text:
    DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO. v. OWOSSO SUGAR CO.
    1. Carriers — Action—Demurrage—Parties—Assignment.
    In a suit by plaintiff railway company for demurrage charges, parol evidence that plaintiff and other railways to whom defendant was alleged to be indebted were operated as part of what is commonly known as the “Grand Trunk Railway System” was properly rejected by the court, as said testimony was immaterial unless it showed an assignment of the different claims to plaintiff, or that these several lines were operated by plaintiff.

      2. Same — Parties.
    Where plaintiff and the other railway lines operating nuder the trade-name of “The Grand Trunk Railway System” maintain a separate organization, and make separate reports to the State, plaintiff could not recover demurrage charges due to the other íines of railway.
    3. Principal and Agent — Ratification—Question for Jury — Set-Off and Recoupment.
    In an action by plaintiff railway company for demurrage charges, wherein defendant gave notice of set-off, claiming plaintiff was indebted to it on a contract made by plaintiff’s claim agent whereby defendant reworked ,a carload of sugar damaged by a tornado while in plaintiff’s possession, it was a question for the jury whether such agreement, which was beyond the agent’s authority, but of which plaintiff was advised before the work was done, was ratified by plaintiff, whp kept silent and did not repudiate it till eight months later, and then not on the ground of want of authority, but because the damage was caused by act of God.
    4. Contracts — Consideration—Act of God.
    Where defendant delivered to plaintiff railway company a carload of sugar, which was damaged by a tornado while yet in defendant’s yards, and it was defendant’s claim that the sugar had been delivered to the consignee by making delivery to the carrier and its duty was at an end, and plaintiff’s claim agent, assuming that there was a liability, contracted with defendant to rework the sugar at a specified price, it cannot be contended that there was no consideration because the damage was caused by an act of God, as the reworking of the sugar by defendant was the consideration for plaintiff’s promise.
    5. Carriers — Act of God — Negligence—Liability of Carrier.
    Whether plaintiff railway company was liable to either consignee or consignor for damages caused by a tornado to a carload of sugar on the ground of negligence, — qucsre.
    6. Evidence — Admissions—Demurrage—Parties—Carriers.
    A letter from defendant to the Grand Trunk Railway System, a trade-name under which several railway lines were operating, making a claim for delay in transporting beets to its factory during the previous season, and admitting it was withholding payment of demurrage charges pending a settlement, was not an admission that it owed anything to plaintiff, one of the lines operating under said trade-name.
    Error to Shiawassee; Miner, J.
    Submitted January 11, 1916.
    (Docket No. 90.)
    Decided September 26, 1916.
    Assumpsit by the Detroit, Grand Haven & Milwaukee Eailway Company against the Owosso Sugar Company for certain demurrage charges. Defendant pleaded the general issue with notice of set-off. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      L. C. Stanley and Austin E. Richards, for appellant.

      Seth Q. Pulver, for appellee.
   Bird, J.

Plaintiff brought suit in assumpsit .to recover certain demurrage charges amounting to $315, for which it claimed defendant was liable. Defendant pleaded the general issue and gave notice of set-off. The set-off arose in this way: On November 10,1911, during business hours, defendant delivered to plaintiff a car load of sugar, consigned to Bryant, Sisson & Co. at La Crosse, Wis. On the night of November 11th, while the car was yet in plaintiff’s yards, a tornado, which passed over Owosso and vicinity, unroofed the car and damaged the sugar. Upon learning of the damage, Mr. Dobel, an assistant claim agent, who resided at Battle Creek, came to Owosso, examined the sugar, and made an arrangement with defendant, whereby it was to rework the sugar and furnish new packages for the same at 1*4 cents per pound. Within two or three days thereafter, plaintiff delivered the sugar to defendant, and the same was reworked and put in condition for reshipment in accordance with the agreement. Subsequently the agreement made by Dobel was repudiated by the plaintiff; the claim being that the agreement was not within the scope of Dobel’s authority. The trial resulted in a verdict for defendant for $513.10, and plaintiff has assigned error.

1. Upon the trial plaintiff not only attempted to recover. $54 which had accrued to it as demurrage charges upon its own line, but also sought to recover certain demurrage charges which had accrued to other lines of the Grand Trunk Railway System as follows, viz.: The Grand Trunk Western Railway, Toledo, Saginaw & Muskegon Railway, Cincinnati, Saginaw & Mackinaw Railway, and the Pontiac, Oxford & Northern Railway. Parol proof was offered to show that plaintiff railway and the foregoing lines were a part of what is commonly known as the “Grand Trunk Railway System,” but the testimony was rejected, the court stating that if the agreement between the several lines of railway was not in writing, it could be shown by some one present who heard the agreement. The trial court was not in error in rejecting the testimony. Even if the general agreement under which these lines are operated had been shown, the testimony would have been immaterial, unless it showed what would amount to an assignment of the different claims to the plaintiff, or that these several lines were operated by plaintiff. Neither showing was made or attempted. The Grand Trunk Railway System, so called, is not a corporation. The name is but a trade-name; but, if it were a corporation capable of suing and being sued, proof of such fact would not entitle the plaintiff to recover for demurrage which belonged to the Grand Trunk Railway System. The several railways mentioned are Michigan railway corporations, and maintain a separate organization, and make separate reports to the State. It is not suggested, nor are we able to see, upon what theory plaintiff railway could recover demurrage charges due to the other lines of railway by showing that they and it were operated by the Grand Trunk Railway System. There was some claim that these charges were terminal charges, but no proof was offered that plaintiff had paid any demurrage charges for the other lines in the regular course of business, or had become liable to pay any, and no such claim was made in the declaration. The plaintiff was permitted to recover demurrage charges which had accrued to its own line, but not those which had accrued to the other lines. Under the pleadings and proofs plaintiff was not entitled to recover beyond this.

2. The trial court instructed the jury that under the testimony, Mr. Dobel’s agreement with defendant to rework the sugar was not within the scope of his authority, but he submitted the question to them whether defendant did not ratify the agreement. Plaintiff insisted that this instruction was error because there was no proof of ratification. It appears that the general claim agent of the plaintiff railroad at that time was Mr. E. Arnold, who resided in the city of Montreal, Canada, and that Mr. Dobel was an assistant, with the title of “Lost Freight Agent.” It was shown by plaintiff that Mr. Dobel had no authority to adjust such claims, although he had the power to investigate them. Speaking as to the extent of his authority, he testified:

“My business is to look after unclaimed, refused freight, damaged freight, lost freight. That is all.”

The record shows that Mr. Dobel, learning of the damage, came to Owosso, and in company with Mr. Mason, the local agent, called upon defendant. After being informed by the defendant that it did not regard the sugar as belonging to it, Mr. Dobel made an agreement with them to rework the sugar. Dobel testifies that within 24 hours he reported these facts to his superior at Montreal. Within two or three days thereafter, the sugar was delivered to the defendant, and the work, was done without any protest from Mr. Arnold or any other agent of the company. In July of the following year, the Dobel agreement was' repudiated by the plaintiff, but it was not repudiated upon the ground that Dobel did not have the authority to make it. It was repudiated* upon the ground that the damage was the result of the act of God. We think these facts furnished the jury a basis for finding that the plaintiff had ratified the agreement with Mr. Dobel. It is shown by the uncontradicted testimony that plaintiff was advised of the damage and the agreement with defendant before the work was done. After being so advised, it delivered the sugar to defendant. From this act and its silence thereafter an acquiescence on its part could properly be inferred by the jury. Hurley v. Watson, 68 Mich. 531 (36 N. W. 726).

It is further contended in this connection that the plaintiff is not liable because there was no consideration for the agreement, the damage having been caused by the tornado, which was an act of God. This contention is lacking in force, if we keep in mind the theory of defendant’s claim. The position of defendant was after the damage accrued that the sugar had been delivered to the consignee by making delivery to the carrier, and that its duty in the premises was at an end. In the face of this contention, plaintiff made a contract with defendant to rework the sugar. The reworking of the sugar was the consideration for plaintiff’s promise. Whether plaintiff was liable to either consignee or consignor for the damage to the sugar on the ground of negligence is another question which we need not consider. Dobel evidently assumed that there was a liability, or that the consignee would make such claim, and, in order to avoid it, entered into the contract with defendant. It may be added by way of comment that if any error was committed by the trial court in connection with this question, or the one involving the authority of Dobel, it was not made against the plaintiff.

3. Plaintiff requested a directed verdict. This was based upon a letter written by defendant to the Grand Trunk Railway System in July, 1912, making a claim for delay in transporting beets to its factory during the previous season. At the close of the letter it stated:

“We are withholding payment of your charges against this company for demurrage accruing during the past season, pending a settlement of this claim.”

The difficulty with this contention is that this claimed admission was made to the Grand Trunk Railway System, and not to the plaintiff. The defendant conceded that it owed the plaintiff $54 for demurrage, and it was taken into account by the jury. The most that can be said of the claimed admission is that it was a conditional promise to the Grand Trunk Railway System to pay whatever demurrage it owed to the several lines, if that company would satisfy its claim for damages on account of delayed transportation. It was not an admission that it owed plaintiff anything.

There are numerous assignments of error, but most of them are answered by the questions already considered. As to the remaining ones, we think they are without merit.

The judgment of the trial court is affirmed, with costs to the defendant.

