text:
    SHELDEN v. NATIONAL MASONIC ACCIDENT ASSOCIATION.
    1. Mutual Benefit Associations — Assessments — When Payable.
    Where there is a question as to the time within which assessments levied by a mutual benefit association must be paid to prevent a forfeiture, its articles of association will govern, instead of by-laws adopted by the board of directors.
    2. Same — Notification—Service by Mail.
    Where the articles of a mutual benefit association require its members to pay assessments within a given time after having ' been “notified,” to prevent a forfeiture of benefits, and pro- . vide that mailing a notice shall constitute such “notification,” time does not begin to run against a member until he receives the notice, or ought to have received it in the ordinary course of the mails.
    8. Same — Proofs of Loss — Delay—Estoppel.'
    A mutual benefit association cannot take advantage of a delay in furnishing proofs of loss, occasioned by a neglect of duty on the part of its secretary in supplying blanks for such proofs after a request for the same by the beneficiary.
    Error to Houghton; Haire, J., presiding.
    Submitted October 27, 1899.
    Decided December 21, 1899.

      Assumpsit by Mary E. Shelden against the National Masonic Accident Association on a policy of insurance: Erom a judgment for plaintiff, defendant brings error.
    Affirmed.

      Dunstan & Hanchette (O. B. Ayres, of counsel), for appellant.

      R. Skiff Shelden (Gray & Looney, of counsel), for appellee.
   Long, J.

This action is brought by the plaintiff, as beneficiary in an accident policy for $5,000 issued by defendant to plaintiff’s husband on June 21, 1895. Mr. Shelden paid the defendant, at the time the certificate was issued, a membership fee of five dollars, which was all the fees and dues required to make him a member. He also paid all dues and fees to the defendant up to October 1, 1896. On the evening of that day he was shot on the streets of Houghton, this State, from which accident he died on the morning of the following day. It appears that on August* 10, 1896, an assessment of three dollars was authorized by the company for the benefit fund in the division of which Shelden was a member. It was provided in the resolution for the assessment that notices of such assessment should be mailed to the members on or before August 31, 1896. The defendant company is located in Iowa, and its principal office is at Des Moines. Notice of the assessment was mailed to Shelden, at Houghton, Mich., from Des' Moines, on or before August 29th, and it is claimed that it reached Houghton about September 1st. The notice reads as follows:

“Office of the National Masonic Accident Association.
“Des Moines, Iowa, September 1, 1896.
“A quarterly assessment of $3 for the quarter beginning October 1, 1896, and ending January 1, 1897, payable before October 1, 1896, has been levied upon all members of division A of the association, * * * to be applied as follows: Benefit fund, $2;-expense fund, $1; total, $3.
“ Payments should be made promptly. Lapsed certificates cannot be reinstated until payment is received by the secretary. Fill blanks, and return this notice with remittance to the undersigned, or pay to-, Collector.
“Fraternally,
“J. A. Doverman, Secretary.”

Mr. William D. Calverly, a witness for plaintiff, testified that on - October 1, 1896, he paid this premium demanded by the above notice to Harry Rice, cashier of the National Bank of Houghton; that he was the bookkeeper for Mr. Shelden, and had been since 1880, and had more or less to do with the payments for Mr. Shelden of his insurance premiums, and had two, three, or four times paid premiums on this certificate to Mr. Rice for Mr. Shelden. Mr. Rice testified that he was the collector at Houghton for the defendant company, and had never been notified that his agency had ceased. The receipt given to Mr. Calverly for the three dollars paid on October 1, 1896, bears date October 1st, and Mr. Rice’s name is signed to it, though Mr. Rice testified that it was not his signature. John Rees, who is the assistant cashier of the bank, and under Mr. Rice, testified that he signed Mr. Rice’s name to the receipt, and received the money. It appears that this money was remitted by the bank, or Mr. Rice, to the defendant company, and that it has never been returned.

On the trial it was contended by counsel for defendant, and it is now contended here, that the payment made on October 1, 1896, was not in time, but that, under section 19 of the by-laws, and the resolution ordering the assessment, and under the notice of assessment, Mr. Shelden was bound to pay no later than midnight of September 30, 1896; that the payment on October 1st was too late, and the policy lapsed, and, the accident happening after that time, no recovery could be had. The notice has been set out herein. The resolution for the assessment reads:

“On motion of O. B. Ayres, an assessment was ordered made on all members of the association; the amount of said assessment to be $3 for the benefit fund in division A, . * * * and $1 quarterly dues for the expense fund of division A. * * * Notice of said assessment to be mailed to said members on or before August'31, 1896, and to become due and payable during the month of September. * * * ”

Section 19 of the by-laws reads:

‘ ‘ If any member shall fail to pay an assessment on or before the day, so fixed for payment thereof, his certificate and membership shall cease to be of any force or effect, and can only be revived by payment as hereinafter provided. It is the privilege of any member to pay any assessment in any year, and to thereby be entitled to benefits from the time when such assessment is paid until the next assessment becomes due; but no benefits of any kind can accrue or be paid for or on account of any injury received by the member between the time when any assessment became due and the time when the same or some subsequent assessment is received by the secretary at his office; and no requiring of any subsequent assessment of such delinquent member, or notifying him of any assessment, nor any receipt of any assessment after the same has become due, shall in any way alter, change, or affect this rule.”

It appears that it was after this assessment became due and payable, and, before the assessment was actually received by the secretary at his office in Des Moines, Iowa, that Mr. Shelden received injuries which proved fatal; that is, the assessment was not received by the secretary at DeS Moines until October 5,1896, and Mr. Shelden was injured on the evening of October 1st. As has been stated, however, the assessment was paid to Mr. Rice at the bank some time during the day of October 1st, and before the injury. The court below charged the jury upon this question as follows:

“ I instruct you that if you find from the evidence, however, that Mr. Shelden had been in-the habit of paying his dues and assessments to Mr. Rice, or any other person connected with the bank at Houghton, and that the association knew this, and received such dues from and through Mr. Rice or such other person connected with the bank, and made no objection to Mr. Shelden of such payment, and that Mr. Shelden had not been notified by the association not to make any further payments to Mr. Rice or any other person, or that such payments should be made to the secretary at his office, then the payment of October 1, 1896, although made after the regular time, would have the effect of restoring Mr. Shelden to all the benefits attaching to his membership in the association, the same as if such payment had been made in time. I further instruct you that simply leaving out the name of the collector in the notice of assessment which the undisputed evidence shows was made by the secretary of the association, and mailing to Mr. Shelden, would not be sufficient or proper notice to Mr. Shelden to deprive him of the right to make such payment to Mr. Rice, or such other person or corporation. On the other hand, I charge you that if you find from the evidence that said George O. Shelden, at or before the payment was made on October 1, 1896, knew or had notice that a payment made on that day would not take effect until actually received by the secretary of the defendant at Des Moines, Iowa, then you should find that the payment was not made in time, and in that event you will find for the defendant. In other words, if Mr. Shelden had notice that this was not the proper place to pay the assessment, then, in that event, if you find such to be the fact, you will find in favor of the defendant. That is all I have to say upon the question of payment. If you find on the question of the payment of dues in favor of the defendant, you need go no further in the case; simply return a verdict for the defendant. If you find in favor of the plaintiff on that point, you will then consider the nest question.”

The defendant contends that the court was in error in this part of the charge, and that, under the facts shown, the court should have directed the verdict in favor of defendant. On the other hand, it is contended by counsel for plaintiff that this by-law has no such force as claimed; that the articles of association must govern; and attention is called to section 8 of article 8, which reads:

“Any member failing to pay his assessment or dues within thirty days after having been notified shall forfeit all his right to benefits. Mailing a notice to his post-office address as shown by the books of the association shall constitute such notification.”

Counsel for plaintiff contend that it is not necessary to inquire whether the by-laws affect this provision, for these articles can be changed by the members only, while the bylaws are made and may be amended by the board of directors; that the above section of the articles of association contemplates that the member shall have 30 days after being notified in which to make his payment of assessment for benefits; and that the words of this section, “after having been notified,” mean that he shall have 30 days after he has received the notice, or 80 days after a notice mailed to him would reach him in the ordinary course of mails, and not that he shall have only 30 days after the day of mailing the notice..

