text:
    PEOPLE v. BARNES.
    1. Criminal Law — Evidence — Speed — Automobiles — Expert or Opinion Evidence — Judgment as to Speed.
    Upon the trial of a respondent charged with negligently killing a young girl by colliding with her in operating an automobile on a public highway at an excessive rate of speed, the trial court erred in admitting the testimony of an eyewitness that the average speed before reaching a point 50 or 60 feet behind the decedent from a place about a mile distant was 30 miles an hour; the court taking judicial notice of the fact that a competent chauffeur, as the respondent was shown to- be, would be able to change the speed at different points.

    2. Same — Homicide — Criminal Negligence — Manslaughter — Motor Vehicle Law — Evidence.
    It was also incompetent to introduce testimony showing the .rate of speed of an automobile that was like the car which respondent was driving, more than a mile and a half away from the place of accident, the identification by such witness being incomplete; as the point at which the observation was made was too remote from the place of accident.
    3. Same — Trial—Charge.
    The trial court in its charge to the jury should not have eliminated the questions of proximate cause and the negligence of decedent by instructing the jury that if at the time the accused ran upon the deceased he was operating his car in excess of ten miles an hour he was guilty of manslaughter: respondent was, also, entitled to have the jury consider the question whether he was aware that he was doing the alleged unlawful act, as bearing upon the charge of gross negligence.
    4. Same — Motor Vehicle Law.
    Although a wilful violation of the statute might constitute negligence, it does not follow that such negligence would, under the circumstances of each case, amount to manslaughter.
    5. Same — Proximate Cause — Contributory Negligence.
    The questions for the jury to determine were whether the act of the respondent in driving at an excessive rate of speed was the proximate cause of the death of decedent: and whether respondent was responsible under the law whether her failure to use due care contributed or not to • her injury.
    6. Same — Excessive Speed.
    It must be made to appear in such a proceeding that the homicide was the natural and necessary result of the unlawful act; that death ensued because of, and as a direct and natural result of, the recklessness or gross negligence of the respondent.
    7. Same — Negligence—Manslaughter.
    Not every degree of carelessness or negligence renders a party guilty of manslaughter; the case may be one of mere misadventure; to warrant a conviction, there must have been gross negligence, which is criminal and, within certain limits, supplies the place of affirmative criminal intent.

    Exceptions before sentence from Ingham; Wiest, J.
    Submitted April 28, 1914.
    (Docket No. 165.)
    Decided July 25, 1914.
    William G. Barnes was convicted of manslaughter.
    Reversed.

      Grant Fellows, Attorney General, and Charles H. Hayden, Prosecuting Attorney (L. B. McArthur, of counsel), for the people.

      L. B. Gardner and Frank L. Dodge, for respondent.

       On the question of evidence as to speed of automobile,' see note in 34 L. R. A. (N. S.) 778.

       As to homicide by negligent operation of automobile, see notes in 30 L. R. A. (N. S.) 458 and 33 L. R. A. (N. S.) 403.

   Stone, J.

The respondent was charged with, and was convicted of, the crime of manslaughter. It is alleged and claimed by the people that about 2 o’clock p. m., on May 27, 1911, while driving an automobile in the township of Lansing, on Michigan avenue east, the same being a public highway and thoroughfare, and while going east toward the Agricultural college, and when in front of what is known as the Baker house, the respondent carelessly, recklessly, negligently, wantonly, wilfully, and feloniously operated said automobile at an excessive, reckless, and dangerous rate of speed, to wit, 20 miles an hour; that he then and there carelessly, recklessly, wantonly, wilfully, and feloniously neglected and failed to keep a necessary and proper lookout for pedestrians upon said public highway, and did then and there carelessly, recklessly, wantonly, wilfully, and feloniously neglect to sound his horn, or to give other necessary and proper warning of the approach of said automobile, and did then and there in the manner aforesaid neglect and fail to keep and have said automobile within his proper management and control, and, as a result of operating said automobile in the manner aforesaid, respondent did then and there operate and drive said automobile against, upon, and over one Mary Robb, a young woman of the age of 16 years and upwards, and did inflict upon the body of said Mary Robb such injuries as produced her immediate death, concluding in the technical language of the statute that the respondent thereby wilfully and unlawfully did kill and slay the said Mary Robb.

The evidence on the part of the people upon the trial tended to show that the respondent and another young man, a friend of his, started to go upon said avenue to the Agricultural college, the respondent operating an Oakland '30 horse power roadster automobile, painted red; that while on their way they stopped near the Union depot, in the city of Lansing, and purchased two cigars, and then continued their journey east. The rate of speed at which the respondent drove is in dispute. On the part of the people there was evidence tending to show that from a mile and a half west of where the accident occurred to within a few rods of the place of the accident the automobile was being driven by the respondent at a rate of speed of from 30 to 40 miles an hour; that after it struck or ran over the girl he was running from 17 to 20 miles an hour. It is undisputed that, as they went down the small hill near the race track east of the city limits, they saw Mary Robb and a younger companion going east in the wrought portion of the highway; the highway being about 30 feet wide. There was evidence tending to show that the respondent sounded the horn while going down the hill and again when within 50 or 60 feet of the girls. The respondent himself testified that, until they approached within 50 or 60 feet of the girls, they did not at any time in their speed exceed 15 to 18 miles an hour. The respondent upon his direct examination testified as follows:

“From the time that we left the cigar store until we came to the hill near the race track, we drove the car from 15 not to exceed 18 miles an hour. The highway on Michigan avenue east is 27 to 30 feet wide. I saw the two girls ahead of us. I do not remember of my attention being called to them; I remember that I saw them just after going over the race track hill. Do not remember sounding my horn back at the race track; the girls were a little south of the wrought portion of the road. They had parasols with them. I was then coming down about the center of the road on the macadam part of the road. In the highway from the city limits out to the Baker home, there was most of the way ruts, varying in depth, where automobiles had run along.
“Q. Did you, before the girl was struck, sound your horn?
“A. Yes, sir.
“Q. Within about how many feet, in your best judgment, was it that you sounded the horn?
“A. Fifty or sixty feet; it might have been further than that. At about the time I sounded the horn I started to turn to the north from center of the highway. The girls were a little to the south of the center of the highway. I sounded my horn when I started to bear out to the north; I was going probably 15 miles an hour, not to exceed 18. I reduced the speed after that; I did not exceed the speed of 15 or 18 miles an hour from the time I saw the girls up toward the hill to the point where I began to turn out to the north. The girls went a little to the north; took a couple of steps to the north; I got within a few feet of them, and the Robb girl got in front of the machine. At that I turned as far to the north as I could; I did not have time to stop. I thought I could miss her by turning the car; I turned as far to the north as I could, and the fender struck her and brushed her down. The Robb girl that was injured was on the south side of the two girls, or on the right-hand side in the direction that they were going; the; Taylor girl was on the left or north side. The girls were walking along to the east about as close as they could walk comfortably, side by side. The girls started to the north shortly after I blew the horn; they both turned around. When they started to the north, I would estimate the distance to be 25 or 30 feet that the machine was west of the girls. I did reduce the speed from the point that I was beginning to bear out from the north.
“Q. Was there any doubt in your mind at that time that you would be able to pass the girls safely?
“A. Not a bit. I had plenty of room to pass them; I expected to pass them all right.
“Q. Now what rate of speed did you reduce that machine before you struck the Robb girl?
“A. I reduced it to 8 or 10 miles an hour, not to exceed 10 miles an hour.
“Q. Not to exceed 10 miles an hour?
“A. No, sir; when the Robb girl darted to the north, the Taylor girl went to the south. I did not have time enough to reach over and catch the lever and draw it back and put on the emergency brake. I think the car would have reached the girl, had I attempted that, before I could have applied that brake. I stated that I started to bear out to the north as I approached these girls about 50- or 60 feet west of them. I reduced the speed of my automobile from where the girls were, a distance back of about 30 or 40 feet, to 8 or 10 miles an hour; after I blew the horn I turned the car to the left, to the north of the road, threw out the clutch, put the brake on, slackened the speed of the car down to 8 or 10 miles an hour, and expected to pass the girls all right. I had plenty of room. I got within a few feet of them; the Taylor girl went to the south, and the Robb girl started to the north. I did not have time then to stop the car, so I turned as far as I could; that would be to the north. * * * There was not the slightest warning at all given on the part of the Robb girl before she darted out in front of our car. I expected to pass them all right; I had plenty of room.”

On cross-examination the respondent testified as follows:

“I saw those girls after I broke over the hill, with their umbrellas up, going to the east. They were close to a half mile ahead of me, I guess. There was no obstruction, a clear view. My car at that time was in perfect condition; that is, I had power to control it. At the place of the accident the traveled portion of the road was about 30 feet. My automobile was 6 feet over all. * * *
“Q. You were directly back of the girls when you blew your horn?
“A. Yes, sir; I would say about 50 or 60 feet as near as I can remember it. I did not think that they would get out of the highway; no, sir. I thought they would stay where they were. I had plenty of room to pass them to the left. It was right and proper I should turn to the left to go by them. * * *
“Q. You say that you supposed that they knew you were going to pass them?
“A. I should say, I blew the horn to warn them I was going to pass them.
“Q. Isn’t this true that when you blew your horn you didn’t intend to pass?
“A. I certainly did intend to.
“Q. Didn’t you blow your horn for them to get out of the highway?
“A. No, sir; I didn’t. I blew my horn to attract their attention to let them know I was coming. I was directly back of them, and they were in front of me, when I blew the horn. They were a little to the south of the center of the highway. I might have got by them on the south side. There were three tracks there. When I blew the horn the girls looked around. I started to turn out about the same time I blew the horn. When I blew the horn the girls looked around; they took a couple of steps east, then started toward the north of the road a couple of steps, then they stopped. I supposed they were going to stand there, and then I had room to pass them. I got up within a few feet of them; the Taylor girl went to the south of the road,_ and the Robb girl got right out in front of the machine, and I did not have time to stop. The only thing I could do was to turn to the left. Going at the rate of 18 miles an hour, I could have stopped my machine on that day in 25 or 30 feet, I should say. From the time I sounded my horn I could have stopped, if it had been necessary. I did not attempt to stop. I had plenty of room to pass them. At the time I saw these girls ahead of me 50 or 60 feet away, I could have stopped my machine in 25 or 30 feet; the reason I didn’t do it was that I had plenty of room to pass the girls. I expected to pass them all right, and I turned out for the purpose of passing the girls. When the girls took the couple of steps to the east they did it quickly. I did not think they were excited. The Robb girl started and ran from the center of the beaten track to where I struck her. I don’t think it was 12 feet from where she started to where I struck her. The Robb girl was a little to the right or south of the center of the highway when I blew my horn. She had not gotten out of- the beaten track when I struck her.”

