text:
    PEOPLE v. COSTON.
    1. Evidence — Criminal Law — Rape—Complaints.
    On the trial of a respondent charged with statutory rape, the prosecutrix was properly allowed by the court to explain ' why she had not made complaint to her parents.
    2. Same — Previous Relations.
    It was competent to permit her to testify to previous acts of intercourse with the accused.
    3. Same — Witnesses—Complaints.
    But her sister who witnessed acts of intercourse could not offer an explanation why she had not disclosed her sister’s delinquency to her parents.
    4. Same — Other Offenses.
    The admission of testimony of the said witness, who was under the statutory age of consent, that she had had intercourse with respondent was erroneous and prejudicial; but her statements relative to acts of familiarity of prosecutrix with respondent were admissible in evidence.

    5. Same — Experts.
    The court also erred in excluding from the jury the opinion of a medical witness offered by respondent whether or not a man of respondent’s age, i. e., 75 years, and with a weak back and other ailments, could have committed the offense under the circumstances detailed by the victim.

    6. Same — Cross-Examination—Physical Disability — -Impotency.
    Liberal rules should be applied in the examination of such respondent touching his ability to have intercourse.
    7. Same — Trial—Instructions.
    The respondent was warranted in attempting to establish an alibi at the time that the prosecution elected to prove the commission of the offense.
    8. Same — Cross-Examination—Settlement.
    The State was also correctly allowed on cross-examination of respondent to show the amount which he paid the mother of complainant in an alleged settlement of the wrongful act, his testimony on direct examination haying brought out the fact that her mother had demanded a money settlement.
    Error to Muskegon; Sullivan, J.
    Submitted June 17, 1915.
    (Docket No. 102.)
    Decided July 23, 1915.
    Lafayette R. Coston was convicted of assault with intent to commit rape.
    Reversed.

      Harris E. Galpin, Prosecuting Attorney, and Christian A. Broek, Assistant Prosecuting Attorney, for the people.

      R. J. Macdonald and Harry W. Jackson, for respondent.

       As to evidence of other crimes in prosecution for rape, see notes in 62 L. R. A. 314, 322, 329; 48 L. R. A. (N. S.) 236.

       As to impotency or senility as defense to prosecution for rape or assault with intent to commit rape, see note in L. R. A. 1915 B. 131.

   Under an information charging defendant with statutory rape upon the person of one Ida Hopper, 14 years of age at the time of the commission of the alleged offense, defendant was convicted of the lesser and included crime of an assault with intent to commit rape.

The complaining witness gave evidence tending to show that between 3 and 4 o’clock on the afternoon of July 6, 1914, she, together with her mother and older sister Anna, were picking cherries upon the premises of the defendant; that having filled her basket with cherries she repaired to the barn, where the defendant was engaged in packing the fruit for the market ; that, arrived in the barn, the defendant laid hold of her, taking her into an unused coal bin located in one end of the barn, where, despite her protests and struggles to free herself, he succeeded in throwing her down and having sexual intercourse with her. She was permitted to testify, over objection, to other acts of intercourse with the defendant occurring at intervals of about one week for a period of nearly two years prior to the date of the offense counted upon in the information. Having testified that she made no outcry at the time of the alleged occurrence, and told neither her father nor her mother of what had happened immediately after the occurrence, she was permitted, over objection, to give her reasons for not disclosing the alleged facts to her parents.

The prosecution then placed upon the stand her elder sister, Anna Hopper, who gave testimony tending to show that upon several occasions prior to April, 1914, she had been present when the defendant had had sexual intercourse with her younger sister Ida, the complaining witness. Over objection this witness was permitted to testify that prior to April, 1914, she herself had upon more than one occasion had sexual intercourse with the defendant in the same place where the offense charged was alleged to have been committed.

The information under a videlicet charged the offense to have been committed upon the 8th day of July. The complaining witness fixed the date as “a little after the 4th of July.” The witness Anna fixed the date positively as Monday, July 6th.

Defendant was sworn in his own behalf and denied absolutely having ever had sexual intercourse with the complaining witness. On direct examination the following occurred:

“Q. When did you first hear of this complaint that is alleged against you ?
“A. What day?
“Q. Yes. What was that day — what day and what month.
“A. Well, it was the 26th or 27th of August, I think. It was the day before my son-in-law went away, and I think he went on the 27th.
“Q. And who did you learn it from?
“A. I learned it over the phone.
“Q. Over the phone?
“A. Yes, sir.
“Q. Did you have any conversation with Mrs. Hopper in the presence of her daughter Ida, after that time?
“A, Yes, sir; the next day I think it was.
“Q. What did they want?
“A. Why, they wanted a settlement. They wanted me to settle with them.
“Q. They wanted money?
“A. Yes, sir.”

Upon cross-examination the prosecution was permitted, over strenuous objection, to inquire into the details of a conversation testified to by the defendant, and to show that, as a result of such conversation, the defendant had paid to the mother of the complaining witness the sum of $1,000. After having received defendant’s version of what occurred at the time of the payment of said sum, the prosecution was permitted, also over objection, to introduce testimony tending to contradict many of defendant’s statements as to what occurred at the time the money was paid.

Defendant gave evidence tending to show that, at the time of the commission of the alleged offense, he was upwards of 75 years of age; that he had suffered from a lame back for years; had been afflicted with a double hernia for about 30 years; that he wore a double truss, with which he endeavored to hold the hernias in position; that he was unable to stoop; and that any sudden movement would cause the hernias to escape from the truss. Further examination as to the physical condition of the defendant was prohibited by the trial judge and an exception taken.

Defendant called as an expert a physician and surgeon of 18 years’ experience, to whom the following questions were propounded:

“Q. Would it be possible for a man of 75 years of age, suffering from a weak back and a double hernia or rupture and wearing at the time a double truss, which would be liable to slip or be moved from coughing, sneezing, a quick movement, stooping over, or lifting, and who for 10 years prior to the death of his wife, now deceased, had not consummated the marriage relation, and for that time — for that length of time had been free from sexual passions or desire, and who for 3 minutes struggled with a girl 14 years of age, so as to force her into a position where he could have intercourse with her, what would you say as to his capacity, having had to exert his strength over this 14-year-old girl to place her in this position, what would you say, in your opinion as a physician and surgeon, would be his capacity to consummate intercourse with her at that time and immediately upon that struggle ?
“Q. This man, 75 years of age, has a double truss on, and the girl, of 14 years of age, wouldn’t it be necessary for that man, with a weak back, a continued weak back, as it appears in this case, wouldn’t it be necessary for him to have consent and freedom upon the part of the girl and help tb have that intercourse?”

The court excluded the questions, and the following occurred:

“The Court: I have sustained the objection.
“Mr. Macdonald: I was just adding to my question. I want this record—
“The Court: I think you have made it.
“Mr. Macdonald: Well, it is for me to make it, Judge.
“The Court: Well, when I think you have made it, you had better let it go at that.
“Mr. Macdonald: I except to that too, because I represent my client.
“The Court: I think you have gone as far as anything in the testimony would warrant.
“Mr. Macdonald: We have things in relation to this matter that we can show, if this was admitted, that would bear this through.
“The Court: I think you have gone as far now, in the examination of this witness, as any testimony, under any condition, would warrant you in doing in relation to the condition of this old man and the girl. I can’t see that any further examination will avail you anything in making a record.
“Mr. Macdonald: I take an exception. That is all, Doctor.
“Mr. Galpin: That is all, Doctor.
“The Court: What the court has said is based entirely upon the line of examination, which I presume would be followed by a similar line.
“Mr. Macdonald: Of course, I called this witness out of the order because he had to go away, if your honor please. That is why I called him at this time. Would it be any different if it was after I—
“The Court: No, it wouldn’t make any difference. Assuming the facts you had in your question, the ruling would be the same.
“Mr. Macdonald: I have other testimony of the same character and along the same line to tender, if your honor please. Would the same ruling be made as to that?
“The Court: It would be; yes, sir.
“Mr. Macdonald: And it would be needless for me to present it?
“The Court: It seems to me that—
“Mr. Macdonald: I mean as the court looks at it now.
“The Court: Yes, sure.
“Mr. Macdonald: Because I don’t want to take the time to bring in other physicians—
“The Court: No.
“Mr. Macdonald: —if that would be the ruling.
“The. Court: Yes, sir.
“Mr. Macdonald: Exception.”

Defendant gave evidence tending to show that, on the afternoon of July 6th, he was absent from his home, having gone to a hotel some miles distant for the purpose of collecting refuse for his hogs. This testimony received some corroboration from other witnesses sworn on behalf of the defendant. Defendant’s tenth request to charge (which was refused) follows:

“The defense has introduced evidence tending to show that, at the time when the offense charged was claimed to have been committed, the defendant was at another place; that he was not at the place where the offense is supposed to have been committed at the time charged; and I charge you that, if there is any reasonable doubt in your minds as to whether the defendant was at some other place at the time the offense charged is claimed to have been committed, you should give this defendant the benefit of any such doubt and acquit him.”

