author: Stone, J.

text:
    DASCHO v. MICHIGAN ALKALI CO.
    1. Master and Servant — Warning and Instructing Servant —Chemicals.
    An employé working in caustic soda, who was injured by some of the chemical flying in his eye and burning it, was entitled to have the question submitted to the jury, whether or not the master should have warned and instructed him concerning the danger of being burned by the soda, where the evidence tended to show that the employé did not know of its dangerous properties and had not been advised by the employer concerning them.

    2. Same — Risks Assumed — Common Knowledge.
    It cannot be said as a matter of law that it is common knowledge that caustic soda is dangerous and will destroy the sight.
    3. Same.
    Under testimony tending to show that the injured employé was an ignorant man, that although he had been employed by defendant nearly two months he had not frequently come in contact with caustic soda and did not know it would burn, the question whether or not he assumed the risk was a question of fact. ®

      Error to Wayne; Murphy, J.
    Submitted October 37, 1910.
    ( Docket No. 134.)
    Decided December 7, 1910.
    Case by Thomas Dascho against the Michigan Alkali Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Gray & Gray, for appellant.

      Arthur W. Edwards (George W. Qoomer, of counsel), for appellee.

       As to master’s duty to warn or instruct servant, see note to James v. Rapides Lumber Co. (La.), 44 L. R. A. 33.

   Stone, J.

In this action the plaintiff seeks to recover damages for the loss of his left eye, caused by an injury received by him on the 8th day of January, 1909, while in the employ of the defendant at its plant in Wyandotte. The defendant was there engaged in the manufacture of caustic soda, a compound of lime, soda ash, and water, which possesses burning and corrosive qualities. From appellant’s statement of facts it appears that in the course of manufacture the caustic liquid is brought to a point where it is boiled in kettles until it reaches the proper consistency for the finished product. The boiling is done in what is called the “ strong liquor department,” a room 400 feet long and 300 feet wide, containing 64 kettles, set about 3\ feet apart, and each in a pit or well about 4 feet deep below the level of the floor. The sides of each pit are lined with fire brick. The kettles are heated by gas, led in pipes into the pits. When the liquid has been sufficiently boiled, it is taken off in ladles. The kettles frequently burn out under the strong heat. The metal becomes thin, and finally a small hole wears through the kettle, from which the liquid leaks into the bottom of the pit. It then becomes, at once, the duty of the attendant to shut off the gas and allow the kettle to cool, so that it may be replaced, and within 13 hours the kettle is usually cool enough to admit of this, but in the meantime more or less of the caustic has leaked through into the pit, where it slowly hardens. After the defective kettle has been removed and before a new one is put in place, the pit is cleaned out. By that time the caustic has so hardened that it is necessary to use a bar or pick to break it up, so that it may be easily shoveled out.

It appears from the testimony of defendant’s witness that the leak in one of the kettles was discovered on the afternoon of the day before the plaintiff was injured, and that the fire was immediately shut off. The next morning the plaintiff was directed to help in removing the defective kettle, which he did, and the pit was then open, and on the bottom there was a quantity of caustic more or less hardened. The plaintiff and his companion were then sent by the foreman with a crowbar and hammer into the pit, to break up and remove the caustic. The testimony varied as to the exact happening of the injury. The plaintiff and his companion testified that the former was holding the bar, while the latter struck the bar with the hammer. But one of defendant’s witnesses testified that the bar had been driven under the caustic, so as to pry it up, and that the plaintiff’s companion, instead of hitting the bar, used the hammer directly on the caustic. However, it appears that when the hammer fell the caustic was broken into pieces, and one piece flew up and struck plaintiff in the eye, inflicting the injury complained of.

The plaintiff is a German, who testified through an interpreter. He was 47 years old at the time of the trial. He commenced to work for defendant on November 17, 1908. He had never worked before where caustic soda was made. He was a common laborer, and his work about the plant had been varied. He admitted on cross-examination that twice before the injury he had been called to work in the caustic soda plant; that he assisted in taking a kettle out and in putting one in, but that he never before took part in cleaning out the pit. He had worked driving team, hauling cinders, and also in the dissolver ash department, in the strong liquor department, and in the powdered caustic department, unloading salt, unloading coal, wheeling ashes, and on one or two occasions had shoveled some of the manufactured article into an elevator, and at another time he had helped load bags onto a cart. It is undisputed that at the time of the injury both the plaintiff and his companion had their feet wrapped in bags or cloths, and had mittens on their hands. The plaintiff claimed, however, that he was told to wrap his feet because otherwise his shoes would be burned, but that he was not told where the heat was, whether in the floor or something else; and that he had his mittens on when working outside, and when he was called in, he kept them on. Upon the subject of his knowledge of the properties of caustic soda the plaintiff testified:

“ I found out what caustic soda was when I lost my eye. I did not know before that. Before I worked at the Michigan Alkali Company, I always worked with the farmers, and never worked at any place where caustic soda was made. I never used caustic soda myself for any purpose before that time. I did not know what it was made of, or what it was used for.”

One of the defendant’s witnesses, the superintendent of the caustic plant, testified as to the nature of caustic soda as follows:

“The material is usually called caustic soda. The chemical — sodium hydrate. That is, the hydrate that is in it; it depends upon how much is in it. It is a white brittle solid, and has a powerful caustic quality. It does not destroy animal and vegetable matters. If you put your hand in the fire it will burn. The fact that it is used for making soap shows that it does not destroy the fat. When it touches flesh it burns it for a length of time. ”

There was no claim or testimony that the plaintiff had ever been instructed as to the dangers of working where caustic soda was manufactured, or that he had ever been warned of any danger. It is the claim of the plaintiff that he should have been so warned and instructed. Upon the trial of the case the defendant moved for a directed verdict in its favor. This was denied, and the case was submitted to the jury, and they returned a verdict for the plaintiff in the sum of $2,500 damages. The defendant has brought the case here upon writ of error, and the only error assigned is upon the refusal of the court to direct a verdict for the defendant. It claims that it is common knowledge that caustic soda possesses burning and corrosive qualities, and that such a substance when struck might fly up; and that the plaintiff therefore assumed the risk, and was chargeable with such knowledge.

An excerpt from the charge of the court will show that the case was submitted tp the jury upon a clear and narrow issue. Speaking of the mass of caustic soda, the court said:

“It was a brittle mass, and any man of reasonable prudence or care must know, while working upon it in the manner in which he and his companion were working, that it would have chipped off, be deflected, and perhaps strike him. So that it cannot be said that any cause of action arises from the fact that chips flew up from the mass of hardened caustic soda. But it appears that chips which did fly up struck the plaintiff and burned him, and that is the sole issue of fact presented in this case, namely: Is the defendant to be charged with negligence in not having informed the plaintiff that the caustic soda, if it struck plaintiff, would burn him ? So, gentlemen of the jury, your inquiry, when you come to ask yourselves, first, is the plaintiff chargeable with any negligence himself; secondly, is the defendant company chargeable with negligence — that inquiry should be devoted solely to the question whether or not the plaintiff knew, or should have known, that that caustic soda would burn him; and whether or not the defendant company, through some, of its agents, should have notified him that the caustic soda would burn if it touched him. That is the sole ground upon which negligence is claimed in this case by the plaintiff.”

Did the court err in thus submitting the case to the jury ? Much depends upon the intelligence and experience of the plaintiff in determining whether he understood, or should have understood and appreciated, the danger. Swoboda v. Ward, 40 Mich. 420. The language of this court in Parkhurst v. Johnson, 50 Mich. 70 (15 N. W. 107, 45 Am. Rep. 28), where there was failure to notify an employ é of an unusual risk, is appropriate here. Justice Cooley said:

“ The circuit judge thought there was some evidence of negligence on the part of Johnson in these facts, and we agree with him. He took an inexperienced man into a place of danger without apprising him of the risks, and without any warning that danger was to be anticipated. It is true the workmen in the business testify that they do not consider it dangerous, and probably it is not when one fully understands it; but this man did not fully understand it, and the danger and loss of life came to him in consequence.”

See, also, Smith v. Car Works, 60 Mich. 501 (27 N. W. 662, 1 Am. St. Rep. 542); Charron v. Carbide Co., 151 Mich. 687 (115 N. W. 718); Potvin v. Shipbuilding Co., 156 Mich. 201 (120 N. W. 613). We think that the question of the master’s duty to warn its servant in this case was for the jury. See Adams v. Refrigerator Co., 160 Mich. 590 (125 N. W. 724, 27 L. R. A. [N. S] 953).

We cannot say, as matter of law, that the plaintiff knew, or was bound to know, the burning properties of caustic soda, and we think that question was properly submitted to the jury. Snow v. Power Co., 162 Mich. 579 (127 N. W. 677); Coda v. Maurer, 162 Mich. 621 (127 N. W. 799). We are of opinion that the issue was fairly and fully submitted to the jury as to whether the plaintiff knew, or should have known, that caustic soda would burn. Had the pit been filled with a hardened mass of sand or sawdust, and had the foreman directed the plaintiff to break it up and shovel it out, there would have been no duty resting upon defendant’s agent to have informed plaintiff of any latent danger, because a person of no more intelligence or experience than plaintiff possessed would, or should have known the nature of such substances, as common knowledge. But that cannot be said of caustic soda, because it is quite apparent, judging from results, that caustic soda, when coming in contact with a person’s eye, is dangerous, and we think that knowledge of that fact is not common knowledge.

We find no error in the record, and the judgment of the circuit court is affirmed.