William H. Peavey, the companion of the respondent at the time of the accident, was sworn as a witness for the people. He testified, in substance, that when they were going down the hill near the race track, they saw the two girls in the road ahead of them; that witness remarked to the respondent, who was driving the car, that there was somebody ahead of them; that, while respondent made no reply, he blew the horn pretty close to that time. The following occurred upon his direct examination:

“I remember of hearing the horn sounded again before the girl was struck; it was a point I should judge 50 feet from the girls, as near as my recollection, I would say so. The last time was one long, straight blast of the horn, as near as I can remember. When this last sound was given, the girls, I think, looked around, after we saw the girls from the hill. Mr. Barnes slackened the speed of the auto; he slackened the speed, it seems to me, just previous to or before he sounded his horn the last time. I have a judgment as to the speed of the auto at the time the horn was sounded the last time previous to his slackening the speed; I should say not over 20 or 25 miles an hour we were going.
“Q. Mr. Peavey, what would you say was the speed of that automobile? Give your best judgment, if you have any, on the subject as to the average speed of that auto from the time you left or after Mr. Barnes purchased the cigars up to the time he slackened the speed when within about 50 feet of the girls as you say.
“Respondent’s Counsel: That is objected.to as incompetent and immaterial, the average speed.
“Prosecuting Attorney: I submit that it is very-material.
“Respondent’s Counsel: We would like to assign the further reason that the distance back would be too remote; it being over a mile away from the scene of the accident.
“The Court: He may answer. (An exception.)
“A. I don’t know; as near as I could tell 80 miles an hour.”

Walter S. Foster was called as a witness for the people and testified:

“I live at 1110 Michigan avenue east, Lansing. Have a laundry out there. It is six or eight blocks west of the east end of the pavement [Bingham street intersection], I remember the day of the accident. I was on my porch painting the floor in the afternoon. I saw a red automobile go by that afternoon. I did not know Mr. Barnes at that time. I do not remember of seeing more than one red automobile. It was 5 minutes after 2 by my watch when I finished painting. It was a red automobile, with a black top; there were two persons in it. Have lived on Michigan avenue for three years; have noticed the operation of automobiles and other moving objects, such as horses and vehicles and horse racing. Have rode in automobiles; had occasion to observe how fast they were going while riding in them by looking at the speedometer.
“Q. Tell the jury, in your own opinion, what speed the car was running when it went by.
“Respondent’s Counsel: I object to that as incompetent, having no tendency to show the rate of speed at the time this automobile met with this accident. It has no tendency to show any issue in this case. It is at least a mile and a quarter — I think it would be conceded to be more than that — from the scene of the accident.
“Counsel for the People: We will not concede that.
“Respondent’s Counsel: Suppose this was the car in question, and he undertook to show that necessarily it was placed within that point and the scene of the accident; it was going 5 or 10 miles an hour; it would have no bearing on the speed of the car the speed the car might be going at the time of the accident.
“The Court: Standing alone, this testimony would not be admissible; but in connection with the other testimony given I think it is for the consideration of the jury, and I will take occasion later on to explain to the jury the limit to be given this testimony. (Exception by respondent’s counsel.)
“A. Forty miles an hour.”

As a witness for the respondent, the county surveyor testified to some actual measurements made by him which appear to be uncontradicted. Among other things he testified:

“From the Baker driveway to Bingham street as it intersects Michigan avenue, it is about 20 rods more than a mile and a half, or a mile and 180 rods. * * * From the end of the pavement to the Baker house is 35 rods less than a mile. * * * Standing in the highway, you can see west from the Baker home a little over a half mile.”

In its charge the trial court called the attention of the jury to the following provisions of the statute relating to the operation of motor vehicles upon public highways:

“No person shall operate a motor vehicle upon a public highway at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of the highway, or so as to endanger the life or limb of any person or the safety of any property. * * * Upon approaching a person walking in the roadway of a public highway, * * * a person operating a motor vehicle shall slow down to a speed not exceeding ten miles an hour and give reasonable warning of its approach, and use every reasonable precaution to insure the safety of such person.”

In charging the jury, the trial court used the following language:

“Was the automobile driven by respondent up to the person of Mary Robb at a speed in excess of 10 miles an hour? If so, it was an unlawful act on respondent’s part, and, if in doing so he killed Mary Robb, the act was manslaughter. * * *
_ “When respondent approached the two girls in the highway, was he driving the automobile at an unlawful and prohibited speed; that is, did he drive at a speed exceeding 10 miles per hour up to the time the automobile struck Mary Robb? If so, then he may be found guilty of manslaughter, even though he made the best endeavor possible under such speed to avert the accident, and even though Mary Robb, in bewilderment, or heedlessness, or carelessness, ran in front of the automobile; for in such event he was doing an unlawful act in violating the speed regulation, and the law will not excuse him from the consequences for his unlawful behavior, on the ground that Mary Robb, in the excitement of the occasion, did not act with proper judgment.”

Upon the conviction of the respondent of the crime of manslaughter, he has brought the case here for review upon exceptions before sentence.

There are numerous assignments of error, many of which we shall not speak of specifically, and it may be said that some of them are without merit.

The fifth assignment of error is to the effect that the court erred in permitting the witness Peavey to testify as to the average rate of speed of the automobile operated by the respondent from the time they purchased the cigars up to the time he slackened the speed when within about 50 feet of the girls in the highway.

By the eighteenth assignment of error it is claimed that the court erred in permitting the witness Foster to testify as to the speed of an automobile when it went by his place, at or near the intersection of Bingham street.

Error is also assigned upon that portion of the charge above quoted.

1. In our opinion it was prejudicial error to permit the witness Peavey to testify as to his judgment of the average speed of the automobile from the place where the respondent purchased the cigars near the Union depot until he slackened the speed when within about 50 or 60 feet of the girls in the highway. It is common knowledge, and we will take notice of the fact, that a competent chauffeur, as it is uncontradicted the respondent was, would so be able to control and change the speed of an automobile at different points in the space covered that it would, in our judgment, be no aid to, or criterion for, the jury to know what the average speed of the automobile was upon this occasion.

2. We are of opinion that the testimony of the witness Foster as to the rate of speed of the automobile which he saw driven upon the day in question at a point six or eight blocks west of the east end of the pavement, over a mile and a half away, was too remote and vague to identify the automobile in question, and too immaterial to be submitted to a jury in the trial of a criminal case. In our opinion it was prejudicial error. It is true that the court in its charge called the attention of the jury to the use which might be made of such testimony. That language was as follows:

“Some witnesses to the speed of the car, at a distance from the place of the accident, did not undertake to identify respondent as the driver, and it now rests for you to determine from all the evidence whether the automobile such witnesses described, and upon the speed of which they have given their judgment, was the automobile driven by'respondent on the journey upon which the accident happened. If it was the automobile driven by the respondent on the way to the place, and on the journey during which the accident happened, then such testimony may be considered within the purpose I shall point out. The speed of the automobile cannot be reproduced or described to you as it appeared to the witnesses except by an expression of its speed in miles per hour. The weight to be given such testimony rests with you, and you should have in mind the opportunity or lack of opportunity, if any, a witness had for forming a fairly reliable judgment of such speed so witnessed. And you should remember that such estimates of speed are no more than opinions, and not even claimed to be absolutely correct, and cannot in the nature of things be exact; and it rests for you to judge what weight you will give the same. The speed of the automobile before it made its approach near enough to Mary Robb to call upon the driver to reduce its speed to that of not to exceed 10 miles an hour has no bearing upon the issues before you, except as it may or may not show a recklessness and wantonness in respondent on that trip and continued up to, and explanatory of, the accident.”

Aside from the time when the witness Foster testified that he saw an automobile pass his house, there was nothing tending to show the identity, except that the car about which he testified was a red automobile, with a black top, and that there were two persons in the car. In a much .traveled public street like the one in question, we think it unsafe to leave to a jury testimony of this nature. The rate of speed testified to by the witness Foster at this point was a high rate of speed of 40 miles an hour. Not only was it remote in point of distance from the place of the, accident, but it was so vague and indefinite as to identity that it sent the jury into the field of speculation as to whether the car which Foster saw was the respondent’s car or not. The minds of the jury may have never met upon this question. Some jurors may have believed it to have been respondent’s car, and others not. In our opinion the receiving of such evidence was prejudicial error.