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


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    MURRAY W. SALES & CO. v. GERMAN-AMERICAN SAVINGS BANK.
    Banks and Banking — Cobpokations—Lien on Stock — Past Due Indebtedness — Intent.
    Defendant bank had no lien on its stock as against the assignee of a stockholder, where the bank took a note and mortgage from the stockholder, due in one year, which included the amount of an unsecured note, and, after an investigation, repudiated the mortgage as worthless and so notified the stockholder, but marked the unsecured note “Paid,” and continued to carry the loan in its mortgage loan account and so reported it to the banking commissioner on several occasions in its sworn statements; by its acts, it relied on the new note and mortgage rather than the unsecured note, and had no past due indebtedness from the stockholder as the basis for a lien on the stock.
    Appeal from St. Clair; Tappan, J.
    Submitted January 18, 1916.
    (Docket No. 83.)
    Decided September 26, 1916.
    Bill by Murray W. Sales & Company against the German-American Savings Bank to have certain shares of stock in defendant bank transferred to complainant. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      Lincoln Avery (Frank R. Schell, of counsel), for complainant.

      P. H. Phillips, for defendant.
   Bird, J.

The question made by the pleadings in this case is whether the complainant is entitled to have 15 shares of defendant’s capital stock transferred to it upon the books of the bank. The chancellor was of the opinion that it did not have such right and dismissed the complainant’s bill.

The material facts underlying the controversy are: That Watson Bros., a plumbing firm of Port Huron, were indebted to complainant for merchandise, and to secure a part of their indebtedness they executed and delivered a promissory note to complainant for $1,500, dated October 3,1912, due in 30 days. Robert Watson, one of the copartners, assigned to complainant 15 shares of defendant’s capital stock as collateral security thereto. Later, on April 8, 1913, complainant requested the defendant to transfer the stock to it on the books of the bank. Defendant declined to do so, and based its refusal upon the fact that Watson Bros, was indebted to it, and that the indebtedness was past due. It claimed to be the holder of two notes, one for $3,000, dated October 28, 1911, and one for $1,000, dated March 26,1912.

The sole question involved is whether, on April 8, 1913, the date of the refusal to transfer the stock, the bank had any of Watson Bros.’ paper which was past due. Defendant concedes it took a new note for $3,000 on January 8, 1913, payable in one year, secured by a real estate mortgage, which was duly recorded, but that it learned within a few days thereafter that the mortgage was invalid, because the land mortgaged was owned by Watson and his wife by the entireties, and that upon learning this fact the mortgage transaction was repudiated. Defendant also concedes that it marked the unsecured note of $3,000 “Paid,” and that it transferred the loan from the commercial accounts to the mortgage loan accounts and after repudiating the mortgage transaction the books were never corrected, and that it continued to carry the note in its mortgage loan account, and so reported it to the banking commissioner on several occasions, and, further, that the note and mortgage are still in its possession, although Watson was advised that he could have them.

Plaintiff argues from these admissions that defendant’s acts in dealing with the loan show conclusively that it did accept the new note and mortgage in lieu of the unsecured note, and that, as the mortgage note was given for a year, the loan was.not due when defendant was requested to transfer the stock. That defendant should have accepted the note and mortgage for its unsecured paper, that it should have canceled the unsecured note and transferred it from the commercial accounts to the mortgage loan accounts, that after investigating and learning the facts about the title to the land that it should have repudiated the mortgage deal, all appear natural and consistent; and while its failure to transfer the loan back to the commercial accounts, and its failure to report it correctly to the State banking department, are somewhat inconsistent with its present position, the retention of the loan among the mortgage loans could probably be disposed of on the theory that it was a mere matter of bookkeeping.

But one phase of the matter I have not been able to dispose of on that ground. It is inexplicable upon any theory of self-interest that the bank should mark the unsecured note paid on February 6th, a month after it had investigated and learned, as it says, that it was worthless, unless it had intended to accept the mortgage security. Had it marked the note paid as soon as received, or before it. had investigated, it would have been consistent and its failure to cancel the marking after learning of the facts, might not be open to serious criticism, but when it learns the truth in two ,or three days after it is received, and then, after a lapse of a month, it deliberately cancels the note, it cannot be passed by as a matter of mere bookkeeping. I have looked in vain for some reasonable explanation of this act. The failure to transfer the loan back to the commercial side was undoubtedly to avoid carrying past-due paper. This reason probably accounts for its report to the commissioner; but not even- a selfish reason is suggested why the note should have been marked "Paid” 30 days after it was learned that its substitute was invalid. Defendant’s failure to return the note and mortgage to the maker is explained in part by the cashier’s statement that Watson was advised, soon after it learned the mortgage was invalid, that he could have the papers, although it is significant that no offer to return them is shown after the note was marked "Paid.” The defendant is a corporation, and speaks and acts largely through its records, and it ought not to be permitted to come into court and say that the fact is totally at variance with nearly every entry in the transaction on its books, unless some very good explanation is given for so doing. The act of marking the note “Paid,” supported as it is by other entries on its books, is convincing that for some reason which is not apparent defendant concluded to accept the new note and mortgage in lieu of the unsecured note. Such a conclusion is consistent with the entries on its books, and is in accord with its sworn statements to the banking commissioner.

The decree will be reversed, and one entered in conformity herewith, with costs to complainant.

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


text:
    CARPENTER v. LANDMAN.
    1. Receivers — Equity—Sequestration—Creditors’ Suits.
    Courts do not' ordinarily sequestrate the effects of a corporation, or take the management of its affairs from its officers and commit it to a receiver, whether on the application of creditors, or of shareholders. But, as an exception to the general rule, for the purpose of holding and preserving the assets of an insolvent until a hearing is reached on the merits, a receiver pendente lite is often appointed.
    2. Same — Fraud—Waste—Mismanagement. .
    Under a hill charging the officers and directors of a company with neglect, waste, and deceit, and with unlawfully carrying away the property of the company, the appointment being asked for by one defendant and not opposed by the other defendants, a receiver to hold the assets was properly placed in control, but so much of the order of the lower court as authorized him to convert the assets into money is omitted, and the decree modified by striking out that portion on appeal by the complainant.

    Appeal from Kent; McDonald, J.
    Submitted January 7, 1916.
    (Docket No. 64.)
    Decided September 26, 1916.
    Bill by Eugene Carpenter against John W. Land-man, the Commercial Service Truck Company, and others, for an accounting and the appointment of a receiver for defendant company. From the decree renered, complainant appeals.
    Modified and affirmed.

      Eugene Carpenter, in pro. per.

      Earl B. Stuart, for defendant truck company.

      Upon the question of the power of courts of equity to appoint receiver pendente lite of corporation because of mismanagement of its officers, see note in 39 L. R. A. (N. S.) 1041.

   Bird, J.

Complainant appeals from an order of the court appointing a receiver pendente lite of the Commercial Service Truck Company.

Complaihant filed his bill of complaint as a stockholder of the company, under 3 Comp. Laws, § 9759 (3 Comp. Laws 1915, § 13582), making the directors and officers of the company parties defendant. He charges, in substance, that the company is a Michigan corporation, with a capital stock of $170,000, which was organized late in the year 1911, for the purpose of manufacturing motor trucks and selling them upon the market; that a large amount of materials were purchased; that several trucks were manufactured, but only one was sold; that for want of capital and proper and honest management the work of manufacturing ceased. He charges that the management of the business of the company since its organization “has been neglectful, loose, extravagant, and ill-advised, and that debts have been allowed to accumulate, and creditors to proceed by attachment to collect their indebtedness from said company.” He also charges that the directors and officers have unlawfully carried away property which belonged to the corporation, that some of the directors have not paid their subscriptions upon stock, and that they have neglected the business of the company, and in this regard many instances of acts of commission as well as omission are set forth.

The bill prays that certain of the defendants may be compelled “to account for their official conduct in the management and disposition of the funds and property committed to their charge as officers, directors, and managers of the property,” and that certain others of the defendants may be compelled “to pay to said company all sums of money, and the value of all property which they have acquired to themselves, or to either of them, or transferred to others, or which has been lost or wasted by their neglect or violation of their duty as officers, directors, and managers of said company,” and, further, that “a receiver of the said Commercial Service Truck Company be appointed with power to collect all unpaid subscriptions to its capital stock, etc., and to recover for the said company all other property wrongfully taken from it.”

About the time the case was at issue and ready for hearing, defendant Landman petitioned the court for the appointment of a receiver. This was opposed by the complainant. The court after due consideration thereof, appointed a receiver with the usual powers. Complainant moved to set aside this order, but the motion was denied. Subsequently, this order of appointment was, by force of a stipulation, signed by all of the counsel, including the complainant, modified so as to curtail the power of the receiver. The original order of appointment vested the receivership with the power to “collect all assets of said Commercial Service Truck Company, to pay its debts, pay the expenses of said receivership, and to wind up the business of said Commercial Service Truck Company under the order of this court.” The modified order entered by force of the stipulation provided that the original order should be modified “so as to eliminate therefrom the power of such receiver to pay out the assets of said Commercial Service Truck Company, or to wind up its affairs until the legal title to said assets shall be judicially determined to be in said Commercial Service Truck Company.” And it was further ordered

“That such receiver may, under the order of the court, convert the assets of said Commercial Service Truck Company, which are now or may hereafter come into his possession into money, which money shall be held by said receiver until it is judicially determined' that the legal title thereto is in said Commercial Service Truck Company, provided a portion of said money may be used by said receiver for the purpose of collecting other assets of said Commercial Service Truck Company, under the order of the court.”