Bird, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    TUTHILL v. KATZ.
    1. Judgment — Decree in Equity — Conclusiveness.
    In an action of ejectment to recover the possession of lands which defendants claimed to own by virtue of a deed containing a mistake in the description, a decree previously entered in chancery proceedings, in which defendant’s grantor was a complainant and plaintiff was a defendant, involving the same mistake, was not admissible in evidence, where the decree ordered that the bill of complaint, which contained a prayer for the correction of the mistake, be dismissed, without reciting the reasons therefor, or determining the question at issue in ejectment.
    2. Deeds — Ejectment—Conveyance—Description.
    The description in a deed of a parcel of land known as the William Rowley farm, sufficiently identified by the evidence, is a sufficient conveyance of the premises, although it contains also an erroneous description by governmental subdivisions: the mistaken portion of the deed must be rejected, and remainder be treated as controlling, in an action at law.
    3. Same — Description—Mistake.
    False and impossible parts of descriptions in conveyances may be rejected if by doing so a good description remains.
    4 Same — Evidence—Equity Jurisdiction.
    Parol evidence may be resorted to in applying a deed to its subject-matter, in an action of ejectment, if the description is ambiguous.

      5. Same — Taxation—Notice to Redeem from Tax Purchase.
    Defendants in ejectment who claim to be in possession of real property, gain no additional rights by virtue of a tax deed from the State, if they have failed to serve the statutory notice, which is held to be a condition precedent to the vesting of title under tax proceedings. Huron Land Co. v. Robarge, 128 Mich. 686 (87 N. W. 1032).
    Error to Calhoun; North, J.
    Submitted November 17, 1910.
    (Docket No. 102.)
    Decided December 7, 1910.
    Rehearing denied February 1, 1911.
    Ejectment by Rosette I. Tuthill against Frank Katz and. Frederick Katz. A judgment for plaintiff on a verdict directed by the court is reviewed by defendants on writ of error.
    Reversed.

      Louis O. Miller, for appellants.

      J. M. Hatch, for appellee.
   Stone, J.

This is an action of ejectment in which the plaintiff seeks to recover possession of 17.74 acres of land, more or less, being all of the northwest fractional quarter of section 15, lying between the east half of southwest quarter of section 10 and Cedar Lake, in town 3 south, of range 6 west, situate in the township of Fredonia, Calhoun county. The' plea was the general issue, with notice of special matter, that it will not be necessary to refer to specifically.

It is undisputed that as early as September, 1861, one "William Rowley was the owner of the premises in question, and that he continued to own the same, at least, until September, 1878) and that, with certain other lands on section 10 in the same township, they were known as the William Rowley farm. At the trial, the plaintiff’s claim of title consisted of two quitclaim deeds to her, both bearing date January 24,1882, one executed by William Rowley, arid the other by William Rowley and his wife, Sarah, and both duly recorded. It was admitted that at the time of commencement of suit, the defendants were in possession of the premises in question, and that plaintiff had never been in actual possession. Claiming to defeat the plaintiff’s claim of title, the defendants offered in evidence the following described deeds:

(1) A warranty deed bearing date September 18, 1878, between William V. Rowley and Sarah Rowley, his wife, of the township of Fredonia, Calhoun county, Mich., of the first part, and Alonzo J. Rowley, of the same place, of the second part, in consideration of $3,000, purporting to convey all of the following described lands and premises, to wit:

“The southeast quarter of the southwest quarter, 40 acres, the northwest quarter of the southeast quarter, 40 acres, and the south half of the northwest quarter, 80 acres, of section ten. Also the northeast fractional quarter of section fifteen, 17£ acres. All in township number three south, of range number six west, in Calhoun county and State of Michigan, containing one hundred and seventy-seven and one-half (177£) acres according to the United States survey, and known as the William Rowley farm, excepting forty acres reserved as a homestead, in Fredonia, saving and reserving and excepting above granted, a life estate during the natural life of said William V. Rowley and Sarah Rowley, his wife, and of the natural life of the survivor of the two, which life estate to himself and his wife, and the survivor of the two is reserved and excepted to secure to them a home for life, as will more fully appear by a lease from said Alonzo J. Rowley and Mary E. Rowley, his wife, to William Y. Rowley and Sarah Rowley, his wife, bearing even date with this deed, securing a life estate to said William Y. Rowley, and his wife, Sarah, and to the survivor of the two, which provisions for my wife are in lieu of dower, and if accepted will bar all right of dower.”

The deed concludes with the usual covenants of a warranty deed, excepting what is reserved and excepted. Deed recorded October 17, 1881.

(2) A certified copy of a warranty deed dated January 12, 1882, executed by Alonzo J. Rowley and Mary E. Rowley, his wife, as grantors, to George S. Woolsey, as grantee, consideration $560, describing the same premises, and in the same way, and subject to the same life estate as in paragraph (1) above, and also subject to a mortgage. This deed was recorded February 19, 1882.

(8) A certified copy of a warranty deed dated February 8, 1909, executed by George S. Woolsey and Phebe J. Woolsey, his wife, as grantors, to Frank G. Katz, as grantee, for a consideration of $6,000, describing the premises as follows:

“All of the south half of the northwest quarter of section ten (10), also all of the east half of the southwest quarter of section ten (10), also the northwest quarter of the southeast quarter of section ten (10), and also all that part of the east half of the northwest quarter of section fifteen (15) north of Cedar Lake, all being in town three (3) south, of range six (6) west.”

This deed was duly recorded February 8, 1909.

It also appeared that said George S. Woolsey purchased the life'estate of Sarah Rowley on April 24,1906, by deed recorded May 15, 1906, and that both William Rowley and Sarah Rowley died before the beginning of this suit. It also appeared, and was undisputed, that William Rowley lived upon this farm for about 20 years, the buildings being located on section 10; that it was known as the William Rowley farm; that the farm was fenced with line fences between it and adjoining farms; that it consisted of the south half of the northwest quarter, the southeast quarter of the southwest quarter, and the northwest quarter of the southeast quarter, all on section 10, and the northeast fractional quarter of the northwest quarter of section 15; that there was no part of the William Rowley farm, as it was then known, on the northeast fractional quarter of section 15, and that he never owned any land on that east side of the lake; that there were 1?£ acres in the parcel described as the northeast quarter of the northwest fractional quarter of section 15, and 131 acres on the northeast fractional quarter of section 15. The buildings were located on the north side of the highway on the northeast quarter of the southwest quarter of section 10, and that description constituted his homestead; that there was no fence between the northeast fractional quarter of the northwest quarter of section 15, the premises in dispute here, and the premises immediately north of them; that all was occupied as one parcel and belonged to the same farm — the William Rowley farm — and that he had no other farm. It also appeared, and was not disputed, that after William Rowley deeded to Alonzo J. Rowley, William Rowley and wife remained in possession until William Rowley died, and after that time Mrs. Rowley remained in possession until she deeded to George S. Woolsey, who was in possession until he sold to. defendant, Frank G. Katz, and the latter has been in possession ever since. Upon rebuttal, the plaintiff offered in evidence the records and files in a chancery case in the circuit court in chancery, of Calhoun county, wherein George S. Woolsey was complainant and William V. Rowley, Sarah Rowley, Rosette I. Tuthill, Alonzo J. Rowley, and Mary E. Rowley were defendants. The defendants William Y. Rowley, Sarah Rowley, and Rosette I. Tuthill answered, and the other defendants did not appear, and the bill of complaint was taken as confessed as to them.

One object of this bill of complaint was to obtain a decree correcting the description of the 17-J- acres of land in dispute, contained in the deed from William Y. Rowley and wife to Alonzo J. Rowley. It stated that by mistake the land had been described as the northeast fractional quarter of section 15, whereas it was the intention of the parties to convey the northeast fractional quarter of the northwest quarter of said section. No affirmative relief was claimed by the defendants who answered in said cause. Upon the hearing of said chancery cause, in 1890, the bill of complaint was by deci’ee dismissed as to said land on section 15, and no relief whatever was granted the complainant, as affecting the premises in question. The said files and records were admitted in evidence upon the trial, against the objection and exception of the defendants. At the close of the testimony the plaintiff moved for a directed verdict in her favor.

The defendants presented the following requests to charge:

“(1) If you shall find that on September 18, A. D. 1878, William Rowley owned the premises described in the declaration in this case, to wit, the northeast fractional quarter of the northwest fractional quarter of section 15, township of Fredonia, Calhoun county, Michigan, that his dwelling house was not situated on this particular description, and it constituted no part of his homestead, and that these premises were a part of, and belonged to what was known as, the William Rowley farm, in the said township of Fredonia, and that William Rowley did not own the northeast fractional quarter of said section 15 in said township of Fredonia at that time, then your verdict must be for the defendants.
“(2) There is no dispute in the evidence in this case, and I direct you to find a verdict for the defendants.”

Both of defendants’ requests to charge were refused, and the court granted plaintiff’s motion, and directed a verdict for the plaintiff.

The defendants have brought error, and claim by their assignments of error that the court erred in admitting in evidence the files and records in the chancery case; also that it erred in directing a verdict for the plaintiff, and in not granting defendants’ requests to charge. The questions raised may well be considered together.

We are unable to see wherein the files and records in the chancery case were relevant to the issue. It appears that while George S. Woolsey claimed to be the owner of the premises, he filed this bill of complaint to have an alleged mutual mistake, in the deed from William V.. Rowley and wife to Alonzo J. Rowley, corrected. William Rowley and wife and this plaintiff answered, but claimed no affirmative relief. Upon the hearing, the circuit judge dismissed the bill. The reasons given were no part of the decree, and the parties were left in statu quo.