Without mentioning the claim of an alibi on the part of the defendant, the court charged the jury as follows:

"It is charged that ‘on, to wit, the 8th day of July, 1914, at the township of Norton, in the county of Muskegon aforesaid, in and upon Ida Hopper, a female child under the age of 16 years, to wit, of the age of 14 years, Lafayette R. Coston feloniously did make an assult and her the said Ida Hopper then and there feloniously did unlawfully and carnally know and abuse.’ You will notice that in the information it is charged that upon the 8th day— There has some proof been put in here tending to fix the offense, perhaps, on the 6th day, or perhaps from the proof here you may not be quite well satisfied in your mind as to what the exact day was. The exact date is immaterial. The question is: Did this man make an assault upon this girl and did he know her carnally, and is she under the age of 16 ? Those are the matters contained in the principal charge.”

Brooke, C. J.

(after stating the facts). There are some 90 assignments of error, only a few of which we will notice. The first 4 assignments relate to the Tuling of the court permitting the complaining witness to give her reasons why she had not told her parents of the alleged assault upon her. The ruling was proper. People v. Marrs, 125 Mich. 376 (84 N. W. 284), and cases there cited.

The fifth assignment of error refers to the ruling of the court permitting the complaining witness to testify to previous acts of sexual intercourse between herself and defendant. No error was committed. The rule that previous acts of familiarity between the parties may be shown has obtained in this State at least from the time of the decision in the case of People v. Jenness, 5 Mich. 305.

Error is next assigned upon the ruling of the court permitting the witness Anna, who had testified to witnessing previous acts of sexual intercourse between the defendant and her sister Ida, to explain why she had not told her father and mother of the occurrences. We are of opinion that this was an erroneous ruling. The rule permitting the complaining witness to give her reasons for not reporting the commission of the offense to her parents should, we think, not be extended. 33 Cyc. p. 1460.

Error is assigned upon the admission of the following questions and answers in the examination of Anna Hopper, the people’s witness:

“Q. Were you ever in the coal bin there with Ida prior to last April, in her presence, and with Mr. Cos-ton there, that you had an act of intercourse with Mr. Coston?
“A. Yes, sir.
“Q. More than once?
“A. Yes, sir.”

The record discloses that this witness was 16 years of age on the 7th day of April, 1914. The acts of intercourse, therefore, to which she was permitted to testify, occurred at a time when she was under 16 years of age, the statutory age of consent. We are of opinion that the admission of this testimony was clearly erroneous and highly prejudicial. If true, it proved defendant guilty of a distinct and independent crime with which he was not charged in the information. It does not come within the rule announced in the case of People v. Seaman, 107 Mich. 348 (65 N. W. 203, 61 Am. St. Rep. 326), and kindred cases, where distinct and independent felonies may be shown where a felonious intent is an essential ingredient of the offense charged, and the act done is claimed to have been innocently or accidentally done, or by mistake, or the result is claimed to have followed an act lawfully done for a legitimate purpose, or there is room for such an inference. The claim of the prosecution that such evidence was admissible and necessary in order to explain why the witness Anna Hopper had not related to her parents the alleged occurrences is in our opinion untenable. Her testimony as to what she saw touching the familiarity of the defendant with the complaining witness prior to the commission of the alleged offense was admissible. Her reasons (which included her own alleged sexual intercourse with the defendant) why she did not disclose her sister’s delinquency to her parents were inadmissible.

We are of opinion that the questions asked the expert witness should have been answered. It is true that the question contained some alleged facts not at that time appearing in the testimony, but the'colloquy between the court and counsel indicates that counsel expected to supply this deficiency of facts, but was advised by the court that it would be unnecessary to do so, and that the ruling would be the same. People v. Sessions, 58 Mich. 594, at page 599 (26 N. W. 291). We think it can hardly be said that the ordinary layman is as well prepared to judge of the ability to perform the sexual act possessed by a man of the age of the defendant and suffering from such physical disabilities as the defendant possessed at the time of the commission of the alleged offense. We think, too, that the fullest latitude should, have been permitted in the examination of the defendant touching his capacity to perform the sexual act under the circumstances related by the complaining witness.

While it is true that it is unnecessary to charge in the information the exact date upon which the offense was alleged to have been committed, it is equally true that, having by the testimony fixed the date of the offense as having occurred upon a day certain, the defendant could meet the charge by showing that at the time he was not present, and therefore could not have committed the offense as charged. We are of opinion that the tenth request to charge should have been given, and that error was committed in its refusal.

The assignments of error based upon the cross-examination of the defendant relative to his payment of $1,000 to the mother of the complaining witness are without merit. He himself had testified on direct examination to the fact that a settlement (money) had been demanded of him. Having given this testimony, the door was open to the prosecution to inquire into all the facts and circumstances relating to the transaction.

We find it unnecessary to consider the many other assignments of error. The judgment is reversed, and -a new trial ordered.

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

The late Justice McAlvay took no part in this decision.


source: Caselaw Access Project

author: Brooke, C. J.

license: Public Domain

text:
    KLEINKE v. OATES.
    Equity — Criminal Law — Injunction—Game Laws.
    As a rule, criminal prosecutions cannot be restrained by injunction and hence equity will not prohibit the game warden from carrying out the provisions of statute by prosecuting several defendants for illegally using pound nets with a two-inch mesh. If, as contended by respondents, the use of the nets is lawful under Act No. 188, Pub. Acts 1911, the defense may be interposed in the criminal prosecution. See Act No. 28, Pub. Acts 1887, and Act No. 97, Pub. Acts 1913.

    Appeal from Menominee; Flannigan, J.
    Submitted June 17, 1915.
    (Docket No. 103.)
    Decided July 23, 1915.
    Bill by Richard Kleinke and others agaist William R. Oates, as game and fish warden, for an injunction and other equitable relief. From an order sustaining a demurrer to the bill of complaint, complainants appeal.
    Affirmed.

      George Barstow, for appellants.

      Grant Fellows, Attorney General, and James A.Greene, Assistant Attorney General, for appellee.

       For authorities discussing right to injunction against criminal proceedings in general, see notes in 21 L. R. A. 84; 2 L. R. A. (N. S.) 631; 25 L. R. A. (N. S.) 193; 34 L. R. A. (N. S.) 454.

   Brooke, C. J.

The complainants in this case file their bill of complaint against the State game, fish, and forestry warden, setting out that they are engaged in the business of fishing with pound nets in the waters of Green Bay in the county of Menominee; that they propose to use nets with a mesh two inches extension measure; that their authority for the use of such nets is to be found in Act No. 188, Pub. Acts 1911; and that the defendant, claiming'that the use of such nets in said waters is unlawful, threatens to prevent them from such use and to take them from the water and retain possession thereof, in such manner preventing complainants from engaging in the business during the month of September, 1914. Complainants pray:

“That upon the final hearing hereof, the defendants may be restrained by the order and injunction of this court from interfering in the waters of Green Bay in said county of Menominee with your orators in the use of pound net pots with meshes of two inches extension measure, as manufactured, for the purpose of catching or taking perch, herring, and other rough fish, in accordance with the provisions of Act No. 188, Public Acts 1911, of the State of Michigan.”

To this bill of complaint defendant interposed a demurrer as follows:

“(1) That a court of equity has no jurisdiction to entertain the bill of complaint and to grant the relief sought therein, or any part thereof as prayed in complainants’ bill of complaint.
“(2) That said complainants have a full, adequate, and complete remedy at law.
“(3) That the said bill of complaint seeks to restrain criminal prosecutions for violations of law and to restrain public officials from performing their official duties and exercising their official functions as prescribed by law.
“(4) That the bill of complaint filed in this cause by complainants is in effect a suit against the State of Michigan.
“(5) That Act 188, Public Acts of 1911, under which complainants claim the right to relief, is a local or special act not containing a referendum, and therefore unconstitutional and void.” •

Upon argument the court below sustained the demurrer upon the ground that Act No. 97, Pub. Acts 1913, repealed Act No. 188, Pub. Acts 1911.

We find it unnecessary to consider the question discussed at large in the briefs of both counsel and upon which determination was based in the court below. We are of opinion that the second and third grounds of demurrer are well taken, and that the action of the circuit court must therefore be affirmed.

In principle the case is upon “all fours” with that of Osborn v. Circuit Judge, 114 Mich. 655 (72 N. W. 982). We there said:

“It is a general rule that criminal prosecutions cannot be restrained by injunction. Once have it understood that they may be, and the public would labor under additional embarrassment to the already great obstacles to the prevention of crime. There is no excuse, upon reason or authority, for enjoining the prosecution of the complainant for violations of the law providing for a close season. If the law were unconstitutional, it would be available by way of defense to the criminal charge, and therefore no occasion for chancery to take jurisdiction for the want of an adequate remedy at law. See Mechem, Pub. Off. § 992, and cases cited. It has never been found necessary or expedient that the validity and construction of criminal laws should be determined in chancery, for the guidance of courts of criminal jurisdiction.”