3. This brings us to the charge of the court, and presents the most important question which we have to consider in the case. The court seems to have submitted here to the jury the bald proposition that if, at the time the respondent struck the deceased, he was operating his car in excess of 10 miles an hour, he was guilty of manslaughter, for there is no doubt that the respondent’s car did strike or run over the deceased and cause her death. In our opinion this eliminated from the case all question of the proximate cause of the death of Mary Robb, and also eliminated the question as to her conduct or action on the occasion. As the court well instructed the jury, the rate of speed at which the car was being operated at any point was matter of opinion or judgment. We have here the positive testimony of the respondent that he was not running at the time to exceed 8 or 10 miles an hour. From aught that appears in this record, the injury might have occurred just the same if the respondent had been running 9 miles an hour as it would were he running 11 miles an hour. The charge eliminates from the case all question of whether the respondent, in good faith, believed he was running within the statutory limit, and makes a mistake of judgment on the part of respondent amount to a crime. While it is not the law that, in order to convict the respondent, it must be made to appear that he knowingly violated the statute, because he is bound to know the law, yet there is authority to the effect that he must have been aware, in order to be convicted, that he was doing the unlawful act complained of. We know of no case that goes so far as did the charge of the court upon this subject. People v. Fitzsimmons (Sess.), 34 N. Y. Supp. 1102; State v. Jackson, 103 Iowa, 702 (73 N. W. 467).

In the last-cited case it was held that there must have been the intention to do an unlawful act, and that such act resulted in the homicide.

The mere running of an automobile upon the public highway is not of itself unlawful. Can the mere fact that the jury found that the respondent exceeded the legal limit of 10 miles an hour at this particular point be of itself, independent of other facts connected with it, sufficient to warrant a conviction? We think the better doctrine is that the question of the speed of the automobile should have been submitted to the jury, in connection with other facts, as bearing upon the question whether he was guilty of gross negligence in the manner in which he ran the automobile.

This, court held, in the case of Zoltovski v. Gzella, 159 Mich. 620 (124 N. W. 527, 26 L. R. A. [N. S.] 435, 134 Am. St. Rep. 752), that the absence of a light on an automobile, in violation of the statute, was evidence tending to prove negligence; and it has been held in other courts that a failure to display headlights or sound a horn, as required by statute or ordinance, or both, constitutes negligence. Ballard v. Collins, 63 Wash. 493 (115 Pac. 1050).

While it might be said that the wilful violation of this statute would constitute negligence, it does not follow that such negligence would in a given case amount to gross negligence or manslaughter, under the circumstances of the case.

It was held by the supreme court of Nebraska in Schultz v. State, 89 Neb. 34 (130 N. W. 972, 33 L. R. A. [N. S.] 403, Ann. Cas. 1912C, 495), that one who drove an automobile wilfully, recklessly, carelessly, and negligently, and at a rate of speed forbidden by the statute, upon the public streets or highways of that State, and thereby caused the death of another, was guilty of criminal homicide. In that case, as here, the trial court called the jury’s attention to the statute, and the supreme court said, in commenting upon that charge, as follows:

“It will be observed that this case is not prosecuted solely for a violation of the speed limit fixed by the statute, but is based in fact on the negligent, reckless, careless, and dangerous driving of his automobile by the defendant. In a recent case in Connecticut the defendant was found guilty of manslaughter in negligently and recklessly driving his automobile over a man named Morgan. In that case the court took occasion to read to the jury the automobile act of that State, which is quite similar to the statutes of Nebraska regulating the use of automobiles on public streets 'and highways. It was claimed that it was error to read those statutes and apply them in that case; but the supreme court of Connecticut found no error in the instruction. It was there said:
“ ‘One who wilfully drives an automobile in a public street of this State at a rate of speed or in a manner expressly forbidden by statute, and thereby causes the death of another, or one who, with reckless disregard for the safety of others, so negligently drives an automobile in a public street as to cause the death of another, is guilty of criminal homicide.’ State v. Campbell, 82 Conn. 671 [74 Atl. 927, 135 Am. St. Rep. 293, 18 Ann. Cas. 236].”

There seems to be no conflict in the decisions where the respondent is violating some statute, and where his manner is negligent and careless; the courts in such cases uniformly hold that he is guilty of manslaughter, if the death of some other person is the result.

Did the fact, if it be a fact, that respondent, at the time his automobile struck Mary Robb, was driving his automobile more than 10 miles an hour thereby cause her death? In other words, might not the death have occurred had the automobile been driven at 9 miles an hour? Did the unlawful rate of speed cause her death? We shall split no hairs as to whether the unlawful act to warrant a conviction of manslaughter must be one that is malum in se, as distinguished from malum prohibitum. Many courts do not recognize any distinction where the unlawful act is in its nature dangerous to human life, or where the unlawful act manifests an evil nature or wrongful disposition to harm or injure another in his person or property. See note to State v. Horton, 139 N. C. 588 (51 S. E. 945, 1 L. R. A. [N. S.] 991, 111 Am. St. Rep. 818), found in 4 Am. & Eng. Ann. Cas. 800.

In the Campbell Case the court said:

“The rule of law concerning contributory negligence by the injured person, as a defense in civil actions for damages for personal injuries, had no application to this case. The State was required to prove the alleged unlawful act of the accused and its consequences, but not that the deceased exercised due care to avoid the consequences of that unlawful act. The court did not, either by its refusal to charge as thus requested, or by the language used, give the jury to understand, as the defendant claims it did, that the conduct of the deceased was eliminated from the case. The court properly said to the jury that the State must clearly show that the deceased’s death was the direct result of the defendant’s negligence, but that the injured man’s conduct became material only as it bore upon the question of such negligence-of the accused, and that if the culpable negligence of the accused was the cause of Mr. Morgan’s death, the accused was responsible under the criminal law, whether Mr. Morgan’s failure to use due care contributed to his injury or not.”

So we say here that, while the claimed contributory negligence of Mary Robb is no defense in this case, yet it does not follow that her conduct should be eliminated from the case; it should be considered as bearing upon the claimed culpable negligence of the respondent, and the question should all the time be: Was respondent responsible under the law, whether Mary Robb’s failure to use due care contributed to her injury or not?

Eliminating the questions of recklessness and gross carelessness from the case, would it be claimed here that, because respondent was by one mile per hour exceeding the legal speed limit,- he would be responsible for the death of Mary Robb, if in her excitement and confusion she jumped in front of the car at a time when it was physically impossible for the respondent to stop it before inflicting the injury? Would the. mere fact that a car was being operated slightly in excess of the legal speed limit make a respondent guilty of manslaughter if a person wilfully threw himself in front of the car and received injury? To ask these questions is to answer them in the negative. On the other hand, if this respondent were operating his car at the rate of 9 or 9% miles an hour carelessly and negligently, and should by reason of gross negligence run .over a little child sitting in the street, killing it, nobody would expect that he would be excused for his unlawful act. He could not claim that, because he was not violating the speed limit, he was not guilty of wilful and gross misconduct in causing the death of such child.

Did the death of Mary Robb occur as a direct and natural result of the exceeding of the speed limit by the respondent? In most of the cases cited, where it has been held that one who caused the death of another, while engaged in an unlawful act, was guilty of manslaughter, it appeared that the death resulted as the natural, direct, and necessary result of the unlawful act as, where one unlawfully assaults another and knocks him down, and, he falling upon some object, breaks his neck, the result is the natural, direct, and .necessary result of the unlawful act; so it is in the cases of the careless use of firearms, where the unlawful act itself was wilfully performed, and was the natural forerunner of the resulting injury. The cases cited by the prosecution all bear out this proposition. The case of the unlawful administering of drugs is another instance of the application of the doctrine referred to. On the other hand, attention is called to the case of People v. Rockwell, 39 Mich. 503, where a person was convicted of manslaughter for killing one Wilber; the respondent was shown to have struck Wilber with his fist and knocked him down. It was not shown directly how Wilber was killed; but it appeared. distinctly that the blow did not kill him. The facts indicated that Rockwell kicked him after he fell, or else he was killed by a horse trampling on him. This court, upon reversing the conviction on the charge of the lower court which was unqualified, that if the blow was not justifiable, and Wilber so fell that the horse jumped and struck Wilber and killed him with his feet, or kicking him, respondent was guilty, said:

“It is impossible to maintain such a charge without making every one liable not only for natural and probable consequences, but for all possible consequences and circumstances which immediately follow a wrongful act. There was no necessary connection between the act of respondent and the conduct of the horse, which he cannot be said from the record to have been responsible for. And the case was not even put as permissive. The liability was laid down as positive. The conviction cannot be maintained.”

So we say here, the charge of the court eliminated all necessary connection between the speed of the car and the death of Mary Robb.

In the case of Potter v. State, 162 Ind. 213 (70 N. E. 129, 64 L. R. A. 942, 102 Am. St. Rep. 198, 1 Am. & Eng. Ann. Cas. 32), it was held that the death of one of the participants in a friendly scuffle through the accidental discharge of a pistol carried in the pocket of the other, contrary to the provisions of the statute, could not be said to be caused by the performance of a wrongful act, so as to render the one carrying the pistol guilty of manslaughter, under the provision of the statute that whoever unlawfully kills a human being in the commission of some unlawful act is guilty of that crime. The court there said:

“It is undoubtedly true, as a general rule of law, that a person engaged in the commission of an unlawful act is legally responsible for all of the consequences which may naturally or necessarily flow or result from such unlawful act. But before this principle of law can have any application under the facts in the case at bar, it must appear that the homicide was the natural or necessary result of the act of appellant in carrying the revolver in violation of the statute. * * *
“With equal reason and force it may be asserted that the mere fact that the accused was unlawfully carrying the weapon in question at the time it was accidentally discharged is not, under the circumstances, a material element in the case, for it is manifest that such unlawful act did not, during the scuffle between the parties, render the pistol any more liable to be discharged than though the carrying thereof had been lawful.”

