author: Brooke, J.

text:
    SCHATTLER v. DAILY HERALD CO.

      Í. Libel and Slander — Burden oe Proof.
    It is error, in an action of libel for publishing a charge that plaintiff stole a purse, to instruct the jury that the burden of proof was on the plaintiff to show the false and defamatory character of the words.
    2. Same — Words Actionable Per Se.
    Words charging a person with larceny are libelous per se.

    3. Same — Damages.
    Without proof of injury from the words, the plaintiff was entitled to recover the actual damages to his reputation and feelings which the law presumes will flow from the commission of the act.
    4. Same — Trial—Instructions to Jury.
    Error committed in charging the jury was not corrected by recalling them after they had deliberated two and a half hours, reading the detached paragraphs in question and rereading them in modified form.
    5. Same — Eyidenoe—Verbal Aot.
    Testimony of a conversation between the plaintiff and his wife concerning the purse, which was found by her on a train; the talk occurring after he met her and they were going from the station to the post office, was competent as a verbal act to show his intent.
    6. Same — Evidence—Criminal Law.
    That the prosecutor dropped the criminal case against plaintiff because of the latter’s ill health was not competent evidence.
    7. Same — Intent.
    Conversations of plaintiff and his wife with third persons, tending to show their intent, should have been received in evidence.

      8. Same — Reputation—Joint Libels.
    Articles published in another local paper, having a similar slanderous effect, could not be received in evidence to mitigate the damages, or for any other purpose.
    9. Same — Good Faith as Defense.
    Good faith in the publication of a libelous charge in no way affects the defendant’s liability to compensate the plaintiff for his actual damages to reputation or feelings.
    10. Same — Malice—Damages.
    Actual damages may be increased by reason of malice of the defendant, on the theory that the injury to the feelings is greater from a wrong wantonly inflicted than from a wrong done in good faith.
    11. Same — Conspiracy—Larceny.
    Plaintiff could only be guilty of larceny if he himself formed an intent to feloniously appropriate the purse, or aided and abetted his wife in so appropriating it, after she had commu. nicated to him her intent to do so, and a secret resolve on her part, inferable from conduct or words, would have no tendency to establish his guilt.
    12. Trial — Charge—Requests for Instructions to Jury.
    Error assigned on the refusal of requests to charge the jury, which are covered by the general charge of the court, does not warrant a reversal.
    Error to St. Clair; Tappan, J.
    Submitted April 12, 1910.
    (Docket No. 68.)
    Decided July 14, 1910.
    Case by John Schattler against the Daily Herald Company for libel. A judgment for defendant is reviewed by plaintiff on writ of error.
    Reversed.

      Elmer E. Stockwell and Frank B. Schell, for appellant.

      S. A. Graham and Walsh & Walsh, for appellee.
    This is an action of libel. On May 8, 1907, defendant published an article concerning plaintiff as follows:

      “DIAMOND THIEF IS NABBED THROUGH THE MEDIUM OF A DAILY HERALD LINER AD.
    “ For the Munificent Sum of Thirty-Four Cents, Port Huron Woman Recovers $300 Worth of Jewelry.
    “She Left Her Purse on the Train, Woman in Rear Seat Found It, and Gave It to Her Husband to Get the Reward.
    “ ‘ Lock me up. I am guilty of the theft and not my husband. Release him and I’ll take the blame.’ Statement made to the officers this morning by Mrs. John Schuttle.
    “The merits of the Daily Herald liner ads. have been heralded throughout the city and country, but never before has this well-known column played in the role of a detective, landing his prisoner and placing him safely behind prison bars. However, it did this Tuesday and today John Schuttle, who fell into the hands of the Herald’s sleuth, is posing in a cell at the county jail.
    “ How It Came About.
    “ Last Friday Mr. and Mrs. Timothy O’Brien, Erie St., this city, were returning home on a Pere Marquette train. Mrs. Schuttle and child, wife of the prisoner, were seated directly behind Mr. and Mrs. O’Brien. When the train arrived in Port Huron, Mrs. O’Brien got up and left the train. Upon her arrival home, she discovered that her pocketbook, containing sis gold rings, three of them set with diamonds, had been left behind. It dawned upon Mr. O’Brien that a liner in the Daily Herald might bring back the lost articles, and he inserted an ad. a day later. He was right. Tuesday morning, a man, well-dressed, and of medium build, appeared at the Herald office with the purse, inquiring for the reward offered for its return.
    “He Was Foxy.
    c c It was necessary for Mr. O’Brien to identify the pocketbook, and the office girl immediately telephoned him. The stranger became suspicious and left, saying that he would return later — but, he didn’t intend to, evidently, for he had started for the railway station. Oapt. Kerwin of the police department was called, and from a description of the person, furnished by the office staff of the Herald, the alleged thief was rounded up shortly after noon.
    “He Denied All.
    “Schuttle, when taken to the police station, denied having any connection with the theft, but when the question of a reward being offered for the return of the property was advanced by the officer, Schuttle willingly turned over the pocketbook and waited patiently for his share. He was locked up and a warrant for grand larceny issued.
    “ Tip to Others.
    “ Such is the story of the detective secretly hidden in the sanctum -of the Daily Herald liner columns, which cleared up a mystery, was the medium of returning several articles of jewelry, which in the least were valued at $400, and landed a thief in jail. The ad. cost Mrs. O’Brien 84 cents.”
    Which said libel means and charges the plaintiff herein with being a diamond thief, and being a thief; with having committed a felony by stealing a pocketbook containing $300 worth of jewelry, and also means and charges and insinuates that plaintiff stole said pocketbook and its contents for the purpose of getting a reward for returning it to its owner, and that he kept it and attempted by subterfuge, evasion, artifice, and deception to retain possession of the said pocketbook and its contents, until he should receive his “share” of the reward offered for its return, and that he only surrendered possession of said pocketbook when the officer intimated that he should receive his “ share” of the reward.
    It appears that plaintiff is a farmer, 27 years of age, and his wife, 23. They lived with the wife’s mother, who was Pere Marquette railroad station agent and postmistress at Abbotsford. On May 3, 1907, plaintiff was visiting in Port Huron. His wife on that day went from Abbotsford to Port Huron, arriving on the 11 o’clock a. m. train. The seat in front of her upon the train was occupied by a man, woman, and child, strangers to Mrs. Schattler. On leaving the train at Port Huron, Mrs. Schattler noticed a pocketbook lying in the seat in front of her, and took possession of it. On the platform she met her husband, the plaintiff, and together they claim to have made a search upon the platform, in the depot, and on the street to the post office for the owner of the purse. They did not find the owner, and then went to the home of Mrs. Shannon, plaintiff’s sister. There the purse was examined by plaintiff’s wife in his presence, and was found to contain some rings, and some change. The wife there told Mrs. Shannon about the pocketbook, but was not permitted to testify to what she said, nor to the conversation between herself and the plaintiff about the purse, upon the street, on the way from the station to the post office.
    The next day plaintiff and his wife returned to Abbots-ford. At the depot in Port Huron a police officer named Kerwin, in plain clothes, interrogated Mrs. Schattler about the purse, at which time she denied having found it, for the reason, she claims, that she did not know the man, or whether he had any more right to it than she had. Arrived at Abbotsford, she delivered the purse to her mother, who put it away. This occurred on Saturday. On the following Monday evening, plaintiff, his wife, and Mrs. Westbrook learned to whom the purse belonged, by reading the advertisement in the defendant’s newspaper. The next morning, May 7, Mrs. Schattler delivered the purse with its contents intact to the plaintiff, who immediately took the same to the office of defendant, and delivered it to a young lady in charge of the office. She told him she thought there was a reward offered, whereupon plaintiff said he would return in a little while. He left the office, went to a barber shop to be shaved, and then went out on Military street and watched the driving of some spiles. While standing there, Officer Kerwin approached him, and inquired if he had left a purse at the Daily Herald office. Plaintiff answered, “Yes.” Kerwin then asked him where he got it, and he replied that he found it at the Pere Marquette depot. Plaintiff claims to have made this statement to the officer, because he then knew him to be an officer, and recognized him as the same man who had questioned his wife the preceding Saturday, and he did not want to have her caught in a lie. Thereupon Kerwin arrested plaintiff, and a warrant was issued charging him with larceny. The next morning, the 8th, bail was fixed at $200, which was furnished, and the examination set for May 10th $ on May 10th the examination was adjourned to May 17th, upon which day the case was nolle prossed on motion of the assistant prosecuting attorney. On May 18th, plaintiff demanded that a retraction of the article complained of be published. This defendant refused. Suit having been brought by plaintiff, defendant, under its plea of the general issue, gave notice of justification.
    A verdict was rendered in favor of defendant, and judgment entered thereon. Plaintiff has removed the case to this court by writ of error.
   Brooke, J.

