text:
    PEOPLE v. DRIVER.
    1. Intoxicating Liquors — Sales—Criminal Law.
    On the theory that a contract is executed where the order for goods is received and where the sale can be lawfully made, it is not a violation of the local-option law to order beer from another State, to be shipped into a county in which prohibition is in force.
    2. Same — Principal and Agent — Carrier.
    And one acting as agent for another may include with a personal order an order for him, advancing the purchase money and transportation charges, to be repaid on delivery of the liquor, provided the purchaser acting as agent has no interest in the liquor other than that of a carrier.

    Exceptions before sentence from Ingham; Oollingwood, J.
    Submitted November 14, 1912.
    (Docket No. 137.)
    Decided March 20, 1913.
    Byron Driver was convicted of violating the local-option law.
    Reversed.

      Roger I. Wykes, Attorney General, Charles H. Hayden, Prosecuting Attorney, and William C. Brown, Assistant Prosecuting Attorney, for the people.

      Samuel L. Kilbourne, for respondent.

       Whether one who obtains liquor for and delivers it to another, using the latter’s money, is guilty of selling the same, see notes in 24 L. R. A. (N. S'.) 268; 28 L. R. A. (N. S.) 334.
      Effect of participating in purchase and division of quantity of liquor to render one guilty of an unlawful sale, see note in 22 L. R. A. (N. S.) 560.

   Bird, J.

The respondent was convicted in the Ingham circuit court for selling, giving, and furnishing lager beer to three persons, Weaver, Watkins, and Hasbrook, in violation of the so-called local-option law. The record discloses that the respondent is a farmer, and that in August, 1911, he had a route over which he passed every morning to gather milk. On the morning of August 7th, while making his daily trip, he was halted by his neighbor Weaver, who stated that he understood that respondent was going to send for some beer, and requested that he order two cases for him. Respondent consented to do so, but informed him that the money would have to accompany the order. Weaver replied that he did not have the money with him, but would hand it to him later if he would advance it. When respondent reached the Okemos post office, he secured a money order, and inclosed it with an order for three cases of beer to the Buckeye Brewing Company, at Toledo. A few days thereafter he saw Weaver, and advised him that his beer was at the railway station, and to go and get it. Weaver then requested respondent to take it to his own home and place it on the east porch, and he would come and get it. Respondent paid the freight and took the beer to his home, as requested. Subsequently Weaver repaid the money which respondent advanced for him, and took away one case of the beer. Afterward Watkins and Hasbrook came and informed respondent that they were in partnership with Weaver as to the beer, and each took away eight bottles. Later Weaver came and took away the balance of it.

It was the claim of respondent throughout the trial that he simply acted as an agent for Weaver in obtaining the beer; that when the order was accepted by the brewing company, and delivery of the beer was made to the railway company in Toledo, the title to the two cases passed to Weaver, and that he had no interest in the beer other than to accommodate his neighbor. The entire defense of respondent was made along these lines, and his counsel endeavored by appropriate requests to get his case submitted to the jury upon this theory. The trial court refused the requests, and upon his own motion charged the jury upon this phase of the case that:

“ Now, gentlemen, I charge you that if you find beyond a reasonable doubt that Mr. Driver took George Weaver’s order for beer, and whether the money was paid then or afterwards makes no difference, and that Byron Driver ordered this beer from the brewing company in Toledo, using his own name, and that the beer was shipped over the line of the railroad to Byron Driver in the name of Mr. Driver, and that Mr. Driver afterwards received this beer from the railroad company, signing his name to the receipt, and that either then and there or afterwards at his home furnished the beer to George Weaver or Ray Watkins or Clifford Hasbrook or any of them, he was the agent of George Weaver — that is, he was the active intentional means of supplying this beer to George Weaver or Ray Watkins or Clifford Hasbrook or any of them — and then, in that case, he should be deemed to be the furnisher of the beer, and did furnish it against the terms of the statute without regard to the amount paid or where paid. If you find these facts beyond a reasonable doubt, Mr. Driver is guilty, and you must return that verdict.”

The course adopted by the respondent in ordering beer for himself was not in violation of the local-option law. People v. Brewing Co., 166 Mich. 292 (131 N. W. 557, Ann. Cas. 1912D, 981). This is on the theory that the contract is executed where the order is received, and where the sale may be lawfully made. It has been held by this court that one may go into another county, purchase liquor, and bring it into a local-option county for another without incurring the penalty of the law. People v. Tart, 169 Mich. 586 (135 N. W. 307).

Had respondent driven to Toledo and purchased the beer, and brought it home in his wagon and delivered it to Weaver, we would have the exact legal situation that was presented by Tart’s Case. If one may bring beer into a local-option county for another without violating the statute, it does not occur to us why he may not send for it for another, providing, of course, that it is done in good faith, and with no interest in the beer other than a desire to serve his neighbor or as a carrier. If the testimony offered on behalf of the respondent was true, the title to the two cases of beer passed to Weaver in the city of Toledo. This being true, the beer belonged to Weaver, and the respondent could not be guilty under the statute for furnishing to him his own beer. The statute evidently contemplates in the use of the words “ sell, give away, or furnish ” that the offending party shall be the owner or have some interest in the liquor other than that of a carrier. We think the trial court was in error in his instruction as to what would amount to a violation of the statute in furnishing liquors to another, and for this reason the case must be reversed.

Some of the testimony bearing upon the agency and good faith of respondent was in conflict, and his guilt was, therefore, a question for the jury to determine under all the testimony.

The conviction will be set aside, and a new trial granted.

Steers, C. J., and Moore, Mo Alva y, Brooke, Stone, and Ostrander, JJ., concurred. Kuhn, J., did not sit.


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    TUTHILL v. KATZ.
    1. Reformation of Instruments — Equity—Deeds.
    Equity will refuse its aid to rectify a mistake in a conveyance that is wholly without consideration unless all the parties consent.
    2. Res Judicata — Judgment—Degree—Equity.
    In an action of ejectment, the defendants were not concluded as to the matter of title by a decree dismissing a former bill of complaint filed by a predecessor in title of defendant against plaintiff and others to correct an erroneous description in a deed not supported by any consideration, no affirmative relief having been claimed in the answers to the bill: the decree left the parties in statu quo.

    Error to Calhoun; North, J.
    Submitted January 10, 1913.
    (Docket No. 64.)
    Decided March 20, 1913.
    Ejectment by Rosette I. Tuthill against Frank Katz and Frederick Katz. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      Jesse M. Hatch, for appellant.

      Winsor & Miller, for appellees.
   Kuhn, J.

This case has been here before, and is reported in 163 Mich. 618, where the facts are fully and clearly set forth. The case having been reversed, on the new trial it was tried before the court without a jury. As in the opinion of the trial judge, the record made on the rehearing did not differ in any material way from that made in the original trial, in accordance with the opinion of this court, he found for the defendants. On this appeal it is claimed that on the former hearing in this court an incorrect opinion was had in reference to the facts concerning the chancery case, the records and files of which, it was said in the previous opinion, were not relevant to the issue. It is the claim of plaintiff and appellant that the decree in that case is res adjudicata of the question involved in this suit. Was the title of the 17£ acres adjudicated in the chancery suit P The bill in that case was filed to correct the description of the 17 i acres in the deed from William Y. Rowley and wife to Alonzo J. Rowley. This plaintiff and one of the defendants therein answered, but asked for no affirmative relief. The court found that the deed was without consideration.

It is a well-established rule that a court of equity will refuse its aid to rectify a mistake in a conveyance that is voluntary and without consideration unless all of the parties consent. Bedding v. Bozell, 59 Mich. 476 (26 N. W. 677); Shears v. Westover, 110 Mich. 505 (68 N. W. 266); 34 Cyc. p. 928.

The court, undoubtedly basing its finding upon this rule, refused to give complainant relief and dismissed the bill. In so far as the title of the property was concerned, this left the parties in statu quo. Defendants having asked for no affirmative relief, a decree could not be made determining the title to the land in question; and the language used by the judge, which it is claimed should be construed as determining this question, is of no effect and no part of the decree. Vary v. Shea, 36 Mich. 388; Vroman v. Thompson, 51 Mich. 452 (16 N. W. 808).

Judgment is affirmed, with costs.

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


author: Stone, J.

text:
    HOME TELEPHONE CO. v. MICHIGAN RAILROAD COMMISSION.
    1. Corporations — Injunction—Equity—Telephones.
    In a suit to enjoin the consolidation of several telephone companies, which were not represented to be engaged in interstate business, the bill setting up no violation of the Sherman anti-trust act (26 U. S. Stat. 209, TJ. S. Comp. Stat. 1901, p. 3200), did not warrant the interposition of the court of chancery on that ground, and presented no Federal question.
    2. Equity — Jurisdiction.
    Grievances which afflict the community must be redressed by those to whom the law has intrusted the duty of interference; private persons may not assume the right to institute proceedings in chancery to redress grievances on behalf of the public; and unless their private rights are interfered with, in a manner distinct from the wrong to the publio at large, equity has no jurisdiction.
    3. Telegraphs and Telephones — Parties—Injunction.
    A telephone company may not maintain a bill to restrain the Michigan railroad commission from authorizing the consolidation of other telephone companies operating in the same- or adjacent territory, if complainant’s interests are not shown to be peculiarly affected in a manner different from other members of the community; only the attorney general can enjoin the merger.
    4. Words and Phrases — Definitions—“Regulate.”
    The word “regulate” as used in the title of Act No. 138, Pub.
    " Acts 1911 (3 How. Stat. [2d Ed.] § 7222 etseq.), “An act to-declare telephone lines and telephone companies within the State of Michigan to be common carriers and to regulate the same and prescribing a penalty for the violation of this act,” includes both government and restriction and is sufficiently broad to include regulation of operation, etc.
    5. Constitutional Law — Title.
    Accordingly Act No. 138, Pub. Acts 1911 (3 How. Stat. [2d Ed.] § 7222 et seq.), is constitutional and its title is sufficient. Const, art. 5, § 21.
    Appeal from Ingham; Oollingwood, J.
    Submitted January 10,1913.
    (Docket No. 62.)
    Decided March 20, 1913.
    Bill by the Home Telephone Company against the Michigan railroad commission, the Michigan State Telephone Company, the Home Telephone Company of Michigan, and others, for an injunction to prevent a proposed consolidation of defendant telephone companies. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      James J. Noon and Samuel H. Kelley, for complainant.

