text:
    GRIFFIN v. JACKSON LIGHT & POWER CO.
    1. Negligence — Privity oe Parties — Injury to Third Person.
    As a general rule, one who lets property for use, like one who sells it, is not responsible to third persons for injuries sustained by reason of a defect therein.
    2. Same — Dangerous Substances — Proximate Cause.
    While an exception to this rule may exist in cases involving dangerous substances, such exception is conditioned on there having been no intervening human agency which might have prevented the injury.
    3. Same — Electricity.
    Whether an electric current of 113 volts may be regarded as a dangerous substance, within the meaning of the exception, —qumre.

    4. Same.
    Where an electric company places a lamp in the place of business of a customer, which lamp is known by such customer to be improperly insulated, and by reason of which defective insulation a third person, in the course of his duties, is injured, the use of the lamp, in its defective condition, by such customer, is such an intervention of another agency between the company’s neglect and the person’s injury as to save the company from liability, conceding that it could otherwise be held responsible.
    Error to Jackson; Peck, J.
    Submitted October 22, 1901.
    Decided November 12, 1901.
    Case by Michael Griffin against the Jackson Light & Power Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Wilson & Cobb, for appellant.

      Charles A. Blair and Richard Price, for appellee.
   Montgomery, C. J.

The plaintiff brings this action to recover for a negligent injury. The facts, as they appear b3T the testimony, are that the plaintiff was in the employ of the Schlitz Brewing Company, engaged in delivering beer to its customers. One Wright Calkins was a customer of the brewing company. On his premises, and in the cellarway through which plaintiff passed in delivering the beer, was an electric light, attached to a movable wire, supplied with a brass or metal handle or hanger, by which it was hung upon a nail in the cellar-way. The wire connecting therewith passed through a hole in the lower end of the handle, thence to the carbon film in the bulb. It was claimed that it was necessary in using the light, and 'customary, to take hold of the handle or hanger. The breach of duty alleged is that the defendant failed to insulate the wire and handle to the fixture properly. It appears by the testimony of Calkins that the handle had formerly had a kind of cement wrapper on, but, in carrying it through the cellar, it would get loose and drop off, and that it was off at the time of the accident; that, some two or three weeks before the accident, an agent of the defendant put in a new wire, but did not put any cement or wrapping on at that time; that the agent of the defendant was notified that the wrapper to the handle was off, and that he (Calkins) wanted a new one put on, and that the agent promised to-fix it, but that it never was fixed prior to the accident. Plaintiff recovered a judgment for injuries sustained, and the defendant brings error.

The principal contention of defendant is that, upon this state of facts, it does not appear that there was any such privity between the plaintiff and the defendant as entitles the plaintiff to recover for the defendant’s neglect; that whatever duty the defendant owed it owed to Calkins; and that third parties injured by reason of this neglect of duty are not entitled to recover against the defendant. There was evidence tending to show that the defendant was the owner of this fixture, but this does not determine the question of liability. In the leading case of Winterbottom, v. Wright, 10 Mees. & W. 109, the defendant was the owner of the mail coach supplied, and it was also his duty to keep it in repair; and it may be stated as a general rule that one who lets property for use, like one who sells it, is not responsible to'third parties injured by reason of a defect in the article or property let or sold. See Necker v. Harvey, 49 Mich. 517 (14 N. W. 503); Fowles v. Briggs, 116 Mich., at page 428 (74 N. W. 1046, 40 L. R. A. 530, 72 Am. St. Rep. 539), and cases cited. In Howies v. Briggs it was said that the only apparent exceptions to this rule were where the fault consisted of defendant failing to keep his premises in a suitable and safe condition, or where the defendant had reserved the right to direct the manner of the work or undertaken to supply the instrumentalities,- or where the shipper of a dangerous substance, the character of which was not made known to the carrier, had been held liable. If it be suggested that this case comes within the latter class of cases, namely, where the defendant is dealing with a dangerous substance, the limitation of the rule, as we understand it, is that there shall be no intervening human agency which might have arrested the injury or furnished protection. This is well illustrated in the case of Carter v. Towne, 103 Mass. 507, where gunpowder was sold to a boy 8 years of age, and it was, of course, conceded that the defendant was responsible for the injury likely to occur from the explosion of this dangerous substance. But it appeared that, after the sale, the boy had carried home the gunpowder, and put it in the custody of his parents, and that a part of it had been fired off by him, with their permission, before the explosion occurred by which he was injured. It was held that the sale of the gunpowder to the boy was not, therefore, a direct, proximate, or efficient cause of the injury.