We think the contention of the defendant cannot be sustained; that section 8. of article 8 of the articles of association must govern the question. Where notice of a stated number of days is required (that is, that a member shall be informed) before the forfeiture of a right to membership can take place, it cannot be - said that the time can be counted from the time when the notice is dated, or when the notice is placed in the post-office, addressed to the member. In Castner v. Insurance Co., 50 Mich. 273, the language of the charter was that the member was to be “notified, by the secretary or other-wise, either by circular or a verbal notice.” It was contended by tbe insurance company that mailing a notice of assessment, prepaid, and directed to a member, was a sufficient compliance with the charter of the company. The court said:

“The consequences to flow from this notification are admitted to be important. A fixed personal liability is to depend upon it; and, further, in case of failure to respond by payment of the sum assessed, as communicated by the ‘notice,’ during a given number of days, the member is to stand unprotected by his policy, and wholly without remedy or redress in case of loss. In principle it is not easy to distinguish the nature of the required notification from the office and object of service of process, and there would seem to be as much reason for real notice in the case in question as in the case of an action. The destruction of a mail, or accidents preventing the delivery of matter, or even a considerable delay, might at any time, without fault of the persons insured, eventuate in widespread loss and injustice. No construction open to so much objection should be admitted unless rendered necessary by the terms of the charter; and they do not require it. On the contrary, they contemplate that the members shall have real information of the assessment. The provision is not that notice or information shall be mailed, or sent, or forwarded. The members are to be ‘notified,’- — • that is, informed; to have made known to them the fact of the assessment; and this is permitted to be done either by oral statements to the members, or by delivery to them of written statements through the agency of the post-office, or some other. It follows that the second ground of defense cannot be supported.”

See, also, Protection Life Ins. Co. v. Palmer, 81 Ill. 88.

It is true that, where service is the principal thing, and it is provided in the charter or by-laws that service may be made by mail, then so depositing the paper addressed to the member will be sufficient. In Ross v. Insurance Co., 83 Iowa, 586, it appeared that the statute of Iowa provided for notice to an assured by the company of the maturity of his premium note, and declared that “such notice may be served either personally or by registered letter addressed to the assured at his post-office address named in or on the policy; and no policy of insurance shall be suspended for nonpayment of such amount until thirty days after such notice has been served.” It was held that service was complete, and the 30 days began to run, as soon as the letter was mailed as provided by law. The court said, “It is the service, and not notice, that gives rise to the operation of the statute.” In the present case, however, there must be notice before a forfeiture can take place. There is great and apparent necessity for notice of the levying of an assessment. Assessments are levied only when needed, and the officers of the company are the ones who are to determine this necessity. A member cannot be put in default for not paying his assessment until he is notified as provided by the charter. We think the payment of the assessment on October 1st. was in time after notice was received. We need not discuss the question whether the court below was right or not in its conclusions upon this subject, as the jury have found for the pláintiff.

It is also contended by the defendant that, the proofs of death not having been forwarded to the company within 30 days after the death of Mr. Shelden, the plaintiff could, not recover. The court charged the jury upon that subject as follows:

“The defendant claims that, under its by-laws, proof of the death of Mr. Shelden must have been received by it within 30 days after such death, and that the proofs in this case were not so received; and, gentlemen, it is a' fact that they were not received within 30 days after the death of Mr. Shelden. That, as I said before, is undisputed. That is one of the laws of the association as laid down by the by-laws, and must govern, unless it is waived by some other provision. The general rule is that such a stipulation in the by-laws or in the insurance contract must prevail; but this rule is subject to several exceptions, one of which is that, if the delay in serving such proof is in any way attributable to the insurer, the penalty or forfeit provided for default in this respect shall not be imposed. There is testimony in the case in regard to the duty of the secretary, under the by-laws, to furnish blanks for proofs of death after receiving notice of the injury or death of the member, and testimony as to a demand of plaintiff for such blanks, and the time when they were-furnished, and the kind furnished, in response to such demand; and I charge you that if you find from the evidence that the alleged delay in furnishing proofs of death . within the time required by the by-laws was to any extent, or in any way attributable to the defendant association, then the defendant association waived strict compliance with the by-laws in that regard, and the penalty therein fixed for delay in furnishing proofs could not now be imposed; in other words, that the proofs were, as a matter of law, served and furnished in due time, provided that you. also find, gentlemen, in connection with that, that plaintiff herself, or her representative, used no more time than was necessary to procure the proofs after they had received the blanks in question. If you find, however, that they used more time than necessary; that they, by using reasonable diligence, could have procured proofs, after receiving the blanks from the secretary, — then you will find'in favor of the defendant, because they did not reach there in time, and it was owing to their own negligence, if you do find that to be the fact.”

■ The proofs of death were not served on the company until November 2, 1896. This was one day over the 30 days provided by tbe by-laws, and we think the court very properly left the question to the jury to determine where the fault rested.

We have examined this record with some care, and find no error. The other assignments of error need not be discussed.

The judgment must be affirmed

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    PEOPLE v. THOMPSON.

    1. Grand Jury — Challenges—Indictment—Plea in Abatement.
    Upon a plea in abatement to an indictment, only those objections going to the competency of jurors can be raised which, under 3 Comp. Laws 1897, §§ 11881, 11882, would have been good ground for challenge, viz., that a juror was prosecutor or complainant. '
    2. Same — Number of Jurors — Wayne County Jury Act.
    Section 23 of the Wayne county jury act (Act No. 95, Pub. Acts 1887), which provides for drawing the names of 23 persons to serve as grand jurors, was not designed to modify the general law (3 Comp. Laws 1897, § 11879), under which “ not less than 16 persons ” are required “ to be sworn ” on any grand jury; therefore, an indictment found in Wayne county is not invalid because the jury returning it was composed of only 21 persons.
    3. Same — Proceedings—Secrecy—Stipulation.
    Since public policy forbids a prosecuting officer to divulge his knowledge of what testimony was taken before a grand jury as the basis for an indictment, the courts will refuse to consider a stipulation purporting to set out such testimony, and signed by the prosecuting attorney, though presented for the purpose of expediting the hearing on a plea in abatement.
    4. Criminal Law — Manslaughter—Boiler Explosion — Cause-Question for Jury.
    On the trial of an indictment for manslaughter, charging that the killing resulted from a steam-boiler explosion, caused by-overpressure of steam, due to the willful negligence of the respondent in failing to regulate the safety-valve, and in leaving the boilers unattended, where experts’ testimony that the explosion was due to the causes alleged was contradicted by respondent’s witnesses, who testified that the explosion was due to other causes, and that the respondent could have done nothing to avoid it if present, it was proper to submit the issues raised by the testimony to the jury, though the people’s witnesses did not have that technical scientific knowledge possessed by the witnesses for the defense.
    5. Same — Trial—Competency of Evidence — Instructions.
    Where testimony which was inadmissible except for a single purpose was received throughout a criminal trial under rulings which were calculated to give the jury an erroneous impression, prejudicial to respondent, as to the purpose for which it was competent, the error was not cured by an obscure reference in the general charge to its proper purpose.
    6. Same — Proof of Other Offenses — Negligence—Intent.
    On the trial of an engineer for manslaughter in leaving steam-boilers unattended until the high pressure produced an explosion causing death, where respondent denied that his absenting himself on the occasion in question was negligent, it was error, to admit proof of other occasions when he had negligently left the boilers unattended, since negligence could not be inferred from his conduct on prior occasions, and .the case was not one for characterizing the intent by such proof. People v. Seaman, 107 Mich. 348, distinguished.
    7. Same — Warnings.
    It was proper, however, as bearing upon the question of respondent’s recklessness on the occasion in question, to show that he had been warned that danger would follow his absence from the boiler-room.
    8. Same — Fuel for Boilers — Comparisons.
    On the trial of an engineer for manslaughter in leaving unattended steam-boilers, under which oil was used for fuel, until the high pressure produced an explosion causing death, it was error to admit evidence of comparisons between the use of coal and oil for generating steam, since a showing of how quickly steam may be raised with .coal affords no light as to one’s duty in attending boilers fired with oil.
    9. Same — Expert Testimony — Experiments—Identity oe Conditions.
    Upon such prosecution, however, where an expert had given his opinion as to the cause of the explosion, it afforded no ground for excluding his testimony, in support of the opinion» as to the results of experiments made by him to ascertain within what time a given pressure of steam could be raised in a boiler by the use of oil as fuel, that the conditions under which the experiments were made were not identical with those existing with respect to the exploded boiler.
    10. Same — Evidence.
    While it was not error, upon a prosecution for manslaughter in leaving steam-boilers unattended until the pressure produced an explosion causing the death of a person named in the indictment, to show that other persons were killed or injured by the explosion, it was improper to admit testimony in regard to the injured persons’ being taken to hospitals, and detained there for a long time.
    11. Same — Instructions. ■
    Where respondent in a prosecution for manslaughter was accused of negligently leaving steam-boilers unattended until the ‘ pressure produced an explosion causing death, he was entitled, in addition to the general charge, in the main correct, as to what would amount to culpable negligence, to have given a requested instruction that if he had reason to believe, and did believe, from his past experience, that it was consistent with safety for him to be absent from the boilers at the time, he could not be held guilty of the crime.
    Exceptions before judgment from recorder’s court of Detroit; Chapin, J.
    Submitted October 26, 1899.
    Decided December 21, 1899.
    Thomas M. Thompson was convicted of manslaughter.
    Reversed.

