintiff should be held to be bound by his representations of facts within his own knowledge and unknown to defendant. A verdict should have been directed in favor of defendant.

The judgment is reversed and no new trial will be granted.

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


author: Ostrander, J.

text:
    DETROIT UNITED RAILWAY v. BARNES PAPER CO.
    1. Statutes — Repeal—Street Railways.
    Act No. 133, Pub. Acts 1905, purporting to amend 2 Comp. Laws, § 6446, 3 How. Stat. (2d Ed.) § 6995, supersedes Act No. 101 of the same year, with which it is inconsistent and which attempts to amend the same section of the statutes relating to the powers of street railways to construct their lines in or upon the streets of villages, etc., under prescribed conditions. Detroit United Ry. v. Barnes Paper Co., 149 Mich. 675 (113 N. W. 285), overruled.
    2. Street Railways — Eminent Domain.
    Under the second act the power is conferred upon street railroads to condemn lands upon which to construct an embankment for its .tracks, and an ordinance of a village permitting the building of the embankment, etc., is valid: overruling Detroit United Ry. v. Barnes Paper Co., supra.

    3. Same — Statutes—Taking Private Property.
    The power conferred by the legislative enactment (Act No. 133, Pub. Acts 1905), to exercise eminent domain is valid, although the enactment, referring to another statute, grants the same power of eminent domain as is possessed by railroad companies.
    Certiorari to Oakland; Smith, J.
    Submitted June 12, 1912.
    (Docket No. 94.)
    Decided November 8, 1912.
    Eminent domain proceedings by the Detroit United Railway against the Barnes Paper Company. An order dismissing the petition is reviewed by petitioner on writ of certiorari.
    Reversed..

      James H. Lynch, for appellant.

      Davis & Bromley, for appellee.
    Plaintiff in certiorari filed its petition for the purpose of condemning a strip of land 120 feet in width and about 500 feet long belonging to defendant. Objections thereto were filed, brought on to be heard, and after a hearing the petition was dismissed. It was made to appear that plaintiff was organized under the provisions of chapter 168, 2 Comp. Laws (Chap. 111, 8 How. Stat. [2d Ed.] ), commonly known as the street railway act, and was operating its road through the village of Rochester, Oakland county, under an ordinance granted by the village authorities, pursuant to which its track was carried upon a trestle and bridges for a distance of about 1,000 feet in a street of the village; the purpose being .to cross the tracks and right of way of the Michigan Air Line Railroad. Plaintiff proposes to condemn land adjacent to the street and build an embankment, with openings therein for two intersecting streets, to carry its track over the said railroad. The difference between the present and the proposed method is that, instead of carrying its track upon a trestle in the street, it will carry it on an embankment and bridges upon its own private right of way.
    The objections of the defendant are (1) that the plaintiff is not authorized to maintain condemnation proceedings; (2) that its right to maintain a railway in the village is derived from an ordinance which permits it to carry its tracks upon a trestle in the street; (3) that its right to build and maintain the embankment in question has been determined adversely to its present contention and effort by the final judgment of this court; (4) that under the provisions of Act 101 of the Public Acts of 1905 the authority of the village to permit the construction of overhead or elevated tracks is limited to a permission to carry them upon a trestle. It is matter of history, evidenced by the records of this court and of the court below, that plaintiff at one time filed a petition to condemn 90 feet in width of the same strip of land here involved, proposing at the same time to use 30 feet in width of the street, in addition to said 90 feet, as the base for an embankment to support its tracks. The proceeding then instituted was dismissed, and the determination of the court below was affirmed. Detroit United Ry. Co. v. Paper Co., 149 Mich. 675 (113 N. W. 285). It is this judgment which defendant presents as res adjwdicata the present proceeding and contention of plaintiff.
    No. 101.
    An aot to amend, section thirteen of act number thirty-five of the Public Acts of Michigan for the year eighteen hundred sixty-seven, as amended by act number twelve of the Public Acts of Michigan for the year eighteen hundred ninety-three, and act number two hundred thirty-four of the Public Acts of Michigan for the year nineteen hundred one, being section six thousand four hundred forty-six of the Compiled Laws of eighteen hundred ninety-seven.

