author: Bkooke, J. Bird, C. J.

text:
    PEOPLE v. EAMAUS.
    1. Criminal Law — Continuance—Absent Witness — Affidavits— Abuse of Discretion.
    The denial of a continuance in a criminal case cannot be said to have been an abuse of discretion on the part of the trial judge, where the affidavit gave no intimation as to what testimony the witness, whose presence was desired, would give bearing upon the issue to be tried. Bird, C. J., and Kuhn, J., dissenting
    2. Appeal and Error — Record—Contents—Assumption by Court.
    Where the record in a criminal case does not contain a report of the argument of counsel for defendant, the Supreme Court will assume that the argument was made exactly as indicated in the charge of the court.
    3. Criminal Law — Argument1 of Counsel — Instructions.
    . Argument in a criminal case by defendant’s counsel asking the jury how they would like their son convicted under the testimony in the case, held, improper.
    On the propriety of arguments to juries citing statements in affidavits for continuance, see note in L. R. A. 1918D, 57.

      Exceptions before judgment from Kalamazoo; .Weimer, J.
    Submitted June 12, 1919.
    (Docket No. 98.)
    Decided October 6, 1919.
    Stuart Eamaus was convicted of keeping a house of ill-fame.
    Affirmed.

      W. J. Barnard, for appellant.

      Frank F. Ford, Special Assistant Prosecuting Attorney, for the people.
   Bkooke, J.

Respondent was convicted of keeping and maintaining a house of ill-fame in the city of Kalamazoo. Though impleaded with another, his wife, he demanded and received a separate trial. He now reviews his conviction under exceptions before sentence. His counsel relies for reversal upon the following points:

(1) Error in denying motion for continuance.

(2) Errors in the admission and rejection of testimony.

(3) Error in the charge of the court.

1. It appears from the record that respondent was arraigned, waived examination, and the return was filed on June 4, 1918. On June 6 the information was filed. On the same day a motion for a continuance was made supported by the affidavit of respondent in which it is stated that one Hatte Mook is a material witness for respondent and that said respondent after a full statement of his case to his counsel is advised and believes that he cannot safely proceed to trial without the testimony of said Hatte Mook. The affidavit further discloses that said Hatte Mook lives near Lyons, Michigan, and is ill. Accompanying the application was a physician’s certificate in the following terms:

“Lyons, Mich., 6/6/1918.
“To Whom It May Concern:
“This is to certify that, in my opinion, owing to certain conditions of her heart, that it would be very imprudent for Mrs. Hatte Mook to undergo any examination in court of a legal nature as the least excitement would be liable to prove fatal to the said lady.
“Wm. R. Grant, M. D.,
“Lyons, Michigan.”

Respondent was placed on trial on the 17th day of June, 1918, at which time his counsel excepted to the refusal of the court to grant the application for a continuance to the September, 1918, term. Error assigned upon said ruling raises the first question for consideration. It is to be noted that the affidavit for continuance gives no intimation to the court as to what testimony Hatte Mook could give bearing upon the issue to be tried. In the case of People v. Anderson, 53 Mich. 60, it is stated:

“The affidavit for continuance shows that the respondent has. fully and fairly stated to his counsel what he expected to prove by John Morgan, and was advised that Morgan was a material and necessary witness, without whose testimony he could not safely proceed to trial.”

The court refused the continuance for two reasons:

“First, that the affidavit did not conform to the rule (Circuit Court Rule 55), in not stating what was expected to be proved by the witness.”

On review in this court it was said:

“On the whole we are not prepared to say this was a fatal error.”

In the case of People v. Foote, 93 Mich. 38, the fourth assignment of error was that the court erred in not delaying the trial to enable respondent to secure the attendance of two witnesses. In passing upon this assignment the court said:

“It was entirely within the discretion of the court to refuse a delay for the purpose of procuring witnesses, and we see no abuse of that discretion. When the request was made, the circuit judge and counsel for the people and the respondent retired to an adjoining room to see if they could arrange some disposition of the matter. What took place there does not appear upon this record. We have not, therefore, all the facts before us. The judge was possessed of all the facts, and was in a far better position than are we to judge of the propriety of a delay.”

The same question was considered in the case of People v. Burwell, 106 Mich. 27, where it is said:

“The application for a continuance was within the discretion of the circuit judge. The application did not state what respondent proposed to prove by the witnesses whose presence he desired. Several of them were produced and testified.”

The affidavit for continuance in the case at bar is subject to the same infirmity pointed out and criticized in the foregoing authorities. The matter being one primarily for the exercise of a sound discretion by the court and no abuse thereof having been made to appear, we are of opinion that the assignment of error based upon the action of the court is without merit.

2. We have carefully examined the assignments of error based upon the admission or exclusion of testimony and find no reversible error therein.

3. Error is assigned upon the following excerpt from the judge’s charge:

“'Considerable time was spent yesterday by counsel for the defense in addressing the jury in an appeal which, for the want of a better term, is commonly termed an appeal to sympathy, an appeal for sympathy, and you were asked repeatedly by counsel for respondent in the course of his remarks how you would like to have* your son convicted under the testimony in this case. That is not the question at all. You are not called upon to consider it. It would be entirely improper for you to consider how you would like to have your son convicted under the testimony in this case. It is entirely safe to assume that there is not one of you who would like to have your son convicted under the testimony in this case. It is not likely that any of you who are fathers would like to have your son convicted. You are not here for that purpose. It would be entirely improper for you, as jurors, to analyze and consider the evidence in this case in the light of such a proposition, in the light of any such an attitude or with any such frame of mind. You are here to consider the evidence that has been presented, whether or not under the evidence it appears beyond all reasonable doubt this man participated in the keeping of a bawdy house, a house of prostitution, a house of ill-repute. You should dispel as far from your minds as you can as to what you would like to happen to your sons, those of you who have sons, under like circumstances. That appeal can no more properly be made by counsel for the respondent than it can be by the prosecuting attorney. The respondent would have no right to ask you what you would like to happen to your sons in connection with any feature in this case. It would be error for the prosecutor to make such an argument, and the court would have to reprove and reprimand him if he undertook to do it. So what is improper for him is improper for the defense.”

The balance of the charge is not printed in the record. Counsel’s criticism of the excerpt quoted is that the same is argumentative and improper. He asserts that no objection was made to any part of his argument to the jury either by counsel for the people or by the court. He claims:

“If counsel made an improper argument it was the duty of the court to stop counsel so that the stenographer might take down the language used and give counsel the benefit of any exception he might wish to take and to inform and apprise this court of the kind of argument that was being indulged in.”

He further claims as .a matter of fact that no such argument as that criticized by the court was made by him. The record does not contain a report of the argument of counsel and only that portion of the judge’s charge complained of. Under the circumstances we must assume that the argument was made exactly as indicated by the charge. If made, no argument is needed to emphasize its impropriety.

We find no error and the conviction is affirmed.

Moore, Steere, Fellows, and Stone, JJ., concurred with Brooke, J.

Bird, C. J.

{dissenting). I do not agree with Mr. Justice Brooke that the trial court did not abuse his discretion in denying the motion for continuance because the affidavit contained no statement of what respondent expected to show by the absent witness. It has been the understanding of the profession in this State that upon the first application for a continuance, on account of an absent witness, it was not necessary for the applicant to disclose what facts he intended to show by the witness. It is, however, necessary to make that showing upon a second application.

Circuit Court Rule No. 41 provides that:

“No motion for the continuance of a cause made after the first day in term shall be heard, unless a sufficient excuse is shown for the delay, and on a second application by a party for the continuance of a cause, the party so applying shall state, in addition to the usual requisites, the facts which he expects to prove by the absent witness, and shall also state with particularity the diligence he has used to. procure his attendance.” * * *

Green’s Michigan Practice, in laying down the rule as to the requisites of an affidavit for continuance, has this to say:

“The motion must be supported by affidavit. -Where the absence of a witness is relied on it must show satisfactorily to the court: 1. That the witness or testimony is really material; 2. That the party applying has used reasonable diligence; and, 3. That the witness or testimony can be had at the time to which the trial is to be postponed. On a second application for continuance it must state, in addition to the usual requisites, the facts which the party expects to prove by the absent witness, and with particularity the diligence he has used to procure his attendance. 1 Green’s Michigan Practice, § 762.”

Tiffany’s Justice Guide, § 291, in stating the rule, says:

“The party is not bound to state what he expects to prove by the absent witness, unless the conduct of the party is such as fairly to cast a well-grounded suspicion upon the good faith of the application to adjourn. In such case if he refuse to disclose what he expects to prove, the adjournment may be refused.”

In the case of McNaughton v. Evert, 116 Mich. 141, which was certiorari to a circuit court commissioner, Mr. Justice Hooker, in considering a like question, said:

“Although three motions to adjourn were made, there is nothing to show what might be proved by the witness, and the only evidence that what he might testify to is material is the statement of the defendant himself, under advice of counsel. In other courts it is usual to require an application for a second continuance to set up these facts.”

In support of the trial court’s conclusion the following cases are cited: People v. Anderson, 53 Mich. 60; People v. Foote, 93 Mich. 38; People v. Burwell, 106 Mich. 27. The most that'can be claimed for the Anderson Case is this: If upon a first application the trial court insists upon being advised what facts are expected to be shown by the absent witness, and the applicant refuses to disclose them, the application may be denied. In the Anderson Case the application was denied by the trial court upon the grounds:

(1) That the affidavit did not conform to the rule [Cir. Ct. Rule 55], in not stating what was expected to be proved by the witness; and (2) that the complaining witness was a non-resident who had come voluntarily to testify and could only be retained by putting him under recognizance.

