text:
    PEOPLE v. MURPHY.
    1. Rape — Evidence—Admissibility.
    Where prosecutrix in rape h&s testified that her husband left her a few months before the alleged offense, it is not error to allow her to state that she supported herself after he went away by keeping boarders and by working out.
    2. Same — Criminal Law — Evidence—Harmless Error — Cure by Other Evidence.
    Prosecutrix in rape testified that, after respondent had inveigled her into the wineroom of a saloon, he told her that any outcry would result in her being arrested for being in a saloon, and that after respondent had accomplished his purpose he went out and that another man came in who claimed to have authority to arrest her. Held, that any error resulting from allowing the third person’s statement in respondent’s absence to be shown was cured by subsequent testimony that after leaving the room respondent went into the saloon proper, that the inmates joked him about “his girl,” that he bought beer for several, that one of them then went to the room, and that that one eluded the officer sent to subpoena him.
    3. Examination oe Witnesses — Correction of Testimony.
    Where a witness on redirect examination corrects a statement made on cross-examination, and on re-cross is asked if she had a consultation with the prosecuting attorney before making the correction, the prosecuting attorney is properly allowed to ask her if she did not ask him of her own motion if she might not correct the misstatement.
    4. Rape — Instructions—Sufficiency.
    Instructions defining rape examined, and held, to contain a full statement of what must be shown to warrant conviction.
    5. Same — Information—Included Offenses.
    On an information for rape, a conviction for assault with intent to rape may be had, though there is no dispute as to the fact of the intercourse.
    6. Criminal Law — Accused not Sworn — Instructions.
    Where accused in a criminal case does not avail himself of the privilege of testifying, it is not error for the court of its own motion to charge that no inference shall be indulged against him on that account.
    Error to Muskegon; Russell, J.
    Submitted May 3, 1906.
    (Docket No. 149.)
    Decided September 20, 1906.
    Arthur Murphy was convicted of an assault with intent to commit the crime of rape, and sentenced to imprisonment for not less than two and one-half, and not more than ten, years in the State house of correction and reformatory at Ionia.
    Affirmed.

      Turner & Turner, for appellant.

      George 8. Lovelace, Prosecuting Attorney, and Charles B. Cross, Assistant Prosecuting Attorney, for the people.
   McAlvay, J.

Respondent was convicted of the offense of an assault with intent to commit the crime of rape. The act charged occurred in a wineroom back of a saloon in the city of Muskegon on the afternoon of October 26, 1905. Prom the testimony of the complaining witness, it appears that she was inveigled into this room under the pretext that respondent would telephone to secure her a place to work, and, succeeding in getting her there, he ordered some liquor, began to take liberties with her person, and after a long struggle he committed the crime. This room was in the extreme rear of the building. The .door was shut and a room intervened between it and a room where men were playing cards. Complaining witness was 21 years old, and had one little child. She was not living with her husband. A full statement of the facts is not necessary. That these parties were there on the day in question is admitted. The question in the case was What occurred in this wineroom? The version of the complaining witness is the only testimony as to that fact. After judgment, the respondent has brought the case to this court.

The first assignment of error is because complaining witness was allowed to answer the question:

‘ ‘ Q. How did you support yourself after your husband went away ?
“A. I kept boarders for about a month; after that, working out.”

This was at the beginning of her direct examination. She had just testified that her husband had gone away in July or August. This was a proper question, and was not prejudicial to the respondent. It was to show the status of the witness and not objectionable.

Exception is also taken to allowing the following question to be asked the same witness:

Q. I will ask you to state whether or not this man that came into the room after Murphy went out claimed to have authority to arrest you for being in a saloon ?
“A. Yes, sir.”

The witness had testified that respondent had said that if she cried out she would be “pinched” (arrested) for being in a saloon. After the occurrence in the wineroom, where it is claimed the offense was committed, there is no dispute but that respondent went into the saloon. While there the bartender testified that the boys guyed him about his girl; that he ordered beer for the boys at the bar; that Dinan and respondent were together in the •saloon, and Dinan disappeared, going to the rear of the saloon. The complaining witness described the man who came back into the room after respondent stepped out, and who was there when he came back. She also said that he came in there and asked her what she was doing there, and she told him her story while respondent was gone, and upon his return the man asked him what he brought this woman there for, and used her in the way he did.' This is the man concerning whom the question is asked which is objected to. When an officer sought to ■subpoena him at this saloon, he fled out the back way, and could not be found afterwards. Whatever mischief there might be in allowing the question at the time because of the absence of respondent was cured later in the case, when the foregoing facts were disclosed. Respondent had threatened that an outcry would cause her arrest.' He was with Dinan in the saloon, and immediately Dinan went back to the wineroom and claimed he had authority to arrest her, and is there when respondent returns. We think it was not error to allow the question to be answered.

Another error is claimed because the following question was. permitted to be answered:

Q. Mr. Cook asked you about a consultation with me. I will ask you whether or not you did not ask whether you could be permitted to make a correction in your testimony ? ”

On cross-examination certain testimony had been brought out bearing upon the question of the lack of resistance offered by her. Her attention was called to this on redirect examination, and she said it was not correct. On cross-examination she testified that she talked with the prosecutor relative to her testimony, and further testified that she had misunderstood the question relative to the matter referred to. The question under consideration was later asked by the prosecutor. It was proper to allow it. The reference to a consultation with the prosecutor on cross-examination could have been for no other purpose than to raise an inference that the prosecutor was connected with the correction of the testimony. The question was to show that the witness herself asked if she could correct it.

No requests to charge were submitted to the court by respondent. To the charge as given by the court many errors are assigned. Many of them are simply referred to in the brief for respondent without argument. This is probably indicative that they are not waived, but the practice is not helpful to the appellate court.

The material exceptions to the charge will be considered. It is claimed that no- proper instruction was given as to what constitutes the crime of rape. A careful reading of this charge shows that it contains a full statement of what must be shown by the people to warrant a conviction for this offense. The court charged:

“ To constitute the crime of rape, it will be necessary for you to find beyond all reasonable doubt that this defendant had carnal knowledge of the body of this young lady by force and against her will, and I mean by that it will be necessary for you to find that the act was committed by force and against the will of this young lady; that she did everything she could under the circumstances to prevent defendant from accomplishing his purpose. If she did not do that it is not rape.”

He charged that the jury must find that penetration occurred or there would be no rape. Further:

“You must find that the act was by force and against the will. It is not important whether that act was committed, or if it was committed, by power; that is, by strength or in some other manner. It may have been committed because of fear. It will be necessary for you to find that it was committed by force, as far as the young man is concerned, and against the will of the girl — you must find that she wqs overcome and overpowered, and that resistance must have continued from the inception to the close, because if she yielded at any time it would not be rape.”

The court charged also as to what constituted the offense of assault with intent to commit the crime of rape:

It will be necessary for you to find that the defendant made an assault upon this young girl, and actually intended to use whatever force was necessary to accomplish his purpose, and if you find that he did that and actually intended that, it would be your duty, and you would be authorized in finding him guilty of an assault with intent to commit the crime of rape, if you find that he ought not to be convicted of the graver charge.”

And further, on the same subject:

“ If you find that he made an assault, and actually intended to use all the force that was necessary irrespective of anything that she might do to accomplish his purpose.”

He further charged that the respondent might be found guilty of an assault and battery if he touched her person, rudely or in an insolent manner against her will. He again repeated what he had said of the second offense, and added:

■ “ If he touched her person in a rude and insolent manner in furtherance of that object he would be guilty of that charge.”

The court charged correctly as to the presumption of innocence, and repeatedly, that the jury must be satisfied upon all these questions beyond a reasonable doubt, defining what constituted such doubt. We think the charge as to the parts objected to sufficiently explicit, and that the court fairly stated the law of the case to the jury. If respondent’s counsel had desired the court to further charge the jury as to any particular proposition, it was his duty to have specifically called the attention of the court to such matter. People v. Ezzo, 104 Mich. 341.

It is objected that in this case the court was in error in charging the jury that respondent might be found guilty of an offense less than the crime of rape. The action of the court was authorized by the decisions of this court. People v. Miller, 96 Mich. 119, and cases cited; People v. Abbott, 97 Mich. 484, and cases cited.

It is further claimed that the court erred in his statement to the jury with reference to the fact that respondent had not been sworn as a witness. The court said:

“ That is not a matter you have a right to take into consideration or pass upon at all. He has a right to remain off from the stand if he desired to do so, and there is no inference to be drawn by you because of that fact.”

The authorities hold that under statutes similar to the one in this State, it is not error for the court on its own motion to give such a charge. See People v. Provost, 144 Mich. 17, where the cases are cited and distinguished.