      Otto Kirchner, for appellant.

      Allan H. Frazer, Prosecuting Attorney, and Ormond F. Hunt, Assistant Prosecuting Attorney, for the people.

       Respondent’s application for a rehearing upon the question whether he was entitled to a directed verdict was denied April 3, 1900.

   Moore, J.

The respondent was tried and convicted of manslaughter, in the recorder’s court of Detroit, on. an indictment found in the circuit court for the-county of Wayne. The case comes here on exceptions before judgment.

The respondent was, in November, 1895, an engineer having charge of two boilers and other machinery in a building on Larned street, in Detroit. On the morning of the 6th of November one of the boilers exploded with terrific force, destroying the building in which it was located. As a result of the explosion, a number of lives were lost. Among the killed was Michael Ward. The grand jury of Wayne county was then in session. In the following January an indictment was found against the respondent. A motion to quash the indictment for various reasons was' made and overruled. Thirteen pleas in abatement were then filed. These pleas and motion to quash attacked the validity, of the indictment for various reasons, the most important one of which is that the. act creating the jury commission is unconstitutional and void, because in the body of the act certain powers are conferred upon the circuit judge, the sheriff, and the clerk in carrying out the provisions of the act, which powers are not germane to the title of the act. It is contended the proceedings had under the provisions of this act are not simply irregular, but are invalid and void. The act in question was passed in 1893 (Act No. 204, Pub. Acts 1893), and amended in 1895 (Act No. 5, Pub. Acts 1895). Prior to the enactment of this law, and ever since 1887, Wayne county had a board of jury commissioners. After the act of 1893 became a law, a board of jury commissioners has been acting for the county of Wayne under the provisions of the later act. This board has selected the lists from which the petit jurors have been drawn, as well as the grand jury. The first 10 pleas interposed by counsel for respondent were overruled by Judge Lillibridge, he passing upon them upon their merits. In his written opinion he makes this statement:

“I have discussed the several pleas upon the merits, and found that they should be overruled; but, in my opinion, there is another, and more insuperable, objection to all of them, except those made to the qualifications of jurors. I have carefully examined the exhaustive brief submitted by respondent’s counsel, but I am not convinced. To my mind, it seems very clear that the word ‘ challenge,’in sections 9496, 9497, 2 How. Stat., is used in ■the broad sense of ‘objection,’ and that the statute was intended to cover objections or challenges, whether raised hy challenge before indictment or by a plea in abatement afterwards. There seems to me to be great force in the reasoning.of Justice Morse in People v. Lauder, 82 Mich., particularly at pages 134, 135. The discussion of this subject, also, in Thomp. & M. Jur. §§ 527-538, convinces me that the purpose of these sections was to prohibit technical objections to the array or persons of grand jurors, except for the cause allowed, whether raised by challenge or by plea in abatement. Every reason of public interest which could be urged against allowing objections to the array or persons of grand jurors by challenge exists with greater force to the allowance of such objection when raised by a plea in abatement. So far as the circuit courts of this State are concerned, it seems to me the language of Mr. Justice Morse, above referred to, must control, until there is a decision more directly in point.”

We do not deem it necessary to add to what was said by Judge Lillibridge, and by Justice Morse in People v. Lauder, supra, except to cite the cases of State v. Noyes, 87 Wis. 340 (41 Am. St. Rep. 45), People v. Smith, 118 Mich. 73, and the recent case of People v. Reigel, 120 Mich. 78. In the last-named case Justice Hooker calls •attention to the provisions of the statute, and discusses the question at length. The cases sustain the ruling of Judge Lillibridge.

The eleventh jfiea in abatement alleges, among other things, which is the substance of the plea, “that the said indictment was found and presented by a grand jury composed of less than 23 persons, to wit,” etc. Judges Lillibridge, Hosmer, and Carpenter, sitting era, banc, passed upon this plea, and jointly signed a written opinion, which is in part as follows:

“ On the trial of the issues of fact raised by the eleventh plea, as amended, to the indictment, we find it is true, as alleged in said plea, that only 21 persons were sworn on the panel from which the grand jury that found the indictment was chosen. More than that number, to wit, 23 persons, were drawn and summoned, but several were excused for various causes until the number finally sworn and impaneled was only 21. We are of the opinion, however, that this does not invalidate the indictment. We do not construe the provisions of the Wayne county jury act (Pub. Acts 1887, Act No. 95, § 23) as modifying the general statutes of the State in regard to the number of persons required to be sworn in this county to constitute a legal grand jury. There seems to be no doubt that under the general statutes (2 How. Stat. §§ 7562, 9494) a grand jury may be lawfully impaneled, and may act, consisting of any number of persons more than 15 and less than 24. People v. Lauder, 82 Mich. 132. In our opinion, therefore, judgment should be rendered for the people notwithstanding the above finding.”

This ruling is fully justified by the case cited by the learned judges.

For the purpose of expediting the hearing of the first 11 pleas, the assistant prosecuting attorney signed a stipulation as to what testimony was taken before the grand jury. This stipulation was made the basis of the twelfth and thirteenth pleas in abatement, which allege, in substance, that there was not sufficient testimony submitted to the grand jury to authorize them to find an indictment. To the above pleas in abatement an issue of fact was joined. The circuit judges were of the opinion that whatever knowledge the prosecuting attorney had of the proceedings in the grand-jury room he must have obtained either from the jurors or from his attendance in his official capacity, and that, as public policy did not allow him to divulge his knowledge, the stipulation could not be used. In this connection the language of Chief Justice Champlin in People v. Lauder, 82 Mich. 121, is very suggestive:

“ We do not find it necessary to determine whether the grounds set up and relied on to quash the writ can properly be raised by plea in abatement, or whether they should not be raised by motion to quash. If issues of fact had been joined upon the pleas, we suggest that very serious obstacles lie in the way of trying such issues. Grand jurors cannot, in general, be questioned as to what took place among or before them while acting as such. The only exceptions existing are made by 2 How. Stat. § 9502. That section permits members of the grand jury to testify upon the trial in two instances: One, where a witness upon the trial has testified before them, they may testify whether the testimony of the witness examined before them is consistent with or different from the evidence given by such witness before the court; and in the other they may be required to disclose the testimony given before them by any person upon complaint against such person for perjury, or upon his trial for such offense. ‘ Where the statute'prescribes the cases in which a grand juror may testify, it is held that he may do so in no other.’ 9. Am. & Eng. Enc. Law, p. 17, and cases cited to note 1, p. 18. But neither of these contingencies has arisen in this case. Lauder has not been offered as a witness upon his trial, and cannot be unless he voluntarily presents himself as such; and then he would waive his privilege, and would stand upon the same footing as any other witness. Neither has a complaint been made against him for perjury. So upon the trial of this plea no juryman could be permitted to testify against or for him. Such testimony is not permitted on grounds of public policy. The same immunity extends to the clerk of the grand jury and the prosecuting officer, if present at their deliberations. 2 Best, Ev. § 579; 1 Tayl. Ev. § 863; 1- Greenl. Ev. § 252. The statute further declares that in no case can a member of the grand jury be obliged or allowed to testify or declare in what manner he or any other member voted on any question before them, or what opinions were expressed by any juror in relation to any such question. The same principle of public policy would not permit a witness who was present in the grand-jury room to testify in any case where a grand juror could not testify. How, then, could it be proved that Lauder gave testimony material to the case upon which the jury found the indictment, or how could it be proved that the grand jury found the indictment upon his and the testimony of the other witnesses ? The latter fact is quite beyond the knowledge of Lauder, if he could be deemed a competent witness, which I do not think he would be, ”

See, also, People v. O’Neill, 107 Mich. 556, 560, 561; Thomp. & M. Jur. § 707; Stewart v. State, 24 Ind. 142; Creek v. State, Id. 151; Kingsbury v. State, 37 Tex. Cr. App. 259; State v. Fowler, 52 Iowa, 103; State v. Smith, 74 Iowa, 584; Jones v. State, 81 Ala. 79; Washington v. State, 63 Ala. 189; State v. Fasset, 16 Conn. 457; U. S. v. Brown, 1 Sawy. 531; U. S. v. Reed, 2 Blatchf. 435.

1 Bish. Cr. Proc. (3d Ed.) § 864, lays down the following doctrine:

“ Grand jurors are authorized to find an indictment on their personal knowledge, with no superadded testimony; and this they were ‘ anciently in the habit of doing.’ ”

The same author says, at section 872:

“Indeed, the doctrine appears to be general that the court cannot inquire into the sufficiency of the proof, or the mode of examining the witnesses, to invalidate an indictment.”

It was not competent for the prosecuting attorney to • disclose what occurred in the jury-room, and the court very properly refused to act upon the stipulation.

