text:
    BAKER v. MOHL.
    1. Intoxicating Liquors — Civil-Damage Act — Evidence—Mortality Tables — Damages—Future Damages.
    In an action against a saloon keeper under tlie civil-damage act (2 Comp. Laws, § 5398; 2 Comp. Laws 1915, § 7050), where the evidence showed that the illegal sales of liquor during the period covered by the declaration contributed to the making of plaintiff’s husband a confirmed drunkard, causing him to lose his position and diminishing his earning capacity, which condition continued up to the time of the trial, the mortality tables were admissible in evidence.

    2. Witnesses — Cross-Examination—Abuse of Discretion.
    Where defendant kept a book with reference to his busi-
    ' ness, and, in his direct examination, testified as to an entry therein relating to plaintiff, cross-examination as to other entries was within the discretion of the court, and where no prejudice resulted to defendant there was no abuse of discretion.
    3. Intoxicating Liquors — Damages—Instructions.
    The court properly instructed the jury that, as one element of her damages, plaintiff was entitled to recover fer the shame, humiliation, and disgrace resulting from the drunkenness of her husband caused by the illegal sales subsequent to the date declared upon.
    4. Trial — Jury—Instructions—Coercion of Jury.
    Where the jury had been absent for 24% hours without being able to reach a verdict and were called into court, and, without objection of counsel, were given further instructions as to their duties, but were advised that they should not surrender a well-grounded conviction, the claim that the verdict was the result of coercion on the part of the trial judge is untenable.

      5. Intoxicating Liquors — Damages—Excessive Verdict.
    Where the evidence showed that the earning capacity o£ plaintiff’s husband had decreased by reason of the illegal sales, and her loss in his contributions to her during the time alleged was greater than the amount of the verdict, it cannot be claimed that a verdict of $1,000 is excessive.
    6. New Trial — Misconduct of Jury.
    While the proceedings in the jury room should be kept secret, mere rumors and gossip as to disclosure of proceedings of the jury is insufficient to warrant the court in granting a new trial.
    Error to Kent; Perkins, J.
    Submitted April 17, 1916.
    (Docket No. 74.)
    Decided June 1, 1916.
    Case by Ida Baker against John Mohl and another for damages under the civil-damage act. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      McKenna & Herman and A. F. Bunting, for appellants.

      Rodgers & Rodgers, for appellee.
    Plaintiff in this case brings her action against defendant Mohl, a saloon keeper, and his surety, under the provisions of the so-called civil-damage act (section 5398, 2 Comp. Laws; 2 Comp. Laws 1915, § 7050). The declaration charges the defendant Mohl with having made illegal sales of intoxicating liquors to John W. Baker, the husband of the plaintiff, between May 1, 1910, and December 17, 1914, the date of the filing of the declaration, with consequent injury to plaintiff in person, property, and means of support. Defendants filed several pleas of the general issue.
    Upon the trial it appeared that plaintiff had been the wife of John W. Baker since 1884, and that said Baker had been employed by the American Laundry in the city of Grand Rapids for 29 years prior to the 19th day of September, 1911, upon which day he was discharged. The record fairly shows that for many years prior to his discharge in 1911 John W. Baker had been a man habitually addicted to the excessive use of intoxicating liquors. It seems, however, that he was able to and did perform the duties of his employment with satisfaction to his employer up to the time of his discharge, although in the months immediately preceding his discharge his lapses from sobriety seem to have been more frequent. He received during the last few years of his employment with the American Laundry the sum of $23 a week. Plaintiff testified that of this sum she usually received from $15 to $18 per week, except during the last year of such employment, when he contributed to her from $7 to $15 per week. After losing his position with the laundry company in September, 1911, plaintiff’s husband sought and obtained numerous other jobs, interspersed with occasional spells of idleness. The earnings of said John W. Baker were much reduced after his discharge by the laundry company, and his contributions to his wife very much less than they had formerly been. The record discloses the fact that after plaintiff’s husband was discharged he took treatment at the Keeley Institute in Grand Rapids in an attempt to break himself of his unfortunate habit. He very shortly thereafter, however, commenced drinking again, and at the time of the hearing was apparently a confirmed inebriate.
    It was the claim of the defendant Mohl, supported by testimony to that effect, that no illegal sales had been made to John W. Baker during the period covered by the declaration. This disputed question of fact, however, was determined in favor of the plaintiff, and a verdict was rendered in the sum of $1,000. Defendants now review the case in this court under 40 assignments of error, which are grouped for argument under five heads:

      “(1) Error in ruling on admissibility of evidence.
    “(2) Error in instructing the jury.
    “ (3) Error in keeping jury out for so long a period and in refusing to discharge them after the officer had disclosed their deliberations to the judge and other persons.
    “ (4) Error in refusing to give the defendants’ requests to charge.
    “ (5) Error in denying defendants’ motion for a new trial, and the reasons therefor.”

       Upon the question of admissibility of mortality tables in evidence, see note in 40 L. R. A. 553.

       As to effect of coercion of disagreeing jury by the court, see note in 16 L. R. A. 643.

   Brooke, J.

(after stating the facts). 1. The first error discussed under this subdivision is the ruling of the trial court under which the mortality tables were admitted in evidence. The claim is made that the mortality tables are admissible only in cases of permanent injury, or where suit is brought by the representatives of a deceased person—citing Mott v. Railway Co., 120 Mich. 127 (79 N. W. 3); Sax v. Railway Co., 125 Mich. 252 (84 N. W. 314, 84 Am. St. Rep. 572); Leach v. Railway, 125 Mich. 373 (84 N. W. 316); and Foster v. Village of Bellaire, 127 Mich. 13 (86 N. W. 383).

It is asserted that the record clearly shows that John W. Baker on the 1st day. of May, 1910, was already addicted to the excessive use of intoxicating liquors, and that he was not reduced to that condition by any act of the defendant; that when the case was tried on March 31, 1915, Baker was no more a confirmed drunkard than he was for years; that he was still alive and enjoying good health so far as the record in the case shows, and was able to work, and was at that time employed steadily, according to his own testimony. It is urged that there is no evidence in the record tending to show that Baker’s health is affected; that his strength is diminished; that his habit of drinking intoxicating liquors is permanent; that it is incurable; that he is unable to work; or that his wife will suffer in her means of support in any way in the future.

We are unable to agree with the contention of counsel in this regard. While it is true that the record discloses that Baker was an excessive drinker prior to May 1, 1910, it is equally true that his habits to that time had not prevented him from performing his ordinary labor and receiving therefor the sum of $23 per week. Indeed, this condition of affairs continued for about iy% years thereafter; for he was not discharged from his position with the American Laundry until September, 1911. The record fairly shows that after May, 1910, and up to the time of the trial, the habits of plaintiff’s husband became gradually worse. His periods of intoxication became more frequent and of longer duration. His ability or desire to labor was less and his earning capacity largely diminished. If, as charged in the declaration, this gradual diminution in the powers of John W. Baker, which certainly continued after May, 1910, and was plainly existent at the time of the trial, was contributed to by illegal sales of intoxicating liquors made by defendant Mohl during the period covered by the declaration, and the jury by their verdict have so determined, we can see no reason for the exclusion of the mortality tables. That the mortality tables are admissible in proper cases under the civil-damage act is clear. Brockway v. Patterson, 72 Mich. 122 (40 N. W. 192, 1 L. R. A. 708); Merrinane v. Miller, 148 Mich. 412 (111 N. W. 1050) ; and Merrinane v. Miller, 157 Mich. 279 (118 N. W. 11, 25 L. R. A. [N. S.] 585).

Error is assigned upon the ruling of the court with reference to the cross-examination of the defendant Mohl in the course of which it developed that Mohl had been sued on two other occasions under the civil-damage act. It appears that the defendant had a small book upon which he made entries with reference to the conduct of his business, which book contained an entry of the date upon which notice had been given him by plaintiff not to sell intoxicating liquors to her husband. Plaintiff’s testimony as to the date of her interview with defendant Mohl seems at variance with that claimed by the defendant. It further appears that earlier entries in the book in question were later in date than the one relating to the plaintiff. While the admission of other entries in the book than those affecting the case at bar may have been erroneous, we are not convinced that the broad discretion lodged in the circuit court to control the course of cross-examination was abused, nor (in view of the result) that the defendant was prejudiced. The case upon this point is somewhat similar to Johnson v. Grondin, 170 Mich. 447 (136 N. W. 423). See, also, Totten v. Totten, 172 Mich. 565 (138 N. W. 257).

The other assignments under this head have been examined, but require no discussion.

2. Assignments of error numbered 19 to 32, inclusive, are based upon the charge of the court as given, and refusal to charge as requested.

In assignments 19, 20, 21, and 22, certain portions of the charge are set out, and they are criticized by counsel for appellants because they say that the effect of the language used was to place the entire responsibility for Baker’s condition in the past, present, and future during his entire expectancy of life upon the defendant. We do not think it necessary to quote the charge, which is very long, upon this question. It is sufficient to say that, read as a whole, the charge nowhere permits the plaintiff to recover any damages from the defendant except such as actually flowed from illegal sales made by the defendant after May 1st, 1910. The charge upon this point — the elements and the measure of damages — is within the rulings of this court. Lucker v. Liske, 111 Mich. 683 (70 N. W. 421); Merrinane v. Miller, 148 Mich. 412 (111 N. W. 1050).

