text:
    COOKE v. HOLLAND FURNACE CO.
    1. Master and Servant — Workmen's Compensation Law — Limitation op Action. . *
    The limitation provided in sections 15 and 4, part 2, of the workmen’s compensation act (sections 5445, 5434, 2 Comp. Laws 1915), begins to run from the date of the accident, and not from the time of disability.
    2. Same — Words and Phrases — “Injury” — Construction op Statute — Intent.
    The word “injury,” as used in said sections, having acquired in the law a well-defined and well understood meaning, it must be held, to have been used by the legislature as it was commonly understood, in the absence of a special definition in the act.
    3. Same — Claim por Compensation — Medical Services — Limitation. '
    Where claimant was injured, while in defendant’s employ, by a falling bolt striking him on the head, and, after first aid by the foreman, he continued at work for nearly a year, when serious disability developed as a result of the accident, requiring an operation on the skull, and claim for compensation was not served on the employer until after the operation, although it had knowledge of the accident by its foreman and superintendent, an award of compensation and for medical and hospital services by the industrial accident board, under the workmen’s compensation law, was unauthorized, the claim not having been made within the time limited in sections 15 and 4, part 2, of said act.
    4. Same — “Accident”—“Injury.”
    While the words “accident” and “injury” are not synonymous, the accident produced the injury, and in point of time they are concurrent.
    Certiorari to Industrial Accident Board.
    Submitted January 15, 1918.
    (Docket No. 72.)
    Decided March 27, 1918.
    Fred H. Cooke presented his claim for compensation against the Holland Furnace Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the General Accident, Fire & Life Assurance Corporation, insurer, bring certiorari.
    Reversed, and order vacated.

      Kerr & Lacey, for appellants;

      Ellis & Ellis, for appellee.
    The facts in this case are not in dispute, and, briefly stated, are as follows: Plaintiff for several years prior to October, 1915, was in the employ of the Holland Furnace Company. On or about the 6th of that month while at work in the foundry of that company a bolt from an overhead track fell and struck him on the head. The wound bled profusely. He was given first aid by the foreman and the wound washed out with peroxide. He continued to work until August following, when he laid off for a couple of weeks. Commencing in December following the accident he had headaches, sleepiness, and was dizzy, and a lump appeared on his head where the bolt struck him. This condition caused him to lay off the two weeks in August. After he resumed his work in August he worked until September 14th, following. The 17th or 18th of September plaintiff had an X-ray made, and the latter part of September or first of October, an operation was performed which revealed a fracture of the skull and a softening of the bone, with an accumulation of pus underneath necessitating the removal of the diseased bone, and trepanning the skull. Plaintiff resumed his work November 14th. Claim for compensation was served on the Holland Furnace Company October 9, 1916. The record discloses that defendant, by its foreman and superintendent, had knowledge of the accident, but it also discloses that no claim for compensation was made until the formal one of October 9th. From an award for compensation for 8-4/7 weeks and for medical and hospital services, the defendant comes to this court by writ of certiorari.
   Fellows, J.

(after stating the facts). The plaintiff insists, in support of this award, that the “injury” did not occur until disability took place, or, to use the language of the board in its findings:

“At the time he became definitely satisfied that the disability he was suffering was the result of the accident.”

The defendant, on the other hand, insists that the “injury” to. plaintiff occurred when the accident happened; that at that time plaintiff received the “injury” within the meaning of the act, and that the disability later obtaining, and the seriousness of the conditions, were the results of the injury then inflicted. The provisions of the employer’s liability law here involved are sections 15 and 4, of part 2 (sections 5445, 5484, 2 Comp. Laws 1915). They are as follows:

“SEC. 15. No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury shall have been given to the employer three months after the happening thereof, and unless the claim for compensation with respect to such injury shall have been made within six months after the occurrence of the same; or, in case of the death of the employee, or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity.”
“Sec. 4. During the first three weeks after the injury the employer shall furnish, or cause to be furnished, reasonable medical and hospital services and medicines when they are needed.”

At the present term four other cases involving the question here under consideration were submitted, and we have had the benefit, not only of the argument made and briefs filed in this case, but also the arguments and briefs in the other cases. The importance of the question has also called for independent research.

We are not here dealing with the question of the sufficiency of notice, or claim, as we were in the cases of Matwiczuk v. Foundry Co., 189 Mich. 449; Shafer v. Parke, Davis & Co., 192 Mich. 577; and Purdy v. City of Sault Ste. Marie, 188 Mich. 573. Therefore the cases of Ridgeway v. City of Escanaba, 154 Mich. 68, and Pearll v. City of Bay City, 174 Mich. 643, do not apply. See Van Auken v. City of Adrian, 135 Mich. 534; Holtham v. City of Detroit, 136 Mich. 17.

We are confronted for the first time with the question of whether the statute begins to run from the date of disability (or ascertainment and definite satisfaction that disability exists), or from the date of the accident. We must approach this question, having full regard for the fact that under the division of powers found in the Constitution, our duty is not to enact but to expound the law, not to legislate but to construe legislation; to apply the law as we find it, to maintain its integrity as it has been written by a co-ordinate branch of the State government. If the law as written works hardships in a special class of eases the remedy lies with the branch of the government charged with the duty of enacting laws. If one does not protect himself and his rights under the law as written it is his misfortune, and this court should not, by judicial legislation, for the purpose of relieving that misfortune, write into the statute a provision that the legislature has not seen fit to enact. During the course of an opinion worthy of careful perusal and consideration, it was said by Mr. Justice Marshall, speaking for the supreme court of Wisconsin, in City of Milwaukee v. Miller, 154 Wis. 652, a case involving the workmen’s compensation law of that State:

“That is his misfortune and, however much it may be regretted, it is far better that th,e integrity of the law be not invaded than that it be impaired in the slightest degree in the particular instance to avoid the consequence of his not knowing or appreciating its requirements.”

Prior to legislation of this character courts had to deal with statutes of limitation having relation to common law or statutory actions for negligence, and the holdings of the courts were in harmony that the injury occurred, and the statute began to run on the happen-, ing of the negligent act. Thus it was held by the supreme court of Iowa, in the case of Gustin v. County of Jefferson, 15 Iowa, 158. We quote the syllabus:

“The statute of limitations as to actions for damages resulting from injuries to the person, commences to run from the time the injury is done, and not from the time the party injured becomes fully advised of the extent thereof.”

In the case of Leroy v. City of Springfield, 81 Ill. 114, it was said:

“Appellant asks, when shall it be said the cause of action arose, as, in many cases, the extent of the injury cannot be known for a long time?
“The principle, we understand, is, that the cause of action arises at the time the injury was ‘done, and the statute begins to run from that day.”

In Atchison, etc., R. Co. v. King, 31 Kan. 708, it was held by the court:

“The liability of the railroad company for the injury complained of accrued when the accident occurred.”

In Piller v. Railroad Co., 52 Cal. 42, it was held, we quote the syllabus:

“The liability of a railroad company for damages for an injury done to a passenger by collision of its cars, accrues when the collision occurs, and the action must be brought within two years from such time.” '

In Mardis v. Shackleford, 4 Ala. 493, it was said by the court:

“In respect to the statute of limitations, it may be regarded as settled law, that it began to run from the time the intestate was chargeable with negligence; for then a right of action accrued in favor of the plaintiff.”

In Crawford v. Gaulden, 33 Ga. 173, Mr. Justice Jenkins, speaking for the court, said:

“The doctrine is well settled that in an action against an agent for negligence or unskillfulness, the statute of limitations commences to run from the time the negligence or unskillful act was committed, and plaintiff’s ignorance of the negligence or unskillfulness cannot affect the bar of the statute.”

See, also, the following cases: Fowlkes v. Railroad Co., 56 Tenn. 829; Taylor v. Railroad Co., 53 Hun (N. Y.), 305; Wilcox v. Executors of Plummer, 4 Pet. (U. S.) 172; Bank of Utica v. Childs, 6 Cow. (N. Y.) 238; The Governor v. Gordon, 15 Ala. 72.

At the time of the enactment of this legislation the word “injury” had acquired in the law a well defined and well understood meaning; indeed counsel for plaintiff in the instant case frankly states:

“There must necessarily be a new definition of the word “injury” to embrace the circumstances that arise under the workmen’s compensation law.”

But the difficulty with this suggestion lies in the fact that the legislature did not use this word in the act in question with the view of some new definition which this court or an administrative body might later see fit to coin. It was used in the act as it was commonly understood at the time. Our legislature did not see fit to give it a special definition as did the legislature of Nebraska, as we shall presently see.