Complainant then filed a motion to have this modified order set aside on the ground that the order made by the court was broader than the stipulation filed. This motion was denied, and complainant has appealed.

The point complainant makes is that the chancellor exceeded his authority in appointing a receiver of the company upon a preliminary hearing. The rule contended for by him is that:

“Courts of equity will not ordinarily, by virtue of their general equitable jurisdiction, or by virtue of their visitatorial powers over corporate bodies, sequestrate the effects of the corporation, or take the management of its affairs from its officers and commit it to a receiver, whether upon the application of creditors or of shareholders.”

And he cites the following cases in support of his contention: High on Receivers, § 288; McCombs v. Merryhew, 40 Mich. 721; Arnold v. Bright, 41 Mich. 207 (2 N. W. 16); Tawas, etc., R. Co. v. Iosco Circuit Judge, 44 Mich. 479 (7 N. W. 65); Smith v. Walker, 57 Mich. 456 (22 N. W. 267, 24 N. W. 830, 26 N. W. 783); Hall v. Wayne Circuit Judge, 111 Mich. 395 (69 N. W. 643); Lawton v. Richardson, 115 Mich. 12 (72 N. W. 988); Goldman v. Manistee Circuit Judge, 155 Mich. 47 (118 N. W. 600); Woodmansee v. Brick Co., 164 Mich. 658 (130 N. W. 311); Town v. Car Co., 172 Mich. 519 (138 N. W. 338).

Counsel undoubtedly states the general rule correctly, but he overlooks an exception which is sometimes made to the general rule for the purpose of holding and preserving the assets of an insolvent corporation until a hearing is had upon the merits. Avery v. Manufacturing Co., 27 N. J. Eq. 412; Town v. Car Co., supra. See, also, Miner v. Ice Co., 93 Mich. 97 (53 N. W. 218, 17 L. R. A. 412). In the New Jersey case the appointment of a receiver to hold and preserve the assets of the corporation was upheld on the ground that the corporation was admittedly insolvent, with no available assets, and against which numerous suits were pending. In Town v. Car Co., supra, one of the latest cases on this subject considered by this court, it was said, after discussing the power of the court to appoint a receiver:

“Likewise the order appointing the receiver should have confined him to preservation merely of the assets of the corporation.”

' It is quite evident from the pleadings and the several showings made that the corporation is insolvent, and its available assets small. There is no pretense that the company was doing any manufacturing business, or attempting to do any at the time the appointment was made. It had ceased to be a going concern. The charges in the bill against the officers and directors of the company are very severe. It not only charges that they neglected the business and wasted the property of the company, but that they practiced fraud and deceit in connection with the assets of the company. It charges them with unlawfully carrying away, and permitting others to carry away, the company’s property. Complainant’s bill shows the need of a receiver to collect and preserve the assets, and his bill prays for one. The cross-bill of defendant Landman likewise prays for the appointment of a receiver, and none of the defendants oppose it. There is no showing that any one in interest opposes it except the complainant. The showing made in his bill appears to bring the case within the exception to the general rule. We are of the opinion, however, that the modified order should be further modified by striking out that portion of it which authorizes the receiver to convert the assets into money. With this further modification the order will be affirmed.

The motion of the receiver to dismiss the appeal is denied. No costs will be allowed either party.

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


text:
    TOBIN v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Carriers — Railways—Freight—Delay—Act oe God.
    Where the plaintiff shipped five car loads of hogs, cattle, and sheep over defendant railway to he transported from Plainwell, Michigan, to Cleveland, Ohio, which did not arrive at their destination until after the expiration of four and five days, and the testimony tended to show an unexplained delay at four different points, resulting in killing a part of the stock and in shrinkage of the rest, the defense that a severe snow storm caused delay at one of the points did not relieve defendant railway of liability on the theory that it was an act of God.

    2. Same — Definition.
    An act of God is an inevitable accident without intervention of man or a public enemy.
    3. Same — Defenses—Waiver—Limitation by Contract.
    Failure to present plaintiff’s claim for the loss within five days, as required by the contract of carriage, was a defense that the carrier ought to have pleaded, and the omission' to do so amounted to a waiver of the claimed requirement.
    4. Same — Expenses—Feeding Stock.
    An expense that the plaintiff would not have been required to pay but for the alleged delay in shipment, as for feeding the cattle in transit, was- a proper element of the shipper’s damage for negligence in transporting the shipment with reasonable promptness.
    Error to Allegan; Cross, J.
    Submitted January 18, 1916.
    (Docket No. 54.)
    Decided September 26, 1916.
    Case by John M. Tobin against the Lake Shore & Michigan Southern Railway Company for damages to live stock in transit. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Samuel H. Kelley and Leivis L. Thompson, for appellant.

      Charles Thew (Alfred /. Mills, of counsel), for appellee.

      Tor authorities passing on the question as to whether a snow storm is an act of God which will relieve carrier from liability for injury to live stock, see note in 24 L. R. A. (N. S.) 1209.

   Bird, J.

Plaintiff is a dealer in livestock. On November 8, 1913, he turned over to defendant five cars of mixed livestock, consisting of hogs, cattle, and sheep, to be transported to Cleveland. The five cars went forward on the same train, on the same day, leaving Allegan or Plainwell some time between 3 and 4 o’clock Saturday afternoon, and arrived in Elkhart, Ind., at 9:45 p. m. The usual time for such shipments between Allegan and Cleveland was from 24 to 32 hours. The cars were delayed, and did not arrive at the Union Stockyards in Cleveland until several days later. One car arrived on November 12th at 10:40 a. m. The other cars arrived on November 13th at 3 a. m. When they did arrive many of the hogs were dead, and some crippled, and there was a large shrinkage on all of the stock. Plaintiff complained of defendant in an action of tort, for the failure to transport the cars within a reasonable time, and for its failure to properly care for and feed the stock while in transit. A jury assessed his damages at $1,200, and defendant assigns error.

1. There was a considerable fall of snow between the 9th and 12th of November while this stock was in transit, and the fall was very heavy in and around Elyria, Ohio, and counsel contends that the damages resulting to the stock were due to the severity of this storm, which was an act of God, and not to defendant’s negligence. If it can be said from the testimony that this is true, counsel is undoubtedly correct in his contention. An “act of God” is defined as “Inevitable accident without the intervention of man or the public enemy.” 29 Cyc. p. 440. Under this definition the defendant would be relieved from liability only in the event that it should appear that the storm was the sole, proximate cause of the injury. Id. It is insisted by plaintiff that by the exercise of ordinary care the defendant could have averted the injury, notwithstanding the storm. The record upon this phase of the case discloses that the stock was delayed at Elkhart 6 hours and 45 minutes, at Port Clinton 2 hours and 55 minutes, and at Sandusky 14 hours and 20 minutes. The balance of the delay was at Elyria. It does not clearly appear what caused some of these delays. No reason is given for the delay at Elkhart. The only reason assigned for the delay at Port Clinton was the “picking up of some boarding cars.” No reason is assigned for the delay at Sandusky. When the engineer of the train was questioned as to the cause of the delay at Sandusky, he replied that he did not know. Notwithstanding the storm conditions were severe around Elyria it appears that of the four tracks passing through Elyria the two north tracks were not blockaded by the snow, and that passenger trains were arriving and departing thereon. The record also shows that the stock had been in the cars in excess of 36 hours when the train left Sandusky, and that, while there were facilities for feeding the stock at Sandusky, they were not fed until some time later at Elyria, after they had been in the cars for upwards of 60 hours. There is an abundance of testimony in thé record which tended to sustain plaintiff’s contention that defendant was negligent as alleged in the declaration.

2. Plaintiff filed with defendant a written claim for damages, but not within 5 days from the date of the removal of the stock from the car, as provided by the bill of lading. This is, said to be fatal to plaintiff’s case. The plaintiff relies upon a waiver of that defense, because of defendant’s failure to plead it. Plaintiff planted his suit in tort for the failure of defendant to observe its common-law duty. When the plaintiff showed a delivery of the stock to defendant in good order, to be transported to Cleveland, its subsequent delivery in a damaged condition, together with the delay, and failure to feed the stock, he made a prima facie case. 5 Am. & Eng. Enc. Law (2d Ed.), p. 353; Bonfiglio v. Railway Co., 125 Mich. 476 (84 N. W. 722). It was then incumbent on defendant to show that there was a special contract which changed or modified the common-law liability.. In order to do this, it was necessary to plead it. The “5-day” provision for filing the claim is a part of the special contract. Defendant’s failure to plead it resulted in a waiver of that defense. 6 Cyc. p. 517; Crowley Bros. v. Railway Co., 185 Mich. 482 (152 N. W. 215).