Section 2 of Act No. 28, Pub. Acts 1887, as amended, defines the duty of the State game and fish warden, and authorizes criminal proceedings under and by virtue of any laws “now existing or hereafter enacted.” The relief sought by the bill, in effect, is to restrain a criminal prosecution.

All the reasons urged by complainants why an injunction should be granted would be available to them in defense of a criminal prosecution.

The judgment is affirmed.

Kuhn, Stone, Ostrander, Bird, and Steere, JJ., Concurred. Moore, J., did not sit.

The late Justice McAlvay, to whom this case was assigned, took no part in the decision.


text:
    SIMMONS v. NATIONAL LIVE STOCK INSURANCE CO.
    1. Witnesses — Insurance—Fraud—Matters Equally Within the Knowledge of Deceased — Principal and Agent.
    Where defendant insurance corporation issued policies upon three horses owned by plaintiff under separate applications for each animal and shortly thereafter plaintiff observed that one of the stallions was acting peculiarly, whereupon he called a veterinary, who remained with the horse until morning, and where plaintiff about 12 hours after noticing the condition of the horse sent a telegram to the defendant insurer, which was not transmitted, however, until about 4 hours later, also where plaintiff gave testimony tending to show that in making the application for the horse which died he informed defendant’s agent, since deceased, about the true facts as to buying the animal and delivering plaintiff’s note therefor, the testimony of the agent’s brother, who was a clerk in his office, as to whether or not decedent went over the applications with plaintiff before he signed them was not inadmissible on the ground that the testimony was equally within decedent’s knowledge.
    2. Evidence — Conclusions—Insurance— Fraudulent Representations.
    Where plaintiff claimed that as a part of the deal involving $5,000, of which $2,000 was paid in cash towards the purchase price of three stallions, and that the cash was to be applied upon or was paid for the insured animal which died, his explanation of why the transaction took place in -the manner claimed was not open to the objection that it stated a conclusion as to how the money was to be applied.
    S. Insurance — Stock Insurance — Notice—Question for Jury.
    It was not erroneous on the part of the trial court to submit to the jury the issue of whether or not plaintiff’s notice, sent by telegram to the defendant insurer, complied with, the provisions of the policy wherein it was stipulated that the insured should forthwith notify the company if the animal became sick; the term forthwith having the meaning of reasonable celerity or reasonable and proper diligence: what was a reasonable time depended upon the circumstances.
    4. Same- — Evidence—-Intent.
    Plaintiff was properly allowed by the trial judge to state that he did not intend to perpetrate any fraud upon the insurer in preparing and signing the application, where the court did not leave to the jury the matter of intent but instructed them that if plaintiff truthfully stated the facts and the agent filled out his application and, without reading the same over to the insured, caused him to sign the application without knowing that different facts were stated therein than those given by him to the agent he might recover and was not guilty of fraud.
    5. Same — -Trial—Striking Out Testimony — Exceptions—Appeal and Error.
    Defendant’s counsel was not entitled to sit by without objection and permit incompetent testimony as to facts equally within the knowledge of defendant’s deceased agent to be introduced and afterwards raise the objection by a motion to strike; the objection and exception should appear to have been made at the time the objectionable testimony was offered in evidence.
    Error to Gratiot; Searle, J.
    Submitted June 8,1915.
    (Docket No. 18.)
    Decided July 23, 1915.
    Rehearing denied December 22, 1915.
    Assumpsit by Orla J. Simmons against the National Live Stock Insurance Company upon a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      McCall Bros, and M. S. Meyberg, for appellant.

      O. G. Tuttle and Edwin H. Lyon, for appellee.
   On January 27, 1913, the plaintiff was the owner of three valuable stallions. Desiring to secure insurance upon them, he made application to the defendant company. A separate application was made as to each, horse, and the several applications contained representations as to the purchase price paid for each horse as follows:

“Gascon.
“Q. Was purchase price cash, trade, or both? If part trade, state what it consisted of. Ans. Purchase part trade and part cash, $2,250. Q. Cash paid for animal? Ans. $750. Q. Is purchase money all paid? Ans. Yes. Q. If not, for what sum, to whom, and when due? (Not answered.)
“Egypt.
“Q. Was purchase price cash, trade, or both? If part trade, state what it consisted of. Ans. Cash. Q. What amount did you pay in cash for the animal? Ans. $2,000. Q. Is purchase money all paid? Ans. Yes. Q. If not, for what sum, to whom, arid when due? (Not answered.)
“Hursus.
“Q. Was purchase price cash, trade, or both? If part trade, state what it consisted of. Ans. Cash. Q. Cash paid for animal? Ans. $2,000. Q. Is purchase money all paid? Ans. Yes. Q. If not, for what sum, to whom, and when due? (Not answered.) ”

The defendant company issued three separate policies, one upon each stallion, on the 29th day of January, 1913, for the premiums upon which plaintiff paid the sum of $290.

On November 28, 1913, at about 8:30. o’clock in the evening, the plaintiff noticed that the horse Gascon was acting in a peculiar manner. He watched him for a short time, when the horse started to eat, and plaintiff left him. Returning in about an hour, the horse was standing with his head "down, acting “kind of funny.” Plaintiff immediately called á reputable and experienced veterinary surgeon, who gave the horse some medicine and stayed with it about an hour, when it appeared to him to be all right. He instructed the plaintiff to stay with the horse and call him if it became worse. Its condition at or about midnight on the 28th caused the plaintiff to again call the veterinary, who responded at once, and the horse was removed to the stable of the veterinary surgeon, who worked with it all that night, treating it for indigestion and impaction. About 4 o’clock in the morning a second veterinary was called by telephone from a neighboring town, and both surgeons continued to work over the animal. At about 8:30 a. m. plaintiff filed for transmission a telegram to defendant company notifying it of the illness of the animal. The telegram was not actually sent, however, until 11:52 a. m., and was not received at Indianapolis, the home city of the defendant company, until after 1 p. m. that day. As soon as defendant company received notice of the condition of the horse, it secured the services of a third veterinary surgeon, who arrived at about 6 o’clock in the evening of the 29th. He remained with the horse until it died at 6 o’clock the following ‘morning, the 30th.

Shortly after the death of the horse, plaintiff filed proofs of loss, in which, under oath, he stated that he had paid $2,000 in cash for the horse. Defendant at once denied all liability under its policy, whereupon this suit was brought. The defendant filed a notice under the plea of the general issue, setting up, as matter of special defense, the alleged fact that the plaintiff had falsely and fraudulently represented the cost of the animal insured and the manner of payment therefor. Said notice further sets out that the insurance contract, among other things, provided that:

“The perils indemnified against by this policy do not include death from any cause, where the assured does not render forthwith by telegraph or telephone to the company at its home office, 504 Central Union Telephone Building, Indianapolis, Indiana, notice of any sickness or accident with which any of the animals hereby insured may become afflicted.”

The claim is made under said plea and notice that the telegram sent by plaintiff notifying defendant of the illness of the horse Gascon was not a compliance with this provision of the policy. Upon the trial, plaintiff testified, without objection on the part of the defense, to the following facts:

“At the time I made application for insurance on Gascon, I made application for insurance on Hursus and Egypt, and received policies for all three stallions at the same time. I paid $290 to A. E. Barstow, agent of the company, for' it as premium on said policies before I received the policies. Henry Barstow and A. E. Barstow were in the office together at the time. When I paid for these policies, I can’t just remember whether I made the check to A. E. Barstow or Henry Barstow, but I think A. E. Barstow. Exhibit 10 is the check by which I paid A. E. Barstow $290 premium. I delivered it to him at the time I got the policies I received February 13th. Mr. A. E. Barstow drew one and part of another of the applications and was taken sick and Henry drew the rest of them.
“Q. Did you read them?
“A. I didn’t.
“Q. Or were they read to you?
“A. No, they were not.
“Q. You didn’t read them you say?
“A. I didn’t.”

These facts were equally within the knowledge of A. E. Barstow, the agent of the defendant company, who wrote the insurance, and who was dead at the time of the trial. A motion having been made to strike out plaintiff’s testimony so far as the facts related were equally within the knowledge of the defendant’s agent, the court in the first instance granted the motion, but later reinstated the testimony. Plaintiff was permitted to testify, over objection, that, in signing said application, he had no intention of committing a fraud upon the defendant. The case was submitted to the jury upon two grounds i

(1) As to whether the plaintiff was guilty of fraud because of the alleged misstatements contained in the application.
(2) Whether the telegram sent by plaintiff to defendant on the morning of the 29th of November was a compliance with the policy requirement that a notice be sent “forthwith.”

Plaintiff had verdict and judgment.

Brooke, C. J.