(after stating the facts). Plaintiff assigns error upon the charge of the court, which was in part as follows:

“With reference to the claims of the- parties, you are instructed that the burden is upon the plaintiff to convince you by a fair preponderance of evidence that the words complained of were false, in fact, and defamatory in character.
' ‘ To recover actual damages he must also convince you by a fair preponderance of the evidence that the plaintiff has suffered injury to his good name, health, feelings, and that those injuries resulted directly from thd publication of the article in the Herald of May 8th, 1907. * * *
“You are instructed that libel is a malicious defamation expressed in writing or printing, tending to impeach the honesty, integrity, or reputation of another.
“You are also instructed that printed words, falsely charging another with the commission of larceny, are actionable per se. That is, if it appears from the whole record that the words complained of charge plaintiff with being a thief or with committing larceny of the purse and property in question, and that such charge is false in fact and wholly unjustified by the defendant, then the law presumes that he has suffered at least nominal damages, that is to say, at least six cents damages.
“As I have explained to you, to determine whether larceny was in fact committed by Schattler and wife in. securing possession of the pocketbook and contents, * * * Mrs. Schattler had a right to take possession of the property to return it to Mrs. O’Brien, if she found her, and if she did not find her, then she had a right to turn it over to the conductor in charge of the train or the station agent.
“It is shown by undisputed evidence, that the conductor was present, and aided in the search for the property within five minutes from the time it had been left. Mrs. Schattler knew where he was.
“If she made search for Mrs. O’Brien, and could not find her, it was her duty to turn the property over to the conductor or the agent.
“ She would not be a trespasser in taking charge of the property and turning it over to either of these, but when she failed to do this, and took the property away from the place where Mrs. O’Brien would have recovered it, taking it entirely away from the train and away from the conductor or agent, she then became a trespasser.
“ Now, gentlemen, this is all-important as bearing upon the question as to when the intent to appropriate the property was formed. Under such circumstances as shown by the evidence, if you find that Mrs. Schattler took the property off the seat and off the train with an honest intention to find the owner, and took it away with that purpose and without any intention to commit larceny at the time when she took it away to convert it to her own use, but at some subsequent time formed the intention to keep the property as her own, she would become guilty of larceny at the time she formed the intention to appropriate the property, if she did so, whenever that time might have been.
“You are further instructed, that by virtue of the statutes in this State, there is no distinction between principals and accessories in the commission of crime. That is to say, if one aids, abets, or in any manner directly takes part in the commission of the offense of larceny, evsn th'ough he does not actually take the goods into custody himself, he becomes equally guilty with the principal.
“ If in this case you are convinced by a fair preponderance of the evidence, that Mrs. Schattler committed the crime of larceny, and you also find by a fair preponderance of evidence that her husband, the plaintiff, aided and abetted the commission of the crime, and aided in the concealment of the facts in keeping the property away from the owner when she was asked to return it, then you should find that he was an accessory and equally guilty with his wife, whether he ever took the property into his possession at all or not.
“Of course you will understand that it is for you to determine the facts as to the conduct of the parties, and whether their conduct amounts to larceny under all the facts. In doing this you will determine the facts in accordance with these principles of law which I give you.
“As an essential element of the crime of larceny, and the aiding and abetting thereof, an intent on the part of Mrs. Schattler and her husband to commit these acts must appear.
“ What their actual intent was, you are to determine from the facts and circumstances, and what they did and said in connection with the property.
“You are also instructed, that if you believe from all the proofs, that Mrs. Schattler took possession of the property with an honest intention, and continued to hold it with honest intent to return it to the owner, and that her husband never formed an intent to aid her and keep the property away from the owner by concealing their possession of it, then neither would be guilty of larceny. But it is impossible to reach the recesses of the human mind to ascertain the true intent; you can only determine what it is by conduct.
“You are to consider what these people did in their attempts to find Mrs. O’Brien, or their failure to attempt to find her. Take into consideration their statements to the officers and others, their attempts in returning the property, and if from all of these, you determine that at any time Mrs. Schattler conceived the intent to retain this property as her own, and that Schattler aided and abetted her, as I have explained, then the truth of the defendant’s charge, that Schattler was a thief, is established. * * *
“If, as a matter of fact, you shall find the defendant has not shown that it was justified in using false and defamatory language, the effect of the request to retract, the other articles in the Daily Herald and the language in the article itself pertaining to the reward are to be considered to determine the degree of malice accompanying the publication of the false and defamatory statements, if they were such. Of course, if you determine as a fact that defendant under the circumstances, as they appear from the proofs, had a right to use the language complained of, all questions of malice and the effect of the notice to retract, and the other publications are wholly eliminated from the case. If the defendant was justified in printing what was printed, it is immaterial what the motives were which prompted the publication. * * *
4 4As I have explained, if the charges in substance, that the defendant was a thief, were not justified and were in fact false, then the law presumes that damages have resulted.
• 44 General damages will follow in such a case, and they are those damages which the law will presume to be natural and probable consequences of the defamatory words as are shown in the proof connected with the effect that they may have had, if any, upon the plaintiff’s character, health and feelings. * * * And in connection with the question of actual damages, you are to consider whether or not the charges made in the language were maliciously used, and if so, you may consider this fact as an element in awarding the actual damages.
44 In connection with this question of damages, you are also instructed, that if the defendant has failed to fully justify the publication of the language complained of, yet you may take defendant’s good faith into consideration in mitigation of damages.
44 That is to say, if the circumstances attending the loss of the pocketbook, and the conduct of Schattler and his wife, and the arrest of the plaintiff by the officers, all furnished such information as to give a reasonably prudent man a reason for actually concluding that the parties were guilty as charged in the article of May 8th, then this is to be regarded by you as evidence of good faith on the part of the defendant.
44 If you find the defendant acted in good faith in applying the word 4 thief ’ and like allegations of that character, and under the circumstances, honestly believing that he was in fact a thief, then you should consider these facts in the matter of mitigating or lessening or diminishing the actual damages.
44 It is a matter for your determination as to what extent mitigation may extend, even to the extent of diminishing damages to a mere nominal sum.
“Further in this connection with this question of damages, you are to take into consideration what effect, if any, the reading of the article of the Times had upon the plaintiff.
“ Proof has been introduced to show that an article referring to the arrest and so forth contained in the Times was read to him before the article in the Daily Herald of May 8th had reached him. Evidence has also been given as to the effect that the article in the Daily Herald had upon the plaintiff’s feelings and health.
“You are to take into consideration whether the facts set up in the article contained in the Times was a cause for such injuries as he complained of. If you find this to be a fact, that the article in the Times had a natural and' probable effect upon his feelings and health as he now complains of, then this should be considered as a fact in determining whether the injuries complained of were actually traceable to the Daily Herald. * * *
“Now, as to your verdict. First, if you find that no justification has been shown by the defendant, then your verdict should be for the plaintiff, for at least nominal damages of six cents, or in such actual damages as the proofs and these instructions warrant. Second, if you find that defendant ha3 justified the publication of the words complained of, as I have explained, then your verdict should be not guilty.
“ If the intent to commit the larceny was once formed while the property was in the possession of the plaintiff or his wife, as I have explained, then the mere fact of the return of the property does not remove the fact that larceny was then committed; it would not cure it.
“Mr. Schell: It is my memory that our declaration does not aver injury to health as special damages-in connection with what the court has said in regard to health. I think you should instruct the jury that they should take into consideration, that if this article had any injury or ill effect upon his health that the only damage they could award therefor would be such as could be awarded because of the injury, or the additional injury to his feelings on account of loss of his health.
“The Court: Well, strike out all reference to the health then, that is all there is to that.
“Mr. Walsh: I take an exception to this because of the fact that the charge has been given before plaintiff’s counsel wants it withdrawn.
“The Court: Counsel calls my attention to the claim that there is no claim of damages for direct injury to health; it is on their request I withdraw from your consideration all question of damages on account of injuries to health, leaving the rest of the charge as to the injury to feelings and reputation standing.”

At 1:15, after being out 2-J- hours, the jury returned into court by direction of the court, when the following took place:

The Court: Gentlemen, I have recalled you for the purpose of correcting a statement I have inadvertently made to you in connection with the burden of proof. This is the section as I gave it to you •
“‘"With respect to the claims of the parties, you are instructed that the burden is upon the plaintiff to convince you by a fair preponderance of evidence that the words complained of were false in fact and defamatory in character.’
“You notice that I said that the plaintiff must show the defamatory words were false in fact and defamatory in character.
“I now say to you, that the words being actionable per se, they are presumed to be false. This has only to do with the question of the proof of those words.
“I correctly stated the rule in other portions of the charge.
“I also call your attention to another section of the charge, in which the same inadvertence appears. That is the section of the charge:
“ ‘ That is to say, if it appears from the whole record that the words complained of charges plaintiff with being a thief or with committing larceny of the purse and property in question, and that such charge is false in fact and wholly unjustified by the defendant, then the law presumes that he has suffered at least nominal damages, that is, at least six cents.’
“ I intended that this should read as follows:
“ ‘ That is to say, that if it appears from the whole record that the words complained of charges plaintiff with being a thief or committing larceny of the purse and property in question, and that such charge is not justified by the defendant by proof of the truth thereof by a fair preponderance of the evidence, then the law presumes that the plaintiff has suffered nominal damages, that is, at least six cents.’
“As I have explained, this change has solely to do with the burden of proof as to the truth or falsity of the words. It in no manner changes or affects the rules as to the defendant’s justification or as to the rules and question of damages exactly as I have given them to you. All of the remaining rules and instructions I have given are to remain intact.”

