text:
    BALDWIN v. ESCANABA LIQUOR DEALERS’ ASSOCIATION.
    1. Conspiracy — Boycott—Combination for Illegal Purposes.
    A combination of persons formed for the purposes of injuring the business of another is illegal, and many acts committed by the combination are illegal, which would not be illegal if committed by an individual.
    2. Same — Threats.
    The law recognizes and gives full force to threats which are not spoken and which are not accompanied by violence.
    3. Same — Joint Wrong — Extent of Liability,
    When a person is shown to have become a party to an illegal conspiracy, he is liable for all the aots performed by any of his co-conspirators in furtherance of the object of the conspiracy.
    4. Boycott — Interference with Business — Newspapers.
    In a suit to enjoin a boycott and restrain an association of liquor dealers from injuring the newspaper business of complainant, evidence considered and held, to show an unlawful conspiracy to induce his customers to cease dealing with him.
    5. Same — Conspiracy—Injury to Business.
    A combination formed for the purpose of injuring a person in his trade or occupation is unlawful.
    6. Same.
    Threats of an unspoken or covert nature as well as uttered threats are recognizable in the law.
    7. Same — Definition—Words and Phrases.
    Acts of several persons in combination intended to cut off legitimate custom and patronage of a newspaper, constitute a boycott.
    8. Same.
    Boycott may be defined to be a combination of several persons to cause a loss to a third person by inducing others against their will to withdraw from him their beneficial business intercourse through threats that, unless they comply with the demands, the persons forming the combination will cause them some loss or injury.

      9. Injunction — Equity—Restraining Boycott.
    A boycott may be restrained by injunction.
    10. Boycott — Threats—Pear.
    Intimidation, within the meaning of the law, is not necessarily limited to threats of violence to person or property.
    11. Same.
    A person’s occupation or calling, by means of which he earns a livelihood and supports himself and those dependent upon him, is property within the meaning of the law, and entitled to protection as such.
    12. Same.
    Persons may organize and persuade and induce others to join them, but when they resort to unlawful means to cause injury to others with whom they have no relations, contractual or otherwise, the limit permitted by the law is passed and they may be restrained.
    13. Damages — Equity—Jurisdiction.
    Equity, having once acquired jurisdiction, will retain it to give such full relief as will finally dispose of the controversy, and where complainant is entitled to an injunction to restrain a boycott, the court will award also such damages as he may have sustained.
    Appeal from Delta; Stone, J.
    Submitted February 23, 1911.
    (Docket No. 13.)
    Decided March 13, 1911.
    Bill by Francis L. Baldwin against the Escanaba Liquor Dealers’ Association, an unincorporated association, Peter Lemmer, Philip Dupont, Irenee Marchand, Neis Ahlquist, Jacob Miller, Bert Boddy, Arthur GK Crose, John J. Cleary, and Menasip Perron for an injunction and damages. From a judgment for complainant, defendants appeal.
    Affirmed.

      Cummiskey & Spencer (John Power, of counsel), for appellants.

      A. H. Ryall, for appellee.
   Brooke, J.

The opinion of the learned circuit judge who heard this case, and who is now a member of this court, so fully covers the questions of law and fact involved that we here insert it and adopt it as our own:

“The complainant is the owner and publisher of the Escanaba Journal, a weekly newspaper published in the city of Escanaba, and he has been such owner and publisher since September, 1906.
“ The bill of complaint was filed to obtain an injunction against the defendants, to restrain them from interfering with, intimidating, boycotting, molesting, or threatening in any manner the customers or patrons of the complainant, or any other person or persons, for the purpose of inducing such person or persons not to deal with, or advertise or do business with, the complainant in the conducting of his said newspaper published as aforesaid.
“The bill alleges that at the time complainant purchased said newspaper there were about 100 saloons in said city, and in other parts of said county_ there were about 50 saloons. That there were also in said city two breweries, and also two wholesale liquor houses. It is also alleged that at the time aforesaid there existed in the said city of Escanaba a number of houses of ill fame, which were conducted in an open and lawless manner, and with the full knowledge and acquiescence of the authorities of said city and county. It is further alleged that, shortly after the complainant acquired said paper, he published therein certain articles and editorials, criticising the manner in which said houses of ill fame were permitted to exist and continue in said city, and also published articles and editorials and news items, criticising and exhibiting the unlawful methods in which the saloon and liquor business was carried on and conducted in said city, and that he has ever since said time continued to print and publish in said paper, at various times, articles, editorials, and news items, showing, criticising, and exhibiting the unlawful methods in which said saloon and liquor business has been and is being carried on in said city and county, and also exhibiting and criticising the existence of the said houses of ill fame, which have at various times existed in said city. That after the purchase of said paper, complainant improved its appearance and make-up, and also its general standing as a newspaper; that he increased its circulation by about 400 per cent, within six months after it was so acquired, and that thereby the advertising value of said paper was greatly increased. That he acquired a large number of new advertising patrons, from which source he reaped a considerable profit. That he also had large number of patrons for whom he did job printing of all kinds, which was also a source of profit to complainant.
“That during 1907 complainant continued to publish articles of various sorts in said paper, criticising the conditions in said city and county as above mentioned, and that during said year a large number of advertising and job printing customers withdrew their patronage, stating to complainant that various saloon keepers and other persons interested in the saloon business in said city objected to said customers patronizing complainant, and threatening to withdraw their patronage from said customers, unless they, complainant’s customers, withdrew their patronage from complainant. That there existed in said city for several years an organization of saloon keepers and other persons interested in the liquor business, the exact name of said organization being unknown to complainant, but which is commonly known as the Escanaba Liquor Dealers’ Association. That the same is a secret organization, and that no one, excepting members thereof, is admitted to its meetings, but that said organization is a voluntary, unincorporated association, consisting of more than five members. That the purpose of said organization is to protect the liquor interests of said city, and to use its power and influence to repel any attack made upon the methods by which said business is conducted.
“That on or about January 15, 1908, the said association held a meeting at a hall in said city, known as Lemmer’s hall and owned by Peter Lemmer, one of the defendants hereinafter mentioned, which said meeting was presided over by one Menasip Perron, who was at that time and still is mayor of said city of Escanaba, and who was and still is a stockholder of the Richter Brewing Company, one of the breweries in said city, and who has at various times held offices in said Richter Brewing Company, and who was at the time aforesaid and still is a stockholder in the Bink Wholesale Liquor & Supply Company, one of the liquor houses in said city heretofore mentioned, and that at said meeting it was agreed by said association that a committee should be appointed from among its members for the purpose of visiting and waiting upon customers of complainant, and demanding that they withdraw their business and patronage from complainant, and that upon the failure of said customers to accede to such demands, then that said association would cause said patrons to be boycotted, and would use its influence to injure the business and trade of said customers. That the committee appointed by such association consisted of the following persons: Peter Lemmer, Philip Dupont, Irenee Marchand, Neis Ahlquist, Jacob Miller, Bert Boddy, and also other persons whose names are unknown to complainant. That said persons so composing said committee are and were each engaged in the saloon and liquor business in the said city. That John J. Oleary is an officer of said association, to wit, its treasurer, and complainant alleges that at sundry times one Arthur G. Oróse and the said Bert Boddy have been and have acted as president of said association.
“That shortly after said meeting the said committee visited a large number of customers of complainant and demanded that they withdraw their business patronage from complainant, threatening to boycott and otherwise injure the trade and business of complainant’s customers if they did not withdraw their patronage from complainant; and that shortly after said customers were visited by said committee a large number of complainant’s customers withdrew their business and patronage from complainant, and have continued to withhold the same ever since, to the damage of complainant of $10,000.
“ The bill proceeds to charge that all of the defendants are unlawfully and wrongfully combining and confederating together to prevent, by intimidation and threats, all persons and all customers of complainant from patronizing him, or from advertising in the said paper, and from giving job printing to complainant, and from in any other way patronizing or dealing with complainant, and that said defendants have for several months last past and still are constantly pursuing a course of threats and intimidations and persuasions, for the purpose, and by means of such intimidation and threats and fear, not only to prevent customers from dealing with and patronizing complainant, but also to intimidate and prevent customers and other persons patronizing and dealing with the customers of complainant, who have continued and who still continue to patronize complainant. That by reason of the unlawful conduct of said defendants, the trade and business and good will of complainant have been greatly damaged, and that the future business and good will of complainant have been greatly damaged, to wit, to the extent of $10,000.
‘ ‘I have not attempted here to set forth all the allegations of said bill, but enough to show the nature of the complaint. The bill prays for a temporary and permanent injunction, restraining the defendants from interfering with, intimidating, boycotting, molesting, or threatening in any manner the customers or patrons 6Fcomplainant, or any other person or persons, for the purpose of inducing such per'son or persons not to deal with or advertise or do business with complainant; from boycotting complainant, either by the distribution of letters or circulars, or in any other manner; from giving any directions or orders to committees, associations, agents, or otherwise, for the .pursuance of any such acts hereinbefore complained of, and from in any manner whatsoever impeding, obstructing, or interfering with the regular operation and conduct of the business of complainant; and that upon the hearing, the damages accruing to complainant by reason of the unlawful acts of said defendants may be determined, and that a decree may be rendered in favor of complainant and against said defendants for the payment of said damages.
“All of the defendants, except the Escanaba Liquor Dealers’ Association, appeared and answered the bill. The bill was taken as confessed as to the said association. ’The answer of the other defendants, while denying the material allegations of the bill upon its face, really does not .meet all of the allegations of the bill. - However, I shall treat the pleadings as though the answer denied the material allegations of the bill in disposing of the case. The cause being at issue was heard at the last July term, the testimony being taken in open court; thus giving the court the advantage of both seeing and hearing the witnesses.
“ Before referring to the testimony in the case, I desire to refer to certain propositions of law applicable to the case, which should be borne in mind:
“(1) That a combination of persons, formed for the purpose of injuring the business of another, is illegal, and many acts committed by the combination are illegal which would not be illegal if committed by an individual. Doremus v. Hennessy, 62 Ill. App. 391.
“(2) That the law recognizes and gives full force to threats which are not spoken and which are not accompanied by violence.
“(8) That, when a person is shown to have become a party to an illegal combination or conspiracy, he is liable for all the acts performed by any of his co-conspirators, in furtherance of the object of the conspiracy.
“ Before coming to the evidence in the case, it will be best to dispose of certain exceptions to a portion of the bill. By these exceptions the defendants desired to have stricken from the bill the entire fourth paragraph, which stated that there existed in the city of Escanaba a number of unlawful places which were conducted in an open and lawless manner, with a full knowledge and acquiescence of the authorities of said city and county; and also to strike from the bill as scandalous that portion of its fifth paragraph commencing with the word ‘criticising’ in the second line of said paragraph and ending with the word ‘ Escanaba ’ in the fourth. At the opening of the hearing, by consent of counsel, the twenty-second paragraph of the bill was stricken out. Should the other excepted matter be stricken ? The complainant urges that these charges were inserted because they were true in fact, and were so proven by the witnesses produced by the defendants and by the defendants themselves, practically all of whom testified that saloons were run in violation of law, and slot machines kept therein during the time that these articles were published by complainant. That the reasons for inserting these articles was to show that the complainant was justified, as the publisher of a newspaper, in taking the position which he did in regard to these various violations of the law. Had these various articles appeared without any excuse, complainant would hardly have come into court with clean hands. While, on the contrary, by proving that these conditions existed, He has very properly strengthened his case by showing the necessity of some sort of a protest against this condition of lawlessness. I think that the position taken by the complainant upon this matter is justified by the record, and I must refuse to strike out the matters excepted to.
“Coming to the evidence in the case, we may start with this fact, admitted by the defendants, that there was a meeting of the liquor dealers on or about January 15, 1908, which had to do with complainant. The twenty-sixth paragraph of the answer contains this language:
“ ‘And these defendants, and each of them, say that this purpose of bringing about a better observance of the laws relating to the conduct of the liquor traffic was the sole object of that meeting and of the adjourned meeting. That the matter contained in the publications of complainant’s paper, in its attacks upon persons engaged in the liquor traffic, was referred to, and that a committee of those present was appointed to confer with persons who were believed to be near the complainant, and urge them to induce him to cease his bitter and virulent attacks upon the liquor traffic and persons engaged in it; and that said committee accordingly visited sbme of the business men of the city of Escanaba and requested them to use their influence and good offices with the complainant, to induce him to adopt a different course in his publication aforesaid.’
“It may as well be said in the outset that there is a sharp conflict in the testimony, and especially between that of Herman Salinsky and James B. Wilkinson on the one hand, and that of the defendants, constituting the committee, on the other. It is undisputed that on the day this committee was appointed it visited the store known as the Fair Savings Bank Department Store, managed by Mr. Salinsky, and there saw both Mr. Salinsky and Mr. Wilkinson. The committee consisted of the defendants named as such committee in the bill of complaint. Mr. Salinsky testifies that at that time he knew the members of the committee, and knew that they were engaged in the saloon business. He had heard of the appointment of the committee, and its object. He testified in part as follows:
“ ‘ The one that spoke up said, “You know what we are here for?” I says, “Yes, I understand you are out this afternoon.” “And you know what our intentions are ? ” . I says, “ I know quite well.” And the other one spoke up and said, “Where is Wilkinson!” I says, “ Youwill find him on the third floor.” Oneofthem spoke up, “As long as you understand it, Herman, that is all there is to it.” And they went to the elevator and took the elevator to the third floor.
‘Q. Did you have any further talk with them about Mr. Baldwin^ before they went up ? Did they mention his name or the Journal ?
“ ‘A. Why, one of them did; yes, sir.
‘Q. What did he say ?
‘A. He said, “We are out in regard to the Baldwin matter.” I said, I understand you are.”
‘Q. When you said you understood they were, what did you mean ? What did you understand ?
‘A. I understood it was a boycott of the Journal; not to do any business with him, or with the Journal.
“ ‘Q. Had you been doing any business prior to that time with the Journal ?
‘A. Yes, sir; I had.
‘Q. Did you do any business with the Journal after that time ?
“ ‘A. I did once or twice, a small matter. I had to balance a bill.
“ ‘Q. What was your reason for stopping doing business with the Journal ? Did this committee have anything to do with it ?
‘A. I looked upon it from a business standpoint. If I did business with the Journal, I was to lose business in our store — lose customers. That is the understanding I had given to me.
‘Q. Is that the reason ?
‘A. In order to protect the interests of the Fair Savings Bank, I stopped business with the Journal.
“ ‘Q. Did you have any other reason for stopping besides that ?
‘A. No other reason, but just that alone.
‘Q. When they left you, where did they go ?
‘A. They took the elevator and went to the third floor.’
“ This witness further testified that prior to that time he had been doing business with the Journal to the amount of about $50 a month on an average. He did not do the same amount of business after January, 1908. He had not done any advertising with complainant to any extent until recently. A while ago he gave a few bills that he wanted, to balance up his account. Had it not been for this talk he would have given advertising to the Journal from January, 1908, to the present time. He is not doing advertising with complainant now, because he feels that it would injure that business to do it, and he was-afraid to do it. He had been interviewed by friends of his to keep away from the Journal on account of the boycott more particularly than anything else. That is the reason why he is not getting work and advertising at this time. This is not all of the testimony of this witness, but what has been referred to shows the general trend of it. A number of the defendants composing the committee denied that any such conversation took place as testified by Salinsky. It is only fair to say, however, that the defendants Lemmer, Dupont, Marchand, and Ahlquist did not pretend that they heard all of the conversation.
“The witness James B. Wilkinson testified that his business was that of a furniture and undertaking merchant; that he had been in that business for 10 years; that his place of business was on the third floor of the Fair Savings Bank Department Store; that you reached the store through the Fair Savings Bank Store by stairway and elevator. He knows complainant and has known him for three years and had given him business, printing bill heads, letter heads, and envelopes. He knows the defendants Ahlquist, Dupont, Miller, Boddy, and Marchand. They called upon him in January, 1908. They came together in a body. He further testified:
“ ‘Q. Just tell us what conversation you had with them and what they said to you at that time.
‘A. As near as I can remember, they came up in the elevator, and they followed each other back through the store. I was sitting at the desk, and I think it was Mr. Boddy, he approached me first, and told me they were a committee, and asked me not to trade with Mr. Baldwin. I told them that I didn’t do any advertising. My advertising was done through the Fair Store. They mentioned the other matters, the matter of printing bill heads and such like. I told them I thought it was infringing upon my rights as a business man and citizen, and I didn’t care to comply with their request.
‘Q. What did they say to that — anything ?
‘A. Well, they simply turned away and said it was up to me.’
“Upon cross-examination the attention of this witness was called to his affidavit attached to the bill of complaint, and the same was offered in evidence. An examination of that affidavit will show that there is no material difference between its statements and the testimony of the witness; which is given above only in part.