The twenty-second assignment is directed to the charge of the court to the effect that, as one element of her damages, plaintiff was entitled to recover for the shame, humiliation, and disgrace resulting from the drunkenness of her husband and his drunken habits. In connection with this point the court limited the recovery in the following language:

“Another element of damages for you to consider, if you find for the plaintiff, is for her mental suffering caused by the disgrace and discomfort attending upon the besotted condition of her husband, if you find such a condition existed and that it will continue to exist, subject, however, to the same conditions that I have already given you. If he was in a besotted condition on the 1st of May, 1910, the plaintiff cannot recover damages for the condition of her husband on that date or prior to that date. Her recovery must rest entirely and exclusively upon what took place after the 1st day of May, 1910, and the damages accruing subsequent to that date.”

We find no error in the instructions. Ford v. Cheever, 105 Mich. 679 (63 N. W. 975).

3. The record discloses the fact that after the jury had been absent for about 24%’ hours and had sent word to the court that they were unable to reach a verdict they were called into court, and the learned circuit judge delivered to them further instructions as to their duties as jurors to reach an agreement if possible. The instructions concluded as follows:

“Nevertheless, I would not have any one of you come to a verdict, or assent to a verdict which was contrary to your own judgment as to what is right and just in this case. You should act as individuals; yet you should- act together as well, and come to a conclusion if it is possible so to do.”

These further instructions were given without objection, exception, or criticism on the part of defendant’s counsel. The claim of counsel for appellants that the verdict was the result of coercion on the part of the trial judge is untenable. The language used in the supplemental charge was well guarded, and, while impressing upon the jury the necessity for agreement, if possible, they were clearly advised that they should not surrender a well-grounded conviction.

4. Assignments of error based upon the refusal of the court to give defendants’ requests to charge appear under this head. So far as they were proper, we find that they were fully covered by the charge as given.

5. Error is assigned upon the refusal of the court to grant a new trial for most of the reasons heretofore considered in this opinion. Added to these were the following:

(1) That the verdict was contrary to the great weight and preponderance of evidence.
(2) Because said verdict is excessive in amount. * * *
(9) Because the jury were permitted to disclose to the court officer what questions they, were considering and how the vote stood.
(10) Because the cburt officer was permitted and did_ inform others about the court room regarding the deliberations of the jury, what questions they were considering, and how they stood several hours before the verdict was returned.
(11) Because the court officer was permitted and did inform others about the courtroom regarding the deliberations of the jury, what they were considering, and how they stood.
(12) Because the instructions of the court to the jury upon their return into the court room at 5:05 p. m., on April 8th, in view of his knowledge of their deliberations and how they stood, amounted to a coercion of a verdict from the jury.

The basic question of liability was hotly contested. Plaintiff and her witnesses gave positive testimony of actual illegal sales. Defendant and his witnesses as strongly denied the same. The question of fact thus raised was determined by the jury in favor of the contention of plaintiff, and we are not prepared to say that the conclusion is against the weight of the evidence in such a sense as to demand a reversal upon the ground that the trial judge erred in refusing a new trial based upon that assertion.

Having in mind the earning capacity of plaintiffs husband prior to and during the year 1910, and up to September, 1911, and his decreased earning capacity and decreased contributions to his wife after that time, we are unable to see how it can be claimed that a verdict of $1,000 is excessive. If the testimony of the plaintiff was entitled to credence, she had lost much more than that amount in actual contributions from her husband between the 1st of May, 1910, and the time of the trial.

In an affidavit filed by counsel for appellant in support of a motion for a new trial, it is asserted that several hours before the verdict was rendered counsel for appellant had a conversation with the learned trial judge, who told him that he had been informed by the jury that they could not agree; that some were in favor of voting for 6 cents damage, and others of the jury were in favor of damages as high as $8,000; further, that M. L. Dunham and others who were engaged in a trial in the courtroom at the time had learned and informed deponent exactly how the jury stood and upon what questions they differed.

Bearing upon this question, the trial judge in his denial of the motion fpr a new trial said:

“It is not believed that the officer in charge of the jury unlawfully disclosed to any one their deliberations in the jury room; nor did the court know the state of their deliberations, except that they announced through such officer that they cpuld not agree. It is true that more or less interest in the result was manifested by those remaining in and about the courtroom and in the corridors of the courthouse while the jury was considering the case, that more or less speculation was being indulged in as to the state of their deliberations, and that the officer related to the court some of these rumors. Whatever conversation the court may have had with Mr. McKenna, of counsel for the defendants, during this time, could not and did not go beyond the repetition of these rumors. No significance or reliance was attached to or placed upon these rumors by the court, or any one else, so far as the court was aware. The jury were not kept out an unreasonable length of time, as defendants’ counsel claims. According to the custom of this court, the jury were taken to a hotel between 10 and 11 o’clock in the evening, where they were given their usual night’s rest, and did not resume their work until about the hour for opening court the following morning. During this time, however, they were under the care of two officers of the court. No message was received by the court from the jury until just immediately before the instructions were given admonishing them to agree upon a verdict if they could conscientiously do so. While these instructions were being given counsel for both parties were present in the courtroom, and no objection or exception was made or taken thereto. On receiving word through the officer that the jury could not agree, the court immediately consulted counsel for both the plaintiff and the defendants, who were present in court, as to the advisability of discharging the jury or giving them further instructions as to their duty and permitting them for a time to further consider the case. The latter course was apparently assented to by both parties, and the instructions were given.”

It is unquestioned that the proceedings in the jury room should be kept secret. It is common experience, however, that during the protracted deliberations of a jury over their verdict in a hotly contested case speculation as to the result and gossip about the stand of the jury is rife. This speculation and gossip may sometimes have foundation in unwarranted disclosures made by the officer in charge of the jury. More frequently, however, we believe it to be mere idle gossip. In the case at bar we have the assertion of the learned trial judge to the effect that he did not have the information claimed to have been detailed by him to counsel for the appellant. With that assertion we are satisfied.

We find no reversible error in the record, and the judgment is affirmed.

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


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    MAPLE PRESS PRINTING CO. v. WAYNE CIRCUIT JUDGE. GOODMAN v. SAME.
    Injunction — -Preliminary Injunction — Corporations— Officers’ Salary — Modification.
    Where complainant’s hill charged conspiracy on the part of judgment debtors to form a corporation and place their property beyond her reach as a judgment creditor, the preliminary injunction granted by the court below prohibiting the corporation, among other things, from paying a weekly salary to two of its active officers, which, it is asserted, is necessary for their maintenance and support, should be modified to allow such salaries to be paid.
    Mandamus by the Maple Press Printing Company and others against George S. Hosmer, one of the circuit judges for the county of Wayne, to compel the respondent to vacate or modify an injunction.
    Submitted April 11, 1916.
    (Calendar Nos. 27,099, 27,100.)
    Writ granted modifying injunction, June 1, 1916.

      Harold H. Emmons, for relators.

      Selling & Brand, for respondent.
   Brooke, J.

This is an application on the part of both relators for an order requiring respondent, the circuit judge of Wayne county, to vacate or modify an injunction issued by him upon the filing of the bill of complaint by one Anna Gornetzky. It appears that said Anna Gornetzky secured a judgment (affirmed in this court) against her father-in-law, Harris Gornetzky, and her mother-in-law, Matilda Gornetzky, and that at the time she commenced her action against the parents of her husband they were possessed of certain real estate and a small printing business. She charges in her bill that while she was prosecuting her action against the Gornetzkys, they, in combination with defendant Harry Goodman and others, conspired together to place their property beyond her reach as a judgment creditor. It is charged that to this end relator the Maple Press Printing Company was formed, and a chattel mortgage on the property of said company executed in favor of relator Harry Goodman. Upon the filing of the bill, relators and the other defendants named in said bill of complaint filed several answers under oath, denying the charges of fraud and conspiracy contained in complainant’s bill of complaint. Upon the hearing of the application for a preliminary injunction the court below enjoined:

(1) The Maple Press Printing Company from incumbering, disposing of, or otherwise dealing with a certain Oldsmobile automobile bearing license No. 37,-805.
(2) Harris Gornetzky and Lasser Gornetzky from taking, as salary or otherwise, any sums of money from the assets of the Maple Press Printing Company.
(3) Harry Goodman from attempting in any way to transfer or foreclose the chattel mortgage given, on October 3, 1914, to him by the Maple Press Printing Company.

Respondent having denied the motion to vacate or modify the injunction so granted, this application for mandamus followed.