We now take up the assignments of error alleged to have occurred upon the trial before a jury. It is very strenuously urged here that the circuit judge ought to have directed a verdict in favor of the respondent because there was no competent evidence to sustain the charge made in the indictment. To properly dispose of this contention, it is necessary to give attention to the claims of the people and the respondent, respectively. On the part of the people it is alleged that the boilers had been officially inspected and approved; that it was permitted to carry' 80 pounds of steam in them; that the firing was,done by means of a spray of oil and a jet of steam. It is claimed that, upon the morning in question, the respondent, after starting his fire, went away from the boiler-room, and remained away so long that an enormous pressure of steam was generated in the boiler. It is urged that, for five or ten minutes before the catastrophe occurred, a noise was heard in the boiler-room indicating the pressure upon the boilers was too great, and that, if the engineer had been present, this noise would have been a warning to him, so he might have taken the necessary precautions to avoid the danger. It is also claimed that the appearance of the boiler and of the wrecked building and machinery immediately after the accident indicates very clearly the explosion was caused by an enormous pressure of steam in the boilers. It is said that all these things, taken together, indicate the explosion was caused by the criminal negligence of the respondent in his allowing the boiler to remain unattended too long. Upon the part of the respondent it is claimed the boiler was allowed to carry 80 pounds of steam; was supplied with a safety-valve; that ■the arrangement for firing was so adjusted that the firing could be made almost automatic, — so that an absence such as that of the respondent upon the morning of the accident was not negligent. It was his claim that he had to look after the other machinery in the building, including the heating apparatus and the elevators, which required his absence from the engine-room at times. He urges that, a day or two before the explosion, there was a leak about the cast-iron manhole of the boiler, and to obviate the leak it was necessary to apply a wrench to the bolt which drew the plate into place, the probable effect of which was to weaken, or perhaps break, the cast-iron manhole’s ring; that when the steam was generated in the boiler so as to subject it to some pressure, which might have been some less than the 80 pounds which the boiler was allowed to carry, a fracture and opening occurred at the manhole, which suddenly released the pressure upon the water in the boiler, when the latent heat stored in the water of the boiler converted, almost instantly, a large portion of the water into steam, when the explosion followed. He claims his absence from the boiler-room was not negligence, and did not cause the explosion. Yery soon after the explosion occurred, experts were upon the ground, looking after the interests of the people and various parties. Careful observations were made of the effect of the explosion, not only upon the building, but upon the boilers themselves. Prof. Cooley was one of these experts. He was called as a witness upon the part of the respondent, and testified:

“The rupture started in the manhole ring. The manhole ring gave way suddenly, and probably released the manhole plate, with which release the pressure of the boiler was suddenly reduced. With that sudden reduction of pressure there was a formation of steam throughout the mass of water in the boiler, which carried the water out through the manhole opening, and ruptured the seam the rest of the way. This all took place presumably within one or two seconds, or less. * * * The manhole ring was without doubt a weak point in the boiler; weaker than any other point; weaker than the horizontal seam, which, in a normal boiler, is the weakest part of the boiler. This manhole ring was subjected to pressure due to screwing up the manhole plate, making a joint between the manhole plate and the manhole ring, which pressure produced in the metal of the manhole ring stresses very considerable in amount, quite in excess of the stresses which would be placed in cast iron under even ordinary conditions; much greater than would be placed on cast iron when used as a manhole ring. * * * It gave way. It gave way suddenly, and all at once; and, having given way, the remainder of the sheath, — that is, the steel and the rear section of the boiler, — was not sufficiently strong to withstand the sudden generation of force in the boiler, and the seam was torn, or the sheath was torn, its entire length, opening up on the rear head and on the seam of the middle section,— opening up and turning down, as has been shown by the model.”

It was his opinion that such an absence as was shown upon this occasion was not negligence, and that, if the engineer had been in the engine-room, he could have done nothing to avoid the catastrophe. Testimony of other eminent experts was to the same effect, one of them expressing the opinion that, if Mr. Thompson had been in the engine-room, he would not have lived to be tried for manslaughter.

It is claimed this testimony is not contradicted by any ■competent evidence. It is true that, upon the cross-examination of the witnesses for the people, they did not show that technical knowledge of the laws which govern the conversion of water into steam under varying pressures, or of the various theories in relation to the cause of explosions, possessed by the witnesses for the respondent. These witnesses had, however, experience in the construction of boilers and in their management. They visited the place where the explosion occurred, and observed its results. They examined the boilers themselves, and it was their opinion the explosion was the result of a very high pressure of steam. We cannot say that this testimony, taken in connection with what the witnesses for the people testified Mr. Thompson did and failed to do, and .with the results caused by the explosion itself, failed to make a case on the part of the people. The testimony raised an issue of fact, which it was the duty of the judge to submit to the jury.

In the progress of the trial, testimony was offered for the purpose of showing the respondent had been guilty of acts of negligence by absenting himself from the boiler-room upon other occasions prior to the morning of the ■explosion. Objection was made to this testimony, for the reason that: “Whatever Mr. Thompson did on previous days had nothing to do with the result upon this day. The question is what he did upon the 6th day of November, 1895. What he did or failed to do upon other days has nothing to do with this issue at all,” — when the following occurred:

‘ ‘ The Court: It seems to me, this question seeks to show a course of conduct on the part of the accused rather than an intent, and I am inclined to view the testimony as competent, and as tending to show that the bursting of the boiler was not accidental, but the result of negligence on the part of the accused. I confess I am somewhat in doubt about it.
“Mr. Robison: Boilers don’t burst on account of the course of conduct.
“Mr. Kir diner: Does your honor hold, because Mr.. Thompson was absent from the boiler on the 3d, 4th, 5th of November, that that would have any relation to the bursting of the boiler on the 6 th of November?
“Mr. Frazer: It shows his recklessness.
“The Court: It tends to show a course of careless conduct. If he was negligent on the 4th, 5th, or 6th, it might tend to show he was on the 6th or 7th. It might be that is wrong, but that is my view of it. I will give-you an exception.
“Mr. Kirchner: I will except not only to the admission of the testimony, but to the reason stated by the court in the hearing of the jury.”

Under this ruling a mass of testimony, covering a good many occasions, and extending over a long period of time, was introduced, tending to show that Mr. Thompson was. absent from the boiler-room under such conditions that his absence was negligence, and that upon at least one occasion he had been warned that disastrous results would follow his conduct. The respondent gave his version of' these absences, so far as he could recall them; his testimony tending to show that they were not of a negligent character, and that usually some one was left in charge of the boiler when he was away. The court was asked to charge, in relation to this testimony, as follows:

‘ ‘ For the purpose of determining whether the respondent is guilty of negligence, as charged in the indictment, you are not at liberty to consider whether, on days and times before the explosion, the respondent had been: (a) Negligent in the operation or care of his boiler in any manner; nor (b) whether he had been drinking rum; nor (c) whether, while the boiler was in operation, he ever stood in the alley for any reason; nor (d) whether, while the boiler was in operation, he ever stood on the front steps of the Journal Building; nor (e) whether he ever left the boiler in charge of others; nor (/) whether, while the-boiler was in operation, he slept in the boiler-room; nor (g) whether he ever, absented himself from the boiler during the noon hour.”

He declined to do so, and charged the jury as follows r

“There is one request, or a subdivision of one of the requests, as to the weight or consideration that certain testimony should receive at the hands of the jury, viz., as to what Thompson did or did not do prior to the 6th day of November, 1895,- — -the day on which it is alleged the boiler exploded. The people were permitted to show what Thompson did or failed to do prior to that time. I will state to you that it was permitted for the purpose of showing the character of the man, and as to what -he was accustomed to do, and as tending to show what he might have done upon this 6th day of November; but he is not charged with being negligent on any day but the 6th day of November, and it will matter not how negligent he may have been at other times. Unless you are satisfied from the evidence in this case, beyond a reasonable doubt, that he was negligent on the 6th day of November, and that, as a result of such negligence on his part, the boiler in question exploded, and the death of Michael Ward resulted therefrom, your verdict should be, ‘ Not guilty.’ He is charged with manslaughter, for-having caused the death of Michael Ward on the 6th day of November, and that the death resulted from the negligence of Thompson; and unless you find that beyond a reasonable doubt, as I say, your verdict should be, ‘Not guilty.’ But if all the evidence in this case satisfies you, beyond a reasonable doubt, that he was guilty of neglect on that day, and that negligence resulted in the death of Ward, then your verdict will be, ‘ Guilty.’ You may follow the officer, gentlemen.
“Mr. Hunt: I think you misspoke yourself on that point about the other acts of negligence. In the Seaman Case the Supreme Court said it was for the purpose of determining whether this was willful and reckless.
“The Court: That is what I meant when I said ‘the character of the man.’
“Mr. Hunt: No; that don’t cover it, I don’t think.
“The Court: I stated to you, gentlemen, the purpose of admitting that testimony was for the purpose of showing the character of the man. What I mean by. that is, what was the conduct, and what was the customary and usual conduct, of the man in the operation of his boilers, as tending to show whether or not his negligence, if it was negligence, on the 6 th day of November, was willful. That is what I mean. You may follow the officer.”