(after stating the facts). There is no doubt that the statement appearing in the application for insurance upon the horse. Gascon, touching the question of the cost of said animal, is not in accordance with the facts. It appears that plaintiff bought three horses, a small piece of real estate, and some other personal property for $5,000. At the time he consummated the deal, he paid $500 down to bind the bargain. One thousand five hundred dollars further was paid at the time the property was delivered to him, and the balance of $3,000 was secured by two promissory notes of $1,500 each, indorsed by his father, falling due some time later. It was, however, claimed by the plaintiff, and his claim is borne out by the testimony of Henry Barstow, who was a brother of A. E. Barstow, the agent of the defendant company, and who for many years had been associated with his brother as clerk in the latter’s office, that he truthfully disclosed the facts attending the purchase. This witness testified explicitly to the fact that the plaintiff had told his brother, the agent of the defendant company, that he paid $2,000 for the horse Gascon, $1,500 for the horse Egypt, and $1,200 for the horse Hursus; that he had paid $2,000 in cash, and had given notes indorsed by his father for $3,000, the balance of the purchase price. An objection was made to the testimony of this witness upon the ground that the facts related in his testimony were equally within the knowledge of A. E. Barstow, defendant’s agent, and for the reason that no foundation was laid for the testimony, and it was therefore incompetent. The objection was overruled, the'testimony taken, and error is assigned thereon. We are of opinion that the ruling was correct. Henry Barstow was a clerk in his brother’s office. He was present probably all of the time, but certainly a large part of the time while the applications were being prepared by his brother. His brother was taken ill and left the office in the course of the transaction, and Henry Barstow completed the filling out of the applications. It certainly cannot be said that in so doing he acted as agent for the plaintiff. We are of opinion that his relation to the business in hand was practically that of his employer, who certainly would have been a competent witness to testify to the facts elicited from his clerk.

Error is assigned upon the ruling of the court permitting the plaintiff to disclose the details of his bargain with Mrs. Clark at the time he purchased the horses. It was his claim that the $2,000 cash paid at the time of the purchase was paid for the horse Gascon, for the reason that Mrs. Clark claimed that a note was still outstanding on said horse, and that it was necessary for her to have the cash to pay for that horse and some other obligations. It is urged on behalf of the defendant that this testimony should have been excluded, because it was the conclusion of the witness as to how the money paid was applied, and as to the details of the transaction. We do not think the testimony open to this objection. It was a narration,of alleged facts and not in any sense an assertion of the conclusions of the witness.

It is next urged that the court erred in submitting the question of the sufficiency of the notice to the jury. Many authorities are cited upon this point by defendant’s counsel, among them the following: Illinois Live Stock Ins. Co. v. Kirkpatrick, 61 Ill. App. 74; Green Brothers v. Insurance Co., 87 Iowa, 358 (54 N. W. 349); Alston v. Insurance Co., 7 Kan. App. 179 (53 Pac. 784); Johnston v. Insurance Co., 107 Wis. 337 (83 N. W. 641); Swain v. Insurance Co., 165 Mass. 321 (43 N. E. 105). Without determining whether the question should have been submitted to the jury (Griffey v. Insurance Co., 100 N. Y. 417 [3 N. E. 309, 53 Am. Rep. 202]; Carpenter v. Insurance Co., 135 N. Y. 298 [31 N. E. 1015]; McNally v. Insurance Co., 137 N. Y. 389 [33 N. E. 475]; Harnden v. Insurance Co., 164 Mass. 382 [41 N. E. 658, 49 Am. St. Rep. 467]) or passed upon by the court, we are of opinion /that the defendant vías not injured by such submission. Under the circumstances surrounding this case, as' disclosed by the record, we think that the sending of the telegram at 8:30 in the morning was a reasonable compliance with the “forthwith” requirement of the policy. We had occasion to consider the legal meaning of the term “forthwith” in the case of Walker v. City of Detroit, 138 Mich. 538 (101 N. W. 809). We there said:

“The term ‘forthwith’ does not in all cases mean ‘instanter,’ but may and often does have a relative meaning, and may mean ‘all reasonable celerity,’ or ‘all reasonable dispatch,’ ‘with reasonable and proper diligence.’ 13 Am. & Eng. Enc. Law (2d Ed.), p. 1157 et seq. And what is a reasonable time depends on the circumstances of each case. Anderson v. Goff, 72 Cal. 73 [13 Pac. 73, 1 Am. St. Rep. 34].”

The horse fell seriously ill about 10:30 p. m. From that time on during the night the plaintiff, part of the time with one veterinary surgeon and part with two, worked over him in a fruitless endeavor to save his life. He testified that he filed his telegram about 8:30 a. m. It was not actually transmitted until nearly 12 o’clock. This delay in transmission was apparently in no sense due to the negligence of the plaintiff. It should perhaps be noted that, while the policy requires “forthwith” notice by telephone or telegraph, the application signed by the plaintiff contains the agreement of warranty that he will send such notice “forthwith by registered mail or telegraph.” The policy makes the application a part of the contract, and the plaintiff would clearly have acted within his legal rights had he sent the notice by registered mail instead of telegram, in which event it would not have reached the plaintiff until a much later hour than the telegram, in fact, did. We think that the court might, with entire propriety, have withdrawn the question from the consideration of the jury and himself determined, as a matter of law, that the notice as sent was a reasonable compliance with the policy requirement.

Error is assigned upon the ruling of the court in permitting the plaintiff to testify that, in signing the application, he had no intention of committing fraud. The assignment is without merit, for the reason that the court, in submitting the question of fraud to the jury, instructed them:

“But I also charge you that in that respect it is the law in this State that if a party truthfully states the facts to the agent who fills out the answers to the questions upon the application, and the party securing the insurance does not read over the application and does not have it read over to him, so that he has no reason to believe or know that the application is' not exactly like the answers that he has made, then he may recover and is not guilty of fraud, even though the agent places different figures or different statements or answers to the questions than the party gave.”

It is therefore apparent that the question of intent was not submitted to the jury. We think this portion of the charge, which is the subject of an exception, is warranted under the following authorities: Michigan State Ins. Co. v. Lewis, 30 Mich. 41; Temmink v. Insurance Co., 72 Mich. 388 (40 N. W. 469); Van Houten v. Insurance Co., 110 Mich. 682 (68 N. W. 982); Perry v. Insurance Co., 147 Mich. 645 (111 N. W. 195); Clark v. North American Union, 179 Mich. 181 (146 N. W. 336).

The refusal of the court to strike out that portion of the testimony of the plaintiff relating to facts equally within the knowledge of defendant’s agent was correct. The testimony came in without objection or exception. Counsel cannot sit by and permit incompetent testimony to be introduced without objection and afterwards, when it is found to be unsatisfactory, have it stricken from the record. Berryman v. Graham, 21 N. J. Eq. 370; Quin v. Lloyd, 41 N. Y. 349; Barbier v. Young, 115 Mich. 100 (72 N. W. 1096). Other assignments of error, in our opinion, do not require consideration. .

The judgment is affirmed.

Kuhn, Stone, Ostrander, Bird, Moore, and STEERE, JJ., concurred.

The late Justice McAlvay took no part in this decision.


text:
    BARNARD v. JUDGE OF SUPERIOR COURT OF THE CITY OF GRAND RAPIDS.
    1. Elections — Corrupt Practices Act — Mandamus — Criminal Law.
    Where a candidate for the office of sheriff of Kent county filed a statement of his receipts and expenditures as required by section 4 of Act No. 109, Pub. Acts 1913, and thereupon the county clerk gave him written notice to file a new and corrected statement, as provided by section 7 of the act, and said new and corrected statement was thereafter filed, a prosecution cannot be based upon the falsity and incorrectness of the first statement, as it was clearly the intent of the legislature to permit candidates, after notice of failure to comply with the law, to file the required statement and thus avoid prosecution under section 8; and the action of the lower court in quashing an information based upon the first statement is affirmed.
    2. Same — Indictment and Information — Pleading — Criminal Law.
    Where the information was based upon a violation of the law by the first statement filed, and the prosecutor stated to the court that he sought a conviction solely by reason of the filing of the first false statement, prosecution cannot be based upon the amended statement, even if, in fact, as contended by relator, it does not comply with the law; the prosecution should have been based upon said amended statement if intended to be relied upon.
    Mandamus by Edward N. Barnard, prosecuting attorney of Kent county, against Willis B. Perkins, one of the judges of Kent county, acting as judge of the superior court of the city of Grand Rapids, to require the respondent to vacate an order quashing an information against Charles A. Berry for violation of the corrupt practices act.
    Submitted July 12, 1915.
    (Calendar No. 26,820.)
    Writ denied July 23, 1915.

      Edward N. Barnard, Prosecuting Attorney, in pro. per., and William K. Clute, Assistant Prosecuting Attorney, for relator.