It i.s disclosed by the record that at the time of the hearing of the application for a preliminary injunction and in denying said application, the learned circuit judge offered to proceed to an immediate hearing upon the merits. Defendants in the chancery proceeding (relators here), however, declined to proceed to an immediate hearing, urging prior engagement of counsel and other reasons for such refusal. It is strongly urged by counsel for respondent that this refusal on the part of relators to proceed to a hearing upon the merits should be considered as a further evidence of their bad faith in the premises. While defendants’ conduct in this regard is certainly open to the imputation of bad faith, we are still of the opinion that the injunctive relief granted went too far. The relator the Maple Press Printing Company is now a duly organized corporation. Harris Gornetzky and Lasser Gornetzky are two of its officers, and appear to be actively engaged in its interest in the publication of a small Jewish periodical. It is shown by the record that Harris Gornetzky’s salary was $25 a week, and that of Lasser Gornetzky $15 per week. The injunction prevents them from withdrawing from the corporate funds these amounts, which, it is asserted, is necessary for their several maintenance and support. It must be remembered that the complainant in the original case is neither a stockholder nor a creditor of the Maple Press Printing Company. We are of opinion that the injunction should be modified, permitting the relator the Maple Press Printing Company to pay the salaries of Harris Gornetzky at $25 per week and Lasser Gornetzky at $15 per week, said payment to commence from the- entry of the order in this court, and to continue until the final determination of the case in the court below. The case being at issue, the complainant should have little difficulty in securing an early hearing under the rules of the court.

Modified as indicated, the injunction will stand. No costs will be granted upon this motion.

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


author: STEERE, J.

text:
    FREEMAN v. EAST JORDAN & SOUTHERN RAILROAD CO.
    1. Appeal and Error — Directed Verdict — Evidence.
    On appeal from a directed verdict for defendant, plaintiff’s evidence, taken as true, will be viewed most favorably to his contention.
    2. Master and Servant — Negligence — Wilful Negligence — Workmen’s Compensation Lawt — Burden of Proof.
    In an action for personal injuries by a servant against a master who has not elected to accept the provisions of the workmen’s compensation act (Act No. 10, Extra Session 1912), the burden of proving contributory negligence, and that it was wilful, rests upon defendant.
    3. Same — Wilful Negligence — Questions for Jury.
    Where plaintiff in such action violated an order to block the wheels of an engine when working under it, given him when he was first employed three years before, and which had been repeatedly violated by himself and others, in the presence of defendant’s master mechanic, without reprimand or reassertion of the rule, it was a question of ■ fact for the jury whether plaintiff’s disregard of the rule constituted wilful negligence within the meaning of the statute, relieving the master from liability.
    Error to Carlevoix; Mayne, J.
    Submitted April 4, 1916.
    (Docket No. 14.)
    Decided June 1, 1916.

      Case by Mortem Freeman against the East Jordan & Southern Railroad Company for personal injuries. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Reversed.

      Be Foe, Hall & Converse, for appellant.

      Clink & Williams, for appellee.
   STEERE, J.

On April 24, 1913, while employed by defendant at its roundhouse at East Jordan, Charlevoix county, plaintiff was injured by the drivewheel of an engine running over the ends of the two middle fingers of his left hand, resulting in the removal of each below the first joint. Defendant had not elected to accept the provisions of the workmen’s compensation act, and this action was brought to recover damages for said personal injury, charged as imputable to defendant’s negligence. Section 1, pt. 1, of that act (No. 10, Pub. Acts 1912, Extra Session [2 Comp. Laws 1915, § 5423]) provides:

“In an action to recover damages for personal injury sustained by an employee in the course of his employment, or for death resulting from personal injuries so sustained, it shall not be a defense:
“(a) That the employee was negligent unless and except it shall appear that such negligence was wilful;
“(b) That the injury was caused by the negligence of a fellow employee;
“ (c) That the employee had assumed the risks inherent in or incidental to, or arising out of his employment, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances.”

At conclusion of plaintiff’s testimony defendant’s motion for a directed verdict in its favor was granted on the ground it appeared that plaintiff himself was negligent, and “that such negligence was wilful.” This is the only question of serious importance raised. In passing upon it plaintiff’s evidence, taken as true, is to be viewed in the light most favorable to his contention. No fellow employee was connected with the accident, and under the statute plaintiff did not assume the risks ■incidental to his employment, nor those arising from a defective condition of the engine upon which he was at work when injured; neither was his negligence in the matter any defense, unless “wilful.” From this record we may fairly enter upon an investigation of the question raised under the assumption that the slogan of “safety first” had not been loudly sounded in that locality, and that both parties were guilty of negligence causing or contributing to the injury.

At the time of the accident plaintiff was 24 years of age, and had been in defendant’s employment for three years as night watchman at its roundhouse with varied duties, a part of them being those of “hostler,” in railroad parlance, or to receive the engines as they came in from a run, clean, coal, and otherwise care for and make them ready for departure on the road when again wanted. Though not an engineer, he was familiar with his duties and acquainted with the peculiarities of engine No. 5, which he was caring for when injured. Its ash pan under the fire box was not self-dumping nor equipped with a’ blower, but had openings on each side and at the rear through which ashes were removed with a heavy hoe provided for that purpose. The pan could not be entirely cleaned from the sides. Plaintiff was instructed by the master mechanic to clean out what he could from the sides, which was a little over half, and then “hoe the rest from behind.” To do this efficiently it was customary and necessary for the person doing the work to get under the engine back of the rear drive wheels. Plaintiff had been told by both the master mechanic and night foreman to do the cleaning in that way. When he began to work for defendant three years prior to the accident, and the master mechanic instructed him how to do this work, which necessitated getting under the engine between the rails, he told him to always block the wheels of an engine before going underneath it. About a year before the accident the throttle of engine No. 5 became defective and out of repair owing chiefly to the notches in the quadrant and block of the spring clutch on the throttle handle having become so badly worn that they would not always, remain meshed together where the released spring set and tightened them. A witness named Bowman, called by plaintiff under the statute, who had both fired and driven the engine for defendant, explaining the mechanism and defects, stated that when the engine was stopped in the usual manner “may be it would stay there and may be it wouldn’t,” but would sometimes loosen up and move after it had been in one position for some little time. The defective throttle opened by degrees, applying the power gradually, thus starting the engine slowly. Both Bowman and plaintiff reported and complained of this defect several different times to the master mechanic under whom they worked, but no repairs were made, and it remained in that condition until the accident occurred. Bowman testified that he and others, in cleaning out the ash pan of this engine, crawled under it and hoed the pan out at the back end. Plaintiff testified that after this condition developed he had trouble with the engine while at work cleaning it, and finding that by blocking the wheels it would be held stationary when the throttle started to work open until sufficient power developed to cause it to climb, or run, over the blocking, so that it would start off more quickly than when the blocks were not there, making it more difficult to escape when working beneath it. Some six or seven months before his accident he went to the master mechanic and explained this to him, after which he did not block it, and the master mechanic saw him at different times working under the engine when it was not blocked; that not only the plaintiff, but other men, who had occasion to go under the engines, did so without blocking the wheels, at times when the master mechanic was present as well as when he was absent, and, so far as plaintiff knew, no objection was made to this, nor was he ever told but the one time, when he first began work three years prior to his injury, to block the engine before going undei it, and subsequent to that time he had seen the master mechanic himself when in charge of work which required the men to be under the engines and they were not blocked; that he went under this engine without blocking “because she would climb over the blocking,” and he considered it safer without; that when injured he knew he was told three years before not to go under without blocking, but did not at the time have it in mind or think about it, nor intend or expect to be injured.

On the occasion of the accident, while engaged in getting the engine ready for its trip upon the road the next day, plaintiff coaled it up at the coal sheds and ran it back up a slight grade to near the roundhouse and stopped it at a proper place to clean it, shutting the throttle off tight and seeing that the teeth in. the latch properly meshed in the quadrant, and then proceeded to clean out the ash pan. It is admitted that it was his duty at that time to clean the ash pan upon the track outside of the round-house. While he was at this work under the engine it started up. His description of the accident is as follows:

“I noticed the engine starting. * * * I was in between the rails cleaning the pan. * * * I was on one foot and one knee, hoeing the pan, and.when I seen her starting to move, I caught the rail and swung my body from under the pipe, and during the time I was swinging it got my fingers.”

That there was evidence for the jury tending to show defendant’s negligence, there can be no question, and that plaintiff’s injuries arose out of and were sustained in the course of his employment, is clear. His assumption of the risk cannot be urged as a defense, and the extent to which he was negligent is immaterial, unless it was wilful. It is claimed, and was found by the trial court, to have been wilful because he knowingly violated an order, or failed to follow the instructions given him by the master mechanic when he entered defendant’s employ three years before the accident, relative to blocking the wheels of an engine when going under it. It is not shown that this was a general order or rule promulgated by defendant, nor that such order had been given to or observed by other employees. If any such general order or rule was ever issued, which.the record does not disclose, it is shown to have been repeatedly violated by employees in the presence of the master mechanic, from whom plaintiff received his order, without reprimand or reassertion of the rule. The proposition here is that the violation of this rule or order of the master is, not mere negligence, but wilful negligence per se. The general rule of law borne out by abundant authority is:

“The disobedience of a servant to reasonable rules or orders of his master, of which the servant has notice and which are then in force, is, if it proximately contributes to his injury, evidence of his contributory negligence” (1 Shearm. & Redfield on Neg. [6th Ed.] § 2Q7&)

— which would, make the question of mere negligence, by reason of violating an order or rule, an issue of fact for the jury.