      The People of the State of Michigan enact:

    _ Section 1. Section thirteen of act number thirty-five of the Public Acts of Michigan for the year eighteen hundred sixty-seven, as amended by act number twelve of the Public Acts of Michigan for the year eighteen hundred ninety-three, and act number two hundred thirty-four of the Public Acts of Michigan for the year nineteen hundred one, being section six thousand four hundred forty-six of the Compiled Laws of eighteen hundred ninety-seven, is hereby amended toread as follows:
    Seo. 13. Any street railway corporation organized under the provisions of this act may, with the consent of the corporate authorities of any city or village, given under and by an ordinance or ordinances, duly enacted for that purpose, under such rules, regulations and conditions as in and by said ordinance and ordinances shall be prescribed, construct, use, maintain and own a street railway for the transportation of passengers, in, upon, above or under the lines of such streets and ways in said city or village as shall be designated and granted from time to time for that purpose in the . ordinance or ordinances granting such consent; but no such railway company shall construct any railway in, upon, above or under the streets of any city or village until the company shall have accepted in writing the terms and conditions upon which they are permitted such use of such streets; 'and any such corporation may extend, construct, use and maintain its road in, along, above or under the streets or highways of any township adjacent to said city or village, upon such terms and conditions as may be agreed upon by the company and the township board of the township, which agreement, and the acceptance of the company of the terms thereof, shall be recorded by the township clerk in the records of his township. Any company organized under the provisions of this act may construct, use, maintain and own a street railway for the transportation of passengers in, along, above or under the streets and highways of any township, upon such terms and conditions as may be agreed upon by the company and the township board, which agreement, and the acceptance by the oompany of the terms thereof, shall be recorded by the township clerk in the records of the township: Provided, that such company may construct, maintain and own a street railway as is herein provided along, above or under any highway heretofore laid out or constructed, or hereafter to be laid out or constructed by the board of county road commissioners, or any highway adopted as a county road by the board of county road commissioners and under their control, upon such terms and conditions as may be agreed upon by the company and the said board of county road commissioners, which agreement, and the acceptance by the company of the terms thereof, shall be recorded by the county clerk in the records of said board: And, provided further, that this section shall confer no authority to construct and operate elevated railways, so-called, but shall only give to municipalities the right to authorize the construction and operation of street railways above the streets and highways by means of trestles, at points where such construction and operation are deemed to be necessary by reason of such railway crossing highways, streets or other railways, and in all cases where any street railway company has heretofore constructed its railway upon trestles above any street or highway or other railway, with the knowledge and consent, express or tacit, of the municipal authorities, such trestles shall be deemed legal structures, the same in all- respects as if such railways had been constructed upon the streets or highways at such points: Provided further, that nothing in this section contained shall be in any way construed so as to in any way affect any rights which abutting property owners may have to damages or additional damages by reason of the erection or maintenance of trestles or other structures above the street heretofore or hereafter erected or maintained under this section.
   Ostrander, J.

(after stating the facts). While I participated in the decision and approved the opinion, handed down in Detroit United Ry. v. Paper Co., 149 Mich. 675 (113 N. W. 285), I am now convinced that this court was in error, and that the decision should be overruled. The decision rested primarily upon the idea that when the legislature passes two inconsistent acts at the same session, each amendatory of the same section of an existing statute, and each providing that the section shall be amended “ to read as follows,” both acts may be regarded as in force. The legislature of 1905 passed and. gave immediate effect to Acts No. 101 and No. 133.. They are set out in the margin. Both purport to amend 2 Comp. Laws, § 6446 (3 How. Stat. [2d Ed.] § 6995), and both provide that said section shall be amended “to read as follows.” In the two acts the section amended is made to read very differently. But, however much or little the difference, the authorities, agreeable with what now appears to me to be the clearest reason, regard the last act as repealing the earlier one, .leaving the section to stand as last amended. Endlich on Interpretation of Statutes, § 196, and cases cited; People v. Hiller, 113 Mich. 209 (71 N. W. 630; 23 Am. & Eng. Enc. Law [1st Ed.], p. 488); Cooley’s Constitutional Limitations (7th Ed.), pp. 215, 216; People v. Pritchard, 21 Mich. 236. Act No. 101, Public Acts 1905, expressly limited the powers of the municipal authorities to permitting street railways to be constructed and operated “ above the streets and highways by means of trestles, at points where such construction and operation are deemed to be necessary by reason of such railway crossing highways, streets or other railways.” Act No. 133 of the’ same session contained no such limitation, and did confer upon street railway companies the right to construct, use, maintain, and own a street railway upon private rights of way with “ the same power and right of eminent domain as is now possessed by railroad companies.”