The court in passing upon the question said:

“It does not strike us that the convenience of a prosecuting witness should govern in crowding a respondent to a speedy trial without preparation. And where, upon the face of the record, it is manifest, as it is here, that defendant has actually had no time for preparation, we cannot but doubt whether some further time should not have been given to obtain testimony. Had respondent made a second affidavit showing distinctly the importance of Morgan’s testimony, there is strong reason for holding that the action of the court cut him off from a constitutional right. There are several authorities, however, which hold that the respondent may be called on to show what he expects to prove, and without deciding whether this can always be required, we are not prepared to say that it is error to require it unless respondent gives some adequate reason why he should not be compelled to disclose his defense. On the whole we are not prepared to say this was a fatal error.’’

It is quite evident that the trial court in the Anderson Case misconceived the contents of Circuit Court Rule No. 55, as the provisions of that rule were the same as those now contained in Rule No. 41.

The Foote Case does not appear to be in point. The Burwell Case followed the Anderson Case, assuming it was necessary under the rule for applicant to disclose what facts he expected to show by the absent witness. In his foot notes to Rule No. 41, Judge Searl, after referring to the Anderson and Burwell Cases, makes the following comment:

“But Circuit Court Rule No. 55 in force when the Anderson Case was decided, required, as does the present rule, the party asking for second continuance only, to show the facts which he expects to prove; and it would seem plain that the Anderson Case was wrongly decided. See People v. Evans, 72 Mich. 367.” Searl’s Michigan Court Rules, p. 194.

It does not appear in the instant case that the trial court requested the applicant to disclose what facts he expected to show by the absent witness. If no such request were made and the denial was not placed upon applicant’s refusal to state'them, even the Anderson Case would not support his denial.

The defendant was informed against on June 6th and pressed to trial on June 17th. The application for continuance was regular in .form and sufficient in substance, and I think it should have been granted. Eleven days is rather a brief time in which to prepare to defend oneself against a serious charge. The urgency appears to have been that the prosecuting attorney desired to use certain soldiers as witnesses, who were to leave soon for France. Under these circumstances it was proper to reasonably expedite the trial, but this urgency should not go so far as to amount to a denial of justice to the defendant. Mr. Justice Campbell in commenting on a similar case said:

“It does not strike us that the convenience of a prosecuting witness should govern in crowding a respondent to a speedy trial without preparation.” People v. Anderson, supra.

I am of the opinion that there was an abuse of discretion in denying the application. I am also of the opinion that in so far as the cases cited are in collision with Rule No. 41 and the recognized circuit court practice, they should be overruled.

The judgment should be reversed and a new trial ordered.

Kuhn, J., concurred with Bird, C. J.

The late Justice Ostrander took no part in this decision.


source: Caselaw Access Project

author: Steere, J. Bird, C. J.

license: Public Domain

text:
    PEOPLE v. EAMAUS.
    1. Criminal Law — Evidence—Maintaining House of Ill-Fame by Agent — Admissibility.
    In a prosecution for keeping and maintaining a house of ill-fame, evidence that defendant, though making' her home elsewhere, did, within the time charged, control, manage, conduct,... keep, and maintain said place as a house of ill-fame, through the agency of another, held, properly admitted.
    2. Same — Continuance—Absent Witness — Abuse of Discretion.
    The denial of a continuance in a criminal case cannot be said to have been an abuse of discretion on the part of the trial judge, where it was not made to appear what defendant expected to prove by the absent witness. Bird, C. J., and Kuhn, J., dissenting.
    Exception before judgment from Kalamazoo; Weimer, J.
    Submitted June 12, 1919.
    (Docket No. 97.)
    Decided October 6, 1919.
    Etta Eamaus was convicted of keeping a house of ill-fame.
    Affirmed.

      W. J. Barnard, for appellant.

      Frank F. Ford, Special Assistant Prosecuting Attorney, for the people.
   Steere, J.

Defendant was convicted in the circuit court of Kalamazoo county of keeping and maintaining a house of ill-fame at 215 East Kalamazoo avenue on May 23, 1917, and on divers other days and times between that day and May 23, 1918. The case is brought here for review on exceptions before sentence.

The grounds for reversal urged and relied upon as stated in the brief of defendant’s counsel are:

“(1) Denying motion for continuance.
“(2) Errors in admission and rejection of testimony.”

No rejection of testimony, adverse to defendant’s interest, is pointed out and we find none in the printed record. The only claimed erroneous admission is that the court permitted testimony “with reference to what took place at 215 East Kalamazoo avenue on the 27th day of March and before the respondent had any control over the premises.” The testimony of the prosecution was directed to showing that defendant, though making her home elsewhere and not openly participating in the social and business activities at 215 East Kalamazoo avenue did in fact during March, 1918, as also before and after within the time charged, control, manage, conduct, keep and maintain that place as a house of ill-fame through the agency of a woman whom she had in direct charge as keeper. As to the month of March, a witness named Bernice Heustis testified that she went to the house at defendant’s solicitation and was. there in charge for her “from the early part of March until the middle of May, 1918”; that it was a furnished house and defendant owned all the furniture of every description; that witness ran the house on a percentage basis for defendant, who paid the bills for rent, fuel, gas, laundry, etc., occasionally visiting the place but communicating with her largely by phone, messengers, and letters, saying of the income:

“I made a settlement with her with reference to money taken in every night. I would send it over by á messenger boy or she would come over after it.”

There was abundant testimony both direct and circumstantial to plainly prove, if believed, that defendant was by the indirect methods indicated maintaining and keeping at the time and place charged a house of ill-fame, frequented for the purpose of prostitution and lewdness. In fact her resort in conducting the business to messengers and letters, sent by them to her agent, proved to be her nemesis. She was a forceful letter writer and sometimes went into details. An identified letter of some length from her to the woman in charge sent at a time when conditions were apparently somewhat disturbing begins as follows:

“Here is linen. Say, listen, I want to say this on phone. Mother here, cannot talk just now, but I’ve this to say, that all the damn neighbors on Kala avenue can go to hell or they can call the police. * * * I’ll run my own business regardless of any one street.”

Of the two alternatives which she proposed the latter was adopted and defendant, with others, was arrested for the offense of which she was convicted. She was taken into custody under a warrant from the municipal court of Kalamazoo on May 24, 1918, and the warrant returned that day. She demanded an examination before the committing court which was set for June 3d. On that date she waived examination and was bound over for trial to appear in the circuit court of Kalamazoo county on June 6th. On that date she was arraigned under an information charging her with the offense stated, to which she pleaded not guilty. She then interposed a motion for continuance based upon the sickness of an alleged material witness named, “Mrs. Hatte Mook,” who lived “near Lyons, Michigan, in the city of Ionia, county of Ionia, State of Michigan.” The application was accompanied by a verified physician’s certificate as follows:

“W. R. Grant, M. D.,
“Lyons, Mich., 6/6/1918.
“To whom it may concern:
“This is to certify that in my opinion, owing to certain conditions of her heart, that it would be very imprudent for Mrs. Hatte Moot to undergo any ex-animation in court of a légal nature, as the least excitement would be liable to prove fatal to the said lady.
“Wm. R. Grant, M. I).,
“Lyons, Michigan.”

The motion was denied, followed by application to this court for a writ of mandamus to compel the trial court to set aside the order of denial and grant defendant’s motion, which was refused. The case was brought on for trial June 10th, when objection was interposed for defendant and exception taken to her being compelled to proceed to trial at that time. It was shown that Mrs. Hatte Mook (or Moot), the witness whose absence and sickness were urged as ground for continuance, was the mother of defendant and present in the city of Kalamazoo in the latter’s residence at 224 West Water street at the time of defendant’s arrest, she then stating to the officer that her sick mother was there with her.

It is conceded by defendant that applications for continuance are within the discretion of the trial court, but urged that refusal to grant defendant’s motion was an abuse of discretion constituting reversible error.

Defendant’s affidavit for continuance is general in form, stating without any disclosure of her identity that Hatte Mook living “near Lyons, Michigan, in the city of Ionia,” is a material witness for her as she is advised by counsel, etc., but gives no intimation of what it is expected to prove by this witness or her relation to defendant. According to defendant’s letter she would not even talk with 215 Kalamazoo avenue over the telephone when her mother was present. The opinion certificate of Dr. Grant, of Lyons, that it would be very imprudent for Mrs. Moot to attend court as a witness owing to the condition of her heart, while destitute of definite facts, seems to furnish a life certificate of immunity from “any examination in court of a legal nature.” If so, defendant’s recourse was to take her depositions, but no steps were taken to that end or further showing offered when the case was called for trial several days after the motion was denied.