It is also stated as a general rule borne out by decisions in this and other courts that:

“The violation by a servant of a rule or order promulgated by the master for the conduct of his business is not'negligence per sc, and his disobedience will be excused where the rule or order is unreasonable, where obedience thereto is not practicable, or is unsafe, _ * * *” and “where a rule is habitually violated with the knowledge and acquiescence, either actual or imputed, on the, part of the master or those who are acting as his representatives, a servant will not be charged, as a matter of law, with contributory negligence in acting in disregard of it,” etc. 26 Cyc. p. 1269, 1270.

If plaintiff’s testimony is true — and it is to be so considered for the purpose of this inquiry — this order to him, not shown to have been made general, had not for a long time been complied with by himself or by other workmen, to the knowledge and imputable acquiescence of the master mechanic from whom it was originally received and to whom plaintiff had explained the effect of its observance when working under engine No. 5, because of its peculiar defects which did not exist when the order was given, and, he abandoned its observance because he found it safer to do so. He testified to these things as facts known to him from personal observation and experience. Can it be said under such evidence, to a certainty beyond where men’s minds might reasonably differ and where no reasonable inference may be drawn to the contrary, that disregard of this order to block the wheels was, as a matter of law, wilful negligence, which, whatever the self-contradiction and inaptness of the expression, was manifestly intended by the legislature to mean moré than mere, or ordinary, negligence?

We are not required to here consider the merits of this case or what aspect it may assume when fully tried. The one controlling question now before us is whether on this record plaintiff’s testimony, taken as true and viewed most favorably to his contention, affirmatively and conclusively shows him guilty of wilful negligence, to the exclusion of all legitimate inference to. the contrary. Primarily the burden of proving contributory negligence, and that it was wilful, rests upon defendant. From this record we are of the opinion that plaintiff’s testimony still left it an issue of fact for the jury,

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

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


author: Steere, J.

text:
    PAWLICKI v. DETROIT UNITED RAILWAY.
    1. Damages — Earning Capacity — Evidence.
    Impairment of plaintiff’s ability to earn money was a proper element of damages, in an action for personal injuries, and, though he was not at the time of trial earning anything, what he had been able to earn when last at work, if the period was not too remote, might well tend to throw some light on his loss.
    2. Same — Earning Capacity.
    As bearing upon the destruction or impairment of plaintiff’s earning powers, his previous trade or vocation and what he was last able to earn while following it, his age, physical condition and ability to work when injured, with any other facts which might tend to throw light upon that question, were admissible, not as an arbitrary measure of damages, but as a guide or assistance in enabling the jury to exercise a sound and just discretion in determining the proper amount.
    3. Same — Elements of Damages — Earnings.
    The court was not in error in charging that plaintiff' could recover any material loss he has sustained: wages, his ability to work during the time, etc.

      4. Same — Earnings—Evidence.
    As to the objection that it was error to tell the jury they could consider as an element of damages plaintiff’s former rate of wages, because his testimony showed that he had quit his trade and was a retired shoemaker with no intention of working for wages, the instruction was not objectionable as there was testimony that his health was good and he proposed to open a shoe business. His fitness for that vocation and what he had recently been able to earn in it were the only available evidence from which his loss by reason of destruction of earning capacity could be weighed and was competent for the jury to consider for whatever light it might throw on the question of damages.
    5. Same — New Trial.
    It was proper to show what wages would be open to the plaintiff in a business he understood and which he would have the right to resume but for his injuries.
    6. Same.

      Held, that the court properly denied defendant’s motion for a new trial and the damages were not excessive.

    Error to Wayne; Hally, J.
    Submitted April 6, 1916.
    (Docket No. 24.)
    Decided June 1, 1916.
    Case by Anthony Pawlicki against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Moody and A. B. Hall, for appellant.

      August Cyrowshi, for appellee.

       Generally as to excessiveness of verdict in action for personal injuries, see comprehensive note in L. R. A. I915F, 30.

   Steere, J.

Plaintiff was injured on the 19th of June, 1910, by falling from one of defendant’s cars at the corner of Chene street and Harper avenue in the city of Detroit. The negligence charged consisted of suddenly starting the car while he was trying to alight, without giving him reasonable time in which to safely do so. Plaintiff, who resided in the vicinity of the accident, was a passenger on a north-bound Baker street car, which ran along Chene street past his home, and on nearing Harper avenue gave a signal to stop the car. It stopped on the north or farther side of Harper avenue, at just what point is in dispute. Plaintiff and his witnesses testified the stop was very short; that other persons got off while he was alighting, and just as he attempted to do so with all reasonable expedition, standing with one foot on the running board and holding with one hand to a handle on the car, in the act of stepping off, the conductor gave a signal and the car started suddenly, with a jerk, while he was in an unstable position either for alighting or remaining upon the car, to which he clung for a distance, and, being.unable to continue his hold, fell, or was thrown, striking his head upon-the brick pavement, where he lay unconscious until carried to his home, being seriously and permanently injured. He describes the accident as follows:

“I got hold of the handle, and one .foot on the step or running board, and tried to get off the car. ' When I was ready to put the other foot down, the car started and I fell. * * * I held onto the handle with one foot on the running board while the car went a distance of 75 feet; then I was lying on the ground unconscious.”

Defendant’s contradictory evidence and explanation of the accident were that plaintiff tried to alight from the car before it stopped, or had reached its regular ■stopping place, which was farther north, beyond a switch on a curve in the track at that corner, and that he fell in attempting to alight as the car swung upon the curve before stopping; the accident being wholly attributable to his own negligence in attempting to leave the car before it stopped.

A verdict and judgment were rendered in plaintiff’s favor for the sum of $2,000. Defendant seeks a reversal under the following assignments of error:

“(1) The court erred in permitting the following question and answer over objection:
‘Q. Mr. Pawlicki, the last time you were employed before this accident, how muck did you earn per day or week?
‘A. $12 per week.’
“ (2) The court erred in denying the motion to strike out such answer.
“(3) The court erred in overruling the motion of defendant for a new trial.”

The claimed errors in permitting and refusing to strike out plaintiff’s testimony as to what he earned per week when last employed before the accident is predicated on his testimony that he was idle at that time, had not been employed since coming to Detroit, and did not contemplate working at his trade as an employee again. His evidence upon that subject disclosed that he was about 65 years of age when injured, up to which time he was always in good health and never had a doctor; that previous to removing with his wife to Detroit, some six months before, where their children were located, he lived in Stamford, Conn., and worked in a shoe factory for $12 per week; that- he removed to Detroit because he had children there and to better his condition, then having a little money and intending to open a shoe store there, for which he expected his son, who worked for the Packard Automobile Company, would build an addition to the place where plaintiff lived, and run, or help him run, the business; that he first visited his children for a time, and then was waiting and looking for a place of business until the accident from which he never recovered, and as a result of which he had since been unable to work or engage in business.

Impairment of plaintiff’s ability to earn money was a proper element of damages, and, although not then earning anything, what he had been able to earn when last at work, if the period was not too remote, might well tend to throw some light on his loss in that particular. It is seldom in tort actions, and particularly for personal injuries, that exact data can be furnished or found by which to accurately measure the various elements recognized as composing adequate compensation for the loss or injury sustained. The law does not require impossibilities, nor demand a higher degree of certainty than the nature of the case admits. Reasonable latitude is therefore necessarily allowed in the range of inquiry as to damages in actions ex delicto, for which no fixed rule of exclusion or inclusion can be formulated; but it is recognized as a general proposition that where the damages, or any part of them, cannot be ascertained with certainty, it is permissible to lay before the jury “all the facts and circumstances of the case, having any tendency to show damages, or their probable amount; so as to enable them to make the most intelligible and probable estimate which the nature of the case will permit.” Allison v. Chandler, 11 Mich. 542. And as bearing .upon the destruction or impairment of plaintiff’s earning powers his previous trade or vocation and what he was last able to earn while following it, his age, physical condition, and ability to work when injured, with any other facts which might tend to throw light upon that question, were admissible, “not as furnishing an arbitrary measure of damages, but as a guide or assistance in enabling the jury to exercise a sound and just discretion in determining the proper amount,” if any. 13 Cyc. pp. 202, 203.

Defendant’s counsel quote and urge as error the following excerpt from that portion of the charge relating to the elements of damage which it was permissible for the jury to consider if they found plaintiff entitled to recover:

“Any material loss that he has sustained, wages, his ability to work during the time, his ability to work in the future,” etc.

We think the propriety of this reference to wages, of which particular complaint is made, goes with the admissibility of plaintiff’s testimony as to the wages he was earning when he last worked.