This act is ordered to take immediate effect.

Approved May 10, 1905.

No. 13-3.

An act to amend section thirteen of act number thirty-five of the laws of eighteen hundred sixty-seven, entitled “An act to provide for the formation of street railway companies,” being section six thousand four hundred forty-six of the Compiled Laws of eighteen hundred ninety-seven, as amended by act number two hundred thirty-four of the Public Acts of nineteen hundred one.

The People of the State of Michigan enact:

Section 1. Section thirteen of act number thirty-five of the laws of eighteen hundred sixty-seven, entitled “An act to provide for the formation of street railway companies,” being section six thousand four hundred forty-six of the Compiled Laws of eighteen hundred ninety-seven, as amended by act number two hundred thirty-four of the Public Acts of nineteen hundred one, is hereby amended to read as follows: Sec. 13. Any street railway corporation organized under the provisions of this act, may, with the consent of the corporate authorities of any city or village, given in and by an ordinance or ordinances duly enacted for that purpose, and under such rules, regulations and conditions as in and by such ordinance or ordinances shall be prescribed, construct, use, maintain and own a street railway for the transportation of passengers in and upon the lines of such streets and ways, in said city or village, as shall be designated and granted from time to time for that purpose, in the ordinance or ordinances granting such consent; but no such railway company shall construct any railway in the streets of any city or village until the company shall have accepted in writing the terms and conditions upon which they are permitted to use said streets; and any such company may extend, construct, use and maintain their road in and along streets or highways of any township adjacent to said city or village, upon such terms and conditions as may be agreed upon by the company and the township board of the township, which agreement, and the acceptance by the company of the terms thereof, shall be recorded by the township clerk in the records of his township. Any company organized under the provisions of this act may construct, use, maintain and own a street railway for the transportation of passengers in and along the streéts and highways of any township upon such terms and conditions as may be agreed upon by the company and the township board of the township, which agreement, and the acceptance by the company of the terms thereof, shall be recorded by the township clerk in the records of the township; and any such company may construct, use, maintain and own a street railway upon private rights of way and all such companies shall, when necessary to enter upon and use private property in such construction and operation, have the same power and right of eminent domain as is now possessed by railroad companies. All proceedings at law or in equity necessary to give this section effect shall be the same as proceedings for the condemnation of property for companies organized under the general railroad law and all statutes relative to the exercise of the right of eminent domain for railroad purposes are hereby made applicable to proceedings under this act: Provided, that any such company may construct, use, maintain and own a street railway as is herein provided along any highway heretofore laid out or constructed or hereafter to be laid out or constructed by the board of county road commissioners or any highway adopted as a county road by the board of county road commissioners and under their control, upon such terms and conditions as may be agreed upon by the company and the said board of county road commissioners, with the approval of a majority of the board of supervisors, which agreement, and the acceptance by the company of*the terms thereof, shall be recorded by the county clerk in the records of said board. Excepting, however, that whenever the right of way for such railways is acquired by the exercise of the power and right of eminent domain, the person, association or corporation acquiring the same under and by virtue of such power and right, shall not thereby acquire any right, title or interest in and to any ores or minerals either upon or beneath the surface of such part of the right of way, but the same shall remain the property of the owners of the land or ores and minerals at the time the right of way is so acquired. And said owners may, without let or hindrance, mine, take and carry away all such ores and minerals, and in doing so the said owners shall not be required to protect the surface of such right of way from being damaged or endangered by the removal of such ores and minerals.

It is therefore apparent that if Act No. 101 was repealed by the later act the former decision of the court is wholly unsupported, since it determined that an ordinance of the village, relied upon by plaintiff, was invalid, because power to enact it was expressly withheld by the terms of said Act No. 101. No question was considered, and no point decided, except the one that the ordinance of the village which permitted the plaintiff to construct an embankment and to carry its tracks thereon, instead of on trestles, was invalid because of the express limitations of the power of the village found in said Act No. 101. It followed as of course that, having no right to carry its tracks over streets and other railways, except upon trestles, the plaintiff could not condemn land for the purpose of enabling it to carry its tracks upon an embankment to be constructed upon the land sought to be condemned. The present proceeding concerns the same parties, and is instituted to take a portion of the same land, and more. But it is a new proceeding; and the former decision of this court is not res adjudicate/, the rights of either party any more than it would have been if said Act No. 101 had been expressly repealed by the legislature since that decision was made.