The two cases most strongly relied upon by the plaintiffs in these cases are Johansen v. Union Stock Yards Co., 99 Neb. 328, and In re McCaskey (Ind. App.), 117 N. E. 268. An examination of the Nebraska act discloses that both the, words “accident” and “injury” were defined by the act itself: Section 3693-b Rev. Stat. 1913. This section reads in part as follows:

“The word ‘accident’ as used in this article shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event, happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury. The terms ‘injury’ and ‘personal injuries’ shall mean only violence to the physical structure of the body and such disease or infection as naturally results therefrom.” * * *

By this statutory definition of the word “injury” the result of violence to the physical structure of the body was included within the meaning of the word, and it necessarily followed that, under the statute, the result of the accident was the injury. If those results were delayed the injury was delayed. But this is purely statutory, and is convincing that the legislature of that State had in mind the making of a statutory definition of the word not in accordance with its generally accepted meaning. This case was followed by the Nebraska court in the case of Simon v. Cathroe Co., 101 Neb. 211 (162 N. W. 633), a case which we were asked to follow in Armstrong v. Pickle Co., 197 Mich. 334. This suggestion we declined because of the differences in the statutes and in the facts of the two cases. The Indiana Case is from the appellate court, division No. 1, and involves the question of payment for medical services. The court for its authority relies upon a holding of the Connecticut commission, the holding of the Michigan commission (In re Hart, Mich. W. C. C. 338, a case similar to the instant case), upon two Massachusetts cases (Johnson’s Case, 217 Mass. 388, and Hwrlk’s Case, 217 Mass. 223), and 1 Honnold on Workmen’s Compensation, § 198. In Hurle’s Case the question of notice or claim was not involved. The workman in that case had suffered an acute attack of optic neuritis incurred in the performance of his usual duties in the usual way. It was held that the employer was liable. Not only was it an occupational disease case, but it also is not in accord otherwise with the holding of this court in Kutschmar v. Manufacturing Co., 197 Mich. 146. In Johnson’s Case the question of an occupational disease was also involved. This case is likewise not in accord with the holding of this court in Adams v. Color Works, 182 Mich. 157, in which Mr. Justice Stone, speaking for the unanimous court, fully considered these two Massachusetts cases, and says:

“As ‘accident’ is the controlling word in our act, we do not think that the Massachusetts decision should be held to apply here, as the construction of that act has little, if any, bearing on the Michigan act.”

He then proceeds to carefully consider the provisions of the Massachusetts act and distinguished it from our act. It is unnecessary for us to repeat here what was there so fully considered. Obviously the Massachusetts cases cannot be regarded as persuasive here.

In section 198, 1 Honnold on Workmen’s Compensation, we find the following, and it is all that appears in that section of importance here:

“The Michigan limit is 3 weeks, commencing when it is first needed.”

To support this text the decision of the industrial accident board in Re Hart, above mentioned, is alone cited. We are not impressed that we should follow the holding of the Indiana court.

In the case of Podkastelnea v. Railroad Co., 198 Mich. 321, this court had under consideration one of the sections here involved, section 15. We there pointed out some of the purposes of the limitations found in this section, quoted the provisions of the English act, called attention to the fact that the legislatures of some of our sister States have adopted similar provisions, and stated:

“The legislature of this State has not seen fit to do so. If the provisions of our act are not sufficiently liberal as to making claims for compensation, the question is one for the legislative branch, not for the judicial.”

We there reversed the award of the board on the ground that the claim for compensation was not seasonably filed and that the delay was not excused by the fact that the claimant was unable to personally make out and personally mail or deliver the claim.

In the case of Armstrong v. Pickle Co., supra, this court gave effect to the limitations found in this section and set aside the award of the board.

• In Ehrhart v. Industrial Accident Commission, 172 Cal. 621, the supreme court of California said:

“It was not, we believe, the intention of the law- ' makers to open the statute' of limitations and to extend it beyond the period of six months for the purpose of enabling a claimant to present an entirely new case based upon the alleged results of an injury which had never before been called to the attention of the commissioners. To hold otherwise would be to make the statute an instrument for the encouragement of false claims or those based upon remote and unsatisfactory speculation and peradventure regarding the cause of a disability manifesting itself long after the happening of the accident. One of the purposes of the time limit imposed by the various subdivisions of section 16 was to cause an early submission to the commissioners of the injuries to the employee, so that the commissioners by their own observation and with the aid of expert testimony might determine, not only the condition of the applicant at that time, but the probable future results of the accident. This policy is manifest from the fact that where no disability has occurred at the time of the hearing, but is likely to do so in the future, the commission may retain jurisdiction. (Section 25 [c].) In other words, prompt inquiry regarding the injuries in all their details by the commission was evidently intended by the lawmakers”.

The supreme court of Illinois has had this question of limitation of time for filing claim for compensation before it and has held such provision mandatory, and the claim barred unless made within the time. Haiselden v. Industrial Board, 275 Ill. 114; Bushnell v. Industrial Board, 276 Ill. 262.

The New York act differs from our act with reference to the giving of notice and patterns after the idea of the English act. It contains this provision (section 18, art. 2, chap. 41, Laws of New York, 1914):

“The failure to give such notice unless excused by the commission either on the ground that notice for some sufficient reason could not have been given, or on the ground that the State fund, insurance company, or employer, as the case may be, has not been prejudiced thereby, shall be a bar to any claim under this chap- . ter.”

But it was held that the commission might not arbitrarily excuse the failure to give notice. Prokopiak v. Buffalo Gas Co., 176 App. Div. 128; Sicardi v. Sarnoff Hat Co., 176 App. Div. 13, and in Bloomfield v. November, 219 N. Y. 374, it was said in the majority opinion of the court of last resort:

“We do not intend to qualify what has often been said by this court to the effect that the compensation law should be liberally construed to the end of accomplishing the purpose for which it was enacted, and that the course of the claimant should not be beset with technicalities. The legislature, however, has deemed it proper and essential, under ordinary circumstances, that a written notice of disability and claim should be promptly served so as to give an employer the opportunity to investigate the circumstances of the claim. This requirement ought not to be treated as a mere formality or be dispensed with as a matter of course whenever there has been a failure to serve such notice.”

Upon principle, we are persuaded that the defendant must prevail in its contention. When the bolt fell, ■striking the plaintiff on the head, it fractured his skull. That was the injury. The formation of an abscess, the accumulation of pus, the softening of the bone, were the results of that fracture — of the injury received; while these results rendered the injury more severe, the injury was there from the first and subsequent want of care but aggravated it. Had the plaintiff then made his claim for compensation and had proper medical treatment, which his employer was bound to pay for under the provisions of section 4, it is highly probable he would have been saved much pain, and a serious and expensive operation would have been obviated. This would have been beneficial alike to him and his employer.

While the words “accident” and “injury” are not synonymous, the accident produced the injury and in point of time they were concurrent. We are compelled to hold, must hold, unless we resort to judicial legislation, that the legislature by these two sections fixed the date of the injury at the date of the accident, and not some remote date thereafter when the injured employee became definitely satisfied that he was disabled as a result of the accident.

It follows that the award for compensation and for medical services rendered nearly a year after the date of the injury must be reversed and vacated.

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


source: Caselaw Access Project

author: Fellows, J.

license: Public Domain

text:
    McMULLEN v. GAVETTE CONSTRUCTION CO.
    Master and Servant — Workmen's Compensation Law — Medical and Hospital Services — Limitation.
    An award of compensation, under the workmen’s compensation law, for medical and hospital services, is limited, by section 4, part 2, of the act, to the first three weeks after the accident. Cooke v. Holland Furnace Co., ante, 192.
    Certiorari to Industrial Accident Board.
    Submitted January 18, 1918.
    (Docket No. 130.)
    Decided March 27, 1918.
    Roy McMullen presented his claim for compensation against the Gavette Construction Company for medical and hospital services. From an order awarding compensation, defendant and the Globe Indemnity Company, insurer, bring certiorari.
    Reversed.

      Douglas, Eaman & Barbour, for appellants.

      Herbert W. Smith, for appellee.
   Fellows, J.

But a single question is presented upon this record. The weekly compensation seems to have, been agreed upon. The amount allowed by the award here reviewed is for medical and hospital services performed after the first three weeks after the accident. The accident occurred November 20, 1916.' The services here involved were performed during the three weeks following the 5th of January, 1917. The plaintiff, a carpenter, slipped on a frosty roof and fell 20 feet to the ground, causing serious injury. The defendant construction company sent a physician to examine and treat him. It is a controverted question as to whether the physician properly examined and properly treated him. We think it may also fairly be said that the necessity of the particular operation was a controverted question. The board-found with the plaintiff as t© both of these questions, and we are bound by such findings. It is undisputed that all of the items included in the award were furnished or performed after the first three weeks after the accident and during the three weeks succeeding January 5th.

We have fully considered the question here involved in the case of Cooke v. Holland Furnace Co., ante, 192, and there held that the date of the accident fixed the date of the injury under section 4, part 2, of the workmen’s compensation act (2 Comp. Laws 1915, § 5434), and that the board was not authorized by the act to award and compensate the employee for medical and hospital services performed more than three weeks after the accident. The authority for such allowance by the board does not exist, except per force of the statute, and the legislative judgment has .limited the allowance to such services as are performed during the first three weeks after the injury. Nor has the board authority to award as damages the amount paid for such services performed at a later date, upon the theory ingeniously advanced that the failure to furnish proper medical and hospital services created a liability for the payment of such services so performed which may bp awarded by the board as damages. The board is an administrative body created to carry the provision of the act into effect. Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, and, while it may determine the compensation to be paid in a given case, it must do so pursuant to the terms of the act, arid circumscribed by its provisions. It has no power given it by the act to fix and measure such compensation by the amount of damages provable, as in an action at law for a breach of either statutory or common law duty. Andrejwski v. Wolverine Coal Co., 182 Mich. 298.