It was held in this State, in the case of People v. Abbott, 116 Mich. 263 (74 N. W. 529), that a person who, while doing or attempting to do an unlawful act, dangerous to human life, accidentally kills another is guilty of manslaughter at least, even though the act was not unlawful at common law. So held where the death of a woman pregnant, but not with a quick child, resulted from an attempt to procure a miscarriage by means of instruments, made punishable as a misdemeanor by statute.

We think there is a clear distinction in principle between that case and the instant case.

In this case, in order to warrant the conviction of the respondent, it should have clearly appeared that Mary Robb’s death ensued as a direct and natural result of the reckless or gross negligence of the respondent. The crime sought to be proven was involuntary homicide, caused by culpable negligence, and, to make an act carelessly performed resulting in death a criminal one, the carelessness must have been gross, implying an indifference to consequences; and the term “gross negligence” means something more than mere negligence. It means wantonness and disregard of the consequences which may ensue, and indifference to the rights of others that is equivalent to a criminal intent.

Not every degree of carelessness or negligence, if death ensues, renders the party guilty of manslaughter. The case may be one of mere misadventure. To warrant conviction, it must be gross negligence. It has been well said that there is little distinction, except in degree, between a will to' do a wrongful thing and an indifference whether it be done or not. Therefore gross negligence is criminal, and within limits supplies the place of affirmative criminal intent.

An unavoidable crime is a contradiction. Whatever is unavoidable is no crime. As in the law of civil wrongs, so in the criminal law, to render one answerable for an offense, it must result from his act as an effect not too remote but sufficiently proximate thereto.

To warrant a conviction of manslaughter, the conduct of the accused must have been the proximate cause of death, and must have been characterized by such a degree of culpable negligence as to amount to gross negligence; and that is a question for the jury.

The ultimate inquiry should be: Was the respondent criminally negligent, and, if so, did his criminal negligence cause the death of the deceased? State v. Goetz, 83 Conn. 437 (76 Atl. 1000, 30 L. R. A. [N. S.] 458).

We are of opinion that there was reversible error in the charge.

We have examined, but- shall not discuss, the other assignments of error. Many of the questions discussed by counsel will not probably arise upon another trial in view of what we have said, and some of them are without merit. For the errors pointed out, the conviction must be set aside and reversed, and a new trial granted.

McAlvay, C. J., and Brooke, Kuhn, Bird, Moore, and Steere, JJ., concurred. Ostrander, J., did not sit.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    WOLVERINE FARMS CO. v. DE YOUNG. EMERY v. DE YOUNG.
    Brokers — Appeal and Error — Contracts — Compensation — Vendor and Purchaser — Commissions.
    Evidence tending to show that plaintiff, a firm of brokers, agreed to effect an exchange of defendant’s stock of hardware and a store building for other property for a stated commission; that a contract of exchange was executed but never carried out, contradicted by the testimony of defendant that the commission was to be paid if the deal went through, but not otherwise, 7ield, to present a question of fact for the jury, as to the right to commissions; but both parties acquiescing in the statement of the trial court that it was agreed he should direct a verdict one way or the other, plaintiff could not complain or review a verdict directed against it.
    Error to Montcalm; Davis, J.
    Submitted April 24, 1914.
    (Docket No. 134.)
    Decided July 25, 1914.
    Assumpsit by John G. Emery and John L. Bailey, copartners as the Wolverine Farms Company, against Cornelius De Young for broker’s commissions. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Smedley, Linsey & Lillie, for appellant.

      L. C. Palmer, for appellee.
   Stone, J.

The plaintiffs, John G. Emery and John L. Bailey, copartners, doing a real estate business, at Grand Rapids, under the name of Wolverine Farms Company, brought this suit to recover from the defendant a commission of $200.

The declaration contains a special count and also the common counts in assumpsit. The plaintiffs claim to have acted as hiiddlemen in bringing together the defendant and one Stewart M. Rose, and that, by reason of the services of plaintiffs, the defendant and Rose came to an agreement and entered into a written contract in and by which said Rose agreed to trade a farm to the defendant in exchange for a stock of hardware and a store building owned by defendant.

The contract which the plaintiffs claim to have been instrumental in causing to be made was as follows:

“Crystal, Mich., Feb. 11, 1913.
“It is hereby agreed between Cornelius De Young of Crystal, Michigan, party of the first part, and Stewart M. Rose of Rockford, Michigan, party of the second part. Witnesseth: The party of the first part agrees to buy from the second party his farm in Cannon township containing 239 acres of land at $55.00 per acre. The party of the first part is to sell to the party of the second part all of his stock of hardware, implements, tools and store fixtures, at invoice price with freight and cartage added, damaged goods at actual value, stock to be inventoried at fair inventory, also hardware store building and land commencing at a point midway between the store and bank, thence west to the line, thence south and east to beginning. Consideration three thousand dollars. Exchange to be made by February 20th.
“Cornelius De Young.
“Stewart M. Rose.”

It is not claimed that either of the plaintiffs was present when the above contract was reduced to writing, but Mr. Bailey, one of the plaintiffs, had introduced the parties, and claims to have brought about the contract. The parties to the contract had exchanged visits, the properties had been examined, and the negotiations had resulted in the above contract of February 11, 1913. The contemplated inventory of stock was not made, and shortly after the date of the contract the defendant notified Mr. Bailey, one of the plaintiffs, that he would not. make the deal, and the trade fell through. Upon the subject of commissions due the plaintiffs, Mr. Bailey testified that at the first meeting of the parties to the contract, and as they were about to separate, he told defendant that plaintiffs’ commission would be 2A/% per cent, on the value of defendant’s sale, for him to pay, and that defendant said, “Welland that witness told Mr. Rose that he would have to pay 2% per cent, on the property he was selling. He further testified that Rose and defendant thought the above-named commission was too high, and that the last-named parties got together and agreed to pay plaintiffs $400; one-half to be paid by Rose and one-half by the defendant. On direct examination of Mr. Bailey the following testimony was given:

“The last commission I was asking was $400; $200 to be paid by each.
“Q. Now, do you know whether or not that was conveyed to Mr. De Young, that information?
“A. Yes, sir. He told me so himself.
“Q. To whom did you make the reduction in the first place?
“A. To Mr. Rose. I think that reduction was made the 12th of February. It was the day before Mr. Rose went up there the last time.
“Q. Now, what was the talk with Mr. De Young when you were to have the $400? When were you to have the $400?
“A. It was due when they came to an agreement to trade. I never received the $200. I made a demand on Mr. De Young for my commission. I sent him a registered letter. It is dated March 13, 1913. I never received a reply from Mr. De Young.
“Q. Did you have anything to do with fixing the price of the stock of hardware or the farm?
“A. No, sir.
“Q. Who was to make the arrangement of the prices, and so on?
“A. Mr. Rose made the price on his farm, and Mr. De Young made the price on his stock and store. It was to be an invoice price.
“Q. Did you have anything to do about making the price or attempting to get a good price for either party?
“A. No, sir.”

On cross-examination Mr. Bailey testified:

“Q. As a matter of fact, you did not understand you were entitled to any commission unless Rose and De Young made an absolute agreement to exchange their properties?
“A. Yes, sir.
“Q. You expected it anyway, whether they traded it or not? •
“A. We expected our commission when the parties agreed to trade, when we had done our part.”

Stewart M. Rose was called as a witness by the plaintiffs, and after testifying to the visits and examination of the properties, and referring to defendant’s visit to see the farm, he said:

“We had a talk about the commission. Mr. De Young thought it was too much, and I thought it was too much.
“Q. What was too much?
“A. Two and a half per cent.
“Q. To be paid by whom?
“A. Each of us, on the valuation of our property.
“Q. When was it to be paid?
“A. Nothing said about that just then.
“Q. Do you know?
“A. I supposed when I made the trade.
“Q. When you made the agreement?
“A. Yes, sir. We both agreed that it was too much.
“Q. Anything said about seeing Bailey and getting it reduced?
“A. Yes, I said I would go and see Mr. Bailey and get it reduced. De Young said, ‘All right.’ After-wards I saw Bailey. Mr. Bailey reduced it and agreed to take $400; each to pay one-half. After that I saw Mr. De Young. I saw him the day we signed the contract, February 11, 19Í3.
“Q. At that time was there any talk about the commission Mr. Bailey was to receive?
“A. I told De Young what Bailey said, and, if I understood him, he said, ‘All right.’ I told Mr. De Young Mr. Bailey would take $200 apiece. I think De Young said, ‘All right.’ That was before we made the contract. We had this talk in the store. * * *
“Q. Was the deal carried out and completed and the properties exchanged?
“A. It was not.
“Q. Why?
“A. I got a telephone from Mr. Bailey, and he said it was all off. I was ready and willing to carry out my part of it in every respect and exchange the properties. I was ready and willing to carry out, up to and including the 20th of February. I was able to carry out the deal.”

The plaintiffs called the defendant for cross-examination. After testifying as to the value of his stock and the reasons why the trade did not go through, and that he never paid plaintiffs any commissions, the following occurred:

“Q. You did not pay them 2% per cent, of the $16,000?
“A. I did not calculate I owed them.
“Q. You did not pay them $200 afterwards?
“A. I did not.
“Q. You knew that was what they were expecting, $200?
“A. That was not the agreement between Mr. Bailey and me., Bailey and I did not have any agreement.
“Q. Why did you say it was not the agreement made between you and Bailey?
“A. It was not the way he talked to me. I went over and visited the farm of Mr. Rose.
“Q. And you and Rose talked then that 2% per cent, was too much?
“A. Yes, sir.
“Q. And Mr. Rose said he would go and see Bailey?
“A. Yes, sir.
“Q. And when he came up there to-draw up the contract he informed you he had seen Bailey?
“A. He did.
“Q. And he informed you Bailey would take $400?
“A. Yes, sir.
“Q. And he informed you you were to pay one-half of it, and he one-half of it; that was satisfactory to you?
“A. Yes, if the deal went through.
“Q. And you never paid that $200?
“A. I did not.”