The right of plaintiff to condemn private property for its uses is conferred, in terms, in said Act No. 133. The reference in the act to the provisions of another statute, making them, and the procedure indicated by them, applicable in proceedings of this nature, does not invalidate the legislation. Clay v. Improvement Co., 34 Mich. 204, 208, 209.

This act is ordered to táke immediate effect.

Approved May 18, 1905.

The plaintiff nowhere avers that it has secured the permission of the village of Rochester to lay its tracks and operate cars upon the land sought to be condemned. The failure to do so is not made the ground of objection. It was and is objected that plaintiff is now operating its road, in the village by permission of the village, which permission relates to and provides for the operation of the road in the street upon a trestle. In the former record it appeared that permission had been given to plaintiff to build an embankment to take the place of the trestle. Whether that ordinance is now in force does not appear. The defendant does not make, and its argument does not suggest, the point that a street railway may not, after securing the permission of, or a franchise from, a municipality to operate a railway in a highway, and after laying its tracks therein, move them, or a portion of them, without permission, to land adjacent to the highway and operate the road over its own land. The subject is not referred to in the brief for plaintiff appellant. It is sufficient, for the purposes of this opinion, to indicate that the point is not presented or considered.

The objections which were made should have been overruled and the petition retained for further proceedings. The order of the circuit court dismissing the petition is reversed, without costs to either party.

• Steere, McAlvay, Brooke, Stone, and Bird, JJ., concurred with Ostrander, J. Moore, C. J., concur* red in the result.


text:
    ONEN v. HERKIMER.
    ,1. Municipal Corporations — Sewers—Equity.
    Municipal corporations may no more invade or injure private property than individuals.
    2. Same — Equity—Irreparable Injury — Injunction.
    Irreparable injury warranting the issuance of an injunction was done by the appropriation of a part of complainant’s land two or three feet wide and casting on her premises the sewage of a city of 5,000 inhabitants in the bed of a small stream or creek that passed through her farm.
    3. Appeal and Error — Injunction.
    Complainant was not bound to appeal from the order of the trial court denying her motion for a temporary injunction-the order was discretionary and not reviewable except for abuse of discretion.

      4, Injunction — Cities—Sewers.
    In. a suit for an injunction to restrain defendant city from casting its sewage on complainant’s farm, defendants acquired no rights, after having notice of complainant’s objection, by proceeding with the construction of the proposed sewer and expending about $50,000 towards the project: but in granting the final injunction a period of six months is allowed to defendants to protect the rights of the municipality.
    Appeal from Cass; Des Voignes, J.
    Submitted June 20, 1912.
    (Docket No. 93.)
    Decided November 8, 1912.
    Bill by Anna F. Onen against George R. Herkimer, mayor of the city of Dowagiac, and others, for an injunction to restrain the construction of a sewer! From a decree for defendants, complainant appeals.
    Reversed.

      James H. Kinnane and Bernard J. Owen (Q-eorge W. Mechem, of counsel), for complainant.

      Charles E. Sweet, for defendants.
    Complainant is the owner of an 80-acre farm, located some distance outside the corporate limits of the city of Dowagiac, through which runs a stream known as Dowagiac creek. • Defendants are, respectively, mayor, aider-men, members of the board of public works, of said city, and contractors engaged in constructing a public sewer for the use of the inhabitants of said city. The farm in question has been in the possession of complainant or members of her family since 1883. Complainant owns the entire bed of the stream at the point where the sewer enters.
    Upon learning of the intention of the defendants to construct said sewer and discharge its contents upon her land, complainant caused notice to be given to defendants that she would resist the right of the city to so locate its sewer, and would enjoin such action. Defendants paid no attention to complainant’s protest, but commenced the construction of the sewer.