In People v. Anderson, 53 Mich. 60, this court declined to disturb the denial of a continuance by the trial court on a general showing of the absence of a material witness, where the time between the arrest and trial was about the same as here, and the application certainly as meritorious so far as the two records disclose, for there defendant was confined in jail from the time of his arrest without counsel or means to make preparation for his defense until three days before his trial, when friends procured him an attorney. This court there said after a review of the situation: “On the whole we are not prepared to say this was fatal error,” and affirmed the conviction. That the trial judge is in a more advantageous position to observe and understand the merits of the showing as applied to the situation in those matters involving an exercise of discretion than a printed record affords has more than once been recognized by appellate courts, and it must therefore be clearly shown that the court unfairly and prejudicially abused such exclusive authority before a discretionary ruling will be disturbed. People v. Foote, 93 Mich. 38; People v. Burwell, 106 Mich. 27; Roney v. Healy, 170 Mich. 46. In the Roney Case the rule and reason applicable to the situation here are thus concisely stated by Justice Ostrander:

“Unless there was a clear abuse of discretion, the ruling of the trial court must stand. McNaughton v. Evert, 116 Mich. 141. * * * I think the trial court committed no error in refusing the postponement. * * * because it was not then, and is not now, made to appear that Mr. Hally would or could give testimony concerning a material disputed issue of fact.”

The conviction will stand affirmed and the cause remanded for further appropriate proceedings by the trial court.

Moore, Brooke, Fellows, and Stone, JJ., concurred with Steere, J.

Bird, C. J.

(dissenting). I think this case should be reversed and a new trial ordered for the reasons stated in People v. Eamaus, ante, 442, filed herewith.

Kuhn, J., concurred with Bird, C. J.

The late Justice Ostrander took no part in this decision.


author: Steeke, J.

text:
    MACKENZIE v. FRANK M. PAULI CO.
    1. Nuisance — Abatement—Equity.
    Equity courts ought not to prohibit the conduct of a lawful business by a defendant on his own unrestricted premises except as a last resort to restrain an otherwise unavoidable nuisance existing in violation of a complaining party’s rights.
    2. Same — Injunction—Modification of Decree.
    On appeal from a decree perpetually enjoining defendant from continuing its woodworking mill in the vicinity of plaintiffs’ homes, on the ground that the same constituted a private nuisance, there being a showing that the objectionable features constituting a nuisance can largely be avoided by alterations, etc., the decree is modified to imposing correction of, and enjoining, the offensive features in the conduct of defendant’s business.
    Por authorities passing upon the question of duty and liability of one maintaining temporary obstruction in street for purpose of loading and unloading vehicle, see note in 24 L. R. A. (N. S.) 97.
    On municipal power over nuisances relating to trade or business in general, see note in 38 L. R. A. 640.

      Appeal from Wayne; Gilday, J., presiding.
    Submitted June 6, 1919.
    (Docket No. 2.)
    Decided October 6, 1919.
    Bill by David Mackenzie, Janet Mackenzie, E. A. Bridge, J. H. Trybom, Mrs. E. B. Trybom, A. J. Oostdyk, Mrs. Carrie C. Oostdyk, the Bewick Company, Alice E. Craige, trustee, Michael W. .Dempsey, William J. Young, and Mary Editha O’Brien, against the Frank M. Pauli Company to abate a nuisance. From a decree for plaintiffs, defendant appeals.
    Modified, and affirmed.

      Oxtoby & Wilkinson (Oscar C. Hull, of counsel), for plaintiffs.

      Sherman D. Callendar (T. A. E. Weadoek, of counsel), for defendant.
   Steeke, J.

The above named 12 plaintiffs are separate owners and occupants of lots in the eastern part of the city of Detroit, Michigan, either within the territory bounded by VanDyke, Lafayette, Shipherd and Agnes avenues, in said city, or in the immediate vicinity thereof, and have united in this bill of complaint to obtain an injunction for abatement of a private nuisance they charge defendant has developed and is maintaining in said territory, to their annoyance and damage.

The Frank M. Pauli Co., defendant, is a corporation engaged in general contracting, principally confined to carpenter contracts and woodwork, in connection with which it maintains and operates on lots in the above bounded block fronting on Shipherd avenue, about half way between Agnes and Lafayette, a lumber yard and planing mill, or “interior trim factory” as defendant prefers to name the mill portion of the plant. The relief asked in plaintiffs’ bill and granted by the trial court is an injunction perpetually and absolutely restraining defendant from “maintaining its mill and lumber yard on the land where it is situated and from operating its mill and using the property for the purpose of a mill and lumber yard.”

There are no restrictions to use or kind of buildings resting upon defendant’s land where the activities objected to are carried on. The whole block was originally. unrestricted though restrictions are found in a few transfers of recent date. Various portions of the block have been and are yet more or less used for business purposes. Plaintiffs base their claim of right to relief solely upon the proposition that the operation of defendant’s mill, or factory, is to them a nuisance as and where operated and located, near their homes and property in a residential section of the city, which they are entitled to have abated as such.

The specific allegations in plaintiffs’ bill as to objectionable features in defendant’s factory and business as operated and conducted in that locality are, in brief, disturbing and distracting noises from the machinery, loud shouting of or to the workmen and sounding of a heavy gong at certain hours as notice to employees of resumption and discontinuance of work, sawdust and smoke which at times- is emitted from the mill and blown by the wind over that neighborhood, extra fire risk from the nature of the business and manner of conducting it, using for private purposes and obstructing Shipherd avenue and the alley running north and south through said block at the rear of defendant’s property, and the noisy, offensive congregation in and use of said alley by defendant’s employees who often gather there and loudly indulge in profane and foul language close at the rear of the homes of certain of the complaining parties, to their annoyance.

Plaintiffs emphasize the fact that the general locality in which defendant’s plant is maintained is not a manufacturing or factory district; that the surrounding section of Detroit, covering an area of about three-fourths of a mile east and west by one-half mile north and south, bounded by East Grand Boulevard on the west, Jefferson avenue on the south, Burns avenue on the east, and Kercheval avenue on the north, is in its prevailing characteristics distinctly a large residential district of the city.

This district is bounded and traversed by some 15 north and south streets, or boulevards, and by five running east and west, named Jefferson, Lafayette, Agnes, St. Paul, and Kercheval avenues. It is now a .populous, well built-up' portion of the city, fairly shown to be in its general character a residential district east of'Grand Boulevard and south of Kercheval avenue. There are scattered through it business places on certain of the streets, consisting as a rule of small shops, stores and other lines of business to supply local trade, such as meat markets, groceries, bakeries, drug stores, shoe repair, tailor and bicycle shops, public garages, etc. Kercheval avenue on its north has a double-track car line along it and is concededly a business street, as are certain portions of Jefferson and Lafayette avenues.

The quality and character of neighborhoods and streets varies materially in different portions of that part of Detroit. Burns, Iroquois and Seminole avenues in the so-called “Indian Village” are recognized as amongst the finest and most desirable residential streets in the city, and Seyburn avenue, 70 feet wide, running north and south less than 175 feet west of Shipherd, is described as an attractive, strictly residential street with many fine homes upon it. The lots on its east side extend through to Shipherd, with the residences upon them fronting west on Seyburn. Other parts of the district are of a different quality and less attractive, having flats, apartment houses and tenements mixed with private residences and occasional business activities. The small block in question surrounded by Agnes, VanDyke, Lafayette and Shipherd avenues, is of the latter character. According to the plat furnished with this record its size is approximately 640 feet north and south by 350 feet east and west, with an alley running centrally through it north and south 20 feet in width from Agnes street south for about 450 feet, where it crosses an east and west 10-foot alley, and, with a jog to the east, continues south 18 feet in width to Lafayette avenue. North of the east and west alley are, as originally platted, 14 lots 60 feet wide, seven fronting east on VanDyke avenue and seven west on Shipherd with their rears on the 20-foot alley. Some of these lots have in times past been subdivided and parts sold, mostly in 30-foot lots. Agnes avenue on the north is 60 feet wide, VanDyke on the east 66 feet, Lafayette on the south 50 feet, while Shipherd on the west is of a disputed width, which the record leaves uncertain, defendant claiming it to be only 22 feet wide and in effect an alley, while plaintiffs claim a width of 30 feet and the blue-print furnished the court, on which it is marked “Shipherd avenue” with no width given, would indicate, in proportion to the other streets, nearer 40 feet. It is paved with concrete, has a cement sidewalk along it and residences fronting upon it, there being several between Agnes and Lafayette avenue.

Plaintiffs Oostdyk, Mackenzie, Bridge, Dempsey, Trybom, and O’Brien, own lots in the east half of this block fronting on VanDyke and extending back to the alley, those of the three last mentioned being directly across the alley from defendant’s factory which extends about 90 feet along it. Plaintiffs Craige and Mackenzie own land on the east side of VanDyke avenue, the Beckwith Company owns land on the east side of Shipherd avenue extending from Lafayette avenue north to within about 60 feet of defendant’s property, while plaintiff Young owns land on the west side of Shipherd. Two belated participants named Nehls and the Parker Estate Co., not named as plaintiffs in the bill but who subscribed to it, own land on the east side of VanDyke avenue. Except that of Young and the Parker estate the holdings of all plaintiffs have residences upon them.

Frank M. Pauli, who testified to being engaged in the building business in Detroit for 35 years, was in the employ of others during the earlier period of his activities and just when he became a building contractor for himself is not disclosed, but in 1909 he purchased a 30-foot lot in this block .fronting on Ship-herd avenue, extending east a depth of 168 feet to the alley, from two contracting carpenters named Brown and Farr who had some time before erected upon the alley a comparatively small one-story wooden building, 50x30 feet, used by them in their contracting business as a carpenter shop, or interior trim factory, which was equipped with a shaper, band-saw and ripsaw. For some time Pauli used this building and: equipment as it was when purchased, employing in it “about six” men. The following year he bought a 30-foot half lot just north of his first purchase, which had upon it a cottage fronting Shipherd avenue with a barn at the rear upon the alley, and began to expand his business in that locality.