We have quoted enough of the testimony to show that the parties did not agree as to when the commission was to be paid, if at all; the plaintiffs claiming that it was to be paid when the agreement for an exchange of properties was made, and the defendant testifying that it was to be paid when “the deal went through,” and that it never went through. A question of fact was here presented for the jury. There was a conflict in the evidence also as to the reason why the trade did not go through. With the evidence in this condition, both parties claimed the right to a directed verdict. The court, after stating, in the presence of counsel, to which there was no objection, that “both parties ask for a direction of a verdict,” directed a verdict for the defendant, and accordingly a verdict and judgment were entered for the defendant.

The plaintiffs have brought the case here for review, and errors are assigned:

(1) That the court erred in refusing to grant plaintiffs’ motion to direct a verdict in their behalf.

(2) That the court erred in granting defendant’s motion to instruct the jury to render a verdict for defendant for the reason that plaintiffs had offered no testimony showing a legal liability on the part of defendant.

An examination of the record satisfies us that the court did not err in refusing to direct a verdict for the plaintiffs, and they are not in a position to complain because the court did not submit the case to the jury. We have held that where, at the close of the testimony in a case, each party claimed that a verdict should be directed in his favor, and the court said to the jury that it seemed to be agreed that it was the court’s duty to direct a verdict one way or the other, to which statement no exception was taken, the defeated party could not urge on appeal that there were questions of fact on which he was entitled to go to the jury. St. Mary’s Power Co. v. Water-Power Co., 133 Mich. 470-478 (95 N. W. 554); Peterson v. Mahon (N. D.), 145 N. W. 596.

This renders it unnecessary for us to consider the other questions discussed by counsel, as we find no error in relation to the admission of testimony.

The judgment of the circuit court is affirmed.

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


text:
    RICHARDSON v. DETROIT & MACKINAC RAILWAY CO.
    1. Negligence — Carriers — Contributory Negligence — Railroads — Directed Verdict.
    Evidence, in an action for the unlawful killing of decedent, a passenger who was at a station intending to take a train of the defendant at night, held, to present an issue for the jury upon the alleged negligence of defendant railway company and the contributory negligence of the deceased. Richardson v. Railway Co., 176 Mich. 413 (142 N. W. 832).
    2. Trial — Appeal and Error — Presumptions—Jury.
    Unless the record indicates that the jury arrived at its verdict by an improper method, it will be presumed that the method was a proper one and that no irregular compromise was effected by the jurors in reaching the result, a verdict for plaintiff.

      3. Same — Instructions—Compromise Verdict.
    It was not prejudicial error for the court' to advise the jurors that the question of damages is necessarily a matter of compromise, or that it was a question of estimate; that verdicts in the class of- cases that was before the court were always the result of compromises; cautioning them that they should not, however, forego their honest opinions. If he meant by the word compromise mutual concessions in computing unliquidated damages in. the class of cases in which the damages were unascertained, and the court will so presume on error, the charge was not objectionable when no claim was made that the verdict exceeded a reasonable amount and the point was not presented on a motion for new trial.
    Error to Arenac; Sharpe, J.
    Submitted June 3, 1914.
    (Docket No. 13.)
    Decided July 25, 1914.
    Case by Wallace B. Richardson, as administrator of the estate of Edith I. Barhite, deceased, against the Detroit & Mackinac Railway Company for the unlawful killing of decedent. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Henry, Henry & Henry (James McNamara, of counsel), for appellant.

      B. J. Henderson {Be Foe, Hall & Converse, of counsel), for appellee.
   Stone, J.

This case is before this court for the second time. When first here, we made a very full statement of the facts involved in the case, and, to avoid needless prolixity here, we will refer to our former opinion for such statement. 176 Mich. 413 (142 N. W. 832).

It is sufficient to say that the plaintiff, as administrator of the estate of Edith I. Barhite, deceased, an unmarried woman, sued the defendant in an action on the case, alleging that his decedent came to her death on the night of June 22, 1911, through the negligence of the defendant in the operation of its trains at the village of Turner, Arenac county. When first here, the judgment was reversed for the reason that the trial court permitted the jury to base the damages awarded the plaintiff in part on the loss to a sister of decedent, as well as to the father and mother of decedent. The case was sent back for a new trial, which has resulted in a verdict and judgment for the plaintiff, and the defendant has again brought the case here for review, upon writ of error.

As stated by appellant, and as shown by a comparison of the two records, the testimony given on' the second trial did not substantially differ from that submitted upon the first trial, except with respect to the duty of plaintiff’s intestate to contribute toward the sister’s support, which was eliminated upon the second-trial.

Counsel for appellant in their brief say:

“In view of the thorough and exhaustive consideration given by this court to the questions raised on the former trial, we shall refrain from discussing at this time assignments of error under the subdivisions made by the opinion of this court in their former decision designated as 1, 3 and 5. We do not think the evidence on the last trial discloses a situation which would warrant us in urging this court (1) that the defendant was free from negligence. Nor do we deem it proper for us to urge in the light of the opinion of this court that (3) the death of the plaintiff’s intestate was conjectural, and on the second trial, the judge having eliminated the question of damages (5) with respect to the duty of plaintiff’s intestate to contribute towards her sister’s support, assignments of error relative thereto will not be urged at this time.”

Counsel confine themselves to the discussion of the claimed errors, which they have grouped as follows:

First. Admission of evidence. Second. Negligence of plaintiff’s intestate. Third. Errors in charge of court. Fourth. Errors in refusing to instruct the jury as requested. Fifth. Instructions of the court after the jury had retired.

1. We find no error in the rulings of the trial court upon the admission of evidence. We think that no new question is raised upon this branch of the case that warrants discussion.

2. Upon the subject of the claimed negligence of plaintiff’s intestate, we must adhere to our former opinion that it could not properly be disposed of as matter of law, and that the question was properly submitted to the jury. Counsel for appellant reargue the question, but we must hold that our former ruling has, under the record, become the law of the case.

3. 4. As to the claimed errors in the main charge of the court, and in the refusals to charge as requested, we would be justified in saying, not only that they are not discussed by counsel, but their discussion is unnecessary for the further reason that each question raised was presented to, and passed upon, by this court at the former hearing. The same charge, with the exceptions noted, was given at both trials.

5. Instructions of the court after the jury had retired. The errors in this connection are raised by the twenty-fifth, thirty-first, thirty-second, and thirty-third assignments.

The record shows that after the jury had been out for a time, and on the morning of September 18, 1913, they were brought in, and the following occurred:

“The Court: Mr. Foreman, haven’t you yet agreed upon a verdict?
“Foreman: No, sir; we have not, your honor.
“The Court: I do not want you to tell me particularly, but as nearly as you can, do you disagree upon the question as to whether or not the defendant is liable ?
“Foreman: No, sir.
“The Court: You just disagree upon the question of damages?
“Foreman: Yes, sir.
“The Court: I am just inclined, gentlemen of the jury, to instruct you a little further upon that. My instructions yesterday were read to you, and perhaps I didn’t get the law as clear as I might have. I am very loath to discharge you for a disagreement for such a reason. I will preface what I say by saying that the question of damages, where there is nothing excepting the judgment of the jurors to fix it on, is, of course, where 12 men have to make it up, necessarily a matter of compromise. * * * As I have said to you, it is a matter of judgment; it is a question of estimate; it is not a question that when you have rendered a verdict and agreed upon it, any of you can say: ‘Why, I know that is just the right amount/ It is impossible to do that. It is a question of exercising your best judgment about it, and, as I suggested to you, I don’t think it is improper for me to say to you that verdicts in this class of cases are always the result of compromises. Why, it wouldn’t be possible to get 12 men who would agree and say our judgment is all the same upon that, because there are so many probabilities to take into consideration.

$

“You have already deliberated a long time upon it, as long as we usually keep juries, but I am loath to discharge you in this case, and I do urge you, if possible, to try and get together upon a verdict. I don’t mean by that that a juryman must forego an absolutely honest opinion and render a verdict that is contrary to his idea of fairness and right. But I do urge upon you that it is important to both of these parties, and if the question of liability is determined — and you say it is — that the question of damages should be determined by you and this litigation, so far as this court is concerned, should end.”

After this supplementary charge, the jury again retired, and the record states, “Jury return in a few moments,” and announced a verdict in favor of the plaintiff for $2,750 damages, upon which a verdict and judgment were entered.

The record does not disclose, as contended by counsel for appellant, that the jury had made any announcement that they were unable to agree, or that they had asked to be discharged. They seem to have been called in by the court upon its own motion. It is the claim of appellant that this portion of the record discloses that the verdict was not the result of the united judgment of the jury, but was the result of a compromise arrived at by the jury. We doubt if this claim is well founded. It must be presumed, in the absence of evidence, that the jury arrived at their verdict by a proper method. We think it may be fairly inferred from the record that the verdict may have been the result of the supplementary charge, although it does not distinctly appear. In stating that part of the supplementary charge upon which error is assigned, we have not set out all of such charge. Much of the language used by the court is not even criticised by appellant’s counsel. Much of the supplementary charge was in the nature of caution to the jury, and they were told that they must not forego an absolutely honest opinion and render a verdict that was contrary to their idea of fairness and right.