The injury in the instant case was a serious one, the operation and hospital services expensive. The language of Mr. Justice Bird, speaking for this court, in Hirschkorn v. Fiege Desk Co., 184 Mich. 239, is applicable here:

“The award made by the board was a very equitable one, and is one which we would prefer to sustain, if we could do so without attempting to amend the law by judicial construction. It appears to be, however, an exigency which the law has not provided for. We think the relief in such cases lies with the legislature, rather than with the courts.”

The case is controlled by the Cooke Case, supra, and the award must be vacated.

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


text:
    HOMAN v. BOARDMAN RIVER ELECTRIC LIGHT & POWER CO.
    Master and Servant — Workmen’s Compensation Law — Accidental Death — Review.
    On certiorari to review an award of compensation by the industrial accident board, under the workmen’s compensation law, the finding of the board that the death of plaintiff’s decedent was the result of an accident, in the absence of fraud, if supported, by the testimony, is binding upon the Supreme Court, notwithstanding conflicting medical testimony as to the cause of death.
    Certiorari to Industrial Accident Board.
    Submitted January 15, 1918.
    (Docket No. 88.)
    Decided March 27, 1918.
    Effie L. Homan presented her claim for compensation against the Boardman River Electric Light & Power Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Fidelity and Casualty Company, insurer, bring certiorari.
    Affirmed.

      Parra C. Gilbert, for appellant.

      Patchin & Duncan, for appellee.
   Fellows, J.

Plaintiff, as the widow and dependent of John Homan, deceased, was awarded $5.77 per week for 300 weeks by a committee on arbitration selected pursuant to the provisions of the employer’s liability act. The award was affirmed by the full board and this writ of certiorari was allowed to review such action by the board.

John Homan was a workman in the employ of the Boardman River Electric Light & Power Company, hereafter called the defendant, on Thursday, August 17, 1916, in the work of repairing the chute in its power dam at Traverse City. He, with other employees, was at the time of the accident fixing the floor of the spillway. Deceased was carrying planks. After laying one down he started to return for another; the floor of the spillway being moist and slippery he fell, striking his head on the side of the chute. He was dizzy for a few minutes and the foreman offered to take him home in his car, but deceased declined the offer and resumed his work and worked until about 11 or 11:30, when he went home to dinner. He then complained of pains in his head, but returned and worked in the afternoon. The following day he did not work. It is to be inferred that weather conditions prevented resuming the work in hand. On Saturday he worked some, but not on the spillway. When at home he complained of pains in his head, also in his back and hip; he was cold and weak and dizzy and had to take hold of things to steady himself. He was irrational and a lump came out at the end of his spine. On either Sunday or Monday following the accident deceased took to his bed and never recovered. His death occurred September 3d. On Monday following-the accident Dr. Wilhelm was called and treated Mr. Homan until his death. His testimony tends to show that deceased had a typical case of pneumonia which ran its course and left him so debilitated that he could not recover. Dr. Johnson saw and examined Mr. Ho-man the day of his death. His testimony tends to show that there were no clinical signs of pneumonia in the lung at the time of his examination; that he and Dr. Holdsworth performed an autopsy on the body of deceased, found no signs of pneumonia in the lung, and there would have been some signs if pneumonia caused his death. It also appears that specimens of the lung tissue were sent to Dr. Warthin, of the university, for microscopical examination; it also appears that he made a report in writing. The report is not returned to us and is not in the printed record, but from the course of the testimony it is to be inferred that his report was unfavorable to defendant. It seems to have been so treated by both parties. Dr. Johnson made out the death certificate, assigning the cause of death as “peritonitis due to paralysis of brain,” which he testifies was. his conclusion; based on all the matters found by him.

Defendant urges that it is conclusively established that deceased died from pneumonia which was not the result of the accident. It is urged that Dr. Wilhelm has successfully pointed out that all the facts testified to by the other physicians may be true without in any way contradicting his conclusion that death resulted from pneumonia. It is urged that the death of Mr. Homan was not the result of an injury arising out of and in the course of his employment, that no cause of death is shown which renders defendant liable. Reduced to its final analysis it is the claim of defendant that the finding of the industrial accident board is not supported by the testimony. It is pointed out by defendant that at one place in the opinion of the board it is stated that the board thinks the shock was sufficient to assist in bringing on pneumonia, and it is urged with, considerable reason that the testimony fails to support this suggestion. We might agree with defendant that the testimony establishes that if deceased had pneumonia it was not traumatic, but we are more concerned with the findings of the ultimate facts than with each and. every detail of the opinion. If the finding of the ultimate facts upon which the award is based finds support in the testimony it is our duty to accept such finding as final, in the absence .of fraud. Section 5465, 2 Comp. Laws 1915; Reck v. Whittlesberger, 181 Mich. 463; Rayner v. Furniture Co., 180 Mich. 168. And this rule is applicable where there is conflicting medical testimony as to the cause of the death. Vogeley v. Lumber Co., 196 Mich. 516. In the instant case we are unable to say that there was no testimony supporting the finding of fact of the board that Mr. Homan’s death was the result of the injuries received by him on August 17th, while in the employ of the defendant; on the contrary, we are impressed that the testimony of Dr. Johnson and that of plaintiff who described his condition when he was at home, from the time he received the injury until he took to his bed and thereafter until his death, fully supports the finding and award of the industrial accident board.

We find no occasion to disturb the award, and it is affirmed.

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


text:
    JOHNSTON v. CORNELIUS.
    1. Automobiles — Motor Vehicle Law — Negligence — Felony —Statutes.
    Actionable negligence must be proved in order to recover for tbe death of a pedestrian accidentally killed on a public street by one violating tbe provisions of Act No. 33, Pub. Acts 1909 (3 Comp. Laws 1915, § 15431), prohibiting, under penalty, tbe unauthorized taking or using of automobiles, notwithstanding the provisions of section 14577, 3 Comp. Laws 1915, permitting recovery for the death of a person under circumstances amounting in law to a felony, since it does not create a cause of action where there is no causal connection between the death and the felony.
    2. Same — Pedestrians—Unauthorized Taking oe Automobile— Right oe Action.
    Act No. 33, Pub. Acts 1909, prohibiting the unauthorized taking or using of automobiles, does not of itself give a right of action to pedestrians injured upon the street; they not belonging to the class for whose protection the law was passed.
    3. Appeal and Error — Res Judicata — Admissions.
    Where it was conceded upon a former trial that the accident occurred in a residence street, such admission was conclusive upon plaintiff on the second trial.
    4. Automobiles — Motor Vehicle Law — Negligence — Lights — Audible Warning.
    The driver of an automobile who approached a pedestrian in the street on, a dark and rainy night owed a duty of giving reasonable warning of his approach, and this duty was not discharged by the presence of lights on his machine, since subdivision 1, § 6, Act No. 318, Pub. Acts 1909 (1 Comp. Laws 1915, § 4812), requires an automobile to have “a suitable and adequate bell, horn or other device,” for the purpose of “signaling.”
    5. Trial — Automobiles—Death—Warning—Instructions.
    In an action for the negligent killing of plaintiff’s decedent, who was struck, on a dark and rainy night, while in a public street for the purpose of taking a street car, by an automobile driven by defendant, an instruction by the trial court that, “the automobile having the usual lights upon it at the time, there was, as a matter of law, a reasonable warning,” taken in connection with his failure to instruct that defendant owed a duty to a pedestrian in a public highway to give an audible warning of his approach, amounted to reversible error. Subdivision 2, § 7, and subd. 1, § 6, Act No. 318, Pub. Acts 1909 (1 Comp. Laws 1915, §§ 4818, 4812).
    Error to Kent; Perkins, J.
    Submitted January 17, 1918.
    (Docket No. 18.)
    Decided March 27, 1918.
    Rehearing denied April 25, 1918.
    Case by Eleanore M. Johnston, administratrix of the estate of Andrew W. Johnston, deceased, against Russell Cornelius for the negligent killing of plaintiffs intestate. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Ellis & Ellis, for appellant.

      Lombard, Hext & Chase, for appellee.
   Fellows, J.

Plaintiff brought this action against Harold C. Cornelius and Russell Cornelius for the negligent killing of decedent Andrew W. Johnston, her husband. Upon the first trial the jury disagreed as to defendant Russell Cornelius and the court directed a verdict as to defendant Harold C. Cornelius. To review the judgment rendered on the verdict so directed plaintiff sued out a writ of error from this court. The case will be found reported in 193 Mich. 115. This court there affirmed such judgment. A statement of the facts of the case will be there found and it will only be necessary to here state such facts as became important upon the second trial, and as bear upon the questions here involved. This we will do as we proceed.

Upon the second trial, which proceeded against Russell Cornelius alone, a verdict for the defendant was arrived at by the jury and plaintiff prosecutes this writ of error to review the judgment entered thereon.