We do not find any error in the case. The judgment of the circuit court is affirmed.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    PEOPLE v. SMITH.
    1. Intoxicating Liquors — Information—Screens—Language of Statute.
    An information under the liquor law (section '5409, 2 Oomp. Laws) for failure to remove screens, etc., on Sunday, is sufficient where it follows the language of the statute, though in so doing it charges respondent with committing all the offenses enumerated in the section, and contains no specific allegations of the kind and nature of the obstructions complained of.
    2. Same — Instructions—Requests—Propriety.
    In a prosecution for failing to remove screens, etc., from respondent’s saloon on Sunday, in violation of section 5409, 2 Comp. Laws, requests embodying respondent’s theory of what must be shown to authorize conviction, examined in connection with the charge as given, and held, that the subject oí the request was sufficiently covered by the general charge.
    3. Criminal Law — Instructions—Duty of Jury.
    Where counsel for respondent tells the jury that they are not bound by the law and the evidence, but have the right to render such a verdict as their consciences dictate, it is proper for the court to charge that they are bound to follow the instructions given them upon the law, and that if they render a verdict in defiance of the law and the evidence in the case they will be subject to a prosecution for perjury.
    Exceptions before judgment from Muskegon; Russell, J.
    Submitted May 3, 1906.
    (Docket No. 155.)
    Decided September 20, 1906.
    Andrew Smith and Joseph Hammerschmidt were convicted of violating the liquor law.
    Affirmed.

      F. W. Cook and W. J. Turner, for appellants.

      Q-eorge 8. Lovelace, Prosecuting Attorney, and Charles B. Cross, Assistant Prosecuting Attorney, for the people.
   McAlvay, J.

Respondents were convicted- in Muskegon circuit court for a claimed violation of section 5409, 2 Comp. Laws, of the liquor law, upon an information charging:

‘ ‘ That they were proprietors of and kept a saloon where intoxicating liquors were sold at ^retail; * * * that on the 6th day of August, A. D. 1905, the same being the first day of the week, commonly called Sunday, and a day and time when, by the provision of Act No. 313, Pub. Acts 1887, said saloon was required to be closed, all the curtains, screens, partitions and other things that obstructed the view from the sidewalk and street and alley in front and at the side of the building in which said saloon was, of the bar and place in said room where said liquors were sold and kept for sale, were not removed. But, on the contrary thereof, the said Andrew Smith and Joseph Hammerschmidt did then and there as aforesaid obstruct the view from said sidewalk, street and alley in front and at the side of the building in which said bar and place where liquors were sold were, by not removing said curtains, screens, partitions and other things which then and there obstructed the view from the sidewalk, street and alley in front of and at the side of the building in which said saloon was then situated. * * * Contrary,” etc.

Reversal is asked on several grounds. The important questions raised by assignments of error relate to the refusal of the court on the motion of respondents to quash the information, to the refusal to give a request to charge, and to certain portions of the charge of the court. The objection to the information is that, being in the language of the statute, it charges every offense enumerated in the section; that it contained no specific allegations of the kind and nature of the obstructions complained of. This question was before this court in the case of People v. Kennedy, 105 Mich. 75. The information in that case was in words precisely the same as in the case at bar. Justice Montgomery, speaking for the court, said:

“ It is very clear that the information charges that the curtains, screens, partitions, and other things that obstructed the view of the bar and place in said room where said liquors were sold and kept for sale were not removed. We think it is also clear that it sufficiently charges that the respondent was responsible for their not being removed, as he under the law, being keeper of the place, must have been.”

Upon the question of the sufficiency of the information that case controls the case at bar.

Respondents’ request to charge, which was refused, was as follows:

“If the jury find from the evidence in the case that the blinds, curtains, screens, partitions, and other things which would obstruct the view were so removed as to give a free, fair, and open view of the bar and places in the room where liquors were usually sold or kept for sale on the day in question, they must acquit the defendants.”

The court, in his charge relative to the subject-matter of this request, said:

“One of these regulations is that they shall not open their saloon on Sunday, and that they shall open up that saloon so that the public and those that pass along the sidewalk and in the street shall have a free, fair, open view of the bar where the liquors are sold and the room of the saloon where the liquors are sold. * * *
“ As I say, reach a fair, honest verdict, and the test is whether these parties had removed these screens. The law requires that they be removed entirely; but our courts have held that, if they are so removed that a person could have a free, fair, open view as much as they could have if they were entirely removed as a person passes along the street or along the sidewalk, it is a compliance with the law, otherwise not. That is the test. * * *
“ It is for you to say whether on the 6th day of August last these defendants removed their screens and partitions so that the public when they were passing along this sidewalk or passing along the street would have a free, fair, op*i view of that saloon and the place where the liquors were sold, as they would have if every screen within that building had been removed, every screen and every obstruction had been removed. * * *
“That is the point we are trying to try. As I say, there is no strained construction. Nobody will find fault with you, gentlemen, in exercising your judgment on the evidence that is given you here in court, controlled by the law as given you in court. * * *
‘ ‘ The question is the facts, whether they removed those screens as the law contemplates. If they did so, they are justified. They are in a legitimate business. If they did not, they are guilty.”

The court further charged (to which charge no exception is taken):

“You have heard the facts, and it is for you to say whether by having this small place here 20 inches wide, and as long as the evidence shows it to be, is such an opening as the law requires, and the screens have been removed as they ought to be removed.”

We think the charge of the court covered the request. The attention of the jury was directed to the fact that the law required an unobstructed view of the bar where the liquors were sold and such part of the saloon or room where the liquors were sold. This we think is a fair interpretation of the charge. People v. Locy, 124 Mich. 180.

Another portion of the charge, which relates to the duties of jurors, in criminal cases, to find according to the evidence and to follow the instructions of the court as to the law of the case, is alleged as erroneous. The court, in denying the motion for a new trial, which, among other things, claimed that this portion of the charge was erroneous, gives his reasons for instructing the jury upon this inatter, as follows:

“The language complained of was justified by the argument of counsel for respondents to the jury in which the claim had been made that the jury was not bound to find a verdict in accordance with their view of the evidence and of the law; but that, if they saw fit, they were justified in rendering a verdict in defiance of the evidence and the law.”

The part of the charge objected to is as follows:

“Now in this case, gentlemen, in the heat of argument you have been told, in substance, that you are not required to fender a verdict in conflict with your consciences, notwithstanding the law or the facts in the case. That is not the rule, gentlemen; that is not the law. It has never been the law, and if you, gentlemen, should take that course, and it should become known, you would be liable to prosecution for perjury. Every one of you that renders a verdict upon that basis would be guilty of the crime of perjury, because of the fact that you did not follow your oaths. I say that it is not the rule at all. You, gentlemen, have sworn that you would decide this case upon the evidence given you here from the witness stand and upon the laws of this State. Now you haven’t any right to say that this law ought not to be enforced. We may not all agree with the rule that it should be strictly adhered to, we may not all- feel that way; but the law is on the statute book, and it is not for you, nor is it not for the court,' to say as to whether that law should be enforced. (And if a juror cannot render a verdict for the enforcement of a law of that kind he ought to say so when he is selected as a juror, so that he will not be required to violate his oath, because, as I say, you haven’t any right to say I will render a verdict, notwithstanding the fact that the evidence shows one thing and the law may be one way, my judgment is the other.) You haven’t any right to do that, and if you do that you are guilty of the crime of perjury, and I am surprised, and I can only say that it is because of the heat of the argument probably that such a statement was submitted to you, gentlemen. That is not the rule, and you ought not to follow. It is true that you are not to give any strained construction to this statute. You are not to give any strained construction'to the evidence.”

It is the duty of the jury to follow the instructions of the court as given upon the law in criminal cases. Hamilton v. People, 29 Mich. 175; People v. Mortimer, 18 Mich, 37; People v. Gardner, 113 Mich. 101. We think that the remarks of the court were justified. There was nothing in the nature of coercion or threat of prosecution of the jurors, but it was a warranted and true statement of the duties of jurors and a reminder of the obligation of their oaths. In his treatment of the counsel who used this argument the trial judge was remarkably considerate. The claims advanced by counsel were unwarranted, and to carry out his contentions would be subversive of the administration of justice.

From an examination of the record we find upon the admission or exclusion of evidence no error committed in the ruling of the court to which our attention is called.

The conviction is affirmed.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    CONE v. AMERICAN ELECTRIC FUSE CO.
    1. Evidence — Sales—Contract—Identity of Buyer — Conversation With Third Person.
    In assumpsit for the price of coal claimed to have been furnished to defendants, and claimed by defendants to have been furnished to third persons from whom defendants were renting a factory, testimony of plaintiff that he overheard a conversation between defendant and another person, in which defendant assured the other person that all materials thereafter furnished the factory would be paid for as he had plenty of money, is inadmissible.
    2. Trial— Instructions — Misconstruing Evidence.
    In assumpsit for the price of certain coal claimed to have been furnished to defendants, and by them claimed to have been furnished to third persons from whom defendants were renting a factory, an instruction that erroneously assumes that a conversation with one of defendants, in which he made a statement as to his resources and those of the other defendant, a corporation of which he was an officer, was had before the coal was furnished, is prejudicial to defendants.
    Error to Lenawee; Chester, J.
    Submitted May 4, 1906.
    (Docket No. 108.)
    Decided September 20, 1906.
    Assumpsit by Elias W. Cone against the American Electric Fuse Company and Frank G. Jones for goods sold and delivered. There was judgment for plaintiff, and defendants bring error.
    Reversed.

      Theodore M. Joslin, for appellants.
    Smith, Baldwin & Alexander, for appellee.
   McAlvay, J.