      Grant Fellows, Attorney General, for appellee Michigan railroad commission.

      Eobson & Murfin, for defendant corporations.
   Stone, J.

On July 11, 1912, the Michigan State Telephone Company, the Home Telephone Company of Michigan, the Detroit River Telephone Company, the Wayne County Telephone Company, the Macomb County Telephone Company, and the Interstate Long Distance Telephone Company, filed a petition with the Michigan railroad commission praying that certain contracts (a copy of each being attached to said petition) be authorized by said railroad commission to be consummated. The said contracts were in effect a sale of the properties of each of the defendant telephone companies (other than the Michigan State Telephone Company) to the Michigan State Telephone Company, claiming authority therefor under and by virtue of Act No. 138 of the Public Acts of 1911 (3 How. Stat. [2d Ed.] §§ 7222 et seq.). Certain other companies asked and obtained leave to intervene, and a hearing was had. By reason of its connection with the Michigan Independent Telephone & Traffic Association, one of the interveners, complainant company was heard in the matter and was mentioned in the order granted by the commission, and it is claimed by the complainant that it thereby became a party to the record. On the 9th day of August, 1912, defendant the Michigan railroad commission, after a hearing, made an order authorizing the consummation of said contracts, thereby authorizing a merger of all the defendant telephone companies as prayed for in the petition; said order to become effective August 15, 1912. On August 14, 1912, complainant filed its bill of complaint in the circuit court for the county of Ingham, in chancery, praying, among other things, that said order of said Michigan railroad commission be set aside and vacated, and that it be enjoined from issuing said order, and the defendants telephone companies be enjoined from consummating such merger. On August 16, 1912, complainant caused to be served on the defendants a copy of the bill of complaint, with a notice that application for an injunction would be made to the said circuit court, in chancery, on August 21,1912. On the last-named date, and in pursuance of said notice, all parties appeared and were represented by counsel, and defendants interposed and argued their respective demurrers, hereinafter referred to. On September 9, 1913, the circuit court sustained the demurrers and entered a decree dismissing the bill of complaint. Whereupon complainant appealed from such decree to this court.

Appellant alleges and claims that Act No. 138 of the Public Acts of 1911 (3 How. Stat. [3d Ed.] §§ 7333 et seq.) is unconstitutional so far as authorizing a merger of competing telephone companies is concerned, and also that the order of the said Michigan railroad commission should be vacated and set aside, for the reason that it enlarges the scope of the said act, even if constitutional, by creating a legalized monopoly in the Michigan State Telephone Company in certain territory of this State therein defined; and that the circuit court erred in sustaining the demurrer and dismissing the complainant’s bill.

The eighth and ninth paragraphs of complainant’s bill are as follows:

“ (8) Your orator avers that while said order of the Michigan railroad commission attempts to protect the rights of your orator as to present existing contracts for service over other lines, yet it avers that at the expiration of said existing contracts there is no provision for renewal thereof, and only existing contracts with companies doing business in the State of Michigan are attempted to be protected, all of which is contrary to public policy, and public convenience, and detrimental to your orator’s best interests.
“ (9) Your orator avers that it is informed and believes it to be true that said Michigan State Telephone Company is about to consummate said proposed merger of the properties, rights, and franchises of the said Home Telephone Company of Michigan (and the other companies named) with its own properties, and said Michigan railroad commission will permit said unlawful merger or consolidation to be made unless restrained by order of this honorable court, and your orator avers that such merger and consolidation of said companies will give the said Michigan State Telephone Company a monopoly of the telephone business to the exclusion of the independent telephone companies within a portion of the State of Michigan, to the great damage and irreparable injury of your orator and the public generally.”

Without setting forth in full the .demurrers of the defendants, it may be sufficient to state that the fourth ground of the joint demurrer of all the defendants, except the Michigan railroad commission, is as follows:

(4) “ The bill is filed to redress an alleged injury to the complainant and ‘ to the public generally ’ as shown on the face of the bill. A private relator may not maintain an action in this form, but it must be brought through the attorney general.”
(5) “ Under the provisions of Public Acts of 1911, Act No. 138, the Michigan railroad commission have authority to make the order they did.”
The first ground of the demurrer of the Michigan railroad commission is as follows:
(1) “The court has no jurisdiction, at the suit of said complainant, to entertain the said bill of complaint and grant relief or any part thereof prayed for therein.”
(2) “ Act 138 of the Public Acts of 1911 is not violative of section 21, article 5, of the Constitution of the State of Michigan.”
(5) “Act 138 of the Public Acts of 1911, authorizing the consolidation, merger, and purchase of telephone companies, is valid and constitutional.”

1. The first ground of the demurrer urged by defendants is that the attorney general is a necessary party to these proceedings, and a private individual may not maintain this form of action.

While paragraph 6 of the bill of complaint indicates that it is claimed that the order of the commission violates the Sherman.anti-trust law (Act July 2, 1890, chap. 647, 26 U. S. Stat. 209 [U. S. Comp. Stat. 1901,' p. 3200]), yet, as previously pointed out in the bill, the averments thereof expressly show that this cannot be true. As the bill distinctly states that the several defendants are all corporations operating lines or exchanges doing a telephone business within the State of Michigan, we shall therefore not discuss or consider any Federal questions, as there is no averment or intimation in the bill that any of the companies involved are doing or contemplating an interstate commerce business. There is no allegation in the bill of complaint that the complainant is affected in any way or manner other or different than is the public generally. Act No. 138, Public Acts of 1911, bears intrinsic evidence of legislative intent to confine its provisions to intrastate telephone business. Such intention is fairly inferable from the language of both the title and the act.

We think it is well settled in this State that grievances which afflict the community must be redressed by those to whom the law has intrusted the duty of interference. Such has been the rule of law in this State for many years. Miller v. Grandy, 13 Mich. 540. It was there held that private persons could not assume to themselves the right to institute proceedings in chancery to redress grievances on behalf of the public. They can only proceed where their individual grievances are distinct from those of the public at large, and such as give them a private right to redress. In that case Justice Campbell said:

“ This bill can only be sustained by holding that every private citizen has the right to call public officers to account for their official misconduct, affecting the body politic, and not specially one man more than another. There were a few cases decided in the Supreme Court of New York, which recognized such a right; but they have been overruled repeatedly, and the doctrine is now well settled that a private taxpayer, suffering under no special grievance, is not even a proper party to a bill filed to restrain threatened misconduct. * * * And grievances which afflict, the community must be redressed by those to whom the law has intrusted the duty of interference.”

In Steffes v. Moran, 68 Mich. 291 (36 N. W. 76), it was held that public wrongs must, in this State, be redressed by the people’s public agents, and not by private intervention; and that the case of Miller v. Grandy, supra, laid down the Michigan doctrine on this subject, with its reasons, and has been adhered to.

In Sweet v. Smith, 153 Mich. 674 (117 N W. 59), this court was asked to review an order of the circuit court for the county of Wayne denying a mandamus, prayed for by the relator and others, compelling the respondent “to execute and enforce all the laws pertaining to the preservation of the Sabbath, or the first day of the week, at the baseball park of the Detroit club.” The purpose of the proceeding was to prohibit Sunday baseball playing in the city of Detroit. In a per curiam opinion this court said:

“ It does not appear that the grievance of the petitioners is any other than that sustained by other citizens of the city of Detroit. Neither does it appear that the attorney general of the State has refused to take action in the matter. Under these circumstances, petitioners have no right to relief. The grievance complained of is purely a public grievance, and redress should have been sought by the people’s public agents, and not by private intervention. See People, ex rel. Bussell, v. Inspector and Agent of State Prison, 4 Mich. 187; Miller v. Grandy, 13 Mich. 540; People, ex rel. Delbridge, v. Green, 29 Mich. 121; People, ex rel. McBride, v. Board of Sup’rs of Kent County, 38 Mich. 422; Steffes v. Moran, 68 Mich. 291 (38 N. W. 76); Smith v. City of Saginaw, 81 Mich. 123 (45 N. W. 964).
“ The decision of the circuit court was clearly correct, and we decline to review it in this court.”

This subject was fully discussed and many cases cited in the recent case of International Harvester Co. v. Eaton Circuit Judge, 163 Mich. 55, at pages 66 and 67 (127 N. W. 695, 30 L. R. A. [N. S.] 580, Ann. Cas. 1912A, 1022). Under the provisions of Act No. 255, Public Acts of 1899, and the supplementary act of 1905, relating to trusts and monopolies, the attorney general is directed to institute quo warranto proceedings, or proceedings by injunction or otherwise, in so far as a corporation is concerned, and no such right of action is given, as is claimed here.