3. Complaint is made that the verdict was excessive. The principal items constituting the claimed excess is the charge for feeding the stock at Elyria. This item was paid by plaintiff’s agent in Cleveland when the freight charges were paid. Plaintiff’s reply to this is that, where it becomes necessary to feed .stock by reason of the negligent delay of the carrier, the expense should be borne by the carrier, and not by the shipper. The plaintiff had been a shipper for 8 years on defendant’s line, and nearly every Saturday during that time had shipped stock from that vicinity to Cleveland, and he testified that the usual time for transporting it was from 24 to 32 hours. If the stock were delayed by the negligent handling of it by the defendant, so that it became necessary to feed it in transit, the cost thereof was a proper element of plaintiff’s damage. The record appears to furnish a basis for the amount of the verdict rendered.

We are of the opinion that the trial court was not in error in refusing a new trial.

The judgment must be affirmed, with costs to the plaintiff.

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


author: Ostrander, J. Brooke, J.

text:
    WOODMERE CEMETERY ASSOCIATION v. CITY OF DETROIT.
    1. Taxation — Exemption—Statutes—Special Assessment — Paving Tax.
    The real property of a cemetery association incorporated under the statutes of this State is exempt from general taxes by virtue of 1 Comp. Laws, § 3830, 1 Comp. Laws 1915, § 4001, and under the general policy of our law is exempt from a special paving assessment which, also by charter provisions of the association, may not lawfully be levied upon its real property holdings. (3 Comp. Laws, § 8399, 3 Comp. Laws 1915, § 11160.)
    2. Same — Equity—Cross-Bill—Affirmative Relief.
    In a suit to set aside the paving tax; and sale of the premises by virtue of it, the defendant city of Detroit had no lien on the property as a result of the paving assessment and sale of the property to satisfy the tax, and was not entitled to relief on its cross-bill.
    3. Same — Sequestration—Special Assessment — Equity.
    Nor could the court, in view of the revenue to be derived from the continued sale of the burial sites and possible enhancement of values by reason of the pavement, sequestrate the funds received from this source and apply the same to payment of the tax. Kuhn, Bird, Steere. and Brooke, JJ., dissenting.
    Appeal from Wayne; McDonald, J., presiding.
    Submitted January 7, 1916.
    (Docket No. 63.)
    Decided September 26, 1916.
    Bill by the Woodmere Cemetery Association against the city of Detroit to set aside certain pavement assessments and to cancel the sale of complainant’s property for said special assessments. From a decree for complainant, defendant appeals.
    Affirmed by a divided court.

      James O. Mur fin (Rufus G. Lathrop, of counsel), for complainant.

      Walter Barlow (Harry J. Dingeman, of counsel), for defendant.
    Complainant in the year 1869 was organized and is now doing business under the provisions of Act No. 12, Laws of 1869, which is entitled
    ‘‘An act to authorize and encourage the formation of corporations to establish rural cemeteries, and provide for the care and maintenance thereof.” 3 Comp. Laws, § 8399 et seq. (3 Comp. Laws 1915, § 11160 et seq.).

      It owned and has platted for the purposes of its organization land now within the boundaries of the city of Detroit, but formerly within the limits of Springwells township, Wayne county, the southeastern corner of which is at the intersection of Fort street (on the south) with Woodmere avenue (on the east). The northeastern corner is the intersection of Wood-mere and Ferndale avenues. Its western bounda'ry is a creek, which has an irregular course, generally from north to south, and a part of its southern boundary is Dearborn avenue, which Fort street intersects. It seems to be more than 4,500 feet from Fort street to Ferndale avenue, and the property, a single parcel, may be said to front upon Fort street and upon Dear-born, Woodmere, and Ferndale avenues, the frontage on Fort street being 1,561 feet and on Dearborn avenue 1,796.13 feet. The city of Detroit paved Fort street between Woodmere and Dearborn avenues, proceedings in this behalf being begun in February, 1910, and $7,503.48 of the cost thereof was assessed upon complainant’s entire property, upon the basis of the frontage on Fort street. It was assessed in four parts of $1,875.87 each, becoming due and payable January 25, in the years 1911, 1912, 1913, and 1914. Complainant did not pay the tax, nor any of it, and the city proceeded to sell the said land, bidding it in, for want of other bidders, at sales held in March of each of the years 1912,1913, 1914, and 1915, for the period of 99 years. According to the governing law, one year was afforded to redeem from each sale. There has been no redemption. In the land so assessed and sold for said paving tax, there had been buried, on and before April 30, 1915, 54,447 bodies, in graves and burial lots lying in all portions of the grounds. Complainant issues certificates, to persons desiring to use the grounds for burial purposes, by the terms of which a grant is made of the perpetual and exclusive use of the lot or place described therein for the sole purpose of burial, the complainant undertaking that the cemetery-grounds and the lot sold shall be perpetually kept in good condition. Directly opposite to the land of complainant abutting upon Fort street, on the south side of the street, the lots of private owners are, for the most part, 100 feet in depth, and were assessed, as complainant’s land was, upon the basis of frontage upon Fort street. The bill is filed to set aside the proceedings to pave Fort street, in so far as they affect, or purport to do so, the property of complainant, to cancel and set aside the sales of the property and free it from the cloud created by the apparent liens held by the city. It is charged that:

      “(a) The assessment itself was not according to benefits.

      “(b) The assessment district, as originally laid out, did not follow the provisions and requirements of the Detroit city charter.

      “(c) The assessment of the entire property of your orator for the paving of this one portion of Fort street was so manifestly inequitable, unjust, and without facts or investigation to support it as to constitute a taking of your orator’s property without due process of law, in violation of the Constitution of the State of Michigan and the Constitution of the United States.

      “ (d) Because the method adopted by the defendant city, whereby your orator’s property was so assessed, violates, the constitutional provision for uniformity in taxation.

      “(e) Your orator’s property is exempt from an assessment of this description.

      “(f) It is beyond the power of the defendant, city of Detroit, to take property used for burial grounds in the manner claimed to have been employed in this proceeding.

      “(g) There is no charter power in the defendant, city of Detroit, to assess, levy, or collect against your orator an assessment for paving purposes.”

      The defendant city answered, praying:
    “(1) That unless the complainant elects, in and by its answer to this cross-bill (but not under oath, however, answer thereto on oath being hereby waived), to purchase said certificates of said unredeemable tax sales of parts 1, 2, and 3 of said assessment, and to redeem its said cemetery lands from said tax sales of part 4 of said assessment, then that it be decreed by the court that said cemetery lands belong to the defendant, the city of Detroit, by virtue of said unredeemable tax sales thereof, for the period of 99 years from the date of said sales respectively.
    “(2) That in case the foregoing prayer of the defendant in its said cross-bill be not granted by the court, then that it be decreed by the court that said special assessment of $7,503.48, and the interest and penalties thereon for the nonpayment thereof by the complainant, at the rate provided for by the charter and laws of said city in such case made and provided, is a debt due from said complainant to said city and a lien on the said cemetery lands of complainant until paid, and that said lien be foreclosed, and that said lands be decreed to be sold by and under the direction of the court for the purpose of satisfying said debt and discharging said lands from said lien”; and for general relief.
    The circuit judge who heard the cause was of opinion—
    “that the proceedings followed in levying this assessment are plainly in violation of the fundamental principle upon which such assessments rest, as well as in violation of the provisions of the charter of the city of Detroit. The theory upon which an assessment is permitted is that the owner gets back the amount assessed in benefits from an enhanced value of the property. Cemetery property is dedicated to burial purposes, and the people who buy burial rights must be protected in the perpetual and exclusive use thereof. For this reason the property cannot be sold or incumbered. It has therefore no market value. The improvement may be a convenience to the complainant, as well as to the general public, but I fail to see in what way it adds to the money, value Of the cemetery. But assuming that such property can be assessed for local improvements, it is clear that, in these proceedings in placing the assessment, the provisions of the city of Detroit were not followed. The cemetery property consists of one entire parcel of such irregular .shape that it could not be equitably assessed in proportion to its frontage and according to its benefits. The benefits of the properties assessed .are supposed to be in proportion to their respective fronts, but under some circumstances they cannot, with proximate equality,_be thus apportioned. The charter of the city of Detroit* prescribes what action shall be taken when such a condition arises. Where the property is not platted into city blocks and lots:
    “‘The common council shall designate such part or parts thereof for such assessment as shall correspond as near as practicable to the portion of the block or blocks nearest adjacent thereto, subject to like assessment.’
    “In levying this assessment this provision of the charter was not followed. They did not designate a part of the cemetery property which would ‘correspond as near as practicable’ to the city lots abutting on the south side of Fort street. If they had done so, the part of the cemetery included in the assessment district would have been that portion abutting directly on Fort street and extending back about 100 feet or such a distance as would correspond to the other property assessed. Instead, they included the entire parcel, a part of which directly fronts on Dearborn avenue and a part on Ferndale avenue, nearly a mile away from Fort street. The law requires that the benefits shall be assessed according to the frontage, but the front-foot rule cannot be applied where only a small portion of such parcel of land as this abuts on the improvement. It could only be followed in making this assessment by proceeding as directed by the charter. As the assessment constitutes a lien upon the property, it will readily be seen that if the charter provision above referred to had been followed, a much smaller portion of complainant’s property would have been sold. Including all of the property was inequitable and in violation of complainant’s legal rights.