It is contended that it was error to tell the jury they could consider as an element of damages plaintiff’s former rate of wages, because his testimony showed that he had quit his trade and was a “retired shoemaker,” with no intention of again working for wages. He testified that his health was good, and.it was his intention to open a shoe business to better his condition, so that he would not have to work as before. His prospective profits in a contemplated business were manifestly not open to proof. He had voluntarily quit his previous employment, which was of such a nature that he could in all probability resume it. His fitness for that vocation and what he had recently been able to earn in it were the only available evidence from which his loss by reason of destruction of earning capacity could be weighed, and we think was clearly competent for the jury to take into consideration, for whatever light it might throw on the question of damages. In Peterson v. Traction Co., 23 Wash. 615 (63 Pac. 539, 65 Pac. 543, 53 L. R. A. 586), it was held that, although there was no claim plaintiff intended to return to a former calling, which he had not followed for three years previous to his injury, proof of the wages he had earned when engaged in it was admissible' as bearing upon his damages by reason of impaired ability to earn; the court saying:

“It was proper to show what wages would be open to the plaintiff in a business he understood, and which he would have the right to resume, were it not for the injuries which prevented him from again entering that business.”

See, also (to’ the same effect), Grimmelman v. Railway Co., 101 Iowa, 74 (70 N. W. 90), and (as to remoteness) Sias v. Reed City, 103. Mich. 312 (61 N. W. 502).

It is further contended that defendant’s motion for a new trial should have been granted on the ground that the verdict was against the evidence and excessive, and particularly as—

“the weight of the medical testimony was overwhelmingly in favor of defendant, but by the verdict was evidently disregarded by the jury, and because of the plaintiff’s appearance, caused by a complication of serious diseases, an excessive verdict was awarded.”

Both sides introduced medical testimony. The physician who attended plaintiff gave evidence in his behalf. He testified that he. found plaintiff had a contused wound in the back of the head, with a hemorrhage from the ear, some broken ribs, bruises on the elbow, which he thought might be a fracture, a ruptured eardrum, and had suffered a nervous shock the effects of which would be permanent; that the injuries were serious and painful, requiring his constant attention for several weeks. This witness had, however, made a report of plaintiff’s injuries to defendant shortly after the accident, for which he was paid, describing them as bruises on various parts of the body, not mentioning the ruptured eardrum, fractured ribs, or serious nervous shock, stated 'the treatment he had prescribed was “rest” and “probable results good.” His impertinent answers and lame explanation of these discrepancies, as to which all that defendant contends may be conceded, were, however, matters for the jury rather than the court.

The expert testimony of the physician called by defendant, who first made an examination of plaintiff over two years after the accident, was to the effect that he was suffering from Bright’s disease, to which all his other ailments were attributable, and which could not be,.and was not, due to the accident. Eliminating the comparative intelligence and veracity of the medical experts, which it was for the jury to weigh, plaintiff’s own testimony as to how the accident occurred is supported by that of his wife and granddaughter, who were with him on the car, and a butcher, who saw it from his store on the corner and helped carry him home. Members of his family testified to the seriousness of his injuries, and that while a healthy man before the accident he had been unwell in various ways, in declining health, unable to work or entirely take care of himself. His wife testified that he was in bed six weeks, had three physicians, has since been troubled with dizziness and nervous attacks, could not even do little things around the 'house, and she had to assist him to walk around. He testified to the effect of the accident upon him as follows:

‘T have done no work since, because I cannot; I am too nervous. My wife has to lace my shoes. I can’t bring coal to the stove; my hands are shaking, and I am nervous; when I try to lift anything, I can’t, for I am nervous. I have today pain in my side; right after the accident I had these pains, and before I was always well. -I suffer continually, and I put plasters on my side, for it always pains me there. When I stop I get dizzy. Right after the accident I had vomiting spells. I had no other injuries, only my head, side, and arm. * * * I was always healthy. * * * I never had a doctor attend me. My first doctor was at the accident.”

The credibility of all these witnesses was for the jury, and there is abundant testimony, if believed, to support the verdict, both as to the nature of the accident and amount of damages awarded. We are not prepared to say from this record that the verdict is, as a matter of law, excessive or against the overwhelming weight of evidence.

The judgment is affirmed.

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


text:
    McCONNELL v. TOWNSHIP OF LAKE.
    1. Taxation — Homestead—Soldier’s Exemption.
    The provisions of Act No. 174, Pub. Acts 1911, 1 Comp. Laws 1915, § 4001, exempting from taxation the property of soldiers, occupied as a homestead, to the value of $1,000, are to be strictly construed, and, though beneficent in purpose, the act is not subject to the rule of liberal interpretation applied to remedial statutes or to those which create exemption from execution.
    2. Same — Homestead—Occupation—Curtilage.
    Lots not within the curtilage, or adjacent to plaintiffs home or fixed residence, though in the same block, two lots being separated from the residence by a regularly laid out alley, and upon one a pool room and ice cream parlor being situated, while the other was occupied by a dwelling that he rented and an ice house, were not entitled to exemption within the meaning of the act aforesaid.
    3. Same — Definition—Constitutional Law.
    The constitutional definition of a homestead, as related to the exemption from levy or sale under execution, limits the right of the claimant to one village lot with the house or residence. Cf. section 2, Art. xiv, Constitution.

      Case-made from Missaukee; Lamb, J.
    Submitted April 11, 1916.
    (Docket No. 72.)
    Decided June 1, 1916.
    Assumpsit by James McConnell against the township of Lake, in the county of Missaukee, to recover a tax paid under protest. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      E. F. Sawyer, for appellant.

      Arthur W. Penny, for appellee.
   Steere, J.

Plaintiff, a veteran of the Civil War, resided in the village of Jennings, Lake township, Missaukee county, Mich., where he owned three village lots, which, as part of the property within the platted limits of said village, appeared against his name on the assessment roll of the township of Lake for the year 1914, as follows:

“Lot one 1, block I — Soldier’s Exemption. Lot eleven 11, block I, assessed $250. E. % lot 12, block I— Soldier’s Exemption. W 1/2 lot 12, block I, assessed $200.”

After demand of payment by the tax collector and threat of levy, plaintiff paid the taxes assessed against lot 11 and west one-half of lot 12 under protest, claiming that the property above described was all exempt from taxation under the soldier’s homestead exemption law, and brought this action to recover the amount so paid, aggregating, with collection fees, etc., $18.22. The cause was tried in the circuit court of Missaukee county without a jury, resulting in a judgment of no cause of action.

From the record and findings filed by the court the following facts appear without dispute: The village of Jennings is located within and forms a part of the township of Lake, and was unincorporated at the time of making the assessment in question, but had been ■regularly laid out, surveyed, and platted into blocks and lots, separated by streets, avenues, and alleys, according to a plat made in compliance with statutory requirements, which had been duly approved and recorded in the office of the register of deeds of Missaukee county. In making the assessment of property within the limits of said vilage, the assessing officers of Lake township described the real estate by lots and blocks. Of the three lots which plaintiff owned, lot 1, upon which he resided, is separated from lots 11 and 12 by a regularly laid out and platted public alley. The situation is thus found and stated by the court:

“That upon lot 1, block I, there was a dwelling occupied by the plaintiff as his home; that upon the east half of lot 12, block I, and on the opposite side of the alley from lot 1, was a barn used by the plaintiff in connection with his dwelling house, on lot 1; that upon the west half of lot 12 is located a pool room and ice cream parlor, which for several years had been used as a dance hall; that upon lot 11, block I, an ice house and a dwelling house are located; and that the ice house is made use of by the plaintiff in the sale of ice, and the dwelling on lot 11 is rented to tenants'. That said lots 1, 11, and 12, block I, and the buildings thereon, are not worth the sum of $8,000, and that lot 1 and east half of lot 12 are not worth the sum of $1,000.”

Section 7 of the general tax law, which provides what real property shall be exempt from taxation, includes in subdivision 11 “all real estate to the value of one thousand dollars used and owned as a homestead by any soldier,” etc. Act No. 174, Pub. Acts 1911 (1 How. Stat. [2d Ed.] § 1775 [1 Comp. Laws 1915, § 4001]).

As this case is presented by the record and argument in briefs of contending counsel, it turns upon construction of the language above quoted from the soldiers’ exemption law, and particularly the meaning to be given to the word “homestead” in the connection used. Upon that proposition the trial court said:

“Homesteads, while exempt from levy and sale on execution are, as a rule, assessed for taxation. Any exemption therefrom is a special privilege, and as such should not be extended by construction. The purpose of the soldiers’ exemption act is plainly a beneficent one. From the early days it has been the avowed policy of our courts to hold exemption laws, even though beneficent in their purpose, in derogation of equal rights, and to subject them to a strict construction for that reason.”

Counsel for plaintiff urges that in thus applying the rule of strict construction to this statute the court started wrong, and “with this wrong start it was next to impossible to come to a right conclusion.” In support of this contention counsel cites and quotes from a line of authority sustaining the rule of liberal construction for remedial statutory provisions exempting homesteads and other property from execution and sale by creditors. A provision exempting from taxation is under consideration here. The line of demarcation between statutes exempting from execution and those exempting from taxes is well defined. The one grants a property right, while the other is a mere matter of favor. Statutes and provisions exempting persons or property from taxation are strictly construed. 2 Sutherland on Stat. Const. (2d Ed.) § 539; 1 Cooley on Taxation (3d Ed.), p. 357; St. Joseph’s Church v. City of Detroit, 189 Mich. 408 (155 N. W. 588); In re Walker, 200 Ill. 566 (66 N. E. 144) ; Cooper Hospital v. City of Camden, 70 N. J. Law, 478 (57 Atl. 260); 37 Cyc. pp. 891, 892, and cases there cited. These authorities fully sustain the views expressed by the trial court upon that subject.