It is very evident that, during nearly all of this long trial, the judge and jury were under the impression that the negligence of Mr. Thompson on the 6th of November might be presumed if he was shown to be negligent upon prior occasions. It was not until just before the jury were sent out that they were told this testimony was competent only as bearing upon the question of whether the negligence of Mr. Thompson on the morning of the explosion was willful, and this statement was not so clearly made as to be likely to remove from the minds of the jury the wrong impression entertained by the trial judge and the jury up to that time.

Counsel for the people say, in relation to this feature of the case:

“In the case at bar it is not charged that Thompson ‘did willfully kill and slay’ Michael Ward; that would be murder; but that he did ‘willfully * * * neglect to give vigilant and constant care and attention.’ It is the willfulness of the negligence resulting in the death that is charged. In the case of People v. Seaman, 107 Mich. 348 (61 Am. St. Rep. 326), it was not charged that Seaman did willfully kill Emily Hall. That would have been murder. It was charged that he willfully did an unlawful act, which inadvertently resulted in causing a death. In the indictment at bar it is charged that Thompson willfully did an act, — absented himself from his boilers, — which act, under the facts and circumstances set forth, made it an unlawful act, which inadvertently resulted in causing a death. The two cases are analogous in principle. McGrath, O. J., in delivering the opinion of the court in the Seaman Case, says, at page 357, 107 Mich.:
“ ‘Where it is necessary to show a particular intent in order to establish the offense charged, proof of previous acts of the same kind is admissible for the purpose of proving guilty knowledge or intent.’
“It is unnecessary to cite all the cases analyzed by the court in the above opinion, which enforces the doctrine for which we contend. The above case is referred to with approval upon this point in People v. Thacker, 108 Mich. 652, at page 663; People v. Macard, 109 Mich. 623, at page 630; People v Abbott, 116 Mich. 263, at page 270.”

Even if the argument of counsel is correct, it is evident that the wrong done the respondent by the admission of this testimony, accompanied by the reason assigned by the judge for its admission, was not cured by the attempt of the judge to cure the wrong impression at nearly the close of his charge. But are the cases cited by counsel, and this case, analogous, either as to the facts or as to the principles of law governing them ? There is no claim that respondent intended to bring about the death of Mr. Ward, or any one else. Nor is there any claim that he intended to explode the boilers. The respondent does not claim, nor does he introduce any evidence tending to show, that his absence from the boiler-room upon the morning in question was not intended by him. He gives his version of the condition of the boiler, and of the fire, and of the length of time he was absent, and insists that, under all the circumstances, his act was not negligence. The question would seem to resolve itself into this: Is it proper, for the purpose of proving one act of negligence, to show other acts of negligence upon prior occasions? The law applicable to such a condition is so well collated in the brief of counsel for respondent that we insert portions of his brief here:

‘ ‘The authorities are uniform, in this State and elsewhere, that an act of negligence cannot be proven by, or inferred from, previous acts of negligence. Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537 (31 Am. Rep. 321), was an action by a passenger to recover damages for a personal injury. To prove the carrier’s negligence, plaintiff attempted to show a defective track. The court said:
“ ‘We are also of opinion that no defects in the track could be relied on to show negligence contributing to the accident, except those existing where the track was injured or displaced, and that testimony as to the condition of the road away from the scene of the injury was improper to make out a cause of action, and could only tend to raise false issues. The testimony should be confined to the time, as well as place, of the accident.’
“Michigan Gent. R. Co. v. Gilbert, 46 Mich. 176: Gilbert Avas an engineer in charge of one of the railroad company’s trains. He was killed by a collision, caused by the alleged carelessness of one Colwell, who was the* company’s yardsman at Jackson, where the injury occurred. To show that Colwell was incompetent and that the railroad company knew of his incompetency, plaintiff proved a special instance of Colwell’s carelessness. The court, in speaking of this testimony, said :
“ ‘ It was not claimed in support of such, testimony, and certainly it could not well be, that it had any tendency to prove that he [Col-well] was negligent in fact on the night of the collision.’
“In Guggenheim v. Railway Co., 66 Mich. 150, — an action for causing the death of plaintiff’s intestate by running him down at a railroad crossing, — it was urged in defense, among other things, that deceased, by his own negligence, contributed to his death. This court said:
“ ‘Nor had the injury anything to do with the habits of care or want of care of Manheimer [the deceased] in crossing at this point at other times. The inquiry was legitimately confined to the crossing at this particular time when his death occurred. It could not avail'his administrator, in this action, how careful he had been in crossing at other times, if he was negligent on this occasion; nor could the liability of the defendant be lessened if it were negligent- and Manheimer was not negligent, at the time of his death, by the fact that he had been careless in crossing the track at some other time.’
“McNally v. Colwell, 91 Mich. 527 (30 Am. St. Rep. 49 4), was an action to recover the value of lumber destroyed by fire through the alleged negligence of defendant. The trial court submitted to the jury this ques- , tion:
‘“Was the defendant negligent in knowingly employing an engineer and fireman in the mill who were incompetent to perform their duties by reason of their use of intoxicating liquors ? ’
“ This court held that the question was improperly submitted. This court said:
“ ‘There was testimony tending to show that the engineer and fireman were in the habit of using intoxicating liquors, and were-, sometimes seen under the influence of such liquors; but such liquor-habit or occasional intoxication was not shown to have had any bearing whatever upon the origin of the fire, or to have had anything to do towards preventing its extinction.’
* “Williams v. Edmunds, 75 Mich. 93: The plaintiff sought to recover damages for injury received as the result of the negligent driving of defendant’s servant. There was evidence tending to show that the driver was drunk at the time of the accident. Held, in such a case, the general character of the servant for sobriety is not in issue, and cannot be shown, any more than his general character as a careful driver.
Boick v. Bissell, 80 Mich. 360, was an action to recover damages to plaintiff, alleged to have been sustained through the negligent driving of defendant’s servant. Held, that the reputation of the defendant’s driver as a careful driver was not in issue, and not material.
“Langworthy v. Township of Green, 88 Mich. 207, was an action to recover damages' sustained while driving over an alleged defective highway. A witness for defendant said he knew plaintiff, and knew about his habits of driving. Counsel then asked as to what he could say as to the plaintiff’s manner and method of driving his horses. The trial court excluded the testimony. This court said:
“ ‘The court very properly excluded the testimony. The fact that plaintiff was generally a careful driver could not excuse negligent driving on this occasion, nor could the opinion of a witness as to his habits on other occasions be admitted to establish his negligence on this occasion.’
Hatt v. Nay, 144 Mass. 186: Plaintiff, while in defendant’s employ, was injured through the alleged negligence of defendant’s foreman. The plaintiff desired to prove certain specific acts of carelessness'on the part of the foreman, before the accident happened, while engaged on the same job. The court held the evidence had been properly ¿xcluded.
“ ‘ Because a servant may have been guilty of negligence on certain specified occasions, it by no means follows that he was on the occasion in question, or that he might not ordinarily be a careful and skillful workman, and properly employed as such. The investigation of other individual acts of alleged carelessness on the foreman’s part would necessarily have a tendency to confuse the case by collateral inquiries, to protract it indefinitely, if those inquiries were carefully made, and to mislead and distract a court or jury from the true issue ’
“Kennedy v. Spring, 160 Mass. 203, was an action to recover for personal injuries sustained by the plaintiff, while in the defendant’s employ, by falling from a staging upon the roof of a house. The staging had been erected for the purpose of building a chimney. The plaintiff offered to show that defendant’s son, who built the staging, had previously built other staging that had fallen down, for the purpose of showing that the son was not a competent person to put up the staging. Held, that the evidence was not admissible for that purpose.
“Christensen v. Union Trunk Line, 6 Wash. 75, was an action to recover damages sustained by a collision with a street car. The court said:
“ ‘ It is contended that the court erred in permitting the plaintiff to show that this particular motorman had run his car at a high rate of speed upon other occasions, and we think the court did err in so doing. It was a fact collateral and irrelevant to the issue, and one which the defendant could not he expected to be prepared to rebut without previous notice.’
“T. & H. Pueblo Building Co. v. Klein, 5 Colo. App. 348, was an action to recover damages for causing death. The deceased was, at the time of her death, only six years of age. She was killed in defendant’s elevator, which it was alleged was improperly operated, and also improperly constructed. The deceased was accompanied by her brother, who was nine years of age. One of the witnesses for the plaintiff was asked the following question:
“ You can state, from your observation in riding up in the elevator at the Central Block, how the elevator was generally started by that young man.’
“The question having been objected to, the trial court said;
“ ‘ The court admits the evidence solely for the purpose of determining what can be done with the elevator, and how it can be operated; and the jury are specifically told that the proof of negligence, if it shall be shown that the elevator could be operated negligently and dangerously upon any other occasion, will not be evidence that it was on this occasion so operated.’'
“Witness then testified that he noticed a very marked contrast between the boy that operated the elevator at the time of the accident and another boy who sometimes operated it; and that, almost as soon as the witness stepped into the elevator, this boy seemed to be very careless, and for some reason started it at full speed. The witness then testified to several acts of negligence of the elevator boy on other occasions. The appellate court, in commenting upon the admission of this evidence, said:
‘ ‘ ‘ The testimony of Saunders was clearly inadmissible. The only negligence charged was that of the elevator boy on the occasion of the accident. No other negligence was in issue. If he was negligent then, it would have been no defense that he had always before been careful. If he was not negligent then, it was entirely immaterial how habitually or recklessly negligent he might have been prior to that time. The effect of the testimony upon the jury must have been unfavorable to the defendant.’”