      H. Monroe Dunham, for respondent.
   Brooke, C. J.

This is an application made by the prosecuting attorney for a writ of mandamus requiring respondent to vacate an order quashing a criminal information. The information contains five counts, and with great particularity in the several counts charges one Charles A. Berry, who was a candidate for the office of sheriff of Kent county, with having violated the provisions of Act No. 109, Pub. Acts 1913, commonly called the “Corrupt Practices Act,” in that on the 4th day of September, 1914, said Berry had filed with the county clerk of said Kent county an incomplete and untrue account and statement of the sums of money received and disbursed by him, and the debts and obligations of him in, of, for, and concerning his primary election expenses as candidate for the nomination for the office of sheriff in and for Kent county. Section 4 of said act requires every candidate to file a true and detailed statement of his receipts and expenditures within 10 days after any primary election. Section 7 follows:

“The several officers with whom statements are required to be filed shall inspect all statements of accounts and expenses relating to nominations, and elections filed with them within ten days after the same are filed; and if upon examination of the official ballot it appears that any person has failed to file a statement as required by law, or if it appears to any such officer that the statement filed with him does not conform to law, or upon complaint in writing by a candidate or by a voter that a statement filed does not conform to law or to the truth, or that any person has failed to file a statement which he is by law required to file, said officer shall forthwith in writing notify the delinquent person to comply with this act.”

Section 8 provides:

“Upon the failure of any person to file a statement within ten. days after receiving such notice, or if any statement filed discloses any violation of any provision of this act, the county clerk shall forthwith notify the prosecuting attorney of the county where said violation occurred, and shall furnish him with copies of all papers relating thereto, and said prosecuting attorney shall on such complaint or the complaint of any other person, forthwith enter the same in a docket kept for that purpose in his office, and within twenty days thereafter examine every such case, and if the evidence seems to him to be sufficient under the provisions of this act he shall, in the name of the people of the State, forthwith institute such civil or criminal proceedings as may be appropriate to the facts.”

The record discloses that on or about December 4, 1914, a complaint in writing was filed with the county clerk, charging that the account filed by said Berry was false and untrue. It further shows that thereupon the county clerk, as provided by section 7, supra, gave written notice to said Berry to file a new and corrected statement. It further appears that said new and corrected statement was filed on or about December 8, 1914. After a jury had been impaneled, counsel for Berry made a motion to quash the information upon the ground that, Berry having filed a new and corrected statement, under section 7, he was immune from prosecution for his failure to file a correct statement in the first instance. Section 5 of respondent’s return sets out the proceedings in the court below upon the consideration of the motion to quash:

“In answer to paragraph 5 of said petition, respondent admits all of the allegations therein contained, and, 'further answering said paragraph 5, respondent shows that the said relator, through his attorney, Mr. Clute, stated to respondent, as appears in said paragraph 5, that the information filed in said cause was heard solely upon the first expense account filed by the respondent in said cause, Charles A. Berry, and upon no other, as more fully appears in said paragraph.
“Respondent further shows that, on the same day, to wit, the 7th day of May, A. D. 1915, during the arguments of counsel, the said relator, through his attorney, Mr. Clute, as appears by the transcript of the record in said cause, stated to respondent that the relator claimed that the said respondent, Charles A. Berry, must at his peril file an accurate account of his expenses in the first instance, and that if he filed an incorrect account or untrue account in the first instance, he was guilty of a violation of this corrupt practice act, and this respondent, Willis B. Perkins, further shows that he then and there stated to relator as follows: ‘When section 7, which provides for an inspection by the county clerk of the statements or accounts of expenses so filed, and a notice of the county clerk to the candidate, if error is discovered or complaint is made with the county clerk to file a new and amended account, does not help him any, he is still amenable to the law and guilty of an offense under this corrupt practice act — that is your contention?’ Whereupon the said relator answered, ‘Yes, sir,’ and whereupon respondent further inquired of the said relator as to what he claimed under the information in said cause by asking of relator the following questions: ‘If he should file within the 10 days prescribed by the statute a correct statement of his accounts and disbursements, and that should remain on file in the county clerk’s office, then your contention is that because he did not file a complete one in the first instance he can be prosecuted under this act?’ Whereupon the relator answered, ‘Yes, sir,’ and respondent then inquired of relator as follows:
‘The Court: What is the purpose of the provision of the law which permits the filing of a second account to correct any omissions or errors in the first account?
‘Mr. Clute: That is up to the candidate.
“‘The Court: No; it is up to the court.
_ “ ‘Mr. Clute: I mean in regard to the correction of his account. The statute provides that within 10 days' after the primary election all of the candidates for all of the offices on the ticket shall file with the county clerk a full, true, and detailed account and statement subscribed and sworn to by him before an officer authorized to administer oaths, setting forth each and every sum of money received and disbursed by him, and also his debts and obligations during his campaign. That shall be done within 10 days.
‘Mr. Clute: What I have in mind is this: The offense was committed as charged in this information on the 4th of September. The fact that he filed subsequent accounts, it don’t make any difference how many he files, that don’t eliminate the proposition of the offense being committed on the 4th of September; that is the time that the offense was committed.
‘The Court: Now, just a moment. In other words, he must, at his peril, file an accurate account in the first instance.
‘Mr. Clute: Yes, sir.
“ ‘The Court: If he files an incorrect account or an untrue account, according to section 4, then he is guilty of a violation of this corrupt practice act.
“ ‘Mr. Clute: That is what we claim, if it is untrue and incomplete.
“ ‘The Court: Then section 7, which provides for an inspection by the county clerk of the statements or accounts of expenses so filed, and a notice by the county clerk to the candidate, if error is discovered or if complaint is made with the county clerk, to file a new and amended account, does not help him any; he is still amenable to the law and guilty of an offense under this corrupt practice act. That is your contention?
“ ‘Mr. Clute: Yes, sir.
“‘The Court: If he should file, within the 10 days prescribed by the statute, a correct statement of his receipts and disbursements, and that should remain on file in the county clerk’s office, then your contention is that because he did not file a complete one in the first instance, he can be prosecuted under this act?
“‘Mr. Chite: Yes, sir.
“ ‘The Court: That is your position?
‘Mr.i Clute: That is our position, that he is under obligation to file a correct statement in the first instance.
“‘The Court: Why, then, does the legislature provide for the filing of a subsequent and amended statement? What is the use of that provision if a man is guilty? He does not want to add to his guilt by filing another statement, does he?
‘Mr, Dunham: Or filing proof against himself.
“ ‘Mr. Clute: That is a matter for him to decide.
“ ‘The Court: No; it is up to the court. If he does not file a second one section 8 provides, “Upon the failure of any person to file a statement within ten days after receiving such notice,” proceedings shall-then be instituted on his failure to file the second statement?
‘Mr. Clute: Yes.
“ ‘The Court: Or if he should file a second statement and that proves to be erroneous, defective, or palpably incorrect, then the prosecutor is also to be notified and proceedings are to be instituted, but they are to be instituted upon the second statement?
‘Mr. Clute: No; they are instituted on the first — ■ either one, so far as that is concerned.’
“Respondent further shows that as appears by the above and foregoing record, as stated by relator, Mr. Clute, the offense charged in this information was committed on the 4th day of September, and as relator said: ‘The fact that he filed subsequent accounts, it don’t make any difference how many he files, that don’t eliminate the proposition of the offense being committed on the 4th of September; that is the time that the offense was committed.’ And upon said statement by the said relator, respondent assumed and believed that the said relator had abandoned any other claim under said information, and that he did elect and accepted the position stated herein by relator at the time of the trial.”

We are clearly of opinion that the court made a proper disposition of the matter. The position of the prosecuting attorney as disclosed by the colloquy between court and counsel shows that he sought a conviction solely by reason of the fact that Berry had, on September 4th, filed a false statement. An examination of the information itself, aside from the admission of counsel for the people, is conclusive upon this point. It is urged by relator, and was urged in the court below, that the information sets up the receipt and expenditure by Berry of various sums not contained in either the first or second account. As the second account is not in the record, we are unable to verify this claim. It is, however, of no importance, for the prosecution is based, not upon the fact that Berry filed an incorrect and false statement on December 8th, but that he had filed such a statement on September 4th.

A careful reading of sections 7 and 8, quoted above, convinces us that it was the legislative intent to permit candidates, after notice of their failure to comply with the law, to file the required statement and thus avoid prosecution under section 8.

The prosecution should have been based upon the amended account filed, in accordance with the statute, on December 8th, if, in fact, as is contended by the relator, it is not in compliance with the terms of the act.

The writ is denied.

Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


text:
    PATTERSON v. DETROIT UNITED RAILWAY.
    Street Railways — Automobiles—Negligence—Personal Injuries —Contributory Negligence.
    Plaintiff collided with one of defendant’s street cars as it turned across a street in the city of Detroit, near the city limits. He admitted that he noticed the car standing by one of the switches as he proceeded toward the city and that it was in motion the next time he looked at it between' the two tracks and was making a turn at the time; that he was about 16 feet from another switch but was running his motor about 7 or 8 miles an hour and did not know how fast the car was going; that when he saw the car approaching this switch he put on his brakes, the motorcycle skidded and the fender of the car struck the front wheel and caused plaintiff’s injury. He gave further testimony tending to show that he saw the car start to swing across the street in front of him, but stated it was going in another direction. Held, that the failure of the motorman to sound the gong was immaterial, since plaintiff already knew the direction in which the car was starting; also that defendant was not shown to have been guilty of any neglect.