This is an action of assumpsit brought by plaintiff against defendants, for the price and value of coal claimed to have,been sold on their order. Defendant Jones was the president of the American Electric Fuse Company, an Illinois corporation. In the year 1901 this company entered into contract with the Gilliland Electric Company of Adrian, Mich., to have manufactured by it at its factory certain products upon certain terms. Defendant Jones received a certain amount of stock of the Gilliland Company and was elected its treasurer. Later the said company became financially embarrassed, and July 9, 1902, defendant company leased from it its plant at an annual rental of $5,000 in addition to taxes, insurance, and repairs. Plaintiff was a coal dealer and had been dealing with the Gilliland Company, selling it coal. He claims that in February, 1902, he was called to the Gilliland office where he first met Jones and was introduced to him by Gilliland. Talk was had with reference to coal and prices. He says he sold them coal at a certain price. Coal was afterwards delivered at the Gilliland Company’s plant, on phone orders from the office. The account of coal sold was presented to Jones several times and payments were made on it by Jones’ orders at the office. This account was (kept by plaintiff against the Gilliland Electric Company, and he took this company’s note for the balance *of $200, and this note was renewed for the same amount. He claims that he did not know he was taking the paper of this company; that he did not look at the signature; that he supposed he got Jones’ note. The same was true of the renewal. The foregoing in brief is the outline of plaintiff’s case. That is, that the coal in question was furnished at the request and upon the credit of defendants. On the part of defendants all of these facts were denied, it being claimed that these dealings were had with the Gilliland Company and its officers. A verdict for plaintiff was found by the jury against both defendants.

Of the errors assigned we will first consider those which relate to the admission of evidence. Subject to the objection of defendants, plaintiff was permitted to testify that he overheard a conversation between Jones and a Mr. Young, of the firm of Lesh & Young, relative to purchasing some lumber. He testified:

“I heard him say to Mr. Young that hereafter all the lumber and stuff that he might send to the Gilliland Electric Company he would pay for, he had plenty of money.
“Why, they wanted to buy lumber of Mr. Young, wanted Mr. Young to furnish them lumber for their manufacturing purpose, and it appears that Mr. Young was a little afraid to let the old Gilliland Electric Company have stuff, you know, but Mr. Jones told them that he needn’t be afraid.”

The court in referring to this matter charged;

“Plaintiff claims that some time prior to February, 1902, he met defendant Frank G. Jones at Lesh & Young’s mill and was there introduced to Mr. Jones; and plaintiff claims that he then and there heard Mr. Jones state, in substance, that hereafter he would pay all bills for such material as was furnished at the Gilliland Electric Company’s factory.”

This claimed conversation occurred -before the purchase of coal plaintiff claims defendant made, and had no connection whatever with such claimed purchase, and no promise was made at the time to plaintiff or conversation had with Jones concerning coal. This testimony was incompetent and immaterial and in no way tended to prove a contract between the parties to this suit, and should not have been allowed. It was error not to strike it out. The court was in error in charging the jury in reference to it as bearing upon the question of the claimed agreement between the parties.

Several errors are assigned upon the allowance of questions put to plaintiff of an extremely leading and suggestive character. While we do not say that it was reversible error to permit them to be answered, the practice of examining witnesses in this manner should be avoided.

Error is assigned to the following portion of the charge of the court:

“ * * * That later he was called to the office in the Gilliland Electric Company’s factory and there had a conversation with Mr. Jones. Plaintiff claims that at this time Jones, in substance, stated to him that they— or we — had been getting coal from Mr. Stevenson but that they would purchase from him (plaintiff) and would prefer to do so if plaintiff would meet certain prices which Jones then submitted. Plaintiff claims that Jones then represented that he had rented the factory for $5,000 a year and was financially responsible and would pay for the coal. Plaintiff claims that at that time Mr. Jones exhibited to him a financial statement in which he claimed there were resources to the amount of $25,000 or $30,000 over and above liabilities. Plaintiff claims that they thereupon agreed upon a price, and that plaintiff was to' furnish the coal to defendants, Mr. Jones and the American Electric Fuse Company.”

It is urged that this is misleading and tended to confuse the jury. The record shows that the conversation relative to renting the factory for $5,000 a year and the financial statement referred to in the charge, did not occur until after all of the claimed indebtedness was incurred and the coal delivered, and was at the time the Gilliland note was given or when it was renewed. We think the objection is well taken. The court was certainly mistaken, and from the charge the jury must have inferred that this was part of the conversation when it is claimed the agreement was made and on account of which plaintiff was induced to act. The mistake was misleading and prejudicial, and the charge was erroneous.

From an examination of the other errors assigned, we are satisfied that none of them require attention.

The judgment is reversed, and a new trial ordered.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Blair, J.

text:
    MOERMAN v. CLARK-RUTKA-WEAVER CO.
    1. Appeal and Error — New Trial — Overruling Motion-Reasons — Review.
    This court cannot consider an assignment of error to the overruling of a motion for a new trial, where the trial court filed • no reasons for the ruling complained of.
    2. Same — Questions Considered — Variance.
    Where the question of variance between the declaration and proof is not presented either by the motion to direct a verdict, the requests to charge, or the assignments of error, except the assignment upon the denial of the motion for a new trial, which the court cannot consider because no reasons were given for the ruling, the question of variance is not before the court.
    3. Negligence — Elevators—Injury to Passenger — Trial—Instructions — Harmless Error.
    Where, in an action for injuries received from a fall from an elevator in defendant’s store, it appears that plaintiff was put upon the elevator by one of defendant’s clerks and told to get off where it stopped, the clerk intending to send him to the third floor, and in response to special questions submitted by defendant the jury find that the elevator stopped at the second floor, where plaintiff was injured, and was started again by some one, error in instructions relative to defendant’s duty to send an attendant with plaintiff or give him warning is immaterial.

    4. Same — Sueeicienoy oe Evidence.
    In an action for injuries received from a fall from an elevator in defendant’s store, evidence examined, and held, sufficient to support a general verdict for plaintiff and a special finding that (the plaintiff being put upon the elevator by one of de- ■- fendant’s servants and told to get off where it stopped, the servant intending to send him to the third floor), the elevator stopped at the second floor, where plaintiff was injured, and was started again by some one.
    Error to Kent; "Wolcott, J.
    Submitted May 8, 1906.
    (Docket No. 97.)
    Decided September 20, 1906.

      Case by Henry Moerman against the Clark-RutkaWeaver Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Bundy, Travis & Merrick, for appellant.

      Jesse F. Orton, for appellee.

       As to liability for injury to elevator passenger, see note to Edwards v. Manufacturers’ Bldg. Co. (R. I), 2 L, R. A. (N. S.) 744.

   Blair, J.

Plaintiff seeks in this action to recover damages suffered, as alleged, through negligent operation of defendant’s elevator on September 6, 1904.

On the day in question, plaintiff procured from defendant a written order, permitting him to purchase certain door hangers at wholesale prices, with directions to present it at the back end of the store. Plaintiff presented the order to Mr. Fisher, a clerk of defendant, who directed him to get on the elevator and he would send him up to the floor where the door hangers would • be found, not specifying what particular floor. There were three floors in the store above the basement, access to which from the elevator was by means of automatic gates. Plaintiff had been sent up to the second floor on this elevator on previous occasions, but never to the third floor. , The door hangers were on the third floor, but this was unknown to plaintiff. The elevator was a freight elevator, operated by an electric motor. Various employés of defendant were accustomed to send the elevator up, but it was their duty when doing so to ring an alarm bell. Mr. Rutka, an officer of defendant company, testified:

“At the time of the accident and for some time before, I knew about customers being taken on the elevator; I did not know that at times the clerk did not go up with them; I supposed that there was always. I did not know. I frequently took customers up myself; do so now. Personally I never had occasion to send customers up alone. * * *
“Q. Whether or not you ever warned any of your clerks against sending customers on the elevator alone ?
“ (The defendant objects as immaterial. Objection overruled, and defendant excepts.)
“A. I don’t recollect that I ever particularly mentioned it. We have a sign on the elevator marked ‘dangerous.’ Don’t remember just the words, but it indicates there that it is dangerous out towards the elevator. That is the first thing you see when you go out there. I don’t remember that I absolutely ever called the boys together and said anything to warn them. X may possibly have said it to them separately. Samuel Fisher is our order clerk. He puts up orders and obeys orders that are given him on paper. When a customer brings an order Fisher takes it, goes where the goods are or sends the customer, where they are.”