The grantee of Woolsey, one of the defendants here, now claims that there was a mistake in the description of the land on section 15, in the deed; but the defendants say that notwithstanding the mistake, taking the whole deed and description of the premises into consideration, the mistake corrected itself, and it was a good deed of the lands on the northwest fractional quarter of section 15. The plaintiff claims under subsequent deeds from William Rowley. This brings us to the consideration of the meritorious question in the case.

In the light of all the evidence in the case, can it be said that the deed from William Rowley and wife to Alonzo J. Rowley, and the deed from the latter to George S. Woolsey (both of which were delivered before plaintiff’s quitclaim deeds were made) conveyed title to the premises in question? The lands in section 15 were erroneously described. It appears, however, that the northwest fractional quarter of section 15 constituted a part of the William Rowley farm, and the place was “known as the William Rowley farm.” The uncontradicted evidence shows that the said farm was well known and defined; that it was fenced, and occupied by William Rowley as one property. He did not own the northeast fractional quarter of the section. The latter description contains 131 acres, while the former contains only 17 and a fraction acres, which corresponds with the number of acres described in the deed. It is a significant fact that the said William Rowley occupied the northwest fractional quarter as a part of his farm. Probably nobody would deny that a deed of the farm in Fredonia township, known as the William Rowley farm, would convey title to such farm as known and occupied. But it is claimed that when there is an attempt to describe government subdivisions, or by metes and bounds, that the same must be described correctly and without ambiguity. Fortunately we are not without authority upon this subject in this State.

In the early case of Ives v. Kimball, 1 Mich. 308, a deed described a piece of land, as all that tract or parcel of land situate in the town of Logan, county of Lenawee, and Territory of Michigan, being known and distinguished as the east half of the northwest quarter of section 21, in township No. 26 south, of range No. 3. There was no surveyed township No. 26 in Logan. Held, that the number of the township might be rejected, as repugnant to the other parts of the description. And, it appearing from the act organizing the town, that there were two sections numbered 21 in the town, corresponding with the description in the deed, one in surveyed township numbered sis, and one in surveyed township numbered seven, both in range 3 east, the same was held not to be a patent ambiguity, although the court was bound judicially to take notice of the act organizing the town, and that parol evidence of surrounding circumstances and collateral facts might be received to show which of the two sections was intended by the grantor. It is said that as a rule ambiguities in the description of property are necessarily latent, as it is not until the description is attempted to be applied to the property itself, which must be by parol aid, that the ambiguity is perceived, and whenever the ambiguity is made apparent by parol aid, it must be removed by parol evidence. False and impossible parts of descriptions should be rejected, where, by so doing, a good description remains.

If the term “known as the William Rowley farm,” points out with sufficient certainty the premises to be conveyed, then the additional false or mistaken description, to wit, the northeast fractional quarter of section 15, does not vitiate it. The subdivision of the section described, it seems, must have been a mistake in the deed, if a part of the William Rowley farm, and, being false, it must be rejected. But this does not render the deed void.

We quote from Ives v. Kimball, 1 Mich. 308, as follows:

“ In the case of Boardman and others v. Lessees of Heed and Ford, 6 Pet. 345. Mr. Justice McLean, delivering the opinion of the court, says:
“ ‘The entire description in the patent must be taken, and the identity of the land ascertained by a reasonable construction of the language used. If there be a repugnant call, which, by the other calls in the patent, clearly appears to have been made through mistake, that does not make void the patent.’
“In that case, the land was described in the patent as lying in the county of Monongalia, and further described by reference to natural monuments, and it appeared that the land described by the monuments was in the county of Harrison, and not in Monongalia; and that part of the description which related to the county was rejected, and effect given to the patent. In the case of Stringer and others v. Lessee of Young, 3 Pet. 320, the same question arose upon a similar patent, and Chief Justice Marshall, delivering the opinion of the court, says that the ‘ misnomer of the county must admit of explanation; and if explanation can be received, the patent is not absolutely void.’ The question in the case of Loomis v. Jackson, 19 Johns. (N. Y.) 449, arose between a party claiming under a mortgage, and a subsequent purchaser from the mortgagor. In the mortgage, the land was described as being a part of lot Wo. 51; in the deed, as being a part of lot Wo. 50. The descriptions in the deed and mortgage were the same in every respect, except that the deed expressed the true number of the lot. Both instruments contained other calls from which the land could be identified, and the court rejected the false number in the mortgage, and held it valid. Indeed, the doctrine that ‘if there be certain particulars sufficiently ascertained, which designate the thing intended to be granted, the addition of a circumstance false or mistaken, will not frustrate the grant,’ accords too plainly with ‘the suggestions of good sense and dictates of morality,’ ever to be seriously questioned.”

It will be noted that Ives v. Kimball, supra, was a law case. Many other authorities are there cited and reviewed.

Moran v. Lezotte, 54 Mich. 83 (19 W. W. 757), was an action of ejectment. It was there held that the statement of quantity in the descriptive clause of the deed may properly be taken as controlling, where the circumstances show that it is the particular least likely to be wrong, and where the description is ambiguous or indefinite in respect to fixed lines and monuments. It was there held that in ejectment for land which defendant claims was not included in the deed under which the plaintiff’s title is asserted, the plaintiff, if the deed is ambiguous, can show such conjoint acts of the parties thereto, as tend to show their understanding of the location of the boundary, etc.

In the instant case, we have quoted enough of the language contained in the deed to show that it was the intention of the parties that the home farm was being conveyed, and details were entered into relating to a life lease, etc.

In Persinger v. Jubb, 52 Mich. 304 (17 N. W. 851), it was held, in an action of ejectment, that a description in a deed may be sustained if, with the aid of the usual local inquiries, there would be no difficulty in locating the land. Would there have been any difficulty in locating the Rowley farm, in view of the undisputed evidence in the case ? We think not.

In Wilt v. Cutler, 38 Mich. 189, which was an action of ejectment, a deed dated in 1840 described land as situated in the county of Lenawee and Territory of Michigan, and assigned part of it to township 7 south, range 7 east. There was such a township and range in Monroe county, but not in Lenawee, and at the date of the deed Michigan was no longer a Territory. In construing the deed, the general description by the name of the county was rejected, and it was held good for lands in the township and range specified. We might quote from many other cases, but will simply cite a few that are in point: Anderson v. Baughman, 7 Mich. 69 (74 Am. Dec. 699); Russell v. Sweezey, 22 Mich. 240; Slater v. Breese, 36 Mich. 77; Francis v. Barry, 69 Mich. 311-319 (37 N. W. 353); Austin v. Dolbee, 101 Mich. 294 (59 N. W. 608).

Plaintiff’s counsel errs in claiming that only an equitable title passes under such circumstances as we have referred to. We have shown that in ejectment parol evidence may be resorted to to aid the court in applying the deed to its proper subject-matter, where there is ambiguity. Under the evidence, the premises conveyed could not have been in the northeast quarter of section 15, if a part of the Rowley farm.

As the case must go back for a new trial, we note in passing that the defendants could claim nothing for the tax deed offered in evidence, as there was no evidence of service of the statutory tax notice, which is a condition precedent to vesting title under the tax proceedings. Huron Land Co. v. Robarge, 128 Mich. 686 (87 N. W. 1032).

We think that the court erred in directing a verdict for the plaintiff, and in refusing to give defendants’ requests to charge the jury.

The judgment must be reversed, and a new trial granted.

Bird, C. J., and McAlvay, Brooke, and Blair, JJ., concurred.


author: Per Curiam.

text:
    MINCER v. WAYNE CIRCUIT JUDGE.
    1. Equity — Practice—Mandamus—Divorce—Alimony — Supplementary Decree.
    A petition in proceedings for divorce in the Wayne circuit court in chancery, to determine the question of alimony, after the entry of a decree and the postponement by mutual consent of the question of the amount to be paid by the defendant husband to petitioner, should be brought on before the judge that heard the original cause.
    2. Same.
    Mandamus will not lie to compel the judge who presides in chancery in Wayne county to hear such petition for alimony, and to enter a decree in the nature of a supplemental decree, determining the amount to be paid by the husband, when the testimony in the cause was heard by another of the judges.

      Mandamus by Jennie Mincer to compel Morse Rohnert, one of the Wayne circuit judges, to set aside an order dismissing without prejudice a petition of relator to determine the amount of alimony to which she might be entitled in divorce proceedings.
    Submitted November 15, 1910.
    (Calendar No. 24,019.)
    Writ denied December 7, 1910.

      Sloman & Sloman, for relator.

      Friedman & Smilansky, for respondent.
   Per Curiam.

Relator asks for a mandamus to compel Hon. Morse Rohnert, one of the circuit judges for Wayne county, to vacate and set aside a certain order made by him, sitting in chancery, denying her petition to inquire into the financial circumstances of Sol. Mincer, and to fix the amount of permanent alimony to be decreed her in the case of petitioner against said Sol. Mincer, wherein a decree of divorce had theretofore been granted to her, reserving the matter of fixing such alimony for future determination.