The so-called Frank M. Pauli Co. had been in existence about eight years and was incorporated about five years prior to the hearing of this case, in May, 1918. Its stockholders were principally members of the elder Frank Pauli’s family, his son Frank G., who had previously worked for his father, becoming a member of the organization and active in its management. As its contracting business expanded defendant gradually increased its real estate holdings and enlarged its plant until at the time this suit was begun it had acquired five adjacent 30-foot lots and constructed additional buildings upon them both brick and wood, the whole constituting a' mill or factory equipped with various kinds of woodworking machinery, operated by electric motors of different sizes, in which it employed over 30 men, and was then employing in its contracting activities in the city a force of about 150. The brick factory building in which is located most of its machinery is 30x97 feet, two stories high, located on (the rear of the lots directly across the alley from the rear Of lots owned and occupied for residential purposes by plaintiffs Bridge, O’Brien, Dempsey and Trybom. North of its factory building is a lumber shed, 45x168 feet, with a storage capacity of 27 carloads. It uses five motor vehicles, the largest being a 3-ton truck 21% feet long with a 12-foot body, and has five plumber wagons for handling material. Its increased capacity was not only sufficient to keep up with requirements of its building contracts but to do factory wood work for others, including a contract to make “Liberty Cases” for the government, and defendant was planning to further enlarge when this suit was begun.

When Pauli, Sr., made his first purchase that portion of the city was sparsely settled and scantily improved in comparison with its present condition. He for some time employed but few men and used but little machinery, the business being conducted with comparatively little noise, dust or confusion, but after the company was incorporated, men, material and machinery were increased with a marked increase of dust, smoke, noise and obstruction of the street and alley until objections and complaints began to be made by those living in the vicinity which were apparently resented and treated with scant consideration until a somewhat belligerent status developed between certain of plaintiffs and Pauli, Jr., and the employees under him. Plaintiff Bridge testified that the men were a “noisy bunch” and the sound of the mill became such that when unwell he could not remain in his own home and on several occasions had to go over to his sister’s home and stay there to escape it; that when he complained to Pauli, Jr., about it the latter seemed to take delight in telling him “that they were going to put in new machinery and other things.” Certain of the women living nearby who complained of the dust, noise and conduct of the workmen when congregated in the alley back of their homes, indulging in profane and indecent language, were answered at times as they claimed with abuse and insult, which some of the more militant sought to suppress by turning a camera and the hose on Pauli, Jr., and some of his men, giving rise to admittedly unparliamentary reflections by the latter.

Amongst its varied equipment of mechanical appliances for shaping wood defendant has about 20 saws for different purposes — such as a jig-saw, rip-saw, swing-saw, cut-off saw, etc. A swing-saw.put in operation in 1915 and a gong installed to signal employees are particularly dwelt upon by plaintiffs as producing penetrating sounds which they found intolerable. The loud ring of this particular saw is emphasized by various witnesses as the culminating annoyance from defendant’s factory, being described by them as “fierce,” such that “no one can stand it,” resembling “the last squeal of a dying pig” or the note of “these peanut-stand whistles which the city stopped” magnified “about a thousand times,” a “high-pitched, screeching whistling” sound which “goes through the house whether the windows are closed or not and you cannot get away from it.” It was shown that defendant’s factory work starts at 7 o’clock a. m. when the gong is sounded; that the employees commence to gather before that time, often as early as 6:30, and usually in the alley when weather permits, where they indulge in loud and offensive language to the disturbance of those living nearby; and again at the noon hour to eat their lunches there, the refuse of which they throw around in the alley and sometimes into some of plaintiffs’ nearby back yards; that defendant has monopolized said alley to a large degree for use in connection with its factory, piling refuse, lumber and other material there, leaving its wagons in the alley overnight and occupying it for other purposes of its business; that the men working there in the open frequently throw down boards and other articles from above, shout orders and curse, to the annoyance and often exclusion of plaintiffs and the public generally from said alley, which defendant uses as though it were its private property. It was shown that defendant also now produces in its factory a large amount of wood refuse and sawdust which it at times dumps from the second story of its factory into wagons in the alley; that when the sawdust pit is full the dust is allowed to run out into the alley and be carried by the wind about the neighborhood and into plaintiffs’ houses and yards.

Without further details it may be said that the evidence well supports the conclusion of the trial- court that in the conduct of its business defendant has in several of the particulars complained of been guilty of maintaining a private nuisance against the rights of plaintiffs which it is within the jurisdiction of a court of equity to enjoin at their instance.

The trend of the story as a whole indicates that under Pauli, Jr.’s, management the business has been enlarged and conducted largely on the theory that the owner has a right to do as he pleases with his own, forgetful of the fact that defendant was not the ex-elusive owner of the street in front or alley at the rear of its property, and in disregard of the principle underlying the law of nuisances, concisely embodied in the old legal maxim sie utere, etc., which enjoins upon each the duty to so make use of its own as not to injure another.

That defendant’s business as conducted at the time this suit was begun and tried had developed into a private nuisance in certain of the particulars complained of, which should be and properly was enjoined by the trial court, we are well satisfied; the more serious question for consideration is just how far the injunction should go, for the restraining decree issued by the trial court, from which defendant appeals, completely and perpetually closes down its factory and destroys its established business in that locality.

Application was made to the trial court for a rehearing and modification of the decree, limiting it to enjoining the claimed objectionable features complained of without absolutely prohibiting the business to be continued. Insisting that the matters complained of were greatly exaggerated, defendant claimed and proposed to further show that by abandoning certain usages, changes in machinery and resort to more careful management and modern methods, the business can be continued without being a legal nuisance. As the case now stands there is a measure of showing that the objectionable features constituting a nuisance can largely be avoided by alterations, discontinuance of certain objectionable things, and improved appliances. Pauli, Sr., is not shown to have actively participated in the hostilities which developed and was apparently a fair and candid witness as to the situation when on the stand. In the application for a rehearing he offers with suggestion of method to do whatever the court may direct to eliminate the particular things complained of and held by the court a legal nuisance, which the trial court when deciding the case found consisted principally of “smoke from the smoke-stack of the factory, dust and sawdust from the planing mill, noise from the machinery and the manner in which defendant conducts its business, namely, doing a large portion of their work upon the public alley and street on either side of their factory.” While the latter usage has at times amounted to a nuisance proper to enjoin, it does not follow from it that the continuance of a legitimate business on defendant’s private premises should be suppressed also because of the nuisance in the highway; though if such practice was essential to the business it is conceivable such might be the indirect result. The pertinent law upon that subject is plainly stated in 1 Wood on Nuisances (3d Ed.), p. 314, as follows:

“Neither has a merchant or trader or manufacturer, or any person, no matter how great the necessity of his business, any right to use any part of the highway for the deposit, exhibition or sale of his goods. Neither has he a right to conduct his business in such a way as to keep goods constantly standing on the walk, or teams constantly or for any considerable portion of the time employed in front of his premises engaged in loading or unloading goods, and the fact that the same is necessary in the course of his business is no excuse; it is his duty to carry on his trade where he will produce no serious annoyance to the people, as public convenience and necessity are paramount to the ends of trade or individual necessity.”

Upon the question of whether the injunction goes too far in the first instance, we start with the universally recognized rule that equity courts ought not to prohibit the conduct of a lawful business by a defendant on his own unrestricted premises except as a last resort to restrain an otherwise unavoidable nuisance existing in violation of a complaining party’s rights.

“Where a business can be so carried on that it will not constitute a nuisance an injunction restraining the carrying on of such business will not be issued, but the court will so frame its order that the business may be continued provided it is so conducted as not to create a nuisance.” Joyce on Nuisances, § 90.

The duty of the court in that particular is thus well summarized from abundant authority in 14 Enc. of PI. & Pr. p. 1148:

“A court of equity is always reluctant to grant a perpetual injunction against the carrying on of a legitimate business. Where the court finds that such an establishment as conducted, is a nuisance, it should allow the defendants to show, if they can, that, by the use of proper methods and appliances, it is possible to continue the business in the same place without its being a nuisance. Where this can be done, a decree absolutely enjoining the defendants from further conducting such business is too broad; the injunction should be limited to such uses as create the nuisance, leaving the right to carry on the business in a proper manner.”

In Chamberlain v. Douglas, 24 App. Div. 582 (48 N. Y. Supp. 710), involving an injunction restraining the operation of machinery in a planing mill by steam power, the court said:

“Injunctions restraining the carrying on of a legitimate and lawful business should go no further than is absolutely necessary to protect the rights of the parties seeking such injunction. When a person is engaged in carrying on such business he should not be absolutely prohibited from doing so, unless it appears that the carrying on of such business will necessarily produce the injury complained of. If it can be conducted in such a way as not to constitute a nuisance, then it should be permitted to be continued in that manner.”

In Green v. Lake, 54 Miss. 540, where the nuisance complained of was the noise and refuse from a mill, interdiction of which by the trial court was modified to restraining certain offensive features, it was said:

“A perpetual injunction against the lawful use of property in a city ought not to be decreed if the owner can apply to his steam power and machinery such alterations and appliances as will relieve them from the special and unusual annoyances complained of in the case. * * * If the grievances can be removed by the aid of science and skill, a court of equity will go no further than to require those things to be done. The legislature and the local municipal authorities have ample power to regulate the business of the city so as to produce as little inconvenience and annoyance to the different classes of its population as possible. Noisome and offensive trades may be assigned to certain limits.”