So, in the present case, it appears that Calkins knew of the necessity of a protection for the lamp, and, whatever may be said of the failure of duty on the part of defendant to him, he saw fit to make use of it in its imperfect condition, and this must be held to be the intervention of another agency between the defendant’s neglect and the plaintiff’s injury. Of the cases cited by plaintiff’s counsel,none of them militate against the rule which we think must govern the present case. See Reagan v. Electric-Light Co., 167 Mass. 406 (45 N. E. 743); Atlanta, etc., R. Co. v. Owings, 97 Ga. 663 (25 S. E. 377, 33 L. R. A. 798); and Ahern v. Telephone Co., 24 Or. 276 (33 Pac. 403, 22 L. R. A. 635). In each of these cases the fault was a fault of the defendant’s system, wholly under its own control, and with which no person other than the defendant had authority to interfere in any manner whatever. But such is not the present case.

Whether we may deem electricity, in the voltage used by the defendant, a dangerous substance, within the meaning of the rule that one transmitting such dangerous substance shall be held liable, where there is no intervening person charged with any duty connected with it, who has knowledge of its dangerous character, in a case presenting facts involving that principle, we need not here decide, as we think that, upon the ground stated, the verdict should have been directed for the defendant.

The judgment will be reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    WHEELER v. DETROIT ELECTRIC RAILWAY.
    1. Trial — Objections to Evidence — Waiver.
    Where counsel not only raises no objection to the admission of certain testimony, but invites its reception, he Cannot after-wards complain of a refusal to strike it out.
    2. Same — Argument op Counsel — Action por Personal Injuries — Fraud.
    Where the defense to an action against a street-railway company for personal injuries was that the claim was fraudulent, and evidence had been received that plaintiff’s daughter had an accident claim against the city, and that plaintiff’s husband had two negligent injury claims pending, it .was legitimate argument for defendant’s counsel to state to the jury that it was apparent from the testimony that plaintiff and her witnesses were in the business of' bringing damage suits, and it was to he considered as bearing on their good faith, and that they could not make their living in that sort of way.
    Error to Wayne; Hosmer, J.
    Submitted October 24, 1901.
    Decided November 12, 1901.
    Case by Eva Wheeler against the Detroit Electric Railway for personal injuries. Prom a judgment for defendant, plaintiff brings error.
    Affirmed.
    Plaintiff claims that she was injured through the negligence of the defendant in suddenly starting its car while she was alighting from it, about 11 o’clock at night. The declaration alleges that she entered the car, and, when it stopped and was standing still, she “went to the rear platform for the purpose of alighting therefrom; that while she was proceeding to the lower step of the platform, for the purpose of alighting, defendant negligently caused said car to be suddenly and violently started forward, whereby she was thrown violently to one side, and the knee-cap of her left leg was, by reason of being so thrown, wrenched out of its place or socket, and dislocated; and that by reason of said injury she has become a cripple for life.” On the trial it was her right knee that was injured, and the declaration was amended to meet this testimony. Her husband wrote a communication to defendant shortly after the accident, stating that the plaintiff “received painful strain of leg and ankles.” She had been to' the theater with her son, 9 years old, and her two daughters. The daughters walked home, and reached there before plaintiff. One of the daughters and her husband testified that they stood upon the sidewalk and saw her fall. She testified that she did not enter the car, but stood upon the rear platform; that she had put one foot down on the first step when the car started, and “it doubled my other leg under me, and I sat right down on the platform of the car, with one foot down on the step and the other leg under me.” She did not know who the conductor of the car was. All the conductors in charge of the cars upon that street during the time covered by her testimony appeared in court, but she could not recognize any of them. All these conductors were produced as witnesses, and testified that they neither saw nor heard of any such accident. She made no complaint to any of her neighbors of being, injured, and those who saw her the next day, and afterwards,, testified that she walked no lamer afterwards than she did before. The sole witnesses for the plaintiff were herself, her husband, and her daughter. The case was submitted to the jury, who found a verdict for the defendant.
    ■ Moore & Moore (Henry B. Shaw, of counsel), for appellant.