See, also, Little Rock, etc., R. Co. v. Harrell, 58 Ark. 454; Gulf, etc., R. Co. v. Ogg, 8 Tex. Civ. App. 285; Atlanta, etc., R. Co. v. Smith, 94 Ga. 107; East Tennessee, etc., R. Co. v. Kane, 92 Ga. 187 (22 L. R. A. 315); Louisville, etc., R. Co. v. Berry, 88 Ky. 222 (21 Am. St. Rep. 329); Adams v. Railway Co., 93 Iowa, 565; Carr v. Railway Co., 163 Mass. 360; Jagger v. Bank, 53 Minn. 386; Hall v. Bankin, 87 Iowa, 261.

In People v. Seaman, supra, there is a full collation of the authorities showing when proof of another felony than the one charged in the indictment is admissible. The case at bar is not one of them, and we think all this testimony was improperly admitted. We think, however, jt was competent, as bearing upon the question of his recklessness, to show that he had been warned that danger would follow his absence from the boiler-room.

The court received evidence of comparisons between the use of coal and oil as fuel under steam-boilers. It is difficult to see how this was pertinent testimony. Coal Was not used under these boilers. How quickly steam could be made with coal would not afford much light upon the question of firing with oil. The testimony was inadmissible. McCormick Harvesting-Machine Co. v. Cochran, 64 Mich. 636.

Evidence was admitted of the results of experiments made to ascertain within what time a given pressure of steam could be raised in a boiler by tbe use of oil as fuel. Tbis is said to be error, for the reason tbat tbe conditions under wbicb the experiments were made were dissimilar from those wbicb existed under tbe boiler in question, and tbat tbe reception of tbe testimony was damaging; counsel citing Yates v. People, 32 N. Y. 509, Hoyt v. Jeffers, 30 Mich. 181, Patrick v. Howard, 47 Mich. 45, and many other cáses. We have already intimated tbat it would be competent to show tbe effect of tbe use of oil as fuel as bearing upon the question of whether the absence of Mr. Thompson from tbe boiler-room was negligent. Tbe record does not show tbat it was contended or argued tbat, because steam could, by tbe use of oil as fuel under one boiler, be raised in a given time, therefore it would have a like effect under tbe boiler wbicb was in charge of Mr. Thompson. Tbe results of tbe experiments were given as showing tbe qualifications of tbe witnesses who testified as to tbe probable effect of tbe firing of tbe boiler in question in tbe manner in wbicb it was fired. It is contended by tbe counsel for tbe people as follows:

“In a case involving negligence, experiments are admissible to prove: (1) Tbat from given conditions a certain result would follow; (2) tbat from given conditions an alleged result would not or need not follow; and (3) in support or in explanation of opinion evidence. If an experiment bad been introduced for either one of tbe first two purposes, counsel for respondent would have been correct in demanding tbat tbe similarity of conditions must first have been shown, and the cases cited by counsel are in harmony with tbe weight of authority. When, however, a witness has given bis opinion, tbe weight of authority is tbat be may also be permitted to testify as to tbe grounds of tbe opinion expressed, wbicb includes evidence of experiments during tbe course of bis investigation of tbe subject to which bis testimony relates. See Farmers & Merchants’ Bank v. Young, 36 Iowa,.47; Dickenson v. Inhabitants of Fitchburg, 13 Gray, 555; Williams v. City of Taunton, 125 Mass. 34; McKay v. Lasher, 121 N. Y. 477; Collier v. Simpson, 5 Car. & P. 73; State v. Jones, 41 Kan. 309.”

In 12 Am. & Eng. Enc. Law (2d Ed.), 409, there is a collation of the cases bearing upon this subject. At page 410 it is said:

“Evidence of experiments in support of opinion evidence is admissible, that the court and jury may perceive the force of the witness’ reasoning, the soundness or fallacy of his logic, and in such manner judge of his capacity to give an opinion on the subject, the correctness of his conclusions, and, consequently, the weight due the opinion expressed.
“It has been held that an expert who has testified to his •opinion in a matter at issue, as ascertained by experiments, will not be permitted to state, in his examination in chief, the details of the experiments upon which his opinion was based, though it was said that, in order to test the accuracy of the witness, he might be interrogated upon the subject on cross-examination. But the general rule, with better reason, is that an expert witness may be permitted, in the first instance, to testify as to the experiments upon which his conclusion is founded. Indeed, it is not inconceivable that a witness might express an opinion, susceptible either of absolute demonstration by an experiment before the jury, or of satisfactory and conclusive support by testimony as to experiments elsewhere made, and yet, unless opposing counsel chose to cross-examine as to experiments, nothing but the bare unsupported opinion of the witness would get to the jury.”

We think the testimony was competent.

It is urged that the trial court erred in receiving testimony tending to show: (a)- That persons other than Michael Ward had either been killed or injured by the explosion; (6) that the persons injured suffered, were taken to the hospital, and detained there for a long time. It was competent to show the effect of the explosion, and if, in doing so, it was shown that some persons were killed, and others injured, we do not think it can be said that this was ’• error. People v. Marble, 38 Mich. 117; People v. Foley, 64 Mich. 148. We do not see, however, how the testimony about the taking of some of the injured to hospitals, and how long they were there, helped to determine whether Mr. Thompson was criminally negligent or not. The results of the explosion were very disastrous, and were well calculated to create a feeling of horror, and arouse resentment against any person who might be thought to be responsible for it, and a feeling of great sympathy for those who suffered as a result of it. This testimony was likely to create prejudice against the respondent. Its admission was error.

It is said the court erred in his instructions to the jury as to the degree of care respondent should exercise in his care of the boilers. The court was requested to charge the jury as follows

“The fact of the explosion, and even the possibility of guarding against it, do not necessarily make out a case of culpable negligence. Very few acts in life are done with such care to prevent accidents as would have been possible. The law only requires of any one that- degree of care and prudence which persons who are reasonably careful ordinarily observe. To require more would put everybody under restraints in the management of his business, and in his dealings with others, which would be more hurtful, in the embarrassments they would cause than beneficial in the protection they could give against injuries.”
“Whether the absence of the respondent from his boiler at the time of the explosion was negligent depends upon circumstances. If you find that the respondent, from his past experience, from his knowledge of the boiler, and the flow of oil, and of the burner, had reason to believe, and in fact did believe, that it was consistent with safety to be absent from the boiler, as he was, at the time of the explosion, then he was not, in law, guilty of «criminal negligence by reason of such absence.”

The judge did not give these requests, but gave a general charge as to what would be culpable negligence, which, in the main, was a correct statement of the law, but it did not instruct the jury upon the particular questions raised in these requests. The requests should have been given. It cannot be that an act done in good faith, based upon what experience has shown to be safe, is criminally negligent. Schroeder v. Car Co., 56 Mich. 132; Cheboygan Lumber Co. v. Delta Transportation Co., 100 Mich. 16; Whalen v. Railroad Co., 114 Mich. 512.

We do not deem it necessary to refer to the other assignments of error. They are either not well taken, or are necessarily decided by what we have already said, or, if error, are of such a character they will not be likely to be repeated.

The conviction is set aside, and a new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    JACKSON BRIDGE & IRON CO. v. LANCASHIRE INSURANCE CO.

    Appeal — Assignments op Error — Sufficiency.
    Under Snp. Ct. Rule No. 11, providing that every assignment of error shall be special, and no judgment shall be reversed for any other error than such as shall be specially assigned, assignments that the court erred in directing a verdict for plaintiff and in not directing a verdict for defendant are too general to he considered.
    Error to Jackson; Peck, J.
    Submitted November 14, 1899.
    Decided December 21, 1899.