To like effect see, also, Collins v. Wayne Iron Works, 227 Pa. 326 (76 Atl. 24); McCarty v. Carbonic Gas Co., 189 N. Y. 40 (81 N. E. 549, 13 L. R. A. [N. S.] 465, 12 Ann. Cas. 840); Miller v. Webster City, 94 Iowa, 162 (62 N. W. 648); Windfall Manfg. Co. v. Patterson, 148 Ind. 414 (47 N. E. 2, 37 L. R. A. 381); McMenomy v. Baud, 87 Cal. 134 (26 Pac. 795): Lorenzi v. Market Co., 19 Idaho, 674 (115 Pac. 490); Weaver v. Kuchler, 17 Okla. 189 (87 Pac. 600). This court has consistently recognized such to be the general rule. Gilbert v. Showerman, 23 Mich. 448; Edwards v. Mining Co., 38 Mich. 49; Shepard v. People, 40 Mich. 487; Ballentine v. Webb, 84 Mich. 38 (13 L. R. A. 321); Northwood v. Asphalt-Paving Co., 126 Mich. 284 (54 L. R. A. 454); Washington Lodge v. Frelinghuysen, 138 Mich. 350.

In Ballentine v. Webb, supra, where this court modified a decree perpetually enjoining the maintenance of a slaughter house devoted principally to butchering hogs received in carload lots to the number of about 300 a week, it was held that defendant’s business when properly conducted was not of such a character as to constitute a nuisance in the neighborhood where situated and complainants were not entitled to an injunction because its existence there depreciated the value of their property, and directed that the decree should be modified to elimination of specific objectionable features in conduct of the business, found by the court to constitute nuisances, saying in part:

“Defendant’s business, established under the circumstances of this case and conducted by him on his own premises, will not be enjoined, because it cannot be carried on without some degree of offense and annoyance to those living near it. It is only when_ it reaches the point of discomfort where it becomes injurious. to health that the injury can be said to be irreparable so as to call forth the extraordinary power of a court of chancerv to destroy it.”

It is not claimed that defendant’s wood-working industry is a nuisance per se. Inherently, it is not when properly conducted unhealthy, filthy or unwholesome, nor disagreeable and offensive to persons generally. The bare fact it may not be acceptable as a near neighbor to plaintiffs and may produce some discomfort or inconvenience to those nearby will not in itself justify its total elimination by injunction. The court has no concern with the indicated effort of plaintiffs to banish business from this block. Most of them invested in this unrestricted subdivision some time after defendant’s and other business enterprises of more or less magnitude were established there, purchasing advantageously and at an opportune time. Those nearest defendant’s plant conceded their holdings have much advanced in value since they purchased. None of them expressed a desire to sell at the admittedly handsome profit obtainable or were willing to name a price they would accept. This unrestricted property had been purchased to a marked extent by those who did and do use their lots for residence and business purposes in combination, the business generally being at the rear of lots, with residences on the front. The block is not and never has been a high-class exclusively residential district. Tenements, flats and apartment houses predominate. All plaintiffs owning property in the block, except Miss O’Brien, have at times rented a part or all of it to tenants, as a business matter. Miss O’Brien bought her lot in 1913, directly across the alley from defendant’s plant and adjacent to a property which had cottages in front and a long established wholesale bakery upon the alley at its rear. This bakery ran four ovens, had at times baked as high as 12,000 loaves of bread per day, employed at the time of the trial 14 persons in the bakery proper, had seven salesmen and 32 automobiles which were preceded by the use of from 18 to 25 horses. Across the alley from the bakery and north of defendant’s property Mr. Dyar, a riding master by vocation, owns, as he described it, “90 feet frontage and 165 feet depth.” His residence, 56 Shipherd, and two tenement houses being on the front, with a riding academy located at its rear on the alley. He testified that during the nine years he had conducted the business he kept from 10 to 58 horses stabled on the premises with the feed for them there; that he was then reducing his riding school business and having constructed on the property a public garage 90x70 feet which would be used for strictly business purposes. At 46 Shipherd, between Dyar’s and Pauli’s places of business, is the home of a philosophic colored citizen named Buster who appeared as a cheerful witness for defendant. He testified that he owned his home, had resided there with his family for about five years in peace with his immediate neighbors, defendant’s operations had not injured his health or bothered him, nor had there been any trouble between him and the lumber shed next to his place; that he was content with existing conditions, having in mind that if a private residence was substituted as his immediate neighbor there was a possibility, as he stated, “I might be undesirable to them and they might be undesirable to me.”

Defendant’s machinery is exclusively operated by electrical power, each machine by an independent motor. No fuel is consumed for power purposes. The smoke problem in connection with its heating plant would be no different than that of any business building or apartment of equal size. That and the matter of fire risk are proper subjects in the first instance for municipal control. A smoke consumer has been installed by defendant under direction of the city authorities and an extension of its chimney or change of fuel may, and defendant claims will, obviate the charged smoke nuisance. ' The offensive conduct of employees and use of the highways amounting to nuisances can and must be eliminated.

The sounding of a gong or whistle on defendant’s premises to indicate the starting or stopping of work, or for other purposes rs was the custom can and must, be discontinued, as must also the noisy use of thd‘ swing-saw or other appliances more recently installed in the enlargement of defendant’s plant which occasioned the shrill, penetrating and disturbing sounds complained of. The escape of sawdust and other light refuse from defendant’s mill to be carried by the wind around the neighborhood and upon plaintiffs’ premises must be prevented and, in fine, the offensive things in the conduct of the business specifically, pointed out and found by the trial court to constitute legal nuisances will be enjoined.

It is claimed for defendant that by change of construction, methods and appliances which it proposes these objectionable features can be eliminated. Defendant’s business as originally and for some years conducted occasioned little if any complaint and cannot be held to have been a legal nuisance. Plaintiff Trybom, a recent advent who moved into the block in 1914 and first complained of the noise to Pauli, Jr., in 1915, told him, “You were not a nuisance when'we came, but you are going to be a great nuisance with your heavier machinery.” Plaintiffs’ counsel says, “It is difficult to say just when defendant’s mill became a nuisance.” That during its expansion certain features and usages in its operation became such is clearly evident. Its cramped locality, character and the history of its management are such that threatened further enlargement there, either in buildings, machinery or force, must be restrained.

We conclude that upon the record the decree in the first instance should be modified to imposing correction of and enjoining those offensive features in the conduct of defendant’s business particularly complained of and found to be nuisances, in harmony with the course adopted in Ballentine v. Webb, and Northwood, v. Asphalt-Paving Co., supra.

The modified decree prepared for settlement may in form and general outline follow defendant’s proposed substitute in the printed record. So modified the decree of injunction will stand affirmed with costs to defendant in this court.

Bird, C. J., and Moore, Brooke, Fellows, and Stone, JJ., concurred. Kuhn, J., did not sit:

The late Justice Ostrander took no part in this decision.


author: Steere, J.

text:
    MAIN v. GRAND RAPIDS, GRAND HAVEN & MUSKEGON RAILWAY CO.
    1. Evidence — Rebuttal—Trial—Comment by Court.
    Where, in a personal injury case, a physician, called by defendant, testified as to what plaintiff said to him about her headaches, that she said “something of that sort,” that he “gathered that inference,” the trial court properly permitted her, on rebuttal, to testify as to what she said instead of confining her answers to whether or not she so stated as the doctor testified, and on objection it was not error for the court to comment, “The trouble was that the doctor himself only was able to give his impression or inference from what she said.”
    2. Damages — Future Damages — Rule.
    Future damages are limited to such as the evidence makes reasonably certain will necessarily result from the injury sustained.
    3. Same — Permanency—Evidence—Instructions.
    Where there was no evidence that plaintilf’s injuries were permanent, except as to a slight scar upon the face, instructions that plaintiff would be entitled to recover for future damages without distinct differentiation or direct instruction that under the evidence there was no element of permanency for them to consider, except as to the cut upon the face, held, reversible error.
    On mental suffering arising from contemplation of disfigurement or mutilation as element of damages for personal injuries, see notes in 15 L. R. A. (N. S.) 775 and L. R. A. 1916E, 890.
    Error to Kent; McDonald, J.
    Submitted June 5, 1919.
    (Docket No. 49.)
    Decided October 6, 1919.
    Case by Elva Main, an infant, by her next friend, against the Grand Rapids, Grand Haven & Muskegon Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Carroll, Kirwin & Hollway, for appellant.

      John W. Potuers, for appellee.
   Steere, J.

Plaintiff recovered a verdict and judgment against defendant in the circuit court of Kent county for personal injuries sustained in a rear-end collision between two of defendant’s cars at a substation called Walker, on its line.