Plaintiff testified:

“After Fisher had removed what was on the elevator at that time, he said for me to get on. He would send me where I was to be. That is all I recall that he said, and that I was to get the goods where the elevator would stop. He did not tell me on which floor he was going to stop it. I went up and got to the nest floor and stopped, and I made a move to get off, and got one foot off, and the other was staying where it was, not being removed, and something came down and struck me right here above the eye, and that rendered me unconscious, and that is the last I recall. I put one foot off on the floor, and the other remained upon the platform of the elevator. * * *
“When the elevator reached the floor on which I attempted to get off, it was the first floor after it started. When I tried to step off, the platform of the elevator was somewhere near even with the floor. * * *
“When X got to the second floor and the elevator stopped, the gate was up and out of the way. I should think all of sis feet high from the floor. After I attempted to step off and was struck on the head, I cannot recall whether the elevator made any movement. I can’t tell whether the elevator made any movement at all after it stopped, and can’t tell whether the gate made any movement after the elevator had gotten up there and stopped. When I got up to the second floor and was about to alight, there was no person insight at that time. * * * I did not hear any word or sound coming from any person at that time. When I first came to consciousness, after being rendered unconscious by this blow, I was at the bottom of the elevator shaft in the basement. I was all up in a bunch down on the basement floor, and had both legs broken from falling. * * * When going up on the •elevator I stood near the center of the platform and did nothing on the way up besides standing there. I did not touch the apparatus' of the elevator. I had no knowledge •as to the meáns of operating or running the elevator and did not know in wha* way the elevator could be started •or stopped. '* *
“ I think the planarm was about 5x7 'foot. I think I stood pretty near the middle. When the elevator started up I saw the gate come down, and when approaching the second floor, saw the second floor gate come up and knew it was there. The platform of the elevator, when I started to get off, was somewhere near level with the surface of the second floor — somewhere near so any one could step off safely. It might have been two or three inches above or below, I can’t say exactly and did not notice.
Q. You knew if -the elevator started up, the gate would come down ?
“A. Yes, sir.
Q. And that the gate was right over the immediate entrance to the elevator ?
“A. Yes, sir. * * * The elevator came to a dead stop at the second floor, I am sure of that, and it was at a dead stop when I put my foot on the floor, and the floor of the elevator was at a dead stop. .
Q. And did not start until you were struck in the head ? »
“A. No, sir.
Q. So that the elevator, you are sure, did not start •up when you were struck in the head ?
“ A. Not that I recall.
Q.' Well, your recollection is that it did not, is it not?
A. Yes, sir.
Q. And something struck you on the head ?
“A. Yes, sir.
Q. Thence on you knew nothing ?
“A. Yes, sir. * * * When I started up in the elevator Fisher was at the southwest corner of the elevator at the starting chain or tiller rope. Did not notice where he then went. Did not notice him after I got beyond sight —after I started up, I did not notice, and when I went into the elevator on the first floor there, was nobody else right near by except Fisher. * * * I have went up on that elevator alone before, at least twice. Have been up several times on it with somebody. Have been going there four or.five years.”

Plaintiff gave evidence tending to show that the elevator might stop without human intervention through the cable becoming slack and the weight of the chain pulling the contact off and that it had so stopped a number of times. But there was no evidence tending to show that the elevator could start or ever had started of itself. Plaintiff also introduced evidence tending to show that the ropes operating the gates might, and had, at times, become defective, and, giving way, allowed the gates to fall. At the close of plaintiff’s testimony, defendant’s counsel moved the court to direct a verdict for defendant for the following reasons:

“ First. Because the evidence introduced has no tendency whatever to show the cause of the accident. There is nothing but mere speculation and conjecture open to the jury as to the immediate cause of the accident, or the proximató cause thereof. The only act of a distinctly careless nature, if we may call it that, which plaintiff has shown is the lack of an attendant upon the elevator. In order to recover against the defendant for the lack of an attendant upon the elevator, plaintiff must introduce some evidence to show that the lack of an attendant is the proximate cause of the injury resulting. * * *
‘ ‘ Second. Because the plaintiff was guilty of contributory negligence.
“ Third. Because the plaintiff has not proved any act of negligence, or alleged act of negligence, that caused the injury.”

This motion was overruled, and defendant put in its proofs. At the close of the case, defendant, by its first request to charge, raised substantially the same questions, as follows:

‘ ‘ That the j ury is directed to find a verdict for the defendant for the following reasons, namely:
(a) Because there is no evidence in the case of actionable negligence.
“(b) Because the plaintiff was, as a matter of law, guilty of contributory negligence.
“ (c) Because, as a matter of law, neither the lack of an attendant upon the elevator nor the omission of defendant to give any warning to the plaintiff, was the proximate cause of the injury complained of.
(d) Because the injury complained of, so far as the evidence shows how it was received, was not the natural and probable consequence either of the lack of an attendant upon the elevator or of defendant’s omission to give any warning to the plaintiff.
“(c) Because whatever may have been the cause of the injury complained of, that cause, and not the remote facts of the lack of an attendant or of defendant’s omission to warn the plaintiff, was the proximate cause of the' injury complained of.
“(/) Because, as a matter of law, the proximate cause of the injury complained of has not been shown by the plaintiff.”

The court submitted the case to the jury, together with certain special questions propounded by defendant, as follows:

“1. Did the elevator in question, with the plaintiff on it, come to a stop at the time of the accident at the second floor of the defendant’s store when the floor of the elevator was about even with said second floor ?
“2. Was the elevator stationary when plaintiff received his first blow or injury ?
“3. Did the rope or cord that moved the elevator gate at the second floor, up and down, break at the time of the accident to plaintiff ?
“4. If the elevator stopped with its platform at or about even with the second floor, with plaintiff on it at the time of the accident, did any person start it upward again before plaintiff fell down the shaft ?”

The jury found a verdict in favor of plaintiff, returning with their verdict the following answers to the special questions:

“Answer to special question 1, ‘Yes.’ Answer to special question 2, ‘No.’ Answer to special question 3, ‘No.’ Answer to special question 4, ‘Yes.’”

After the rendition of the verdict, defendant’s counsel made a motion for a new trial and assigns error upon the refusal of the circuit judge to grant the same. No reasons of the trial judge for overruling the motion appear in the record, and, as we have repeatedly held, we cannot consider the assignment.

Counsel for defendant argue that there was a variance between the declaration and the proofs. Neither in the motion to direct a verdict, the requests to charge, nor the assignments of error, except the assignment upon the denial of the motion for a new trial, is this question presented, and we cannot consider it upon this record.

The first ten assignments and the twelfth relate to rulings of the court upon questions of the. admissibility of testimony; the eleventh and thirteenth assignments relate to the denial of defendant’s motion for verdict and the refusal to give the first request to charge; the fourteenth to the twentieth inclusive relate to the refusal of the court to give requests to charge. The twenty-first, twenty-second, and twenty-third assignments are as follows:

“21. In instructing the jury as follows: ‘l’f, on the other hand, you find that the plaintiff was not told at what floor to alight, but was told the elevator would stop at the place for him to get off, and if the defendant knew or had reason to believe that the elevator might stop of itself at the second floor, or stop and start again, without any person’s intervention, you would be warranted in finding that the defendant was negligent in not sending an attendant or giving notice of warning to the plaintiff.’
“22. In instructing the jury as follows: ‘If you find that the elevator did stop at the second floor; that the plaintiff had been told it would stop where he was to get off; that it started again before plaintiff had time to alight, and thereby caused his injury; and that by the exercise of reasonable care the defendant might have anticipated such a result and prevented it, either by so adjusting the elevator appliances that it would not start or stop without being operated, or by sending with plaintiff an attendant or conductor on the elevator, you would then be authorized to find negligence on the part of the defendant, if you find such facts, and find that they were the proximate cause of the injury.’
“23. In instructing the jury as follows: ‘ In considering this first question of whether or not the defendant is shown by the evidence to have been guilty of negligence which was the proximate cause of the injury, you can consider whether or not it was the defendant’s duty to send an attendant with the plaintiff on the elevator or to give him notice or warning in regard to his conduct in riding alone upon the elevator. The court cannot say to you, as a matter of law, that it was the duty of the defendant to send a conductor or attendant with the plaintiff on the elevator, or to give him any warning or notice. That may depend on wha,t you find in regard to other facts.’ ”

In view of the answers of the jury to the special questions, we are satisfied that the alleged errors could not have prejudiced defendant and we therefore do not consider it necessary to discuss them. Whether the elevator stopped at the second floor because of- a slack cable or otherwise, plaintiff swore positively that it did stop, and this was the only testimony in the case that it did stop. The jury believed the plaintiff’s testimony as against equally positive testimony of defendant’s witnesses that the elevator did not stop till it reached the third floor. The whole record discloses that the elevator could not start automatically from' a position of rest but required human intervention to put it in operation. Defendant’s employés on the different floors had a right and were accustomed to start the elevator. We cannot say, as a matter of law, that the answer of the jury to special question 4 was unsupported by the evidence. This question was submitted to the jury by defendant. There was evidence, we think, to justify the finding and which supported the general verdict. In view of this finding of a positive act of negligence, which the evidence under this record warranted the jury in attributing to the defendant, it was immaterial whether the failure to send an attendant with, or give warning to, plaintiff was the proximate cause of the injury.

The judgment is affirmed.

Carpenter, C. J., and McAlvay, Hooker, and Moore, JJ., concurred.


text:
    BRAMAN v. STEWART.
    1. Innkeepers — Injury to Guest — Defective Stairway — Notice to Proprietor.
    Where the proprietor of a hotel and her servant in charge of such matters testify that they used a flight of stairs many times a day, and that if there had been any defect therein they would have noticed it, and there is evidence that a defect existed, there is sufficient evidence on the question of notice of the defect.to go to the jury.
    2. Same — Actionable Defect — What Constitutes.
    ' Where the brass nose pieces on the front edge of the steps of a flight of stairs were bent upwards from one-eighth to three-eighths of an inch in diflerent places, the court cannot say, as a matter of law, that there was no actionable defect in such condition.
    Error to Macomb; Tucker, J.
    Submitted May 8, 1906.
    (Docket No. 121.)
    Decided September 20, 1906.
    Case by Jennie M. Braman against Kate S. Stewart for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      T. A. E. & J. O. Weadock (L. J. Weadock, of counsel), for appellant.