In our opinion this ground of the demurrer was well taken and should be sustained.

2. The other grounds of demurrer above referred to maybe disposed of together, in answer to the claim of the complainant that the last clause of section 6 of Act No. 138, Public Acts of 1911, is unconstitutional because not within the title of the act; it being the claim of complainant that such provision is void under section 21 of article 5 of the Constitution of the State of Michigan, which provides:

“No law shall embrace more than one object, which shall be expressed in its title.”

The title of the act is as follows:

“An act to declare telephone lines and telephone companies within the State of Michigan to be common carriers, to regulate the same and prescribing a penalty for the violation of this act.”

It is the argument of the complainant that that part of the act authorizing a merger of competing companies cannot be said to be expressed in the title; that there is nothing contained in the title that would indicate any authority to consolidate or merge competing companies; and that the title of an act should indicate the object to be attained. It is the further claim of the complainant that the only power sought to be given by the act to the railroad commission to authorize a merger is contained in the clause of section 6, reading as follows:

“ Provided, that the provisions of this section in regard to switching charges shall not apply when two or more competing companies in any locality shall merge or consolidate their property and business in such locality under the direction of the said railroad commission of this State, or when one competing company shall sell or lease its plant, property and business to another company in the same locality, such merger, consolidation, sale or lease, if with the approval of the said railroad commission, being hereby declared lawful.”

It is well that we add the final clause of this section, which is as follows:

“ The Michigan railroad commission may make all such reasonable rules or orders as may be reasonable or necessary to carry out the intent of the provisions of this section, and refusal to obey such rules, orders or provisions of this section shall be unlawful.”

The act gives the railroad commission general control over telephone companies, refers to the subjects of the service, facilities, and use of lines, and the title of the act is “to regulate the same.” It does not read to simply regulate the rates, etc.; it must mean to regulate the operation of telephone lines and telephone companies. This certainly must mean regulation of the business, and regulation embraces both government and restriction, as we have frequently held.

We think that it cannot be reasonably urged that the only power given to the railroad commission to authorize a merger or purchase by one company from another is contained in the clause quoted in section 6. A careful reading of the act discloses that it is provided in section 2 of the act that the Michigan railroad commission shall have the general control of all telephones, telephone lines, and telephone companies within the State. This it seems to us has to do with regulation, and falls within the title of the act. Section 3 requires telephone companies to furnish reasonably adequate service, at reasonable rates, and gives to the commission the power to act upon the rates fixed, and to regulate by rules or order any service or facility. Section 4= is the anti-rebate section, which is cleariy a regulation against unjust discrimination, etc. Section 5 relates to the same subject. The first part of section 6 provides for physical connections on the order of the commission, interchange of service, division of expense, switching service, compensation, settlement with terminal companies, subscribers to pay fee, and switching point to be designated by railroad commission. All of these matters are provided for before we reach the proviso above set forth. All these matters have to do with regulation. Then comes the clause providing that the provisions of the section in regard to switching charges shall not apply when two or more competing companies in any locality shall merge or consolidate their property and business in such locality under the direction of the said railroad commission of this State, or when one competing company shall sell or lease its plant, property, and business to another company in the same locality, with the approval of the railroad commission, which is thereby declared lawful. May it not be said that there is a restriction on the power of the railroad commission ? It was given general control by section 2.

This court held, in Westgate v. Adrian Township, 161 Mich. 333 (126 N. W. 422), that by the term “regulate,” in the title of an act, both government and restriction are intended. That case reviews and discusses most of the decisions of this State upon the subject, and may be cited as covering the entire question of title. It was there held that any provision germane to the subject expressed in a title may properly be included in the act; that it is sufficient if the title fairly expresses the subject, or is sufficiently comprehensive to include the several provisions relating to or connected with that subject,, citing Cooley on Constitutional Limitations (6th Ed.), p. 172; People v. Mahaney, 13 Mich. 481; People v. Kelly, 99 Mich. 82 (57 N. W. 1090); Soukup v. Van Dyke, 109 Mich. 679 (67 N. W. 911); Fortin v. Electric Co., 154 Mich. 316 (117 N. W. 741). An examination of the following cases cited in that opinion, holding that the word “regulate ” means both government and restriction, is enlightening upon this subject: Dillon v. Railroad Co., 19 Misc. Rep. 116, 43 N. Y. Supp. 320; City of Rochester v. West, 164 N. Y. 510 (58 N. E. 673, 53 L. R. A. 548, 79 Am. St. Rep. 659); McWethy v. Power Co., 202 Ill. 218 (67 N. E. 9). The following authorities also may be examined upon the point that this prohibition of the Constitution should receive a reasonable and not a technical construction, and that none of the provisions of a statute should be regarded as unconstitutional where they all relate, directly or indirectly, to the same subject having natural connection and not foreign to the subject expressed in its title. Phillips v. Bridge Co., 2 Metc. (Ky.) 219; State, ex rel. Stuart, v. Kinsella, 14 Minn. 524 (Gil. 395).

We think the title in question is clearly broad enough to comprehend the subject-matter of this statute, including the provisions of section 6. All the rest of the act deals with matters of regulation, pure and simple.

It may be well to call attention to the fact that our statute (section 8572, 8 Comp. Laws, 4 How. Stat. [2d Ed.] § 9605), by a provision which has been upon the statute books for many years (being “An act to authorize any corporation organized under the laws of this State, to sell its property, franchise, rights and privileges to any other corporation organized under the same or any similar laws of this State for the same corporate purpose”), has been held by this court to be applicable to telephone companies. Michigan Telephone Co. v. City of St. Joseph, 121 Mich. 502 (80 N. W. 383, 47 L. R. A. 87, 80 Am. St. Rep. 520). This act provides that any corporation formed under any general law of this State may, at any general or special meeting of its stockholders, with the consent of three-fourths of its capital stock, sell and convey all of its property and franchises, rights, and privileges, or any portion of its real property or franchises, to any other corporation formed under the same or any similar law for corporate purposes of the same character.

It appears by this record that the different companies were authorized to act by their stockholders. We quote the following language, which is common to all the contracts, at the close of the contract by the Michigan State ■ Telephone Company, with the Wayne County Telephone Company, to wit:

“In witness whereof, the Michigan State Telephone Company, the party of the first part, has caused this contract to be executed by Its president and secretary, being formally authorized so to do at a meeting of the directors of that company regularly called, and the Wayne County Telephone Company, party of the second part, has caused this contract to be executed by its president and secretary by greater than a three-fourths vote of all of its stockholders at a meeting duly and regularly called for the purpose of passing upon this contract.”

By said Act No. 138 the railroad commission has general control over such companies. The telephone law, so-called (section 6691, 2 Comp. Laws, 3 How. Stat. [2d Ed.] § 7214), permits a telephone company to purchase and hold stock in any corporation owning or controlling by patent, or otherwise, the use of any instrument or device necessary or convenient for use, in the transmission or reception of telephonic messages, and to purchase and hold all real property necessary to carry out the purposes of its organization. Under the averments of this bill, and certainly under the facts as found by the railroad commission, no restraint of trade is made out, because the only effect upon the business is to increase and improve it. To that extent one corporation, when properly regulated and controlled, is preferable to a number of distinct corporations, acting independently.

We think the circuit court reached the correct conclusion in sustaining the demurrers and dismissing complainant’s bill.

The decree of the circuit court is affirmed, but without costs to either party.

Steers, C. J., and Moore and Ostrander, JJ., concurred with Stone, J.

Brooke, J., concurred upon the first ground discussed.

McAlvay and Bird, JJ., concurred with Brooke, J.

Kuhn, J., did not sit.


author: Brooke, J.

text:
    COLEMAN v. TURNER CARTAGE CO.
    Master and Servant — Assumed Risk — Notice oe Danger — Defective Appliances.
    Having knowledge or notice that a rope, by means of which plaintiff was lowering a tank weighing upwards of three or four tons, was fraying on the edge of the tank whioh was in danger of falling, plaintiff, an experienced workman, chargeable with general knowledge of the weight of the tank, the strength of the rope and the dangers attending his work, assumed the risk of the parting of the rope upon his mounting the tank to do what he could to prevent ^ its fraying and breaking.
    Error to Wayne; Murphy, J.
    Submitted January 8, 1913.
    (Docket No. 38.)
    Decided March 20, 1913.
    Case by George Coleman against the Turner Cartage Company for personal injuries. A judgment for defend- . ant, on a verdict directed by the court, is reviewed by plaintiff on writ of error.
    Affirmed.

      Thomas A. Conion, for appellant.