      “I am also of the opinion that the method prescribed by the charter for the collection of assessments cannot be followed against cemetery property. It cannot be collected by sale. The legislature has expressly protected such property from sale on execution, or upon any other process of the courts, or by the association itself for any other purpose than that of burial. It was not intended that it should be diverted from the sacred use to which it was dedicated. People who bought burial rights in this cemetery did so in the belief that they were providing a permanent resting place for their dead. Their right to the perpetual and exclusive use of the cemetery for such purposes must be protected, and this can only be done by prohibiting a sale of the property.”
    The decree, from which defendant appeals, is in accordance with the prayer of the bill.
   Ostrander, J.

(after stating the facts). It is asserted by complainant that the only method provided by law. for the collection of a paving tax in Detroit is by a sale of the property if the tax is not paid. This assertion is not disputed by defendant. Whether the city may sue the owner of the property as for a debt (see Charter, § 221), in any case where a special .assessment for paving has been laid and is not paid, Is not in this case a material question. It is clear that in the scheme for paying taxes each assessment constitutes “a lien, until paid, upon said lots or parcels of real estate,” and the lien may be enforced by a sale of the property. Whether the defendant city had a lien upon complainant’s property for the particular tax, enforceable by a sale of the property, is a question which is answered by reasoning which necessarily determines whether the property was exempt from the tax. It is impossible to consider whether the property of complainant is exempt from the particular tax or assessment, apart from the remedy provided for the collection of the tax. If the property is exempt from the lien, it is exempt from the tax. In my opinion, the property here in question is exempt from the particular tax. It is exempt from the general taxes by virtue of 1 Comp. Laws, § 3830 (1 Comp. Laws 1915, § 4001); it is exempt from the particular tax by virtue of a settled State policy evidenced by the provisions in the charter of complainant and in other statutes. It was said by this court in Avery v. Cemetery Co., 127 Mich. 125, 129 (86 N. W. 538, 540):

“It is the settled policy of this State, in common with the universal sentiment of mankind, to preserve and maintain the burial places of the dead. The legislature has; by express enactment, prohibited the sale, except for burial purposes, or mortgaging, of lands set apart for cemetery purposes. It has also in express terms provided for the exemption from levy and sale on execution, or upon any other final process of a court, of all cemeteries, etc., while in use as repositories of the dead. This was within the power of the legislature to do, and so careful has the legislature been to preserve such properties for burial purposes that it has also in express terms taken it out of the power of the court of chancery to decree satisfaction of any judgment out of such exempt property.”

With respect to the particular tax the policy of the State is not less clear. Turning to the act, the charter of complainant, it is found that the premises by their dedication are irrevocably set apart for use as a burial place for the dead. The powers of the complainant are limited, and it can sell none of the land except for burial purposes unless “the same shall not be occupied or required for burial purposes, or for the uses of such cemetery.” A laying out of the grounds, a plan, is required. It cannot alter the plan or design for laying out the land in a way to interfere with rights of burial already granted. It can execute no mortgage, lien, or incumbrance upon the land used for burial purposes, nor grant burial rights in any mortgaged lands. It is a duty imposed upon complainant to preserve good order in the grounds, to see that they are well kept and in good condition, and after paying for the land to reserve at least two-thirds of all receipts derived from sale of burial rights, after payment of current expenses, for interest, improvements, and embellishing, until a permanent fund is created sufficient, when invested, to produce an income large enough to meet the expense of keeping the grounds perpetually in good condition. In effect, the complainant is a trustee to sell and convey lots for burial purposes, unable to create debts upon the faith of the property, unable to dispose of the property except for the designated and perpetual use. The land is "wholly exempt from taxation of any kind whatsoever,” and no street, highway, railway, sewer, or canal can be opened or constructed through the grounds without the consent of the board of directors of complainant. By 3 Comp. Laws, § 11711 (3 Comp. Laws 1915, § 15485), injuring tombs, monuments, gravestones, or other memorials to the dead, or any fence or railing intended for protection or for ornament, or mutilating or destroying any tree, shrub, or plant placed or being within any cemetery, is made a misdemeanor. The obvious purpose of the act cannot be accomplished if the land of a cemetery association may be sold in an adversary or adverse proceeding. It is impossible to reconcile the purpose to bestow perpetual burial rights in land, and to punish any interference therewith, with a purpose to disturb those, rights whenever a special improvement is made in the vicinity of the land.

It is the rule that words which exempt property from taxation are strictly construed, and it is familiar doctrine, too, that assessments, or taxes, for local special improvements are sustained upon the theory that the premises are benefited by the improvement. Such assessments are not taxes within the proper meaning of the word “taxes,” but represent a value or betterment added to the land itself. See a collection of cases in note to In re Sixth Avenue West, Seattle, 22 Am. & Eng. Ann. Cas. 1912A, 1047 (59 Wash. 41, 109 Pac. 1052). Applying these rules, it has been many times held that the mere fact that lands of a cemetery association are to be used solely for burial places does not exempt such lands from assessments for local improvements. Frequently, however, no observation has been given to the consequences of an enforced satisfaction of the tax. The power of the legislature to exempt cemeteries from assessments for local improvements cannot be doubted. In re Starr Street, 73 Misc. Rep. 380 (131 N. Y. Supp. 71); City of Pittsburg v. Cemetery Ass’n, 44 Pa. Super. Ct. 289; Harvard College v. City of Boston, 104 Mass. 470; Illinois Cent. R. Co. v. City of Decatur, 147 U. S. 190, 203 (13 Sup. Ct. 293), and cases cited. I construe our statutes as an exercise of this power, extending to every case in which the tax or assessment is by law made a lien upon the land enforceable by sale thereof. In this view, an answer to the defendant’s prayer that a sale be now ordered by the court is found in the opinion given in City of Louisville v. Nevin, 10 Bush (Ky.), 549 (19 Am. Rep. 78), in which case an order for a sale of a cemetery to enforce a special assessment for street improvement was denied. In that case, unlike the one at bar, the lots in the cemetery were completely filled with graves from which no revenue was derived, and the trustee had no funds to pay the assessment. In the case at bar it is apparent that the corporation complainant will yet derive from sale of lots, or burial permits, a revenue. But, in view of the provisions of the act under which complainant exists, the principle to be applied in each case is, in my opinion, the same. The court said:

“The lot having been completely filled with graves, and thus rendered useless for any other purpose than as a resting place for the dead, unless their graves are to be desecrated by being built over or dug up, or by the use of the property for the ordinary purposes of town lots, the chancellor would hesitate to lend his aid to subject it to sale. We know it has been intimated by courts'for whose opinions we have a high regard that this is a matter of sentiment with which courts have nothing to do; but fortunately we are not reduced to the alternative to decree the sale of a graveyard already filled with the ashes of the dead, or of seeming to refuse to carry out the commands of the law. The chancellor will not decree that to be sold which cannot be lawfully used for the ordinary purposes to which property of a like character is commonly applied, and especially when there is no imaginable beneficial use to which it can be put by the purchaser which would not subject him to punishment under the penal statutes of the State.”

See, also, Mount Auburn Cemetery v. Cambridge, 150 Mass. 12 (22 N. E. 66, 4 L. R. A. 836).

The defendant city had and has no lien upon the complainant’s property resulting from the paving assessment, the sale of it cannot be sustained, and the deeds issued upon the sales and the records thereof must be canceled and set aside. Nor can a sale of the premises be now decreed by the court.

I have considered, although counsel for defendant has not suggested it, whether as a condition to granting the equitable relief asked for by complainant, in view of revenue to be derived by it from the continued sale of lots, and of a possible, if not probable, enhancement of values brought about by the improvement itself, complainant should be decreed to pay the tax, the decree to be enforced by sequestration of a part or of all of the current or future net profits of complainant. Objections to such a course are obvious. Defendant is insisting upon its rights under the proceedings taken in alleged conformity with its charter. As has been pointed out, it has acquired no rights in or to the land here involved. Complainant is entitled to relief, not by reason of equitable considerations merely, but of right. Its land, as I have attempted to show, was exempt from the particular tax.

Without considering the other objections made to the tax, or to the method of levying it, the decree of the court below must be, and is, affirmed, with costs to complainant.

Stone, C. J., and Moore, and Person, JJ., concurred with Ostrander, J.

Brooke, J.

(dissenting). I quite agree with my Brother Ostrander in holding that the lands of complainant devoted to cemetery purposes'cannot be sold for the purpose of collecting a special assessment. To permit the title to be alienated for the collection of a special assessment would be to work exactly the same evils as would follow for the purpose of collecting a general assessment.

I do not agree, however, that 3 Comp. Laws, § 8406 (3 Comp. Laws 1915, § 11161), should be construed as relieving the lands of complainant, devoted to cemetery purposes, from a special assessment for street improvement. See 1 Cooley on Taxation (3d Ed.), p. 362 et seq.; also 2 Cooley on Taxation (3d Ed.), pp. 1234, 1235; 28 Cyc. p. 1132. The courts have very generally held that statutes exempting cemeteries from taxation do not exempt them from special assessments for the cost of paving streets abutting their property. See In re Broad Street, 165 Pa. 475 (30 Atl. 1007); Newcastle City v. Stone Church Graveyard, 172 Pa. 86 (33 Atl. 236); City of Philadelphia v. Union Burial Ground Society, 178 Pa. 533 (36 Atl. 172, 36 L. R. A. 263); Illinois Cent. R. Co. v. City of Decatur, 147 U. S. 190, 197 (13 Sup. Ct. 293); Lefevre v. Mayor, etc., of Detroit, 2 Mich. 587; Buffalo Cemetery Ass’n v. City of Buffalo, 118 N. Y. 61 (22 N. E. 962), affirming 43 Hun, 127; Baltimore v. Green Mount Cemetery, 7 Md. 517; City of Lima v. Cemetery Ass’n, 42 Ohio St. 128 51 Am. Rep. 809); In re Sixth Avenue West, Seattle, 22 Am. & Eng. Ann. Cas. 1912A, 1047 (59 Wash. 41, 109 Pac. 1052), and cases cited in note on page 1051, decided June 14, 1910.