“ The testimony of this witness was also denied by the defendants composing the committee, except that, the defendants Lemmer, Dupont, Marchand, and Ahlquist claimed that they did not hear much of the conversation. The general trend of the testimony of the defendants is to the effect that they simply sought to have Mr. Wilkinson see complainant and urge him to desist from his attacks upon them. The affidavits of these defendants, used upon the motion to dissolve the injunction, were offered in evidence, upon the hearing. They were substantially alike. The affidavit of the defendant Lemmer sets forth as follows:
“ ‘ Deponent further says that said committee did call upon one James B. Wilkins.on, mentioned in said bill of complaint in an affidavit attached thereto, for the purpose of requesting the said James B. Wilkinson to use his influence with complainant in regard to certain articles then being published in complainant’s paper. That nothing was said to said James B. Wilkinson in regard to his withdrawing his patronage from said paper, but that, as soon as deponent and other members of the committee mentioned their business to said James B. Wilkinson, he informed them that he, the said James B. Wilkinson, would attend to and manage his own business, and that they could do the same.’
“As I said in giving my reasons for retaining the injunction, in referring to these affidavits:
“ ‘ This is very peculiar. What should have led Wilkinson to say to them that he would manage his own business and attend to the same, unless there was some effort being made to induce Wilkinson to change his course of business, it is difficult to see or understand.’
“I am of the opinion that the witnesses Salinsky and Wilkinson testified truthfully, and that they are entitled to belief. It was very apparent that many of the witnesses for the complainant were in sympathy with, or were under the influence of, the defendants. This is notably so with the witness Thomas Richer. This man had made a strong affidavit which was attached to the bill of complaint, and which is referred to in his testimony. He afterwards made an affidavit denying the statements contained in this first affidavit, and upon the hearing his memory was very defective.
“ I am satisfied from the evidence that there was a conspiracy or combination formed at the meetings held in January, 1908, looking to the interfering with the legitimate business of the complainant by way of boycott, if he did • not desist from further publications relating to the liquor and kindred business in the city of Eseanaba. The acts of the committee and different members of the committee, and the acts of different members of the meeting appointing the committee, all tend to the same end, to wit, to induce customers of the complainant from further doing business with him. The conversation of the defendant Miller with the witness Lohmiller, in which, upon being told that Lohmiller had had some printing done by complainant, Miller said, ‘ Cut it out! cut it out!’ is a fair sample. That of the committee’s talk with Grabowsky, and of Johnson’s talk with him, the talk with Hamacher, the talk of Bink with John Groos, the talk of Crose with witness Fred Olson, and of Cleary with Howell, in which Cleary told Howell, when spoken to about the boycott of the Journal, that ‘the less he said about those things the better,’ are all to the same end, and go to show a combination and concert of action to interfere with the business of the complainant in an unlawful manner, and in a way contrary to public policy.
“ I do not find from the evidence that there was any combination or conspiracy against complainant which took concert of action prior to the meetings of January, 1908. I am satisfied that the society or association known as the ‘ K. Y. M. S.’ was not formed until August, 1908. It was this combination of January, 1908, which in my judgment constituted the conspiracy. It is a familiar doctrine that—
“ ’Where two or more persons enter into a conspiracy, any act done by either in furtherance of the common- design, and in accordance with the general plan, becomes the act of all, and each conspirator is responsible for such act.’ 8 Cyc., p. 657.
“ This is true, even though the results were not specifically- intended or the means specifically agreed upon. A combination formed for the purpose of injuring a person in his trade or occupation has been held to constitute an indictable offense. 6 Am. & Eng. Enc. Law (2d Ed.), p. 861. It is probably true, as stated by the defendants when testifying, that the word ‘ boycott ’ was not used by them or by the meeting. While this is probably true, yet no fair-minded man can read the testimony in this case and the affidavits in evidence without reaching the conclusion that there was here a combination to interfere with the legitimate business of the complainant in a manner that was clearly unlawful and against public policy.
“ But it is urged that, even if the facts are as claimed by the complainant and are true, there were no threats or acts tending to intimidate or coerce any of the patrons of the complainant. But to this proposition I cannot agree. When Wilkinson was told that ‘ it was up to him,’ and when Miller told Lohmiller to ‘ cut it out,’ and when parties were refused accommodations because they advertised with the complainant, and especially when, by concert of action, a large number of persons are acting along the same lines, there can be no doubt as to what was meant, nor as to what' was intended by the defendants.
“‘The law abhors subterfuges. It lays aside the covering and looks to the actual facts beneath.’
“ ‘ Threats in language are not the only threats recognizable in the law. Covert and unspoken threats may be just as effective as spoken threats.’
“ ‘It is sufficient to justify the finding of a conspiracy, if it is shown that the persons charged with conspiracy pursued by their acts the same object, often by the same means, one performing one part of the act and the other another part of the same act, so as to complete it, with a view to the attainment of the object which they were pursuing.’
“ Upon the law of the case much might be said, as applicable to the facts here. Can there be any question that the acts of the defendants were intended to cripple the business of the complainant, by cutting off custom and patronage ? If so, then such concert of action constituted a boycott.
“A ‘boycott,’ as generally understood, is held by nearly all the authorities to be an unlawful conspiracy, and subject to restraint by a court of equity. It may be defined to be a combination of several persons to cause a loss to a third person by causing others against their will to withdraw from him their beneficial business intercourse through threats that, unless a compliance with their demands be made, the persons forming the combination will cause loss or injury to him; or an organization formed to exclude a person from business relations with others by persuasion, intimidation, and other acts which tend to violence, and thereby cause him, through fear of resulting injury, to submit to dictation in the management of his affairs. Such acts constitute a conspiracy, and may be restrained by injunction. Crump v. Commonwealth, 84 Va. 927 (6 S. E. 620, 10 Am. St. Rep. 895); Toledo, etc., R. Co. v. Pennsylvania Co. (C. C.), 54 Fed. 730 (19 L. R. A. 387); Barr v. Essex Trades Council, 53 N. J. Eq. 101 (30 Atl. 881); State v. Stewart, 59 Vt. 273 (9 Atl. 559, 59 Am. Rep. 710); Gatzow v. Buening, 106 Wis. 1 (81 N. W. 1003, 49 L. R. A. 475, 80 Am. St. Rep. 1); Casey v. Cincinnati Typographical Union No. 3 (C. C.), 45 Fed. 135 (12 L. R. A. 193); Frank & Dugan v. Herold, 63 N. J. Eq. 443 (52 Atl. 152).
“In Hopkins v. Stave Co., 83 Fed. 912, 28 C. C. A. 99, Judge Thayer, speaking for the court of appeals of the eighth circuit, said:
‘ ‘ ‘ The courts have very generally condemned those combinations usually termed “boycotts,” which are formed for the purpose of interfering, otherwise than by lawful competition, with the business affairs of others, and depriving them, by means of threats and intimidation, of the right to conduct the business in which they happen to be engaged according to the dictates of their own judgments.’
“In the case of Moores & Co. v. Bricklayers’ Union, 10 Ohio Dec. (reprint) 665, 23 Wkly. Law Bul. 48, it appears that a labor union became involved in some controversy with one Parker concerning various matters, and, in order to bring Parker to their terms, the union notified materialmen that any one selling to him would be boycotted. Moores, plaintiff in the action, persisted in selling to Parker, notwithstanding this notice, and the union promptly notified all of Parker’s customers or prospective customers that none of its members would work Moores’ material, thereby causing serious damage to the business of Moores. There were no acts or threats of violence shown, but the court held that the acts of the members of the union amounted to an unlawful conspiracy, and a recovery against them was upheld.
"While the question of boycott was not involved in the case of Ertz v. Produce Exchange, 79 Minn. 140 (81 N. W. 737, 48 L. R. A. 90, 79 Am. St. Rep. 433), the principles of the law applicable thereto were involved and discussed by.the court. It was there held, upon facts showing that a dealer íd farm produce had established a profitable business, that defendant conspired to induce others not to deal with him, it not appearing that their interference with his business was to further any legitimate interests of their own, but done maliciously to injure him; that it was a conspiracy, and actionable. The court there said:
“ ‘But one man singly, or any number of men jointly, having no legitimate interests to protect, may not lawfully ruin the business of another by maliciously inducing his patrons and third parties not to deal with him. ’
“ What amounts to coercion, intimidation, or threats of injury must necessarily depend upon the facts of each particular case. Plant v. Woods, 176 Mass. 492 (57 N. E. 1011, 51 L. R. A. 339, 79 Am. St. Rep. 330); Sherry v. Perkins, 147 Mass. 212 (17 N. E. 307, 9 Am. St. Rep. 689).
“In Barr v. Essex Trades Council, supra, it was said:
"'The clear weight of authority undoubtedly is that a man may be intimidated into doing, or refraining from doing, [a particular act] by fear of loss of business, property or reputation as well as by dread of loss of life, or injury to health or limb; and the extent of this fear need not be abject, but only such as to overcome his judgment, or induce him not to do, or to do, that which otherwise he would have done or have left undone.’
“Intimidation, within the meaning of the law, is not necessarily limited to threats of violence to person or property. A combination between persons merely to regulate their own conduct of affairs is allowable, and a lawful combination, though others may be indirectly affected thereby; but a combination to do injurious acts, expressly directed to another by way of intimidation or constraint, either of himself or of persons employed, or seeking to be employed by him, is outside of allowable competition and unlawful. Vegelahn v. Guntner, 167 Mass. 92 (44 N. E. 1077, 35 L. R. A. 722, 57 Am. St. Rep. 443). The interference is held by many of the authorities to be unlawful, although it does not affect existing contract relations. The wrongful interference with one’s business and prospective customers is as much an infringement of his rights, as though contractual relations actually existed and were interfered with. Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759 (53 Atl. 230); Addison on Torts, p. 7.
“In restraining boycotts, the authorities proceed on the theory that they, are unlawful interferences with property rights. The Constitution of our State guarantees liberty to every citizen, and a certain remedy in the laws for all injuries or wrongs which he may receive in his person, property, or character; and the rights so guaranteed are fundamental, and can be taken away only by the law of the land, or interfered with, or the enjoyment thereof modified, only by lawful regulations adopted as necessary for the general public welfare.
“As remarked by Judge Bradley in the Slaughter House Cases, 16 Wall. (U. S.) 36-116:
“ ‘For the preservation, exercise, and enjoyment of these rights the individual citizen, as a necessity, must be left free to adopt such calling, profession, or trade as may seem to him most conducive to that end. * * * This right to choose one’s calling is an essential part of that liberty which it is the object of government to protect; and a calling, when chosen, is a man’s property and right. Liberty and property are not protected where these rights are arbitrarily assailed.’
“A person’s occupation or calling, by means of which he earns a livelihood and endeavors to better his condition, and to provide for and support himself and those dependent upon him, is property within the meaning of the law, and entitled to protection as such. Persons may organize and persuade and induce others to join them, but when they resort to unlawful means to cause injury to others with whom they have no relations, contractual or otherwise, the limit permitted by the law is passed, and they may be restrained. Gray v. Trades Council, 91 Minn. 171 (97 N. W. 663, 63 L. R. A. 753, 103 Am. St. Rep. 477).
“But we need not go outside of our own decisions to find ample support for the doctrine already stated. In Beck v. Protective Union, 118 Mich. 497, 519 (77 N. W. 13, 21, 42 L. R. A. 407, 74 Am. St. Rep. 421), it was held that injunction would lie to restrain a combination of persons from attempting to ruin complainant’s business, by bringing to bear upon • his customers and employés intimidating and coercive means, though the acts were unaccompanied by actual violence or threats of violence. On p. 519 Mr. Justice Grant, speaking for the court, said:
“ ‘The law abhors subterfuges. It lays aside the covering and looks to the actual facts beneath. In the language of Chief Justice Shaw: “ The law is not to be hoodwinked by colorable pretenses; it looks at truth and reality, through whatever disguise it may assume.” Com. v. Hunt, 4 Metc. (Mass.) 111, 129 (38 Am. Dec. 346). Threats in language are not the only threats recognized by the law. Covert and unspoken threats may be just as effective as spoken threats.’
. “ There would seem to be no doubt that the defendants, constituting the committee, by their language and conduct in their interview with Salinsky and Wilkinson and other parties, as disclosed by the evidence, intended in an emphatic manner to convey to them, as customers of complainant, that they would be boycotted, unless they ceased to trade or do business with complainant. See, also, numerous authorities cited in the last-named case to the effect that no violence or threats of violence need be used in order to establish liability.
“ ‘The law sanctions only peaceful means, which leave every one to the exercise of his own free will. The boycott condemned by the law is not alone that accompanied by violenoe and threats of violence, but that where the means used are threatening in their nature, and intended and naturally tend to overcome, by fear of loss of property, the will of others, and compel them to do things which they would not otherwise do (Beck v. Protective Union, supra).’
“See, also, Ideal Manfg. Co. v. Ludwig, 149 Mich. 133 (112 N. W. 723, 119 Am. St. Rep. 656).
“ Under the evidence there can be no doubt that the defendants, constituting the committee, carried out, and acted in accordance with the instructions of the meeting of January, 1908.' The conspiracy was formed at the meeting. All of those who were present and acting in concert with the project of the meeting were equally guilty with the committee. The evidence shows that all who were present and acting in concert in the appointing of this committee, and acquiescing therein, were equally guilty. I think this applies to all of the defendants except Menasip Perron. From a careful reading of the testimony, I conclude that during the time this defendant was present no action was taken looking to the appointment or raising of this committee. He was present but a few minutes, and he spoke upon the subject of the saloon keepers obeying the law, and upon this subject only. While the defendants Cleary and crose do not appear to have been present at the entire session, yet, by their sanction and participation in the proceedings leading up to the appointment of the committee, they seem to have acquiesced in th© project and to have given to it their support. Their subsequent conduct seems to have been wholly consistent with this view of the case, and with no other view.
“Upon the subject of damages, it seems to be well settled in this State that equity, having once acquired jurisdiction, will retain it, to give such full relief as will finally dispose of the controversy. The complainant was by his bill entitled to an injunction. The court had jurisdiction. It should retain it to give relief by way of damages, and thus avoid a multiplicity of suits. See cases cited in Hall v. Nester, 122 Mich. 146 (80 N. W. 982).
“! am unable to agree with complainant’s solicitor as to the amount of damages sustained by the complainant by reason of the conspiracy, as shown by the evidence. The withdrawal of business by a number of the parties is not traceable to the conspiracy or the acts following it. The loss occasioned by the withdrawal of the business of the witness Salinsky is the most tangible and the largest in amount. After a careful reading of the evidence upon this subject and taking into, consideration that these damages which the plaintiff has suffered have been continuing, and may continue for an indefinite period, and that the acts of the defendant's which are complained of have been wilful and oppressive, I am constrained to fix the damages of the complainant at the sum' of $1,000.
“ The bill of complaint as to Menasip Perron will be dismissed, with costs. A decree will be entered as to the other defendants, restraining them as prayed for in the bill, and ordering that they pay to the complainant the sum of $1,000 damages, with costs of suit to be taxed, and that complainant have execution for the same.”