The constitutional definition of a homestead (article 14, § 2), as to size of site, though relating to exemption from forced sale on execution or other final process of a court, limits it to 40 acres in unplatted territory, and not to exceed one lot within a recorded town plat, city or village, which need not be incorporated. Even under the rule of liberal construction applicable to exemption from execution, it has been said that such a provision extends only to such contiguous territory as is occupied as a homestead, which means the—

“home, the house, and the adjoining land, where the head of the family dwells. * * * It does not extend to other tenements, lots, and farms, that are not occupied personally by the owner and his family; houses in which they do not dwell. * * * And the term does not necessarily imply all those parcels of land, which may adjoin and be occupied together, for the homestead is the place of the house.” Hoitt v. Webb, 36 N. H. 158.

This case is the basis of the definition found in Black’s Law; Dictionary, which defines a “homestead” as:

“The home place; the place where the home is. It is the home, the house and adjoining land, where the head of the family dwells; the home farm. The fixed residence of the head of a family, with the land and buildings surrounding the main house.”

The taxed property in this case was not within the curtilage of nor adjacent to plaintiff’s home or fixed residence. It was neither occupied nor used by him as a homestead. For the use to which it was devoted it might as well have been located in some other part of the village, aside from the convenience of getting to it from his home. A portion of it was rented, and a portion used for business purposes. Its status was neither within the letter nor the spirit of the act, which exempts from taxation “real estate used and owned as a homestead by any soldier,” etc. We think the trial court correctly held as a conclusion of law that:

“In exempting lot 1 (upon which plaintiff resided) and the east half of lot 12, block I, the supervisor of Lake township gave the plaintiff the benefit of all he was entitled to under the act in question.”

The judgment is affirmed.

Stone, C. J., and Kui-in, Ostrander, Bird, Moore, Brooke, and Person, JJ., concurred.


text:
    AMERICAN STEEL & WIRE CO. v. RICHARDSON.
    1. Limitation of Actions — Bills and Notes — Guaranty—Instructions.
    Where a -written guaranty expressly gave authority to take notes for any indebtedness which it covered and to renew or extend the same, there was no such unauthorized extension as to release the guarantor in an action begun April 27, 1911, on a note due May 1, 1905, given for goods purchased on January 14, 1905; and the court below correctly instructed the jury that the suit was not barred by the statute of limitations.
    2. Guaranty — Revocation—Intent.
    Where defendant wrote plaintiff in regard to a written' guaranty given by the former guaranteeing payment of goods purchased by one H. from plaintiff,- which was to remain in force until revoked, asking plaintiff to send the guaranty if H. was settled up, and expressing a desire “to have these matters all straightened up,” and where plaintiff replied that H. was buying regularly, giving the amount he owed, and that it assumed defendant did not desire return of the guaranty, and requesting acknowledgment of receipt, which defendant failed to do, there was no revocation of the guaranty, even if defendant so intended.

      3. Same — Silence—Intent—Estoppel.
    Defendant, having been advised by plaintiff of its interpretation of the letter, candor and good faith required him to declare himself, and by his silence he tacitly accepted plaintiff’s construction.
    Error to Kalamazoo; Weimer, J.
    Submitted April 7, 1916.
    (Docket No. 38.)
    Decided June 1, 1916.
    Assumpsit by the American Steel & Wire Company, a foreign corporation, against Jerry A. Richardson on a written contract of guaranty. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Weston & Fox, for appellant.

      Don B. Sharpe, for appellee.
   STEERE, J.

This action was brought on April 27, 1911, against defendant, Richardson, as guarantor of Fred G. Horsfall, to recover a balance due plaintiff for goods sold by it to Horsfall, as evidenced by a note which he gave plaintiff on January 14, 1905. A written guaranty by defendant and note by Horsfall, with a credit reducing it to $667.10 and interest, are properly pleaded and fully set out in plaintiff’s declaration and bill of particulars.

Defendant pleaded the general issue, with special notice that the guaranty given by him had been revoked and canceled before the indebtedness for which this action is brought accrued; and that the claim was barred by the statute of limitations. The written guaranty given by defendant to plaintiff is as follows:

“Vicksburg, Mich., 1 — 12—1893.
“American Steel & Wire Fence Co.,
“Chicago, Ill.
“Gentlemen:
“In consideration of your extending credit as you may see fit to F. G. Horsfall of Vicksburg, Mich., the undersigned, J. A. Richardson, of Vicksburg, Mich., do hereby guarantee to you and your assigns, the payment when due of any and all accounts and indebtedness (not‘exceeding the sum of $1,200.00). for or on account of goods and merchandise sold or advanced by you to said F. G. Horsfall or to his order.
“Notes and other evidences of indebtedness and securities may be received by you and your assigns, on account or in settlement of the indebtedness hereby guaranteed, and the same may be renewed and extended as you or your assigns desire, or may be dealt with in any way without notice to the undersigned, without in any way affecting the liability under this guaranty for any amount remaining unpaid in cash to said American Steel & Wire Company.
“Notice to the undersigned of sales or advances under this guaranty and of any default on the part of F. G. Horsfall is hereby waived.
“This guaranty to be a continuing one, and to remain in full force and effect until the written revocation thereof is received by said American Steel & Wire Company.
[Signed] “J. A. RICHARDSON.”

It is stated in the charge of the trial court as conceded that this guaranty was executed January 12, 1903, instead of 1893 as inadvertently written. After receiving and accepting this guaranty plaintiff gave Horsfall credit and sold him goods on account from time to time as he desired and ordered them. On October 22, 1904, he was owing plaintiff a balance for goods purchased amounting to $688.19. On January 5,1903, defendant also gave plaintiff a similar guaranty in behalf of a firm located at Scotts, called the Big Four Mercantile Company. In October of the following year he wrote plaintiff in relation to “these matters” as follows:

“Vicksburg, Mich., 10 — 22,1904.
“ ‘Received Oct. 25, 9:29 a. rn., 1904,
“ ‘W. W. F. Dept.’
“American Steel & Wire Fence Co.
“Gentlemen:
“I find that our boys at Scotts (the Big Four Mercantile Company) are not buying any more fence of you. I wish you would send back the guarantee J sent you. I also gave you one for Fred Horsfall a/c of this place. Are you still holding it? If so let me know all about it as I want these matters all straightened up. If he is settled up with you send it in also.
“J. A. Richardson.”
To this letter plaintiff replied as follows:
“October 28, 1904.
“Mr. J. A. Richardson,
“Vicksburg, Mich.
“Dear Sir:
“In compliance with your request of the 22d we herewith inclose guaranty dated January 5th, 1903, covering all accounts and indebtedness between the Big Four Mercantile Co., Scotts, Mich., and this company.
“As to the account of Mr. Fred Horsfall, would say that this gentleman is buying regularly from us, items now on our ledgers against him amounting to $688.19, under which circumstances we assume you do not desire return of the guarantee given us under date of January 12th, 1903.
“Please acknowledge receipt, and oblige,
“Yours truly,
“R. S. White,
“Credit Manager.”

After waiting some time and receiving no answer to its letter, on January 14, 1905, plaintiff accepted Horsfall’s order for and shipped to him at Vicksburg another carload of wire fencing receiving his note therefor, dated January 14, 1905, on February 20, 1905. Plaintiff ultimately collected from him all sums owing it for goods shipped him prior to the last carload for which the note in question was given, but its efforts to collect the balance yet owing on the last carload being unsuccessful this action was brought after much delay and correspondence with him and defendant.

The amount due plaintiff from Horsfall is apparently unquestioned, and each party requested a directed verdict. The trial court granted neither request, but instructed the jury that the account in settlement of which the note was given had not outlawed when this suit was begun, and submitted to them as an issue of fact whether defendant’s guaranty had been revoked before the last carload of material was sold to Horsfall, saying in part:

“The question for you to determine is not necessarily what the plaintiff understood by that letter of October 22d, that is not the question. The question is what did Mr. Richardson intend by that letter of October 22d? Did he intend to revoke, recall and rescind that guaranty? If he did so intend, then did he express that intention in proper, appropriate, apt words, language such as would fairly and reasonably convey that intention to the average mind — to a fair, average business mind?”

The jury rendered a verdict for defendant, and judgment was entered thereon accordingly.

The court correctly instructed the jury as to the statute of limitations. It is true as pointed out by defendant that the last goods were sold to Horsfall January 14, 1905, over six years before this action was begun, but his note given therefor fell due May 1, 1905, and suit was brought April 27, 1911; and there was no such unauthorized extension as might operate to release a guarantor, for the guaranty itself expressly gives authority to take notes for any indebtedness which it covers and to renew or extend the same as plaintiff or its assigns may desire.