Our general tax law covering the subject (1 Comp. Laws, § 3830, subd. 6 [1 Comp. Laws 1915, § 4001, subd. 6]), while providing that the lands used exclusively as burial grounds, etc., shall be exempt, provides:

“The stock of any corporation owning such burial grounds shall not be exempt.”

Defendant by the second prayer in its cross-bill asks alternative relief to the following effect:

“That it be decreed by the court that said special assessment * * * is a debt due from said complainant to said city.”

Section 221 of the charter of the city of Detroit provides in part:

“And the said receiver shall have power in the name of the city of Detroit to prosecute any person refusing or neglecting to pay such taxes or any special assessment by a suit in the circuit court for the county of Wayne, and he shall have, use, and take all lawful ways and means provided by law for the collection of debts, to enforce the payment of any such tax or any special assessment.”

Section 231 in part provides:

“After which warrants for the collection of the same may be issued, and such proceedings for the collection thereof be had as are or shall be prescribed by law, or by any ordinance or resolution of the common council.”

The relief prayed for I think should be granted; and, there being no dispute as to the amount of the tax or the penalty and interest, a decree in favor of the defendant city should be entered in this court.

The money may not be realized upon this decree from a sale of the lands of complainant, devoted to cemetery purposes, but any other assets of complainant which could be reached by execution would be liable. Under this disposition of ;the case the rights of the holders of burial privileges in the cemetery proper would be protected, and complainant should be compelled to bear its just proportion of the municipal burden caused by the special improvement.

The decree of the court below should be modified as indicated, but without costs to either party.

Kuhn, Bird, and Steere, JJ., concurred with Brooke, J.


author: Person, J.

text:
    SMITH v. SMITH.
    1. Husband and Wife — Alienating Affections of Wife — Malice —Parent and Child.
    Interference by a stranger with the affections of the husband or wife is presumed to be malicious but parents and near relatives are not affected by so strict a rule, and their malice must be affirmatively shown.
    2. Same — Evidence—Dislike.
    It is sufficient to show malice in' a suit for alienation of affections, that parents interfere with the domestic relations of a son or daughter simply to gratify their dislike or hatred of the other party to the marriage.
    3. Same — Evidence—Competency.
    Where plaintiff’s husband was induced to leave her and withdraw his affections from her by the conduct or solicitation of his mother and sister, which they purposely intended to have that effect, and they denied the alleged conduct hut did not attempt to justify their action, it was competent to show ill will and disline existing between the relatives and the wife.
    4. Same — Damages.
    A verdict and judgment of $12,000 for alienation of the affections of plaintiff’s husband, held, too great, upon a review of the testimony, and reduced on error to $6,000, or the judgment reversed unless plaintiff remit.
    Error to Genesee; Withey, J., presiding.
    Submitted October 20, 1915.
    (Docket No. 164.)
    Decided September 26, 1916.
    Case by Grace Smith against Mary Smith and another for the alienation of her husband’s affections. Judgment for plaintiff. Defendants bring error.
    Reduced and affirmed, conditionally.

      Brennan, Cook & Gundry and Harrison Geer, for appellants.

      Farley & Selby, for appellee.
   Person, J.

This action was brought by the wife against the husband’s mother and sister, and charges them with alienating his affections from her, and with causing him to abandon and leave her. Plaintiff and her husband, Henry Smith, were married on the 12th day of August, 1908, and lived together as husband and wife in the city of Flint until about the last of October, 1914, a period of something more than six years. During that period two children were born to them, Lucille in June, 1911, and Doris in May, 1913. Plaintiff and Mrs. Travis, the sister, appear never to have been on very friendly terms; and from plaintiff’s testimony the fault lay entirely with the sister. Plaintiff’s relations with the mother, Mrs. Mary Smith, were evidently somewhat better, and these two were on fairly friendly terms, most of the time, down to August, 1914, when, in an altercation over plaintiff’s older child, the mother assaulted plaintiff and struck her several blows. But it may be fairly inferred that from the beginning both the mother and the sister looked upon the marriage with disfavor, and as somewhat beneath the social standing of their family. The conduct of the two, however, was marked with this difference, that the mother, for a time at least, apparently tried to make the best of what she considered an unfortunate alliance, while the sister never attempted to conceal her dislike of the marriage, and of plaintiff for having presumed to become a member of the family. In thus characterizing the attitude of the mother and sister we are accepting as true the story told by plaintiff, as we must do on this appeal, inasmuch as it was unquestionably accepted and found to be true by the jury.

The record includes somewhat in detail a history of the relation of the parties from the date of the marriage, and gives a number of incidents showing the way in which plaintiff was treated by the mother and sister. Immediately following the marriage plaintiff and her husband took a trip up the Lakes, and during their absence the mother fitted up and furnished a house for them to live in. From their return they occupied this house until some time in the following winter, when the husband sold it. At the time of the sale the mother and sister were in Europe, having gone there in November following the marriage, and the husband, with plaintiff, moved into the mother’s house, where they remained until the mother and sister returned during the following February. The sister at this time was unmarried and lived with the mother. Just when her marriage took place is not clear from the record, but she apparently still continued to live with the mother, even after her marriage. While in Europe the mother wrote various letters to her son, Henry, plaintiff’s husband, two of which were read in evidence by plaintiff’s counsel. In one of these, after suggesting plans for a house which it was expected the husband would build for himself and plaintiff, occurred the following passage:

“I think you better rent a small house for the summer, for, no matter how much we should enjoy having you with us, a daughter-in-law is different. You remember the old saying, ‘No home is big enough for two families.’ Do you think Grace would prefer going to her mother’s until the house is done, and you stay with us rather than to move again? If you commence to look about now, maybe you could find a nice little house. Now if you want the barn, I will give you it all as it now stands. Then you could take your own money and finish it as you liked, but we want to help you, as we think we have taste, you see.”

And. in the other letter the mother said :

“I hope you have a house secured by the first of March or before; if not, Grace better stay with her mother between times. You can understand how hard it would be for us to live together until you get your house. I don’t mean you, dearie. It would be a joy and delight to have you, darling, always with us. You could store your furniture in what we used to call the old music room, or where you now sleep until you moved. * * * Burn up this letter and don’t let Grace see it, of course.”

According to plaintiff’s testimony, the feeling towards her disclosed by these letters was immediately acted upon when the mother and sister reached home from Europe. They had not removed their wraps, she says, before the sister suggested that plaintiff at once leave their house and go to her own mother’s. With this suggestion of the sister, the mother, plaintiff says, fully concurred. But it seems that plaintiff at the time was not sufficiently offended to leave the house at once as suggested. For a year after this plaintiff seems to have got along pleasantly with the mother, who, she says, was kind to her, and fairly well with the sister, except for occasional insulting remarks by the latter. During this time her husband built a house into which they moved and continued to live until June, 1914. This house was on the mother’s lot in the city and within a short distance of her house. In 1914 the first real difficulty took place. Plaintiff had employed a woman to assist in some heavy work about the house, and the mother found fault with her for doing so, and expressed to plaintiff the opinion that the latter was able to do her own work. This altercation took place in plaintiff’s house, and before it was concluded the sister, who had been called in by the mother, took occasion to say that plaintiff was “a poor working girl,” a “Mt. Morris pauper,” and a “liar,” and to accuse her of wearing old clothes that the sister had furnished. Both the mother and sister expressed their sympathy for “poor Henry,” and the mother informed plaintiff that whatever had been done for them was on Henry’s account, and not for plaintiff. From this time on plaintiff and the sister were never on speaking terms, and never did speak to each other, except on the occasion of the assault and battery, which will be mentioned later, and, perhaps, on one other occasion when some trouble occurred. With the mother it was somewhat different. She and plaintiff kept away" from each other for something over a year, although living upon the same lot, but when plaintiff’s first child was born, in June, 1911, the mother went to see her, and from that time until the assault and battery in August, 1913, a period of more than two years, the mother and plaintiff were on friendly terms. The evidence shows, however, that even during the friendly periods which preceded the unfortunate assault committed by the mother upon plaintiff, almost exactly five years after the latter’s marriage, there were a number of incidents tending to show a feeling of conscious superiority on the part of the mother, and that her acts of kindness came more from a condescending toleration than from sympathy and respect. She was continually directing plaintiff how she should dress, where she should put her household furniture, and the way her rugs should be arranged. The mother also frequently invited her son, plaintiff’s husband, to meals, especially to breakfast, without inviting plaintiff, and at one time set workmen to cementing the cellar of plaintiff’s house without consulting plaintiff about it. Finally, and on August 8, 1913, the relation of the parties reached its climax. This was about three months after plaintiff’s second child was born. On that day plaintiff’s older child awakened from her sleep crying; and continued to cry quite loudly for some time. Its grandmother'— that is, the defendant Mrs. Smith — finally went over to plaintiff’s house to inquire as to the cause. One word led to another until the grandmother, defendant Mary Smith, then some 70 years old, assaulted plaintiff and struck her twice and scratched her face and arms until they bled. Then the other defendant, the husband’s sister came in, and further angry words followed. As defendants were leaving, Mrs. Smith turned to plaintiff and said: “Now, we will get Henry; we will get rid of you.” And her daughter, the other defendant, added: “Yes, mama; we will get rid of her, now; we will fix her now.” And this they repeated several times. This description of the affair is, of course, according to plaintiff’s version of it. The defendants told a somewhat different story, but the assault and blows were not disputed.