      The first work was done at the outlet, where a retaining wall was built in the bed of the stream. This wall is constructed upon land owned by the complainant for a distance of from two to three feet. As soon as the work was started, complainant, by her duly authorized agent, ordered the contractors to desist, and, no attention being given the warning, she filed her bill of complaint in this cause, in which she set up her ownership of the land upon which the retaining wall was being built, alleged the destruction of a valuable water power, averred irreparable injury if the trespass were permitted to continue, and prayed for an injunction and for general relief.
    Upon the filing of this bill, an order to show cause why an injunction should not issue was made. Upon the hearing, several affidavits, filed by defendants, were read, the general tenor of which was that the proposed outlet for the sewer was the only practicable one; that a change in the route would involve a very large additional outlay and considerable delay in making the improvement; that the sewer was badly needed; and that to build it as proposed would cause no irreparable injury to complainant. The court thereupon declined to issue á preliminary injunction, the work proceeded, and the sewer is now completed, and is discharging all the sewage from a city of 5,000 inhabitants upon the lands of the complainant.
    Upon the final hearing the court determined as follows:

      “First. That complainant is the owner of the soil or bed of Dowagiac creek at the point whereon is built the retaining wall, and as is described at that part of the plans and specifications in Exhibit K, which comprehends a projection and emptying of said sewers into the Dowagiac creek.

      “Second. That the elements of irreparable injury are wanting to this case; that the complainant can be fully compensated for all damages which may have been sustained by the acts of defendant.

      “Third. That, under the general prayer for relief, the court finds it has jurisdiction, .under this finding, to determine the question of the damage complainant may be entitled to recover by referring the same to a jury, or by reference to one of the circuit court commissioners of this county to take proofs, or by a proof in open court, as complainant may elect.
    “Fourth. That such election may be made in writing by the complainant not later than the first day of the February term of . court next.

      “Fifth. In the event that complainant shall fail toso elect, the court to make such further order or disposition of the matter as may seem meet and proper.

      “Sixth. That defendant city, having had notice that complainant claimed title to the premises in dispute, and not having taken steps to acquire title, either by purchase or under the statute, is required to pay the costs of complainant to be hereafter taxed.”
    Complainant refused to elect as directed; whereupon the court made the following order:
    “A finding of the court heretofore having been made in this cause, wherein certain contentions in said cause were determined, and the question of damage, if any, not having been heard or determined, and the complainant not having elected as in said opinion permitted to do, but standing mute: It is therefore hereby ordered that the matter of damages, if any be suffered by said complainant by reason of the alleged injuries complained of, be and the same heard, assessed and determined by a jury to act as an advisory of the court in determining the said damages, if any, as prescribed by the statute in such cases. That said cause be heard at the next April term of this court and placed on the calendar by the clerk of said court in the order of causes for hearing. Further, that a copy of this order be forwarded by the register in chancery of this court to James H. Kinnane, Esq., solicitor for complainant, and John Wooster, Esq., solicitor for defendants, on or before March 25, 1909.
    “Dated, March 10, 1909.”
    To this order the complainant entered the following objections:
    “ The complainant hereby objects to the order heretofore entered in said cause, referring the matter of complainant’s damages to a jury, for the reason that the court has no right to divest possession in advance of condemnation, or to legalize it, nor by its decree grant to the defendants rights which it cannot obtain under the power of eminent domain; and for the further reason that the order permits the city of Dowagiac to go outside of its city limits and take the property of complainant and then pay to her such sum as a jury may award her; and for the further reason that the order is a justification of a trespass which was made after the city of Dowagiac had been fairly warned and notified that if they entered the creek at the point where they afterwards did enter, with their sewer, they would be trespassing upon the land of complainant; and the complainant hereby excepts to the order heretofore made in said cause, referring the matter of complainant’s damages to a jury, for the reasons above stated.”
    Thereafter the court' impaneled a jury. Complainant appearing specially filed a further protest to the proceeding and fully protected her rights by exceptions duly taken from time to time.
    Defendants offered testimony tending to show that complainant had suffered no irreparable damage — in fact, no damage at all — and, the question being submitted to the jury, a verdict was returned in favor of defendants; complainant having offered no testimony upon the question of damages. A final decree was thereupon entered, dismissing complainant’s bill of complaint, but with costs to complainant. From this decree complainant appeals.
   Brooke, J.

(after stating the facts). We find no authority, and we are referred to none, justifying the course pursued in this cause.

It is well’settled that a municipality has no more right to invade or cause the invasion of private property than an individual. Rice v. City of Flint, 67 Mich. 401 (34 N. W. 719); Defer v. City of Detroit, 67 Mich. 346 (34 N. W. 680); Seaman v. City of Marshall, 116 Mich. 327 (74 N. W. 484); Ferris v. Board of Education of Detroit, 122 Mich. 315 (81 N. W. 98), and cases cited.