There was no issue of fact raised by the evidence for submission to the jury. The controlling facts in the case are not in dispute. Both sides requested a directed verdict. Though questioned, it may be conceded that defendant wrote the letter of October 22d, with intention to revoke his guaranty as to Horsfall; but his animus revocandi standing alone did not revoke and availed him nothing, unless he in clear and unequivocal language which could not reasonably be misunderstood gave plaintiff notice of his present purpose to then terminate the guaranty. The test is not what he meditated, but what he declared.

The alleged letter of revocation first dealt with the subject of defendant’s guaranty for the business concern at Scotts, which he requested returned because they were not any longer dealing with plaintiff. He then inquired in regard to the guaranty he gave for Horsfall, asked plaintiff to let him know all about it, as he wanted “these matters” all straightened up, and concluded with the request to send Horsfall’s guaranty also “if he is settled up with you.” While he expresses a desire to have these matters all straightened up, he does not intimate when or how; he nowhere states that he terminates or révokes the continuing guaranty he had given and will no longer be bound by it, and asks for its return only on the contingency that “he has settled up with you,” in the same letter in which he recalls the other because the parties have ceased doing business with plaintiff. The communication manifestly falls short of a distinct and definite notice of revocation of his written guaranty in such plain and unequivocal language that it could not be otherwise construed. In Lanusse v. Barker, 3 Wheat. (16 U. S.) 101, it was said of doubtful expressions in a subsequent letter relative to a written guaranty:

“It was in the defendant’s power to have revoked his assumption, contained in the letter of the 9th, at any time prior to its execution, but it was incumbent on him to have done so, avowedly, and in language that could not be charged with equivocation.”

Plaintiff did not, however, arbitrarily stand on its interpretation of defendant’s alleged letter of revocation of October 22d (received October 25th), but with reasonable promptness, and before doing any further business with Horsfall, made reply, returning the guaranty of the parties “not buying any more fence” of it, fully answered all questions as to Horsfall, stated how his account stood, and that “the gentleman is now buying regularly from us,”, advised defendant of its understanding of his desires and construction of his letter, concluding with a request for acknowledgment. Defendant did not answer this letter, which he admits receiving. With his attention thus promptly called to plaintiff’s interpretation of it, erroneous, as he now claims, he remained silent when he should and could have spoken, until additional goods were ordered by and sent to Horsfall. He knew that Horsfall then owed and continued to do business with plaintiff on the strength of his guaranty, not returned as he requested because the conditions under which he asked it did not exist. Thus advised, candor and good faith demanded that he then explicitly declare himself if it was his intent to revoke. Even if his construction of the letter was warranted in any event, by his silence he tacitly accepted the construction which plaintiff submitted to him.

Under the undisputed facts found in this record a verdict should have been directed for plaintiff. The judgment is therefore reversed, with costs to plaintiff, and a new trial granted.

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


text:
    PEOPLE v. PALASZ.
    1. Intoxicating Liquors — Criminal Law — Instructions.
    In. a prosecution for violation of the general liquor law (Act No. 291, Pub. Acts 1909, as amended; 2 Comp. Laws 1915, § 7032), by selling two bottles of wine, which, the evidence for the people showed, contained over 10 per cent, of alcohol, and of which respondent testified that he “did not know anything about any alcohol being in, that wine,” the court did not err in charging the jury that, in order to convict, the evidence must satisfy them that the contents of these bottles sold by respondent contained alcohol, and was a spirituous or a fermented beverage.
    2. Constitutional Law — Intoxicating Liquors — Criminal Law.
    Section 2 of Act No. 291, Pub. Acts 1909, exempting from the tax imposed “any wine or cider made from fruits grown or gathered in this State,” having been amended by Act No. 1, Second Extra Session 1912, by eliminating the language quoted, before the commission of the alleged offense, respondent’s contention that the discrimination in favor of Michigan products renders the act unconstitutional cannot prevail.
    3. Intoxicating Liquors — Illegal Sales — Domestic Purposes— Constitutional Law.
    Where, in such prosecution, no claim was made or proof offered in the trial court that the wine sold came within the exemption from the tax of liquor manufactured for domestic purposes, but it clearly appeared that its manufacture and sale were purely for commercial purposes, respondent was legally convicted; “domestic purposes,” in ■ contemplation of the act (Act No. 1, Second Extra Session 1912), are purposes relating or belonging to the home or household, or its affairs.
    Error to the recorder s court of the city of Detroit; Phelan, J.
    Submitted April 13, 1916.
    (Docket No. 128.)
    Decided June 1, 1916.

      Anton Palasz was convicted of a violation of the general liquor law.
    Affirmed.

      Grant Fellows, Attorney General, Charles H. Jasnowski, Prosecuting Attorney, and Harry B. Keidan, Assistant Prosecuting Attorney, for the people.

      Ira J. Pettiford, for the respondent.
   Steere, J.

Respondent was informed against and convicted in the January, 1915, term of the recorder’s court for the city of Detroit of violating the general liquor law of this State (Act No. 291, Pub. Acts 1909, as amended [2 Comp. Laws 1915, § 7032]) by engaging in the sale of intoxicating liquors without having first paid for and obtained a license so to do, and otherwise complied with specified prerequisites.

Evidence produced upon respondent’s trial disclosed that he resided, and ran a boarding house, at No. 1107 Riopelle street, in the city of Detroit, where he had on hand a liberal supply of wine in barrels and bottles, in connection with which his conduct became a subject of inquiry by the police department, and at the instance of two investigating officers a saloon keeper in that locality sent a man named Loncavich to respondent’s place to see if he could purchase wine there. He bought two bottles of California wine from respondent and returned with them to the saloon, where the saloon keeper received and at once handed them over to the waiting officers, who promptly took them, for analyzation of contents, to the chemist of the Detroit board of health. He testified that both bottles contained wine, one red and the other white, the red wine having an alcohol percentage per volume of 10.78, and the white 12.34, and that the contents of the two bottles received from the officers was spirituous and intoxicating liquor made from the juices of fruit. The witnesses through whose hands the bottles passed testified to the contents being undisturbed by them, thus tracing them into the chemist’s hands in the same condition as when received from respondent. Loncavich stated that he only stayed in respondent’s boarding house about five minutes; that he paid 85 cents for the white wine and 30 for the red and went back to the saloon. Of the purchase from respondent he said:

“When I went in I asked him for a glass of wine, one for me, and one for him, and after that I bought these two quarts.”

Whether the “that” after which he bought the two quarts contemplated only his unrealized request for a glass of wine or implied compliance with the request involves a construction of the sentence, upon which counsel appear to have strenuously differed. We deem it immaterial, and accept the contention of respondent’s counsel that there is no testimony in the case tending to prove he sold wine by the drink.

Respondent was sworn as a witness in his own behalf, and testified that the wine which he had on hand at his boarding house came from California in barrels, and was guaranteed to him as pure wine; that he did not know anything about there being alcohol in it, and had sold it by the quart; that he sold two bottles about the time charged to Loncavich, whom he identified, but had never sold it to him or any one else by the drink. 'An investigation of respondent’s boarding house by the officers following the sale in question disclosed that he had on hand a stock of wine consisting of 3 barrels and about 40 bottles and had obtained a government, or Federal, license to sell intoxicating beverages. It was admitted that he was not a druggist selling for medicinal purposes, etc., and that he had procured no license to sell intoxicating liquors under the State law.

The court submitted the case to the jury under an impartial charge in which the principles of law involved were correctly and sufficiently explained and the duty of the jury in deciding the facts plainly stated.

It is said in respondent’s brief that he relies upon but two of his assignments of error which “relate practically to the same points raised in the law and evidence, which are as follows:

“(A) The court erred in charging the jury as follows: ‘And before the State, gentlemen of the jury, could ask at your hands a conviction, it must be satisfied, and should satisfy you, by competent evidence, that the contents of these bottles sold by this respondent, as testified to, contained alcohol, and is a spirituous beverage, or a fermented beverage.’
“ (B) The court erred in receiving the verdict of the jury, the same being illegal and void, this record containing no competent evidence to sustain said verdict of guilty, and because the proofs put in on the part of the prosecution do not sustain the charges in the information, and do not sustain a verdict of guilty upon the information in this case.”

Of the first assignment it is sufficient to note that not only was there abundant direct testimony introduced to sustain a verdict that the contents of the bottles respondent admitted having sold contained over 10 per cent, alcohol and was a spirituous beverage, but there was no suggestion to the contrary beyond his own testimony that he “did not know anything about any alcohol being in that wine,” which was guaranteed to him as pure. Counsel urge, however, that the testimony shows this wine was made from the juices of fruit, and the question of how much alcohol it “contained has nothing to do with the case” because:

“The act is discriminatory and void if it can be interpreted into imposing a tax upon wines made from the juice of fruits grown and manufactured in one locality, while it expressly exempts from its operation wines made from the juice of fruits grown and manufactured in another locality, as being in violation of section 4 of article 10 of the Constitution of Michigan.”