It appears from the petition, and the answer of respondent, that the divorce case was heard before Hon. Henry A. Mandell, March 22, 1909, and the decree mentioned granted; that complainant “consented that the matter of permanent alimony be deferred as provided in said decree, because of the representations of the defendant made at the time, that he was in helpless financial circumstances;” that this petition was filed about one year thereafter, and came on to be heard upon petition' and answer before respondent March 11, 1910, when the order complained of was made, denying the prayer of the petition, without prejudice. In this proceeding petitioner urges that mandamus should be granted, because the denial of the relator’s petition by respondent was “arbitrary, unjust, an abuse of discretion, and against her just rights.” Respondent makes full answer and return to the order to show cause, from which answer it appears that there were many allegations in the petition for mandamus of which he had no knowledge whatever; that he suggested the matter ought to be heard by the judge who entered the original decree of divorce and knew more about the facts than respondent; that this suggestion was not acted upon and the hearing was had; that after argument respondent “dismissed the petition without prejudice to filing another one.”

This proceeding in the circuit court to determine permanent alimony, as provided for by the decree, was a proper one to be heard before the judge who had heard and determined the case. As suggested by respondent, such judge was familiar with the facts in the case. This was not an incidental or formal proceeding. The evidence had been heard in the case, and now, by the terms of the decree, further evidence was to be submitted upon the question of permanent alimony, which necessarily required a supplemental or amended decree. The suggestion of respondent should have been followed, which, as we understand, is in accord with the practice in Wayne county, where the circuit court is presided over by six judges.

Whether the respondent gave other reasons for his action is not material. His conclusion was correct. His order does not deprive petitioner of an adequate remedy. It was made without prejudice to filing another petition, and the remedy has been open in this case to file such petition and bring the matter before the proper judge at any time.

The writ is denied, without costs.


author: Bird, C. J.

text:
    JAGERISKEY v. DETROIT UNITED RAILWAY.
    1. Trial — Conduct op Court — Improper Remarks — Witnesses.
    Prejudicial error is committed in a trial of a negligence case by the trial judge remarking in the presence of the jury that plaintiff’s views relative to faith healing were not religion and too “fakey,” and such remarks constituted improper comment on plaintiffs religious opinions.
    2. Same — Negligence — Carriers — Personal Injuries — Damages.
    It is the duty of the trial court to instruct the jury concerning the measure of damages in an action against a street railway company for negligent injuries to a passenger; and the requirement is not met by a charge that the damages were entirely for the determination of the jury.
    3. Same.
    Plaintiff was entitled to have a requested instruction given, that the amount of damages must be such sum as would make her whole or compensate her for such injuries as they might find she had suffered, or would suffer in the future, as a result of defendant’s negligence.
    Error to Wayne; Donovan, J.
    Submitted November 17, 1910.
    (Docket No. 97.)
    Decided December 7, 1910.
    Case by Anna Jageriskey against the Detroit United Railway for negligent injuries to her person. A verdict and judgment of $100 damage is reviewed by plaintiff on writ of error.
    Reversed.

      William Van Dyke, for appellant.

      Corliss, Leete & Joslyn (A. B. Hall, of counsel), for appellee.
   Bird, C. J.

This is a personal injury case, in which plaintiff recovered a judgment of $100 in the Wayne circuit court. On account of the inadequacy of the judgment she brings the case to this court for review.

It was the claim of plaintiff that she was a passenger on one of defendant’s cars in the city of Detroit, and when she was in the act of alighting therefrom, at the intersection of Jefferson and Beauford streets, the car suddenly started and threw her to the ground with such force that it injured her back and side; that she was laid up on account of her injuries for three months, and had not fully recovered at the time of the trial; that she was obliged to have help to care for her during the time, and that her doctor’s bill was $187. The negligence relied upon was. the sudden starting of the car, without any notice to her, as she was about to step to the ground. Defendant’s counsel took part in the trial, but offered no testimony. The errors of which the plaintiff complains relate to the remarks of the court during the progress of the trial, the charge of the court, and the court’s refusal to give his requests to charge.

The testimony disclosed that plaintiff was a seamstress, and that she gave “faith healing” treatments, and that she was on her way to see one of her patients when the accident occurred. While upon the witness stand she was cross-examined at a considerable length about her efforts at “ faith healing.” She testified that she and her brother and a 10-year old girl took a car and went to Del-ray about three o’clock in the morning, and there behind a billboard dug a hole. The cross-examination then proceeded as follows:

“Q. What did you do ?
“A. I stood there and prayed while my brother dug hole.
“Q. What did you dig a hole for ? (Objected to as incompetent and,,immaterial, inquiring into this woman’s rites.)
The Court: I do not think that is religion anyway;, you may ask about it.
“Q. What did you dig a hole for?
“A. Because for woman that had been under operation, and she wanted to go back home to Cleveland, and she could not get out of bed, and I knew if I would do as I was told to do, I would have her strong enough to get out of bed and go home to Cleveland.
“Q. Who told you to do this ?
“A. That is the angel.
“Q. What angel?
“A. Casimir. (Objected to, and I ask that it be stricken out.)
The Court: I think that it has a direct bearing whether she is able to do what she says.
“Mr. Van Dyke: I want an exception to the court’s ruling.
“Q. It is the Angel Casimir?
“Mr. Van Dyke: May all this be taken, subject to the objection and the exception ?
The Court: Certainly.
“Q. Does Angel Casimir live on this earth, or some other place ?
“A. Lives with God in heaven.
“Q. And Angel Casimir told you to go down and dig a hole in Delray ?
“A. Yes, sir.
“Q. What did. you have the little child with you for ?
“A. To pray.”

The cross-examination proceeded further along these lines, when plaintiff’s counsel again objected that the testimony was incompetent, irrelevant, and immaterial, “ as it is part of her religious rites.”

“The Court: I do not think this is religion; you cannot make this religion with me; it is too fakey. If that is religion, I don’t want to hear anything more about it.”

It is claimed that these remarks of the court were prejudicial to the plaintiff’s case; that the result of such remarks was so stamp plaintiff as a religious fakir, and destroy her standing before the jury, and lead them 1k> disbelieve her injuries, and doubt her loss on account of them.

We agree with counsel that the remarks of the court were harmful to the plaintiff’s case. However absurd the plaintiff’s acts and beliefs might appear to others, she was evidently sincere in them, and was entitled while in court to have them passed without question or comment, except so far as was necessary to show her physical condition and activity. We feel that something more than this was done in plaintiff’s examination. Her acts and beliefs were unduly developed and commented on in such a manner as to mitigate the damages, to which the testimony showed she was justly entitled. When one’s peculiar religious views are made use of for this purpose and it is obvious, as it is here, that the use had the desired effect, the verdict ought to be set aside.

Plaintiff’s counsel requested the court to charge upon the question of damages, as follows:

“ I charge you that the amount of the damages which you must award the plaintiff must be for such a sum as will make her whole or compensate her for such injuries as you find she has, or will in the future suffer on account of the accident and negligence of the defendant.”

The court refused this, and instead gave the following:

“lam unable to determine what sum you are to determine upon. That is entirely for the jury.”

This has the merit of brevity, but not of sufficiency. It was the duty of the trial court to instruct the jury as to the law applicable to the case. 3 Comp. Laws, § 10243. A failure to do so is error. Simons v. Haberkorn, 139 Mich. 131 (102 N. W. 659).

Jurors are not supposed to know, without instruction, of the different elements of damage in a personal injury case, and it is the duty of the trial court to point out those elements on which a recovery may be had. This comes clearly within the duty enjoined upon him by the statute. In this instance the court not only failed to cover the question of damages in his general charge, but refused to give the unobjectionable request of counsel on that subject. We think the refusal of the trial court to give the request was error.

For the errors pointed out, the judgment is reversed, with costs of both courts, and a new trial ordered.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


author: Brooke, J.

text:
    LEFFONIER v. DETROIT & MACKINAC RAILWAY CO.
    1. Fire — Negligence—Railroads—Question op Fact.
    In an action for negligently permitting fire to escape from defendant’s premises upon plaintiff’s farm in dry weather, destroying his property, plaintiff was entitled to take the verdict of the jury under evidence tending to show that a witness saw defendant’s employés burning ties and refuse on its property, just before the 1st or 2d of August, and the plaintiff’s property was destroyed when he next went by that way, a few days subsequently; and whether or not the witness was mistaken in the dates was a question of fact, where it appeared that the fire occurred on July 27th.
    2. Principal and Agent — Master and Servant — Fire.
    Sectionmen of a railroad company, who set fires in the course of their employment, in violation of the orders of the employer, and negligently permit fire to escape onto premises of another, render the company liable for their act.

    Error to Alpena; Emerick, J.
    Submitted November 29, 1910.
    (Docket No. 82.)
    Decided December 7, 1910.
    Case by Joseph Leffonier against the Detroit & Mackinac Railway Company for the negligent setting of fires. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Oharles R. Henry and Guy D. V. Henry, for appellant.

      Joseph H. Cobb and Fred P. Smith, for appellee.

       As to liability of railroad company for setting fires which spread to property of others, see note to Brown v. Brooks (Wis.), 21 L. R. A. 262.

   Brooke, J.

Plaintiff brings this action to recover the value of certain property destroyed by fire. It is his claim that defendant’s sectionmen negligently set fire to a pile of old ties and rubbish upon the railroad right of way during the dry season of the summer of 1907; that the fire was negligently permitted to escape from the premises of the defendant, and, after crossing an intervening farm, it came upon the premises of plaintiff, destroying his property.