Much stress is laid by counsel upon the trial court’s use of the term “compromise,” in fixing the amount of damages. In our opinion the expression was an unfortunate one, but it has often been stated in the books that in arriving at verdicts, where the damages are unliquidated, the result is often reached by the mutual concessions of individual jurors. It is true that it is often difficult for jurors to agree upon the precise amount of unliquidated damages to which the plaintiff is entitled; and we think that it was this that the court had in mind in referring to “this class of cases.” A reference to 38 Cyc. p. 1845, will disclose the following language:

“Verdicts, it has been said, are often and properly the result of mutual concessions. Without something of this kind 12 men can hardly be expected to come to a unanimous conclusion upon any computation of unliquidated damages. Where, as is usually the case, there is a diversity of opinion as to the amount which ought to be given, the verdict must necessarily be the result of mutual concession, and the jury are bound to seek for a medium sum upon which their conflicting views may harmonize.”

If, by the term “compromise,” the trial court meant the mutual concessions above referred to; then the language would not be objectionable.

Our attention has been called to the following cases in this court bearing more or less upon the subject:

In Pierce v. Rehfuss, 35 Mich. 53, after the jury had retired to deliberate and had been out five hours, they returned into court and announced their inability to agree upon a verdict. Justice Marston said:

“The court thereupon further instructed the jury as to their duty in endeavoring to reconcile their views and arrive at a verdict, if consistent with their consciences, rather than that the parties should be put to the trouble and expense of trying the case again; and this is complained of upon the ground that the court should not charge the jury the second time, after they return into court and say they cannot agree, unless they ask for further instructions on some point, and that the court should not urge the jury to agree, nor make any remarks to the prejudice of either side. ' This last, of course, the court should not do, and nothing in this case was said to the prejudice of either party, unless calling the attention of the jury to the propriety of their reconciling all differences of opinion, so far as they conscientiously could, and agreeing upon a verdict can be so considered, which we think cannot. It is usually for the interest of both parties, or at least should be, that when a case has been fairly tried and submitted upon the. merits to a jury, they should agree and thus put an end to the controversy; and the court, in thus instructing the jury, was but acting in the performance of a highly commendable duty, and this irrespective of the fact whether the jury had asked for further instructions or not.”

The judgment of the lower court was affirmed.

In Goodsell v. Seeley, 46 Mich. 623 (10 N. W. 44, 41 Am. St. Rep. 183), suit was brought against a physician for malpractice in setting plaintiff’s arm. The record discloses that, after the jury had retired, they returned into court and informed the judge that they had not agreed, but “stood eleven to one, and divided on $200.” The judge thereupon told them:

“If that is the only difference, it would be better for the county and the parties on both sides that one or both sides yield so as to come together. It would be unfortunate for all to have a disagreement when the difference is so small.”

And he asked them to get together if possible. In reversing the judgment, Justice Cooley, speaking for this court, said:

“It is no doubt true that juries often compromise in the way here suggested, and that by ‘splitting differences,’ they sometimes return verdicts with which the judgment of no one of them is satisfied. But this is an abuse. The law contemplates that they shall, by their discussions, harmonize their views, if possible, but not that they shall compromise, divide, and yield for the mere purpose of an agreement. The sentiment or notion which permits this tends to bring jury trial into discredit and convert it into a lottery. It was no doubt very desirable to the public and to the parties that the jurors should agree if they could do so without sacrificing what any one of them believed were the just rights of the parties, but not otherwise.”

In Kelly v. Emery, 75 Mich. 147 (42 N. W. 795), the action was assumpsit brought to recover the balance claimed by plaintiffs to be due them, under a written contract, for building a schooner for defendants and for extra work and material thereon. The defendants, with their plea of the general issue, gave notice of several matters of defense, including that of defective construction, delay in completion, etc. In the course of its charge to the jury the court said:

“This case has already been tried once, and the amount involved is not very large, and the parties cannot afford to litigate it forever, and the county cannot afford to have them do it. You see it takes some time to try the case, and I hope you will be able to arrive at a conclusion, and settle the facts in the case, at least.”

It was claimed that by this charge the jury were coerced into finding a verdict. Speaking for this court, Justice LONG said:

“This statement by the court could not have had-any such effect. It was simply an admonition to the jury to agree, if possible, upon the facts of the case, and one which the court might very properly make.
“It appears that the case had once been tried, and on that trial the jury failed to agree, there being such a conflict of testimony.
“We do not see how this portion of the charge affected the verdict or had any influence in favor of or against either of the parties.
“It was important in that, as in other cases, the jury settle the disputed questions of fact arising on the trial; and the court, without intimating its opinion of the facts upon this part of the case, advised the jury that it was for the best interests of the parties, and would save costs to the county, if they could in that trial settle the facts in the case. No one could be prejudiced by this portion of the charge.”

In Benedict v. Provision Co., 115 Mich. 527 (78 N. W. 802), the action was assumpsit for work and labor performed. From a judgment for the plaintiff, the defendant appealed, and the question involved was one of the amount of the indebtedness. At the conclusion of the evidence, and after the charge of the court, the attorney for the plaintiff said:

“Inasmuch as your honor has told the defendant’s claim, probably the jury ought to know that the plaintiffs claim is $588.83; there is no dispute about that, if he is entitled to recover at all.”

To which the court replied:

“I suppose the jury know about that.”

The jury returned a verdict of $398.77. Counsel for the defendant made a motion for a new trial upon the ground that the verdict was a compromise verdict, and therefore illegal, which the court overruled. Speaking for a majority of the court, Justice Montgomery said:

“The principal question presented in this case is whether the verdict rendered should beset aside on the ground that it is a compromise verdict. There is no doubt that, where the record is such as to make it clear that the jury have reached the result by ‘splitting differences,’ neither party has had the benefit of their judgment, and such verdict ought not to be permitted to stand. See Goodsell v. Seeley, 46 Mich. 623 [10 N. W. 44, 41 Am. St. Rep. 183]. But this is quite a different proposition than the one suggested by the facts of this case, which is that, because the jury gave a verdict for a less sum than the plaintiff’s testimony showed him entitled to, the defendant has the right to complain, and to insist that the verdict was reached as a compromise. The inference is not a necessary one from the premises. The verdict for the less amount may have been the result of a mistake in computation, or it may have been that the jury, on their own judgment, considered portions of plaintiff’s testimony inherently improbable. It certainly does not appear in .this case, as it did in Goodsell v. Seeley, supra, that the verdict was the result of a compromise.”

We are not prepared to say that the defendant was prejudiced by the language of the court, and the plaintiff should not be penalized by such language, unless we are satisfied that the defendant was prejudiced by the use thereof. Had the court said to the jury that it was their duty, in so far- as it was consistent with their consciences, to try to get together in agreeing upon, the amount of damages to be awarded the plaintiff, we do not think there would be any just criticism. We are not able to say from this record, as the court was able to say in Goodsell v. Seeley, supra, that the verdict was the result of a compromise, or that an attempt was made to induce a change of views against the judgment of the jurors.

There was no motion for a new trial; and there is no claim that the damages are excessive. It is only claimed for the verdict that it was substantially a verdict reached by the jury by “splitting differences,” and in this claim we are not able to agree with counsel for appellant.

The judgment of the circuit court is affirmed.

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


text:
    PRICE v. TOWNSHIP BOARD OF OAKFIELD TOWNSHIP.
    1. Municipal Corporations — Townships — Presiding Officer — Supervisors.
    It is competent for any member of the township' board to act as presiding officer, and in the absence of the supervisor one of the justices of the peace who has been called in as provided by 3 Comp. Laws, § 2344 (1 How. Stat. [2d Ed.] § 1401), may preside, and has the same authority as other members of the board.
    2. Same — Intoxicating Liquors — Bonds—Approval.
    The presiding member of the township board who has voted once upon an application for approval of a liquor bond may not cast an additional vote in tbe case of a tie, thereby disapproving the bond of the applicant; a double vote not being authorized by the statute.
    3. Intoxicating Liquors — License — Approval of Bond — Retail Liquor Dealers.
    It is the duty of the board or council to which the approval of liquor bonds has been delegated by statute, to determine in good faith whether the applicant has offered a bond sufficient in form and amount, and, if so, to approve it, although, in certain cases, the bonds of a surety company may be rejected if not satisfactory.
    4. Same — Constitutional Law — Title. •
    In so far as Act No. 170, Pub. Acts 1911 (2 How. Stat. [2d Ed.] § 5062), attempts to confer authority on such board to reject sufficient bonds offered by retail liquor dealers, the effect of the act is to authorize prohibition and is beyond the scope of the title of the amended statute which, in terms, provides for the regulation and taxation of the business, not its prohibition.
    Certiorari to Kent; Brown, J.
    Submitted June 9, 1914.
    (Calendar No. 26,267.)
    Decided July 25, 1914.
    Mandamus by Raymond A. Price against the township board of Oakfield township to compel respondent to approve the retail liquor bond of the relator. An order was entered granting the writ: respondent brings certiorari.
    Affirmed.

      Elvert M. Davis, for appellant.

      Thompson & Temple, for appellee.
   Stone, J.

This case is before us upon a writ of certiorari to review the action of the circuit court in a mandamus proceeding instituted by relator to compel the township board to reconvene and approve a liquor bond of relator. For some time prior to instituting such mandamus proceeding the relator had been engaged in the business of a retail liquor dealer, conducting a saloon at Harvard, in said Oakfield township. Desiring to continue such business, he, upon due application, presented- his bond for approval. In his petition for mandamus the relator stated that, on April 27, 1914, the said board being duly convened with all its members present, a motion was made to support and approve said bond, when counsel for relator, and in his behalf, asked if there, was any objection to the manner in which relator had conducted said business, to which inquiry the said board, by its members individually, answered that there was none; that said counsel then asked if there was any objection to the bond, when the said board replied there was none; that thereupon the supervisor stated that there was no objection, but that he did not want a saloon at Harvard, whereupon the said board proceeded to vote upon said motion; that, upon the vote being had, two of its members, to wit, E. Griswold and J. C. Berry, voted, “Yes,” and two of its members, to wit, Seth C. Partridge and George Lewis, voted, “No,” and thereupon said Seth C. Partridge, supervisor, declared the same to be a tie vote, and he then and there voted, “No,” and also declared the motion lost. Upon the hearing in the mandamus proceeding the circuit court held that the supervisor had no power to cast a second vote upon the motion under consideration, and issued the writ of mandamus as prayed for. In his application for the writ of certiorari the supervisor, in behalf of the township board, stated that by the vote above set forth — two in the affirmative and two in the negative — there was a tie in the vote, and that he, as presiding officer, again voted, “No,” and then and there declared that the said bond had been rejected by a majority vote of said township board.