In the case of Wilmarth v. Woodcock, 58 Mich. 482 (25 N. W. 475), this court said:

“ The defendant claims that the bill states no case for equitable relief, first, because it appears by the bill that there is a dispute about the boundary; and, second, complainant has an adequate and complete remedy at law in an action of trespass or trespass upon the case, and because the - injury does not appear to be irreparable, since she states the depreciation in the market value of her homestead will be at least $500, and it is not alleged that defendant is pecuniarily irresponsible and unable to respond in damages at least to that amount. * * * The bill states a case for equitable relief. The continued invasion of complainant’s rights of property by the maintenance of the projection of the cornice over her north line, constituting a permanent injury to and depreciation of her property, addresses itself to and calls in exercise the equitable jurisdiction of the court. No remedy at law is adequate, owing to the uncertainty of the measure of damages, to afford complete compensation. In one sense it is taking from complainant her property without condemnation, and without due process of law. No person can be permitted to reach out and appropriate the property of another, and secure to himself the adverse enjoyment and use thereof, which, in a few years, will ripen into an absolute ownership by adverse possession. * * *
“ Irreparable injury, in the sense in which it is used in conferring jurisdiction upon courts of equity, does not mean that the injury complained of is incapable of being measured by a pecuniary standard.”

What does constitute “irreparable injury,” as the term is used in injunctive proceedings, has been the subject of much judicial comment and determination, which is not altogether harmonious. One definition, given in 4 Words and Phrases, p. 8772, is as follows: ‘

“ ‘ Irreparable injury,’ as used in the law of injunction, does not necessarily mean that the injury is beyond the possibility of compensation in damages, nor that it must be very great; and the fact that no actual damages can be proved, so that in an action at law the jury could award nominal damages only, often furnishes the very best reason why a court of equity should interfere in a case where a nuisance is a continuous one.”

There is abundant authority supporting this view of the law; but it is unnecessary that we should here adopt it. Whatever the true meaning of the term may he, we have no hesitation in determining that the actual appropriation of a strip of complainant’s land from two to three feet wide, and the casting upon her premises the entire sewage from a city of 5,000 inhabitants, are such acts as peculiarly call for the interference of a court of equity, and which, if permitted to continue unrestrained, would unquestionably result in “irreparable injury” to complainant, within any reasonable definition of that term.

Counsel for defendants contend that it was the duty of complainant to have appealed from the order of the court denying a temporary injunction. Ordinarily the granting of a temporary injunction rests in the exercise of a sound discretion by the trial judge. Such orders will not be reviewed, in the absence of an abuse of discretion.

It is urged here, as it was urs^d in the case of Rhoades v. McNamara, 135 Mich. 644 (98 N. W. 392), that complainant should be remitted to her legal remedy. We there said:

“ Defendant insists that this decree should be reversed, on the ground that the complainant, by recovering damages in a suit at law, has an adequate remedy. Defendant persisted in using this road, contrary to complainant’s will, under an unfounded claim of right. Under these circumstances, must the complainant quietly submit to this invasion of his rights, and content himself with suing for damages ? Clearly not. He has a right to have this continuing trespass stopped by an injunction. [Citing cases.] ”

See, also, F. H. Wolf Brick Co. v. Lonyo, 132 Mich. 162 (93 N. W. 251, 102 Am. St. Rep. 412); Saginaw Lumber, etc., Co. v. Giffore, 145 Mich. 287 (108 N. W. 681, 116 Am. St. Rep. 297); Detroit Mineral Bath Co. v. Brewery Co., 151 Mich. 555 (115 N. W. 717); Cullen v. Ksiaszkiewicz, 154 Mich. 627 (118 N. W. 496).

The action of the defendants, under the circumstances disclosed by this record, was clearly without warrant of law, and has resulted in placing the municipality in the position of having expended upwards of $50,000 upon an enterprise the use of which, as now located, can and should be enjoined at the instance of complainant. This expenditure was made, practically in its entirety, after the city had received notice of complainant’s rights, and in utter disregard thereof. Defendants proceeded advisedly, and are therefore in no position at this time to urge that it would be inequitable to grant to complainant the relief sought, because to do so would entail great loss and inconvenience upon the city.

The writ of injunction will issue as prayed; but it will not be made operative until the expiration of six months from the date of the entry of the decree of this court, in order that defendants may take such steps as seem advisable to protect the rights of the city. Complainant will recover the cost of both blurts.

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