      Assumpsit by the Jackson Bridge & Iron Company against the Lancashire Insurance Company on a policy of insurance. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Thomas J£. Barkworth (Myron H. Beach, of counsel), for appellant.

      Wilson & Cobb, for appellee. .

       Rehearing denied April 3, 1900.

   Hooker, J.

This cause is before us upon writ of error, the assignments of error being “(1) that the court erred in directing a verdict for the plaintiff; (2) that the court erred in not directing a verdict for the defendant.” It is said that the assignments are not sufficiently specific, under Cir. Ct. Rule No. 47, and Sup. Ct. Rule No. 11.

In Johnson v. Ballou, 25 Mich. 460, it is said:

“The right to review rests, therefore, on the last paragraph in the third assignment of error, and it is that the judge erred ‘ in directing the said jury to find a verdict in favor of the defendant.’ It is manifest that this assignment of error affords no light as to what specific objections are leveled at the ruling excepted to. It assumes that a fault is lurking somewhere in the record, which judicial scrutiny may discover, but it fails to indicate in any way either where or what the fault is. By recurring to the briefs, we are led to understand that the parties wish to elicit an opinion upon several topics, which, as already stated, are not before us in such shape as to render it prudent to examine them.”

The court did not expressly state that the assignment was bad. On the contrary, it reversed the case.

In Wheeler & Wilson Manfg. Co. v. Walker, 41 Mich. 241, an assignment, in substance, that “judgment ought to have been rendered for the plaintiff,” was said to be “too general to be noticed,” and did not indicate any question possessing merit. In Alberts v. Village of Vernon, 96 Mich. 551, error was assigned on a refusal to direct a verdict for the defendant. The assignment was held bad. It did not show whether the question went to the merits, or was based upon some technical point. It afforded no information to- the trial court concerning the real point relied on, and was therefore unfair to him. In Hecock v. Van Dusen, 96 Mich. 573, the assignment was that the court erred in rendering judgment for the defend'ants. It was held bad. In McCammon v. Railroad Co., 103 Mich. 104, a verdict was directed in favor of the plaintiff, and error was assigned on this direction. The court held the assignment bad, but considered the case, and affirmed it. The case of Conely v. Dudley, 111 Mich. 122, may seem exceptional, as the case was reversed upon the assignment that “the court erred in directing a verdict for the defendant.” The case appears to be in a nutshell, no testimony being offered by the defense, and there was no possible uncertainty as to what was meant. In Michigan Mut. Life Ins. Co. v. Mather, 113 Mich. 357, the assignment was that the court erred in refusing to direct a verdict for the defendant. The’ question does not appear to have been raised, and the case was affirmed on other points. The decisions are uniform upon the question, unless the case of Conely v. Dudley, supra, should be thought to be inconsistent. It was looked upon as exceptional, and was not intended to change the rule, but, rather, as not being within the rule, because not within its reason; the only possible question being whether there was evidence requiring the submission of the case to the jury.

It is unnecessary to consider other questions. The judgment is affirmed.

The other Justices concurred.


author: Long, J.

text:
    PRUDENTIAL INSURANCE CO. v. LIERSCH.

    Life Insurance — Assignment of Policy — Right of Assignee— Insurable Interest.
    The assignment, with the consent of the insurance company, by insured, of a policy on his life, payable to his executors, administrators, or assigns, to one having no insurable interest, who thereafter paid the premiums on said policy, entitled the assignee to the proceeds of the policy on the death of the insured, there being no restrictions on insured’s right te assign it in the policy or the by-laws of the company.
    Appeal from Wayne; Frazer, J.
    Submitted November 14, 1899.
    Decided December 21, 1899.
    Bill of interpleader by the Prudential Insurance Company of America against Gertrude P. Liersch and Garret Van Winkle, special administrator of the estate of Henry Michelsen, deceased, to determine title to the proceeds of an insurance policy. From a decree for defendant Liersch, defendant Van Winkle appeals.
    Affirmed.

      Galloway & Graham, for appellant.

      William E. Henze, for appellee.

       Rehearing denied April 3, 1900.

   Long, J.

This cause was heard in open court, and the following opinion filed in it by Judge Frazer:

“This is a bill of interpleader, in which the complainant, the Prudential Insurance Company, having paid certain moneys into court, asks to have a decree entered as*to whether that money shall be paid to the defendant Gertrude P. Liersch, or to Garret Van Winkle, special administrator of Henry Michelsen’s estate.
“The facts in this case, as I understand them, are: Henry Michelsen obtained from the Prudential Insurance Company an insurance policy for the sum of $1,000 upon his own life, payable to his executors, administrators, or assigns. He paid the. premiums upon the same for some years. The policy was obtained on the 6th day of April, 1891, and Michelsen paid the premiums until July 10, 1894, at which time he assigned, with the consent of the company, his' interest in the policy, to the defendant Gertrude Liersch. At the time of said assignment, if the premiums had not been paid, the policy would have lapsed, and under the rules and regulations of the company, as shown by the testimony, would have been of no value whatever. On July 10th, or thereabouts, Henry Michelsen went to one Selling, the agent of the Prudential Insurance Company in Detroit, and told him that he was unable to keep up the payment of premiums, and that he desired to assign his policy to Gertrude P. Liersch, who had been his housekeeper and nurse, and wanted to ascertain from the agent of the company whether he could do so. The agent of the company informed him that he could, and then and there, through the instrumentality of the agent, an assignment was prepared, which was offered in evidence, assigning his interest in the policy to Gertrude P. .Liersch, after which Gertrude P. Liersch paid the premiums that subsequently became due upon the policy for some time until the death of Henry Michelsen, and now she claims that, on account of said assignment and the payment of these premiums upon her part, she is entitled to receive the $1,000, the amount of the policy, or whatever is due upon said policy.
“The Prudential Insurance Company, the complainant, manifests a willingness to make this payment of whatever is due upon the policy, but states that the administrator of Henry Michelsen, to wit, Garret "Van Winkle, claims that the defendant Gertrude P. Liersch has no claim upon the money represented by the policy, for ‘ the reason that the company had no authority to assign the policy to her, that she had no insurable interest that could be taken out by her upon the life of Mr. Michelsen, that she was in no way related to him, and for the reason that she had sued the estate of Henry Michelsen, and recovered from it, for services which she had claimed to have rendered as nurse and housekeeper; and for the further reason that it is claimed that, at the time Henry Michelsen made this assignment, he was not of sound mind, and incapable in law, therefore, of making this assignment. As to this proposition, I find the fact to be that, while Henry Michel-sen, soon after the assignment of the policy, became paralyzed, and incapable of doing business, still I am well satisfied from the,testimony of Mr. Selling that, at the' time the assignment was made, he was perfectly capable, mentally and otherwise, of making the assignment; and I find nothing in this contention of the defendant Yan Winkle. I find, also, in my opinion of the law, that the-insurance policy obtained by Henry Michelsen upon his own life was a valid policy, and that he had an insurable interest, and that, the policy being valid at the time it was taken out, it was strictly within the power, under the law, for Henry Michelsen to assign that policy to whomsoever he saw fit; and I therefore hold the assignment of the policy to be valid, and whatever is due upon said policy is due and owing to the defendant Gertrude P. Liersch, and the decree of this court may be entered accordingly.”

We think the evidence establishes the fact that Michel-sen was of sound mind when the assignment of the policy was made. There is no statute pointed out which prohibited the assignment to Mrs. Liersch, nor is there any restriction in tbe policy or the by-laws of the company which prohibited the assignment, and the company assented to it. Under such circumstances, Mr. Michelsen had the right to make the assignment. New York Mut. Life Ins. Co. v. Armstrong, 117 U. S. 591; Olmsted v. Keyes, 85 N. Y. 598; Bursingerv. Bank of Watertown, 67 Wis. 75 (58 Am. Rep. 848); Ionia County Savings Bank v. McLean, 84 Mich. 625.

The decree is affirmed, with costs.

The other Justices concurred.


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      In re VEDDERS’ ESTATE.
    1. Wills — Executor as Besiduary Legatee — Statutory Bond —Payment of Debts — Preferences.
    Though an executor, as the residuary legatee in the will, may give, in lieu of the ordinary bond, a bond conditioned only to pay the debts and legacies, under 3 Comp. Laws 1897, § 9312, his right of disposition of the property is subject to the authority of the probate court to compel the application of the property to the payment, ratably, of the decedent’s debts, in case the executor fails to provide for them from other sources; therefore it is improper, where there is a deficiency of assets, for such an executor to mortgage the property, or to apply the proceeds of a sale thereof, in such manner as to work preferences among the creditors.
    2. Same — License to Mortgage — Variance.
    Where it appeared on petition for confirmation of a mortgage given to a creditor of the estate by an executrix who was a residuary legatee, and had given bonds as such under 3 Comp. Laws 1897, § 9312, that, while the license to mortgage granted by the probate judge provided that the mortgage should be for a stated amount and be subject to all existing incumbrances, the land being already mortgaged by the executrix to another creditor, the mortgage as drawn was for a greater amount and omitted the provision as to incumbrances, the probate court properly held the variance material and refused to confirm the mortgage.