We are unable to follow counsel’s argument that the law is unconstitutional because discriminatory. While a provision in section 2 of Act No. 291, Pub. Acts 1909, exempted from the tax persons selling “any wine or cider made from fruits grown or gathered in this State,” unless sold by the drink, the language quoted, and upon which the argument is based, no longer appears in the exception which is as follows:

“No tax imposed under this act shall be required from any person for the manufacture or sale of wine or cider made from fruits- for domestic purposes, unless such wine or cider is sold by the drink as other beverages are.” Act No. i, Pub. Acts 1912, Second Extra Session (2 Comp. Laws 1915, § 7032).

“Domestic purposes,” in contemplation of this act, are purposes relating or belonging to the home or household, or its affairs. No claim was made in the trial court, and it is not contended here, that the wine in question was made, sold, or used for domestic purposes, but its history so far as disclosed indicates that its manufacture and sale were purely for commercial purposes. Even if timely claimed, it would be a matter of defense, with the burden of proof upon the defendant to show that the sale came within the exception, which is not contained in the enacting clause of the statute. People v. Phippin, 70 Mich. 6 (37 N. W. 388) ; People v. Pendleton, 79 Mich. 317 (44 N. W. 615) ; State v. Bevins, 70 Vt. 574 (41 Atl. 655).

Respondent was legally convicted, and the judgment of the trial court is therefore affirmed.

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


text:
    COOK v. DADE.
    1. Pleading — Action—Common Counts — Breach op Contract— Implied Contract.
    Where the consideration in a contract is expressed, there can be no implied consideration; and, on nonperformance by defendant, plaintiff’s action would be for breach of the contract and not on the common counts.
    2. Same — Contracts—Consideration.
    Where the contract on the part of the defendant is not to pay money but to deliver specified articles of property, in an action to recover, such failure to deliver must be specially pleaded.
    3. Same — Bill oe Particulars.
    A bill of particulars is not a pleading in any court; it may restrict, but cannot enlarge, the scope of recovery permissible under the declaration.
    Error to Van Burén; Des Voignes, J.
    Submitted April 12, 1916.
    (Docket No. 2.)
    Decided June 1, 1916.
    Rehearing denied September 27, 1916.
    Assumpsit in justice’s court by Richard F. Cook against William Dade for services rendered. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Reversed.

      W. J. Barnard, for appellant.

      Thos. J. Cavanaugh, for appellee.
   Steere, J.

Plaintiff recovered, in the circuit court of Van Burén county, a verdict and judgment of $70 for feeding, caring for, and breaking'a pair of western horses, or ponies, intrusted to him for that purpose. The action was commenced in justice’s court, where the pleadings were oral; plaintiff declaring in assumpsit on the common counts, and defendant pleading the general issue. Plaintiff also furnished a bill of particulars totaling $115.80. Two charges were for feed and care of the horses for 11 weeks at $2.50 per week each, amounting to $55, and for breaking them $10 each, amounting to $20. Other items in the bill, for veterinary services, halters, damage, etc., were subsequently withdrawn and not submitted to the jury. It appeared without dispute that defendant was the owner of a span of western horses, called by the parties mustang ponies, weighing about 700 pounds each, one being 4 and the other 7 years old. The younger was not broken, and the value of efforts to that end with the older, which defendant pronounced “a little bit tricky,” were apparently appraised by him at less than “ten cents.” Plaintiff was a mail carrier residing in the village of Lawrence and served a mail route in that vicinity. Learning that defendant had these ponies, he spoke to him about them as they met upon the highway, proposing to take and break and use them on his mail route when the roads grew bad so that he could not use his auto. They do not fully agree as to what was said, but plaintiff’s claim and testimony was that he took the horses under an agreement he would break them and in compensation for so doing could retain and use them long enough after they were broken to pay him for their breaking, care, and keep; that they were so difficult to break it was ten weeks before he could use them in his mail route and he had driven them during the eleventh week but three trips, when defendant took them from him against his protest but with his final acquiescence under a promise to return them in a week, which defendant did not do. Having thus shown an express contract involving no money consideration breached by defendant, he does not declare upon such breach, but seeks to recover a money judgment for his services and keep of the horses rendered and furnished under that contract. Defendant made timely objection to evidence touching the agreement between the parties and what was done under it, requesting of the court when parties rested an instruction that plaintiff could not recover under the pleadings. The objections being overruled and request refused, plaintiff had judgment.

The theory under which it is claimed the common counts are sufficient is thus stated in plaintiff’s brief:

“He fed and cared for the ponies and broke them and had them ready for use. The defendant took them away from him and refused to return them. He either got possession of them by stealth or upon a void agreement (because the promise to return them was made on Sunday), and thereby there arose an implied promise to pay the plaintiff for his labor, feed, etc. It was upon this theory that the case went to the jury, and we insist that there was no error.”

Where the consideration is stated to be a certain thing, something else cannot be implied. An expressed promise to pay a particular consideration leaves no room for an implied one. Under plaintiff’s evidence, his right of action arises out of an express agreement between the parties which involved no money consideration on either side and suggested no money value of the consideration promised by each. The wrong done plaintiff, as he claims it, was defendant’s failure to keep his express promise, or a breach of his contract. While pleadings in justice’s court are treated with liberality, the rule remains unmodified that the common counts will not support an action arising from violation of a special contract of this nature involving other than a money consideration, but the declaration must be for damages arising from the breach of such contract.

The distinction yet recognized in this State is clearly pointed out in the early case of Thompson v. French, 18 Tenn. (10 Yerg.) 452, where it is stated as the established principle:

“That in all cases where the consideration has been executed and where there is an express or implied promise to pay in money the value thereof, indebitatus assumpsit or debt is the proper remedy. But that in all those cases, where the consideration is not executed, or if it be, and the promise to be performed in consideration thereof, is not to pay money, but to do some other thing, that neither indebitatus assumpsit or debt will lie, and that the remedy is by a special action on the case.”

In Pierson v. Spaulding, 61 Mich. 90 (27 N. W. 865), where it was sought to recover on the common counts for part performance of a contract involving a sale of property to be partly paid for in land, and the contract failed to provide for money payment in default of conveyance of the land, a bill of particulars also being filed, this court said:

“In our view, this suit could not be based on the common counts. The contract was a special one, and did not rest on a money price. * * * The sale was one in part for cash, and in part for a specific thing. A breach of the contract must be measured in damages by the amount of injury done, which would involve an inquiry into the actual and not the nominal value of the land. * * * Special contracts must be sued on specially. * * *”

It is urged in behalf of plaintiff that defendant was in no way misled by the pleadings, which were amplified by a bill of particulars showing the exact nature of plaintiff’s claim, in substantiation of which reference is made to and excerpts quoted from Nugent v. Teachout, 67 Mich. 571 (35 N. W. 254), in which recovery was sustained under the common counts, aided by a bill of particulars, for defendant’s failure to convey certain real estate known as the Cadillac property in part payment for other real estate deeded to him, as he had orally agreed to do.

It may be conceded that the extracts quoted, standing isolated from the case and read in the abstract, tend in some particulars to give color to plaintiff’s contention. But it was there pointed out that the common counts include a count for real property sold and conveyed, that a money price of $1,000 was fixed for the land plaintiff had conveyed, the major portion of which had been liquidated and the Cadillac property which defendant had sold to a third party was by an oral agreement, void under the statute of frauds, to be conveyed for the balance. Under those facts, with the price of the property plaintiff sold to defendant fixed and the balance yet due upon it ascertained, it was said “plaintiff could proceed under his declaration and bill of particulars in this case, the same as if he had specifically made a count for lands sold and conveyed as one of the money counts, or as if he had counted generally for lands sold and conveyed,” distinguishing the case from those coming under the general rule where the contract is not to pay money, which the court fully recognizes and states as follows:

“When property, some specific thing or things, is to be delivered in payment for the lands, the agreement to so deliver, and the breach of the same, must be specially alleged; when a special contract has been wholly performed by one of the parties to it, and the other party can only perform his part by the payment of money, the money thus due can be recovered upon the common counts in assumpsit. But when the contract on the part of the defendant is not to pay money, but to deliver to the plaintiff specified articles of property, the right of the plaintiff to recover the money arises, not from the performance of the contract on his part, but from the failure of the defendant to deliver the property; consequently such failure must be specially pleaded. Phippen v. Morehouse, 50 Mich. 537, 540 [15 N. W. 895] ; King v. Kerr, 4 Chand. (Wis.) 159; Bradley v. Levy, 5 Wis. 400.”

The contract in the instant case was still subsisting and in force. Defendant yet had the power, and within his control the means, of performance. His alleged delinquency was failure or refusal to do what he had agreed to and could do — the breach of a contract which by its terms required no payment of money. Upon plaintiff’s claim as disclosed by this record it was necessary for him to show a contract containing no promise to pay money and a breach of that contract out of which his damages and right of action arose. A claim for damages arising from breach of such a contract must be specially pleaded.

“A bill of particulars is not a pleading in any court. It may restrict, but cannot enlarge, the scope of the recovery permissible under the declaration,” etc. Applebaum v. Goldman, 155 Mich. 369 (121 N. W. 288).

As was said in that case, which is in many particulars illuminative of the subject involved here, “we have no alternative except either to refuse to apply settled rules or to reverse the judgment.”

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

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