    Error to Wayne; Collingwood, J., presiding.
    Submitted June 30, 1915.
    (Docket No. 116.)
    Decided July 23, 1915.
    Rehearing denied December 22, 1915.
    Case by Wilbert Patterson against the Detroit United Railway for personal injuries. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      Abbott & Abbott and Charles Bowles, for appellant.

      Corliss, Leete & Moody, and Benj. S. Pagel, for appellee.

       As to liability of street railway company to one hit by swing of car on curve, see notes in 16 L. R. A. (N. S.) 890; 40 L. R. A. (N. S.) 133; L. R. A. 1915C, 604.

   Brooke, C. J.

Plaintiff, while riding west on Gratiot avenue in the city of Detroit upon a motorcycle, came into collision with a car of the defendant company, which was being turned at the city limits on said street. Plaintiff described the accident as follows:

“When I passed the first switch, I noticed a car standing by the second switch. • I was then between the first and second switches. I proceeded along toward downtown. I saw this car again after that. It was going which I thought was to Mt. Clemens. The next time I observed it, it was in motion and between the two tracks. It was then within 12 or 15 feet of the inside track and was making a turn at that time. It had gone about halfway from the switch to the inside tracks. When I first observed this car and the locality shown by it, I was about 15 or 16 feet from the second switch, the place of the accident.
“Q. About how far would it be from the end of this car to the place of the accident, the car I am speaking of; in feet, about how far would it be in feet — your best estimate of it?
“A. Well, about 15 feet.
“Q. About 15 feet. We will call ‘Y’ the place of accident; now where were you with reference to point Y, the place of accident, at the time you saw this car in the location of X?
“A. I was about 12 or 15 feet from the second switch.
“Q. About here some place, coming in that direction?
“A. Yes, sir.
“Q. All right. Now, when you first observed this car making the turn there, how fast were you running your motor at the time, do you think?
“A. About seven or eight miles an hour.
“Q. Did you notice, as to this" car, as to its speed at the time you saw it making this turn, or discovered it was about to make this turn ?
“A. The speed, I couldn’t; it came so quick on me, when it went around it kind of seemed to be gaining speed.
“Q. Well, you don’t know about how fast?
(‘A. No, sir; I don’t.
“Q. That is, in feet per minute you wouldn’t want to give an opinion?
“A. The first thing I did when I saw the car in this position was to apply my brakes, and my back wheel skidded about two or three feet. I put the brakes on good and strong. The street car came in contact with my front wheel, which tangled up in the fender and threw me against the car, which caused an injury to my knee. I was two feet from the curb when the car hit me. The car went by until the hind end was at the curb. I came in contact with the car, which dragged my front wheel and threw me against some part of the street car, I think the fender, which punched a hole in my kneecap and split it, and by me going against the car with such force threw me off the motorcycle to the ground, and that was all I knew for a couple of seconds until some D. U. R. employees came and picked me up. * * *
“Q. Now state whether or not this motorman gave you any signal of warning as you were coming along there of the fact of his intention to cut across your path.
“A. No, sir; he did not.”

On cross-examination he testified:

“When I saw the car in motion, I was about 15 feet from the first rail of the switch.
“Q. Well, now, which way did the car start to move?
“A. Why, as far as I know it looked as though it was going to Mt. Clemens.
“Q. And how far did it move along toward Mt. Clemens before it turned ?
“A. Well, I couldn’t say just how far,
“Q. Well, it wasn’t very far, was it?
“A. No, it wasn’t very far.
“Q. It was just beyond the point of the switch where it would turn?
“A. Yes, sir.
“Q. And as soon as it started it started in on the curv°?
“A. Yes, sir.
“Q. And just as soon as it started on the curve, that threw the front end of the car to the north?
“A. To the east side.
“Q. .And, of course, you knew it was starting to cross in front of you?
“A. Yes, sir.
“Q. And how far were you away from the car approaching, I mean, the curve, when you saw it turn toward the north?
“A. How far from the north?
“Q. No, how far from the first rail of the car track when you saw this street car turn toward the north on this curve; how far were you away from the first rail of the curve?
“A. When I noticed the street car curve?
“Q. No, when you saw it turn a little bit to the north, which was right after it started?
“A. Oh, about 12 or 15 feet.
“Q. Twelve or 15 feet. Then you were 12 or 15 feet, you were at least 12, and you were probably 15, feet away from the first rail of this curve when you saw the street car turn toward the north?
“A. Yes, sir.
“Q. And the car kept right on coming, didn’t it?
"A. Yes, sir.
“Q. Do you know how far it is from the point of this switch down here on the east-bound track over to the point to where you were struck?
“A. About 25 or 30 feet or more.
“Q. Twenty-five or 30 feet from here down that way, is that right?
“A. Yes, sir.
“Q. Then this street car must have run practically twice as far as you did in the same time, is that right?
“A. No, sir.
“Q. Well, why not?
“A. Because I was closer to the track than the street car was to me from the place of accident.
“Q. Oh, you were closer to the street car?
“A. No, I was closer to the track than the street car was to the place of the accident.
“Q. I want to know now the precise moment when the car started to turn toward the north, start onto the curve?
“A. When I noticed the car in motion?
“Q. Not when you saw it in motion, when it was turning?
“A. I didn’t see it turn; I saw it in motion.
“Q. When you saw it in motion, it was twice as far from the point of contact as you were, or was it closer to it?
“A. Well—
“Q. Just one thing. Give me the number of feet between that point and the front end of the car, and that point and you when you saw the car turning towards you, that is all I want (indicating on diagram).
“Mr. Abbott: I don’t know as I understand the question; maybe the witness doesn’t. Do you understand it?
“A. No, sir; I don’t. (Question repeated by reporter.)
“Mr. Pagel: The point of contact?
“Mr. Abbott: Do you understand the question?
“A. I understand it now, yes.
“Mr. Abbott: Answer it.
“A. I was about 20 feet from it.
“Q. The street ear then was 20 feet from the point of the accident?
“A. When it was making the turn, yes. * * *
“Q. Well, you were 15 feet away, and you were only running seven or eight miles, and you tell us you could almost turn a right angle, at least you could turn a city corner at that place or any place; why didn’t you turn to your left that time and not hit the car?
“A. Because I didn’t have a chance to.
“Q. Were you running so fast up to this car track that you didn’t have a chance to stop ?
“A. No, sir; I didn’t.
“Q. You didn’t have an opportunity when you saw that street car coming in on that track to stop ?
“A. Here is the question you asked me. You asked me how fast was it that I was going when I could turn south, you said why didn’t I turn?
“Q. Yes.
“A. I told you, no, sir; I couldn’t make the turn on account of the street car with the swing around the curve.
“Q. How much does it swing around the curve?
“A. It extends about two feet.
“Q. And not any more than two feet.
“A. Maybe more.
“Q. How much did it extend that day?
“A. Well, I can’t say just how much it extended.
“Q. Well, then, you were right up to the spot where you were hit before you fully realized you were hit?
“A. No, sir.
“Q. Well, you didn’t turn at all?
“A. No, sir.
“Q. You ran right into this car head on?
“A. I didn’t run into it; I put on my brakes.
“Q. But you hit the car head on?
“A. The street car hit me.
“Q. Well, you got there at the same time it did?
“A. Well, with the swing of the car which would beat me quicker.
“Q. Well, what part of the car was it you hit?
“A. The fender hit me.
“Q. Well, you hit the front of the car?
“A. The fender hit me.
“Q. You never got onto this curved track?
“A. No, sir.
“Q- You were still on Gratiot avenue, clear of the curve, when the car hit you ?
“A. Yes, when the car hit me.
“Q. And it was the right-hand fenders of the car hit your car?
“A. Yes, sir.”

The learned trial judge directed a verdict for the defendant upon the ground that the plaintiff had failed to prove negligence upon the part of the defendant company, or a lack of contributory negligence upon his own part.

In view of the fact that it is clear from the plaintiff’s testimony that he saw the car- start to swing across the street in front of him at the moment it' started, defendant’s failure to sound the gong is of no consequence, because such warning would only have served to place him in possession of notice which he already had.

We are of opinion that a verdict was properly directed for the defendant upon both grounds.

Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


author: Ostrander, J.

text:
    ALWARD v. BOARD OF SUPERVISORS OF OAKLAND COUNTY.
    1. Intoxicating Liquors — Erections — Recount — Locar Option Law.
    Certiorari is the appropriate remedy to review the action of the hoard of supervisors in suspending the operation of the general liquor law in a county, acting In accordance with a vote of the electors of such county, in pursuance of the provisions of Act No. 207, Pub. Acts 1889, as amended.
    2. Same — Process—Parties.
    Where the process was not directed to or served upon the board of supervisors, the court will decline to deliver judgment until that body has been given opportunity to make return, even though, upon the record presented, the action of the board ought to be quashed.
    3. Elections — Certiorari—Recount—Local Option Law.
    In certiorari proceedings to review the action of the board of supervisors of a county in recounting the votes cast at a local option election, acting under the provisions of Act No. S27, Pub. Acts 1913, providing for a recount of votes canvassed by boards of supervisors, where the only theory upon which the remedy is based is not supported by the record, the relief asked for cannot be granted.
    4. Same — Statutes.
    As to the„powers of the board of supervisors under Act No. 327, Pub. Acts 1913, in case of recount of ballots cast in a local option election — quwre.
    Certiorari by Neal Alward against the board of supervisors of Oakland county and others to review the action of said board in suspending the operation of the general liquor law in Oakland county.
    Submitted June 17, 1915.
    (Calendar No. 26,757.)
    Writ quashed September 15, 1915.
    Rehearing denied December 22, 1915.

      James H. Lynch and Charles S. Matthews (Fred A. Baker, of counsel), for plaintiff.

      Grant Fellows, Attorney General, L. W. Carr, Assistant Attorney General, Frank L. Doty, Prosecuting Attorney, Glenn C. Gillespie, Assistant Prosecuting Attorney, and A. L. Moore, for defendants.
   Ostrander, J.

At the election held April 5, 1915, in Oakland county, there was submitted to the electors the proposition: “Shall the manufacture of liquor and the liquor traffic be prohibited within the county?” It appears from the transcript of the record of the board of supervisors of Oakland county, about the accuracy of which no question is made, that on April 15, 1915, said board being in session, a committee of the board, earlier appointed, reported a canvass of the votes cast at the election which showed, in conformity with" the returns of the election inspectors, that 6,367 votes had been cast in favor of, and 6,334 votes had been cast against, the proposition; the total vote being 12,701. The report was accepted and adopted. Thereafter, apparently on the same day, the plaintiff in certiorari filed a petition with the board asking for a recount of all votes. A committee of the board entered upon the business of recounting the votes, sending for the various ballot boxes. This occupied the time until the afternoon of April 17th, Saturday, when the board adjourned until Monday, April 19th, at 9 a. m. During the forenoon of Monday the committee concluded the recount. On April 20th the board instructed the clerk to subpoena all election inspectors and election clerks of the first ward, first precinct of the third ward, second precinct of the fourth ward, and the fifth ward, to appear before the board; “Avon inspectors to be subpoenaed later.” During the afternoon a number of witnesses were examined. On April 21st the prosecuting attorney read to the board an opinion of the attorney general. At the afternoon session the committee reported, with a tabulation which showed slight changes from the returns in the vote in 14 precincts, a total vote of 12,662 — 6,318 no, and 6,344 yes, a majority for local option of 26. The report contains the following:

“In reaching the above conclusion, a recount of the entire vote was made in all the wards and townships of Oakland county, and it was found that there was a majority against local option of 22. Then, on advice from the prosecuting attorney and the attorney general, the following townships and wards were rejected and not considered, because ballot boxes from said townships and wards were not sealed as required by law. The official canvass of the committee appointed by 'the board of supervisors at this session was accepted.”

There follows a list of 17 voting precincts. The report was accepted and adopted, and the board then entered upon its record the statutory preamble and resolution and ordered its publication. It passed a resolution offering a reward of $1,000 for information leading to the arrest and conviction of any person or persons unlawfully tampering with the ballot boxes or unlawfully placing ballots in the ballot boxes of the township of Avon, or any wards of the city of Pontiac, after the close of the election held April 5, 1915.

There is a general law, according to which liquors may be manufactured and sold, in force in every county in the State, unless, by the votes of the electors of the county, its operation is' locally suspended and such manufacture and sale is prohibited in the county. The vote being in the affirmative, it is the duty of the board of supervisors to declare that from and after the 1st day of May, succeeding the election, it shall be unlawful to manufacture or sell liquors in the county. It is the duty of the board of supervisors to canvass the votes and declare the result of the election. In Paul v. Circuit Judge, 169 Mich. 452 (135 N. W. 283), it was held that the vote was the vital thing; the ministerial duty of the board to pass or not to pass the statutory preamble and resolution and publish the same depending upon the vote. Prior to the year 1913 no recount of such votes was provided for. The conclusion of the board, fraud or apparent mistake being excluded, was final. Thomas v. Abbott, 105 Mich. 687 (63 N. W. 984); Haehnle Brewing Co. v. Board of Supervisors, 156 Mich. 493 (121 N. W. 209).

In the general election law there is a provision for a recount of votes (1 Comp. Laws, § 3725), and various provisions of the law are calculated, if they are obeyed, to preserve ballots cast at an election, so that they may be re-examined and counted. Considering them, it was held that a recount could be had only in cases where the recounting board could find, from an inspection of the ballot box, that the statutory requirements for the preservation of the ballots, as cast, had been observed. May v. Board of Canvassers, 94 Mich. 505, 511 (54 N. W. 377); Keith v. Wendt, 144 Mich. 49 (107 N. W. 443); Ward v. Culver, 144 Mich. 57 (107 N. W. 444). The primary election law, Act No. 4, Extra Session 1907, and Act No. 281, Pub. Acts 1909, provide for a recount of votes. Ritze v. Board of Canvassers, 172 Mich. 423 (137 N. W. 964). See, also, Bradley v. Board of State Canvassers, 154 Mich. 274 (117 N. W. 649). In Keith v. Wendt, supra, it was said:

“We held, in May v. Board of Canvassers of Wayne Co., 94 Mich. 511 [54 N. W. 377], that, where it was claimed that the ballot box had been tampered with, it was the duty of the board to cause the box to be brought before it and make an investigation. It was also said that such investigation would be confined to an inspection of the box itself. It was not determined in terms that the board must, as a prerequisite to a recount, find that the box had been sealed as the statute requires; but we think such a view was foreshadowed. Further consideration has strengthened our belief that there can be no certainty in proceedings under this statute, if boards are permitted to set up standards of their own in regard to the steps necessary for the preservation of the ballots cast. The test must be this: Have the ballots been preserved as the law directs ?”

In Ritze v. Board of Canvassers, supra, it was said:

“The board of canvassers took the testimony of the primary election inspectors, with reference to the condition of the box. They likewise compared the poll list used in said precinct with the enrollment book. They had no authority to do either.”

In Bradley v. Board of State Canvassers, supra, we said:

“Whát is provided for is a recount — another count —of the ballots.”

The law of the State being as here indicated, the legislature in 1913 made certain changes in the statutes. By Act No. 352, Pub. Acts 1913, the law which provides for the election of boards of county canvassers and defines their duties was amended, so as to provide that any candidate voted for at an election, or any qualified elector voting at the last preceding election, where a constitutional amendment or any other proposition had been voted on, may secure a recount of votes, and for this purpose the board is given power to cause ballot boxes to be brought before it and make a recount. No power is conferred to subpoena witnesses or to do more than recount the votes. But the returns made by the board upon recount are deemed to be correct, anything in the previous returns from said township, ward, or district to the contrary notwithstanding; and for error apparent upon the face of the returns, they may be “examined and corrected upon certiorari to the circuit court of the county.” Act No. 320, Pub. Acts 1913, is entitled:

“An act to provide for a recount of votes cast at an election for candidates for office, or proposed amendments to the Constitution or any other question or proposition which are canvassed by the board of state canvassers.”

This act empowers the board of State canvassers to recount votes and to require “any inspector of election, county officer,- or other person, to appear for any such purpose as may be desired,” to demand and cause the ballot boxes “and returns in connection with any such election to be brought before it.”

“The returns made by the said board of State canvassers of any recount shall be deemed to be correct, anything in the return of any board of election inspectors, or any county or district canvassing board to the contrary notwithstanding.”

Act No. 327, Pub. Acts 1913, is entitled:

“An act to provide for a recount of votes canvassed by boards of supervisors.”