It will be noted that at the outset the jury were instructed that the burden of proof was upon the plaintiff to show that the words complained of were false in fact and defamatory in character, and that to recover actual damages for injury to reputation and feelings, such damages must be proven by plaintiff by a fair preponderance of the evidence. This statement is not the law in any particular. The words complained of charged the plaintiff with larceny. They were plainly libelous per se. They carried with them the presumption of their falsity, and unless proven true in substance and in fact by defendant, the plaintiff, without proof of injury, had a right to recover the actual damages to his reputation and feelings, which the law presumes will flow from the commission of the act. This erroneous impression of the rights and liabilities of the parties found lodgment in the minds of the jurors, and was not corrected during the entire charge. Two and one-half hours after retirement, the jurors were called into court, and an attempt made to cure the error by reading two detached paragraphs of the charge, and there rereading them in a modified form. We are of opinion that, so far from correcting the error made, the action of the court, in thus reading these two sections without the context, may well be supposed to have confused, rather than to have clarified, the minds of the jurors as to the plaintiff’s rights.

The plaintiff offered to show the conversation between himself and his wife about the purse, on the way from the station to the post office, as a verbal act, bearing upon the question of intent, and part of the res gestee. We think this testimony was admissible. Dunbar v. McGill, 69 Mich. 297 (37 N. W. 285); Wright v. State, 10 Tex. App. 476; 3 Wigmore on Evidence, § 1772 et seq.

Testimony of the prosecuting attorney was admitted as to why the case against plaintiff was dropped; the plaintiff’s ill health being assigned by him as the reason. This testimony was incompetent, and, in our opinion, prejudicial to plaintiff’s rights, as it may well have caused the jury to believe that the officer had discontinued the case on account of the plaintiff’s sickness, while still believing him to be guilty.

The important question for the determination of the jury, under the pleadings, was whether or not the plaintiff, at any time while the purse was in the possession of himself or his wife, had formed the intent to feloniously appropriate it to his own use, or to aid and abet his wife to so appropriate it. The jury were instructed to determine this intent “from the facts and circumstances, and what they did and said in connection with the property;” yet the court excluded testimony of what they said, not alone to each other, but to Mrs. Shannon. This testimony, likewise, should have been admitted.

The court admitted, over plaintiff’s objection, evidence of the publication in the ‘c Daily Times ” of two articles concerning the arrest of plaintiff. The publications were made by the “Times” either contemporaneously with, or later than, the libel complained of. They were inadmissible for any purpose. See 25 Cyc. p. 506, and authorities there collected.

Particular attention is directed to the case of Palmer v. Publishing Co., 31 App. Div. (N. Y.) 210 (52 N. Y. Supp. 539), and cases cited. There that court said:

“When several persons unite in the publication of one libel, a tort is committed by each one of them, for which he severally is liable to the plaintiff, and the plaintiff is entitled to a judgment against each one for all the damages which he suffers, by reason of the libel. 13 Am. & Eng. Enc. Law (1st Ed.), p. 372. It is quite true, that he is entitled to but one satisfaction, and when one of the judgments has been paid, the collection of the others will foe restrained. Breslin v. Peck, 38 Hun (N. Y.), 623. But until he has had one satisfaction, he is entitled to maintain as many actions for the same libel as there are defendants who have been engaged in publishing it. A fortiori, where a libel had been published against the plaintiff by different persons at different times, he is entitled, not only to pursue each publisher, but to recover whatever damages the jury may think that each publication may have caused him. Each libel is a separate and distinct tort, and each person who sees fit to publish it is separately liable to the plaintiff for whatever damages may be fairly said to accrue. If 100 persons at 100 different places make 100 separate publications of a libel in 100 different newspapers, the fact that this simultaneous action of all of them has ruined the plaintiff’s character is .no reason why one of them, when sued for it, should shelter himself behind the acts of the other 99, and say that 99 /100 of the plaintiff’s character was ruined by the others, and, therefore, he is liable for only 1/100 part of the damage. The true rule is, and must be, that whoever publishes a libel, publishes it at his peril, and he cannot mitigate his damages, because some other reckless or evil-disposed person has incurred the same liability that he has for the same story.”

The charge of the court, to the effect that the good faith of defendant in using the word “thief” in the libel complained of, should, if found by the jury, be considered as mitigating the actual damages, is clearly erroneous. If defendant, under its plea of justification, failed to prove that plaintiff was a thief, then its good or bad faith in publishing the libel could have no possible bearing upon plaintiff’s right to collect actual damages. Whittemore v. Weiss, 33 Mich. 348; Austin v. Hyndman, 119 Mich. 615 (78 N. W. 663); Smurthwaite v. Publishing Co., 124 Mich. 377 (83 N. W. 116); 25 Cyc. pp. 372 and 420. Actual damages may be increased by reason of the malice of the defendant, because .plaintiff’s injury to feelings is greater when he suffers from a wrong wantonly inflicted, than when he suffers from one inflicted in good faith, but in no case can defendant’s good faith mitigate or lessen the damages to reputation or feelings, which plaintiff actually does suffer, as a result of the libelous publication. Obviously, plaintiff could only be guilty of larceny, if he himself formed the intent to feloniously appropriate the purse, or aided and abetted his wife in so appropriating it, after she had communicated to him her intent to do so. Her secret resolve to steal the purse and its contents, if inferable from her conduct and words, would have no tendency to prove guilt on the part of the plaintiff.

Voluminous requests to charge were tendered on behalf of the plaintiff. These were disregarded by the court, but covered in part by the general charge. So far as they correctly stated the law, and were so covered, there is no error. In re Morse’s Estate, 146 Mich. 463 (109 N. W. 858). We are, however, clearly of the opinion, that, taken as a whole, the charge failed to clearly and fairly present to the jury the conflicting claims of the parties and the legal principles applicable thereto.

For the errors pointed out the judgment is reversed, and a new trial ordered.

Ostrander, Moore, and McAlvay, JJ., concurred.

Hooker, J. I concur in the reversal of this cause on all grounds but one. I am not certain that the testimony of the prosecuting attorney was not properly admitted.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    HORNING v. HORNING.
    1. Divorce — Separate Maintenance — Husband and Wife — Statutes.
    A bill of complaint in the form of a bill for divorce, not referring to any other statute, with a prayer for separate maintenance and general relief merely, is not a proceeding to provide the wife with property and maintenance under 3 Comp. Laws, § 8686.
    2. Same — Appeal and Error — Trial Court — Words and Phrases — Statutes.
    Act No. 324, Pub. Acts 1907, permitting the entry of a decree for divorce in a suit for separate maintenance, by the court hearing the evidence, authorizes the Supreme Court, on appeal, to enter the decree of divorce, since such appeals are heard de novo.

    3. Same — Supreme Court.
    On grounds of public policy, a divorce absolute is granted to the complainant, on appeal by defendant, from a decree providing for separate maintenance.
    4. Same — Alimony—Amount.
    Out of real property in which defendant has an equity of about $1,000, an award of alimony of $700, payable $50 per month, is held tó be sufficient.
    Appeal from Kent; Chester, J., presiding.
    Submitted April 14, 1910.
    (Docket No. 24.)
    Decided July 14, 1910.
    Bill by Anna M. Horning against Edwin T. Horning for a decree of separate maintenance. From a decree for complainant, defendant appeals.
    Reversed, and decree of absolute divorce granted.

      Francis A. Stace (Thomas P. Bradfleld, of counsel), for complainant.

      William E. Grove, for defendant.
   McAlvay, J.

From a decree granted to complainant against defendant decreeing a separation for life and ordering separate maintenance by him, defendant has appealed to this court. It appears from defendant’s answer that complainant first filed a bill of complaint against him in the Kent circuit court, in chancery, praying for a divorce from the bonds of matrimony, on March 14,1907, which bill defendant answered, and an issue was joined. During the pendency of that suit, and before any hearing, negotiations were hadNetween the parties relative to settling the property interests. No satisfactory settlement could be reached, and complainant then voluntarily dismissed her bill of complaint, and on or about January 11, 1908, filed the bill of complaint in this suit in the same court.

The bills and answers in both suits are printed in the record, and may be said to be identical, except as to the relief prayed for in this bill of complaint, and a statement in this answer showing the former suit, and alleging that it was voluntarily dismissed after a failure to induce him to transfer nearly all of his property to her, free from incumbrances.

Complainant, on the hearing below, insisted and still contends in this court that the case before us was not a suit for divorce, but a proceeding under section 8686, 3 Comp. Laws, “to provide wives with property and maintenance, etc.,” being Act No. 243, Pub. Acts 1889. The question was properly disposed of by the trial court against the contention of complainant, as follows:

“ The bill of complaint in this case is in form and substantially in every particular a bill for absolute divorce, except the prayer which is for an allowance for separate maintenance, coupled with a prayer for general relief.”