      Thomas T. Leete, Jr., for appellee.
   Grant, J.

(after stating the facts). Upon cross-examination plaintiff was asked , if her daughter had an accident claim against the city of Detroit. Her answer was, “That has nothing to do with this.” Upon the question bein£ put the second time, she asked, “ Do I have to answer that question ?” to which her attorney replied, “Answer it, certainly, if- he wants to know.” To the question shh then answered, “Yes.” Her husband testified, without objection, that he had two negligence injury claims pending. After plaintiff rested her case, her attorney moved to strike out the above testimony, and the motion was overruled. Her attorney not only raised no objection to the admission of this testimony, but invited it. He was not taken by surprise, and, if the testimony is different from that which he expected would be elicited by the questions, the plaintiff must take the consequences. It was too late then to move to strike it out.

Complaint is made that the argument of counsel for the defendant to the jury was objectionable. The objectionable language is that “they [referring to plaintiff and her witnesses] are in the business of bringing damage suits, and it is apparent from the testimony in the case. * * * It is to be considered by you as bearing upon the good faith of whether or not these people are in this business, or whether they are honestly and legitimately entitled here to this action. They cannot make their living- in that sort of way.” The testimony of other suits being admitted without objection, and being introduced for no other purpose than to show the character of the witnesses and their interest in the case, we think the argument was entirely legitimate. It was not of that intemperate character calculated to unduly prejudice a jury in favor of a railroad corporation and against a crippled pláintiff, who is a woman. The defense was that the claim was a fraudulent one, and the jury so found. When fraud is involved, a wide latitude is allowed in the admission of testimony and arguments of counsel.

It is assigned as error that the court gave certain objectionable requests on the part of the defendant. The counsel is mistaken in his assertion that these requests were given. The judge stated that he was requested to give them, but said that they were inapplicable to the case, and were not controlling, giving the reason why, viz., that if plaintiff was in the act of alighting when the car was still, and it was started suddenly, that would constitute negligence and entitle plaintiff to recover.

There are other assignments of error, which we do not consider of sufficient importance to discuss. We find no error in the admission of testimony or the instructions of the court. The case was fairly submitted, and the judgment is affirmed.

The other Justices concurred.


text:
    WAGNER v. SUPREME LODGE KNIGHTS AND LADIES OF HONOR.

    1. Benefit Associations — By-Laws—Waiver.
    A provision of the by-laws of a benefit association, making the initiation of the applicant a condition precedent to the issue of a membership certificate, is waived by the issue of the certificate without having required a performance of such condition.
    2. Same — Issue of Certificate — Question for Jury.
    Plaintiff’s wife applied for membership in a benefit association, and her medical examination was approved, and the necessary dues paid. The local lodge’s presiding officer testified to having received a certificate issued by the supreme lodge, and two other witnesses swore that they had seen it. Such certificate was not produced, and the declaration averred its loss. The wife’s name did not appear as a member on the supreme lodge’s records, and its books showed no record of any fees or assessments received from her to constitute her such member. Held, a question for the jury whether the certificate was issued.
    3. Same — Assessments — Neglect of Subordinate Lodge — Agency.
    Where, under the by-laws of a benefit association, the local lodge is authorized to receive assessments, the neglect of such lodge to forward the same to the association will not defeat the rights of a member, notwithstanding a by-law declaring such lodge to be the agent of the member, and not of the association.
    4. Same — Tender—Waiver.
    Where a benefit association has refused to receive an assessment on the ground that the person tendering it was not a member, it cannot defeat a claim for benefits because of a failure to tender a subsequent assessment,
    5. Same — Evidence—Conclusions of Witness.
    An employé in the office of the secretary of a benefit association cannot give his opinion, gathered from his duties and from his contact with the records, as to whether a certain person was a member of the association.

      6. Same — Want of Application.
    A benefit association cannot escape liability under a certificate on the ground that it was issued without a formal application therefor.
    7. Same — Delivery of. Certificate.
    Where a certificate is issued by a benefit association, and sent to aisubordinate lodge for a member, the contract is complete, though the certificate is not actually delivered.
    8. Same — Instructions to Jury — Harmless Error. .
    In an action against a benefit association for a benefit, an instruction that, if deceased paid all her dues and fulfilled the other requirements, perhaps, though a certificate was not issued, she would have heen a member, is not misleading, where the jury were further explicitly instructed that they must find that the certificate was issued in order to find for plaintiff.
    Error to Wayne; Waite, J.
    Submitted October 23, 1901.
    Decided November 12, 1901.