It contains three sections. In the first it is provided that whenever a proposition is submitted to the electors, and the votes cast are canvassed by the board of supervisors of the county, any person voting in the county at the election, who considers himself aggrieved “on account of any fraud or mistake in the canvass of the votes by inspectors of election or the returns made by said inspectors,” may ask for, and, upon complying with certain conditions, may have, a correction of the mistakes or frauds complained of. The petition must be in writing, and set forth as near as may be the nature of the mistakes or frauds. By section 2 it is made the duty of the supervisors to appoint a committee from its members—

“to investigate the facts set forth in said petition. For such purpose the said board shall have power to cause the ballot boxes used in such election districts to be brought before said committee. Said committee shall thereupon in some public place where the persons interested, and their counsel, if they so desire, may be present, proceed forthwith to open the ballot boxes from such districts, townships or wards and to make a recount thereof as to said proposition, and for the purpose of recounting the votes upon said question, said board shall have the right to subpoena witnesses, administer oaths, and take all necessary proceedings to insure a correct count of the votes cast upon the proposition, and make correct and full return in writing under their hands to said board, showing the full number of votes given, the number of votes in favor of said proposition, and the number of votes against said proposition. As soon as the recount is completed, said board shall at once return the ballots to their respective boxes, carefully fasten and seal the same, and deliver them to the officer having the care and custody thereof. The returns made by the said board of supervisors upon recount shall be deemed to be correct, anything in the previous return from such township, ward or district to the contrary notwithstanding.”

By section 3 it is provided that any person may — ■

“for error apparent upon the face of the returns have the same examined and corrected upon certiorari to the circuit court of said county according to the rules and practices applicable to such rights. * * * For fraudulent or illegal voting or tampering with the ballot boxes before a recount by the board of supervisors, all legal remedies now existing shall remain in full force.”

Referring again to the record, we find that the prosecuting attorney of Oakland county, while the recounting of votes was going on, addressed to the attorney general a letter, advising him:

“(1) That the ballot box from Avon township had been tampered with, the seals were broken, and it was evident that some instrument had been used to pry off a hinge, and the lock was bent out of shape. The testimony of a township clerk tended to show the contents of the box were apparently the same as when the box was sealed. A recount of the votes in the box showed quite a material difference from the report filed by the election inspectors. The question is as to whether or not the board should accept the result of the recount of the ballots found in the box or accept the original report of the election inspector.
“ (2) The ballot box from Bloomfield township was not sealed as required by law. The end of the straps over the back of the hinges had not been sealed, neither was the lock sealed.
“(3) The seals of the ballot box from the township of Holly were broken. The township clerk testified before the committee that the seals were broken in bringing the box to Pontiac. In addition to this, however, there was never any seal upon the lock of the box.
“ (4) The seals upon the ballot box from the township of Independence were broken. The supervisor testified before the committee that this was caused by bringing the ballot box to Pontiac, and that the seals were unbroken at the time the box was placed in an automobile to bring to Pontiac.
“ (5) The seals on the ballot box from the township of Oakland were loosened. The township clerk testified that the seals would not stick to the box. In addition to this, there was never any seal over the lock.
“(6) The ballot box from the township of Pontiac was sealed by having a strap fastened to a handle which had to be turned in order to open up the slot in the box. There was no seal on the lock.
“(7) The seal on the ballot box from the township of Troy was loosened. This seal consisted of a piece of brown paper pasted over the opening. The clerk testified that the seals were loosened in bringing the box to Pontiac. In addition to this, no seal was placed over the lock.
“(8) The seal on the ballot box from the township of Waterford was broken. The clerk testified that he thought the seal must have been broken after the box was turned over to the board of supervisors. At no time was there any seal placed over the lock.
“(9) There was no lock on the ballot box from Orion, the lid of the box being nailed down. It was sealed on top and canvas nailed over.
“ (10) In the city of Pontiac no seal was placed over the locks of any of the ballot boxes from the five wards. Each ballot box had a slot in the top, over which a tin lid could be swung. On all of the boxes this lid was loose. The clerk testified that some of the lids were loose when the boxes were turned over to him, but that the remainder of them were broken loose in bringing the boxes before the committee.
“I am inclosing herewith copy of testimony taken before the board as to the condition of the ballot boxes, and I would like the opinion of your department as to whether or not the board of supervisors should accept the report of the election inspectors in these cases, or whether or not they should be governed by a recount of the ballots found in each ballot box.”

To this the attorney general replied, in substance and effect, that the duties of the board of supervisors in the premises were ministerial and that it seemed they could not properly “consider ballot boxes that have not been preserved and safeguarded in accordance with the specific requirements indicated by the statute.”

The writ of certiorari issued out of this court is directed to:

“The board of supervisors of the county of Oakland, Floyd B. Babcock, county clerk of the county of Oakland; Frank L. Doty, prosecuting attorney of the county of Oakland; Grant Fellows, attorney general of the State of Michigan; and the members of the board of supervisors of the county of Oakland.”

The return of the county clerk is:

“The execution of the within writ appears by the transcript of record hereto annexed.”

There is no return of the board of supervisors, and none of any member of the board. It does not appear that the writ was served upon the board, or upon any of its members.

For plaintiff in certiorari it is contended:

First. That the board of supervisors may be authorized to make conclusive and final determination of questions of fact; but questions of law arising upon the face of the record of their proceedings may be examined by the courts, and the action of the board annulled or affirmed as the law may require.
Second. That Act No. 327, Public Acts of 1913, is remedial legislation, which should be construed so as to effectuate the purpose of the legislature and advance the remedy.
Third. That, so construed, the act means that the board of supervisors has power to make a full investigation and inquiry, not as to the qualifications of those who voted, but as to the votes actually cast, as shown by the ballots; that it makes no difference whether the ballot boxes were sealed in compliance with law; the appearance and condition of the ballot boxes being circumstances to be considered in determining whether they do or do not contain the ballots actually cast at the election.
Fourth. That it affirmatively appears that, exercising the powers which they had under the act, the board found, upon evidence tending to support their finding, that the nay vote had a majority of 22, and this finding was not made the ground of action by the board only because of the erroneous and mistaken opinion of the attorney general. There has been a misconstruction of the act, an error of law, which should be corrected by quashing and holding for naught the preamble and resolution prohibiting the sale of liquors in Oakland county on and after May 1, 1915.

In the brief for defendants in certiorari it is said there are two questions of law to be determined:

First, whether this court has jurisdiction to grant the relief prayed for; second, whether the board of supervisors was justified in rejecting the recount from 17 precincts and accepting the returns of the inspectors of election for those precincts.

As to the first question raised by defendants, the argument, as it is understood, comes to this: That the statute provisions for recounting and for interference by the circuit court by certiorari together furnish the means — the method — for the ascertainment of the ultimate fact which, when found according to the method —using the means — prescribed, is conclusively found; the statute negatives the idea of judicial review except as expressly permitted. Upon the second point, the contention is that the powers of the board of supervisors under this statute are not other or different from those exercised by other canvassing boards in making a recount of votes, and that the decisions of the court which have been referred to respecting these powers are controlling.

Since suspension of the operation of the general liquor law in a county can be brought about only by affirmative action of the electors, a declaration of such suspension by the board of supervisors, without such affirmative action of the electors, would be void. If it appeared by the record of their proceedings that they had found the necessary affirmative action wanting, and had nevertheless declared the law suspended, the declaration ought to be annulled. For that purpose certiorari would be an appropriate remedy. That in the case supposed this court would have power to issue the writ cannot be doubted.

The court, however, would not annul or set aside the conclusion of any public body, if it appeared that its process was not directed to, and had not been served upon, that body. If we were of opinion that upon the record presented the action complained about in this proceeding — action of the board of supervisors — ought to be quashed, the court would decline to deliver judgment until the supervisors had been given opportunity to make return to the writ.

The premise of the argument and conclusion of plaintiff’s counsel, lacking which neither argument nor conclusion can in any case be supported, is that the defendant board found that the majority of votes cast at the election were nay votes. It is the theory of the plaintiff, and the only theory supporting the remedy he has chosen, that the board acted within its powers and arrived at and declared the conclusion just stated. This theory is not sustained by the record.

Assuming that they had the right to determine whether the ballots found in the boxes which were produced were the ballots cast on election day, they did not so determine. On the contrary, if we accept the clear meaning of the committee report, the committee recounted all of the ballots produced. There is nothing in the record to support the conclusion that, exercising the powers which plaintiff says they possessed, they determined whether any of the ballots were spurious, or determined that all of them were genuine. After concluding the count, they sent for witnesses and examined them. No counting was done thereafter. It is the necessary inference that, instead of determining what votes should be rejected, as they seem to have set out to do, they dismissed the subject by accepting the inspectors’ returns from 17 precincts upon advice.of the attorney general. It is to be inferred that if they had not followed his advice, and had proceeded according to original intention, they would have determined for themselves and declared in what precincts the votes ought to be recounted. What their conclusion would have been cannot be known. Plaintiff is not complaining that he did not secure a proper recount; that the board ought to have done something which it did not do. If he were so complaining, and dereliction of duty was made out, he could have no remedy in this proceeding.

It is plain, therefore, that the writ must be quashed whether we do or do not agree with plaintiff about the meaning of the law. Both the original and the subsequent canvass of votes, as made, support the preamble and resolution which plaintiff seeks to set aside. In the circumstances disclosed, in view of the fact that in any event the judgment in this proceeding must be the same, we express no opinion concerning the powers of the board of supervisors under the act of 1913.

Writ quashed. No costs.

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

The late Justice McAlvay took no part in this decision.