Nothing in this bill of complaint indicates that the pleader at the time it was drawn had in contemplation the act of 1889. In form and substance it conforms with all the statutory requirements for a bill for divorce, and not with the petition required by the act of 1889. The prayer for separate maintenance is not different from such a prayer in ordinary cases of bills filed for separation, which, in fact, is a prayer for divorce from bed and board. In the instant case the decree is for separate maintenance for life. It is a decree of separation formerly called “ a mensa et thoro.” Such a decree is recognized as a decree of divorce. 9 Am. & Eng. Enc. Law (2d Ed.), p. 851.

The parties to this suit lived happily together for about 12 years. She charges that he then began to treat her with extreme cruelty, went away from her, and was unfaithful. Defendant denies these charges, and claims that the change in their relations was in fact caused by a drug habit which complainant acquired by using a preparation of cocaine and morphine, and continued without his knowledge for a long time, and which he with her consent took steps to cure; but during the time of her treatment it was necessary to watch her closely and care for her, which he claims embittered her against him. The proofs tend to show that from the use of these drugs she had become mentally and physically weakened. Upon this claim of defendant there is a disagreement between these parties. There is, however, no dispute but that up to the time that the relations between them became strained, defendant furnished support to his family to the extent of his ability and earning capacity. He acquired a homestead and some other property, against which there are incumbrances, which must be taken care of in order to save anything. It appears that the equity in all the property amounts to about $1,000. It would be of no benefit to present and discuss the evidence in the case. It has all been examined and considered. We are not inclined to disturb the conclusion of the court in finding that the charge of cruelty against defendant was sustained by the proofs. There is also abundant proof to show that these parties have become so estranged that it will be impossible for them to resume their relations as husband and wife. Both of them testify that such a thing is impossible,

Two questions remain to be considered, namely:

(1) Whether the court, in its discretion, should grant a decree from the bonds of matrimony; and

(2) The allowance which should be granted to complainant.

Complainant has not appealed from the decree which was granted upon the theory that the bill of complaint was one for a divorce, and not a proceeding under the statute of 1889, of which holding we have indicated our approval. Complainant, however, does contend that, under the statute, this court cannot grant a decree from the bonds of matrimony.

It is insisted that the amendment of 1907 (Act No. 324, Pub. Acts 1907) confers such power only upon the trial court, by the words:

“Unless the court hearing the evidence shall deem it for the best interests of the parties to grant a divorce from the bonds of matrimony, and in that event the court may grant such divorce.”

All chancery causes are heard de novo in this court, upon the same evidence presented in the court below: This court, then, is “the court hearing the evidence ” in cases of this kind, with jurisdiction to exercise its judicial discretion upon the question under discussion. The construction claimed would be one of implication, and contrary to the well-settled policy of this State, as to the authority vested in this court upon- chancery appeals.

This section, 8623, 3 Comp. Laws, has been amended twice. Originally it provided that a divorce from the bonds of matrimony might be decreed for either of the causes mentioned in the preceding section (for extreme cruelty, utter desertion for two years, and for wanton and cruel neglect and refusal to support, by the husband, when of sufficient ability to do so), “whenever, in the opinion of the court, the circumstances of the case shall be such that it will be discreet and proper so to do). The amendment of 1905 (Act No. 135, Pub. Acts 1905), added:

“ But no divorce from the bonds of matrimony for either of the causes mentioned in the preceding section shall be entered in any case where the same is not asked for by the complainant in the bill of complaint filed therein, or by the defendant on a cross-bill.”

The addition to this by the amendment of 1907 is already quoted above. In relying upon this section in support of the decree granted, complainant has abandoned the independent charge of the unfaithfulness of defendant. Such cause for divorce is not included in the preceding section, but only those above enumerated.

We consider that this record presents a case for the exercise of the discretion conferred by the statute to grant complainant a divorce from the bonds of matrimony, and deem it for the best interests of the parties so to do “on grounds of public policy, to prevent the mischiefs arising from turning out into the world in enforced celibacy persons who are neither married nor unmarried.” Burlage v. Burlage, 65 Mich., at page 627 (32 N. W. 867). Also upon the ground, that by so doing a more satisfactory and certain provision may be made for complainant, in making an allowance to her of her proportionate share of the property of defendant. We will therefore so change the decree as to make the divorce an absolute one from the bonds of matrimony.

It appears that this property is incumbered; that interest, taxes, and repairs must be met by defendant. The equity appears to be worth not more than $800 to $1,000. Complainant will be allowed the sum of $700 as permanent alimony, being $100 less than defendant’s brief indicates as satisfactory, to be paid in monthly intallments of not less than $50 each, provided that she will release to defendant, from time to time, all of her claim, title, and interest in and to each parcel of the real estate, if he has opportunity to sell and dispose of the same, whenever he so requests, and will pay to her the proportionate part which the equity in such parcel bears to the unpaid amount of the alimony at that time, when considered with the value of the entire equity in all the parcels then remaining unsold. She will also be awarded all of the household furniture in her possession.

The decree of the circuit court will be reversed and set aside, with costs of both courts to complainant, and a decree will be entered in this court in accordance with this opinion.

Ostrander, Hooker, Moore, and Brooke, JJ., concurred.


text:
    AINSWORTH v. HOVER.
    1. Negligence — Evidence — Subsequent Accidents — Fires— Traction Engine.
    In an action for damages for negligently driving a traction engine on the highway in dry, windy weather, without a sufficient spark arrester, testimony that the engine set another fire on the same morning under similar weather conditions, although it appeared that a different fuel was in use and the drafts were differently arranged, was competent.
    2. Same — Negligence—Highways.
    No error was committed in receiving evidence of a fire set on the following day by the same engine under similar conditions of weather.
    3. Same — Precautions aeter Accident — Spark Arrester. ■
    It was competent to show that the engineer subsequently, on the same day, took the spark arrester from a barrel on the water tank of the engine and used a screen which was offered to him by a witness, because it was finer than the one belonging to the engine, since the evidence has some tendency to show, not that repairs were made, but that no spark arrester was in use at the time of the fire.

      4. Same — Proximate Cause — Burden of Proof.
    Instructions to the jury referring to evidence that plaintiff was in the habit of smoking about the place of the fire, charging that if they found it more probable that the fire was thereby caused, plaintiff could not recover, but that they must find, as a matter of fact, the inference that the fire originated in that way, when read in connection with instructions that plaintiff had the burden of proof, are not open to the objection that they impose the burden of proof on the defendant.
    Error to Tuscola; Beach, J.
    Submitted April 14,1910.
    (Docket No. 105.)
    Decided July 14, 1910.
    Case by Edwin O. Ainsworth against Edwin Hover for negligently setting fire to plaintiff’s property. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Seth Q.Pulver (Brooker & Gorkins, of counsel), for appellant.

      Brennan & Gook, for appellee.
   McAlvay, J.

Plaintiff recovered a judgment against defendant for the loss of certain personal property contained in a rented barn caused by fire, which was claimed to have been brought about by defendant’s negligence in carelessly propelling a steam traction engine along the highway in close proximity to this barn, during a high wind blowing towards the barn.

The negligence relied on consisted in driving the engine along the highway under the conditions mentioned without having it equipped with a spark arrester, or a proper spark arrester, and that the engine was broken in certain parts which increased the draft. No question is raised as to the sufficiency of the declaration.

The errors relied upon by appellant who, upon writ of error, brings the case here for review, may be grouped together and stated as:

(а) Those committed by the court relative to evidence.

(б) In refusing to give certain requests to charge.

(c) In charging the jury.

The fire which caused the damage claimed was discovered immediately after the passage of defendant’s engine by the barn; it having caught on the south side next to the highway, near which it was located, in the stable litter which had been thrown out, and which was very dry. The defendant and his helper saw the fire before they had driven the engine more than 20 rods from the barn.

Testimony was admitted relative to subsequent fires claimed to have been set that morning by this engine after it passed the barn above mentioned. Defendant was at the time taking the engine, with tank attached, from his farm to that of a Mr. Brady, who met the engine on the road after the fire, and rode home on it. The man in charge of the engine and Mr. Brady both testified that while on the way a fire was set to a post in the fence along the road. Such testimony was admitted over defendant’s objection and exception; defendant claiming that subsequent fires must be shown to have been set under similar conditions as existed at the time of the first fire. The difference in conditions claimed was that at the time this fire in the fence was set, dry wood and broken rails were used as fuel and the dampers were open, and when the engine passed the barn green wood was used and dampers were closed. We think this testimony was admissible. The same engine, immediately following the first fire, on the same trip, under the same weather conditions, set another fire. The fuel and the drafts were not the same, but the evidence of the escape of sparks was material as bearing upon the fact as to whether there was any spark arrester on the stack, or one that was suitable.