It is plaintiff’s testimony that up to the time of this assault upon her, Henry, her husband, had been very kind and affectionate towards her, and that she had considered him an ideal husband, but that after the assault, and the threats by defendants, his manner changed, and he became morose and sullen, and stayed away from home more and more as time went on. It is evident, too, that her attitude towards the husband’s mother changed from the time of the blows. It is her testimony that before the assault she had never said anything about his mother in the presence of her husband, and the implication is that she did express her mind about the mother somewhat freely after the assault. She not only expressed her mind, but in March following began an action against the mother in the circuit court to recover damages for the assault and battery, and pushed the action to a substantial judgment in May, 1914. 185 Mich. 172 (151 N. W. 647). This action was evidently a constant source of trouble between plaintiff and her husband. She admits in her testimony that he was offended because she began it and persisted in maintaining it. One of the nurses employed by plaintiff at the time says that the husband appealed to her, and asked that she use her influence to induce plaintiff to discontinue the action. And it is shown that he offered to purchase a house farther away from his mother if plaintiff would drop the litigation. Plaintiff, however, was obdurate, and his efforts to keep the matter out of court, or get it out of court, were unavailing. And at the trial he sat by his mother and sister, plaintiff says, and gave them his assistance, or, at least, the moral support of his sympathy. But plaintiff’s prosecution of the action against the mother' for assault and battery does not seem to have so seriously impaired his affections for her. That action went to judgment in May, and during the June following he rented a cottage for plaintiff at Lake Orion, where she stayed with the children until the last of the following August. While she was at the lake her husband lived all, or most, of the time, with his mother and sister, but he visited plaintiff regularly twice a week, and she says that he treated her very nicely. When plaintiff came back from the lake, she declined to return to their home near the mother’s residence, and, with her husband, moved into a house on Avon street. From this time the two grew more and more apart, until about the last of October, 1914, when, as has been said, he refused longer to live with or support her. On the 9th day of November plaintiff began a suit for divorce, to which the husband filed a cross-bill, praying for the same relief. And on the 18th of November she began this action, in which she recovered a judgment for $12,000, and costs.

The evidence has been set out in full because it was the contention of defendants in the court below, and is their contention here, “that there was no competent testimony offered and received in evidence that would entitle plaintiff to recover.”

It was five years, lacking a few days, from the time of the marriage, down to the date of the assault and battery committed by the defendant Mary Smith upon the plaintiff. The various instances related by the latter as having occurred during those five years were, no doubt, very disagreeable and annoying to her, but they do not tend to show any design or attempt on the part of defendants, or either of them, to separate her husband from her, or to alienate his affections. Very much was apparently made by counsel for the plaintiff of the letters written to the husband from Europe, but there is no duty on the part of a husband’s parents to take his wife into their home, or to expel the husband, their son, from it. Tactfulness and good sense might suggest the suppression on the part of parents and relatives, of their disapproval of a marriage contracted by a member of the family, but they are not under any legal duty to conceal such disapproval. The husband’s sister was spiteful and insulting, if plaintiff’s story is true, but the mother, while officious and overbearing, seems, for most of the time at least, to have tried to make the best of what she considered an unfortunate alliance. For the larger part of the time, down to the assault, she seems to have been on fairly good terms with plaintiff. And until that unfortunate and reprehensible event the husband’s affection for plaintiff seems not to have been lessened or impaired. Plaintiff herself says that, until the assault, she considered him an “ideal husband.”

But while testimony as to events preceding the assault has no tendency to show a design on the part of defendants to disrupt the affectionate ■ relations between plaintiff and her husband, it yet was competent in the case as showing defendants’ attitude of mind towards plaintiff, and a motive for alienating the husband’s affections, if defendants did intentionally alienate his affections after the assault and battery; for, while any interference by a stranger with the husband’s or wife’s affections is presumed to be malicious, it is different with parents and near relatives, and their malice must be affirmatively shown. White v. Ross, 47 Mich. 172 (10 N. W. 188); Rice v. Rice, 104 Mich. 371 (62 N. W. 833); Zimmerman v. Whiteley, 134 Mich. 39 (95 N. W. 989); Hutcheson v. Peck (N. Y.) 5 Johns. 196; Beisel v. Gerlach, 221 Pa. 232 (70 Atl. 721, 18 L. R. A. [N. S.] 516); Oakman v. Belden, 94 Me. 280 (47 Atl. 553, 80 Am. St. Rep. 396); Baird v. Carle, 157 Wis. 565 (147 N. W. 834). And malice is established whenever it is shown that parents have interfered with their son’s or daughter’s domestic relations simply to gratify their own dislike or hatred of the other party to the marriage. Holtz v. Dick, 42 Ohio St. 23 (51 Am. Rep. 791); Brown v. Brown, 124 N. C. 19 (32 S. E. 320, 70 Am. St. Rep. 574); Jones v. Monson, 137 Wis. 478 (119 N. W. 179, 129 Am. St. Rep. 1082). In the instant case, if plaintiff’s husband was induced to leave her and to withdraw his affections from her by the conduct or solicitations of defendants, purposely directed towards that end, then it must be held that they were actuated by malice; for no other motive is shown on their part than ill will towards and dislike for plaintiff. Indeed, their defense is a denial of such conduct, not a justification of it. It was therefore competent to show such ill will and dislike. And it was also competent to show the various declarations of the husband as tending to prove his state of mind towards plaintiff.

And this leads to the vital question whether there was any proof that defendants, after the assault, were instrumental and effective in depriving plaintiff of her husband’s affections. It is true that there is no direct evidence of anything said or done by them to influence his conduct. It is also true that plaintiff offended him by bringing and maintaining the action against his mother for the assault and battery. Yet this proceeding by plaintiff does not seem to explain his final abandonment of her, inasmuch as the proofs' are undisputed that following her judgment against the mother for the assault and battery he hired a cottage for plaintiff at Lake Orion, visited her frequently there, and conducted himself towards her in an affectionate mariner. And the jury, in view of the instructions from the court, must have found expressly that the action for assault and battery was not the effective cause of his estrangement. On the other hand, although there is no proof of any particular thing done or said by defendants, we have the established facts that the husband was with them more or less nearly every day; that neither one of them ever spoke to plaintiff after the assault; that the mother was bitter enough towards plaintiff to strike her in her own house; and that both the mother and sister threatened to accomplish the very thing that happened. At least the language used by them, on the occasion of the assault, was easily susceptible of that interpretation. The weight of all of these circumstances and the inferences to be drawn from them were peculiarly within the provihce of the jury, and we do not feel able to say that there was no evidence upon which they could base their verdict in the plaintiff’s favor. This is not one of those cases that turn upon the motive of a parent or relative in causing an alienation. Rather, it turns upon the very fact of the alienation itself, and their part in it. And there is some evidence that it came about through their active interference following the assault.

But we think the amount of the verdict excessive. It was not in its nature susceptible of mathematical computation, and rested necessarily on the judgment and discretion of the jury. There was much in the case to excite their sympathies and to create a feeling of dislike toward defendants. The evidence as to the assault arid battery was a legitimate part of the case, but damages for that wrong had already been awarded. It is to be feared, however, that it had its effect upon the amount given in this case, although the jurors themselves might not have been conscious of its influence upon their minds. Neither was it permissible for the jurors to give damages for the insults to, and impositions upon, plaintiff .during the five years preceding the assault, inasmuch as the conduct and language of the defendants at that time was not accompanied, so far as the evidence shows, with any intent to alienate the husband’s affections. Yet, from its amount, all of these things undoubtedly had a part in the making up of the verdict. For these reasons we think the trial judge should have granted a new trial on the motion made therefor, unless the plaintiff was willing to remit from the verdict all above the sum of $6,000. And such an order will be made here, and the judgment will be reversed, with costs, and a new trial granted, unless plaintiff remits from such judgment all that portion thereof above the sum of $6,000. But upon the plaintiff executing and filing the proper papers remitting said excess, the judgment will stand affirmed, with costs to the appellants.

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


author: PERSON, J.

text:
    SHAFER v. PARKE, DAVIS & CO.
    1. Master and Servant — Workmen’s Compensation — Review— Notice oe Injury — Claim for Compensation.
    Any notice or claim made under the workmen’s compensation act, within the time limit fixed by statute, ought to be considered sufficient if it fairly gives the employer such information as the law intends.
    2. Same — Scope of Act — Farm Laborer — Corporations.
    Any man employed to work on a farm and to perform the work ordinarily done there is a farm laborer: the statute does not classify the employee by the ordinary business of his employer, but by the kind of work he himself is employed to do: hence, a corporation engaged in the business of manufacturing and selling chemicals, serums, bacteriological products, machines, boxes, cartons; in publication and printing, etc., having a research department, an experimental department, law department, and farm, was not liable under the workmen’s compensation act to an injured employee working on the farm maintained by the company, which was principally conducted for the producing of serums for the chemical factory and laboratory.