      Assumpsit by William Wagner against the Supreme Lodge Knights and Ladies of Honor on a benefit certificate. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    The defendant is a mutual benefit association, having a system of lodges. Its principal office is at Indianapolis, Ind. Its members are of two classes, — social and beneficiary. One Barbara Bishop received a commission, as deputy supreme protector of the Knights and Ladies of Honor, to organize lodges in Michigan. In July, 1897, she organized a lodge in Detroit known as the “Bishop Lodge.” Plaintiff was both a social and beneficiary member, and signed the original petition. His wife also became a social member. Whether she became a beneficiary member is the chief subject of controversy. July Cth she applied for examination by the medical examiner, was then examined, and her examination approved by him on July 26th, in the following language, indorsed on 'the back of the application: “Application of Mary Wagner to Bishop Lodge, No. 2,026, State of Michigan. Approved July 26, ’97.” These documents were introduced in evidence. In this application the following question and answer appear:
    “Do you know that in your application for relief fund membership you warrant the correctness and truth of your answers to all questions propounded you by the medical examiner in this blank, and that if your answers to such questions are not correct or true, or if you have concealed facts or made misstatements relating to your past or present condition or occupation, that your relief fund certificate, if issued, would be null and void? Yes.”
    On July 15th she paid Mrs. Bishop $1 for charter fee, and an assessment of 60 cents. These were the fees required of a beneficiary applicant. An assessment of 60 cents was due the 1st of September. Plaintiff tendered the amount to the financial secretary of the local lodge, — • the proper officer to receive it, — but he declined to receive it on account of Mrs. Wagner’s sickness, and because he had heard from some of the members of the lodge that she never was a member, having never been initiated and never entered the lodge room. He took the 60 cents under protest, and forwarded it to the supreme lodge, which declined to accept it, asserting that she was not a member. Another assessment became due the 1st of October. Mr. Wagner testified that he offered to pay it, but the officer declined to receive it. Mrs. Wagner died November 24, 1897. Defendant declined to recognize that she had ever been a beneficiary member, and refused payment. Thereupon this suit was instituted, resulting in a verdict and judgment for plaintiff.

      Hall & Brockway, for appellant.

      Bacon & Yerkes and Jonathan Palmer, Jr., for appellee.

       Rehearing denied December 21, 1901.

   Grant, J.

(after stating the facts). Mrs. Wagner was not initiated. The provisions of the laws of the association in regard to initiation are as follows:

“ Each applicant must undergo a medical examination made by a commissioned medical examiner, when, after said examination has been approved by' the supreme medical examiner, and the applicant has paid the requisite initial assessment and certificate fee, and has been initiated into the lodge, then such person shall be entitled to any benefits that may be due in the event of death under the terms of the relief fund certificate issued. * * * The subordinate lodge shall, upon receiving notice of approval' from the supreme medical examiner, and after tho initiation of the applicant, forward the application to the supreme secretary, with the prescribed fee for the relief fund certificate. * * *
“Seo. 4. The liability of the order to pay benefits, and the liability of the members to pay assessments, shall take effect at the time of the approval of the supreme medical examiner: Provided, that the liability of the order to pay benefits, and of applicants for membership to pay assessments, shall date even with the initiation of the applicant: And provided, also, that no liability ' shall exist on the part of the order to pay benefits until the initial assessment and certificate fee are paid.”

The charter contains no such provision. If, as defendant’s counsel insist, the initiation was by these by-laws made a condition precedent to the issue of the certificate, yet this condition might be waived. When, in the absence of fraud, a policy of insurance is issued in violation of such provisions of the by-laws, those provisions are waived, and the policy is valid. This appears to be the well-settled rule. Davidson v. Benefit Society, 39 Minn. 303 (39 N. W. 803, 1 L. R. A. 482); Morrison v. Insurance Co., 59 Wis. 162 (18 N. W. 13); Fitzgerald v. Life Ass’n, 3 N. Y. Supp. 214; Union Mut. Fire Ins. Co. v. Keyser, 32 N. H. 313 (64 Am. Dec. 375); Perine v. Grand Lodge A. O. U. W., 48 Minn. 82 (50 N. W. 1022); Nibl. Acc. Ins. & Ben. Soc. § 147. The issue of a certificate is evidence that prior conditions have been complied with, or, if not complied with, that they have been waived; and, in the absence of fraud, it is proof of the member’s good standing. High Court I. O. F. v. Zak, 136 Ill. 185 (26 N. E. 593; 29 Am. St. Rep. 318); Tits- worth v. Titsworth, 40 Kan. 571 (20 Pac. 213); Mulroy v. Supreme Lodge K. of H., 28 Mo. App. 463; Supreme Lodge K. of H. v. Johnson, 78 Ind. 110; Kumle v. Grand Lodge A. O. U. W., 110 Cal. 204 (42 Pac. 634).