The witness Russell was allowed to testify concerning another fire set by this engine on the following day, when it was moved from Brady’s to another farm, under similar weather conditions. The fuel was the same as used when the first fire occurred after the barn burned. Another witness testified to this last fire, and as to putting out fire as he went back along the road over which the engine had just traveled after leaving Brady’s. The witness who had put some screening over the stack at Brady’s testified that at that time there was no spark arrester in it, and that he took the screen off after leaving that farm. “While it does appear that dry pine and old rails will give off more sparks, and that the opening of dampers gives greater draught, these are matters of common knowledge, and show a greater facility for setting fires in a windy, dry time. The testimony was, however, admissible, as was the testimony relative to the first fire subsequent to the burning of the barn, as tending to show whether there was any spark arrester, or a suitable one, on this engine. The record shows testimony giving a complete history of this engine while it was on the highway, from the time it passed the barn which was burned, until it arrived at the Cobine farm beyond Brady’s on the afternoon of the next day, which testimony tended to show that the engine was, during all that time, practically in the same condition as when the particular fire which destroyed plaintiff’s property occurred. Hoyt v. Jeffers, 30 Mich. 181. Our conclusion upon the materiality of this class of testimony disposes of other errors claimed to have been committed by the court in refusing to strike out all such testimony.

Appellant contends that the court erred in admitting testimony as to what was claimed to have been repairs made to this engine by defendant subsequent to the fire, to show, negligence at the time of or previous to the fire, and in refusing to strike it out. The record shows that this testimony was not offered by plaintiff, or received by the court for the purpose claimed. This question first arose when witness Brady was testifying. Soon after the barn burned the engine was met by Brady on the road to his farm, and he was asked what was done about searching for a spark arrester. This was objected to on the ground that proof of subsequent repairs is inadmissible to show negligence preceding it. The court said:

“ I think it may be answered on the general question of whether there was a spark arrester.”

Witness then testified:

“ The engineer asked Hover about a spark catcher and he said there was one in a barrel on the water tank, which he went and pulled out, and threw alongside the fence near my toolhouse.” . *

He later said:

“ When I came .out with the screen Mr. Hover and Mr. Cook drove up, and Mr. Russell asked Mr. Hover for a screen; I told him I wouldn’t let them in there, unless there was a screen on. There was a screen in the barrel, and he pulled it out and says: ‘Your screen is finer than mine,’ and threw his alongside the fence.”

Defendant moved'to strike this out, but was refused; the court holding it was “ competent as to whether there was a screen in the engine at that time,” and, in the charge to the jury, confined the testimony to that question. The witness Russell was allowed, subject to the same objection, to testify relative to what occurred at Brady’s, saying that defendant brought with him a cone spark arrester which witness put in the top of the smokestack, and in putting it in he was not required to take another one out, and did not see any other there, and that on the way from Brady’s to Cobine’s there was no spark arrester on. All of this testimony on the part of plaintiff tended to show, not subsequent repairs, but that while on the highway defendant’s engine traveled without a spark arrester. This testimony was also admissible for the purpose for which it was received. Of the requests presented by defendant which were refused, the substance of those which were proper is included in the general charge of the court.

During the trial defendant offered testimony to show that plaintiff was in the habit of smoking in and about this barn, and presented a request to charge which the court gave, in substance, with a modification added in the last two lines as follows:

“Testimony as to Ainsworth’s smoking has been received, and is entitled to your consideration as to the probability of the origin of the fire. If you find it more probable that the fire originated in that way than by the engine, plaintiff cannot recover; but you must find as a matter of fact the inference that the fire originated that way.”

The contention is that by this charge the court instructed the jury that the defendant had the burden of proof on this issue.

The charge of the court in no other respect is questioned by defendant. The court, as to the burden of proof in the case being upon plaintiff, and what plaintiff must prove in order to recover, clearly and correctly instructed the jury. In the record no suggestion is made of the probability of the fire having originated from any cause other than from the engine or plaintiff smoking about the barn, and in calling the attention to the claimed smoking of plaintiff, the jury was instructed that the inference that the fire probably originated in that way must be found as a matter of fact. By this language no reference was intended as to the burden of the proof. Our construction of this portion of the charge is that the inference could only be drawn from established facts in the case. There was a sharp dispute as to whether plaintiff ever smoked in the barn, and no evidence whatever that he had done so that morning. This charge was given with reference to this testimony. The modification of the request as given by the court was not erroneous. Other questions need not be discussed.

The judgment is affirmed.

Ostrander, Hooker, Moore, and Brooke, JJ., concurred.


text:
    McPHARLIN v. FIDELITY & DEPOSIT CO. OF MARYLAND.
    1. Judgment — Principal and Surety — New Trial — Effect on
    Judgment against Joint Defendants.
    Granting a new trial to a surety, against whom a judgment was rendered jointly with the principal on an indemnity" bond creating a joint and several liability, vacates the prior judgment only as to the surety.

      :2. Same — Indemnity Bond — Evidence.
    As against the surety, such judgment against the principal is admissible in evidence on the new trial as prima facie proof of liability. • -
    •8. Same — Bar—Satisfaction.
    An unsatisfied judgment against the principal of a joint and several obligation is not a bar to recovery against the surety.
    4. Principal and Surety — Notice of Default — Delay.
    Notice of the principal’s default, given promptly to the general agents of the surety corporation for whom they signed as attorneys, and subsequently acted as agents, complies with the requirement of notice.
    ■5. Same — Delay in Instituting Suit — Waiver.
    Although a delay of more than the period limited in the bond for instituting action took place, it was waived by the vice president of the company notifying plaintiff after the expiration of that period, to complete the building which the principal failed to construct.
    Error to Wayne; Rohnert, J.
    Submitted April 14, 1910.
    (Docket No. 116.)
    Decided July 14, 1910.
    Assumpsit by William H. J. McPharlin and another .against William H. Hibbler, principal, and the Fidelity & Deposit Company of Maryland, surety, upon a building contractor’s bond. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant surety •on writ of error.
    Affirmed.

      Brennan, Donnelly & Van De Mark, for appellant.

      Devine & Snyder, for appellees.
   McAlvay, J.

This was a suit brought against defendants upon an indemnity bond given by William H. Hibbler as principal, and defendant company as surety, to recover damages by reason of the failure of defendant Hibbler to build and complete according to contract a certain house for $3,MS; such bond having been given by defendant company to guarantee the faithful performance of such contract. On the first trial plaintiffs recovered a judgment for $1,362.04. A motion for a new trial was made on the part of defendant company upon the grounds, among others:

“ That the bond sued upon provided that suit must be commenced within six months from the date of the first breach, and that the suit was not so commenced; that plaintiffs relied upon a waiver made by the local 'agents of the company; that no evidence was offered showing that the local agents had any authority to waive this provision of the bond; and that they could not be presumed to have such authority.”

The above quotation is taken from plaintiffs’ brief. It is not contradicted by defendant, although this brief was filed about 30 days before appellant filed either of its briefs. Upon this motion the court granted a new trial to the defendant surety company. This new trial was had, and resulted in a verdict instructed for plaintiffs, for the amount of the judgment recovered on the former trial, which the record shows then stood against Hibbler unsatisfied. Defendant Hibbler took no part in the motion for a new trial or in the trial which followed. The cause, after a judgment duly entered upon the directed verdict, has been removed to this court for review upon writ of error.

Appellant contends that the ’ judgment should be set aside for the reason that the court erred:

(1) In admitting the judgment recovered upon the first trial in evidence against defendant upon this trial.

(2) In refusing to hold that defendant surety company was discharged from liability, because of failure of plaintiffs to notify it of Hibbler’s default, as required by the terms of the bond; and also because suit was not instituted within six months after the first breach of the contract.

The bond upon which recovery was sought was a joint and several bond. The undertaking of defendant company, the surety, was the faithful performance of the contract by Hibbler, the principal. Appellant urges under its first assignment of error that granting its motion for a new trial vacated and set aside the entire judgment in the case. The declaration in the case contained two counts, one of which counted upon the bond, claiming a joint and several liability, and the other contained the common counts, under which appellant urges the liability was joint, and it is claimed that the recovery obtained on the first trial, as far as the present record shows, could have been under either count.

It is true that this record does not give the testimony given on that trial, the motion for a new trial by appellant, or the reasons of the trial judge in granting it. This question that anything other than the matter of the default of Hibbler on his contract, and the liability of appellant as surety upon this bond, was litigated on the first trial, as far as we are able to discover from the case before us, appears for the first time in appellant’s brief. We find that counsel for appellant, who was present and participated on both trials, appears to have held a contrary opinion from that expressed in the brief. The record returned to this court shows that the order made upon granting appellant’s motion for a new trial was for a new trial for defendant the Fidelity & Deposit Company.” This was also the statement made by appellant’s counsel upon this trial. No claim is made in the record that such was not the fact. The record shows that upon this status of the defendants, accepted by appellant, its counsel moved for an instructed verdict, after the opening statement by plaintiffs’ counsel, in the following language:

“ It appears from the opening statement of counsel that this case was tried upon a bond, and that a verdict was had against both defendants. As to one of those defendants, the judgment was practically set aside by an order for a new trial. I submit that judgment is still valid as against the other defendant, * * * and it stands as a valid judgment against the defendant Hibbler. * * * ”

Again, at the close of plaintiffs’ case, appellant, having no testimony to introduce, moved for a directed verdict because—

“There has been no proof adduced that the judgment against Hibbler has not been satisfied. They cannot recover a judgment against the surety if the judgment against the principal has been satisfied.”