The accident occurred on Decoration day, May 30, 1918. Plaintiff, a young married woman then 20 years of age, had on that day been visiting with her husband near the village of Coopersville and in the evening took one of defendant’s cars to return to their home in Grand Rapids. When the accident occurred plaintiff’s husband was sitting with his back to the smoking compartment in the front end of the car which they took, while plaintiff sat on the opposite seat facing him. The car in which plaintiff was a .passenger reached Walker station about- 9 o’clock where it stopped, and just as it was starting to move forward another came around a curve west of the station at its rear and ran into it with sufficient violence to knock off its tail lights, throw passengers standing in the aisle flat upon the floor, shorten the electric circuit and put out all its lights, break the glass in the partition of the smoking compartment, and drive the struck car along the track a distance of 2% or 3 city blocks before it stopped. Plaintiff’s account of the accident and her injuries, confirmed in outline by her husband, is in part as follows:

“I was seated on Ar;st seat facing the smoker. It threw glass into my face and cut my face, and hurt the back of my neck; it threw my neck backward; the broken glass cut my face, the glass broken was that between the smoker and the other car; this is the scar (indicating sear), arid it made me awful nervous; made me shake. That condition lasted until the next day about noon; I did sleep a little while that night but not very long. My head ached; and the next week I had headaches; right across my forehead and across the back of my neck, just below my hair; I have these about a week, sometimes three times, sometimes only once a week; I had them about the same the week following the accident.”

At the time of the trial, four months later, she had a discolored scar upon her face' about half an inch long.

Upon the trial it was admitted by defendant that there was a collision at the time and place claimed, one car running into the rear of another, and that the plaintiff, who was a passenger on the car which was run into, received some injuries, the extent of which was in dispute.' In extenuation of the collision it was claimed and shown by defendant that it was a dark, foggy night and the rail slippery, making it difficult to stop cars promptly. • Of this counsel for defendant said to the jury in his opening statement:

“Of course that does not relieve us from responsibility and that we concede, but as bearing upon the question of negligence of this defendant, we shall show you these facts, and as-1 have said, we have admitted and do admit the responsibility to this plaintiff to the extent of the injuries suffered; and will depend on you to award such sum as is reasonable and just between the parties to this suit.”

The jury awarded a verdict of $1,500 and judgment was rendered thereon, after which defendant moved for a new trial on various grounds, the most strenuously urged being that the verdict was excessive.

Upon the claim that the verdict was excessive and contrary to the weight of evidence the court said in part:

“The jury evidently accepted plaintiff’s theory of the case, that is, they found that the defendant was negligent and that its negligence was the proximate cause of her injuries; that plaintiff was in good health prior to the accident but afterwards suffered from severe headaches and nervousness, and that she received a cut upon the face which would be a permanent disfigurement. * * * The cut upon the face was in a noticeable part of the cheek and was of a permanent character. There is no exact rule by which damages for such injuries can be determined. Their determination should rest in the sound judgment of the jury, who saw the disfigurement and heard all of the testimony. * * * It seems to me that under the circumstances the verdict is not unreasonable or excessive.”

Under its various assignments of error defendant asks reversal on three principal grounds which may be stated as follows:

First, That the court erred in giving plaintiff’s fifth request to charge, and by the charge permitted the jury to speculate in their award of future damages to plaintiff for permanent injuries, including headaches she might thereafter suffer, of which defendant contends there was no evidence that such would necessarily result.

Second, That the court erroneously permitted plaintiff against objection to testify in rebuttal of testimony by Dr. Baker, a witness of defendant who had professionally examined her as to her injuries, as to what was said, instead of confining her answers to whether or not she so stated as the doctor had testified, and when ruling upon the objection saying in the presence of the jury:

“The trouble was that the doctor himself only was able to give his impression or inference from what she said. I think under these circumstances this question is proper.”

'Third, That the jury rendered an unreasonable, substantial and excessive verdict for a trivial injury.

Defendant’s second objection has little merit. Dr. Baker, who examined plaintiff shortly before the trial, had testified she then stated to him she had headaches at intervals before the trial and more than once a month, “something of that sort,” he could not recall just what she said but he “gathered that inference” from the conversation he had with her on the subject. When called in rebuttal her attention was called to that portion of the doctor’s testimony with the inquiry, “What is the fact?” To which objection was made and the court allowed her to answer, with the comment complained of. She then replied, “He asked me how often I had headaches before May 30th, and I told him once a month.” In view of the doctor’s testimony as to the inferences he gathered without recalling just what language she used, we see no error in permitting the answer she gave to the question asked.

The other two somewhat related grounds cáll for more serious consideration. The injuries alleged in plaintiff’s declaration for which she claims damages are that she—

“became, now is, and always will be permanently injured in her neck and spine and her nervous system is and always will be weakened and impaired, and her face was, now is and will be permanently disfigured, and she will suffer in the future great bodily pain, mental distress and annoyance because of her injuries and disfigurement.”

Defendant contends that the court by its charge in effect authorized the jury to award damages for plaintiff’s claimed headaches and nervousness as permanent injuries, as to which there was no proof, and also to conjecture as to its recurrence or possible continuation of which there was no testimony amounting to a reasonable certainty. Of the issue upon that proposition the trial court said in denying defendant’s motion for a new trial:

“The plaintiff's evidence showed that prior to her injury she had no headaches except during her menstrual periods, but that afterwards they were severe and of frequent occurrence. The defendant claimed that they were due to other causes. These claims present a question of fact for the jury and were properly submitted. There was no evidence that the headaches and nervousness were of a permanent character, and the jury was not permitted to so find, but it' was their business to determine from the evidence the length of time that they would continue.”

The charge as it appears in the record does not contain in direct language any mandate that the jury is not permitted to so find, beyond what may be infer-able from the instruction as to how that subject may be considered. Instructing the jury that there was no proof of damages for loss of time, services and medical expense, the court stated the elements of damage to be considered under the evidence and pleadings—

“would be pain and suffering, at the time of the accident and afterwards, or for such time as you find she may continue to suffer from headache and her damages from humiliation for disfigurement.”

When the subject of damages was next referred to the court said in part:

“The damages to be awarded as compensation in cases of this nature, are contingent on the extent, nature and permanency of the injuries suffered * * * and if you find that defendant’s employees were negligent, that the injuries suffered are not serious but superficial then the sum of damages to be awarded should be much less in extent than if they were serious and permanent.”

The only further direct reference in the charge to headache and nervousness as elements of damage appears in plaintiff’s request number 5 given by the court, as follows:

“If you shall find a verdict for the plaintiff, then in estimating the damages you are to consider the health and condition of the plaintiff before the injury complained of, as compared with her present condition and how long her present condition may continue; and if you find that the .plaintiff’s nervous system has been impaired, and that she is now subject to sick headaches, and that condition is the natural and proximate consequence of the injury sustained by the defendant’s negligence, then you are to consider the same in awarding, damages, and if you find that the plaintiff’s nervous system has been impaired and she suffers from headaches as alleged in her declaration and that such condition is the result of the injury complained of, then you will consider also in estimating damages how long such condition may continue as far as the evidence shows.”

Of the claimed disfigurement, the only evidence of injury or physical impairment resulting from the accident apparent at the time of the trial was a superficial scar on her face about a half inch in length, the discoloration of which had become less noticeable than at first, as she admitted, and which would eventually fade, as physicians testified, to a white line almost imperceptible except on close inspection. At the time of the accident she with her husband took another car and returned to Grand Rapids, there transferring to a city car from which they walked two blocks to their home and retired without finding it necessary to call for or consult a physician. The next morning plaintiff walked from her home to that of her sister, a considerable distance, and from there went down town to the office of Dr. Buhl, over a drug store, to have him treat her face. Dr. Buhl was not called as a witness, and as far as shown she did not thereafter call or consult any physician in regard to her injuries, until her medical witness, Dr. Slemons, examined her preparatory to being called as such. She testified that otherwise than by its appearance the scar occasioned her no annoyance, pain or discomfort. Before and up to the time of the accident she had been employed in a cigar factory operating a machine, and was so employed at the time of the trial. About a week after the accident she resumed her employment in the factory and worked about three weeks when they went north on their summer vacation for two weeks and on their return she remained at home for the rest of the summer, during which time she did her own housework, visited her sister and went down town once in a while, and returned to her employment in September, over two weeks before the case was tried. She testified that she did not go to work sooner because of frequent severe headaches and nervousness, saying: “I didn’t feel like working when I did work, and I wasn’t able to work.” Three physicians examined plaintiff shortly before the trial, two of whom were called as witnesses by defendant and one by her. Each observed that she had a goiter. Dr. Slemons, called by plaintiff, testified, as did the others, that aside from the scar referred to he found “no other physical defect or impairment the result of the" accident.” In his- opinion the headaches and nervousness with which she suffered, propounded in a hypothetical question, were the result of the accident and not attributable in any sense to her goiter, but he could not tell from the questions propounded and conditions stated, or from his own examination that her headaches or nervousness would be permanent, saying: “The scar is a superficial condition and the headaches are a nervous condition.” Defendant’s medical witnesses testified in substance that in their examination they found no sufficient physical injuries to have produced the symptoms and conditions complained of and conceding the headaches, nervousness,' etc., to be as claimed, such conditions were not in their opinions traceable to the accident, but entirely attributable to toxic secretions and resulting physical disturbances caused by her goiter.