      Keena, Lightner, Oxtoby & Oxtoby, for appellee.
    Plaintiff, a man 35 years of age, had been engaged for about 15 years with various truck companies in the city of Detroit. Defendant is a truck company, and for the past six or seven years has undertaken “heavy work;” that is, the moving of heavy or bulky objects. When defendant entered upon this particular branch of its business, it engaged plaintiff, who thereafter acted as foreman of a gang composed of men hired by defendant.
    A large tank had been shipped to the Detroit Brewing Company, and the defendant had the contract to remove this tank from the depot to the brewery, and to there install it in the plant. Plaintiff assisted in moving the tank from the depot to the brewery, and had charge of the gang which installed it. He testified that Mr. Turner, one of defendant’s officers, handed him the shipping bill for the tank and equipment. The weight of the entire shipment as shown on the bill was 24,000 pounds. The weight of the tank was not given separately upon the shipping bill, but plaintiff was informed by Mr. Turner that it weighed 6,000 pounds. The tank, in fact, weighed, according to plaintiff’s estimate, about 9,000 pounds. Plaintiff himself selected the ropes used upon the job from the rigging barn of defendañt.
    The lead rope selected was 400 feet long and 1J inches in diameter. This rope was capable of sustaining a weight of 6,000 pounds. The tank was jacked up, placed over the opening, and raised preparatory to lowering it into the receptacle prepared for it. At this point plaintiff mounted to the top of the tank to examine the rope and the blocks, being under the belief that the rope was chafing on the blocks. He found everything apparently right, and returned to the ground. It was then discovered that the rope or lead line was cutting or fraying upon the sharp edge of the tank. Whether this was noticed first by plaintiff or Mr. Turner is in doubt, as plaintiff testifies in one portion of his evidence that he saw it first and in another portion that Mr. Turner discovered it. It would seem to be immaterial which version is correct. The condition was discovered, and was known to both. Plaintiff testified that thereupon Mr. Turner said to him: “ George, go up there and clear that line.” He further testified:
    “ I got upon the tank and looked over the side of the tank, and I says, ‘ Hand me up a piece of 2x4.’ He handed it up, and I sticks it down, and immediately I got it clear, away I goes.”
    On cross-examination plaintiff testified:
    “ I would not have gone up there if I knew an accident was going to happen. When I walked around there before I went up, it did not look very good, and it did not look very much better when I got up there, the way I had to pry it out. The line was not chafing very much. I did not bring down the 800-foot line, because it was too heavy a line to use altogether. If the rope carried 6,000 pounds, I thought it would carry 6,000 pounds down the hole.

      “Q. If you thought it was dangerous, why didn’t you go over there a block and a half and get that 800 feet of line?
    ‘ ‘A. I didn’t think it would go as quick as it did.

      “Q. What is that ?
    “A. I didn’t think it was going to break as it did.
    “Q. You didn’t think it was going to break so soon ?
    • “A. No; if it carried 6,000 pounds, I thought it would carry 6,000 pounds down the hole.

      “Q. You just saw a break in it and calculated in your mind, if it was 6,000 pounds, that it would carry; you thought it would be good enough ?
    “ Mr. Conlon: I submit that is not a fair cross-examination of this witness.
    “ The Court: Objection overruled. (Exception for plaintiff.)

      “A. Yes, sir.”
    On redirect:

      “Q. You stated that you did not want to go upon this tank when you were ordered to go by Mr. Daniel Turner ?

      “A. Yes, sir.

      “Q. If you did not want to go, why did you go ?

      “A. I looked at the tank, and I said, ‘ Well, it has got to be done,’ and I went up and did it.

      “Q. You stated that it did not look very good to you. What did you mean by that, when you were on top of the tank?

      “A. Well, when I got up there and saw it was chafing that way, it didn’t look very good when it was chafing. I went there on the tank, and I came down again, and looked the thing all over, and when I saw the thing had to be done I went up and done it.”
    Louis Delos, a witness for plaintiff, testified:
    “I came down off of the tank, and said, ‘The line is chafing there,’ and Turner said: ‘ George, go up and see what is the matter with it.’ Mr. Turner says, ‘ Clear it, George, clear the line,’ and as he started to clear the line the fall gave, and the lead line broke,”

      On cross-examination:
    “ Q. Do I understand that you and Mr. Coleman looked the job over to see if it was all right aloft ?
    “ A. Yes, sir.
    “ Q. And it looked all right to you ?
    “A. Yes,sir.
    “ Q. And it looked all right to Coleman, apparently, except that this line chafed ?
    “ A. All except the line.
    “ Q. If the line had not chafed on that sharp edge of the tank there, the accident would not have happened ?
    “A. No, sir.
    “ Q, I understand that for, perhaps, years you had worked for Mr. Coleman on various jobs ?
    “A. Yes, sir.
    “ Q. And he thoroughly understood his business ?
    “A. Yes, sir.
    “ Q. And he didn’t need the Turners to tell him what to do?
    “A. Why, no.
    “ Q. He could tell the Turners things, could he not?
    “A. Yes, sir.”
    George Leighton, also sworn for plaintiff, testified:
    ‘ ‘At that time I was working for the Detroit Brewing Company lowering a tank. The tank was skidded on six-inch stuff. We dragged the tank over the top of the hole and raised it up. I told George that the tank was over the weight he told me. It dragged pretty hard. There were four of us on the winch at times. The wagon was turning over. I could hoist five tons on this slow gear, if everything was clear. We had it up a piece to try it over the top of the pit, and Mr. Turner (sitting over there) said, ‘ The line is chafing.’ Mr. Turner over there advised George to go up and clear the line, and he hollers to me to hand him a piece of stuff to pry it clear. Then, when Coleman pried that off the side of the angle the lead line parted right there.”
    On cross-examination:
    “ I told Mr. Turner, when Coleman was there, that the tank would run over the weight that he first said.

      “Q. Where was it that you told Mr. Turner that the tank would run over the weight ?

      “A. I didn’t tell him that.

      “Q. Who did?
    “A. I told it to George.

      “Q. Where did you tell him that ?

      “A. Right in the building.

      “Q. Coleman was right there?
    “A. Coleman was right there.

      “Q. And you told Mr. Turner, in Mr. Coleman’s presence, that the tank would run over the weight he first said ?
    “A. Yes, sir.
    “Q. That was the first time that you told Mr. Turner that that was over the estimated weight ?
    “A. We would not know.
    “Q. Who would know ?
    “A. You would know naturally yourself, when you were putting it up in the falls.

      “Q. Coleman would know as much about it as Turner?
    “A. I think he ought to.
    “Q. He was foreman of the gang ?
    “A. Yes, sir.

      eeQ. He was working on it all that morning ?
    “A. Yes, sir.

      UQ. But the first time you saw Turner you told him it was a heavier tank than you expected ?
    “A. Yes, sir.

      “Q. And that was long before the accident?
    “A. Yes, sir.”
    At the conclusion of plaintiff’s case, a verdict was directed for defendant, upon the ground that plaintiff had assumed the risk of injury.
   Brooke, J.

(after stating the facts). The first seven assignments of error are based upon rulings of the court as to the admission of testimony. Answers to several questions put to plaintiff upon redirect examination^ were excluded. Plaintiff testified fully upon direct, redirect, and cross-examination. The questions to which objection was made and answers to which were excluded were either leading in character, or called for a mere repetition of evidence already in the case. There was no abuse of discretion in the rulings of which complaint is made.

The other assignments all relate to the direction, of a verdict and the denial of a motion for a new trial.

The meritorious question involved is whether, under the evidence, a verdict was properly directed in defendant’s favor upon the ground assigned.

It is urged upon the part of the plaintiff that he was misinformed as to the weight of the tank; and that the defendant is responsible for such misinformation. We think it is clear that plaintiff had quite as good an opportunity of judging of the weight as did the defendant. It may even be presumed that he had a better opportunity; for he assisted in removing it from the depot to the premises where it was to be installed. But, in any event, he was not misled to his injury; for in raising the tank, preparatory to lowering it into its receptacle, it became apparent that it weighed more than 6,000 pounds. This fact was reported to plaintiff by one of his own witnesses some time before the accident happened.

It is next urged that plaintiff was not furnished with suitable appliances with which to do the work. The record shows that a longer and heavier rope was owned by defendant. This rope, plaintiff testified, he could not use, because it could not be reeved through the block. Whether it was plaintiff’s duty to have secured a larger block and to have used the heavier line need not be determined; for the record does not show that the line actually used was inadequate. Plaintiff’s witness Delos testified:

“Q. And it looked all right to Coleman, apparently, except that this line chafed ?
“A. All except the line.
“Q. If the line had not chafed on that sharp edge of the tank there, the accident would not have happened ?
“A. No, sir.”

It is therefore apparent that, in the opinion of this witness, the line parted because of the chafing or cutting, and not because it was too light. But, even assuming that the rope was provided and selected by the defendant, the legal aspect of the case is not changed by that fact. At the moment plaintiff mounted the tank and undertook to free the fraying line, the exact situation was open, apparent, and actually known to him. He says:

"When I walked around there before I went up, it did not look very good to me, and it did not look very much better when I got up there, the way I had to pry it out.”

The plaintiff having equal, if not greater, experience in the line of his work than the officer of the defendant company, who was present, with knowledge of the defect and appreciation of the danger, undertook the performance of the act which resulted in his injury. It must be held, as a matter of law, that he assumed the risk of injury in the premises. Bauer v. Foundry Go., 132 Mich. 537 (94 N. W. 9), and cases there cited; Swick v. Cement Co., 147 Mich. 454 (111 N. W. 110), and cases there cited and digested. See, also, 26 Cyc. p. 1177, and notes.

The judgment is affirmed.

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


author: Moore, J.

text:
    ROTHSCHILD v. SUGAR BEET PRODUCTS CO.
    1. Evidence — Principal and Agent — Admissions.
    In the absence of evidence that the secretary and treasurer of a corporation was authorized to bind it by admissions, testimony as to statements that the secretary had made concerning the authority of another agent of the company was properly excluded.
    2. Same — Sales—Authority to Purchase — Estoppel.
    Evidence offered to show that a representative of defendant had authority to purchase certain advertising specialties, held, insufficient to present a question of fact or to show agency by estoppel.