This last motion was made after the court had admitted the judgment against Hibbler in evidence, which is the principal error claimed to have been committed.upon which appellant relies. The record shows that when the Hibbler judgment was first offered appellant’s counsel objected, saying:

“ This is a new trial. I do not propose to be foreclosed by any testimony in the former trial.”

The judgment entry was admitted but not read in evidence. No exception was taken. The record shows that later the judgment was offered in evidence—

“ To which offer objection was made by the defendant ■on the ground that in that case a joint verdict was rendered upon which judgment was entered. Upon application of the defendant, Fidelity Company, a new trial was granted to it.”

This objection was overruled, and the judgment admitted as prima facie evidence of the amount of damages, ;and an exception was taken. This is all that appears in this record relative to the judgment against Hibbler and its introduction in evidence. It appeared upon proof in the case that the judgment against Hibbler was unsatisfied.

It cannot be said from this record that at any time during the trial did appellant question a valid and subsisting judgment in the case against defendant Hibbler. The theory of appellant was, not that granting it a new trial vacated the judgment against Hibbler, nor was the introduction of the judgment objected to on that ground, but under the theory that, having been granted a new trial, it was entitled to have all of the testimony necessary to establish a case against Hibbler, the principal in the surety bond, presented anew in this case. The issue upon the two trials was identical, as appears from this record and the admissions of appellant contained in it. The case' was tried upon the first count of the declaration.

Under the circumstances of this case, in an action upon a bond where the liability is joint and several, brought against both defendants, and a judgment rendered against both, must the court hold as a matter of law that granting a new trial to the surety, where the default of the' principal is not questioned, operates to vacate the judgment against the principal ?

It seems clear that plaintiffs at any time might have discontinued as to the surety and recovered against the principal. The court might have instructed the jury to find for defendant surety, provided the evidence so warranted, and allowed a recovery against the principal, and in either case in a later suit against the surety the judgment against the principal would have been admissible. An unsatisfied judgment against the principal of a joint and several obligation is not a bar to recovery against a surety. 2 Black on Judgments (2d Ed.), § 774; 1 Freeman on Judgments (4th Ed.), § 334.. The general rule is that a judgment against a principal is prima facie evidence against the surety with notice of the proceeding. Norris v. Mersereau, 74 Mich. 690 (43 N. W. 153), and cases cited; Moses v. U. S., 166 U. S. 571 (17 Sup. Ct. 682); United States Fidelity & Guaranty Co. v. Haggart, 163 Fed. 801, 91 C. C. A. 289, and cases cited.

What different relations existed between these parties than in case of a judgment against a principal introduced as prima facie evidence against a surety in a separate proceeding ?

The case is unique, in that judgment against the principal was rendered on a former trial of the identical case. Appellant cannot complain. It has made the situation possible, and had notice of the proceeding and participated in the trial in which the judgment was rendered against Hibbler. It secured for itself a new trial, and now objects that the Hibbler judgment is of any force against it. Its liability is no greater or less than if two suits had been instituted, or the judgment first rendered in the case against both had not been disturbed. Our conclusion is that the court was not in error in admitting the judgment against Hibbler, as prima facie evidence against the surety upon this trial.

The remaining error discussed relates to the claim that appellant was discharged from liability, because of the failure of plaintiffs to notify it at once of Hibbler’s first default, and because suit was not brought within six months after the first breach of the contract.

The uncontradicted proof in the case shows that notice of Hibbler’s default was promptly given to the general agents of appellant, who, from the time of seeing the bond, acted for defendant company; one of the firm signing the bond for it as attorney. In fact, they were actively engaged with the plaintiffs in all that occurred after Hibbler’s default. Crystal Ice Co. v. United Surety Co., 159 Mich. 102 (123 N. W. 619).

It also appears that through these agents, and from plaintiffs’ letters relative to Hibbler’s default sent direct to appellant, no claim was made that notice had not been properly given. To digest this evidence would be of no benefit. As to the delay in bringing suit within six, months, the record shows the negotiations in regard to the • matter of the Hibbler bond were pending for some time, and that more than six months after the first notice given appellant instructions were given by its vice president to plaintiffs to complete the building at the least possible expense, thereby recognizing its liability and waiving any forfeitures by plaintiffs if any had occurred.

The evidence presented by this record justified the court in directing a verdict for plaintiffs.

The judgment is affirmed.

Ostrander, Hooker, Moore, and Brooke, JJ., concurred.


author: Hooker, J.

text:
    BRINK v. PURNELL.
    Assault and Battery — Joint Tort-Feasors — Trespass.
    It was not error to instruct the jury, in an action for assault and battery, that defendant, who did not strike plaintiff, could not be held liable unless he counseled and abetted the alleged wrong, and the utterance of the words, “Kill him,” etc., would render him liable if they were uttered during the progress of the affray with the intention of instigating and encouraging the assault.
    Error to Berrien; Coolidge, J.
    Submitted April 14, 1910.
    (Docket No. 91.)
    Decided July 14, 1910.
    Trespass vi et armis by Ethlyn Brink against Benjamin Purnell and others. A judgment for plaintiff is reviewed by defendant Purnell on writ of error.
    Affirmed.

      H. 8. Gray and James O’Hara, for appellant.

      John J. Sterling and I. W. Biford, for appellee.
   Hooker, J.

The plaintiff received a judgment against several defendants, among whom was Benjamin Purnell, who alone has appealed. Purnell is the head of a sect called the “House of David,” which has grounds called “The Park Springs of Eden,” near Benton Harbor, where it at times invites the public. On the occasion of the injury of which the plaintiff complains, the public had been invited, by the distribution of handbills, and a steamer from Chicago had brought over quite a large crowd who went to the park. The plaintiff went there with one Harry Williams and her sister and brother-in-law. Williams had at one time been a member of the sect, and afterwards had trouble with the members, and one witness swore that on the day in question he had told him not to go upon the premises. This is disputed by Williams. Wolmar and Bell, both large men and members of the sect, the first named being their private watchman, and both being defendants in this case, are alleged to have gotten into a fight with Williams and his party, and there was testimony that both Wolmar and Bell made an unprovoked assault upon both Williams and plaintiff. This is denied by other testimony, and it is claimed that Wolmar and Bell were first assaulted by both Williams and plaintiff. It is claimed on behalf of the appellant that there was no testimony whatever tending to show his participation or complicity in the alleged assault upon the plaintiff.

All of the testimony which can be claimed to have a tendency to prove his complicity is the following:

(1) Williams had made a bitter attack upon the sect, and by conversation, preaching, and publication of a book had denounced it, claiming that it had defrauded him. His claim was finally adjusted and settled. It is manifest that there was a strong feeling against him among the members.

(3) On entering the place, he had met some of the members, among whom was Bulley, and greeted them in a friendly way, and all agree that he had made no disturbance.

(3) A short time later these two men and Bulley approached him and his party and began an attack upon him, and followed the party up and made two other attacks, and upon the second and possibly the third Purnell was a few feet distant, while Williams and the plaintiff were being assaulted and shouted repeatedly: “Kill him! Kill him! We have got him now! Kill him! ”

(4) There was testimony that Bulley, after meeting Williams, immediately went to. “ headquarters,” returning with Wolmar and Bell, when they approached and attacked Williams; that Purnell was near by at the second and third assaults, if not at the first, and was using the language stated, and was within six feet of plaintiff when she was struck. Although present at the trial, Purnell did not testify.

Prom the circumstances, counsel asked the jury to infer that Purnell participated in the attack if he did not direct it. The court instructed the jury that:

“There is no evidence in this case that Benjamin Purnell assaulted the plaintiff. He cannot be held liable in this case unless you find that he counseled, instigated, aided, and abetted in the assault upon the plaintiff. Some of the witnesses testified that Purnell uttered the words: * Kill him,’ or, ‘We have got him, kill him,’ during the encounter. If the assault upon the plaintiff was unlawful, and Purnell addressed those words to the assaulters while they were assaulting Williams and the plaintiff, with the design of instigating and encouraging the assault, then he is liable jointly with the other defendants. Even if these words were uttered, if they were uttered when no assault was being committed upon the plaintiff, then Benjamin Purnell is not liable; but, as I say, if these words were uttered while this affray was going on, and the plaintiff was in the mélée, then, gentlemen, Benjamin Purnell is equally liable with the defendants, if an unlawful assault was committed.”

This instruction and the refusal to direct a verdict in favor of Purnell raise the important question in the case. We are of the opinion that the charge was a proper one, and that the refusal of the request was not error.

Counsel state that they rely on three other points. We have examined them, and think they are not cause for a reversal.

Judgment affirmed.

Ostrander, Moore, McAlvay, and Brooke, JJ., concurred.


author: Ostrander, J.

text:
    BARTHEL v. CRIPPEN.
    1. Specific Performance — Contracts—Equity.
    In a suit for the specific performance of a contract to convey ■ to complainant a half interest in a patent, it is held that the evidence supports the claim of complainant as to the making of the contract and the bad faith of a transfer of defendant’s invention.
    2. Same — Contracts—Breach, Excuses for.
    Mere suspicion of intended wrongful action, unconfirmed by facts, does not excuse a breach of contract relations.
    Appeal from Wayne; Donovan, J.
    Submitted April 14, 1910.
    (Docket No. 109.)
    Decided July 14, 1910.
    Bill by Otto F. Barthel against George F. Crippen and Lewis Crippen for the specific performance of a contract. From a decree for complainant, defendants appeal.
    Affirmed.