It is alleged that the circuit court erred in finding, as matter of law, that:

(a) The said supervisor was not authorized, as presiding officer of said board, and also as a lawful member of said board, to vote first upon the question of the approval of the said bond, and, in case of a tie vote upon such question, to vote as presiding officer and cast a vote for the purpose of breaking such tie; (b) that the circuit court was in error in finding, as matter of law, that the said liquor bond was not, by the action of the township, board at such meeting, rejected by a majority vote of such board.

It appears from the record, as well as from the briefs of counsel, that the circuit court and counsel for both parties considered that the question of the rejection of the bond of relator by said board was involved in the proceeding. The following questions are discussed by counsel:

(1) Has a supervisor, acting as a member of a township board at a meeting thereof where he is presiding, the right to cast a deciding vote (or vote to break a tie) where he has already voted in producing the tie vote?

(2) Has a township board the constitutional right to reject by a majority vote any or all liquor bonds presented to it for its approval?

I. Section 18 of Article 8 of the Constitution provides that there shall be elected annually in each township one supervisor whose powers and duties shall be prescribed by law.

Section 2343, 1 Comp. Laws (1 How. Stat. [2d Ed.] § 1401), provides that the supervisor, the two justices of the peace whose terms of office soonest expire, and the township clerk, shall constitute a township board, any three of whom shall constitute a quorum for the transaction of business.

The next section of the statute provides that when, from any cause, there shall not be three of the officers constituting such board, competent or able to act, one of the remaining justices, on being notified by any member of said board, shall meet with any members of the board and shall have the same authority as the other , members of the board.

It has been held by this court that in case a justice is thus called in, the board thus constituted has all the powers of the statutory board. First Nat. Bank of St. Joseph v. St. Joseph Township, 46 Mich. 526 (9 N. W. 838).

The legislature has never made any provision as to which member of the township board shall be the presiding officer. The voting powers of the members of the board appear to be equal. We have no doubt that it is perfectly competent for any member of the board to preside over its deliberations. If the supervisor were absent and one of the remaining justices should be called in, we have no doubt that it would be perfectly legal for such justice to act as presiding officer, for the statute says that “he shall have the same authority as the other members of the board.”

' Our attention has not been called to any case where, under such circumstances as appear here, any member of the body may have the right to a casting vote. Authority may be found to the effect that the right of such casting vote may be given by express statute.

Our attention has been called by appellant to Whitney v. Village of Hudson, 69 Mich. 189 (37 N. W. 184). There express power was given by the charter; and it was held that the charter of a village, whose common council is composed of the president and six trustees, and which provides that in proceedings of the council each member present shall have one vote, and when there shall be a tie the president shall give the casting vote, makes the president a voter upon every question, and in the case of a tie he has an additional vote.

Our attention has also been called to People v. Church of the Atonement, 48 Barb. (N. Y.) 603. Here, also, express authority was given by statute. There the section of the statute relative to religious corporations provides that no board of trustees should be competent to transact any business—

“Unless the rector, if theré be one, and at least one of the church wardens, and a majority of the vestrymen, be present; and such rector, if there be one, and if not, then the church warden present, or if both the church wardens be present, then the church warden who shall be called to the chair * * * shall preside at every such meeting or board, and have the casting vote.”

Under this statute it was held that the term “casting vote” should be construed as authorizing the chairman, after having first voted with the rest, upon a tie occurring, to give a second vote. In the course of the opinion it is expressly stated that it is true that a double vote is not allowed in corporate meetings, except by express statute.

After examination of all the authorities cited, we are of opinion that upon this branch of the case the circuit court reached the correct conclusion, and for this reason alone the judgment below should be affirmed.

II. We might perhaps stop here; but as the question of the right of the township board by a majority vote to reject any or all such bonds presented to it for approval may be said to be involved here, we will consider it.

The statute relied upon by appellant consists of an amendment, found on page 288 [Act No. 170], Pub-, lie Acts of 1911, in section 8 of the act, which reads as follows (2 How. Stat. [2d Ed.] § 5062):

“The township board of any township, the board of trustees of any village, or the common council of any city may, by a majority vote, reject any or all such bonds presented to them for their approval.”

It has been repeatedly held by this court that it is the duty of a board or council under the statute, before the amendment of 1911, to honestly and in good faith determine whether, under the terms of the statute, the bond offered be sufficient in form and penalty, and whether the sureties possessed the requisite qualifications, and if these requirements were met, it was the duty of the board or council to approve the bond, and that an arbitrary refusal to do so might be redressed by a mandamus proceeding at the prayer of the party tendering such statutory bond. Farr v. Anderson, 135 Mich. 485 (98 N. W. 6); Power v. Common Council of Litchfield, 141 Mich. 350 (104 N. W. 664); Hanold v. Common Council of Stambaugh, 163 Mich. 242-244 (128 N. W. 233).

The duty which the legislature has placed upon the common council or board is to determine whether the applicant has brought himself within the terms or conditions imposed by the statute. If the applicant has done this, his application should be granted and bond approved. What we have here said should not be construed as in any way conflicting with our decisions relating to the acceptance and approval of surety company bonds in certain cases, of which Schmitt v. Common Council of Clinton, 111 Mich. 99 (69 N. W. 153), and Hicks v. Village of Perry, 151 Mich. 88 (114 N. W. 682), are samples.

It is the duty of the board or council to act fairly and in good faith, and not captiously, in the approval of bonds. It is its duty to investigate the responsibility of the sureties; and, when it appears that this has been done and the investigating body is satisfied that the proposed sureties are irresponsible for the amount of the bond, or that the bond is not in the statutory form, 'the same should be rejected.-

If this were all that is claimed for the amendment of 1911, above quoted, then it would be within the title of the act. But if it is claimed for the amendment that it gives to the board or council the power arbitrarily to reject any or all bonds without reference to their legal sufficiency, or the responsibility of the sureties, it cannot be sustained, for that would amount to prohibition; and this court has repeatedly held that provisions for prohibiting the liquor traffic are not germane, and cannot be legally enacted under a title expressing the object , as being to -regulate it, etc. People v. Gadway, 61 Mich. 285 (28 N. W. 101, 1 Am. St. Rep. 578); Robison v. Miner, 68 Mich. 549 (37 N. W. 21); In re Hauck, 70 Mich. 396 (38 N. W. 269); Timm v. Common Council of Caledonia Station, 149 Mich. 323-325 (112 N. W. 942); Brown v. Common Council of Sparta, 167 Mich. 492-494 (133 N. W. 527).

While the courts will presume in favor of the constitutionality of a law until the contrary clearly appears, such presumption cannot obtain or prevail as to a provision like the one under consideration, where plenary power is sought to be given to a council or board “to reject any or all bonds,? the same being not germane to the title of the act which the provision seeks to amend. The title of the act in question is as follows:

“An act to provide for the taxation and regulation of the business of manufacturing, selling, keeping for sale, furnishing, - giving or delivering spirituous and intoxicating liquors and malt, brewed or fermented liquors and vinous liquors in this State, and to repeal all acts or parts of acts inconsistent with the provisions of this act.”

We are forced to the conclusion that this provision is neither within the entitling of the act nor within the scope or purview of the statute which it seeks to amend, and is inconsistent with the other provisions of the act.

Thp judgment of the court below is affirmed.

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


text:
    KUSHLER v. WEBER.
    1. Corporations — Deeds—Ejectment—Title.
    No title to land was conveyed by a resolution of tbe board of directors of the holder of the fee, a corporation, to sell the land for a given consideration, authorizing the officers to sign the proper deeds of conveyance, which, however, were not shown to have been executed.
    2. Vendor and Purchaser — Holder in Due Course — Possession —Notice.
    Notice of the claim of a party in possession of land is sufficiently shown by the existence of a barn standing on the strip that was,the subject of dispute.
    3. Deeds — Description—Quantity.
    Where plaintiff, in ejectment, claimed a parcel of land described in the declaration, by virtue of a deed of the east five acres of land, and defendant claimed title under a deed transferring the westerly 75 acres, neither deed including the strip in controversy between plaintiff and defendant 57 feet wide, and plaintiff did not show any conveyance to him of the intervening parcel, although he obtained quitclaim deeds of the persons who had occupied this strip, plaintiff was not entitled to recover: the rule that plaintiff must recover on the strength of his own title, not on the weakness of the defendant’s, is applicable to the case.

      Error to Oakland; Smith, J.
    Submitted June 22, 1914.
    (Docket No. 51.)
    Decided July 25, 1914.
    Ejectment by Adolph Kushler and another against John H. Weber and another. Judgment for plaintiffs : defendants bring error.
    Reversed.

      Fred A. Baker, for appellants.

      Davis & Bromley, for appellees.

       On the question of the general rule that pflaintiff must recover, if at all, on the strength of his own title, see note in 18 L. R. A. 781.

   Stone, J.

This is an action of ejectment to recover a strip of land 57 feet wide near the easterly end of the N. Y2 of N. E. % of section 29, in township of Royal Oak, in Oakland county. The plaintiffs and defendants both claim title by mesne conveyances from the Oakland Place Land Company, a corporation, as their common grantor. The said company was possessed of 200 acres of land, more or less, according to government survey, consisting of the W. % of the N. W. Yl, °f section 28, and the N. Y% of the N. E. % of section 29.