      Error to Wayne; Codd, J.
    Submitted January 17, 1913.
    (Docket No. 9.)
    Decided March 20, 1913.
    Assumpsit in justice’s court by Clarence Rothschild against the Sugar Beet Products Company for goods sold and delivered. Prom a judgment for plaintiff, defendant appealed to the circuit court. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      Cullen, Casgrain & Hanley, for appellant.

      Geer, Williams, Martin & Butler, for appellee.
   Moore, J.

The plaintiff, Clarence Rothschild, brought suit to recover the sum of $470.53 as the assignee of the Gray Lithograph Company, J. B. Carroll, and the Sullivan Printing Works. He obtained judgment for the full amount in justice’s court, and, on appeal to the circuit court, a verdict of no cause of action was directed. The case is brought here by writ of error.

In December, 1909, the plaintiff was engaged in selling advertising specialties as the representative of the above-named parties. Defendant, whose home office is in Caro, Mich., was engaged, among other things, in making a boiler cleaner called Success Boiler Compound. The defendant made an arrangement with one Cunningham to sell its goods on commission. He opened an office in Detroit.

The claim of counsel for appellant is summed up in his brief as follows:

“We contend, therefore, that the trial judge should have submitted to a jury the question whether or not the defendant has authorized Cunningham to make these purchases, or at any rate that the question should have been submitted as to whether or not they were estopped from denying this authority.”

The record is not long, and the facts are not very much in dispute.

Mr. Cunningham’s office was opened a little time before the orders for goods were placed. The time when they were placed is important. The Cray Lithographing order was placed on December 1, 1909; the Sullivan order about December 5, 1909; and the Carroll order on the 9th of the same month. When Mr. Cunningham opened his office, he was furnished with letter heads having printed matter as follows:

Sugar Beet Products Co.
Boiler Preservatives.
Caro, Michigan, U. S. A.
New York.
Chicago.
St. Louis
Buffalo.
Detroit.
New Orleans.
Indianapolis.
Grand Rapids.
London, Eng.
Tokyo, Japan.

Shortly thereafter Mr. Cunningham had printed on these letter heads, under the line “Caro, Michigan, U. S. A.,” the following:

“Detroit Branch, 801 Breitmeyer Bldg., F. L. Cunningham, Mgr. Phones, Main 4340, City 4340.”

Mr. Cunningham also put a sign on his office door reading:

“The Sugar Beet Products Company, Success Boiler Compound, F. L. Cunningham* Manager.”

Mr. Robert Montague was called by the plaintiff as a witness. Among other things he testified:

“ The Sugar Beet Products Company was organized in the spring or summer of 1909, succeeding my father, H. E. French, and myself, who were the ones interested in the company at the time of its organization. Mr. French was president, my father vice-president, and I was secretary and treasurer. We were practically in the jobbing business. My father took no active part in the management of it; it being left to Mr. French and myself. The same officers continued until May, 1910. During all that time Mr. Cunningham was engaged by the defendant and was given permission to sell our goods down here (in Detroit) on commission. I usually did business with him for the company. We made a written contract with him. I first met him about the middle of November. He was engaged to sell our goods in Wayne county. He would sell to manufacturers and any person using steam power. We usually shipped the goods directly to the person he sold to, and he took the orders in the name of the Sugar Beet Products Company, and the people would pay the Sugar Beet Products Company, and, after payment, we would pay him his commission. Shortly after being engaged (about a week or two) he opened an office in the Breitmeyer Building without consultation with us. I frequently came to Detroit on the business of the company and usually called on Cunningham. I saw him when I engaged him, which was along about the middle of November, and one time prior to the first of December, when he came to Caro. About the middle of December I first called on him at Detroit at his office and saw the sign on his door and spoke about taking it down. It was not removed by January.”

He also testified that he first saw the stationery the last of November or middle of December, and he denied that Mr. Cunningham had any authority to buy for the defendant the things for which this suit is brought.

Mr. Rothschild testified in part:

“ I saw Mr. Cunningham the first day of December at his office when I took an order from him for the Gray Lithograph Company. I took the Sullivan order about the 5th and the Carroll order the 9th. I did not inquire before taking these orders as to what authority Cunningham had to order goods. I did not see either of the Montagues prior to the first of January, 1910; nor had I any dealings with Cunningham before this date when he claimed to represent defendant. I wrote no letters to the defendant prior to December 9th to find out what authority Cunningham had. About the middle of January I saw Mr. (Robert) Montague in the city, and gave him a leather purse and asked him for some business. * * * I knew that Mr. Cunningham was selling the boiler com-; pound to the trade and manufacturers, and I understood this at the time I sold the goods.”

Re-direct examination:

“Q. What was the idea you had as to what he was doing for the company ?

“A. Selling boiler compound.”

Mr. Langer was called as a witness. It was sought to show by him a conversation had at the Preston Inn in Detroit with Charles Montague in relation to Cunningham’s connection with the defendant. This was the third week in January, and Mr. Rothschild was not present at the conversation. This testimony was excluded.

There was correspondence introduced in evidence on the part of the defendant which occurred after the 1st of January, 1910, which tends to show that the credit was extended to Mr. Cunningham and not to the defendant company.

Complaint is made as to the exclusion of the testimony of Mr. Langer. It will be noticed that there is an entire absence of testimony showing that Mr. Montague was authorized to bind by admissions the defendant company.

It also appears that the goods were sold long before this, and the conversation was not in the presence of Mr. Rothschild. We think there was no error in excluding this conversation.

The most that can be said of the case as made is that it shows Mr. Cunningham was authorized to make sales for defendant for which he was paid a commission; and it fails to show that he was authorized to incur debts for which defendant is liable; and it also fails to show such a state of affairs as estops defendant from denying liability. See 1 Am. & Eng. Enc. Law (2d Ed.), p. 990, and the many cases there cited; Cowan v. Manufacturing Co., 141 Mich. 87 (104 N. W. 377), and cases there cited.

Judgment is affirmed.

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


text:
    WHITCHER v. DETROIT UNITED RAILWAY.
    Street Railways — Contributory Negligence — Trial.
    Upon testimony of plaintiff that he stopped, looked, and listened for a oar before crossing defendant’s track with his team and wagon, that he neither heard nor saw any car, that his vision was obstructed by a building at the corner preventing him from looking more than ten or twelve feet one way, that a car approached at a high rate of speed without signals being given and struck the wagon and injured him severely, it was error to direct a verdict for defendant on the ground of contributory negligence and to refuse to receive evidence as to rate of speed of the car, failure to ring the bell, and measurements of distance offered in plaintiff’s behalf.
    Error to Wayne; Codd, J.
    Submitted January 8, 1913.
    (Docket No. 27.)
    Decided March 20, 1913.
    Case by Augustus F. Whitcher against the Detroit United Railway for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Washington I. Robinson and Clark C. Seeley, for appellant.

      Corliss, Leete <& Joslyn and A. B. Hall, for appellee.
   Moore, J.

On the 8th of January, 1910, plaintiff was driving a team of horses, attached to a large express wagon, north on Beaubien street, in the city of Detroit. It had rained early in the day, and later had frozen. The streets were slippery. This was the first trip plaintiff had made on this route. He testified that, as he approached the corner of Beaubien and Clinton streets, he pulled up his horses, and stopped, looked, and listened; that he heard nothing; that he saw no cars after looking both ways; that he was standing in the front part of his wagon, back of the seat, and from where he stood he could see that the way was clear for a distance of 10 or 12 feet to the east of the building on the southeast corner of Clinton and Beaubien streets; that from where he stood in the wagon to the end of the pole was a distance of from 18 to 20 feet; that after stopping, looking, and listening he started his team slowly, and as he got near the track, the car rushed out of Clinton street and upon him; that the gong was not rung until the car was in the line of Beaubien street; that the car struck the wagon pole, throwing the wagon against the car, and the plaintiff against the side of the wagon and car; that he was severely hurt.

Upon completion of the direct examination of plaintiff, counsel for defendant moved the court to direct a verdict in favor of the defendant, which motion was granted over the objection of plaintiff’s counsel. Plaintiff desired to produce additional testimony, by other witnesses, to show the speed at which the car was being run and certain measurements; that no gong was rung or warning given of the approach of the car; that plaintiff stopped, looked, and listened before he crossed the track. He offered the testimony of a witness who saw the entire collision, and such other testimony and matters which counsel for plaintiff considered essential for the purpose of preparing a record. The court refused to admit any testimony, except the measurements as to the width of Clinton street between the south rail of the street car track and the curbstone, and also the distance from the curbstone to the building on the southeast corner of Clinton and Beaubien streets. This testimony showed it was 8 feet from the car track to the curb, and 9 feet from the curb to the building. The judge then directed a verdict for the defendant. The case is brought here by writ of error.

We think the plaintiff should have been allowed to put in his testimony and make his record. See Field v. Clippert, 78 Mich. 26 (43 N. W. 1084); Smalley v. McGraw, 148 Mich. 384 (111 N. W. 1093, 112 N. W. 915); Barto v. Steel Co., 155 Mich. 94 (118 N. W. 738); Haynes v. Maybury, 166 Mich. 498 (131 N. W. 1110); Minkstimas v. Pantlind, 170 Mich. 468 (136 N. W. 377).

Judgment is reversed, and a new trial ordered.