The main defense is one of fact, viz., that no certificate was ever issued. Defendant’s counsel insist that, under the evidence, the court should have directed a verdict for it. In order to sustain this contention, it must be found that there was no substantial evidence that a certificate was issued. The undisputed facts are that Mrs. Wagner signed the original petition for a charter for the Bishop Lodge; that she made application for medical examination ; that in that application reference was made to her application for relief fund membership; that she paid to the proper officer of defendant the dues necessary to become a beneficiary member; that she was examined and approved by the medical examiner; and that she tendered the first assessment that was made after the date of her alleged certificate, and that this was received under protest. The declaration alleges that the certificate was lost. In addition to the above conceded facts, plaintiff testified that his wife made application as a relief fund member at the same time that he did. One Hess, the protector or presiding officer of Bishop Lodge, testified:

“I know that I signed a beneficiary certificate received from'the grand lodge, issued to Mary Wagner. When I received the certificate I signed it, and gave it, with the other certificates,,'to our recording secretary’s wife, Mrs. Herrick. It was at her residence that I signed them.”

The force of this testimony was weakened by the cross-examination, but not to the extent of wholly destroying its value. On redirect examination he testified:

“I can’t say whether Mary Wagner’s name appeared as the insured in that certificate, but her name was there, and she was insured.”

This witness was the first presiding officer of the local lodge, had been re-elected, and was such officer at the time of the trial. The weight to be given his testimony belonged to the jury, who heard him testify. There is nothing in the record to indicate any desire or intention on his part to be untruthful.

Mr. Herrick, the recording secretary, testified that there was a certificate issued to Mary Wagner; that it came in the first batch of certificates received from the grand lodge; that he left it in a drawer in his possession, in the lodge room; that it disappeared from there; that he did not know what became of it; that it was issued to Mary Wagner. Witness was then shown William Wagner’s certificate, and he said, that it was the same in form as the one issued to Mary Wagner. On cross-examination he testified:

“ There was no name in the body of her certificate other than her own and her husband’s. I can’t answer positively which one came first, but I can tell which appeared first on the outside. The names were placed on the outside by my wife. Mary Wagner’s certificate • was for $1,000, and William Wagner’s certificate was for $1,000. William Wagner’s certificate was delivered to' him all right. It came at the same time that Mary Wagner’s did, and I signed it at the same time.”

On recross he said:

“I wish to say that I am very sure that I saw ‘Mary Wagner’ on the outside; but on the inside, I will not state positively whether it was as member or beneficiary on the inside.”

Mr. Hess was recalled, was shown William Wagner’s certificate, and testified:

“Mary Wagner’s name appeared in her certificate in , precisely the same place where William Wagner’s name appears, and reads just as her certificate read, with her name in it:
“ ‘ This certificate, issued by the Supreme Lodge of Knights and Ladies of Honor, witnesseth, that Mary Wagner, a member of Bishop Lodge, No. 2,026, of said order, located at Detroit, in the State of Michigan, is entitled to all the rights and privileges of membership in this order of Knights and Ladies of Honor, and to participate in the relief fund of the order to an amount of $1,000.’
“Any name might be placed in there, and I could read the certificate in the same way. I can swear that her name appeared there.”

Emma Kramer, another charter member, testified that she looked over these certificates at Mrs. Herrick’s house after the lodge had been instituted; that she saw Mr. Wagner’s and Mrs. Wagner’s certificates, — -read them through; and that William Wagner was the beneficiary in Mrs. Wagner’s certificate. On cross-examination she testified: “Mary Wagner’s certificate came back with the first batch, I am almost positive.”