Upon the' trial the plaintiffs introduced in evidence the following instruments:

(1) A deed from the Oakland Place Land Company to William C. Connolly and Anna Connolly, his wife, dated April 6, 1906, and recorded May 1, 1906, in the office of the register of deeds of Oakland county, conveying the easterly 5 acres of the N. % of the N. E. Yh of section 29, the W. % of the E. Y% of the N. W. Yi, and the W. % of the N. W. % of section 28, all in town 1 north, range 11 east, being 125 acres, more or less, according to United States government survey.

(2) Also a warranty deed from the Oakland Place Land Company to Maurice M. Kenney and Letitia Kenney, his wife, dated the 6th day of April, 1906, and recorded April 11, 1906, in the office of said register of deeds, conveying the westerly 75 acres of the N. % of the N. E. % of section 29, town 1 north, range 11 east, according to government survey.

In connection with the foregoing deeds, plaintiffs’ counsel introduced in evidence a resolution adopted by the board of directors of the Oakland Place Land Company April 26, 1906, reading as follows:

“Resolved, that this company exchange with W. C. Connolly and others the right to the following described property situated in the county of Oakland, Michigan: The north half of the northeast quarter of section 29, and the west half of the northwest quarter of section 28, and the west half of the east half of the northwest quarter of section 28, town 1 north, range 11 east, being 200 acres, more or less, according to government survey, free and clear from incumbrances.”

—in exchange for certain property in the city of Detroit, therein described.

(3) Also a deed from William C. Connolly and Emma Connolly, his wife, to Frank F. Leska and Matilda, his wife, and Adolph Kushler and Anna, his wife, dated the 22d day of October, 1906, and recorded on the 10th day of November, 1906, in the office of the said register of deeds, conveying: Commencing at the northeast corner of the N. E. % of section 29; thence westerly on westerly .line 164 feet; thence southerly on a line parallel with the east line of said section 1,331 feet; thence easterly parallel with north section line 164 feet to the east line of said section; thence northerly on section line 1,331 feet to place of beginning, containing five acres.

(4) A deed from Frank Leska and Matilda Leska, his wife, to Adolph Kushler and Anna Kushler, his wife, dated August 28, 1912, and recorded September 2, 1913, in said register’s office, conveying lot 13 of the survey and unrecorded plat of the W. % of the N. E. % of section 28, the W. % of the E. % of the N. W. % of section 28, and the easterly five acres of the N. i/2 of the N. E. % of section 29, all in town 1 north, range 11 east, 125 acres, more or less; the said lot 13 containing 5 acres.

(5) A deed from Letitia Kenney, survivor of herself and husband, Maurice M. Kenney, who died July 7, 1908, to John Henry Weber and Sophia H., his wife, dated March 1, 1911, and recorded May 15, 1911, in said register’s office, conveying the westerly 75 acres, more or less, of the N. y% of the N. E. % of section 29, situated on the south side of 10-mile road and lying west of Woodward avenue.

The controversy in this case arises from the fact that the N. y% of the N. E. % of section 29 contains more than 80 acres of land. . Lying between the plaintiffs’ east 5 acres and defendants’ west 75 acres there is a strip 57 feet wide and 1,331 feet long containing 1.75 acres, which is the strip in dispute.

The Oakland Place Land Company never executed a deed of the 57-foot strip or any part of it to any one; but its board of directors on May 8,1906, adopted a resolution as follows:

“Resolved, that this company sell and convey the balance of the Oakland county farm to the Citizens’ Savings Bank for twelve thousand ($12,000) dollars, and the officers of this company sign a certain paper to convey said property, and we will take up all the bonds of said company for $12,000.”

There was no evidence that the Oakland Place Land Company ever did execute any such conveyance. When the fact of the excess was discovered, plaintiffs’ grantors sought to remedy the matter by obtaining from William C. Connolly and wife, in 1913, additional quitclaim deeds covering the disputed strip, and those deeds were offered in evidence. If, however, Connolly and wife had only obtained title to the five acres, they had already deeded that holding, by conveyance No. 3, above set forth, and the subsequent conveyances were ineffective.

A deed was also obtained in 1913 of the N. % of the N. W. % of section 29, excepting the westerly 75 acres, from the Citizens’ Savings Bank to plaintiffs’ grantor, but there is no evidence that the Savings Bank had any title to the land. It certainly could get no title by the above resolution.

At the time of the last deed to plaintiffs, the defendants had a barn standing in part on the disputed strip. This was notice of their claim.

Soon after the deeds described as Nos. 1 and 2 were executed, Mr. Connolly employed a surveyor to make a survey of the easterly five acres. He found the northeast corner of section 29 and the quarter post half a mile south, and they were 16% feet more than half a mile apart; near the middle he found an old fence, a little further south than the exact middle, which he took as the south line of the N. %, which made the line 20 chains and 15 links, or 1,330 feet, long; on a true 80 acres, 5 acres would be 165 feet widé; the surveyor gave Connolly 164 feet wide. He testified that he made the survey at the request of Mr. Connolly, who claimed to own the land, and the surveyor put a stake at each of the west corners and blazed a tree on the line.

At the close of the evidence, the defendants requested the court to charge the jury as follows:

“First. Plaintiff, not having a quitclaim deed from the Oakland Place Land Company, has no title to the strip of land in question, and your verdict should be for the defendants.
“Second. Quitclaim deed from the Citizens’ Savings Bank, introduced in evidence by the plaintiffs, conveys no title, because the Citizens’ Savings Bank at that time had no title to convey.
“Third. Said quitclaim deed also conveys no title because the Citizens’ Savings Bank at that time was not in possession of the strip of land in question.
“Fourth. It appears by the evidence in this case that, after the execution of the deeds April 6, 1906, to William C. Connolly and wife and to Maurice M. Kenney and wife, Mr. A. H. Wilmarth was employed by William C. Connolly to make a survey of the easterly 5 acres on section 29, and he did make a survey and put a stake at each end of the westerly line and made a blaze on a tree on the line, thereby leaving for Mr. Kenney the balance of the N. of the N. E. % of section 29, and that Kenney built a barn within 42 feet of said west line so surveyed and staked out.
“Fifth. Under the circumstances, 'the said survey and staked line must be regarded as the true boundary between the easterly 5 acres and the westerly parcel of land described as the westerly 75 acres in the deeds of April 6, 1906.
“Sixth. The quitclaim deeds from William C. Connolly introduced in evidence (two of them) by the plaintiffs convey no title, because William C. Connolly and wife had no title to it.”
“Eighth. The deed from the Oakland Place Land Company April 6, 1906, to William C. Connolly and wife contained this description:
“ ‘The easterly five acres of the north half of the northeast quarter of section 29, the west half of the northwest quarter of section 28, and the westerly half of the east one-half of the northwest quarter 28, all in town 1 north, range 11 east, containing 125 acres, more or less, according to government survey.’
“The easterly five acres is a definite description by quantity, and the words ‘more or less’ must be applied to land on section 28, because it says ‘the easterly five acres;’ that is absolutely definite; and then it goes on and gives the government subdivision and says ‘more or less.’
“Ninth. The deed from the Oakland Place Land Company in 1906 to Kenney and wife reads:
“ ‘The westerly 75 acres of the north half of the northeast quarter of section 29, town 1 north, range 11 east, according to United States government survey.’
“This description is also a definite quantity, but it appears by the undisputed evidence in this case that said north half was more than 20 chains wide; there was an overrun about 10 feet.
“Tenth. It appearing that the Oakland Place Land Company on April 6, 1906, executed two deeds, one for the easterly 5 acres and the other for the westerly 75 acres. If this overrun was apportioned between the two deeds, the deed conveying the 5 acres would be entitled to one-sixteenth of the overrun and a deed conveying 75 acres would be entitled to fifteen-sixteenths of the overrun.
“Eleventh. If the overrun is not to be apportioned between these two descriptions, as stated above, and descriptions are to be construed as definite descriptions in quantity of only 5 acres in the one deed and 75 acres in the other, then the legal title to the strip between the two parcels is in the Oakland Place Land Company, and, as the plaintiff has no quitclaim deed from the Oakland Place Land Company, the plaintiff cannot recover.
“Twelfth. In construing these descriptions, the court is bound by the language used, and, if it was the intention of the Oakland Place Land Company to convey the whole of the N. % of this quarter section, they never carried those intentions into effect and never executed a deed that would cover the overrun on a strip between the two parcels of land that is claimed by the plaintiffs in this case.”

Bach of the foregoing requests was refused, and the court directed a verdict for the plaintiffs. In directing the verdict and speaking of the plaintiffs’ title, the court said:

“But, while I am not able to say that it is a very strong title, yet I am of the belief, in an action of ejectment, it is sufficient to prevail.”

A verdict and judgment for the plaintiffs were duly entered, and the defendants have brought the case here, assigning errors on the refusal of the court to charge the jury as requested and in directing a verdict for the plaintiffs.

In our opinion the plaintiffs are in no position to recover in the case, and we think that the court erred in directing a verdict in their behalf. The easterly 5 acres is a definite description by quantity, and' we think the words “more or less” must be applied to the land on section 28. The easterly 5 acres are specifically described, and the description must be considered as a quantitative one. This is equally true of the description of the west 75 acres.

In ejectment the • plaintiff must recover, if at all, upon the strength of his own title. We find no evidence in the record that the plaintiffs have ever obtained title to the strip of land in controversy. We think the- court should have given defendants’ first, second, third, sixth, eighth, ninth, eleventh, and twelfth requests.

The judgment of the court below is reversed, and a new trial granted.

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