Steere, O. J., and McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


text:
    BAKER v. WISHART.
    1. Trial — Appeal prom Justice’s Court — Conduct op Counsel.
    On the trial of an appeal from justice's court it was not reversible error to ask of a witness whether the jury in justice’s court had not passed on one of the issues to be tried, the question being objected to and the objection sustained.
    2. Same — New Trial — Motions.

      Held that the verdict in an action of replevin was not contralto the weight of the evidence.
    Error to Yan Burén; Des Yoignes, J.
    Submitted January 13, 1913.
    (Docket No. 71.)
    Decided March 20, 1913.
    Replevin in justice’s court by Charles W. Baber against William W. Wishart for a pony. On appeal plaintiff obtained judgment. Defendant brings error.
    Affirmed.

      William J. Barnard, for appellant.

      Thos. J. Cavanaugh, for appellee.
   Moore, J.

This is a replevin case begun in justice’s court and appealed to the circuit court. The case involves the ownership of a pony. The plaintiff claims the pony was given to him hy the defendant on condition that he should not part with her, and that when she died she was to be given a decent burial. The defendant claims the plaintiff was to take the pony and keep her until the defendant needed her, and that when defendant needed her plaintiff should return her to defendant as freely as plaintiff took her. Upon this issue the case was tried and a verdict rendered in favor of the plaintiff. The case is brought to this court by writ of error.

The appellant relies upon the following:

(1) Prejudicial questions asked by counsel and improper remarks made by counsel.

(2) The refusal of the court to grant the defendant a new trial.

(3) Errors committed in the charge of the court given sua sponte.

(4) Errors committed in refusing the defendant’s requests.

These subjects will be discussed in their order.

1. Under this head counsel say that the questions were attempts to “get before jury by innuendo the fact that said cause had been tried in the justice’s court and a verdict rendered adversely to the defendant, and to lead the jury to believe that the question of demand had been squarely passed upon by that court and was in effect permitting the lawyer to testify without being under oath, in his client’s behalf,” and we are referred to page 33 of the record. A reference to the record shows that the objection made by counsel for appellant to the question was sustained. There was a full examination by counsel for both parties before this court in relation to what occurred in justice’s court. One cannot read the record without reaching the conclusion that counsel for both sides were very zealous for their clients, making it difficult for the judge to keep them within the rules; but we think the court did not err in his rulings as to the admission of testimony.

2. As to the new trial; the motion alleged: (a) Because the verdict of the jury was contrary to the evidence in the case. (6) Because the verdict of the jury was against the weight of the evidence in the case, (c) Because the verdict was contrary to the law. The trial judge was of the opinion that none of these reasons were well taken. An examination of the record does not convince us he was wrong in this conclusion.

3 and 4 may be considered together. The questions involved were simple, and the law applicable thereto was not complicated. The trial judge in his general charge fully covered the case.

Judgment is affirmed.

Steere, C. J., and Me Alva y, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


text:
    PUTNAM v. PERE MARQUETTE RAILROAD CO.
    1. Deeds — Description—Habendum Clause — Conditions.
    Under the provisions of a deed reciting that certain property was purchased by the grantee, a railroad company, for a gravel pit, conveying “all gravel, sand, stone and earth” of the property described, and reserving to the grantors the right to cultivate such portion of the surface as should not be in use by the grantee, which should not be liable for damage to growing crops, also containing a clause requiring the grantee to place the top soil not fit for its use in the cut last made and to level it off in condition for plowing, and not to excavate below the drainage system, the habendum clause continuing, “to have and to hold the said gravel, sand, stone and earth as above described,” the grantor retained the fee subject to the rights of the grantee in the gravel, and subject to the use of the premises as a gravel pit.
    2. Same — Construction.
    In the construction of deeds or other contracts, the primary-end to be attained, if possible, is to ascertain the intention of the parties, and although as a general rule if the habendum clause is repugnant or contrary to the granting clause it is void, the rule is subject to qualification. Thus, when it is impossible to determine from the deed and the surrounding circumstances that the grantor intended the habendum to control, the granting words will govern; but if it clearly appears that the grantor intended to enlarge or restrict the granting olause by the habendum the latter controls.
    8. Same.
    It is also a rule of construction, as a last resort, subject to other methods of ascertaining the true intent of the parties, that repugnancy between different clauses must be resolved in favor of the first.
    4. Equity — -Waste—Injunction—Jurisdiction—Enforcement of
    Conditions in Deed.
    Equity has jurisdiction, on complaint of the holder of the fee, to enjoin a permanent injury to soil of the freehold, in violation of conditions of a deed conveying a gravel pit, by the grantees refusing to place the top soil where the deed required it to be placed.
    5. Same — Bill of Complaint — Demurrer.
    On demurrer to such bill, the objection could not be sustained that the bill did not aver that the defendant was removing top soil not fit for its use, it appearing that the averments of the bill charged defendant with removing the top soil and otherwise acting in violation of the conditions of the deed.
    Appeal from Kent; Perkins, J.
    Submitted January-13, 1913.
    (Docket No. 78.)
    Decided March 20, 1913.
    Bill by Reuben W. Putnam and another against the Pere Marquette Railroad Company for an accounting and injunction against removing the top soil from premises used as a gravel pit. From an order overruling a demurrer to the bill of complaint, defendant appeals.
    Affirmed.

      Norris, McPherson & Harrington {Bills, Parker & Shields, of counsel), for appellant.

      Smedley, Linsey & Lillie, for appellees.
    Complainants, by deed, conveyed to defendant certain rights in a piece of real estate to be used as a gravel pit. The material portions of the conveyance follow:
    “ Witnesseth: That the said parties of the first part, for and in consideration of the sum of three thousand and thirty-eight and 1%°¶ dollars ($3,038.40), to them in hand paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, have granted, bargained, sold, remised, released, aliened, and by these presents grant, bargain, sell, remise, release, alien and confirm unto the said party of the second part and its successors forever all gravel, sand, stone and earth on the following certain pieces or parcels of land. [Here follows the description.] The above-described property is purchased as and for a gravel pit and the first parties hereby without further consideration grant to the second party the right to extend its tracks westerly over the low ground beyond the gravel pit above described so that cars may be run past the pit to enable second party to take the gravel out of the westerly end of said gravel pit to advantage. First parties hereby reserve the right to cultivate such portion of the surface of said property as shall not be in use by said second party, its successors or assigns, but second party shall have the right to use any portion of said property at any time for the removal of material therefrom, and shall not be liable for any damage to growing crops caused by such use. First parties agree to pay and discharge all taxes assessed on said property in consideration of the use of the same. Second party agrees that in removing said material, the top soil not fit for its use shall be thrown off in the cut last made and leveled off reasonably level so it can be plowed, and further agrees to maintain a farm crossing across its tracks substantially where it now is and also keep a roadway across the cutting of its gravel pit in connection with said crossing. The excavation in said gravel pit is not to be so low as to prevent its drainage into the ditch southwesterly of said gravel pit. Together with all estate, right, title, interest and demand whatsover of the said parties of the first part either in law or equity of, in and to the above bargained gravel, sand, stone and earth, to have and to hold the said gravel, sand, stone and earth, as aboved described, unto the said party of the second part and to its successors and assigns forever.”
    Then follow covenants of warranty and seisin. This deed was executed in 1901, and the defendant proceeded to remove the gravel from Ihe premises described.
    On October 15,1911, complainants filed their bill of complaint against defendant, in which it is alleged:
    “ (3) Your orators further show that the said Pere Marquette Railroad Company has excavated and carried away large quantities of gravel, but instead of removing the top soil, so that it could be replaced on the land according to the agreement, they have taken, not only the gravel underneath the rich soil, but have taken the top soil and everything and hauled it away, and now continue to do so; that your orators have requested at various times that said defendant refrain from taking off the top soil, and requested them to carry out their contract in accordance with said deed, and the officials of the railroad company have said that they would see to it that no more of the top soil is carried away, but your orators aver that the workmen of said railroad company do not refrain from taking away the top soil, but continue to and are now continually taking away the top soil with the gravel.
    “(4) Your orators further show that this is against the just rights of these complainants, and is causing irreparable injury to said farm; that said rich top soil is a thing that cannot be bought upon the market, and your orators know of no place where they can buy said material and haul it upon their land; that said top dressing or top soil is of great value, and is of the value of more than $100, to wit, of the value of $1,000; and that if said defendant continues to remove said top soil these complainants will be damaged to a much larger extent, to wit, the sum of $5,000; and that the gravel bed, after the railroad company has taken off the gravel, is worthless for farming purposes, because it has no rich top soil in which to plant crops, and unless the railroad company is restrained by injunction of this court they will continue to remove the top soil with their gravel and thus ruin said land for said purposes.

      “ (5) Your orators further say that this is part of an ordinary farm, and unless said land is left with the top soil on it it is no good for farming purposes, and cannot be used for anything else.”
    The prayer is for an accounting and an injunction.
    To the bill of complaint defendant interposed the following demurrer:
    “ (1) If complainants are entitled to any relief on account of the facts alleged in their bill of complaint, they have a full, complete, and adequate remedy at law.
    “ (3) The facts alleged in complainants’ bill of complaint do not show any breach by the defendant of its agreement contained in the deed, a copy of which is attached to said bill of complaint.
    “ (3) Under the provisions of the deed, a copy of which, marked ‘ Exhibit A,’ is attached to and made a part of said bill of complaint, the defendant undertook, on consideration that the complainants should pay the taxes upon the property described in said deed, that in removing the gravel, sand, stone, and earth conveyed to it by said deed the top soil unfit for defendant’s use should be thrown off into the cut last made; and it is not averred in said bill of complaint that the defendant has removed, or contemplates removing, any soil unfit for its use.
    “(4) By the provisions of the said deed, a copy of which, marked * Exhibit A,’ is attached to and made a part of said bill of complaint, the complainants undertook and agreed, as consideration for the right to cultivate that portion of the property conveyed by said deed not used by the defendant, to pay and discharge all taxes assessed on the property conveyed to the defendant by the said deed; and in their said bill of complaint the complainants do not show that they have paid, or offered to pay, the taxes assessed upon the said property.”
    The demurrer was overruled, and defendant appeals.
   Brooke, J.