On the second trial, as on the first, it appeared that the automobile driven by the defendant on the evening in question when he ran over the deceased, causing the injuries which resulted in his death, was owned by his father, Harold C. Cornelius, and that defendant had taken it without the knowledge and consent of his father and in violation of his directions and instructions. It is now claimed by the plaintiff that, such being the case, defendant violated the provisions of Act No. 33, Pub. Acts 1909 (3 Comp. Laws 1915, § 15431), that his use of the car so taken was a felony, that its use under such circumstances was negligence per se, and in and of itself warranted a recovery under section 14577, 3 Comp. Laws 1915, without any evidence of negligence in its use and operation on the street. The lasj; cited section was originally passed in 1848 (Act No. 38, Laws 1848); it has since been amended. It is a remedial statute, though in derogation of the common law. Merkle v. Township of Bennington, 58 Mich. 156. By the ancient common law felony was punished by the death of the criminal and his lands and goods were forfeited to the crown. Such being the situation, neither body execution nor execution against lands or chattels was available; it would be an interference with the royal prerogative for a private suitor to attempt recompense from the estate of the felon, and the action of the private suitor was held to be merged in the public offense. I E. C. L. p. 327. This statute, in derogation of the common law, permits recovery, “notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony,” but it does not create a cause of action where there is no causal connection between the death and the felony. It cannot be given the effect claimed for it by the plaintiff.

Nor are we persuaded that Act No. 33, of the Public Acts of 1909, of itself gives a right of action to pedestrians injured upon the street; they do not belong to the class for whose protection the law was passed. Plaintiff cannot claim any benefit from it. It is said in 1 Thompson on Negligence, § 12:

“ * * * And it may be stated as a general proposition — though there may be difficulty in some cases in applying it — that the violation of a statute or municipal ordinance is not of itself a cause of action grounded upon negligence in favor of an individual, unless the statute or ordinance was designed to prevent such injuries as were suffered by the individual claiming the damages, and often not then, the question depending upon judicial theories and surmises.”

See, also, Taylor v. Railroad Co., 45 Mich. 74; Richards v. Waltz, 153 Mich. 416; Syneszewski v. Schmidt, 153 Mich. 438; Mairs v. Railroad Co., 175 N. Y. 409; Lepard v. Railroad Co., 166 Mich. 373; Lindsay v. Cecchi, 3 Boyce (Del.), 133; Latham v. Railway Co., 164 Ill. App. 559.

Error is also assigned upon the instruction by the court that the locality where the accident occurred was a residence section of the city. The court, among other reasons for so instructing the jury, stated that upon the former trial it was conceded that this was a residence section of the city. Such being the case, the trial court committed no error in this instruction. This was a judicial admission and the court was not in error in considering it conclusive on the plaintiff on the second trial. Connor v. Railway Co., 168 Mich. 29.

The defendant, driving a heavy' Cadillac car, ran over the deceased about nine o’clock in the evening of November 28, 1913, on Michigan street in the city of Grand Rapids, causing such serious injuries that death resulted some two weeks later. The evening was dark and it was raining. Deceased was escorting a young lady who had called at the home of himself and plaintiff to the street car line which ran east and west on Michigan street. It is undisputed that a man named McMillan was standing in the street near the track awaiting the approaching car. It is in dispute the distance decedent and his companion had proceeded in the street when they were struck by the car driven by defendant; plaintiff’s witnesses giving testimony tending to show that they were quite near Mr. McMillan out in the street; defendant’s, that they were much nearer the curb. The trial court, after calling the attention of the jury to the statutory duty of drivers of automobiles, and after reading the provisions of the statute and the ordinance of the city of Grand Rapids, charged them as follows:

“Under the second section of the State law to which your attention has been called, it is claimed by the plaintiff that the defendant in approaching this crossing, was also approaching a Mr. McMillan who was standing in the highway waiting for this west-bound street car, and that therefore the defendant should have given reasonable warning of his approach and slowed down to a speed not exceeding ten miles an hour. That is substantially the provision which I have read to you. The question for the jury to consider and for the court to instruct the jury upon particularly, is in relation to the warning provided by this statute. The statute provides that a reasonable warning shall be given to a person standing in the street, if there be one. I instruct you that under the undisputed, testimony, it appears that the defendant, as he approached this crossing, saw Mr. McMillan standing near the street car track, and also that Mr. McMillan saw the approaching automobile. Under these circumstances, the automobile having the usual lights upon it at the time, there was, as a matter of law, a reasonable warning given to Mr. McMillan who was standing waiting to take this car. So in its last analysis, these two sections of the State law as applied to this, case, relate and will be confined to the speed iyith which the automobile was approaching this crossing, the one provision limiting the speed to fifteen miles an hour, and the other provision limiting the speed to ten miles, per hour,- as I understand it, under the circumstances shown in this case.”

In no part of his charge did the court instruct the jury that defendant owed a duty to a pedestrian in a public highway to give an audible warning of his approach. The instruction given and the failure to instruct here noted could lead the jury to but one conclusion, viz.: That defendant owed no duty to decedent if he was in the street to give other warning of his approach than by his lights, and that an audible warning was not required. This was reversible error. If decedent was in a public highway as the defendant approached the intersection of Michigan street and North avenue, and there was testimony tending to show that he was, defendant owed a duty of giving reasonable warning of his approach, and this duty was not discharged by the presence of lights on his machine. The provision of the statute is subdivision 2, of section 7, Act No. 318, Pub. Acts 1909 (1 Comp. Laws 1915, § 4818), and reads as follows:

“Upon approaching a person walking in the roadway of a public highway, or a horse or horses, or other draft animals, being ridden, led or driven thereon, a person operating a motor vehicle shall slow down to a speed not exceeding ten miles an hour and give reasonable warning of its approach, and use every reasonable precaution to insure the safety of such person or animal, and in case of a horse or horses or other draft animals, to prevent frightening the same.”

It is also provided by subdivision 1, section 6, of the same act (section 4812), as follows:

“Every motor vehicle, operated and driven upon the public highways of this State, shall be provided with adequate brakes sufficient to control the vehicle at all times, and a suitable and adequate bell, horn or other device for signaling, and shall, during the period from one hour after sunset to one hour before sunrise, display at least two lighted lamps on the front and one on the rear of such vehicle, which shall also display a red light visible from the rear.”

By the latter provision the automobile must not only be provided with lights in the night time but must also have “a suitable and adequate bell, horn or other device,” and the purpose is stated to be “for signaling.” When we read the two provisions together, as we must do, it is clear that the legislature contemplated an audible warning when approaching pedestrians in the streets and highways. This is emphasized when we consider how impossible it is to gauge the distance of an oncoming automobile by the lights upon it in a dark night, while the sound of an automobile horn furnishes a much more accurate warning of its location. The purpose of this legislation was to save human life, and minimize the number of injuries to pedestrians on the streets and highways. It lays a statutory duty upon drivers of automobiles which may be greater than the duty of exercising ordinary prudence, but the driver of automobiles must, nevertheless, discharge such duty or respond for its neglect. Levyn v. Koppin, 183 Mich. 232.

Plaintiff moved for a new trial, urging among other grounds, that the verdict was against the weight of the evidence. The motion was overruled and error is assigned thereon. We are not persuaded that the verdict is against the weight of the evidence. There was a sharp conflict of testimony on the material points, and we are not impressed that we should disturb the judgment on this ground.

We have examined the other errors assigned, and find them without merit.

For the error pointed out the judgment must be reversed with a new trial. Plaintiff will recover costs of this court.

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


text:
    WARD v. CAREY.
    1. Appeal and Error — Assignments— Waiver — Supreme Court Rule.
    Assignments of error not discussed in counsel’s brief must be deemed to be waived and abandoned. Supreme Court Rule No. 40.
    2. Conversion — Evidence—Partnership— Automobiles — Receipt —Authority of Partner to Sign Eirm Name.
    Where plaintiffs, in an action for the conversion of an automobile sold to them as part of the property of a garage business, of which they claimed to have been put in possession by the vendors, copartners, which fact was in dispute, a receipt for part of the purchase price, signed in the firm name by one of the partners, in the presence of the other, who received the money, was admissible as proof of the transaction, and was not open to the objection that there was no evidence that the signer was authorized to sign the firm name.
    3. Same — Evidence—Acts op Dominion — Demand.
    Under plaintiffs’ theory' of the case that there had been a completed sale, it was competent for them to show their acts of dominion over the property after the sale, and also to show that after defendant took the car they made a demand on him for it, and what conversation was had between the parties on that occasion.
    4. Same — Value op Car — Witnesses—Competency.
    Where a witness testified that he was in the business of selling automobiles; that he had handled cars for eleven years; that he was the agent for the same make of car, and was engaged in selling them; that he had seen and driven the car in question, he was qualified to testify as to its value, and the price at which it was sold.
    5. Same — Rescission—Contracts—Inability to Perform — Trial.
    The exclusion of testimony as to the ownership of the lease, attempted to be developed by defendant on cross-examination, for the purpose of showing a rescission of the contract of sale to plaintiffs by the vendors, and a subsequent sale of the automobile to defendant, for the reason that the vendors were unable to transfer the lease, was not error, since their inability to perform would not entitle them to rescind, nor release them from their obligation to perform.
    6. Appeal and Error — Evidence—Cumulative Evidence.
    Where one of the plaintiffs had already testified that he was present when defendant took the car, and did not protest, it was not prejudicial error to exclude further evidence of the fact.
    7. Trial — Evidence—Rebuttal.
    There was no error in permitting plaintiffs, in rebuttal, to contradict evidence given by defendant’s witnesses.
    8. Same — Evidence—Issue—Question f®r Jury.
    Testimony of three witnesses to the fact that plaintiffs were copartners was sufficient to take the question to the jury.
    9. Conversion — Trial—Bona Fide Purchaser.
    The court below was not in error in refusing to direct a verdict for defendant on the ground that he was a bona fide purchaser of the automobile, since his belief that his vendor was the true owner could not defeat recovery by the true owner.
    10. New Trial — Weight oe Evidence.
    A motion for a new trial on the ground that the verdict was against the great weight of the evidence was properly denied.
    11. Appeal and Error — Pleading—Practice—Defenses—Review.
    The question as to plaintiffs’ failure to file their certificate of copartnership, as required by the statute, cannot be raised for the first time by defendant upon motion for a new trial.
    Error to Ingham; Collingwood, J.
    Submitted January 9, 1918.
    (Docket No. 23.)
    Decided March 27, 1918.
    Case by Frank Ward, Harry Scarlett and Albert Scarlett, copartners as Ward, Scarletts & Co., against James J. Carey for the conversion of an automobile. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      John F. Berry, for appellant.