The evidence on the part of the defendaht showed that the name of Mrs. Wagner did not appear as a beneficiary member upon the records of the grand lodge, and that there was upon their books no record of anjr fees or assessments received from her to constitute her such a member. The evidence is very strong, but is not of that character that justifies a court in saying that it is unimpeachable. We cannot say that it was impossible for the officers of the grand lodge to make a mistake. It is not the province of a court to say that the testimony of these three witnesses that they saw the certificate is false. If their testimony be true, a certificate was issued. In addition to this is the evidence of ■ her application and the certificate of the medical examiner, showing that she had taken steps to become a beneficiary member. We think there was a clear conflict of evidence, and that this question was properly left to the jury.

One of the defendant’s laws provides:

“In receiving money from members in payment of relief fund assessments, and in all acts performed in complying with the relief fund laws of the order, the subordinate lodge and its officers are the agents of the members, and not the agents of the supreme lodge.”

It is now urged that plaintiff cannot recover, because Mrs. Wagner’s agent, the local lodge, neglected to remit her dues to the grand lodge. This is, in effect, saying to the members of the defendant: “The local lodge is authorized to receive the dues from members, to be remitted to us [the supreme lodge], but you pay it there at your risk. If our agent, who is authorized to receive this money, fails to pay it to us, it is your loss, and not ours.” A merchant might as well say to his debtors: ‘ ‘ Mr. A., my collector, is authorized to receive the money you owe me, but you must see that he gets the money to me, or you will not be relieved from liability. ” This question was before the Supreme Court of the United States in Knights of Pythias v. Withers, 177 U. S. 260 (20 Sup. Ct. 611), and the court said:

“To invest him [the secretary] with the duties of an agent, and to deny his agency, is a mere juggling with words. Defendant cannot thus play fast and loose with its own subordinates. Upon its theory the policy holders had absolutely no protection. They were bound to make their monthly payments to the secretary of the section, who was bound to remit them to the board of control; but they could not compel him to remit, and were thus completely at his mercy. If he chose to play into the hands of the company, it was possible, for him, by delaying his remittance until after the end of the month, to cause a suspension of every certificate within his jurisdiction.”

It is also urged that plaintiff did not make legal tender of the October assessment. ■ The testimony of plaintiff is that he offered to pay it for his wife, but that the financial secretary refused to receive it. He had already made legal tender of the previous assessment, due in September, which was refused; the defendant then denying the membership of Mrs. Wagner. The law does not require useless things to be done. It was useless to tender a second assessment when a' previous one had been refused upon the ground that Mrs. Wagner was not a member.

Complaint is made of the exclusion of the following question on behalf of the defendant to the clerk in the office of the supreme secretary:

“Mr. Hutton, so far as your duties are concerned, and so far as you have come in contact with the*records in any office of this association, what have you to say as to whether Mary Wagner was ever a'member of defendant organization ? ”

Counsel insist that it is permissible to show, by a witness who has examined a record, the absence of entries thereon'; citing Maxwell v. Paine, 53 Mich. 30 (18 N. W. 546); Hoffman v. Pack, Woods & Co., 114 Mich. 1 (71 N. W. 1095). The above question is not within those authorities. The question did not ask whether he had examined the records, and whether her name appeared there. It asked for witness’ opinion, to be gathered from his duties and from his contact with the records, whether she was ever a member.

It is also urged that while there was the testimony of ■ three witnesses that the second application, in addition to the one for the medical examination, was made, there was no proof that it was ever forwarded by the local lodge to the defendant. The very fact that the grand lodge issued a certificate is some evidence to show that there was an application upon which to base it. But, if defendant chose to issue the certificate without an application, it is now estopped to assert this as a defense.

If a certificate, was issued by the grand lodge and sent to the local lodge for Mrs. Wagner, the contract was complete, although the certificate was not actually delivered to her. Delivery to the local lodge for her was equivalent to delivery to her. Lorscher v. Supreme Lodge K. of H., 72 Mich. 316, 328 (40 N. W. 545, 2 L. R. A. 206).

Complaint is made that the court charged the jury:

“If Mrs. Wagner paid her dues and fulfilled the other requirements, she would have been a member of the order, even though the certificate was not issued.”