Testimony was introduced tending (though not clearly) to show that plaintiff’s property was destroyed July 27, 1907. The only testimony introduced by plaintiff having a tendency to prove that the fire which caused plaintiff’s loss originated upon defendant’s right of way was given by one Mainville, supervisor of the township of Alpena. He testified that on one occasion he had seen men upon defendant’s right of way, in the vicinity of plaintiff’s farm, clearing up and burning old ties and refuse, that he remonstrated with the men, telling them that they were liable to be prosecuted for setting fires at that time of year. When asked to fix the date of this occurrence, he testified:

"Well, it must be in the early part of August, for I had to make a report to the State warden, fire warden, and I went down there with that report, for the July report. I made it the first couple of days in August. * * *
“Q. Were you by Mr. Leffonier’s place a few days after that ?
“A. Yes; I was.
“Q. State whether or not at that time the buildings on his place were burned ?
"A. When I went by they were burned; yes.”

On cross-examination, this witness testified:

“Q. How long was it after that you went by the Hamilton house ?
“A. I can’t tell exactly, a couple of days, about.
“Q. Could you tell how recently the Leffonier house had been burned ?
“A. Well, there was some— There was smoke there yet; it was still burning. There was smoke in some of the logs there, some in the stumps. I have been to the Leffonier place. I was past there before the fire. ”

This witness also testified to the spreading of the fire. After verdict for plaintiff, a motion was made for a new trial upon the ground, among others, that inasmuch as by affidavits in support of the motion it clearly appeared that plaintiff’s property was destroyed on the night of July 27th, and Mainville fixed the date of his conversation with defendant’s sectionmen on August 1st or 2d, it was evident that the fire he testified about could not have caused plaintiff’s injury. The motion was denied by the learned circuit judge, upon the ground that the other testimony given by Mainville made it clear that plaintiff’s house was destroyed after his conversation with the sectionmen, and that therefore he was mistaken in fixing the date. We think this ruling correct. As pointed out by the trial judge, this discrepancy was urged upon the jury by defendant’s counsel at the trial, and was doubtless given due consideration.

Upon the trial, defendant gave evidence tending to show that it had given positive orders to its employés to set no fires upon its right of way during the dry season. Assuming the truth of this testimony (and it need not be questioned), it was claimed by defendant in the court below, and it is urged here, that defendant was entitled to have a verdict directed in its favor, for the reason that, even if the fires were set by the sectionmen, they were set without authority, and therefore the defendant would not be liable. This view is not supported by authority in Michigan. If the sectionmen, in direct violation of the orders of defendant, set the fires in the course of their employment in clearing up defendant’s right of way, defendant would still be liable. Fitzsimmons v. Railway Co., 98 Mich. 257 (57 N. W. 127). See, also, Cosgrove v. Ogden, 49 N. Y. 255 (10 Am. Rep. 361); Ellegard v. Ackland, 43 Minn. 352 (45 N. W. 715).

Other errors are assigned which require no discussion.

The judgment is affirmed.

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


author: McAlvay, J.

text:
    H. J. REEDY CO. v. CAMERON.
    1. Evidence — Sales—Recoupment por Breach op Warranty.
    In an action for the price of an elevator and. motor furnished to defendants who claimed that it did not operate properly, and was worn and old, plaintiff claiming that the motor was new and that if it failed to work the fault lay in improper operation, an expert witness’ opinion that it was properly operated by defendants’ servants was material.
    2. Same — Expert and Opinion Testimony — Electrical Machinery.
    An electrician of experience, who had seen the electric motor operated in connection with an elevator to which it furnished power, at twenty or thirty different times, was qualified to express an opinion as to whether it was properly operated.
    3. Same — Opinion Testimony — Witnesses—Appeal and Error.
    It was error to exclude from the consideration of the jury, an answer of defendants’ expert that the motor was old, worn-out and second-hand, and the error was not cured by the fact that similar testimony of the witness appeared in another part of the record, since the action of the court might have been intended to apply to the other evidence.
    4. Sales — Warranty—Depective Machinery.
    Evidence of defendants, in an action for the purchase price of an elevator and electric motor, that frequent repairs were required, that the motor was old and often failed to work, that the parts were worn, and that its insulation was imperfect, presented a sufficient showing to raise an issue of fact as to the breach of a warranty of material and workmanship.
    5. Evidence — Impeachment op Witness.
    Letters tending to contradict the testimony of plaintiff’s president, that the motor was new, first-class and the plaintiff had never been called upon to make repairs, should not have been excluded.
    6. Damages — Value—Evidence—Charge to Jury.
    Although defendants’ witnesses testified that a motor furnished under a contract with plaintiff was defective and worthless, and there was no evidence of value except the value as claimed by plaintiff’s witnesses, and the fact that defendant made use of and retained the motor, the trial judge erred in charging the jury as to defendants’ claim of recoupment that they must, under the evidence, find it was worthless, or of the value shown by plaintiff’s testimony.
    Error to Ingham; Wiest, J.
    Submitted April 8, 1910.
    ( Docket No. 49.)
    Decided December 22, 1910.
    Assumpsit by the H. J. Reedy Company, an Ohio corporation, against Basil C. Cameron and Frank N. Arbaugh, on a contract for the sale and installment, of an elevator. A judgment for plaintiff is reviewed by defendants on writ of error.
    Reversed.

      Gardner & Hood, for appellants.

      Baudabaugh & Person, for appellee.
   McAlvay, J.

Plaintiff recovered a judgment against defendants in an action of assumpsit for a balance claimed to be due under a written contract entered into between the parties, whereby plaintiff agreed to furnish, erect, and install for defendants an electric passenger and freight elevator in the building in the city of Lansing occupied by defendants in their business of conducting a department store, for a consideration of $2,000, to be paid, one-third upon arrival of material, one-third upon completion, and one-third 30 days after completion and acceptance.

There is no dispute about the terms of the contract, nor that there remains a balance unpaid of $153.83. The dispute in the case arises on the claim of defendants, under their notice given with the plea, that although plaintiff agreed and guaranteed every part of this electric elevator in all its parts to be of first-class material, and erected in a workmanlike manner, and that its lifting capacity should be 2,000 pounds, yet the electric motor was not new or of first-class material when installed, nor the work or installation as agreed; but that theunotor was second-hand and worthless, and that the lifting capacity of the elevator was about 1,000 to 1,500 pounds, and that from the time it was put in it was, without fault of defendants, out of commission much of the time to the damage of defendants. This notice raised the issue which was tried in the case. Defendants upon the trial offered proof tending to show that this elevator, by reason of being operated by a secondhand electric motor, was not installed according to the contract and was frequently out of commission, sometimes for several days, requiring the employment of electricians to make repairs at large expense. Plaintiff claimed that this motor was new and first-class in every respect, and the trouble was caused by the careless and ignorant operation of the elevator by defendants’ employés.

The case turns upon the quality and condition of the motor furnished by plaintiff at the time of its installation.

Defendants have brought the case here for review, asking for a reversal on account of errors committed during the trial.

We will first consider assignments of error relative to the admission or exclusion of evidence. The record shows that defendants’ witness, Cable, an electrician, saw this elevator in operation at least two or three dozen times, and had examined the motor when it was being repaired. Several errors are claimed to have been made in excluding his testimony. On examination, we find that this testimony relative to the kind of motor this was, its condition, and his opinion that it was second-hand was finally admitted. He had qualified sufficiently to give his opinion upon that question. He was asked later:

Prom the way you saw the machine operated the different times you were there, and what you saw of the machine or motor, and the elevator, what could you say as to whether it was or was not properly operated ? ”

The witness was not allowed to answer.

This elevator was operated by the power generated by the motor in question. The witness was an electrician. The question was directed to the method of operating this motor. The power was controlled by the man who ran the elevator, and whether it was properly applied and cut off was a material question iii the case. The witness should have been allowed to answer the question. Plaintiff contended that the reason that the elevator did not work was because of careless operating by ignorant employés. An expert, who had observed this operation of an electric motor three dozen times, was qualified to give an opinion as to whether it was done carefully or otherwise, and the testimony was material in view of the cross-examination which had just preceded it. The court was in error in excluding this testimony.

The error relied upon relative to striking out an answer by defendants’ expert witness, Slaughter, where he says: It was an old, worn-out, second-hand motor,” requires consideration. The testimony of this witness was taken by deposition. The record shows that the part in which the above sentence occurs was re-offered after part of the deposition had been read. This witness was thoroughly acquainted with this motor, having repaired it five or six times. He gave in detail the condition of the motor, explaining what its defects were, what conditions he found in it which showed defective insulation, and old defects covered with plaster of paris, paint, and varnish/ What the original objection was, or the reason for striking out the above sentence, does not appear. It is argued that it could not be prejudicial, because a like statement appeared earlier, without objection, in his deposition. From this record, we cannot say that in striking out this answer, it was not intended to strike out the other. If the court was correct, that would follow logically. A fair inference is that it was so intended. Even if it were not, it was a material and proper part of the answer to a question relative to the judgment of witness upon the value of the motor furnished. It was error to strike it out.

In this case, plaintiff admits that defendants were entitled to show: (a) the defect or defects, if any; (b) the occasions and length of time when the elevator was out of repair; (c) the repairs necessary to put it in running order, and insists that the first proposition was not proved.

The testimony of the expert witnesses above discussed tended to prove the first of these contentions, and tended to show that these defects existed at the time of the installation of the elevator. There was sufficient warrant for its submission to the jury. Such facts could be shown by the necessity for repairs to the motor soon after it was installed, the condition of its parts when they were removed, and the frequency of repairs required, based upon the condition of the motor. No expert on the part of defendants examined this motor when it was put in, and the claimed defects were latent.