      Seymour H. Person, for appellee.
   Fellows, J.

January 4, 1916, John A. Hicks and Charles Dunn were operating a garage and Oakland sales agency on Michigan avenue east, in the city of Lansing. It was known as the Central Garage. At the same time plaintiffs were operating a garage at North Lansing and were handling the Chevrolet cars. On the evening in question the parties, having previously had some negotiations, got together at plaintiffs’ office in North Lansing, and finally agreed upon the terms of a sale of the Central Garage to plaintiffs for the sum of $1,400. Fifty dollars was paid on the purchase price and a receipt given therefor. The assets of the Central Garage consisted of one Oakland-six car, some accessories, and the lease of the location. On January 5th, some or all of the plaintiffs went to the Central Garage. The extent to which they took possession of the garage and its contents is one of the disputed questions in the case; plaintiffs insisting that they were given the keys and that full and exclusive possession was turned over to them; that they were introduced to customers and the employees as the purchasers and proprietors of the garage, had complete dominion of the garage and that the sale was a completed sale, except that the lease was not assigned to them, although it is undisputed that they paid a month’s rent to Mr. Dunn. Much of this testimony was controverted by testimony produced by the defendant, who insists that the sale to plaintiffs was not a completed one, that exclusive possession of the garage was not given plaintiffs; that Hicks and Dunn were unable to procure an assignment of their lease to plaintiffs, and that on the 7th day of January, said Hicks and Dunn sold said business, including the lease and the Oakland car to the Capital Auto Company, and on the same day he bought the car of the Capital Auto Company in good faith and that he took possession of it at the Central Garage, and drove it away believing he had a right so to do. After defendant took the car plaintiffs demanded it of him, and, upon his refusal to comply with such demand, brought this, action for its conversion. Plaintiffs had verdict and judgment and defendant reviews the case here.

There are 87 assignments of error and upon the argument defendant’s counsel stated that they were all relied upon, but in the brief of counsel it is found that but few of them are discussed. Such as are not discussed in appellant’s, brief must be deemed to be waived and abandoned. Supreme Court Rule No. 40; Nissly v. Railway Co., 168 Mich. 676; Smith v. Construction Co., 175 Mich. 603. It therefore becomes unnecessary to consider all the assignments of error and we shall only examine those discussed in appellant’s. brief.

We have stated that on the evening of the 4th of January, fifty dollars was paid on the purchase price of the Central Garage and a receipt given. This receipt was signed in the firm name by Mr. Hicks, a member of the firm. When this receipt was offered in evidence defendant objected on the ground that there was no evidence that Mr. Hicks was authorized to sign the firm name. It is not claimed that these two men were not partners; indeed defendant claims title through such partnership. Plaintiffs claim that both Mr. Hicks and Mr. Dunn were present when this receipt was signed. Mr. Dunn was called as a witness by defendant and admitted that he was present at this transaction and when the receipt was signed, and that while Mr. Hicks signed the receipt the check for the $50 was given to him and he cashed it. Defendant’s objection was without merit.

Under plaintiffs’ theory of the case, that there had been a completed sale, it was competent for them to show their acts of dominion over the property after the evening of January 4th. It was also competent for them to show that after defendant took the car they made a demand on him for it and what conversation was had between the parties on that occasion.

It is next insisted that the court erred in permitting the witness, Harry Scarlett, one of the plaintiffs, to' give evidence as to the value of this car, on the ground that he was not qualified. The witness had testified that he was in the business of selling automobiles, that he had handled cars about 11 years; that he had been the agent of the Oakland Company selling their Oakland sixes. He had seen and driven this car. He was, therefore, qualified to testify to the value of the car and the price at which it was sold. Both parties gave testimony tending to show that the car was a new one, had only been driven for demonstration purposes; defendant in his testimony says: “It had been driven a very few miles ;T don’t think it was a hundred miles if I remember correctly.” There was no error committed in receiving this testimony of the witness Scarlett.

One of defendant’s witnesses was asked the question: “You may state who held the lease to the property known or occupied by,the Central Garage in the city of Lansing at that time?” The answer was excluded. We might dispose of this particular question by saying that it called for a conclusion of the witness and that the lease was the best evidence as to who Was the lessee and what its terms were, or by calling attention to the fact that the record discloses that later in the case defendant was permitted to make proof by the witness Dunn of all that he sought to prove by this witness; but the theory of defendant in offering this and other proof requires attention. It does not appear to be seriously controverted by plaintiffs that after the transaction on the evening of January 4th, Hicks and Dunn encountered difficulty in performing all the terms of their contract, in that they were unable to obtain consent to the transfer of their lease to the plaintiffs. Defendant insists and was permitted to prove that upon Hicks and Dunn learning that they could not transfer their lease to plaintiffs, Mr. Dunn so informed plaintiffs and tendered them the $50 paid on the evening of January 4th. He insists that this amounted to a rescission of the contract. In this he is in error. While it is true that upon failure of the vendor to perform a material part of his contract the vendee may elect to treat the contract at an end, still the vendor, upon learning his inability to perform a material part of the contract, may not rescind the contract and relieve himself from its terms, or an action for its breach. He has contracted to deliver to the vendee the property sold, and his inability to comply with his contract does not relieve him from its obligations. While the vendee may rescind for the default of the vendor, the vendor may not rescind for his own default. What we have here said applies to the offered telephone conversation on this subject.

Error is assigned upon the refusal of the court to permit defendant to testify that when he took the car Albert Scarlett, one of the plaintiffs, was present and did not protest. But Albert Scarlett had already given testimony in the case and had testified and admitted that he was present on this occasion and did not protest. It was not prejudicial error to exclude f&rther evidence of a fact already proved and admitted by the other side. Whether the reason of the court for the ruling was correct or not, is unimportant. Nor was there error in permitting plaintiffs, in rebuttal, to introduce evidence contradictory to evidence given by defendant’s witness.

Defendant’s counsel moved for a directed verdict on two grounds. The first of these being that there was no evidence that plaintiffs were partners. It is sufficient, in answer to this ground, to say that we find in the testimony of each of three witnesses sufficient to take this question to the jury. The other ground was that defendant was a bona fide purchaser of the car. If these plaintiffs were the owners of this car, and the jury found they were, defendant had no right to take and convert it to his own use. He does not claim to have acquired title through plaintiffs; the fact that he, in good faith, believed that the party from whom he purchased it was the rightful owner cannot defeat recovery by the true owner. The motion to direct a verdict for these two reasons was properly overruled.

Defendant moved for a new trial, alleging among other reasons, that the verdict was against the great weight of evidence. We are not persuaded that the verdict is against the weight of the evidence. It does not so appear to us, and we have read this record with care. In this motion defendant asks for a new trial because there was no proof that plaintiffs had filed their certificate of copartnership, as required by the statute. It is not pointed out in the motion, or in the brief whether defendant refers to Act No. 101, Pub. Acts 1907 (2 Comp. Laws 1915, §§ 6349-6353), or Act No. 164, Pub. Acts 1913 (2 Comp. Laws 1915, §§ 6354-6359), and authorities dealing with both acts are indiscriminately cited. While defendant was permitted to amend his notice so as to avail himself of this question, if he so desired, we are unable to find in the record that this question was in any way raised upon the trial. Such being the case it cannot be raised for the first time on a motion for a new trial. Selling v. Berger, 161 Mich. 526; Mahiat v. Codde, 106 Mich. 387.

No reversible error having been pointed out in this record, the judgment is affirmed.