      Byron B. Erskine, for appellee.
   Blair, J.

Plaintiff brought this action to recover damages alleged to have been occasioned by the negligence of the defendant, the proprietor and operator of the Sherman House hotel in Mt. Clemens, in not keeping certain brass strips or nose pieces fastened to the front or outside edge of each tread or step of a stairway in said hotel in a proper state of repair, whereby the plaintiff, while carefully descending the stairs, caught the heel of her shoe on one of said brasses and was precipitated to the bottom of the stairway, suffering serious injuries. The trial judge directed a verdict for the following reasons:

“ There is no dispute in this case but that the plaintiff on the evening of August 4, 1903, fell down the "stairs of the Sherman House and was seriously injured; but the defendant, Mrs. Stewart, cannot be held liable for the resulting damage unless she was in some way to blame for the accident; unless some duty of hers was neglected with regard to providing a reasonably safe stairs or means of access from one floor to another, of her hotel. The questions, then, in this case are:
“First. Were these stairs in a reasonably safe and fit condition to be used for the purpose they were made for, at the time of the accident ?
Second. Was Mrs. Braman’s fall due to any defect in or on the stairway ?
Third. If it was due to a defect in the stairway, was that defective condition that may have caused the accident known to Mrs. Stewart, or was it such a defect as ordinary supervision, care, and prudence on her part, would have brought to her knowledge ?
‘ ‘ Fourth. Was plaintiff herself in the exercise of due care at the time of the accident ?
“Now, while these may be questions of fact ordinarily for a jury to pass upon, and not for the court to determine, yet, as I understand the rule, whenever, in any case, the court becomes satisfied that the great weight of the evidence is on one side or the other of a case, and to such an extent that in case a verdict were rendered against the side so having the greater weight of evidence in its favor that the court would be in duty bound to set aside that verdict and order a retrial, then it becomes the duty of the court to assume the entire responsibility, and to direct a verdict.
“Now, in this case, it seems to me that while some evidence has been introduced by the plaintiff, tending to show that she fell down those stairs by tripping upon one of the brass pieces, called ‘nose pieces,’ that were screwed to the front edge of each step, yet it seems to me the case is wholly wanting in evidence fairly tending to prove that plaintiff fell down stairs by reason, or because of any defective nose piece or want of repair in the stairs; nor is there, in my opinion, evidence upon which a verdict should be permitted to be based, showing that these stairs, at the time of this accident, were either so faultily constructed or so out of repair as to make them unsafe for use in traveling up and down by persons who were themselves in the exercise of due care; or that the defendant’s attention had ever been called to any claimed defect either in their construction or their defective condition by reason of wear and tear.”

We think the casé should have been submitted to the jury.

The plaintiff testified:

“That day, as I arrived at the top of the stairs, my husband was with me, a little behind; he stopped to lock the door, and I started on ahead of him. I supposed the stairs in a public place are perfectly safe. I simply stood at the stairs as I do always when I come to a new pair or stairs, take my bearings, as they would say, and go very carefully. I size the stairs up to see that I know what they are like, and go down carefully as I can. I was on the west side of the stairs; the right hand side. As I went down I tripped the heel of my shoe on the brasses, and it simply pitched me forward like that, and the first thing I knew, I was going so-fashion downstairs. * * *
“ I had a talk with Mrs. Stewart in relation to my injury, and reference was made to the stairway. She met me in the hallway and asked me how my hand was, and I told her it wasn’t any better; it seemed to me just the same; and I said to Mrs. Stewart: ‘ I am a poor advertisement for your house, because when I go on the street, people ask me “What’s the matter” with me; and I tell them that I came here well, and am going home a cripple; that I fell down the stairs at the Sherman House; and they ask me what is the matter with the stairs at the Sherman House.’ She said that I was lucky; there were others.”

Plaintiff’s husband testified:

“The stairway has from the bottom 10 or 11 straight steps, ordinary steps; above that 4 steps with an angle, forming the angle of the steps, what might be called the wind, where the stairs turned to goat a right angle to the first stairs. They turn to the right or to the left. They turn to the right going up, to the left coming down. There were 4 steps there that were narrower on the right and wider as you go to the wall. I should judge it was 4 inches wide, wide enough to take one spindle; possibly 18 or 20 inches wide at, the wall; above those stairs there were more straight steps after you made your turn and then the landing at the top; a hand rail on the right hand side as you go up; but none on the left hand side towards the wall. * * * When we got to the stairway, my wife was ahead, and she went on down the stairway or started to go. She was probably on the— well, she was on the last two steps, I should judge; I couldn’t tell for her clothes, but I should judge she had one foot on the next to the last lower step and one foot on the last lower step in the wind, and I had just come around the corner and was at the top; I had just got started down possibly three or four steps back of her and she tripped and threw out her hand and fell. * * * After the accident, I observed the condition of the steps. They were covered with a rubber sheet of corrugated rubber. There was a space between the wall and the rubber, and a space between the spindles and the rubber of 5 or 6 inches. The fastening was what they call a nosing of thin, hard sheet brass, brought up over the edge and partly on the top of the step similar to that one that you have, only thinner, and there was no indications of a corrugation extending along the same as that one has. There might been on the under side but there was not on the top; it was smooth. My recollection is that the entire piece was smooth. It may have been slightly corrugated at the bottom. It was put on the step, the brass was fastened on the under side of the steps. It left it raised above the rubber as the rubber would wear away. Immediately after the accident the top of it was not level; it was uneven on the edges, wavy, and in places there were places that were raised as if something had been struck against it and raised the edge of the brass. My impression is that the top of the nosing was raised up from the rubber as it was torn away from a quarter to three-eighths in places. I didn’t measure it. * * *
“ I have seen those strips since. Out of those I have noticed, they were all put on with the screw on the top with the exception of one that I noticed, that had the screws on the edge, and none on the bottom of the brass. I have taken particular attention of the way these nosings are put on on account of this accident. I have had no experience putting any on, nor never had any put on. I have noticed the condition they were in. I have never seen any this way, with the screws on the bottom, only in this one instance. I am competent to say or able to say what the effect would be when the nosings are screwed on from below, as to the top of the nosing being in the same position as when it was put on, or whether it would change with use. The top would not remain; as the rubber wears away, the top is away from the rubber; the brass is away from the rubber, and the more you tighten it on the bottom, the further it would be away. * * * I made an examination of the stairs that night afterwards, after the hurry was over and excitement, an hour and a half or two hours after the accident. I examined them' again the next morning. They were not in the same condition. Had the appearance of being hammered over with a hammer and trying to straighten them out. I couldn’t tell you how many. I simply noticed those where the accident occurred at the first and second of those gore steps going up, winding. Saw no other change in them. About an hour and a half or two hours after the accident, I found the brass or brasses extending above the rubber in one or more places. I found a number of places. I couldn’t tell you the exact number. All of the steps had spots where the edges were displaced, the edges of the brass. The projection above the surface was all the way from a thirty-second of an inch up to three-eighths anyway in some places. In the morning the projection was less than that. At night, the projections were from a sixteenth to possibly three-eighths of an inch. I didn’t measure them. In the morning there were places there where there was one-sixteenth of an inch anyway.
Q. There was very little change took place from the night to the morning ?
“A. That is quite a change from a sixteenth to three-eighths. I didn’t measure it at any time. I had no difficulty in seeing.
Q. How many did you think had been changed during the night, how many brasses ?
“A. They had the appearance of all being straightened up.
“ Q. All having been straightened up ?
“A. More or less trying to straighten them up.
“ Q. Pounded down ?
“A. They had that appearance, yes. ■
Q. That night when you examined them, what did you find about the brasses ?
“A. I found that the edge was uneven in places where the brass had been sprung up in spots, and that the brasses were quite smooth on the edges. I saw no places where the rubber was worn through. There were no corrugations on them that I saw.”

Ray Lapointe testified that in January, 1903, a man requested him to notify the hotel people that he had stumbled on the stairs; that he notified the clerk and the clerk told him to notify John Lueck, the porter, which he did.

Q. Did you see the condition the brass was in, and did you report it ?
“A. I did, sir.
Q. Did you see what condition it was in ?
“A. Yes, sir, there was one corner knocked up from carrying down a trunk. * * *
Q. Did he call your attention to the brass facing on the step at the time ?
“A. He did, sir. I did not look at it.
Q. Do you know how far it stuck up ?
“A. Just a little ways. It was knocked up from a trunk. * * *
Q. Were you going up stairs when this striking the nosing occurred, when they were carrying it up ?
A. I was, sir. I was helping to carry it up. It strikes very nearly every step we would go onto with it. I didn’t see anything, I heard it. The baggage was mostly always carried' on trunk carriers, except when we got a light trunk and we could carry it with our hands. I don’t know who helped me carry it or if I was ahead or behind. I didn’t see anything strike the stairs, and didn’t examine the stairs. He just told me. We went up the stairs often, and I glanced at it. There was just a little bit of a piece hit. I think that a trunk tore it. It was fixed at once.”