Some letters, written by plaintiff to its installing agent, were offered by defendants and excluded. There were other letters offered which had been written to plaintiff by the manufacturer of this electric motor in answer to letters written to it by plaintiff. These last-mentioned letters having been properly demanded were not produced. All of these letters were first referred to and identified by Mr. Reedy, president of plaintiff company, on his cross-examination. He had testified that the motor was new and first-class; that they had never been called upon to make any repairs, and as far as he personally knew, the elevator had not been out of repair since its installation. On cross-examination, he admitted that bills for repairs to the amount of about $80 or $100 had been sent to plaintiff by defendants, and allowed.

In Exhibit E was the statement:

“Also have him accept the elevator; we do not want any come-backs.”

In Exhibit H was the following postscript:

“Be sure to get letter of acceptance of elevator before you leave.”

In Exhibit F appears:

“And if they do not sign it [meaning letter of acceptanee], take part of their machine apart so they cannot run it, and until they pay you the balance, keep the elevator shut down.”

Exhibit G is the blank acceptance referred to.

All of the electric company’s letters were offered to show that plaintiff had knowledge of repairs made on the motor, of claims that it was a second-hand motor, and that plaintiff was contemplating sending a man from the electric company to Lansing to examine or repair it. These letters were admissible for purposes of cross-examination of the witness Reedy, as bearing upon his credibility or to rebut his statements above given. It was error to exclude them.

Errors are assigned upon certain portions of the charge, wherein the court said:

“ If the motor was not worthless, then it was of the value of $38?, because there is no evidence showing any value between $38? and nothing.”

The substance of this charge was repeated several times. The court also charged:

There is no middle ground. If you are not able to say from the evidence in this case that the motor was worthless, then you come to the other evidence in the case relating to its value as given by the plaintiff.”

The court was in error in so charging the jury. Although it is true that no witness on the part of defendants gave the value of the motor at the time it was installed, in dollars and cents, and one or two witnesses testified that it was worthless at the time the repairs were made, the value of the motor at its installation was, under all the evidence, a question of fact for the jury. It had been retained and used by defendants. All of the testimony as to its condition and the claimed necessity for the repairs made upon it was before the jury. The court had already charged them correctly and repeatedly that if the motor was second-hand, yet defendants, by keeping it, must pay what it was worth at the time of installation. The error consisted, as above shown, in later restricting the jury to a finding of the full value, as claimed by plaintiff, or of no value at all, taking from them the right to find from this record its actual value.

Other claimed errors do not require discussion.

The judgment is reversed, and a new trial granted.

Moore, Brooke, Blair, and Stone, JJ., concurred.


author: Blair, J.

text:
    COON v. COON.
    1. Divorce — Separate Maintenance — Discretion.
    In proceedings for divorce, in which, both parties pray for relief, and the wife asks for separate maintenance, the form of decree rests in the sound discretion of the court. Act No. 135, Pub. Acts 1905, as amended by Act No. 324, Pub. Acts 1907.
    2. Same — Public Policy.
    It is the settled rule in this State to grant an absolute divorce, instead of separate maintenance, for reasons of public policy.
    3. Same — Motions—Withdrawal oe Cross-Bill.
    A wife, defendant in divorce proceedings, who has filed a cross-bill praying for separate maintenance, may, on motion made after the court has announced its determination but before the entry of decree, dismiss her cross-bill, unless the complainant or the public has some legal interest which would be injured by the action.
    4. Same.
    And where the evidence showed that the wife had just grounds to complain, but desired not to have a divorce, and the complainant failed to sustain his charge of extreme cruelty, a decree should be made dismissing his bill, after a motion by defendant to withdraw her cross-bill.

      Appeal from Wayne; Murfin, J.
    Submitted October 20, 1910.
    (Docket No. 94.)
    Decided December 22, 1910.
    Bill by Charles W. Coon against Jennie Coon for divorce. Defendant filed a cross-bill praying for separate maintenance. From a decree granting defendant an absolute divorce, both parties appeal.
    Reversed and bill dismissed.

      James Swan, for complainant.

      Hunt & Altland, for defendant.
   Blair, J.

The bill of complaint filed in this cause alleges extreme cruelty, and prays for an absolute divorce. The answer, in the nature of a cross-bill, alleges extreme cruelty on the part of complainant, that he has failed to live and cohabit with her for two years, and has failed to provide a suitable maintenance for her, sets forth in detail the property owned by the complainant, and asks for separate maintenance. The answer to the cross-bill denies the allegations thereof.

During the progress of the trial, the defendant filed an amendment to the cross-bill, and alleged that during the year 1909 the complainant was guilty of extreme cruelty towards the defendant, in that he wickedly, cruelly, and wantonly associated himself with one Lillian E. Burke, a widow, then unmarried; that he escorted her to various places in the city of Detroit, and alleges that on the 7th day of July, 1909, he was guilty of improper relations with the said Lillian E. Burke, in the premises 862 Grand River avenue, and alleged that he was guilty in divers other ways and in various other places in the city of Detroit of improper relations with the said Lillian E. Burke during the year 1909. On the 2d day of December, 1909, an ex parte order was entered allowing solicitors for the defendant the sum of $375 as solicitors’ fees, and on the 6th day of December appeal by complainant was taken from said order.

The taking of testimony was completed November 17th, and, after a brief intermission, the court announced as his conclusions therefrom that: Complainant had failed to prqve the charge in his bill of complaint; that defendant had not sufficiently proved the charge in her amended cross-bill, which, in effect, alleged adultery; that defendant had sustained the charge in her cross-bill alleging extreme cruelty; that defendant must be awarded and accept a decree for absolute divorce; that the question of alimony would be considered subsequently. Further consideration of the case was adjourned to November 22d, on which date the defendant made a motion for an order dismissing the cross-bill feature of her answer without prejudice. On November 30th the court filed an opinion denying the motion to dismiss the cross-bill. On the 2d day of March, 1910, a decree was entered, which decreed an absolute divorce between the parties. From this decree both parties appeal.

The reasons of the court for granting an absolute divorce instead of separate support and maintenance against defendant’s protest, viere that it is the settled policy of this State, as announced by this court in Burlage v. Burlage, 65 Mich. 624 (32 N. W. 866), to grant absolute divorces ‘ ‘ on grounds of public policy to prevent the mischief arising from turning out into the world, in enforced celibacy, persons who are neither married nor unmarried.” The motion for leave to withdraw the cross-bill was denied, substantially, for the reason that it came too late. The court said, in part:

“ If parties are to be permitted to litigate their differences to a conclusion, so that nothing remains to be done but the final formal signing of the decree, and then because the decree ordered by the court is not satisfactory, withdraw their suit, and render nugatory all that has gone before, it makes court procedure at best at the whim of litigants, if not an idle mockery. And- especially.are these conclusions applicable, as already pointed out, in a divorce case. Winans v. Winans, 124 N. Y. 140 (26 N. E. 293). It is a well-recognized rule of practice on the law side of the court, for which there is ample precedent, that, in the absence of a set-off or counterclaim, the plaintiff may, at any time before verdict, discontinue his suit; but no rule, statute, or opinion can be found in any jurisdiction which authorizes such a discontinuance after verdict and before judgment. By analogy, why does not the same rule prevail in equity ? The question now before the court would not have been presented had the cross-complainant withdrawn her cross-bill before the opinion of the court was announced. To grant her leave to take this step because she does not like the opinion of the court, or to encourage any such practice, would be to tolerate and encourage trifling with the courts, something which obviously is not to be thought of.”

The form of decree which shall be entered in cases like the present rests in the sound discretion of the circuit court in the first instance, and, upon appeal, in the sound discretion of this court. Horning v. Horning, 162 Mich. 130 (127 N. W. 275).

Our previous decisions as to the policy which should govern the decision of the courts fully support the determination of the circuit court. Burlage v. Burlage, 65 Mich. 624 (32 N. W. 866); Sullivan v. Sullivan, 112 Mich. 674 (71 N. W. 487); Utley v. Utley, 155 Mich. 258 (118 N. W. 932); Horning v. Horning, supra. In 1905 the legislature adopted an amendatory act taking from the courts the discretion to grant an absolute divorce “ where the same is not asked for by the complainant in the bill of complaint filed therein or by the defendant on a cross-bill.” Act No. 135, Pub. Acts 1905. In 1907, however, the legislature again amended the section, substantially recommitting the form of the decree to the discretion of the courts, and, necessarily, in accordance with the policy governing their discretion theretofore announced. Act No. 324, Pub. Acts 1907. The facts that defendant did not initiate the litigation, but was compelled to come into court to defend herself, and was free from blame, do not affect this question. When she filed her cross-bill, she submitted her rights to the court to the same extent as if she had filed an original bill, and, if the court was right in denying her motion to dismiss the cross-bill, we are of the opinion that he entered the proper form of decree.