The cut and resulting scar, called by plaintiff’s medical witness “a superficial condition,” and the headaches, designated by him as “a nervous condition,” with whatever pain, suffering and humiliation they caused were issues of fact for the jury involving injuries for which they could award damages according as the facts were found. There was evidence that the cut upon her face resulted in a scar of permanent character, the extent and duration of which were for the jury, including for their consideration an element of damages for permanent disfigurement. No proof of permanency and no such element of damages were for their consideration in the issue as to headaches, nervousness, etc. The court told the jury plaintiff would be entitled to recover, under the evidence and pleadings, as the facts were determined by them, “for pain and suffering at the time of the accident and afterwards,” or “for such time as you find she may continue to suffer from headache and her damages for humiliation,” and that “the damages to be awarded as compensation in cases of this nature are contingent on the extent, nature and permanency of the injuries suffered”; and later, without distinct differentiation or direct instruction that under the evidence the element of permanency was not for the jury, except as to the cut upon her face, the jury were instructed that if they found plaintiff suffered from headaches as alleged in her declaration, resulting from the injury complained of, “then you will consider also in estimating damages how long such condition may continue as far as the evidence shows.” If from this the jury might not infer they were authorized to find such injuries permanent, the instruction, as claimed to mean, is not in compliance with the accepted rule in this and other jurisdictions! applicable to that class of cases entitling plaintiff to recover damages presently for the reasonably certain consequences which will result from an unhealed or yet remaining injury not shown to be permanent. As broadly stated, it furnishes no clear standard for the jury to follow and opens the door for indulgence in conjecture and speculation as to what the result may be to the point of permanency, of which there is no competent proof. The instruction upon that phase of the case should plainly confine its consideration by the jury to such damages as are proximately shown by the evidence with reasonable certainty to result from the existing injury.

“Only such future damages can be recovered as the evidence makes reasonably certain will necessarily result from the injury sustained.” 13 Cyc. p. 139.

Such is the settled rule in this State. Brininstool v. Railways Co., 157 Mich. 172; Marshall v. Railroad Co., 171 Mich. 180; Kethledge v. City of Petoskey, 179 Mich. 301; Matthews v. Lamberton, 184 Mich. 493; Norris v. Railway, 193 Mich. 578. In the Norris Case it is said:

“The rule is well settled by these cases that future damages are limited to such as the evidence makes reasonably certain will necessarily result from the injury sustained, and the instruction should have been given in the language there approved.”

The judgment is reversed, with costs to defendant, and a new trial granted.

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

The late Justice Ostrander took no part in this decision.


text:
    CITY OF GRAND RAPIDS v. KRAKOWSKI.
    1. Principal and Surety — Bonds—Surety for Hire — Liability—1 Fidelity Insurance.
    A corporate surety for hire, unlike a gratuitous surety, may not invoke the rule of strictissimi juris, but its rights and duties are to be measured as in actions on contracts of insurance.
    2. Same — Statutory Bond — Form—Validity.
    A bond, conditioned upon the faithful performance of the duties of his office, and to account for all moneys, etc., coming into his hands as such, given by the clerk of the superior court of Grand Rapids, naming said city as obligee instead of the people of the State of Michigan, as required by the statute, is nevertheless valid as a common-law obligation.
    3. * Same — Duties of Clerks of Courts — Scope of Fidelity Bonds.
    It is not an unfair assumption that their bonds, conditioned for the faithful performance of the duties of their office, embrace every duty and obligation imposed upon clerks of courts of record by statute, direct lawful order, usage or rules of practice in the courts they serve.
    4. Tender — Practice—Money Paid Into Court.
    By long-settled practice in this State, money may be paid into court as a tender at any time before plea, ns a matter of course, no statute or rule requiring any consent or special order by the court to authorize such payment before pleading, but if a defendant wishes to pay money into court after pleading he must obtain a judge’s order for that purpose.
    5. Same — Compliance With Rule — Technical Irregularity — Effect.
    Requirement to enter a common rule as to the payment of a tender to the clerk of the court before pleading, which was not complied with, held, to be merely a technical irregularity, and that the purpose was served by the statement or voucher accompanying the check, which was accepted and cashed, stating the title and nature of the suit to which the payment applied, the amount and purpose of the payment, with the amount to he applied, on certain assessments, to recover which the action was brought.
    6. Principal and Surety — Bonds—Money Paid as Tender — Liability op Surety Co.
    A surety company was liable upon its bond, conditioned for the faithful performance of the duties of his office by the clerk of a court of record and to account for “all moneys received by him as such officer, or paid into said office while he is acting as such officer,” for money paid to him as a tender in an action then pending in said court, which he received and appropriated to his own use.
    Error to superior court of Grand Rapids; Dunham, J.
    Submitted June 11, 1919.
    (Docket No. 73.)
    Decided October 6, 1919.
    Assumpsit by the city of Grand Rapids against Alexander E. Krakowski, principal, and the Southern Surety Company, surety, on a bond. Judgment for plaintiff. Defendant surety company brings error.
    Affirmed.

      Jewell & Smith, for appellant.

      Ganson ,Taggart (James H. Campbell, of counsel), for appellee.
   Steere, J.

Defendant Alexander E. Krakowski was clerk of the superior court of Grand Rapids from January 1, 1912, until December 27, 1917, when he was removed from office because of discovered defalcations. The superior court of Grand Rapids was organized under Act No. 49, Pub. Acts 1875, which provided for a clerk required to give a bond, approved by the judge of said court, to the people of the State of Michigan in the penal sum of $10,000 conditioned for faithful performance of the duties of his office and to account for all moneys, records, etc., coming into his hands as such clerk. Krakowski was first appointed to fill a vacancy, the term for which ended May 1, 1912. When appointed he gave a bond running to the city of Grand Rapids in the sum of $10,000 with the defendant surety company as his bondsman. This bond ran through the unexpired term for which he was appointed and was approved by the judge of said court. On May 1, 1912, a new bond of like form with the same surety was given running to May 1, 1914, the clerk’s term of office being for two years. This was approved by the common council instead of by the judge of the court, and was renewed by continuation certificates at the expiration of each term to the end of his incumbency. The forms for renewal were furnished by the surety company to be used by its agent who solicited the business, as he explained, “for the convenience of the company and its agents, the same premium being charged as for a new bond,” which was regularly paid by the city.

This action was brought by plaintiff on said bond to recover from Krakowski and his surety the claimed amount of his defalcations, which the testimony showed occurred from time to time in each term. He interposed no defense and judgment by default was entered* against him for the amount claimed. The defendant surety company pleaded the general issue with various notices and was furnished with a bill of particulars amounting to $4,914.21.

As the case developed upon the trial and is presented here, defendant contests but one item of the claimed defalcations, being a deposit of $2,798.77, made with Krakowski as clerk of the court, by the Grand Rapids & Indiana Railway Company on January 16, 1914, as a claimed tender paid into the superior court in an action by the city of Grand Rapids against said railroad company for certain special taxes, the validity and amount of which was the subject of litigation in that court and case. Before this action was begun the Grand Rapids & Indiana Railway Company assigned to the city all its right, title and interest in the money which it had deposited as a tender with Krakowski as clerk. No order or rule of the court was filed or entered in relation to such deposit. The payment was made by a voucher bank order stating what it was for, payable to “the order of clerk of the superior court of Grand Rapids.” Krakowski indorsed it as such clerk and was paid the amount which he appropriated to his own use, making total default as to the same. At the time of the deposit he entered it in the cash book, and in the ledger regularly kept in connection with his office as follows:

“City of Grand Rapids vs. G. R. & I. Railroad Company, 1914, January 16, tender $2,798.77 page 38 cash book.”

He also gave to the railroad company’s attorney the following receipt:

“No. 316. Superior Court of Grand Rapids, Mich.,
“January 16, 1914.
“Received of James H. Campbell, attorney, the sum of two thousand seven hundred and ninety-eight and 77/100 dollars for tender in the case of the city of Grand Rapids vs. G. R. & I. Railway Company.
“$2,798.77 (Signed) Alexander E. Krakowski,
“Clerk and register of said court.”

The bond sued upon is concededly not in form or to the obligee prescribed by statute, but its validity as a bond, or common-law obligation, is not questioned. The condition of said bond is as follows:

“Now, therefore, the condition of the foregoing obligation is such, that if the said Alexander E. Krakowski, shall and does faithfully perform the duties of his said office, and does on demand deliver over to his successor in office, or other proper officer or agent of said municipal corporation, all books, papers, moneys, effects and property belonging to said corporation, or appertaining to his office, which may be in his custody and received by him as such officer, or paid into said office, and will on demand pay over and account to said municipal corporation, or to any proper officer or agent thereof, all moneys received by him as such officer, or paid into said office while he is acting as such officer, then these presents and all herein contained shall be null and void; otherwise in full force and virtue.”

The material facts are practically undisputed, and the case was tried by the lower court Without a jury. Plaintiff had judgment for the full amount claimed.

Counsel for the defendant surety company state their contentions as to the item of claimed tender by the railroad as follows:

“(a.) This money is not recoverable under the first condition of the bond, because it did not belong to the city, for the reason that money paid to the clerk of a court of record without an order of the court remains the property of the person paying it, until accepted by the opposite party, or. until control thereof is taken by the court.
“(b) This money would not be recoverable by the railway company (therefore not recoverable by the city by virtue of its assignment) under this bond running to the city only, there being no privity of contract and no right to sue thereon given by the statute.
“(e) There is no liability under either condition of the bond, whatever the .ownership, because there was no official duty on the part of the clerk to receive this deposit of money and_, consequently, his doing so was not an official act which could create liability against the surety on the bond in question.”

The contention between the city and railway company which occasioned the deposit in question with Krakowski as a tender into court arose over a special street improvement tax for $3,016 levied against the railroad on certain lands, a portion of which the latter claimed not to own. It tendered to the city the amount which it conceded was a proper tax on its land. This was refused by the city and an action followed to recover the full tax claimed. After notice of appearance and before pleading, counsel for the railway company paid the admitted amount to the clerk of the court in which the suit was brought for the purpose of keeping the tender good, and notified the city attorney of the fact.