(after stating the facts). It is the contention of defendant that the instrument under consideration conveys to it the fee; and that complainants reserved only the right to cultivate during their lives, for an agreed rental (payment of taxes), such portion of the land described in the deed as should not be used by the defendant. For an interference with this right of cultivation, if is urged that the law affords an adequate remedy. Complainants’ position is that the deed conveys to defendant only the gravel lying between the top soil and a point down to which, this land could be drained, as specified in the deed; that after the gravel has been removed the defendant has no further title to or interest in the premises. This contention involves the further proposition that the fee remains in the complainants; and that the alleged unlawful removal of the top soil constitutes such an injury to the inheritance as to warrant interference by a court of equity.

The language of this instrument is peculiar and ambiguous; but a careful perusal of the whole paper convinces us that it was the intention of the grantors to sell, and of the grantee to buy, only the gravel lying between the top soil and the point fixed in the deed. Several considerations lead to this conclusion. In the first place, the deed recites that “the above-described property is purchased as and for a gravel pit.”

While the granting clause conveys “all gravel, sand, stone and earth ” upon the description, the instrument recites that in removing the gravel “the top soil not fit for its [grantee’s] use shall be thrown off in the cut last made and leveled off reasonably level so it can be plowed ”; and, further, that “ the excavation in said gravel pit is not to be so low as to prevent its drainage into the ditch southwesterly of said gravel pit.” The habendum clause is significant. The grantee is to have and to hold “ the said gravel, sand, stone and earth, as above described.”

It seems to us that the conclusion is irresistible that the parties intended that, as fast as the gravel was removed, the grantors should have the right to resume possession and cultivation of that portion of the premises denuded of its gravel; and when all the gravel (within the limits fixed by the deed) had been removed the interest of the grantee in the property should cease. It is to be noted and again emphasized that the grantee takes to itself, its successors and assigns forever, not the premises above described, but “ the said gravel, sand, stone, and earth, as above described.”

In the construction of deeds or other contracts, the primary end to be attained is, if possible, to ascertain clearly the intention of the parties. Smith v. Smith, 71 Mich. 633 (40 N. W. 21). Mr. Justice Cooley, speaking for the court in McConnell v. Rathbun, 46 Mich. 305 (9 N. W. 426), said,

“All grants must be construed reasonably and in the light of the surrounding circumstances.”

While the general rule is well settled that, when the habendum is repugnant and contrary to the granting clause, it is void (see cases cited in Smith v. Smith, supra), that rule is subject to qualifications, and is not always to be invoked. In Powers v. Hibbard, 114 Mich. 533, at page 552 (72 N. W. 346), it is said:

“But these rules must be understood and taken in connection with other rules of construction, as, where the grant is uncertain or indefinite concerning the estate intended to be vested in the grantee, the habendum performs the office of defining, qualifying, or controlling. Sumner v. Williams, 8 Mass. 162 [5 Am. Dec. 83]. Again, where it is impossible to determine from the deed and the surrounding circumstances that the grantor intended the habendum to control, the granting words will govern; but, if it clearly appears that it was the intention of the grantor to enlarge or restrict the granting clause by the habendum, the latter must control.”

This court, speaking through Justice Montgomery, again announced its policy in the case of Mullreed v. Thumb, 116 Mich. 440 (74 N. W. 710), in the following language:

“ The general rule is that the intention of the parties to an instrument is to be ascertained from a reading of the entire instrument. * * * Another rule is that a repugnancy between different clauses of the deed must be resolved in favor of the first. This latter rule is usually invoked when there has been an attempt to limit the granting clause by the habendum, or where there is an attempt to except something specifically granted. This rule should be acted on only as a last resort, and generally the first inquiry is: What was the intention of the parties as expressed by the instrument? Bassett v. Budlong, 77 Mich. 338 [43 N. W. 984, 18 Am. St. Rep. 404]. It is true that courts have in some cases subordinated this rule of construction to that which gives preference to the first expression of the grantor, and have done so in some cases at the expense of sacrificing the intent of the parties as plainly expressed. * * * This court has, however, not so applied this latter rule as to subvert the intent of the parties, when plainly expressed ” — citing cases.

See, also, Moran v. Lezotte, 54 Mich. 83 (19 N. W. 757); Waldron v. Railway Co., 55 Mich. 420 (21 N. W. 870); Martin v. Cook, 102 Mich. 267 (60 N. W. 679); Wilson v. Terry, 130 Mich. 73 (89 N. W. 566); Bolio v. Marvin, 130 Mich. 82 (89 N. W. 563); Negaunee Iron Co. v. Iron Cliffs Co., 134 Mich. 264 (96 N. W. 468); Sharp v. Sharp, 148 Mich. 278 (111 N. W. 767); 18 Cyc. p. 618, and notes.

Assuming, then, that complainants are still the owners of the fee, has equity jurisdiction of the matter ?

The averment in the bill is, in effect that the defendant, by wrongfully removing the rich top soil, and by wrongfully refusing to transfer it to the cut last made and level it off fit for husbandry, as required by the terms of the deed, is inflicting a permanent injury to the freehold. We think the bill states a case for equitable relief under the following decisions: Rhoadesv. McNamara, 135 Mich. 644 (98 N. W. 392), and cases there cited; Harbor Springs Lumber Co. v. Emmet Circuit Judge, 160 Mich. 497 (125 N. W. 390); 22 Cyc. p. 825 et seq.

It is contended by the defendant that the bill does not aver that the defendant is removing top soil not fit for its use; that it is only such soil that it, by the terms of the instrument, is compelled to throw off into the cut last made; and therefore that no breach is alleged. We think the instrument is open to the construction that it was agreed at the time of its execution that the top soil was not fit for grantee’s use; but whether this be true or not there can be no doubt that the bill, in effect, avers, in section 3, that the taking of the top soil by defendant is contrary to the contract. Upon the coming in of the answer and the taking of proofs, this question can be determined.

The order overruling the demurrer is affirmed, with costs.

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


text:
    NEW YORK LIFE INSURANCE CO. v. HAMBURGER.
    1. Equity — Plea—Answer Supporting Plea — Replication. To an answer, in support of a plea, denying fraud or combina- • tion under oath, and filed in pursuance of Chancery Rule 86, a replication may not be filed.
    2. Same — Cancellation of Instruments — Fraud—Remedies in Chancery — Insurance. A bill in equity for the cancellation of a policy of life insurance lies for fraudulent representations made in the application therefor, and is not subject to objection that there is an adequate remedy at law.
    3. Insurance — Fraud—Application—Statutes. Under Act No. 187, Pub. Acts 1907, subd. 4 (3 How. Stat. [2d Ed.] § 8312), requiring the application to be attached to a policy of insurance as a condition to avoiding it for fraud, it was intended by the legislature to treat innocent misstatements or omissions to answer questions as simply representations, not warranties, and to provide that in no case should fraudulent misrepresentations avoid the contract unless the same were contained in a written application, and a copy of the same indorsed upon or attached to the policy.
    4. Same — Cancellation of Instruments. A plea of defendant in a suit to cancel a policy of insurance for fraud was correctly sustained, where it set up the fact that defendant’s application was not annexed to his policy pursuant to the statute; defendant must be held to have waived its right to have the application considered as a part of the policy, by failing to attach it to the instrument.
    5. Same — Public Policy. Since public policy is based on the law of the State as found in the statutes, Constitution, or judicial holdings, the contract cannot be considered as against public policy, nor is said act invalid because it effects a waiver of the defense of fraud unless the application is attached by the insurer to the contract of insurance.
    Appeal from Wayne; Mandell, J.
    Submitted January 13,1913.
    ( Docket No. 42.)
    Decided March 20, 1913.
    Bill by the New York Life Insurance Company against Gussie Hamburger for cancellation of a policy of life insurance. From an order sustaining a plea supported by a sworn answer, complainant appeals.
    Affirmed.

      Thomas A. E. Weadock, for complainant.

      Bernard B. Selling, for defendant.
   Kuhn, J.

This is an appeal from an order sustaining a plea. The complainant sought to have an insurance policy canceled for fraud claimed to have been practiced in its procurement, and to enjoin defendant from bringing suit against the company thereon. The defendant filed a plea setting up the fact that the policy was issued in the State of Michigan, and that no copy of the application or of any further statements made by the insured, upon which the said policy is alleged to have been issued, was indorsed upon or attached to the policy when issued. A preliminary injunction having been issued, a motion was made to dissolve the same, and a hearing was had and the plea argued. The court announced, that he had come to the conclusion that the plea should be allowed, and an order was prepared for his signature. When this order was presented, the attention of the court was called to Chancery Rule 8b by complainant’s solicitor, which provides :

“* * * But in every case in which the bill specially charges fraud or combination, a plea to such part must be supported by an answer explicitly denying the fraud and combination and the several facts on which the charge is founded.”