      Henry C. L. Forler, for complainant.

      Lee N. Brown (John P. Kirk, of counsel), for defendants.
   Ostrander, J.

At a former hearing the application of defendants for leave to remand the case to permit the taking of further testimony was granted. Barthel v. Crippen, 156 Mich. 20 (120 N. W. 15). The additional testimony has been introduced and the court below, upon a consideration of the whole record, entered a decree which, in effect, grants to complainant the relief given by the decree first entered and prayed for in the bill. Defendants have again appealed. The issues made by the pleadings are briefly hut sufficiently stated in the former opinion of this court. Still more briefly, they may be restated. They are, first, Did defendant George F. Crippen agree to assign to the complainant a one-half interest in and to a certain invention for bean-picking machines, the letters patent and all improvements; and second, If such a contract was made, is defendant Lewis Crippen, to whom his brother assigned said invention, etc., a few days before the bill in the cause was filed, a purchaser with rights superior to those of complainant ?

As to the issue last stated, I am not in doubt. The answer of defendant Lewis Crippen does not meet the allegations of the complainant’s amended bill. It denies, it is true, the charge that the transfer to himself was fraudulent and without consideration, and denies the conspiracy and confederation of the defendants, which is charged. But it does not set out the circumstances of any transaction by which this defendant became possessed, as against complainant, of any right to or interest in the said invention and patents. The answer of George F. Crippen to the original bill, in which Lewis Crippen is not made a party defendant, contains the following:

“But the said defendant, seeing the said complainant’s foul design, on the 5th of November, 1906, transferred the said invention and all matters and patents relating or connected with it, and now the only reason that the said complainant is mad, is because he has lost his opportunity to beat, cheat, and defraud defendant out of his invention.”

And in his answer to the amended bill he contents himself with denying that such transfer was made to defraud and without consideration, and alleging that it was a good-faith transaction, based upon a good and sufficient consideration. The testimony does not convince me that the said transfer was made in good faith or for a consideration which indicates a bona fide sale of property, especially in view of defendant’s representations concerning the real value of the invention. The contract with complainant being established, I should find in the transfer to Lewis Crippen no obstacle to granting relief.

In considering whether the testimony supports the fact of a contract such as is charged to have been made, the additional testimony which was taken does not materially add to the case made for defendant in the record first presented. But it makes more clear the fact that complainant, after defendant had repudiated all relations with him, after a machine had been constructed embodying improvements to the original invention, represented his brother in the patent office in an application to secure a patent covering those improvements, with respect to which improvements defendant George F. Crippen was also seeking to secure a patent. By the terms of the alleged contract, complainant and defendant were to be owners each of a one-half interest in the original invention and in all improvements, and they were jointly engaged to perfect the invention, construct and market the improved machine. Complainant’s brother was the designer and draughtsman employed, as complainant contends, in the common enterprise. The improvements for which the brother sought a patent were made in the performance of the contract. It is undoubtedly true, as complainant contends, that the testimony in the interference proceedings in the patent office relates to the question of priority and originality of invention of these alleged improvements.

But it is also true that the position assumed by complainant in the interference proceedings is not wholly explained by the suggestion that whether his brother or Crippen was held to be the inventor, the improvements must nevertheless, under the contract, inure to the benefit of both complainant and Crippen. It is said in the brief for complainant that—

“ If Crippen had not repudiated the contract, if Crippen had not taken the drawings and gone to another patent attorney for the purpose of patenting these improvements, Oliver Barthel would have had no reason to file an. application in order to determine the question of inventor-ship. It was because Mr. Crippen had repudiated the contract and had sought to reap the benefit of the labors of Oliver E. Barthel and of the time and money expended by Otto Barthel, the complainant, that this application was filed. It- might be said that it was unnecessary for Oliver E. Barthel to file an application covering the improvements, because, under the contract, whatever patent might be procured by Crippen upon these improvements would belong to the partnership. But at that time, Barthel had no- way of knowing that this contract would be enforced. There was nothing in writing, and he felt pretty well assured that Crippen, after acting as he did, would deny the existence of the contract.”

If complainant had not, immediately after defendant had taken away the drawings, filed his bill of complaint in this cause, the proceedings instituted by him in behalf of his brother in the patent office would have a more sinister aspect. As it was, he set up his claim in his bill, a pleading which was at once available to defendants as evidence in the interference proceedings. The interference proceedings were as well available to defendants in this cause. The complainant and defendant George F. Crippen were acting in accordance with some arrangement. I do not believe the arrangement was the one stated by defendant. I think it incredible that at the point to which Crippen had proceeded with his idea of a bean-picking machine the parties entered into a contract which involved the building of 10 machines at an estimated cost of $250 each. Defendant immediately proposed an improvement to his invention. Clearly the matter was in an experimental state, with the new idea to be accommodated to the original invention, drawings to be made, patterns made, an experimental machine constructed to demonstrate the value of the machine. It is more probable, since it is agreed there was some arrangement, that it was the one testified to by complainant. His testimony is better corroborated than is that of defendant. I am satisfied, too, that defendant George F. Crippen did not propose to abide by whatever bargain he had made with complainant, and did propose to secure for himself the valuable improvements to his invention, the benefit of the money and time expended by complainant and his brother, and deprive complainant of all benefit and all remedy. There is no excuse made out for his conduct. He asserts the belief that complainant meant to steal his ideas or to render his invention valueless. Mere suspicion can always be asserted as a ground for the breach of contract relations. It must be confirmed by facts before the requirements of the law are met. In this case, defendant’s apprehensions appear to have heen unwarranted.

The form of the decree is not criticised. It gives to complainant the relief prayed for and is affirmed, with costs.

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


author: McAiway, J.

text:
      In re REIDY’S ESTATE. DUDECK v. WATSON.
    1. Witnesses — Statutes — Estates of Decedents — Matters Equally Within Knowledge of Deceased.
    On the trial of an action against the estate of a decedent for services rendered by the wife of claimant, it was error to admit testimony of the claimant that he knew of the services rendered and looked to deceased for payment. Act No. 30, Pub. Acts 1903.

      3. Same — Agent of Claimant.
    As agent of her husband in making the alleged contract for services, testimony of the wife tending to show the making thereof was incompetent under the statute.
    •3. Husband and Wife — Estates of Decedents — Contracts — Disability of Wife.
    A wife is not liable for services rendered to her husband in nursing either member of the family during his lifetime, since the contract does not concern her separate estate and the husband alone is liable.
    Error to Shiawassee; Miner, J.
    -Submitted April 15, 1910.
    (Docket No. 150.)
    Decided July 14, 1910.
    John Dudeck presented a claim against the estate of Emma Reidy, deceased, for services rendered. The claim was allowed in the probate court, and John A. Watson, administrator, appealed to the circuit court. A judgment for claimant is reviewed by contestant on writ of error.
    Reversed.

      John E. Bird, Attorney General, and J. Shurly Ken-nary, Assistant Attorney General, for appellant.

      Austin E. Bicharás and Joseph H. Collins, for appellee.
   McAiway, J.

The claim in dispute in this case is for services rendered by claimant and his wife for Mrs. Reidy, amounting to $730, $355 of which is for services by plaintiff’s wife before the death of Mr. Reidy, and the balance, $375, for services by claimant and his wife for Mrs. Reidy after Mr. Reidy’s death. The larger part of the charges is for the claimed services of claimant’s wife in the nature of domestic services and nursing; the latter rendered both to Mr. and Mrs. Reidy.

Michael Reidy and his wife, Emma, owned and occupied a two-story brick building in the village of Corunna. The ground floor was used for a drug store and the second story as a residence by them. Mr. Reidy died March 20, 1907. Mrs. Reidy died December 26,1908. The claim in dispute was presented to the commissioners on claims in said estate, and allowed but with slight deduction. The administrator appealed from such allowance to the circuit court. The case was tried before a jury in the circuit court and a judgment recovered by claimant for $622.68, which includes some interest. On account of errors claimed to have been committed upon this trial, the administrator has brought the case here by writ of error.

The facts necessary to be stated are: That Mr. and Mrs. Reidy lived at the place mentioned, and for many years an intimate friendship existed between them and plaintiff’s wife. From her earliest childhood she spent much of her time with them. They had no children and the girl was at their home daily, staying frequently all night, and always doing little services about the house and store up to the time of her marriage. This was known to her parents and permitted by them, and no charge was ever made or expected as payment for what she did. The two families lived near each other and there was a path across lots between their homes. No demand was ever made of Mrs. Reidy for the services set forth in the claim in suit, and no charge was ever made by claimant at the time services were rendered.

The argument of contestant and appellant considers the claim under two divisions.

(1) Claims for services rendered before Mr. Reidy’s death.