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


text:
    THOMAS v. BUSH.
    1. Appeal and Error. — Assignments of Error — Review.
    Assignments of error upon the admission and rejection of testimony which did not affect the controlling question, will not be reviewed in the appellate court.
    2. Malicious Prosecution — Proof to be Established.
    In an action for malicious prosecution, three distinct propositions must be established: (1) The fact of the alleged prosecution, and that it terminated in plaintiff’s favor; (2) that defendant had not probable cause; (3) that defendant acted from malicious motives.
    3. Same — Probable Cause — Evidence—Question of Law.
    In an action for malicious prosecution, where the facts are undisputed, the want of probable cause is a question of law to be determined by the court.
    4. Same — Probable Cause — Proof — Defenses — Good Faith— Malice.
    In an action for malicious prosecution, where the prosecuting witness has in good faith fully and fairly stated all the material facts within his knowledge to the prosecuting officer, and acted upon his advice, proof of the fact establishes a case of probable cause, negativing the inference ’ of malice.
    5. Same — Probable Cause — Evidence—Directed Verdict.
    In an action for malicious prosecution, where plaintiff, his brother and another were arrested for the theft of a piece of hose from a water tank in defendant’s farm yard, on complaint of defendant, who, after being informed of the taking of the hose and the names of the persons who took it, stated all the facts within his knowledge fully and fairly to the prosecutor, who authorized the issuance of the warrant, the fact of probable cause was established as a matter of law, although it appeared that the hose was taken by plaintiff’s brother, who claimed to own it, without the knowledge of plaintiff, and the latter was discharged from custody without a trial.
    6. Same — Abuse oe Process — Evidence—Directed Verdict.
    in such action, where all that defendant did after the issuance of the warrant was to demand the return of the hose, which he and his tenant had paid for and believed they owned, and there was no use of the warrant to attempt to extort money or effect a settlement, there was no evidence of abuse of process, and the court was not in error in directing a verdict for defendant.
    Error to Calhoun; North, J.
    Submitted January 24, 1918.
    (Docket No. 186.)
    Decided March 27, 1918.
    Case by Stuart K. Thomas against Sumner Bush for malicious prosecution. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      James M. Powers, for appellant.

      James Cleary and Joseph L. Hooper, for appellee.
    Defendant lives in Battle Creek and owns a farm of 560 acres in LeRoy township, Calhoun county. The farm is run by a Mr. Drake and his son Harry. It is operated under the firm name of A. Drake & Son. Defendant has one-half the income. On December 6, 1915, there was purchased of one Charles Lowe, in the name of A. Drake & Son, an outfit consisting of one second-hand Port Huron engine; one Plano cornhusker and sheller; one ensilage cutter with pipe; one buzz saw; one water tank and wagon; one set of flues for engine and all belts and attachments that belong to above goods. Defendant paid one-half the purchase price and drew the bill of sale. There was nothing reserved from the above, either in the bill of sale or orally. To the water tank was attached a piece of hose. The following March the plaintiff, his brother Emerson, and a Mr. Gray stopped at the farm of defendant to get some water for the radiator of defendant’s automobile; it was just getting dusk. Defendant’s brother Emerson saw the piece of hose above referred to. He testifies, and there is no testimony to contradict him, that this piece of hose was given to him by the city of Battle Creek when he was oiling the streets there, and by him loaned to Mr. Lowe. He proceeded tó cut the hose off the tank, put it in his brother’s automobile and the party drove away. Plaintiff did not know of the taking of the hose until he saw it in the automobile. Some of the workmen at the Bush farm saw the party about the water tank, and when Mr. Drake, Jr., noticed the loss of the hose he made inquiry and received information which led him to the names of the three men in the party. He called up the defendant and informed him of the transaction. Defendant inquired if he had not better take counsel and Mr. Drake told him he thought he should. He thereupon got in communication with the prosecuting attorney and made an appointment to see him. He fully stated the circumstances to the prosecuting attorney and was advised by him to make complaint. The prosecuting attorney called up the justice and told him a warrant might issue. He also advised defendant to make a demand for the hose. Defendant made the complaint against the three accordingly and demanded the return of the hose. Emerson Thomas claimed to own it. Plaintiff was arrested upon a warrant issued on the complaint and was subsequently discharged without a trial. He brings this action, counting in his first count for malicious prosecution, and in his second count upon the abuse of criminal process. At the close of the case the court directed a verdict for the defendant and plaintiff prosecutes this writ of error.
   Fellows, J.

{after stating the facts). Errors are assigned upon rulings of the trial court during the progress of the trial. As none of the testimony admitted over plaintiff’s objection affects the controlling question, and as no proof offered by him was rejected which could affect it, these assignments of error become unimportant. The controlling question of whether the court properly directed a verdict for the defendant is the only one meriting consideration. '

In an action for malicious prosecution three distinct propositions must be established: (1) The fact of the alleged prosecution and that it terminated in plaintiff’s favor; (2) that defendant had not probable cause; (3) that he acted from malicious motives, Hamilton v. Smith, 39 Mich. 222. Plaintiff has established the first of these propositions. He insists that the third may be inferred from a want of probable cause, and that the question of probable cause was for the jury. There is no claim that defendant instituted the criminal proceedings because of any past differences between him and plaintiff, as it is undisputed that he was not acquainted with plaintiff. The case must turn upon the question of probable cause. It is the settled rule in this State that where the facts are conceded, or are undisputed, the want of probable cause is a question of law to be determined by the court. Gilecki v. Dolemba, 189 Mich. 107; Rogers v. Olds, 117 Mich. 368; Birdsall v. Smith, 158 Mich. 390; Fleckinger v. Taffee, 149 Mich. 678; Huntington v. Gault, 81 Mich. 144.

It is also equally the settled law of the State that in actions for malicious prosecution and false imprisonment, where the prosecuting witness has in good faith fully and fairly stated all the material facts within his knowledge to the prosecuting officer and acted upon his advice, proof of the fact establishes a case of probable cause. Smith v. Tolan, 158 Mich. 89; Rogers v. Olds, supra; Wakely v. Johnson, 115 Mich. 285; Huntington v. Gault, supra. In the last cited case it was said:

“When the- facts are undisputed, want of probable cause is purely a question of law. In this case the facts are undisputed that Gault did place all the facts before the prosecuting attorney, not only by himself, but by disinterested witnesses, and acted upon his opinion. The testimony of Gault and of the prosecuting attorney upon this point is not contradicted, and the question became one, as before said, of law, and the circuit judge should have instructed the jury that the plaintiff had failed to show that there was a want of probable cause to make the complaint. The defense that the prosecution was instituted by advice of counsel was as conclusively established as was the fact that the prosecution was instituted by defendant, or that the prosecution had terminated, and called for like instructions to the jury.”

In the instant case the undisputed testimony of the defendant establishes that defendant fully and fairly stated to the prosecuting attorney all the facts, within his knowledge, surrounding the transaction. The testimony of the defendant and of the prosecuting attorney undisputedly establishes that the prosecuting attorney advised making the complaint, and instructed the justice that the warrant might issue. Not only are these facts established by the undisputed testimony, but there are no inferences or circumstances in any way casting discredit on their testimony, or imputing a want of good faith on the part of either the prosecuting attorney or the defendant. The question, therefore, became one of law for the court. Probable cause was established by testimony introduced by defendant and there was no testimony in the case showing, or tending to show a want of probable cause.

Nor was there any evidence in the case of an abuse of criminal process. Defendant demanded the return of the hose,,as he was advised to do by the prosecuting attorney, but there is no testimony that he went further; no testimony that he extorted or attempted to extort any money from the defendants in the criminal case or any of them; no evidence that he in any way used or attempted to use the warrant to procure a settlement from any of the defendants therein named; no evidence that he even mentioned the warrant to them or any of them. All that he did was to demand a return of the property he and his tenants had bought and paid for, and which he honestly believed belonged to them. If this property belonged to them defendant might undertake to recover it, but had no right to use the criminal process of the court in that undertaking. There is no evidence that he did so. The court was not in error in directing a verdict for defendant.

The judgment is affirmed.

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


author: Steere, J.

text:
    J. F. HARTZ CO. v. LUKASZCEWSKI.
    1. * Appeal and Error — Statutory Right of Appeal — Legislative Discretion.
    The right to an appeal is and always has been statutory, and does not exist at common law, but is a remedy which the legislature may, in its discretion, grant or take away, and it may prescribe in what cases, and under what circumstances, and from what courts, appeals may be taken; and unless the statute expressly or by plain implication provides for an appeal from a judgment of a court of inferior jurisdiction, none can be taken.
    2. Same — Jurisdiction—Waiver—Consent.
    Jurisdiction cannot be conferred by consent or inadvertence.
    3. Same — Vested Right — Statutes.
    The statutory right of appeal is but a mere privilege, not amounting to a vested right, and may be taken away by the legislature before appellate proceedings have been instituted, although judgment was rendered before the statute was amended.
    4. Same — Jurisdiction—Dismissal.
    Under Act No. 172, Pub. Acts 1917, amending the judicature act (3 Comp. Laws 1915, § 13736), providing that “Writs of error, upon a final judgment or determination, where the judgment exceeds in amount $500, may issue of course, out of the Supreme Court, in vacation as well as 'in term, and shall be returnable to the same court; and in all other cases such writ may issue in the discretion of the Supreme Court upon proper application,” an action begun in justice’s court, limited in amount to $500 by plaintiff’s declaration and the jurisdiction of the court, and where judgment of “no cause of action” was entered in the circuit, before the statute was amended, and a writ of error was sued out in this court, after said act went into effect, without any application to this court therefor, the Supreme Court is without jurisdiction and will, of its own motion, dismiss the case.

      Error to Wayne; Hosmer, J.
    Submitted January 17, 1918.
    (Docket No. 117.)
    Decided March 28, 1918.
    Assumpsit in justice’s, court by the J. F. Hartz Company against S. J. Lukaszcewski for goods sold and delivered. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.
    Dismissed.