Defendant testified in her own behalf:

“ My attention was never called to any accident on the step or to any defect in the steps. John Lueck was head porter, and Will Kale. It was the porter’s duty to go over the stairways and clean them and, look after it. I would be using that stairway a dozen times a day. At the time this accident occurred, these nosings and rubbers were in perfect condition.
Q. You heard the testimony of Mr. Braman, that some of the steps the nosings stood up from a sixteenth of an inch to three-eighths, on part of the steps; and that was caused by something striking it or testimony of that kind ? What would you say as to that, Mrs. Stewart ?
“A. I think it would be impossible without my knowing it and my attention being called to it. The stairs were not in that condition. At the time the accident happened, Miss Iry called my attention to it. I went upstairs at once to Mrs. Braman’s room, and then I went downstairs; and I thought about the accident, and I called John Lueck, the porter. I wanted him to go over the stairs carefully and see if there was any reason why she should have fallen or could have fallen. We looked them over carefully and found them in perfect condition. Those nosings were not standing up as has been described. My impression is that these nosings were fastened from above. I have examined those steps a number of times. Examined them immediately after this accident happened with great care.
Q. And you have only an impression as to how they were fastened, is that right ?
“A. Well, I could swear they were fastened from above.
Q. Oh, you make it stronger now?
“A. I could swear to it, yes, sir.
Q. Now you are positive that they were fastened from above ?
“A. Yes, lam. I have some in the house fastened from below; it is customary to fasten them either way. One way is as good as another. * * * It was the porter’s duty, to go over these stairs in the morning before the guests came down before breakfast and brighten the brasses. I never knew him to go on there and hammer the brasses. We never gave it any thought because' they never came up. We never had occasion to hammer them down. The brasses were on the steps in December, and I knew then for the first time the claim that was being made by Mrs. Braman. The next month they were taken off.”

John Lueck testified for defendant:

“ Q. Whose duty was it, Mr. Lueck, to make any re pairs around there ?
“A. Well, sir, it is mine, head porter’s, to look after and see that it is done.
“ Q. .Were any repairs made there that night on-the stairs ?
“A. Not a thing.
Q. Had any of these nosings been bent up before ?
A. No, sir, not to my knowledge, of any kind.
Q. How often do you use those stairs ?
“A. I go every day as much as 50 times; some days 10,-some days 5, some days, maybe, more.
Q. Did you ever hear any complaint from any of the guests ?
“A. Never. *
Q. Of people falling on those stairs ?
“A. Never, never. That is the first complaint-since I ever have worked there. * * *
Q. How were the screws ?
“A. Underneath.
Q. Every one on the step on the strairway was screwed on from underneath ?
“A. Yes, sir.
Q. They were put on in this way ?
“A. Yes, sir, they were on from underneath. * * * I have gone up there once or twice when some of them got loose where somebody with a trunk or something or with a grip even, knocked it a little out, give the screw half a turn and it would be all gone.
Q, If a trunk struck the edge, it would knock the edge up ?
“A. Knock the corner up.
Q. How would you get the corner down ?
“A. I would take it off and take it outside and bend it over.
Q. How many of these did you take off ?
“A. I never did that at all.
Q. Why did you say that you did that?
“A. That is the way that I would do it. * * *
Q. Did you take it off in order to use a hammer ?
“A. No, sir.
Q. Did you ever use a hammer on these things?
“A. I have used it once or twice; that is all. * * * I did go over them occasionally.
Q. With a hammer ?
“Á. Not with a hammer, with a screw driver, to tighten the screws.
Q. Did you use a hammer on these nosings to fasten or to hammer them down ?
“A. Yes, I have used a hammer occasionally.
Q. Now, how many times did you use a hammer ?
“A. I don’t believe I have used it over two or three times that I have been there.
Q. Why didn’t you tell us in the first place that you had used a hammer on these brasses ?
“A. I didn’t catch on to what you meant by it.
“Q. What kind of a hammer did you use ?
“A. Just a small hammer, just a tack hammer.
“Q. Was it just a tack hammer ?
* “A. That is the only hammer I have got, just a tack hammer.
“Q. Was the facing that was on heavier than this ?
“A. Yes, sir.
“Q. A good deal?
“A. Yes, sir.
“Q. And you used a tack hammer to straighten it out ?
“A. It is a little heavier than a tack hammer.
“Q. How heavy; let’s get at it ?
“A. There’s two or three different weights of hammers; tack hammer, and medium size, and carpenter’s hammer.
“Q. Then it was a medium size you used ?
“A. Yes, sir.
“ Q. What place would you hammer and fasten it down ?
“A. Near the edge and middle. * * * The Lapointe boy did not at any time tell me that these stairs needed repairing.”

Defendant’s counsel cite in support of the court’s direction of a verdict: Idel v. Mitchell, 158 N. Y. 134; Jennings v. Tompkins, 180 Mass. 302.

In Idel v. Mitchell, the point decided, as stated in the syllabus, is that to warrant recovery—

“ For a personal injury caused by a protruding nail in a stair, the evidence must establish either that prior to the accident the defendant knew of the protrusion of the nail, or that the nail had protruded for such a length of time that the defendant should have known of it.”

If there was such evidence in the case before us, Idel v. Mitchell is authority for its submission to the jury. Such evidence was furnished by the defendant and her porter, John Lueck. Defendant testified that she used the stairway a dozen times a day, and that if the nosings stood up one-sixteenth to three-eighths of an inch, as testified by plaintiff’s husband, “I think it would be impossible without my knowing it and my attention being called to it.” In Jennings v. Tompkins the court say:

“This case, therefore, presents the general question how far a board can be allowed to be worn down by use without its being a defect as against persons who have a right to use it. The line must be drawn somewhere, and it is necessarily to some extent an arbitrary matter where it is to be drawn. We are of opinion that if the board is worn so that a nail projects three-sixteenths of an inch, there is no defect.”

Conceding the legitimacy of the court’s conclusion upon the facts of that case, we do not regard it as authority for the proposition that the projection of the hose pieces in this case in different places from one-sixteenth to three-eighths of an inch would not, as a matter of law, constitute defects.

The judgment-is reversed, and a new trial granted.

Carpenter, C. J., and McAlvay, Hooker, and Moore, JJ., concurred.


text:
    WOLVERINE LUMBER CO. v. PHŒNIX INSURANCE CO. OF BROOKLYN.
    1. Evidencie — Written Instruments — Explanation by Parol— Insurance Policy.
    A clause of an insurance policy stipulating for a certain amount of insurance “ on lumber in mill building, on cars under mill sheds, and in sheds adjoining to said mill building,” contains only words of ordinary meaning, but the situation of the premises and the sheds to which the words apply are facts ascertainable only by extraneous evidence, to establish which such evidence is properly admitted.
    :2. Fire Insurance — Policy — Property Covered — Mill and Sheds.
    Whether a fire-insurance policy “ on lumber in mill building, on cars under mill sheds, and in sheds adjoining to said mill building,” covered lumber in sheds situated some distance from the mill, or merely covered lumber under certain wooden awnings projecting from the mill roof over side tracks alongside the mill, held, under the evidence, a question for the jury.
    Error to Bay; Shepard, J.
    Submitted May 8, 1906.
    (Docket No. 122.)
    Decided September 20, 1906.
    Assumpsit by the Wolverine Lumber Company, Limited, against the Phoenix Insurance Company of Brooklyn on a policy of insurance. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      T. A. JE. & J. G. Weadock, for appellant.

      Lewis P. Goumans (Pierce & Kinnane, of counsel), for appellee.
   McAlvay, J.

This action was brought by plaintiff upon a policy of insurance for $1,000, issued to it April 12, 1903, covering, among other property, certain lumber. Plaintiff recovered :a judgment. The question involved in the case is the construction of the following portion of the policy, “$173.41 on lumber in mill building, on cars under mill sheds, and in sheds adjoining to said mill building, including dressed lumber. ‘ Block thirty (30).’ ” There was other insurance on the same property.

As to all the undisputed facts this case is identical with the cases of the Wolverine Lumber Co. v. Palatine Ins. Co., 139 Mich. 432, and Same v. Liverpool, etc., Ins. Co., 139 Mich. 435. Those suits were brought for losses which occurred at the same fire, for the same, property, and upon policies containing the same words as the policy in the suit at bar.

The location of the car tracks and buildings upon these ■premises will be better understood by reference to the accompanying diagram which was used upon the trial.

The size of the mill and the distances of these sheds from the mill and from each other are given in the former opinion referred to. The lumber destroyed by fire was in sheds Nos. 4 and 5, and in two cars standing on the east spur track opposite shed No. 5.

Plaintiff had what it called a general form under which insurance was carried on the plant, being a printed blank which had been used many years, and was furnished .most of the agents. It was the only form plaintiff ever had for general insurance. Defendant’s agent, Shaver, who wrote the policy in suit, which was the renewal of a former policy written by him, solicited the insurance from

■ plaintiff and was handed an old policy with the form he was to fill, with instructions to write under that form. He says that it was a typewritten form similar to the one on the policy in suit. There is no dispute but that the only difference between the form used in the suits referred to above and in this suit, is in the punctuation. The policy in suit was renewed when it expired, without further instructions, and the bill was sent to plaintiff. Shaver says that this was not a general form and that he asked to make a new form to cover every item in the yard. Evidence on the part of the plaintiff was introduced to show how the so-called general form was used and what this policy was understood to cover and also to designate the mill sheds. Defendant’s agent also testified

The errors relied upon are the refusal of the court to sustain defendant’s demurrer to the evidence and instruct the verdict in its favor at the close of plaintiff’s evidence, and, at the close of the case., the refusal to charge the jury that it did not appear that any property covered by the policy in the suit was destroyed by fire and to instruct a verdict for defendant. The question whether the property destroyed was covered by the insurance contract was left to the jury to determine under the evidence. A verdict was returned in favor of plaintiff for the amount claimed.