The judgment is affirmed, with costs.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    HARTLEY v. MILLER.
    Bailments — Automobiles—Negligence of Bailee as to Third Persons.
    Before the enactment of the motor vehicle law (Act No. 318, Pub Acts 1909), the owner of an automobile, riding in his car as a guest of a person who had borrowed and was driving the machine, was not liable to a third person injured by the driver’s negligent operation thereof.

      Case-made from Wayne; Rohnert, J.
    Submitted February 23, 1911.
    (Docket No. 33.)
    Decided March 13, 1911.
    Case by William Hartley against Frank P. Miller and August Lootens for personal injuries. A judgment for defendant Miller on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Philip A. McHugh & William, Henry Gallagher, for appellant.

      Albert McClatchey, for appellees.

       Liability of owner of automobile for injuries caused thereby while being used by a servant or a third person for his business or pleasure, see notes in 9 L. R. A. (N. S.) 1033; 14 L. R. A. (N. S.) 216; 26 L. R. A. (N. S.) 382.

   Stone, J.

This case is before us upon a case-made after judgment.

It appears that the plaintiff was a street car conductor in the employ of the Detroit United Railway in the city , of Detroit. On Sunday, May 24, 1908, about 3:45 p. m., he was engaged in his duties as conductor on a Fourteenth avenue car, running east on Henry street from Grand River avenue to Cass avenue. The car was an open one with a running board on the right-hand side. The plaintiff was standing on this running board, collecting fares. The defendant Frank P. Miller at this time was the owner of an automobile. On the night preceding the day in question the defendant August Lootens visited said Miller at his home and asked for the loan of his automobile on the succeeding day. Miller consented to let Loot-ens have the automobile on the following day. Accordingly, between 2 and 3 o’clock p. m. Lootens called at Miller’s home for the automobile, and on his (Lootens’) invitation, Miller entered the auto and rode to his (Loot-ens’) home, Lootens operating the machine; and when they arrived there, Lootens and his company insisted upon Miller’s accompanying them on the ride, and Miller finally acceded to their invitation and went with them. There were two front seats in the automobile. Lootens sat on the right-hand side, in the driver’s seat, and operated the machine. Miller occupied the other front seat. It is admitted that Miller had loaned the machine to Lootens; 'that he (Miller) accompanied the party on Lootens’ invitation, and as Lootens’ guest, and that Miller did not in any way participate in the operation or control of the automobile. Lootens had had considerable experience in the operation of automobiles, though he had never driven this particular machine before the day of the accident. After leaving Lootens’ home, the party started on the drive, and finally reached Second avenue, and proceeded north along that thoroughfare toward Henry street, and came into collision with the street car on which plaintiff was employed, injuring him, at the corner of Second avenue and Henry street.