(2) Claims for services rendered after his death.

He urges that in each case it was necessary to show an express contract. A motion was made by contestant to take both classes of claims from the jury for the reason that no express contracts were shown.

Whatever contracts or agreements were entered into with Mrs. Reidy, relative to the nursing and domestic services charged for, were made with his wife acting for him, and were proved by her testimony alone. Claimant also testified in the case stating that he knew of these services rendered by his wife, and looked to and relied upon Mrs. Reidy to pay him, and to no one else. The testimony of both these witnesses was admitted over the objection and exception of appellant, on the ground that both were incompetent witnesses under the statute (section 10212, 3 Comp. Laws, as amended by Act No. 30, Pub. Acts 1903); the claimant, because such matters were equally within the knowledge of the deceased; and his wife, because she acted as his agent in making the contracts involved in this suit.

The court not only overruled the objections made and refused later to strike out the wife’s testimony, but directly charged the jury that they must find an express contract from the evidence in the case between Mrs. Reidy and claimant’s wife, relative to charges for nursing Mr. Reidy, to charge her individual estate for such services or claimant could not recover; thereby recognizing the agency of claimant’s wife. The court was in error. The wife was not a competent witness to testify as to these contracts. Gustafson v. Eger, 132 Mich. 390 (93 N. W. 893); Finn v. Sowder’s Estate, 139 Mich. 623 (103 N. W. 177); Locklund v. Burman’s Estate, 146 Mich. 233 (109 N. W. 255), and cases cited.

The court was also in error in allowing claimant to testify relative to his knowledge that his wife performed the services for deceased as set forth in his claim, which must have been equally within the knowledge of the deceased; and also to answer the question, “To whom did you look and rely for pay for those services,” and all other testimony of like character given by him. This rule is so well established by the numerous decisions of this court in construing this statute that citations are unnecessary.

The claim for services rendered during the lifetime of Mr. Reidy was, under the circumstances of this case, not a valid claim against the estate of Mrs. Reidy. There is no evidence in the case to make it such. She was at the time a married woman, and the claimed contract was not relative to her separate estate. It was a debt of the husband. Buck v. Haynes’ Estate, 75 Mich. 397 (42 N. W. 949). The proof of claims accruing after the husband’s death against this decedent’s estate depended entirely upon the testimony of the claimant’s wife. The question of her competency covers all of her testimony, and left such claims not proved. Some other questions are presented, but do not require discussion.

For the errors pointed out, the judgment of the circuit court is reversed, and a new trial ordered.

Ostrander, Hooker, Moore, and Brooke, JJ., concurred.


author: Moore, J.

text:
    PORTER v. GOUDZWAARD.
    1. Fraudulent Conveyances —Bulk Sales Act — Creditors — Estoppel.
    A creditor is not estopped from enforcing his remedy under the “ Bulk Sales Act ” (Act No. 223, Pub. Acts 1905) by the fact that he was present when the consideration for a transfer of his debtor’s stock was paid, without knowing the details of the transaction, which failed to comply with the provisions of statute; the purchaser taking no different or prejudicial course because of any conduct of the creditor.
    2. Estoppel — Elements—Equity.
    Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights, which might otherwise have existed, as against another person who has in good faith relied upon such conduct and has been led thereby to change his position for the worse, and who acquires some corresponding right, either of property, of contract, or of remedy.

      Error to Kent; McDonald, J. Submitted April 15, 1910.
    (Docket No. 128.)
    Decided July 14, 1910.
    Replevin by Edwin E. Porter against Louis Goudzwaard. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Dunham & Phelps, for appellant.

      William Wisner Taylor, for appellee.
   Moore, J.

Albert H. Vohlers,.for some time prior to December 27,1907, kept a liquor saloon in Grand Rapids, and owned and had therein a stock of liquors and other things, the ordinary outfit of a liquor saloon, except the bar fixtures and certain furniture, which belonged to the Schlitz Brewing Company and which are not involved in this cause. On September 30, 1907, Mr. McGann became the accommodation indorser for Mr. Yohlers on a promissory note for $150, payable to and at the National City Bank of Grand Rapids, due in 90 days. On December 27,1907, Mr. Yohlers sold to Mr. Porter for a consideration, stated to be $750, all the goods and chattels in the saloon, except the bar fixtures and furniture belonging to the Schlitz Brewing Company. Mr. Yohlers did not pay the note, and Mr. McGann paid it within a day or two after it was due. On April 18, 1908, by writ of attachment from the superior court of ' Grand Rapids, duly issued, Mr. McGann attached the gpods and chattels in question. Mr. Porter immediately replevined them from the deputy sheriff, Goudzwaard, before they were removed under the attachment. Upon the trial a verdict was directed in favor of the defendant.

The case involves a construction of Act No. 223 of the Public Acts of 1905, known as the “Sales in Bulk Act.” It is conceded that the provisions of the act were not followed. The only question involved is the matter of an alleged estoppel as against Mr. McGann, the actual, but not the nominal, defendant.

The claim of estoppel is based upon the testimony of Mr. Porter, the material parts of which are as follows:

“At the time this sale was made and the money paid, Dave McGann was present and I showed him the money; he saw me pay the money to Mr. Yohlers. He sat right in a chair by the table, about 20 or 30 feet from where I paid it.
“Q. When you paid the money to Yohlers what did McGann say to you about Yohlers owing him, and about Yohlers coming down there to settle, if anything?
“A. He said, — he asked Yohlers for the money, and he {Yohlers) said he would be down and settle with him at two o’clock, and he said ‘all right,’ and went away.
“Q. Was that the first time you knew he owed Mr. Yohlers ?
“A. That was the first time I knew that he owed him .a cent; I made a satisfactory arrangement with all the persons named in the affidavit. I didn’t owe Mr. McGann .anything at the time the attachment was issued.”

On the cross-examination he testified:

“ I paid the money to Mr. Yohlers on the 27th day of December. I don’t know that I did — not positively. The bill of sale is dated on the 27th day of December. I think that was about the time I paid the money.
“Q. You paid him the same day?
“A. I think that is correct. * * * After the 27th day of December I conducted the business there. I didn’t change the sign, nor the license. I didn’t pay the State, county or city tax for the year 1907, and up to May, 1908; I just took out a government license. I didn’t take out any State or city license as a retail liquor dealer. This transaction was completed — closed between Mr. Yohlers and myself — on the 27th or 28th day of December, 1907, and the next day I did business there for myself under Mr. Yohlers’ license, State and city. * * * I paid the money to him about 12 o’clock at the saloon — 12 or 1 ■o’clock. None of the parties named in Yohlers’ affidavit were present at the saloon at that time.
“Q. Mr. McGann was there?
“A. Yes, and he saw me pay Mr. Yohlers a lot of money.
“Q. You didn’t show Mr. McGann that paper, did you, that afternoon, when he was there ?
“A. No; I didn’t show it to him. I didn’t know that Vohlers owed Mr. McGann. I didn’t show him the paper, neither did I show him the bill of sale.”
Redirect examination:
“The price that was put down on those things was put down by Vohlers about a week before the money was paid, or a week and a half.
“Q. How long before you paid the money, how long before the bill of sale was made out had you agreed with Vohlers to take the place ?
“A. Well, now, I cannot just tell you, for sure. I had the inventory a week or ten days before. Mr. McGann didn’t say to me why he came up there at that time. I think Mr. McGann was there probably half an hour.”

McGann’s version of what occurred is quite different from this. It is evident from the testimony of Mr. Porter, giving it full credence, that either when the talk was had with Mr. McGann the sale had been made, or that Mr. Porter had knowledge of the existence of this debt before he completed the transaction by making the final payment. In either event it is difficult to see how Mr. McGann, who knew nothing of the details of the transaction, is estopped. Mr. Porter saw fit to make the purchase without complying with the terms of the statute, and without taking any precaution to see that the note upon which Mr. McGann was an indorser was paid. There are various definitions of estoppel to be found in 2 Herman on Estoppel, pages 883 and 884, but they do not justify the contention of appellant.

In 2 Pomeroy’s Equity Jurisprudence (3d Ed.), §§ 804, 812, the following appears:

“Seo. 804. Definition. Prom the foregoing general description it will appear, I think, that the following definition is accurate, and covers all phases and applications of the doctrine: Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, of contract, or of remedy.”
“Sec. 812. Same. The conduct must be relied upon, and be an inducement for the other party to act. Whatever may be the real intention of the party making the representation, it is absolutely essential that this representation, whether consisting of words, acts, or silence, should be believed and relied upon as the inducement for action by the party who claims the benefit of the estoppel, and that, so relying upon it, and induced by it, he should take some action.”

See, also, Rust v. Bennett, 39 Mich. 521; Maxwell v. Bay City Bridge Co., 46 Mich. 278 (9 N. W. 410); Bond v. Markstrum, 102 Mich. 11, 19 (60 N. W. 282).

There is nothing in the record to show that the conduct or words of Mr. McGann affected the conduct of the plaintiff in any way.

Judgment is affirmed.

Ostrander, Hooker, McAlvay, and Brooke, JJ., concurred.