      Frederic T. Harward, for appellant.
    L. A. Koscinski (Charles Bowles, of counsel), for appellee.
   Steere, J.

Plaintiff brought this action in a justice’s court of the city of Detroit to recover a claimed balance due upon a running account extending from November 6, 1909, to February 28, 1912, declaring orally upon the common counts in assumpsit and claiming $500 or under.

Defendant orally pleaded the general issue with special notice of set-off and recoupment. Each furnished a bill of particulars. Plaintiff’s, comprised a lengthy account for medicines, drugs, surgical instruments, etc., sold to defendant during the period mentioned, with credits for numerous payments thereon from time to time; while defendant’s bill of particulars of his claimed set-off was composed of 14 items of “goods returned and not credited,” the total stated amount for credits claimed slightly exceeding the balance shown by plaintiff's bill to be yet due on the account. The principal matter in controversy was an X-Ray machine and its accessories which plaintiff claimed defendant bought, but which he claimed was taken on approval and subsequently returned. The primary and controlling issue between the parties was one of fact.

In justice’s court plaintiff recovered a judgment for $500 and defendant removed the case by appeal to the Wayne circuit court, where re-trial by jury resulted in a verdict and judgment of “no cause of action.” The judgment was entered by the circuit court of Wayne sounty on January 29, 1917. On October 17, 1917, fol-. lowing familiar practice under former statutory authority, plaintiff’s counsel obtained as a matter of right, and of course, issuance of a writ of error without any application to this court therefor. A bill of exceptions with assignment of errors attached was thereafter settled and the case proceeded without objection of opposing counsel to a hearing in this court upon briefs and record.

Jurisdiction cannot be conferred by consent or inadvertence. By Act No. 172, Pub. Acts 1917, which went into effect in August, 1917, section 1 of chapter 50 of the judicature act (section 13736, 3 Comp. Laws 1915), is amended to read as follows:

“Writs of error, upon any final judgment or determination, where the judgment exceeds in amount five hundred dollars, may issue of course, out of the Supreme Court, in' vacation as well as in term, and shall be returnable to the same court; and in all other cases such writ may issue in the discretion of the Supreme Court upon proper application.”

Although judgment was rendered before the amendment was passed, appellate proceedings had not been instituted in this court before it went into effect. Its restrictions, were therefore in force and applicable, for the reason that the previous statutory right of review in such cases was but a mere privilege not amounting to a vested right beyond legislative control. Puffer v. Kennedy, 49 Kan. 59; Skoin v. Limerick, 50 Kan. 465; Kendall v. Spradling, 54 Ky. 33; M’Gruder v. Lyons, 48 Va. 233; Yznaga del Valle v. Harrison, 93 U. S. 233.

In Skoin v. Limerick, supra, it appeared from, the record that judgment was rendered by the trial court on January 30, 1889, for review of which the petition in error and case-made were filed in the appellate court on January 13, 1890. On March 20, 1889, an act of the legislature limiting appellate jurisdiction to sums exceeding the amount of the judgment took effect. No question of jurisdiction was raised by either party. It was there said:

“We think, however, it is the duty of this court on its own motion, where the question is. not otherwise raised, to raise the question itself, and to consider the same.”

The case was'thereupon dismissed under previous decisions referred to.

Not only is the subject matter of the action limited in amount to $500 by the ad damnum clause in plaintiff’s declaration and the jurisdiction of the court in which suit was begun, but specifically and palpably it is not a case “where the judgment exceeds in amount five hundred dollars,” which is the test now prescribed by statute for a writ of error as a writ of right on final judgment in the trial court.

That no right of appeal exists in this State except as conferred by statute, is well settled. Harvey v. Pealer, 63 Mich. 573; Sullivan v. Haug, 82 Mich. 548; Messenger v. Teagan, 106 Mich. 654. Public policy enters into consideration of the question (Smart v. Howe, 3 Mich. 590), and it is within the power of the legislature to determine to what extent that right shall exist and under what restrictions. In Sullivan v. Haug, supra, which discusses the subject at length, it is said:

“The right to an appeal is and always has been statutory, and does not exist at common law. It is a. remedy which the legislature may, in its discretion, grant or take away, and it may prescribe in what cases, and under what circumstances, and from what courts, appeals may be taken; and unless the statute expressly or by plain implication provides for an appeal from a judgment of a court of inferior jurisdiction, none can be taken.”

The case is therefore dismissed from this court, without costs to either party.

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


author: Per Curiam.

text:
    BOLTON v. CUMMINGS.
    1. Appeal and Error — Statutory Right op Appeal — Limitation —Jurisdiction.
    The right of appeal is statutory, and unless taken within the time fixed by the statute the appellate court does not acquire jurisdiction.
    2. Same — Jurisdiction—Waiver—Consent,
    Jurisdiction is not acquired by waiver or consent.
    3. Same — Dismissal.
    Where a writ of error was not taken out until after the expiration of a year from the rendition of judgment, and no motion for extension of time was made, and no extension was granted by the Supreme Court or by any of the Justices thereof, the Supreme Court should, of its own motion dismiss the case for want of jurisdiction. 3 Comp. Laws 1915, § 13741.
    Error to Kent; Lamb, J., presiding.
    Submitted January 30, 1918.
    (Docket No. 106.)
    Decided March 27, 1918.
    Case in justice’s court by George W. Bolton against Harwood Cummings for trespass. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.
    Dismissed.

      Thompson & Temple, for appellant.

      Hatch, McAllister & Raymondfor appellee.
   Per Curiam.

A judgment for the defendant was entered in this case June 21, 1916, in the Kent circuit court. August 9, 1917, the writ of error was issued. No motion for an extension of time to take out such writ was made, and no extension of time was granted by this court, or by any of the Justices thereof. The year in which a writ of error might issue without such extension had expired. No motion to dismiss the writ has been filed, and appellee files a brief on the merits. The right of appeal is statutory; unless taken within the time fixed by the statute the appellate court does not acquire jurisdiction; jurisdiction is not acquired by waiver or consent. Section 13741, 3 Comp. Laws 1915; Riley v. Railway, 163 Mich. 327. This court should, of its own motion, dismiss a case which the record discloses it has not the jurisdiction to hear and determine. J. F. Hartz Co. v. Lukaszcewski, ante, 230.

The writ of error will be dismissed.


author: Broqke, J.

text:
    YOUNG v. YOUNG.
    1. Equity — Wills—Inconsistent Claims.
    Where plaintiff in his bill prayed that a will, under which he obtained title to land, be sustained as' to the validity of his title, but otherwise be set aside, his position was inconsistent; he cannot elect to accept what is favorable to him and at the same time reject it for other purposes.
    2. Estoppel — Wills—Election.
    Where plaintiff, more than two years after learning of his rights under a second will, deeded land with full covenants of warranty, basing his right to convey under the first will, his action was an election amounting to an ■ equitable estoppel.
    3. Limitation ojt Actions — Rights in Land — Wills—Pbobate.
    Where the first will had been probated for more than 15 years and plaintiff waited for more than two years after learning of his rights under the second will before beginning proceedings, his right to recover, not only the lands but also funds received upon its sale, was barred by the provisions of section 12311, 3 Comp. Laws 1915.

      4. Same — Equity Pbactice.
    The court of equity will usually apply the principles of a statute of limitations by analogy.
    5. Equity — Privity oe Action — Estoppel.
    There being no privity between plaintiff and defendant in respect to the cause of action, the fact that plaintiff is precluded by his own acts in proceeding against the vendee of the land affords no argument for the propriety of his inconsistent claims in this proceeding. ■
    Appeal from Kent; Perkins, J.
    Submitted January 30, 1918.
    (Docket No. 46.)
    Decided March 27, 1918.
    Bill by W. Crawford Young against Ella O. Young to set aside the probate of á will, to establish a later will, and for an accounting. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Jewell & Smith, for plaintiff.

      Taggart & Kingston, for defendant.
    On November 18, 1891, David J. Young, being then seised of a farm containing 220 acres, made a last will and testament by the terms of which he devised his entire estate, including said farm, to his wife, Ella O. Young. David J. Young died March 11, 1893, and on March 27, 1893, his will was presented for probate in the probate court. Willis Young, a brother of David J. Young, contested the probate of said will, but it was nevertheless admitted to probate on April 29, 1893. Thereafter, and on June 10, 1893, Willis Young filed a claim of appeal from said order in the circuit court for the county of Kent. On August 2, 1893, Ella O. Young entered into an agreement with Willis Young, by the terms of which said appeal was to be dismissed and she was to sell to said Willis Young the 220 acres of land in question for the sum of $11,000. A stipulation for the dismissal of said appeal was filed and an order entered in accordance therewith upon said 2d day of August, 1893. Later Ella O. Young as administratrix carried to a conclusion the administration of said estate and was duly discharged as such administratrix on February 15, 1894. In the meantime, and on August 15, 1893, Ella O. Young had deeded, with full covenants of warranty to Willis Young, said farm, and he had paid to her the full consideration agreed upon, $11,000. In 1906, Willis Young deeded to his son, W. Crawford Young, the plaintiff herein, 146 acres of the 220 acres purchased by him from Ella O. Young, the defendant, in 1893.
    On March 11, 1913, a paper purporting to be the last will of David J. Young was discovered in Los Angeles, California, dated ‘ November 27, 1891, nine days later than the will which had been probated in 1893. This will was offered for probate June 11, 1914, by plaintiff and probate thereof denied December 18, 1914. By the terms of the second will defendant, Ella O. Young, was given a life estate only in the 220-acre farm in question, with remainder over to W. Crawford Young (nephew of David J. Young), plaintiff herein. On March 16, 1915, plaintiff conveyed with full covenants of warranty a portion of said 146 acres to Carl D. Young for a consideration of $9,000. This deed was made more than two years after the discovery of the second will. The bill of complaint was filed on January 13, 1916, nearly three years after said discovery. The bill sets up the facts as above narrated, together with others bearing thereon, and prays for the following relief:
    “ (a) That the said will of November 27, 1891, may be proved and determined to be the last will and testament of the said David J. Young and entitled to admission to probate as such.