There was some dispute as to the manner of, and responsibility for, the accident, but it is not material to the question presented here. When all of the testimony had been submitted, defendant Miller moved the court to direct a verdict of no cause of action as to him, upon the ground that the evidence showed that at the time of the accident the automobile had been loaned by defendant Miller to defendant Lootens, and that the latter was at such time in actual, active control and operation of the automobile in his own behalf, and was not in any way operating the same as the agent or employe of the defendant Miller; that defendant Miller was, at the time of the accident, a mere guest in the automobile, and not in any way responsible for its operation or control. This motion was granted, and a verdict and judgment were entered for defendant Miller, and the case proceeded to a verdict and judgment against defendant Lootens in favor of the plaintiff. The plaintiff has appealed, and assigns error in granting defendant Miller’s motion, and in directing a verdict of no cause of action as to defendant Miller.

It will be noticed that there is nothing in the record to show that Miller had ever operated the auto, or that he could operate it, or that he had any greater knowledge or skill than Lootens possessed as to its operation. It should be borne in mind that the alleged cause of action arose before the statute of 1909, regulating motor vehicles, was enacted.

It is the contention of the plaintiff that, because defendant Miller was present and the machine was being used with his consent at the time of the injury complained of, he is liable; that an automobile being a dangerous machine, its owner should be held responsible for the manner in which it is used. It is the claim of defendant Miller that it is undisputed that the automobile had passed into the possession and control of defendant Lootens for the day, and that Miller did not have the right or authority to dictate or direct the manner in which the automobile should be operated; that it was as much in the control of Lootens for that day as it would have been had he been the absolute owner thereof; that an automobile is not a dangerous instrumentality, and under such circumstances there is no theory upon which Miller could be held liable for the negligence of Lootens. In our opinion this claim of defendant Miller is supported by' the great weight of authority.

Doran v. Thomsen, 74 N. J. Law, 445 (66 Atl. 897), is a leading case upon this subject. It was there held that the owner of a motor vehicle is not liable for an injury caused by the negligent driving of a borrower, if it was not used at the time in the owner’s business. A number of cases are there cited, including Herlihy v. Smith, 116 Mass. 265. See, also, Cunningham v. Castle, 127 App. Div. 580 (111 N. Y. Supp. 1057), decided in 1908, where the same rule is applied, and where the authorities are reviewed at length.

The general proposition as to the responsibility for a tort is stated by Andrews, J., in King v. Railroad Co., 66 N. Y. 161 (23 Am. Rep. 37), as follows:

Where one person, has sustained an injury from the negligence of another, he must, in general, proceed against him by whose negligence the injury was occasioned. If, however, the negligence which caused the injury was that of a servant, while engaged in his master’s business, the person sustaining the injury may disregard the immediate author of the mischief and hold the master responsible for the damages sustained.”

In Wyllie v. Palmer, 137 N. Y. 248 (33 N. E. 381, 19 L. R. A. 285), it was held that the doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged for the result of some neglect or wrong at the time, and in respect to the very transaction out of which the injury arose. The following cases are also in point: Jones v. Hoge, 47 Wash. 663 (92 Pac. 433, 14 L. R. A. [N. S.] 216, 125 Am. St. Rep. 915); Slater v. Thresher Co., 97 Minn. 305 (107 N. W. 133); Lotz v. Hanlon, 217 Pa. 339 (66 Atl. 525, 10 L. R. A. [N. S.] 202, 118 Am. St. Rep. 922, 10 Am. & Eng. Ann. Cas. 731, and note); Reynolds v. Buck, 127 Iowa, 601 (103 N. W. 946).

The case is governed by the general rules of law governing the relation of master and servant, or principal and agent. The rule of law applicable to the care and protection of dangerous instrumentalities does not apply. Cunningham v. Castle, supra; Jones v. Hoge, supra.

Our examination has shown that the courts of last resort in all parts of the United States have, without exception, held that, in the absence of statutory liability, the owners of automobiles were not liable for the negligence of a borrower, where the machine was not used in the master’s business. Counsel for plaintiff has cited the case of Ingraham v. Stockamore, in the Supreme Court of New York, reported in 63 Misc., Rep. 114 (118 N. Y. Supp. 399), in support of his position. This is not a court of last resort, and it stands alone in holding that, an automobile being a dangerous machine, its owner should be held responsible for the manner in which it is used, and that- his liability should extend to its use by any one with his consent. We do not understand this to be the law in any State, in the absence of statutory enactment.

We are of opinion that the circuit judge did not err in directing a verdict for the defendant Miller for the reasons stated by him, and the judgment below is affirmed.

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


text:
    DRAKE COAL CO. v. CROZE.
    1. Evidence — Contracts—Self-Serving Declarations.
    It was error to admit in evidence, to corroborate a witness, a letter wbioh he wrote at his hotel after interviewing defendant, tending to show that the parties did not execute a contract which defendant claimed to have made with him as agent for plaintiff.
    2. Same — Hearsay—Res Gestas.
    Self-serving declarations made by a party in his own favor to third persons, in the absence of the other party to the suit, are in general mere hearsay, especially when they merely narrate past occurrences, and constitute no part of the res gestee.

    Error to Houghton; Streeter, J.
    Submitted February 24, 1911.
    (Docket No. 107.)
    Decided March 13, 1911.
    Assumpsit by the Drake Coal Company against Joseph Croze for goods sold and delivered. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Allen F. Rees, for appellant.

      Sheldon & Legris, for appellee.
   Stone, J.

This case was before this court in 1907, and will be found reported in 149 Mich. 60 (112 N. W. 715). It was sent back for a new trial, which has been had.

The plaintiff sued defendant for the price and value of a cargo of coal shipped by plaintiff to the defendant August 18, 1902. Upon the second trial there was no dispute about the shipment of the coal, its receipt by the defendant, or the price; but defendant claimed that he had made a verbal contract with the plaintiff in June, 1902, under which contract the.defendant agreed to buy, and the plaintiff agreed to furnish to defendant, his season’s coal, not less than 4,000 tons and not more than 5; 000 tons. The coal to be furnished was from plaintiff’s mine, and was known as “ Massilon ” coal. Defendant at the time was, and had been for some years preceding, in the coal business at Houghton. Two shipments of coal had been made by plaintiff to defendant. The first cargo was received and paid for, and the second cargo was the one in question. After it had been shipped and delivered, defendant called upon the plaintiff for further shipments, and plaintiff refused to furnish any more coal. In this suit, by his pleadings and evidence, defendant claimed damages for a breach of the contract. On the trial the plaintiff showed an order from defendant for the shipment of the coal sued for, the price, cost of insurance, etc., making at the time of the trial, with interest, $1,960.18.

Plaintiff’s witness, J. M. Drake, who was the president of the plaintiff company, testified on cross-examination that the total of the two cargoes sent to defendant was 1,427.15 tons; that the defendant later applied for further shipment, and that plaintiff refused to ship any further, because it could not do so. Defendant testified that in the spring of 1902 he made arrangements for his coal with said J. M. Drake, president of the plaintiff, at his, defendant’s, office; that he there made a verbal contract with Mr. Drake, representing plaintiff, for his season’s coal, 4,000 to 5,000 tons, and that Mr. Drake, the president, agreed to furnish the same, and said: “I will give you all the coal you want.” He further claimed that at that time it was arranged that the coal should be shipped as needed and ordered 'from time to time. Defendant further testified that at the time of making the said contract, and in the presence of Mr. Drake, he, defendant, made a memorandum in his office book as follows:

“Drake 5,000 to 4,000 Massilon, not less than 4,000 at $2.15, free on boat Cleveland. Monday, 9th of June.”

This memorandum was offered and received in evidence without objection. The defendant’s testimony was to the effect that he ordered subsequent shipments of coal which were refused, and he gave evidence tending to show the price which he was compelled to pay, and the damage which he suffered by reason of the alleged breach of the contract by the plaintiff. When recalled to the stand in rebuttal, Mr. Drake denied having made a contract for the season’s coal with the defendant, and he denied that any memorandum was made in his presence, and the issue was squarely presented as to whether or not such contract was made.

On Mr. Drake’s examination plaintiff’s counsel offered in evidence a letter written on June 9, 1902, to the plaintiff company by Mr. Drake. It was written from the Douglass House in Houghton, and inclosed the order, some time after the witness saw defendant in the latter’s office. This letter was objected to as incompetent and immaterial, but was received in evidence by the court, and an exception taken by defendant’s counsel. The letter was as follows:

“Douglass House, Houghton, Mich., June 9, 1902.
“The Drake Coal Co.,
“ Cleveland, Ohio.
Gentlemen:
I arrived here this a. m. at 5 o’clock. Rode all night in two sleepers. Had to change at 2 a. m. I have seen Croze. Took his order for about 700 tons and three cars Smithing on deck. Prices regular. He has had no Massilon this season.”

In admitting this letter in evidence the trial court said:

“ There is direct conflict in the testimony as to whether a certain contract is entered into. I think the actions of both parties regarding the transaction that did take place are admissible as tending to show whether such contract was entered into or not, and for that reason I will admit the letter.”