The charge is not susceptible of this construction. In discussing the question of the fact of the certificate, the court said:

“If she had paid her dues and fulfilled the other requirements, perhaps, even though the certificate was not issued, she would have been a member. ”

Taking the entire charge together, it is evident that the jury could not have been misled by this statement. After this, and near the close of the charge, the court again instructed the jury that they must find that this certificate was issued by the supreme lodge, in order to find a verdict for the plaintiff.

The judgment is affirmed.

The other Justices concurred.


author: Montgomery, C. J.

text:
    SHELTRAWN v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroads — Negligence—Defective Car — Injuries to Servant of Shipper.
    A railroad company is liable to a servant of one to whom it has furnished a car to be loaded with freight, for injuries received by reason of defects therein.
    3. Same — Notice.
    And such liability is not dependent on its having had prior notice of such defect.
    3. Same — Proximate Cause — Pleading. ■
    The declaration in an action against a railroad company set out defendant’s duty to provide a car equipped with a safe brake, the breach of such duty, plaintiff’s attempt to stop the car by blocking it, and his consequent injury. Held, to proceed on the theory that a defective brake was the proximate cause of the injury.
    4. Same — Question for Jury.
    Plaintiff, while placing a car furnished by a railroad company for his master’s use, discovered that the brake was defective, and that it could not be used to stop the car as expected and required by the railroad company; whereupon, in obedience to the conductor’s command to block the car, he sprang from it and placed a block of wood under the wheels, and the sudden stopping of the car threw a log therefrom and plaintiff was injured. Held, to justify a finding by the jury that the defective brake was the proximate cause of the injury.

      5. Same — Contributory Negligence.
    If plaintiff acted as a prudent man, having regard for the interests of his employer, might be expected to act under like circumstances, he was not guilty of contributory negligence; and' whether he did so act was properly submitted to the jury.
    Error to Ogemaw; Sharpe, J.
    Submitted October 25, 1901.
    Decided November 12, 1901.
    Case by Edward Sheltrawn against the Michigan Central Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    The declaration alleges that plaintiff’s employer had skidded on a certain banking ground for the reception of logs, on defendant’s line of railroad, a quantity of logs to ship on defendant’s cars over its road, and that defendant had placed there 12 flat cars, to be loaded with logs by plaintiff’s employer; that these cars were placed at a point 30 or 40 rods north of the skid ways; that there was a decline from the cars to the skidways, so that the cars could be placed, as needed for loading, by the use of the brakes; and that defendant expected and required that this should be done. There was testimony tending to show that, in attempting to place one of the cars in this manner, plaintiff, who was on the moving car, found that the brake was defective, and could not use it to stop the car; that the car had reached a speed which would carry it down the incline, and possibly wreck it; that defendant’s conductor called out to plaintiff, “Stop the .car; block it;” that plaintiff accordingly sprang from the car, and placed a block of wood, which lay directly at hand, under the wheels of the car; that the sudden stopping and jarring of the car threw two of the logs from it, and injured plaintiff. The declaration charges that defendant well knew the use to which the car would be put, that it was its duty to furnish only such cars as were equipped with brakes kept in good .working order, and that it was careless and negligent in the performance of this duty. Defendant contends — First, that it is not the theory of the declaration that the defective brake was the proximate cause of the injury; second, that, as matter of law, plaintiff was guilty of contributory negligence in blocking the car; third, that the defective brake was not the proximate cause of the injury; fourth, that there was no proof of defendant’s negligence, for the reason that there was no testimony tending to show notice-to defendant of the defective brake, or that the defect had existed for such a length of time that defendant ought, by reasonable care and caution, to have known of it.

      George L. Alexander (Ashley Pond and Henry Pussel, of counsel), for appellant.

      Merrie H. Abbott and Charles S. Abbott (M. J. Lehmann and De Vere Hall, of counsel), for appellee.
   Montgomery, C. J.

(after stating the facts). It does not appear to be questioned that the relation of the defendant to this operation was such that it owed a duty of reasonable care to the plaintiff, as to which question see Roddy v. Railway Co., 104 Mo. 234 (15 S. W. 1112, 12 L. R. A. 746, 24 Am. St. Rep. 333).

As to the contention that it is not the theory of the declaration that the defective brake was the proximate cause of the injury, we do not agree with the defendant’s contention. The declaration sets out the duty of the defendant to provide a car equipped with a safe brake, and the breach of this duty, and, in orderly sequence, the events which followed.