      “(b) That the will of November 18, 1891, and all orders and proceedings based thereon be set aside and held for naught insofar as so doing will not disturb any title based thereupon.

      “(c) That the value of the interest of your orator in said lands so devised to him at the death of said David J. Young, and later sold by the said Ella O. Young, may be determined, and the said Ella O. Young be required to account to your orator for the moneys belonging to your orator and so received by her as aforesaid.
    ” “(d) That the said Ella O. Young may be decreed to pay to your orator such sum as this court shall determine to have been the value of your orator’s interest in said lands at the time of the death of David J. Young, with interest thereon from August 15, 1893; or that the sum of eleven thousand dollars (the price of said lands received by said Ella O. Young) be set aside either in property or money, of the lands or property of said defendant, Ella O. Young, in such manner as the court shall direct, the use thereof to be paid under the direction of this court to the said Ella O. Young, during her life, and upon her death the principal' fund to be delivered and paid to your orator.”

      The answer denies the genuineness of the second will, admits the proceedings had under the first will and the receipt by defendant from Willis Young of the sum of, $11,000 as the purchase price of said 220 acres of land. A motion to dismiss in the nature of demurrer is attached to said answer. This motion is based upon many legal propositions which defendant urges as fatal to plaintiff’s claim. The case was heard in open court, the testimony offered all bearing upon the genuineness of the signature of David J. Young to the later will. The learned circuit judge before whom the case was heard found as a matter of fact that the second will was genuine, and found as a matter of law:
    “That neither the statute of limitations nor the doctrine of estoppel have anything to do with the determination of this case.”
    He further held:
    “Again, the plaintiff relies upon the validity of his title to the land, and has sold a portion thereof for-$9,000. He insists upon his rights to retain the rent and income thereof, and claims, also, an interest as remainderman in the proceeds of the sale by the life tenant made some 24 years ago, under a mutual mistake of fact. While the interest on the proceeds of the sale in the hands of the defendant might, under proper circumstances, be considered in the nature of the setoff against the rents and profits so received by the plaintiff, still, there is no proof before the court as to the amount of such rents and profits.
    “I apprehend that before any equitable adjustment of the respective rights of these parties should be attempted, they should each be placed in a situation approximating at least the situation they would have been in had no mutual mistake been made, at least so far as the circumstances will permit. Admitting the authenticity of the second will and' allowing it, necessarily nullifies all the preceding actions of these parties in relation to these lands and the proceeds thereof, so far as their individual rights and interests are concerned. The rights of third parties, however, are not involved. The plaintiff and the defendant have, in a sense, been a trustee each of the other, and before either can ask equitable relief, the other party must be placed upon an equal footing with the claimant. In other words, all acts of each resulting from the mutual mistake, must be regarded as of no lawful effect, and each placed so far as possible in-statu quo, to the end that their relative rights may be properly adjusted. Here the plaintiff insists upon holding the land and upon his right to dispose of it, or any portion thereof, for any price he may get. He also insists, upon retaining the rents and profits for the twenty and more years he has occupied the' premises, and makes no effort to return or account for them or any part thereof. He insists upon the proportionate share of a remainderman in the-proceeds of the sale made by the defendant to his father, and the interest thereon for something like 24 years, but offers no proof as to the amount of the rents and profits he has received,”
    and dismissed plaintiff’s bill with costs. From this decree plaintiff appeals.
   Broqke, J.

(after stating the facts). Assuming that the learned circuit judge was correct in holding that the second will was in fact the last will and testament of David J. Young, and likewise assuming that equity has jurisdiction in the premises (In re Butts Estate, 173 Mich. 504, and cases cited), there yet remain several reasons in our opinion why plaintiff cannot succeed in this action. His second prayer for relief is:

“That the will of November 18, 1891, and all orders and proceedings based thereon, be set aside and held for naught insofar as so doing will not disturb any title based thereupon.”

In other words, he prays that the- first will, which was admitted to probate, may be considered as the last Will and testament of David J. Young for the purpose of making a good title to the 220 acres of land which Ella O. Young deeded to his father for $11,000, 146 acres of which were deeded by his father to himself and some portion of which he himself deeded with full covenants of warranty to Carl D. Young for $9,000. All these conveyances rest for validity upon the propriety and legality of the proceedings in the probate court which declared the will of November 18, 1891, to be the last will and testament of David J. Young. The positions occupied by plaintiff are inconsistent. He cannot elect to treat the first will as the last will and testament of David J. Young for the purpose of basing his title thereon to a portion of the lands conveyed thereunder, and at the same time elect to consider it invalid for other purposes. In the recent case of Hawley v. Dibble, 184 Mich. 298, it is said:

“In the instant case the defendants, who are trying to contradict the terms of the deed in this respect are claiming an undivided half interest in the lots by force of the same deed. They do not accept the instrument as a whole. They accept what is favorable. This is just what the Jacobs Case holds they-ought not to be permitted to do.” Jacobs v. Miller, 50 Mich. 119.

See, also, Stone v. Cook, 179 Mo. 534, where the rule is announced:

“A person cannot accept and reject the same instrument, pr, having availed himself of it.as to part, defeat its provisions in any other part; and this applies to deeds, wills, and all other instruments whatever. [Citing authorities.] This doctrine of election, which prevents the assertion of repugnant rights,'is but an extension of the law of equitable estoppel.”

In connection with the application of this rule to the case at bar, it must be noticed that plaintiff himself, on March 16,1915, more than two years after the discovery of the alleged second will, deeded a portion of the-146 acres with full covenants of warranty, basing his right to make such conveyances upon the first will and the probate thereof.

The judicature act, Act No. 814 Pub. Acts 1915 (3 Comp. Laws 1915, § 12311; Cummins & Beecher, § 434), provides:

“Section 1. Hereafter no person shall bring or maintain any action for the recovery of any lands, or the possession thereof, or make any entry thereupon, unless such action is commenced or entry made within the time herein limited therefor, after the right to make such entry or to bring such action shall have first accrued to the plaintiff, or to some person through whom he claims; * * * or through a devise in any will which shall have been probated in this State for fifteen years, during which period no suit in chancery has been brought to test the validity of such devise : Provided, That in cases where such fifteen-year period has already elapsed such rights of entry or actions shall be barred after two years from the passage hereof, or in case such right has not accrued, then after two years from the accruing thereof.”

This legislation first appears upon the statute books in its present form as Act No. 243, Pub. Acts 1911. With reference to this, statute, counsel for appellant say:

“It is apparent that this statute applies only to suits brought to compel a reconveyance or entry upon lands. The plaintiff in this case is not asking for a reconveyance of the land or attempting in any way to make an entry thereon or to affect anybody’s title. Technically, it might be said that our bill is divided into two parts: first, to have the last will established, and second, to recover from Mrs. Young the portion of the money we are entitled to by reason of the devise contained in the last will.”

We are of the opinion that this position is not tenable. It is apparent that the $11,000 for which the defendant, Ella O. Young, sold the land stands in place of the land itself, and we think that the statute which clearly bars recovery of the land should also bar recovery of the fund which was received upon its sale. Plaintiff himself had it within his power to avoid the effect of this statute because he learned of the second will within two years from the passage of the act, to wit, March, 1913. A court of equity will usually apply the principles of a statute of limitation by analogy. In re Sellman’s Estate, 175 Mich. 700; Hatch v. Village of St. Joseph, 68 Mich. 220; and Smith v. Davidson, 40 Mich. 632.

Plaintiff in this suit seeks to recover a portion of the purchase price paid to Ella O. Young for the farm in question by a third party. There is no privity between plaintiff and defendant in respect to the cause of action. Assume that defendant had sold the farm to a stranger and that her vendee was now in possession thereof, upon establishing his rights to the reversion in said farm, plaintiff would have a right to proceed against the vendee upon the termination of the life estate. That plaintiff is precluded from taking this course by reason of his own acts in dealing with the title in reliance upon the first will, affords no argument for the propriety of his present claims. In addition to the reasons assigned by the learned circuit judge we are of opinion that the plaintiff’s bill might properly have been dismissed upon any of the grounds above set forth.

The decree is affirmed.

Bird, Moore, Steere, Fellows, and Stone, JJ., concurred.

Ostrander, C. J., and Kuhn, J., did not sit.