- The jury disallowed the claimed defense of the defendant, and returned a verdict for the whole amount of the plaintiff’s claim, and judgment was entered therefor. The defendant has brought error, and' by his first assignment claims that the court erred in admitting in evidence the letter above quoted. The defendant also, in its fifth and sixth assignments of error, claims that the court erred in its charge to the jury in the use which it permitted the jury to make of said letter. On that subject the court charged the jury as follows:

“ Now, whether or not there was a contract and what the contract was, will be for you gentlemen to determine, and you can determine it by considering the surrounding circumstances. On the one hand, you have the memorandum made by Mr. Croze at the time, as the testimony shows, and you have introduced in the testimony the order sent by Mr. Drake to the Drake Coal Company on the same day. Now, if the entry of the memorandum made by Mr. Croze shows his understanding of it, if you are convinced that that does show the understanding that he had, and the letter of Mr. Drake shows his understanding, his honest understanding of the contract, as a matter of law, I tell you there was no contract existing between these people at all.”

The question is not before us whether or not the court erred in admitting in evidence the memorandum claimed to have been made by the defendant at the time of the contract, and in the presence of Mr. Drake, as it was received in evidence without objection on the part of plaintiff, presumably upon the ground that it was a part of the res gestee. It will be observed, however, that the letter written by Mr. Drake to his company was written at his hotel after the transaction, and was simply a self-serving statement made to the plaintiff by the plaintiff’s president, detailing generally the transactions of the day.

The use which the court permitted the jury to make of this letter in the charge was, in our judgment, very damaging to the defendant. It permitted the jury to consider this letter as bearing upon the probability of the plaintiff’s president having made the contract claimed by the defendant, and the jury were permitted to consider it as bearing upon the probabilities, as against the memorandum made by defendant at the time he claimed the contract was made. We are very clear that it was error to admit in evidence this letter. Had Mr. Drake orally stated to the secretary of his company that he had taken Mr. Croze’s order for about 700 tons of coal, the statement would be no different in effect, or in character, or in legal force, as evidence than the letter which was introduced in evidence. Instead of talking to his secretary, or to his office, he sits down by himself and writes the statement in a letter. In either instance, whether spoken or written, such a statement is a self-serving statement, and is not competent evidence, either direct or corroborative, of what took place between Mr. Drake and Mr. Croze, and was inadmissible on the part of the plaintiff for any purpose whatever. It certainly cannot be claimed, in view of our numerous decisions, that a letter written under the circumstances here stated was a part of the res gestee. White v. City of Marquette, 140 Mich. 310 (103 N. W. 698).

The rule that self-serving statements made in the absence of the opposite party, although with relation to the terms of the contract in question, are not admissible in evidence, is elementary.

“A party’s own statements, oral or written, a fortiori, those distinctly self-serving, although the declarant was disinterested at the time of making his statement, are irrelevant when offered in favor of the declarant; and they are not rendered admissible by being part of a conversation or correspondence with the declarant’s witness, or with one sent by the opposite party, or with the adverse party himself or his agent, or by being brought to the attention of the other party or his agent and commented upon by him, or by being entered upon a book of account or other record, or brought out on cross-examination. But such evidence has been received where no better proof could be had. Such declarations are equally irrelevant when offered by the declarant’s representatives. The rule of exclusion also applies when such declarations are offered in evidence by third persons on their own behalf.” 16 Cyc. p. 1202.

“A corporation cannot, as a party, introduce as evidence the unsworn declaration in its favor of one of its officers.” 16 Cyc. p. 1206, citing Low v. Railroad, 46 N. H. 284.

See, also, Wilson v. Wilson, 6 Mich. 9; Jones v. Tyler, 6 Mich. 364; Ward v. Ward, 37 Mich. 253, at page 257. In the last cited case this court said:

“A decedent’s declarations were no more evidence for the defense here than they would have been for him in case he had lived and been the contestant, and surely he could not have proved his own mere declarations to third parties of his ownership, in order to establish his title against the claimant.”

This court has repeatedly held that a self-serving statement is not admissible on behalf of the party making it, and that the corroborating of the party in a material part of the case by his own statement is not permissible. Jones v. Village of Portland, 88 Mich. 605 (50 N. W. 73l, 16 L. R. A. 437); Lord v. Savings Bank, 132 Mich. 510 (93 N. W. 1063). This letter was but a narration of past occurrences, and was received in evidence as corroborative of witness Drake’s testimony as to what the contract was. Its reception was error. Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011, 5 L. R. A. 143, 13 Am. St. Rep. 457).

Any declaration made by a party in his own favor to a third party, in the absence of the other party to the suit, are in general mere hearsay and not admissible. This is especially so when they are merely narrative of past occurrences, and are no part of the res gestee.

Upon this point plaintiff’s counsel have cited the case of Wilmoth v. Hamilton, 127 Fed. 48 (61 C. C. A. 584), in the' U. S. circuit court of appeals in the third circuit. That was an action for the breach of an oral contract to sell plaintiff the output of defendant’s coal mine at a certain price per ton; and a letter was written by the plaintiff to the defendant (not replied to) the day after.the contract was made, purporting to be a memorandum of the terms of the contract as understood by the plaintiff’s agent. The court said, in speaking of this letter:

“We think it was not improperly admitted by the court below as being a written memorandum of the terms of the contract as understood by Adams, made immediately after its negotiation, not differing at all from his statement thereof in his oral testimony. At all events, we cannot see that even if its admission should be deemed technically improper, any injury resulted therefrom to the appellant, or that his case was at all prejudiced thereby.”

It will be observed in the cited case that the letter was written to the opposite party, stating the terms of the contract and asking for a confirmation of the contract. Whether such letter was answered, or acquiesced in, might become very material. Such was not the purpose of this letter. We are constrained to hold that in the receiving of this letter in evidence, and in the usa made of it by the court in its charge to the jury, there was error which in all probability affected the defendant. The case was a close one upon its facts, and permitting the jury to consider this letter as bearing upon the probabilities of the making of the alleged contract was prejudicial error, which probably did affect the verdict in the case. We find no other error in the record.

For the error pointed out, the case must be reversed, and a new trial granted.

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


author: Brooke, J. Ostrander, C. J.

text:
    RORABACHER v. NICHOLS.
    1. Eminent Domain — Jury—Compensation or Jurors — Municipal Corporations — Counties—Statutes.
    Jurors in special proceedings for the condemnation of private ., property, brought by cities of the fourth class, are entitled to be paid by the city instituting the proceedings; not by the county, under Act No. 236, Pub. Acts 1907.
    2. Statutory Construction — Repeal or Statutes.
    Since effect should be given to each of two acts upon the same subject-matter, if, by reasonable construction, it may be so done, Act No. 236, Pub. Acts 1907, providing for payment of jurors by counties, will not be held to have repealed 1 Comp. Laws, § 3408, or Act No. 215, Pub. Acts 1895, as amended by Act No. 136, Pub. Aots 1899, providing for payment of the jurors by cities instituting proceedings in eminent domain.
    Certiorari to Shiawassee; Miner, J.
    Submitted February 28, 1911.
    (Calendar No. 24,398.)
    Decided March 13, 1911.
    Mandamus by Edward M. Rorabacher against Albert L. Nichols, county clerk of Shiawassee county, to compel the payment of jury fees in eminent domain proceedings. An order denying the writ is reviewed by relator on certiorari.
    Affirmed.

      Seth Q. Pulver, for appellant.

      Joseph H. Collins, for appellee.
   Brooke, J.

This case is certiorari to review the action of the circuit judge of Shiawassee county in refusing to grant a writ of mandamus against respondent, who is county clerk of said county. Relator sets out in his petition that he was drawn and served as a member of a special jury in a condemnation case in which the city of Owosso was plaintiff. For compensation for such service, he made demand upon respondent, which was refused.

The only question involved is whether the city of Owosso or the county of Shiawassee is liable to relator for his compensation as a juror in this special condemnation proceeding. By the condemnation act of 1883, amended in 1887 (1 Comp. Laws, § 3408), it is provided:

“Officers, jurors and witnesses in any proceedings under this act shall be entitled to receive from the city, (or) village or county instituting the proceedings, the same fees and compensation as are provided by law for similar services in an ordinary action at law in the circuit courts of this State.”

This act applied generally to all cities and villages. In 1895 the legislature passed an act (No. 215) providing for the incorporation of cities of the fourth class. Chapter 25 of that act relates to the condemnation of private property for public use. Section 22 thereof provides:

“ Officers, jurors and witnesses in any proceedings under this chapter shall be entitled to receive the same fees and compensation as are provided by law for similar services in an ordinary action at law in the justice courts of this State, and in cases of appeals, the same fees and compensation as are provided by law for similar services in circuit courts.”