The defendant urges “that under the facts as disclosed by this record the defendant was legally and equitably entitled to withdraw her cross-bill,” and cites in support of her position Seymour v. Jerome, Walk. Ch. (Mich.) 356; Watt v. Crawford, 11 Paige (N. Y.), 472; Jennison on Chancery Practice, p. 103; Clutton v. Clutton, 106 Mich. 690 (64 N. W. 744); Pullman’s Palace Car Co. v. Transportation Co., 171 U. S. 138 (18 Sup. Ct. 808); Stover v. Stover, 7 Idaho, 185 (61 Pac. 462); Adams v. Adams, 57 Misc. Rep. 150 (106 N. Y. Supp. 1064); Milliman v. Milliman, 45 Colo. 291 (101 Pac. 58, 22 L. R. A. [N. S.] 999, 132 Am. St. Rep. 181). See, also, Moore v. Moore (Sup.), 22 N. Y. Supp. 451; Id. 138 N. Y. 679 (34 N. E. 373); 14 Cyc. p. 701; 7 Enc. Pl. & Prac. p. 116. We think the general rule to be deduced from the authorities is that in divorce proceedings the complaining party may dismiss his suit at any time before interlocutory or final decree, in the absence of any legal interest on the part of the defendant or of the State to the contrary. It was held by the court of appeals of New York in Winans v. Winans, 124 N. Y. 140 (26 N. E. 293), that:

“ The rights of the party to the record are not alone to be considered, the public is regarded as a party, and must be treated as such by the court.”

Our statutes provide for the representation of the public interest by the prosecuting attorney where there are children under fourteen years of age, and, since the sanctity of the marriage relation underlies our civilization, we have no doubt that the interests of the State should be considered. In Winans v. Winans the alleged marriage was denied by defendant and the issue involved a determination of the legitimacy of a child. In the subsequent case, however, of Moore v. Moore, 138 N. Y. 679 (34 N. E. 373), the court affirmed Moore v. Moore (Sup.), 22 N. Y. Supp. 451, where it was held that the public has no such interest in an action for divorce where no issue is raised as to the legality of the marriage as will require the court, in the exercise of its discretion, to deny plaintiff’s application for a discontinuance. In the instant case we do not perceive how the interests of the State or the legal rights of the complainant would be prejudiced by the granting of defendant’s motion. Certainly it is not for the interest of the State that the guilty husband, who has violated his marriage covenant, should obtain by indirection a divorce from his innocent wife, who is willing to condone his offense and renew marital relations. In this respect we concur in the reasoning of the Supreme Court in Adams v. Adams, 57 Misc. Rep. 150 (106 N. Y. Supp. 1064).

In our opinion the defendant should have been permitted to dismiss her cross-bill and a decree entered dismissing complainant’s bill of complaint. A decree may be entered in accordance with this opinion, the subject of expenses and allowances to be considered on the settlement of the decree, unless counsel agree thereto.

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


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    STEBE v. STEBE.
    Appeal and Error — Waiver—Estoppel by Acquiescence — Dismissal.
    The marriage of appellant, in proceedings for divorce, waives his right to review a decree granting to his wife a divorce on the ground of extreme cruelty; since one cannot secure a benefit under a judgment and then appeal from it, when the effect of his appeal may be to annul it, unless his rights could not be affected by the reversal of the judgment.
    Appeal from Muskegon; Sessions, J.
    Submitted November 18, 1910.
    ( Docket No. 167.)
    Decided December 22, 1910.
    Bill by Catherine Stebe against Charles C. Stebe for divorce. From a decree for complainant, defendant appeals. On motion to dismiss the appeal, considered with argument on the merits.
    Motion granted.

      Alex. Sutherland, for complainant.

      O. Gr. Turner, for defendant.
   Bird, C. J.

Complainant filed her bill of complaint in the Muskegon circuit court, charging defendant with extreme cruelty and praying for a decree ,of divorce, alimony, and custody of their infant daughter, Louella. The defendant answered, denying the material allegations of the bill, charged complainant with cruelty, and prayed for a decree of divorce and claimed for his answer the benefit of a cross-bill. A hearing was had upon pleadings and proofs in open court. The trial court, after a somewhat extended hearing, gave complainant a decree of divorce, awarded her the custody of the child, and provided that the defendant should make monthly payments for the care and support of the child until she attained the age of 16 years. From this decree the defendant has appealed to this court. Subsequent to and since this appeal has been pending, and on the 8th day of February, 1910, the defendant remarried. Complainant thereupon made a motion to dismiss the appeal for this and other reasons. With this motion appears a certified copy of the license and certificate of such marriage. The motion was served upon defendant and was resisted by his counsel in this court. No denial was entered by him or his counsel of the fact of such remarriage. The motion was denied for reasons unnecessary to state, and the case has been submitted to us upon the merits.

With the uncontradicted proof of defendant’s remarriage on file in this court, we think he is in no position to insist upon having his appeal further considered by this court. By entering into the marriage contract again, while his appeal was pending, he has voluntarily accepted and acquiesced in the decree made by the trial court. He ought not to be permitted to take advantage of the freedom from the bonds of matrimony which the decree grants him, and at the same time complain that such decree was wrong and against his just rights.

This question was well considered in the case of Tyler v. Shea, 4 N. D. 377 (61 N. W. 468, 50 Am. St. Rep. 660), and the rule is there stated to be:

“That one cannot accept or secure a benefit under a judgment, and then appeal from it, when the effect of his appeal may be to annul the judgment, unless his right to the benefit is absolute and cannot possibly be affected by the reversal of the judgment.”

The case of Rariden v. Rariden, 33 Ind. App. 284 (70 N. E. 398, 104 Am. St. Rep. 252), was a divorce case in which the defendant was granted a decree of divorce on his cross-bill. He appealed from the decree awarding the complainant alimony. Subsequently the defendant remarried, and the court held he had thereby waived his appeal. To the same effect, see Stephens v. Stephens, 51 Ind. 542.

We think the same must be said of the defendant in this case, that he has waived his appeal by his remarriage. This holding is supported by the recent case of Clairview Park Improvement Co. v. Railway (129 N. W. 353). The appeal is dismissed, with costs to the complainant.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.

       Not officially reported. Motion for rehearing pending.


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    MOORMAN v. MOORMAN.
    Appeal and Error — Dismissal of Appeal — Acceptance op Benefits Under Decree.
    On motion to dismiss, an appeal will be considered as waived by a defendant, claiming relief by cross-bill in proceedings for divorce instituted by her husband, where she causes the decree of the trial court awarding to her, subject to a mortgage, certain real estate, as alimony, to be recorded in the office of the register of deeds, and gives a new mortgage upon the premises for a larger amount than the original mortgage secured.
    Appeal from Kent; Connine, J., presiding.
    Submitted October 26, 1910.
    (Docket No. 119.)
    Decided December 22, 1910.
    Bill by Hiram Moorman against Julia E. Moorman for divorce. Defendant filed a cross-bill and was awarded a divorce and alimony. From the award of alimony, defendant appeals.
    On motion to dismiss the appeal at a hearing upon the merits: granted.

      Hatch, McAllister & Raymond, for complainant,

      Smedley, Hall & Freeland, for defendant.
   Bird, C. J.

The complainant filed his bill of complaint in the Kent county circuit court in chancery, praying for a decree of divorce from the defendant on the ground of extreme cruelty. The defendant answered, denying the acts of extreme cruelty alleged in the bill of complaint, and charged complainant with certain acts of cruelty, and asked for affirmative relief in the form of a separate maintenance. After a full hearing had upon the merits of the case, the trial court dismissed complainant’s bill, and found that the material allegations of defendant’s cross-bill were true, and, notwithstanding she had asked only for a separate maintenance, the court exercised his right under the statute, and gave her an absolute divorce. As permanent alimony, the court awarded her the home which they occupied in Grand Rapids and to which coinplainant had title, estimated to be worth from $4,000 to $6,000, together with all the furniture in the house. The home was encumbered for $2,000. A certified copy of the decree was duly recorded in the office of the register of deeds. The old mortgage was refunded and increased by her giving a new mortgage for $2,600. She made some repairs to the house, and made some additions to the furniture to enable her to rent portions of the house advantageously. Subsequently she appealed from that part of the decree awarding her permanent alimony, and asked this court to increase the allowance.

Complainant’s solicitors refused to take part in settling the case before the trial court, and, after the appeal was perfected, they made a motion in this court to dismiss the appeal because the defendant had accepted and acquiesced in the decree by accepting the title to the home and household furniture, and by accepting the costs of the proceedings. The motion was resisted by defendant and a showing made in opposition to it in which it is conceded that a certified copy of the decree was recorded in the office of the register of deeds; that a deed was made by complainant of the home and delivered to the mortgagee in the new mortgage; that she now has possession of both the home and furniture, and that the costs of the proceedings were accepted by her solicitor, who conducted her case in the trial court. In the showing, defendant seeks to avoid the effect of these acts by claiming that she had to refund and increase the mortgage to prevent foreclosure of the mortgage and prevent a sale of the premises for taxes; that she did not ask for or accept any deed of the premises, but the same was requested and accepted by the new mortgagee; that she has no other or different possession now than before the decree; and that her solicitor accepted the costs of the suit, but that she has never received them. This court reserved its determination of the motion until the case should be heard upon its merits, and now that question is before us as well as the merits of the appeal.

Passing over the acts of defendant which are in dispute, and considering only the act about which there is no dispute, viz., the placing of a certified copy of the decree on record in the office of the register of deeds, we think she has so far accepted the benefits of the decree as to estop her from further prosecuting her appeal. The general rule in such cases is:

“That one cannot accept or secure a benefit under a judgment and then appeal from it, when the effect of his appeal may be to annul the judgment, unless his right to the benefit is absolute, and cannot possibly be affected by reversal of the judgment.” Tyler v. Shea, 4 N. D. 377 (61 N. W. 468, 50 Am. St. Rep. 660).