It is conceded by defendant’s counsel that had there been an order of the court recognizing this tender no question could be raised as to the clerk having received the money in performance of an official duty, binding him officially and his bondsman. In whatever form presented defendant’s denial of liability is bottomed on its primary contention—

“that this record does not show a case where the party had a right to make the payment into court, and that some order of the court, at least, was necessary. The least that could be required under these circumstances was the filing or entry of such an order as, under the old practice, was ordinarily entered in the common rule book.”

While the distinction is not of controlling significance here, as the case more directly turns on the law of tender in this State and whether the terms of the bond cover this money paid into the clerk’s office for the purpose of a tender, yet as bearing upon defendant’s relations with plaintiff it is to be borne in mind that defendant is engaged in the surety business for profit, its compensation being in proportion to the kind and amount of security sold. Its agent solicited from plaintiff the business of writing this bond and the city paid the premiums. Defendant may not, therefore, as could a gratuitous bondsman, invoke strictly technical relief under the rule of strietissimi juris. For pay and as a purely business transaction it accepted and adopted the provisions of this bond, contracting to perform according to the terms of the fidelity insurance it wrote. Its rights and duties are to be measured as in actions on contracts of insurance. Ladies of Maccabees v. Surety Co., 196 Mich. 27. In that connection it is not to be overlooked that the conditions of this obligation imposed upon defendant’s principal not only faithful performance of the duties of his office, to account for and pay over all moneys received and held by him as such officer, but also “all moneys * * * paid into said office while he is acting as said officer.” Whether or not legally and technically within the scope of his official position to receive, hold and account for this money as such officer,' it certainly was paid into said office while he was acting as such officer, and paid to him in his office accompanied by a voucher fully advising what it was for and why paid to him at that time and place.

The substance of defendant’s contention is that this payment of a claimed tender was but a private transaction between the railway company and Krakowski as an individual; that the money deposited with him was never in his hands by virtue of his office, because not received in performance of any duty of his office prescribed by statute or order of the court of which he was clerk. Various aspects of this proposition are ably argued for defendant in technical detail with many citations of authorities, largely from other jurisdictions. The question is primarily to be tested by Michigan practice and decisions as applied to the conditions of this bond. It was executed for and by Krakowski as a public officer, in assumed compliance with statutory requirement. It is conditioned for faithful performance of the duties of his office in terms harmonizing with the spirit and intent of legislative requirement for protection of both public and private interests which might be detrimentally affected by the negligence, peculation or other malconduct of such officer. None of its provisions is prohibited by statute or against public policy. It is valid as a common-law obligation even though the obligee be other than designated by statute. Bay County v. Brock, 44 Mich. 45; Board of Education v. Grant, 107 Mich. 151; People v. Newberry, 152 Mich. 292; Kuhl v. Chamberlain, 21 L. R. A. (N. S.) 770, note (140 Iowa, 546, 118 N. W. 776); 32 Cyc. p. 58.

Concededly there is no direct statutory provision expressly directing in detail the manner of paying money into a court of record to keep good a tender, or as a tender, to the opposite party in a suit pending in such court; neither was any order made in this case by the judge of the court in relation to the money deposited, and it is contended for defendant that in the absence of an order by the court or some express statutory provision no official duty rested upon the clerk to receive the money and no liability fell upon his surety for any defalcation as to it. Decisions are cited from other jurisdictions in support of this proposition, and there are decisions tending to the contrary.

It would be a narrow, if not novel, interpretation of statutes providing for clerks in courts of record to hold that they had no duties or responsibilities in that capacity except as each of the many daily duties of their office great and small, which long usage and the nature of their position demands, was specifically designated by detailed provision of statute, or even by some direct order of the court. In performance of the many routine, non-judicial functions of the court they in a sense are a part of and represent it, for they are required to perform duties, which without them would be incumbent on the judge of the court. To them is confided the care and custody of the court’s office, files and records, with the responsibility for their correct and safe keeping, and various other necessary ministerial duties which by combination of written and unwritten law enacted or developed by custom and long usage appertain to courts of record. It is not an unfair assumption that their bonds conditioned for the faithful performance of the duties of their office embrace every duty and obligation imposed upon the clerk of a court of record by statute, direct lawful order, usage or rules of practice in the courts they serve. Though not in all particulars controlling here, the case of Howard v. United States, 102 Fed. 77, 42 C. C. A. 169, affirmed 184 U. S. 676, in a general way expresses and elaborates such view, and holds that a bond of the clerk of the United States circuit court conditioned “faithfully to discharge the duties of his office” embraces every duty and obligation imposed on the clerk “by law or the lawful order, usage and practice of the court.”

The payment into court in this case was primarily to keep good a tender made before action and not wholly under the statute, which provides for a tender after suit is brought. The distinction seems, however, of little importance here as the payment was in faet made to Krakowski after suit was brought and by long-settled practice in this State money may be paid into court at any time before plea as a matter of course, although it is said of a tender before suit that when the same is regular and supplemented by payment into court the money is relinquished to the plaintiffj and the trial court was right in refusing plaintiff a judgment for the sum tendered. Wetherbee v. Kusterer, 41 Mich. 359.

No statute or rule in this State requires any consent or special order by the court to authorize such payment before pleading. If a defendant wishes to pay money into court after pleading he must obtain a judge’s order for that purpose. In Green’s Practice (of 1866) (2d Ed.), p. 313, the adopted manner of making payment is thus stated in part; italicized as shown:

“Money may be paid into court at any time before plea pleaded, as a matter of course; or after plea, on obtaining a judges order for that purpose. (1) If before plea, a rule should be entered for that purpose in the book of common rules. (2) The money must be then paid to the clerk, who will give a receipt for it. * * * If the defendant wish to pay money into court after pleading, he must get a judge’s order for that purpose and serve it on the plaintiff’s attorney, and pay the money as above indicated. * * Under the former mode of pleading, when a tender before suit brought was pleaded, the money must be paid into court, and notice of the payment given with the plea; (6) otherwise the plaintiff might treat the plea as a nullity and proceed to judgment. (7) * * * According to our present practice, the money tendered should be paid into court, and notice thereof given under the plea of the general issue.”

In 1 Abbott’s Practice (of 1901), § 1035, the practice is stated as follows:

“In cases where the claim of the plaintiff is for a sum certain, or capable of being ascertained by mere computation, the defendant may, in order to prevent the expense of further proceedings, pay into court such a sum of money as he acknowledges the plaintiff ought to recover. The payment is usually made to the clerk of the court, and is equivalent to a confession of the plaintiff’s claim to the amount paid in and a tender of such amount. When made at the time of, or prior to, the plea, no rule or order is necessary, although it would be proper to preserve evidence of the fact, but when, after plea, the defendant desires to pay money into court, a motion should probably be made for leave. The payment may be made upon all the counts in the plaintiff’s declaration or upon only a part of them.”

The method of paying money into court as stated by text writers on Michigan practice is substantially in harmony with the old common law practice as laid down by early English and American authors upon that subject. Vide 1 Burrill’s Practice (2d Ed.), 407, and 1 Tidd’s Practice (4th Am. Ed.), p. 621, which dealt with the more technical refinements of earlier practice in the court of the King’s bench and common pleas. Of the then practice in such proceeding it is said in part:

“The motion for leave to bring the money into court is a motion of course and should regularly be made before plea pleaded * * * the money should be paid to the signer of the writs, who acts in this instance as deputy to the master and will give a receipt for the money. * * * The rule for bringing in the money is drawn up, in this court, by the clerk of the rules in term time, or within a week after, on the motion paper and receipt being left with him as instructions.”

Accepting Abbott’s Practice as authority, no rule or order was necessary, as the deposit was made with the clerk prior to the plea, but conceding that it is yet in accordance with good practice, a relaxation of former more strict requirements is indicated in Rule No. 11 of Circuit Court Rules of 1897 (in force when this deposit was made) which provides:

(a) Every rule to which a party would, according to the practice of the court, be entitled of course, without showing special cause, shall be denominated a common rule; * * * All common rules and all rules by consent of parties shall be entered with the clerk at his office, in a book to be provided by 'him for that purpose to be called ‘common-rule book.’
“(b) Except as required by statute, such rules may be filed with the clerk with the like effect as if entered as above provided.”

In so far as the filing or entry of a common rule would furnish any useful information to the clerk or his office, that purpose was served by the statement, or voucher, accompanying the so-called “voucher check,” which he accepted and cashed, stating the title and nature of the suit to which the, payment applied, the amount and purpose of the payment, with the amounts intended to be applied on each assessment to recover which the action was brought. Under such circumstances failure to file a formal common rule, which would ordinarily furnish less information, was but a technical irregularity in practice, affording no adequate ground for evading liability under the plain conditions of defendant’s contract of surety that Krakowski should “faithfully perform the duties of his said office,” and on demand account for not only money and other property coming into his custody as such officer, but all moneys “paid into said office,” to him, acting as such officer and fully advised of its purpose, and was received by him ostensibly in his official capacity by virtue of his office.

The judgment is affirmed.

Bird, C:'J., and Moore, Brooke, Fellows, Stone, .and Kuhn, JJ., concurred.

The late Justice Ostrander took no part in this decision.