This act was amended in 1899 (Act No. 136). By the amended act, original jurisdiction was conferred upon the •probate, instead of the justice, court, and the section in question was made to read as follows:'

“Seo. 26. Officers, jurors and witnesses in any proceedings under this chapter shall be entitled to receive the same fees and compensation as are provided by law for similar services in an ordinary action at law in the probate courts of this State, and in cases of appeals, the same fees and compensation as are provided by law for similar services in circuit courts.”

It is to be noted that neither in the section as it appears in the act of 1895 or the act of 1899 is there any provision as to who shall pay the fees of officers, jurors, and witnesses.

It is urged by relator that Act No. 136 of the Public Acts of 1899, under which the condemnation proceeding (in which the services of relator were rendered) was launched, is complete in itself, and, inasmuch as it does not in terms provide who shall pay the fees of the jurors, the same may be collected from the county under the provisions of Act No. 236, Pub. Acts 1907. This construction would lead to the result that, when fourth class cities instituted condemnation proceedings, the jury fees would be paid by the county, while other municipalities instituting such proceedings would still be liable for them under 1 Comp. Laws, § 3408. This is, in effect, to say that the act of 1895 repealed section 3408 so far as it relates to fourth class cities. We cannot suppose the legislature intended to make such a discrimination, and no reason appears why it should be made. We are of opinion that the section in question, both in the act of 1895 and that of 1899, was intended to measure the compensation rather than to provide a different paymaster. It is elementary that, if by any reasonable construction effect can be given to both acts, this course should be followed. People v. Hanrahan, 75 Mich. 611 (42 N. W. 1124, 4 L. R. A. 751), and cases cited. There is no positive repugnancy between the provisions of 1 Comp. Laws, § 3408, and section 26, Act No. 136, Pub. Acts 1899. Both may be given effect.

The judgment is affirmed.

Bird, Stone, and Blair, JJ., concurred with Brooke, J.

Ostrander, C. J.

{concurring). I think the statute (Act No. 215, Pub. Acts 1895), as amended, is a complete statute, but that it is unimportant whether it expressly provides that the expenses in condemnation cases instituted by a municipality shall be chargeable to the municipality or is silent upon the subject. The statute does expressly provide that officers, jurors, and witnesses shall be entitled to fees. Unless it was expressly provided that they should be paid by the county, the necessary inference would be that they should be paid, in the first instance, by the municipality instituting the proceeding. Such proceedings are not judicial proceedings. The juries are special juries. The benefits expected are either to the municipality or to some division or district thereof. In either case it is the municipality alone which has power to apportion the cost of the benefit. It has been held in construing Act No. 124, Pub. Acts 1883, as amended (1 Comp. Laws, § 3408), that the city must pay the fees of all witnesses in such a proceeding, whether they are produced for or against the municipality. Dorland v. Judge of Superior Court, 78 Mich. 182 (44 N. W. 52). This ruling is in harmony with the idea that the cost of determining the issues, namely, public necessity and proper compensation to owners, ought to be paid by the one for whose benefit alone the issues are presented. I concur in affirming the judgment of the circuit court.


author: Moore, J.

text:
    WALDHORN v. WALDHORN.
    1. Divorce — Cruelty—Evidence.
    A decree of divorce in favor of the husband is justified by evidence that the wife called him opprobrious names, accused him of associating in an improper manner with other women, and that she refused to oohabit with him because she disliked him.

      2. Equity — Hearing—Practice.
    No abuse of the court’s discretion appears from a refusal to open a divorce case, after the testimony had been closed, and the parties had substantially agreed upon the alimony, upon defendant’s offer and request at a later date to produce further witnesses on that question, no showing being made as to the nature of their testimony.
    Appeal from Wayne; Donovan, J.
    Submitted February 23, 1911.
    (Docket No. 37.)
    Decided March 13, 1911.
    Bill by Samuel Waldhorn against Anna Waldhorn for divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      Frank Bennett, for appellant.

      Friedman & Smilansky, for appellee.
   Moore, J.

This is a suit for divorce. From a decree in favor of complainant, defendant appeals. The complainant filed his bill of complaint charging the defendant with extreme cruelty. The defendant filed an answer denying all the charges of extreme cruelty, and also filed a cross-bill therein, charging the complainant with extreme cruelty toward her, and also charging the complainant with nonsupport. Defendant prayed for a decree of separate maintenance. The case was heard in open court. Before entering upon the proofs, the following occurred:

Messrs. Friedman & Smilansky, solicitors for complainant. Frank Bennett, solicitor for defendant.
The Court: What is the contest about, divorce, alimony, or children ?
“Mr. Friedman: We filed a bill, and they file an answer asking for separate maintenance.
The Court: Any children ?
“Mr. Friedman: One about 14, and one 20, with her.
The Court: Is there any contest about alimony ?
“Mr. Friedman: I do not think there will be any. He has been paying her $2.50 per week.”

This statement of counsel was not challenged. A number of witnesses were sworn on the part of the complainant, among them the complainant himself. He was cross-examined as to the character and extent of his business. In his cross-examination he testified:

“ I would be satisfied if I made $600 a year. * * * I am satisfied if I get $6 a week.”

The record shows the following:

“The court, solicitors for both parties, and complainant waited for an hour and a half after complainant had closed his case before the defendant and her witnesses appeared.”

The defendant was sworn in her own behalf. In her testimony the following occurred:

Q. Why did you file a bill against him ? Do you want to live with him ?
“A. I got out of the house without a penny, and I had no means to support myself, and I want him to give me a dollar or two a week to support me. I have no relatives or friends here.”

Other witnesses were sworn on the part of defendant, some of whom gave testimony as to the character and extent of the business of complainant. The trial disclosed that the youngest boy was living with his father, and the oldest boy, who was earning $9 a week, was living with his mother. After the witnesses offered by defendant were examined, the following occurred:

“The Court: Read me the charges she makes.
“(Mr. Friedman reads from answer.)
“The Court: If you have no other witnesses, heard and submitted, I wish you would agree on your alimony.
“(Adjourned.)”

No other suggestion was then made that defendant had other witnesses or desired to offer more testimony. On June 20, 1910, the record discloses the following:

“ Mr. Bennett, solicitor for defendant, made application to the court to hear further testimony as to alimony. The court thereupon handed to Mr. Bennett the following note:
“‘Mr. Bennett — I will be too busy to hear more proof today or tomorrow. Suppose I make it $3.00 a week till further order of the court.’
“No previous notice had been given to complainant or his counsel of defendant’s intention to. hear further testimony as to alimony on that day. The motion to hear testimony as to alimony was made in open court in the presence of complainant’s counsel who had appeared in court on that day for the purpose of having decree signed in this matter, of which due notice had previously been given to defendant’s counsel.
“Mr. Bennett: The defendant objects to the signing or granting of a decree in this case, on the ground that the testimony and evidence here are not sufficient for the purpose of granting a decree. The question of the alimony coming up to be heard before the court on the 20th day of June, 1910, the defendant deems is insufficient for her'support. * * *
“Mr. Bennett: We object to the entering of the order for $3 a week. It is insufficient for her support, and also object to the signing of the decree at-all, that the testimony is not sufficient for the granting of a decree, that the charges in the bill of complaint have not been proven. And we also object to the curtailing of the proof offered in behalf of the defendant in support of her bill for separate maintenance.
“Now, then, if your honor please, I think, with reference to the hearing of proof today, I think I have that in here.
“ The Court: I could not hear it today. I could not hear it tomorrow, and you have had your hearing in court once.
“Mr. Mistersky: We waited a half a day for him to come in with his witnesses, and then he closed his case.”

No suggestion was made that something had been omitted or as to the nature of the proof defendant desired to offer.

Two questions are presented by counsel: First, that a decree of divorce ought not to have been granted upon the merits; second, that other proof ought to have been taken upon the question of permanent alimony, and that the alimony ought to have been made larger. We consider the first of these questions. Counsel say (we quote from the brief):

“The grievances, whether mental or physical, must be of the most aggravated nature in order to justify a divorce. Cooper v. Cooper, 17 Mich. 205 (97 Am. Dec. 182). It is extremely doubtful whether neglect to look after one’s household affairs, and long-continued absence from the house without cause, constitute in any case, on the wife’s part, that extreme cruelty which the statute contemplates as a ground for divorce. Bennett v. Bennett, 24 Mich. 482.”

We think counsel misapprehend the rule. There was an abundance of testimony to the effect that defendant continually called complainant opprobrious names and accused him with improperly associating with other women, and that for a number of years she refused to cohabit with him because she had not liked him from the time of her marriage. This testimony, if believed, justified the decree of divorce under the following authorities: Whitmore v. Whitmore, 49 Mich. 417 (13 N. W. 800); Whitaker v. Whitaker, 111 Mich. 202 (69 N. W. 1151); Donaldson v. Donaldson, 134 Mich. 289 (96 N. W. 448); Campbell v. Campbell, 149 Mich. 147 (112 N. W. 481, 119 Am. St. Rep. 660); Delor v. Delor, 159. Mich. 624 (124 N. W. 544); Kraft v. Kraft, 160 Mich. 654 (125 N. W. 693). It is true the defendant denied the' testimony offered by the complainant, but the judge heard and saw the witnesses. See Donaldson v. Donaldson, supra. An examination of the record satisfies us he did not err in his conclusions.