When the defendant placed the certified copy of the decree of record, she accepted the title to the real estate. She exercised acts of ownership by making repairs upon the house, and by mortgaging it, and there would now seem to be no good reason why she could not dispose of it by sale if she chose to do so. After she has accepted the specific thing which was decreed to her as permanent alimony, she is in no position to complain in this court that the trial court did not do justice by her. Suppose this court, in considering the merits of her appeal, should conclude that it would make a different award of permanent alimony by giving her a monthly allowance and making it a lien upon the home if not paid, how could the order of this court be carried into effect and how could complainant be reinvested with the title to the home, especially if she had seen fit to dispose of it. It is on account of considerations like these that the rule exists.

A very similar case is reported in Waddingham v. Waddingham, 27 Mo. App. 596. The wife Was given a decree of divorce and permanent alimony of $60 per month. She appealed from the allowance of alimony, and asked the appellate court to increase it. Pending the appeal she enforced the payment of the monthly allowance. This was brought to the attention of the appellate court, and it was held that she had waived her appeal by accepting the monthly allowance. To the same effect is the case of Williams v. Williams, 6 N. D. 269 (69 N. W. 47). See, also, Stebe v. Stebe, ante, 650 (129 N. W. 856), and Clairview Park Improvement Co. v. Railway (129 N. W. 353).

The motion to dismiss the appeal is granted, with costs to complainant.

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

       Not officially reported. Motion for rehearing pénding.


author: Moore, J..

text:
    HINDMAN v. FRIEDRICH.
    Appeal and Error —Trial by Court — Findings oe Fact and Law — Questions Review able.
    Findings of fact made by the trial court, without a jury, upon contradictory evidence, are not reviewable in the Supreme Court; it is only where there is a total want of evidence or where the finding is contrary to the undisputed evidence that the findings of fact will be reviewed.

      Error to Kent; McDonald, J.
    Submitted October 26, 1910.
    (Docket No. 117.)
    Decided December 22, 1910.
    Assumpsit by Ambrose 0. Hindman against Otto Fried-rich for rent due. From a judgment for defendant, plaintiff appealed to the circuit court. A judgment for plaintiff, on a trial by the court without a jury, is reviewed by defendant on writ of error.
    Affirmed.

      Adsit & Danhof, for appellant.

      A. G. Hindman, in pro. per.

   Moore, J..

This case was commenced in justice’s court to recover rent which plaintiff claimed was due him. An appeal was taken to the circuit court, where it was tried before the judge, who made findings of fact .and of law.

“ Fact.

“(1) In December, 1907, defendant rented from plaintiff certain premises in Grand Rapids for residence purposes at eighteen dollars per month, payable monthly in advance, for no specified term. Defendant moved into the premises December 15, 1907, and vacated June 15, 1908.

(2) About March, 1908, defendant complained that the property was not worth the rent agreed upon, and it was then reduced to fifteen dollars per month.

(3) There was no agreement between the parties that the landlord should make repairs.

“(4) Defendant paid all the rent due each month, up to June 1, 1908, but paid no rent after that time.

“ (5) June 10, 1908, plaintiff received the following letter from defendant: ‘ Enclosed please find check for $7.50, for rent from June 1st to 15th. I’ll vacate your house on the 15th inst.’ On June 1st, $15 was due in advance for the month of June. Plaintiff returned the check stating that it was not enough. Defendant vacated the premises June 15th, and again sent the same check and also the keys. Plaintiff kept the keys, but again returned the check.

“(6) Plaintiff was not able to rent the house and it stood vacant until September, 1908, when it was rented to and occupied by the present tenant in the same condition in which defendant left it.

“(7) When defendant moved in, the premises were in a tenantable condition and reasonably fit for the purposes for which they were rented.

“(8) About the middle of January, defendant noticed steam and water coming from the ground in the back yard, from the sewer. This he reported to plaintiff, who promised to have the cesspool cleaned out. No solid substances came to the surface, just liquids and some toilet paper, and both parties then supposed that this trouble was caused by the backing up from the cesspool into the sewer and coming up in this way, through the hand-hole vent or running trap. This steam and water seemed to come up at about the location of this trap in the yard.

“(9) This caused some odor that came into the house when the dining room windows were open and the wind happened to be from that direction. There was no difficulty in using the water and sewerage system in the house, and no odors came back into the house through the plumbing or sewerage system.

“(10) About May 20th, defendant’s wife called the health department, and had an inspector look into the matter, and this inspector served notice on plaintiff to have foul cesspool cleaned. Plaintiff immediately upon receiving such notice gave an order to the inspector for the health department to clean the cesspool. Such work is a part of the health department’s duties. Plaintiff reported to defendant that he had given the order, and also told defendant to look after it, and see that the said health department did the work promptly. The city did not clean the cesspool until after the defendant moved out and the present tenant moved in, because the city was then having litigation, and injunction proceedings were then pending about the place for the disposal of night soil and the city was not doing any vault or cesspool cleaning for a time. This work was not permitted to be done by any other than the licensed scavengers, through orders given directly to the board of health for the work.

“(11) This sewer trouble continued the same after the. cesspool was cleaned and up to June, 1909, a year after defendant moved out, when the present tenant got a plumber to dig up the sewer in the yard at the place of the show of the coming up of the water and at this vent or house trap, and he then found that the difficulty was a broken joint of sewer tile next to the trap, and a partial stoppage from the sticks and stone, etc., in the trap. This plumber cleaned out the trap and replaced the broken tile which fully repaired the trouble.

“(12) At the various times this matter was talked about between the parties before defendant vacated, neither party knew that the trouble originated from a broken sewer tile and a partially clogged trap. At the time defendant vacated the premises, neither party was aware that the trouble originated in this way.

“ (13) The house did not become untenantable or unfit for habitation because of this trouble or defect. The house was tenantable and fit for habitation during all of the time occupied by defendant and was so at the time he vacated.

“ (14) The defects in the sewer did not exist at the time defendant moved into the premises.

“ (15) Defendant did not vacate said premises because they were untenantable, but primarily because plaintiff refused to furnish screens.

“ (16) When this cause came on for trial in justice’s court, defendant paid into court as a tender $7.50, but did not pay or tender any amount of costs. Plaintiff had at that time paid the costs in justice’s court, $2.50. This tender was not sufficient. Even under defendant’s admitted liability it should have been $10 and interest on $7.50. It is also not sufficient, because the court finds plaintiff entitled to the full amount claimed, $20 and costs.

“ Law.

“ (1) Plaintiff was under no obligations to make repairs.

“(2) Plaintiff is entitled to judgment for $20 damages for one and a third months, at $15 per month, this is one-third of the month, up to the receipt of the letter notifying him that the premises would be vacated on June 15th, and for thirty days after said notice.”

The errors complained of are stated by counsel as follows :

“That the testimony in the case does not support the findings of the court in the following particulars: In finding that ‘on.June 1st, $15 was due in advance for month of June;’ that ‘when defendant moved in, the premises were in a tenantable condition and reasonably fit for the purposes for, which they were rented; ’ that ‘ no solid substances came to the surface, just liquids and some toilet paper, and both parties then supposed that this trouble was caused by the backing, up from the cesspool into the sewer and coming up in this way, through the handhole vent, or running trap;’ that‘ at the time defendant vacated the premises, neither party was aware that .the trouble originated in this way,’ meaning from a broken sewer tile and a partially clogged trap; that ‘ the house did not become untenantable or unfit for habitation because of this trouble or defect; ’ that the house was tenantable and fit for habitation during all of the time occupied by defendant, and was so at the time he vacated; ’ that ‘ the defects in the sewer did not exist at the time defendant moved into the premises;’ that ‘defendant did not vacate said premises because they were untenantable, but primarily because plaintiff refused to furnish screens;’ that ‘the tender made by defendant of 17.50 into justice’s court was not sufficient; ’ that ‘ plaintiff was under no obligation to make repairs; ’ that ‘ plaintiff is entitled to a judgment of $20.’”

The testimony offered upon the part of the plaintiff in most essentials differs widely from that offered on the part of defendant.

In the case of Cragin v. Gardner, 64 Mich. 899 (31 N. W. 206), it was said:

“It is well settled that we cannot, in reviewing a case-made, weigh evidence, determine facts, or review the findings of the court below upon questions of fact. Heimbach v. Weinberg, 18 Mich. 48; In re Wisner’s Estate, 20 Mich. 128; Schmidt v. Miller, 22 Mich. 278; Walrath v. Campbell, 28 Mich. 123; Earle v. Insurance Co., 29 Mich. 414; City of Grand Rapids v. Whittlesey, 32 Mich. 192; Peabody v. McAvoy, 23 Mich. 526; Tuxbury v. French, 39 Mich. 190; Chatterton v. Parrott, 46 Mich. 432 (9 N. W. 482); Wertin v. Crocker, 47 Mich. 642 (6 N. W. 683). It is only where there is a total want of evidence, or where the finding is contrary to the undisputed evidence, that we can overturn the facts found by the court. In this case there was testimony to support each fact found by the circuit judge, and the facts so found support the judgment rendered by him.”

In Lamoreaux v. Creveling, 103 Mich. 501 (61 N. W. 783), Justice Montgomery, speaking for the court, said:

“There being testimony in the case tending to support these findings of fact, we are not authorized to go into the testimony, to ascertain whether we would reach the same result upon the facts; and, as the finding is conclusive of the plaintiff’s rights, it is unnecessary to discuss the other questions involved.”

These cases we think are controlling of the one before us.

Judgment is affirmed.

Bird, C. J., and Ostrander, Hooker, and Stone, JJ., concurred.