      Certiorari to Kent; Grove, J.
    Submitted November 14, 1899.
    Decided December 21, 1899.
    In the matter of the appeal of the Kent County Savings Bank from an order of the probate court denying a petition for the confirmation of a mortgage executed by Hettie Yedders, as executrix of the last will and testament of Herman A. Yedders, deceased: From an order of confirmation, the executrix brings certiorari.

    Beversed.

      J. O. Post ( Wanty & Knappen, of counsel), for appellant.

      T. J. O’Brien and James TL Campbell, for appellee.
   Hooker, J.

Hettie Vedders was appointed executrix of her husband’s estate, and filed a residuary legatee’s bond, under the statute (3 Comp. Laws 1897, § 9312), in the sum of $5,000, on May 16, 1893. She took possession of the property, which consisted of real estate and personal property. She filed no inventory. Commissioners were appointed, who allowed claims to an amount exceeding $18,000, and the executrix paid many of these, exhausting the personal property of the estate in so doing. She also carried out several contracts made by the testator relative to the sale of land. This was in obedience to orders made by the probate court. The following claims were not paid:

Kent County Savings Bank......................$3,247 89

James Vandersluis..............................'J 1,632 21

Robinson estate................................j 4,12132

Upon the 15th day of April, 1895, Mrs. Vedders filed, in the probate court, a petition for a license to mortgage the lands of the estate, alleging that all of the personal property had been used in the payment of debts, that the unsecured claims allowed amounted to about $5,500, besides contingent claims to the amount of $1,800. The prayer was that she might be licensed to mortgage the lands of the estate for the payment of the outstanding claims, and to secure to the Kent County Savings Bank the payment of the contingent claims. The court granted the license upon the 13th day of May, 1895, and the usual bond was filed. The mortgage was made of the date of August 24, 1895, to the Kent County Savings Bank, for $5,537.72. It did not conform to the provisions of the license. The license authorized a mortgage for $5,500; the mortgage was for $5,537.72. The license required interest payable annually; the mortgage provided for inter•est payable semi-annually. The license required the mortgage to be for tbe term of three years from the date of the order, which was May 13, 1895; the mortgage was executed August 24, 1895, and ran three years from that date. The license required that it be made subject to all incumbrances, by way of mortgage or otherwise, existing at the time, to dower and homestead rights; this was omitted from the mortgage. The license required an immediate report after the execution and before the delivery of the mortgage. The mortgage was recorded August 26, 1895. It contained a provision that it should not be delivered, or become operative, until all of the proceedings under the license should be fully reported to said court, and be, by an order thereof, duly confirmed. The petition for certiorari states that the business of procuring the license, including the drafting and execution of the mortgage, was done by the attorneys for the bank, whose advice Mrs. Yedders accepted, and that no delivery of the mortgage was ever made as provided by the last clause. No report was made, or order of confirmation sought, until November 25, 1898, when she executed and filed a petition for an order of confirmation. She now denies that the last-mentioned petition was her petition, and alleges that it was prepared by the attorneys for the bank, who sent it to her for execution by the notary, who came to her with said petition, showed her a paper, and told her it was a report to the probate court of what she had done in the estate; that she did not know the contents, but was afterwards informed of its nature; that it had been filed, and an order for hearing made for the 23d of December. On December 20,'1898, she filed a petition in said, court praying leave to withdraw the petition for confirmation, and that no hearing be had upon .it. On January 28, 1899, the bank filed its petition for a confirmation of its mortgage, alleging the proceedings, and stating further that, at the time it took the mortgage, it advanced to the ■executrix $1,200, to pay the Yandersluis claim, which was then paid, and that the remainder of the consideration of the mortgage was the balance due upon its claims. It alleged that it was informed and believed that all other claims against the estate had been fully paid or satisfied, and that there remained only the sum of $5,537.72. It objected to the withdrawal of the first petition, and prayed that a hearing be had, and order made thereon, and that the petition for withdrawal be canceled. It asked that an order of confirmation be made nunc pro tunc as of' August 24, 1895. A hearing was had in probate court,, and confirmation was denied. Upon appeal this order was reversed, and an order of confirmation was made. The case is before us on certiorari, brought by Mrs. Vedders.

At the hearing in the circuit court the testimony showed that on October 1, 1894, the claim of the Robinson estate was secured upon a part of the real estate by a mortgage given by Mrs. Vedders for $2,783.67, and that mortgage was, at the time of the hearing, in process of foreclosure, Mrs. Vedders having permitted an order pro confesso to be entered. This appears to be undisputed. Counsel for the executrix contend that, by giving the residuary legatee’s bond provided by the statute, she became vested with the title to the property, and liable personally for the debts; that the remedy of the creditors against the property of the estate was changed to one against the legatee, and that only, the payment of the claims being-secured by the bond; or that, at all events, the estate is. closed, and the probate jurisdiction is ended. If this were correct, it would follow that it would be beyond the power of the probate court to interfere with the property by ordering a sale, and the executrix might lawfully sell, mortgage, or otherwise dispose of the property. But it. has been decided otherwise in the case of Lafferty v. People’s Savings Bank, 76 Mich. 35, as counsel admit,. We are asked to overrule that case, but we are of the opinion that it should not be done. That case indicates, that a residuary legatee, by’ giving the bond referred to, is no less an executor than as though he had given the usual executor’s bond. The right upon his part to have claims passed upon by commissioners within a limited time, and the right of creditors to present claims to such a tribunal or the probate judge, is the same as in other cases. The lien of the creditors upon the property is the same, and the probate court has authority to compel its application to the payment of debts, if the executor does not' provide for them from other sources. It may require a report, when necessary, and may make or refuse an order closing the estate.

The statute relieves such an executor from filing an inventory, and it is said in the Lafferty Case that, “asa consequence,” he may sell both personal and real property without a license. If this be true, and a sale is fraudulent, the grantee in possession must yield to the creditor’s lien, as in the Lafferty Case. Although an executor may sell property at will, it is none the less his duty to use the moneys received to pay all of the creditors, and not one or more to the exclusion of others. One who is a bona fide purchaser may presume that the money paid for the land will be used by the executor in a proper manner. Perhaps the same may be said of a mortgagee who loans money, if the law gives such executor the right to mortgage without the usual license. But what shall be said of a mortgagee who takes a mortgage upon the property, or a part of it, to secure his debt, thereby becoming a preferred creditor, to the possible or probable exclusion of other creditors? Is it not the duty of the executor to pay the debts ratably, if there is a deficiency of assets? and, should the bond -r- which the Lafferty Case holds to be cumulative security — be inadequate, would not the creditors be entitled to a similar distribution of the proceeds of such bond ? Would not a creditor who should be fully paid be required to contribute to another for whom there was nothing, by reason of inadequacy of the fund and insufficiency of the bond? and would the latter be compelled to assume the expense and responsibility of compelling a proper distribution in another court before he could ask it? The law should not put a premium upon obtaining such preferences.

The impression may have, and probably has, prevailed that a residuary legatee might, by being appointed executor, and upon giving the proper bond, make such disposition of lands as he should choose to make, and pay debts when and as he should prefer. This would be a natural inference from a line of cases cited in Lafferty v. People’s Savings Bank. That case, however, by enforcing the creditor’s lien, and determining that the bond is a cumulative security, implies that the proceeds of the property should be applied to the debts ratably, and it would seem to follow that no creditor should be preferred, either by payment from the property or its proceeds or by mortgage upon it. See, also, Blackmore v. Kent Probate Judge, 95 Mich. 448.

The briefs, as well as the record, indicate that there is a contest between the holders of the respective mortgages for priority. If the Robinson executors could be assured that their mortgage would be held valid, and a prior lien in favor of the Robinson estate, there would probably be no contest here; but this may, from their standpoint, be reasonably in doubt, and we have indicated an opinion that it is not such lien. On the other hand, the Kent County Savings Bank claim should not be preferred through the mortgage given to it. We cannot assume that it was the intention of the probate judge to prefer a claim. On the contrary, his order indicates that he did not so intend, because he required the mortgage to be made subject to all existing mortgages and incumbrances, which mortgage, so drawn, would, when accepted, estop the mortgagee from questioning the priority of the Robinson mortgage. The Kent County Savings Bank did not take such a mortgage, but one which appears to leave it at liberty to question the validity of the Robinson mortgage. This is a material variance from the order, and justified the probate court in his refusal to confirm the mortgage.

It is unnecessary to discuss other questions. The order of the circuit court is reversed, and that of the probate court affirmed, with costs of all courts.

The other Justices concurred.