When the other cases were before this court, defendant insisted upon the same construction which is urged in this cáse. Justice Blair, speaking for the court, said:

“ The defendant insisted that the clause in question should be read as follows: ‘ On lumber in mill buildings; on cars under mill sheds; and in sheds adjoining said mill building,’insisting that the projecting roofs or awning of the mill constituted the mill sheds referred to in the policy.”

The opinion further says:

‘ ‘ The roof of the mill extended out 10 or 12 feet over the track on either side of the mill to protect the lumber and the men when loading or unloading the cars in stormy weather.”

Defendant insists that the policy in this case is actually written as it was contended the policies in the other cases should have been interpreted, and in this case the testimony shows that there was no understanding or agreement with reference to the policy covering the property in the different sheds; this last contention being based upon the fact that in the former cases defendant offered no testimony. In this case there were disputed questions of fact, defendant claiming that the mill roofs over the spur tracks were the only mill sheds on the premises ; and the plaintiff claiming that there were no mill sheds on the premises under which cars could be placed, and that the sheds burned' were known and used as mill sheds. There was evidence in the case tending to support both theories. The interpretation and construction of written instruments is for the court in all cases where the language is clear and unambiguous, but a written instrument is open to explanation by extrinsic evidence. Where the words of the contract must be applied to facts ascertainable only by such evidence, or if there is doubt or uncertainty, not about what the substance of the contract is, but as to its particular application, it may be explained or properly directed. 17 Cyc. pp. 665, 666, and cases cited. The words of this policy of insurance are words of ordinary meaning, but what were mill sheds and sheds adjoining the mill building, and whether there were mill sheds under which cars could be placed, were facts ascertainable only by extraneous evidence. Evidence to establish these facts was properly admitted, and, with proper instructions, submitted to the jury.

The case is'within the well-recognized rules above stated. The verdict of the jury was warranted by the evidence. It was not error to deny defendant’s motion to instruct a verdict in its behalf.

The judgment is affirmed.

Carpenter, C. J., and Blair, Hooker, and Moore, JJ., concurred.


text:
    LEONARD v. LEONARD.
    1. Cancellation of Instruments — Record —Evidence—Sufficiency.
    On a bill to set aside a deed and cancel the record thereof, evidence examined, and held, not to support a finding that it was recorded by the depositary by complainant’s direction.
    •2. Wills — Deeds—Effect of Instrument — Deed or Will.
    If an instrument, whatever its form or the mode of its execution, passes a present interest which vests from the time of its execution, it is a deed, though the possession and enjoyment of the estate granted in it do not accrue to the grantee until a future time; but if the instrument, though in form a deed, does not convey any vested interest, right, or estate until the death of the person executing it, it will be regarded as testamentary and revokable.
    •3. Same — Parol Evidence.
    The court may go outside of the writing to ascertain its character as a deed or will, not to supply an intention which cannot be found in it, but to ascertain with what intention the execution of the instrument was accompanied.
    ■4. Same — Effect of Instrument.
    Where a statutory warranty deed, containing a clause stating that it should not be operative until after the death of the grantors, was executed by husband and wife in favor of their adopted son, and placed in the hands of a third person, with instructions to care for it until after the grantor’s death and then to deliver it to the grantee, such deed conveyed no present interest, but was testamentary in character, and subject to revocation at any time by the grantors.
    . 5. Deeds — Record—Effect.
    Where an instrument in form a warranty deed, but testamentary in character, was recorded by the depositary contrary to the instructions of the grantor, such record did not operate as a delivery of the deed, nor divest the instrument of its testamentary character.
    Appeal from Clinton; Stone, J.
    Submitted May 8, 1906.
    (Docket No. 136.)
    Decided September 20, 1906.

      Bill by Margaret Leonard against Frederick Leonard and Lizzie Leonard to set aside a deed and to remove a cloud from the title do land. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      William M. Smith, for complainant.

      Henry E. Walbridge, for defendants.
   McAlvay, J.

Complainant filed her bill of complaint asking to set aside and cancel a certain paper writing made by her to defendants and their father, Frank Leonard, and to cancel and vacate record thereof made in the office of the register of deeds for Clinton county, claiming the same to be a cloud upon her title to land described therein.

Complainant and her husband, since deceased, were old people. They were childless, and had taken Frank Leonard when a small boy into the family, where he remained until he became a man. He is the father of defendants, minors, who appear and defend by him as their guardian ad litem. Michael Leonard, the husband, for several years before his death had been an invalid, requiring constant attendance. He had deeded the premises in question, which was their homestead, to complainant, his wife. She is now between 70 and 80 years old and is very ignorant.

The instrument in question was a statutory warranty deed, and contained the following clause:

“This deed is not to become operative until after the death of the parties of the first part hereto.”

It was executed and acknowledged by both the husband and the wife. It is admitted in the record that at the time it was made the title of the premises was in complainant, and the husband had no interest therein. The grantees paid no consideration and had no knowledge that the instrument was made until about four years after-wards, on the day when it was recorded. It was put into the hands of one Leonard Piggott, to be held by him until after the death of the parties executing it, when it was to be delivered to the grantees. There is no dispute in the testimony upon this point. Complainant, the notary who drew the instrument, and Leonard Piggott and his wife, who were the subscribing witnesses, all agree as to this. Shortly after the death of Michael Leonard, and on December 31, 1903, Leonard Piggott sent this instrument to the office of the register of deeds and had it recorded and returned to him. On this date he informed Frank Leonard that such an instrument had been made. The paper was never actually delivered to Frank Leonard or the defendants. On January 13, 1904, complainant caused her solicitor to make demand for said instrument of Leonard Piggott, who complied with the demand and delivered the same to him. On this same date Frank Leonard and his wife, at the request of complainant’s solicitor, voluntarily made and delivered a quitclaim deed of the premises to her.

As to the material facts in the case, there is but one in dispute, and that is whether the deed was placed upon record under the direction of complainant. Upon this appeal by complainant it is contended that the instrument upon its face is testamentary in its character and conveys no interest or estate in preesenti; that it was never delivered, and while in the hands of the custodian was under the control of complainant, to be recalled and revoked at any time; that it was put upon record without the knowledge or consent of complainant, and contrary to her express direction.

Defendants insist that the delivery of the deed to Piggott was absolute and unconditional, and placed it beyond the control of complainant, and that by virtue thereof and the authorized recording of the same title passed to the grantees subject to a life estate reserved by the grantors.

Before discussing the nature and effect of the instrument itself, it will be desirable to dispose of the disputed question of fact as to whether it was placed upon record with the knowledge and by the direction of the complainant. Whatever occurred in regard to this matter was at complainant’s house shortly after the death of Michael Leonard, when Piggott and his wife were there to borrow money from her. Piggott and his wife testify that at this time complainant told him to put the deed on record. Complainant testifies that she told him not to put the deed on record, and he said he would not.

In view of the fact that the record shows that there was some feeling between these parties and complainant, and their inclination on cross-examination to evade answering material questions upon this matter, and that they gave a different reason when Piggott delivered the instrument to complainant’s solicitor, and that such claimed instruction is directly contrary to the terms on which all the witnesses agree the paper was left with Piggott, we are strongly impressed that complainant told the truth, and we so find.

Mr. Underhill states in his work on Wills (§ 3?):

The courts in determining whether an instrument disposing of real estate is a deed or a will are guided by the following considerations: If the instrument, whatever its form or the mode of its execution, passes a present interest which vests from the time of its execution, it will be a deed, though the possession and enjoyment of the estate granted in it do not accrue to the grantee until a future time. On the other hand, if the instrument, though it is in form a deed, does not convey any vested interest, right, or estate until the death of the person executing it, it will be regarded as testamentary and revokable.”

As to the admissibility of parol evidence he says the court—

‘ ‘ May go outside of the writing to ascertain its character; not to supply an intention which cannot be found in it, but to ascertain with what intention the execution of the instrument was accompanied.” 1 Under-hill on Wills, § 39.

The character of this instrument depends upon the effect given to the sentence:

‘ ‘ This deed is not to be operative until after the death of the parties of the first part hereto.”

The words used cannot be said to apply simply to the enjoyment and possession of the property, but to the entire force and effect of the instrument, and are repugnant to the creation of a present interest. This construction is in harmony with the conduct of the parties. There is no evidence of a delivery or an intention to deliver the instrument during the lifetime of the makers. Lautenshlager v. Lautenshlager, 80 Mich. 285, and cases cited. Upon delivery as indicative of intent of the grantor to give effect to an instrument, see Pennington v. Pennington, 75 Mich. 600; Schuffert v. Grote, 88 Mich. 650; Burk v. Sproat, 96 Mich. 404; Taft v. Taft, 59 Mich. 185. The custodian testifies:

‘‘ [They] said the deed should be left in my care. After their death I was to present it to Frank Leonard.”

All the parties now living who were present agree that these were the instructions to him. It is clear from the instrument itself and the expressions and acts of the makers at the time that it was testamentary in character, and intended so to be.