Thereupon defendant’s counsel asked and obtained leave to file a sworn answer in support of her plea, and, it is claimed, for that purpose only. An order was entered sustaining the plea and permitting the complainant to amend or to take issue upon the plea. The complainant’s solicitor thereupon filed a demurrer to the plea, a replication to the answer in support of the plea, and a replication to the amended plea and answer. The three latter pleadings, upon motion and after notice, were stricken from the files.

The question of practice raised is whether the answer filed in support of the plea in conformity with Chancery Rule 8b creates an issue to which a replication may be filed. It is claimed that the answer was filed simply for discovery, and does not create such an issue; and with this we are inclined to agree. While the numerous pleadings are somewhat confusing, it seems that the question that was properly raised by the plea and decided by the court, and which is here on appeal, is whether complainant can maintain its bill to have the policy canceled for fraud claimed to arise from fraudulent representations made in the application for insurance or medical examination when the company did not attach to the policy a copy of the application or medical examination.

This action is properly brought in chancery under authority of the holding of this court in John Hancock Mutual Life Ins. Co. v. Dick, 114 Mich. 337 (72 N. W. 179, 43 L. R. A. 566); Mactavish v. Kent Circuit Judge, 122 Mich. 242 (80 N. W. 1086); Fidelity Mutual Life Ins. Co. v. Blain, 144 Mich. 218 (107 N. W. 877).

Act No. 180 of the Public Acts of 1907 (3 How. Stat. [2d Ed.] § 8310) provides in section 1:

Every policy of insurance issued or delivered within this State on or after the first day of January, nineteen hundred eight, by any life insurance corporation doing business within the State shall contain the entire contract between the parties. And nothing shall be incorporated therein by reference to any constitution, bylaws, rules, application or other writing unless the same are indorsed upon or attached to the policy when issued.”

Section 1 of Act No. 187 of the Public Acts of 1907 (3 How. Stat. [2d Ed. ] § 8312), provides:

No policy of life insurance shall be issued in this State, unless the same shall contain the following provisions: * * * Fourth, a provision that all statements made by the insured, shall, in the absence of fraud, be deemed representations and not warranties, and that no such statement shall avoid the policy unless it is contained in a written application and a copy of such application shall be indorsed upon or attached to the policy when issued.”

It is the claim of complainant’s counsel that the words in subdivision 4, “ shall in the absence of fraud,’ apply to the whole subdivision, and that, in case no application is attached to the policy, it was not the intent of the legislature to exclude the defense of fraud. It is important, therefore, to ascertain, if possible, the intent of the legislature in using this language. A careful study of the language of the section convinces us that innocent misstatements or omissions to answer on the part of the applicant shall be held to be simply representations; but, in case that fraud can be shown, they shall be held to be warranties. In no case, however, shall the policy be subject to attack unless such statement claimed to be fraudulent is contained in the written application indorsed upon or attached to the policy when issued. It undoubtedly seemed fair to the legislature that the policy holder should have in his possession, during his lifetime, such statements or representations which might be claimed, after his death, to have been fraudulent, so that he might know, or could be held to know, what the contract was which he had entered into.

In the case of the Metropolitan Life Insurance Co. v. Freedman, 159 Mich. 114, 116 (123 N. W. 547, 548 [32 L. R. A. (N. S.) 298]), which was an action to cancel a policy and enjoin prosecution of a suit at law because of claimed false statements made by the insured in his application, this court said:

“In any event, a complete copy of the application (containing the false representations) was set out on the third page of the policy, which was in the possession of either Jacob, the insured, or Louis, his son, from the time it was issued until Jacob died. It was Jacob’s duty to know that the representations therein contained, and which constituted the inducement for the issuance of the policy, were true, and his silence during the life of the policy is persuasive proof of a fraudulent intent.”

Complainant’s solicitor urges that fraud vitiates all contracts, and that any contract which provides for removing the defense of fraud is void as against public policy; and numerous authorities are cited in support of this contention. In the instant case, it is not a question of the contract being against public policy, but rather what the legislature of this State has declared its policy to be. What is public policy ? The term has frequently been used in a loose, vague, and inaccurate sense. We may, however, safely say that, when we speak of the public policy of this State, we mean the law of the State, whether found in its Constitution, the statutes, or the judicial records. People v. Hawkins, 157 N. Y. 1 (51 N. E. 257, 42 L. R. A. 490, 68 Am. St. Rep. 736); 32 Cyc. p. 1251. A statute of the State must be respected unless it is in conflict with the Constitution of the State or the Constitution of the United States. Whitfield v. Insurance Co., 205 U. S. 489 (27 Sup. Ct. 578).

The people having spoken through their representatives in the legislature, and having prescribed what an insuranee company must do in order to make a defense because of fraud, that requirement being a part of the iaw, it becomes the public policy of the State. The legislature did not say that the company should not defend for fraud perpetrated in obtaining insurance, but did say that, if the company wishes to make this defense, they must attach the application containing the alleged fraudulent statement to the policy. If the company desires to do business in this State, it must do it subject to such valid and reasonable regulations as the State may determine to prescribe.

The failure of the company to attach the application to the policy must be held as an expression on the part of the company of its purpose to waive or relinquish its right to have the application considered as a part of the contract of insurance. Statutes making similar requirements have been passed in other States, and the following is found in 25 Cyc. p. 746:

“ It is provided by statute in several States that, unless a copy of the application be incorporated into or attached to the policy, the company cannot rely upon, or take advantage of, any statements, conditions, or warranties contained in the application. Under such statutory provisions, the application, a copy of which has not been attached to the policy as required, cannot be pleaded or proved in behalf of the company; but, as against the company, the provisions of the application may be pleaded and proved, as the company will not be allowed to take advantage of its own wrong in failing to attach the copy. If the copy attached is not a substantially correct and complete copy of the original application, the statute is not complied with, and the application cannot be relied on by the company.” Cases cited in note.

The supreme court of Iowa, in passing on a similar statute in the case of Rauen v. Insurance Co., 129 Iowa, 732 (106 N. W. 201, 202), said:

“ If we say that the company may disregard this statute and issue its policy without attaching a copy of the application, and still have the right to assert and rely upon such application as a part of the contract, the legislative enactment is reduced to a mere idle form of words, having not the least effect upon the rights of parties as they existed before it was passed. It is the duty of the court, whenever it can be consistently done, to so construe a statute as to give it force and effect, and in such manner as to best accomplish the evident intent of the legislature. * * if
“ The same objection is also fatal to the plea of false and fraudulent representations made to the applicant’s medical examiner, and the demurrer thereto was also properly sustained. The medical examination was part and parcel of the application (Cooley’s Briefs on the Law of Insurance, vol. 1, p. 683d), and no copy thereof was attached to the policy; and, for the reasons already stated, defendant was not entitled to avail itself of any defense on account of matters contained therein. * * *
“ It may be admitted, for the purposes of this case, that the fraud pleaded was sufficient to avoid the policy if the appellant had put itself in position to make use of the defense; but, failing to attach a copy of the application to the policy, it waived its right to take issue upon the application or any part of it. * * *
“ In no State where any such statute is found, whether accompanied or unaccompanied by an express provision excluding proof of false representation of warranty not contained in or attached to the policy, have we been able to find a decision or suggestion by any court that a company, failing to attach or embody the application in its policy when required by statute, may make such omitted matter a basis of defense to an action on the contract. On the other hand, in every State where occasion has arisen to consider it, the holding has been to the contrary. Insurance Co. v. Bank, 48 Kan. 393 (29 Pac. 576); Insurance Co. v. Bank, 48 Kan. 397 (29 Pac. 578); National Life Ass’n v. Berkeley, 97 Va. 571 (34 S. E. 469).
“As we have already suggested, it is within the power of the legislature not only to impose conditions upon the right of insurance corporations to do business in the State, but to regulate the form and substance of all insurance contracts, and prescribe what conditions may or may not be imposed upon the insured. When, therefore, it is enacted that all representations and warranties upon which the company proposes to rely or insist shall be attached to or embodied in the policy, the State is not exceeding its recognized authority, and the company, failing to comply with the provision, must be conclusively held to have elected to rely upon the contract as contained in such policy, without reference to any representation or warranty not contained in that instrument. The denial of the right to plead or prove such extrinsic matter is not in any proper sense a ‘ penalty9 for failing to comply with the statute, for the company has a perfect right to waive or forego any advantage it could derive from an embodiment of the application in the policy. It issues its policy with the statute in view; and, failing to do that which, by the terms of the statute, is necessary to allow the application to have ‘ any bearing9 on the rights of the parties, the contract stands as if the omitted writings never existed.99

See, also, Considine v. Insurance Co., 165 Mass. 462 (43 N. E. 201); Nugent v. Life Association, 172 Mass. 278 (52 N. E. 440); Reagan v. Insurance Co., 207 Mass. 79 (92 N. E. 1025).

It is strongly urged that this construction will open the door to all kinds of fraud. However, the company can readily avoid this possibility by annexing the application to its policy, in accordance with the plain intent of the statute.

Even if, in the opinion of the court, this statute might he considered unwise from the standpoint of the public interests, nevertheless, unless it conflicts with the Constitution of the State or of the United States, the legislative determination is final.

The judge of the court below arrived at the proper conclusion, and the order he made is affirmed, with costs.

Steere, C. J., and Moore, Me Alva y, Brooke, Stone, Ostrander, and Bird, JJ., concurred.