Second. Did the court err in not hearing further testimony upon the question of alimony ? It is clear from the record that the judge was given to understand at the outset that there would be no serious contest as to the alimony. An examination of the cross-bill and answer thereto shows the respective parties gave to the court therein their version of the earning capacity and of the business of the complainant. The record discloses that upon the hearing court and counsel were compelled to wait an hour and a half for defendant and her witnesses. It also shows that after her witnesses were sworn the court suggested that, if defendant had no other witnesses, the case would be regarded as heard and submitted, and that no other witnesses were then offered. We have already referred to the earning capacity of the oldest boy who lives with his mother, and other conditions shown by the record. We do not think it can be said on this record that the court abused his discretion in not reopening the case.

The decree is affirmed.

Bird, Hooker, Brooke, and Stone, JJ., concurred.


text:
    GREENVILLE GAS, ELECTRIC LIGHT, POWER & FUEL CO. v. CITY OF GREENVILLE.
    1. Certiorari — Questions Reviewable — Supreme Court Practice-Municipal Corporations.
    The common-law writ of certiorari does not lie to review in the Supreme Court the action of a municipal common council in passing an ordinance requiring an electric power and light company to remove from the streets its poles and wires, which the corporation has erected and claims the right to maintain under a municipal franchise.
    2. Same — Legislative Action — Judicial Proceedings.
    Certiorari is not the proper remedy to review acts of a ministerial, executive, or legislative character not done in the exercise of judicial power.

      3. Same.
    Certiorari is not a flexible remedy, nor is it adequate to raise or dispose of questions of fact relating to such legislative action.
    4. Same — Practice.
    The allowance of the writ by a circuit court commissioner is not conclusive on this court, which may at any time consider and determine the propriety of the allowance and dismiss the proceeding, if the writ was improvidently granted.
    Certiorari by the Greenville Gas, Electric Light, Power & Fuel Company to the city of Greenville to determine the validity of a municipal ordinance.
    Submitted March 2, 1911.
    (Docket No. 127.)
    Writ quashed March 13, 1911.

      N. O. Griswold, for relator.

      E. J. Bowman (Kleinhans & Knappen, of counsel), for respondent.
   Stone, J.

The petition for the common-law writ of certiorari in this case shows that petitioner is a corporation organized and existing under and by virtue of the laws of this State (section 7141, 2 Comp. Laws), and was incorporated upon January 31, 1903, since which time it has been in business in the city of Greenville, and states its object and purpose as stated in its articles of association. It also sets forth that the city of Greenville is a municipal corporation organized and existing under and by virtue of Act No. 215, Pub. Acts 1895 (1 Comp. Laws, § 2956 et seq.), and has the municipal powers, rights, and privileges conferred by said act, and the amendments thereto, and none other. The- petitioner represents that immediately after its organization as a corporation it obtained by purchase a plant for the manufacture and generation of electricity in the city of Greenville, together with the poles and lines of wire extending'from such plant through, along, and across the streets of said city, and has been the owner of said plant ever since, and has a large and lucrative business in generating electricity, and conveying the same along said line of poles and wires above, over and across the streets of said city, to the business and residence portions thereof, and selling the same to the inhabitants of said city, for the purposes of light, heat, and power. It is further represented that the city of Greenville, acting through and by its common council, had on April 5,1904, passed an ordinance giving and granting permission and authority to the petitioner to maintain its lines of poles, wires, and other appurtenances as then located in said city, and to extend the same for the purpose of furnishing the public with electric lights, and that the terms of said ordinance had been consented to by the petitioner; that its poles and wires were located in Lafayette street in said city between Benton street on the south, and Flat river on the north.

It further appears: That the common council of the said city, at a regular meeting thereof, held July 25, 1910, enacted and adopted an ordinance entitled—

“An ordinance to prohibit the placing or maintaining of poles and overhead wires and cables, for telegraph, telephone, electric light, electric power and other purposes in certain portions of Lafayette street in the city of Green-ville ; to prescribe the manner and regulate the placing, and maintenance of such poles, wires and cables upon such streets, and the other streets and public grounds of the said city of Greenville”—

Which ordinance took effect on August 15,1910. That by section 1 of said ordinance petitioner is forbidden to rebuild, alter, erect, or maintain any poles or other erections designed or used in supporting or carrying electric or other overhead wires or cables, and it is forbidden by said ordinance to alter, erect, or maintain any overhead wires or cables designed or used to convey or carry any current of electricity along that portion of Lafayette street lying between Benton street and Flat river. That on August 15, 1910, the said common council of said city held a meeting, and there adopted a resolution, by the terms of which said petitioner was required to remove the poles and overhead wires from said Lafayette street, between Benton street and Flat river, on or before August 30, 1910; that on August 17, 1910, the said city caused to be served upon petitioner a notice of such resolution, and that it was required to remove its poles and overhead wires on said Lafayette street between Benton Street and Flat river, on or before August 30,1910, for the reason that the maintenance of said poles and overhead wires was in violation of said ordinance of July 25, 1910, and for the further reason that said overhead wires were dangerous, and a menace to life and property, and for the further reason that said poles and overhead wires were an obstruction to said street, preventing the proper paving thereof, and that said poles and overhead wires interfered with the proper protection by the fire department of the property located in said district, and the further reason that said poles and overhead wires were unsightly, a public nuisance, and were located in said street, and maintained thereon without authority or franchise from said city.

The petition alleges that said ordinance of July 25, 1910, is void:

(1) Because it attempts to deny to petitioner the right to maintain its poles and wires within the limits aforesaid, which right is guaranteed to it by the statutes of this State.

(2) Because the said ordinance is void for the reason that said city had no power or authority under its organic act, and the amendments thereto, to enact such an ordinance.

The writ of certiorari was allowed by a circuit court commissioner of Montcalm county.

The answer of the respondent admits the proceedings, and the adoption of the ordinances substantially as alleged in the petition, but denies that the said ordinance of July 25, 1910, is void for any reason, and it claims that said ordinance is within the legal power and rights of said city, as granted by the legislature, and that the same is an exercise of a reasonable police power by the common council over the use of the streets for the general welfare of -the city, and seaiVes only to protect the rights of the public in the premises, and is not subject to any of the objections claimed by petitioner.

It will be seen that the question sought to be raised is an important one, and it may be stated as follows: Was the action of the city in adopting the ordinance of July 25, 1910, and the subsequent proceedings taken by the city thereunder, requiring the removal of the petitioner’s poles and wires from a certain-portion of Lafayette street, a valid exercise of the police power of the city, in view of the previous ordinance? At the outset we are confronted with the question whether this matter can be properly disposed of on certiorari. We have here the action of a legislative body, to wit, a common council claiming to act within its powers, seeking to take action . which the petitioner claims will deprive it of its contract rights. It seems very clear to us that the action of the respondent which is complained of, was neither judicial nor quasi judicial action, but legislative in its character. The doctrine seems to be established that the office of a writ of certiorari is to bring to a superior court for review the record and proceedings of an inferior court, officer, or tribunal exercising judicial or quasi judicial functions, to the end that the validity of the proceedings may be determined, excess of jurisdiction restrained, and errors, if any, corrected.

It necessarily follows that the writ will not lie to review acts which were not done in the exercise of judicial power or authority, but were merely ministerial, executive, or legislative in their character. Root v. Barnes, 1 Mich. 37; People v. The Governor, 29 Mich. 320 (18 Am. Rep. 89); People v. Board of Supervisors, 38 Mich. 642; Board of Supervisors of Midland County v. Auditor General, 27 Mich. 165; Merrick v. Township Board, 41 Mich. 630 (2 N. W. 922); Ayres v. Board of State Auditors, 42 Mich. 422, 427 (4 N. W. 274); Gager v. Board of Supervisors, 47 Mich. 167 (10 N. W. 186). See, also, 6 Cyc. pp. 750-753, and the many cases cited in the notes.

Again, certiorari is not a flexible remedy, and is inadequate to either raise or dispose of the questions of fact involved in such a situation as is here presented.

The allowance of the writ by a proper officer is not final and conclusive upon the court, which may at any time consider and determine the propriety of the allowance, and dismiss the proceeding if the writ was improvidently allowed. In re Lantis, 9 Mich. 324 (80 Am. Dec. 85); Farrell v. Taylor, 12 Mich. 114.

For the reasons stated, the writ must be quashed, with costs, as improvidently issued, but without prejudice to the right of petitioner to invoke an adequate remedy.

Ostrander, C. J., and Hooker, Brooke, and Blair, JJ., concurred.