    3. Same — Acceptance—Effect of Notice.
    And where defendant corporation filed a general acceptance of the workmen’s compensation provisions, and had posted the statutory notices in its laboratories, offices and place of business in the city of Detroit, but had not posted up any notices on its farm, it would not be assumed that the master intended to include a farm laborer by the notice, which, to bring the excepted class within its terms, must contain an express statement to such effect.
    Certiorari to Industrial Accident Board.
    Submitted October 11, 1915.
    (Docket No. 37.)
    Decided September 26, 1916.
    Hugh Shafer presented his claim for compensation under the workmen’s compensation act against Parke, Davis & Company for personal injuries. From the award entered, contestant brings certiorari.
    Reversed.

      Mark W. Hearn (Charles M. Woodruff, of counsel), for appellant.

      William T. Hosner, for appellee.

      The question as to who are employees within the meaning of the workmen’s compensation act, is reviewed in a comprehensive note in L. R. A. 1916A, 365.

   PERSON, J.

This, is a claim by Hugh Shafer, an employee of Parke, Davis & Co., for compensation under the provisions of Act No. 10 of the Special Session of 1912 (2 Comp. Laws 1915, § 5423 et seq.), commonly called, “the workmen’s compensation act.” As stated in the brief for appellant, and no doubt correctly, Parke, Davis & Co.—

“is a corporation, organized under and by virtue of the laws of the State of Michigan for the purpose of manufacturing and selling chemicals and pharmaceuticals; the propagation and sale of serums, vac-cities, toxins, antitoxins, and biological and bacteriological products generally; the printing, publication, and sale of medicinal and pharmaceutical pamphlets, books, and magazines, and all business incident to such manufacture, propagation, printing, publication, and sale; that incidental to the manufacture and sale of its products, it is extensively engaged in the business of manufacturing machines, glassware, boxes, cartons, display cards, etc. It also maintains a large printing plant, garage, fire department, biological laboratory, medicinal research department, experimental department, auditing department, law department, and a farm.”

The farm spoken of is located near Rochester, in the county of Oakland; and while the number of acres in it are not given, it seems to be of sufficient size for, at least, the transaction of ordinary farm business. It is used for the raising of hay, wheat, rye, and other farm products, but its principal use is in connection with the company’s laboratory in Detroit. Large numbers of guinea pigs are kept upon the farm for experimental purposes, together with other animals, including some 200 horses, or more, and the principal product of the farm is serum for the Detroit office. Hay and such other products as are adapted to the purpose are used on the farm for feeding the animals, but the wheat and rye and products that cannot be so used are sold.

Plaintiff was employed generally on the farm, caring for the horses and the stables where they were kept, and, in the summer time, at general farm work, such as planting, tilling, and harvesting the crops. On the morning of March 18, 1914, while in the barn feeding the horses, he was kicked by one of them, and the present claim demands compensation for the injuries so received. The claim was rejected by the arbitrators, but was allowed by the Industrial Accident Board, on appeal. It was the opinion of the board, duly filed in writing, that the company should not be classed as a farmer, inasmuch as the use of the land was but incidental to its principal occupation as a manufacturer, and that the claimant, consequently, was not a farm laborer. It was also the opinion of the board that a farmer might come under the law, if he should so elect, and that the company, if engaged in farming, had done so by its unconditional acceptance of the provisions of the act. The company brings the case here by certiorari, alleging that the board was in error in both of its holdings, and further, that the claimant had failed to give notice of his injury and to present his claim within the time limited by the statute.

Considering these objections in their inverse order, it will be observed that the Industrial Accident Board has found as facts that:

“The injury was reported to Dr. Wilson, the superintendent of the farm, a few days after it occurred, and that claim was made for compensation from the company, by letter, within the time required by law.”

We think there was evidence warranting such findings, and that they are therefore conclusive. Inasmuch as employees, as a class, are not skilled in the niceties of language or judicial procedure, and as the law was intended to provide a speedy and inexpensive way for determining the compensation, any notice and any claim, made within the time limited, ought to be considered sufficient if it fairly gives the employer such information as the law intends. Matwiczuk v. Foundry Co., 189 Mich. 449 (155 N. W. 412); Purdy v. City of Sault Ste. Marie, 188 Mich. 578 (155 N. W. 597).

The finding of the Industrial Accident Board that the claimant was not a farm laborer may, we think, be reviewed by this court. All of the facts relative to his employment are conceded, or not disputed, and his status as an employee must therefore be a question of law. And a consideration of those facts leads us to a conclusion different from that reached by the board. The growing of grass and grain and the raising and care of stock are the ordinary uses to which a farm is put, and the work of raising, tilling, and harvesting the grain and caring for the stock is ordinary farm labor. Any man employed to work on a farm, and to perform the work ordinarily done there, is a farm laborer. The statute does not classify the employee by the ordinary business of his employer, but by the kind of work he, himself, is employed to do. And any attempt to classify the employee through a consideration of the uses for which the produce of the farm is designed would lead to endless confusion. Horses are raised and kept upon a farm for many purposes other than that of tilling the soil. If any farmer in the vicinity had seen fit to raise and keep horses for the purpose of supplying serum to the respondent, he would still be a farmer; and any one employed to do such work with and around the horses, as is usually done on a farm, would be a farm laborer.

The fact that claimant was a farm laborer, however, would not debar him from the right to compensation if respondent had elected to come under the statute as to such laborers. There is nothing in the act excluding a farmer or a farm laborer from the benefit of its provisions. This is the construction given by the supreme court of Massachusetts to a similar statute. Keaney’s Case, 217 Mass. 5 (104 N. E. 438). All of the provisions relative to compensation, to those entitled to it, and to the method for obtaining it are included in that portion of the act beginning with section 5 of part I. This might be called the compensation law. It says nothing about farm laborers or any other class of laborers. Section 5 provides that the following shall constitute employers subject to the provisions of the act:

“1. The State and each county, city, township, incorporated village and school district therein;
“2. Every person, firm, and private corporation, including any public service corporation, who has any person in service under any contract of hire, express or implied, oral or written, and who, at or prior to the time of the accident to the employee for which compensation under this act may be claimed, shall in the manner provided in the next section, have elected to become subject to the provisions of this act, and who shall not, prior to such accident, have effected a withdrawal of such election, in the manner provided in the next section.”

And section 7 of part I defines employees who may receive compensation under the act. Paragraphs 1 and 2 of that section read as follows:

“1. Every person in the service of the State; or of any county, city, township, incorporated village or school district therein, under any appointment, or contract of hire, express or implied, oral or written, except any official of the State, or of any county, city, township, incorporated village or school district therein : Provided, that one employed by a contractor who has contracted with a county, city, township, incorporated village, school district or the State, through its representatives, shall not be considered an employee of the State, county, city, township, incorporated village or, school district which made the contract;
“2. Every person in the service of another under any contract of hire, express or implied, oral or written, including aliens, and also including minors who are legally permitted to work under the laws 'of the State who, for the purposes of this act, shall be considered. the same and have the same power to contract as adult employees, but not including any person whose employment is but casual or is not in the usual course of the trade, business, profession or occupation of his employer.”

There is no limitation anywhere upon the scope of the act as thus established. While an acceptance of its provisions is not made obligatory upon any private employer, yet certain common-law defenses are taken away from all employers who do not accept it, except the employers of household domestic servants and farm laborers. That is the effect of the preceding sections 1 and 2. The employers of household domestic servants and farm laborers are exempted from the coercive effects of section 1, but may come within the law if they elect to do so.

But we think that as to farm laborers the respondent in this case had not brought itself, or intended to bring itself, within the provisions of the compensation act. It had, it is true, accepted those provisions by a statement in general terms, neither expressly including nor expressly excluding any particular , class of employees. It had also posted notices of its acceptance in its laboratories, offices, and place of business in Detroit. But it is not claimed that it had posted any notice on, or in the vicinity of, its farm. To assume that by such acceptance the employer intended to include a class of employees as to whom he still had the right to retain his common-law defenses would be going, we feel sure, beyond the fair meaning of the acceptance. The statute has made it practically compulsory that employers of laborers other than farm laborers and household domestic servants accept the provisions of the act, and such acceptance has usually in view only those employees as against whom the employers’ common-law defenses have been taken away. And to hold that an employer by a general acceptance intends to elect to pay compensation under the act to his farm laborers and household domestic servants would be against the fact. To bring such employees within the acceptance must be held to require an express statement to that effect. For this reason the claimant in this case is not entitled to compensation.

The order of the Industrial Accident Board is reversed, but without costs.

Steere and Brooke, JJ., concurred with Person, J. Kuhn, Bird, and Moore, JJ., concurred in the result.

Ostrander, J. In my opinion the proper construction of the statute excludes the idea that it has application to farmers and farm laborers, or that farmers, or farm laborers may voluntarily become bound by the- terms of the act. I agree to the conclusion and reasoning of Justice Person' in all other respects.

Stone, C. J., concurred with Ostrander, J.