Much reliance is placed by defendants upon the fact that the recording of the instrument constituted a delivery, and authorities are cited sustaining such contention. There is a line of authorities where doubtful instruments have been held to convey a present interest, when there has been a delivery, actual or constructive. Where these • decisions are based upon that ground the cases are in harmony with the decisions of this court as to delivery being indicative of the grantors’ intention to give effect to the instrument. See cases above cited.

There is a conflict of authority upon the main proposition as to whether instruments containing words of similar import to those in the writing in the case at bar convey a present interest to the grantee. Some of them upon the ground that to hold that they do, reserving a life estate in the grantor, operates equitably and gives the result intended if not actually expressed. Of this class is Shackelton v. Sebree, 86 Ill. 616. Of these decisions we can only say that where the words used, reasonably construed, do not pass a present interest, the instruments become the products of the courts, and not the grantors. Each case depends upon the peculiar wording of the instrument to be construed. Our construction of this instrument is in harmony with the decisions of this court. It is clear to us from the instrument itself, and the statements and acts of the makers at the time, that it was testamentary in character and revokable. It never went from the control of complainant and she has recalled and revoked it.

The decree of the circuit court is reversed, and a decree will be entered in this court in accordance with the foregoing opinion and setting aside and canceling the record of said deed as a cloud upon complainant’s title, with costs to her of both courts.

Carpenter, C. J., and Blair, Hooker, and Moore, JJ., concurred.


author: Carpenter, C. J.

text:
    HATCH v. DAUGHERTY. HATCH v. SHARP. DAUGHERTY v. SAME.
    1 Fraudulent Conyeyanoes — Mortgages—Priority.
    The fact that an insolvent mortgagor, for the purpose of defrauding his creditors, furnishes money to his daughter with which to procure the assignment to herself of a first mortgage on his real estate, does not impair the security of a second mortgage on the same property, and will not operate to give the second mortgage priority over the first.
    2. Same — Right to Attack.
    Where an insolvent mortgagor, for the purpose of defrauding his creditors, furnishes money to his daughter with which to procure the assignment to herself of the first mortgage on his real estate, it is only as a general creditor of the mortgagor that the second mortgagee can complain.
    3. Same — Judgment Creditors.
    A general creditor must obtain a judgment before he can complain that his debtor has fraudulently disposed of his property.
    4. Executors and Administrators — Mortgaged Property — Insurance and' Taxes — Payment.
    The act of an insolvent mortgagor in furnishing money with which to procure the assignment of the first mortgage on his realty to his daughter constitutes a fraud upon his general creditors and his administrator will not be required to pay the holder of the first mortgage sums advanced for insurance and taxes on the mortgaged premises, the -funds in the administrator’s hands not being sufficient to pay the general creditors of the mortgagor, such payment, if made, being of advantage only to the second mortgagee.
    Appeal from Jackson; Hopkins, J., presiding.
    Submitted June 5, 1906.
    (Docket No. 2.)
    Decided September 20, 1906.

      Bills by George N. Hatch against James L. Daugherty and others to restrain the foreclosure of a mortgage, and against John C. Sharp, administrator of the estate of James C. Deyo, deceased, and others, to foreclose a second mortgage; also by James L. Daugherty against said John C. Sharp and others to foreclose said first mortgage. The cases were heard as one, and from the decree rendered, said Daugherty appeals.
    Reversed in part.

      Pringle & Hewett, for complainant Hatch.

      Parkinson & Campbell, for appellant.

      John C. Sharp, in pro. per.

       Rehearing denied December 17, 1906.

   Carpenter, C. J.

December 3, 1884, James C. Deyo, since deceased, executed a mortgage to one John G. Carter, upon certain land owned by him, called the “ Biddle Street property,” in the city of Jackson. June 25, 1896, Carter assigned this mortgage to Luella J. Shaw, Deyo’s daughter. Luella J. Shaw subsequently assigned the mortgage to James D. Shaw, her son, and James D. Shaw subsequently assigned the same to James L. Daugherty. January 29, 1892, Deyo gave a mortgage to George N. Hatch upon the Biddle Street property and other property. This mortgage contained a recital that it was subject to the prior mortgage to Carter. August 10, 1896, Deyo assigned to Luella J. Shaw, who then held said mortgage, the right to collect and receive certain rents as security for the interest due and to become due upon said mortgage. Deyo died the 24th day of October, 1896.

The first of the three suits above named is one brought by the second mortgagee, Hatch, to obtain an injunction against the statutory foreclosure of the first mortgage. The second suit is a suit brought by Hatch to foreclose the second mortgage, and, as incidental thereto, to obtain a decree declaring that the second mortgage is a prior security to the first. The third suit is. one brought by Daugherty for the foreclosure of his mortgage. These several suits were consolidated and heard as one in the court below. Testimony was taken in open court, and a decree was rendered in accordance with the contention of the mortgagee Hatch, ordering the property sold and giving the Hatch mortgage priority to the Carter mortgage. It was also decreed that defendant Sharp, administrator of the estate of Deyo, should pay to said Daugherty from the rents collected by him, which had been assigned, as heretofore mentioned, amounts paid for insurance and taxes— aggregating $729. From that decree Daugherty, the holder of the first mortgage, appeals to this court.

The ground upon which the circuit court adjudged the Hatch mortgage to be a prior lien to the Daugherty mortgage is this: That the money with which Luella J. Shaw purchased the Daugherty or Carter mortgage was furnished by Deyo himself at a time when Deyo was insolvent, and that the purpose of purchasing said mortgage was to defraud Hatch and the other creditors of said Deyo. We think the fraud was established, but we cannot see how that fact gave the Hatch mortgage priority to the Carter mortgage. That fraud in no way impaired the mortgage security of Hatch, for after its accomplishment (viz., after the mortgage was assigned to Mrs. Shaw) he held, as he had theretofore held, his mortgage, subject to the Carter mortgage.

That fraud affected Hatch only because it diminished the funds of his debtor Deyo from which his mortgage indebtedness might have been paid. Only as a general creditor of Deyo then can Hatch complain of this fraud. He seeks relief in this case, not as a general creditor, but as a mortgagee. Indeed, he cannot claim to be a general creditor because his claim against the estate of Deyo has not been presented. Moreover, the rule is elementary that a general creditor must obtain a judgment before he can complain that his debtor has fraudulently disposed of his property (see Tyler v. Peatt, 30 Mich. 63; Boot v. Potter, 59 Mich. 498), and Hatch has obtained no judgment. If the present decree stands it enables the mortgagee Hatch to get the entire avails of funds fraudulently transferred by Deyo at the expense of other creditors (for Deyo did not have sufficient property to pay his creditors) who are entitled to participate.

Appellant also asks us to reverse that part of the decree which compels the administrator to pay from the rents collected by him the amount advanced for insurance and taxes on the mortgaged property. We may say of this decree, as was said of a similar decree in Southworth v. Parker, 41 Mich. 198, it “ has been made in supposed recognition of the familiar principle that where one has a lien upon two funds, and another has a subsequent lien upon one of them only, the former, in protection of the interest of the other, shall resort first, for the satisfaction of his demand, to the fund which is not subject to the other’s lien.” That principle, as stated in that case, “is by no means universally applicable,” and “ must be so applied as to protect equities — not to destroy them.” The funds in the hands of the administrator from which the decree orders payment to be made for the expenditure for taxes and the insurance is insufficient to pay the general creditors of James C. Deyo, deceased. As already shown, those creditors, and not Hatch, as mortgagee, were the persons defrauded by the fraudulent purchase of the Carter mortgage, and it would be equitable if that mortgage were used in paying their claims instead of defeating their payment. We conclude, therefore, that this portion of the decree is erroneous.

It follows from the foregoing that the decree appealed from should be modified in two particulars, viz.: First, the amount secured by the Carter mortgage should be the first claim paid out of the proceeds arising from the sale of the Biddle Street property; and, second, nothing secured by the Carter mortgage should be paid from funds in the hands of the administrator of the estate of James C. Deyo, deceased. Except in these particulars, the decree appealed from is affirmed.

We cannot fail to see that great injustice is likely to result to the general creditors of the estate of James C. Deyo, deceased, and to the mortgagee Hatch as one of said creditors— provided he does what he has not yet done, viz., procure the allowance of his claim as' such creditor — unless a proper opportunity is afforded them to assert their claims against the proceeds of the Carter mortgage. To afford them that opportunity the decree of thic court will provide that the commissioner who conducts the foreclosure sale, instead of paying the amount secured by said mortgage to Daugherty, shall pay the same to the register of the circuit court. Said fund shall be held by said register for 60 days and thereafter be subject to the order of said circuit court. Said period of 60 days is given the administrator of the estate of James C. Deyo, deceased, defendant herein, in which to commence suit for the purpose of obtaining a decree that said fund or such part thereof as may be proper be paid to him to be distributed among the creditors of said James C, Deyo, deceased. And this decree is without prejudice to the right of said administrator to institute and maintain said suit. Unless said suit is instituted within said period of 60 days or within such further period as may be allowed by the circuit court, said fund. shall be paid by said register to said Daugherty. The mortgagee Daugherty will recover from the mortgagee Hatch the costs of this appeal.

McAlvay, Grant, Hooker, and Moore, JJ., concurred.