The contention that there was no proof of defendant’s negligence need not be met by extended discussion. This is not a case where the injury is to an employé of the defendant, but the duty owed to this plaintiff, and to those engaged with him in the operation, was to supply in the first instance cars properly equipped. This is the breach of duty which the jury found, and previous notice to the defendant of a neglect of that duty was not essential.

The meritorious questions presented are whether the defective brake was the proximate cause of the injury, and whether, as matter of law, plaintiff was guilty of contributory negligence in blocking the car in the manner in which he did. The court left to the jury the question of whether the injury was the proximate result of defendant’s negligence. We think this instruction sufficiently favorable to the defendant. It is sometimes difficult to determine the proximate cause of a given result; but, as related to this case, the rule that, where a train of causes which result in an injury to a person is set in motion by another, that person will be liable to the person injured, although the intervening act or motion of such person was the immediate cause of his receiving the injury, provided the circumstances surrounding him at the time were such that his act ought not to be imputed to him as a fault, answers the defendant’s objections. See Mars v. Canal Co., 54 Hun, 625 (8 N. Y. Supp. 107), for a statement of the foregoing rule. The jury in this case might well have found that, from a knowledge of the operations in which this car was to be employed, an attempt to arrest the progress of the car, running away because of the defective brake, might be anticipated and expected. The defect was such as to naturally lead to a loss of control of the car. This being so, it may well be said that the defendant should have anticipated some effort to resist its progress. The case is closely analogous to numerous cases which were cited by this court in La Duke v. Township of Exeter, 97 Mich. 450 (56 N. W. 851, 87 Am. St. Rep. 357). In Page v. Bucksport, 64 Me. 51 (18 Am. Rep. 239), plaintiff attempted to drive over a bridge negligently left out of repair. The horse broke through the bridge, but without injury to the plaintiff. Plaintiff alighted from the buggy, and endeavored to rescue the struggling animal, and in doing so was struck by the animal and injured. It was held that the negligence of the town was the proximate cause of the plaintiff’s injury. To the same effect are Stickney v. Town of Maidstone, 30 Vt. 738, and La Duke v. Township of Exeter, supra. See, also, Gibney v. State, 137 N. Y. 1 (33 N. E. 142, 19 L. R. A. 365, 33 Am. St. Rep. 690).

The question of contributory negligence of the plaintiff is closely allied to this. The plaintiff was called upon to act in an emergency, in an attempt to save the property of his employer and of the defendant. A moral obligation rested upon him to act as a prudent man, having regard for the interests of his employer, might be expected to act under like circumstances. If he did not go beyond this, he was not guilty of contributory negligence. See a full discussion of this subject in 1 Thomp. Neg. § 199.

We think no error was committed to the prejudice of the defendant, and the judgment will be affirmed.

Hooker, Moore, and Long, JJ., concurred. Grant, J., did not sit.


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    CALLAHAN v. CITY OF PORT HURON.
    1. Defective Sidewalks — Manner of Injury — Instructions— Theories of Parties.
    Where, in an action for injuries caused by a defective sidewalk, plaintiff alleged in his declaration, and testified on the trial, that the accident occurred while he was walking, and defendant introduced testimony tending to show that plaintiff was riding a wheel at the time he was injured, it was error to refuse an instruction that, if he was so riding, he ^ could not recover; which error was not cured by the general instruction that, to entitle plaintiff to recover, he must have been in the exercise of due care, or by the further instruction that he could not recover unless he received his injuries in the manner alleged.
    2. Same — Evidence—Question for Jury.
    In an action for injuries caused by.a defective sidewalk, plaintiff testified that he was walking at the time of the accident, 128 Mich. — 43. though he had his bicycle with him. Defendant introduced testimony tending to show that, on the second day after the accident, one of the planks of a crosswalk, some 10 feet north of the point alleged in the declaration, was found displaced, leaving a space through which a bicycle wheel might drop to the ground, some 12 inches below; and that the mark of a bicycle tire corresponding to the tire of plaintiff’s wheel was discovered in the earth beneath the walk. Held, to raise a question for the jury as to whether plaintiff was riding a wheel at the time of the injury.
    Error to St. Clair; Thomas, J.
    Submitted October 25, 1901.
    Decided November 12, 1901.
    Case by John H. Callahan against the city of Port Huron for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Lincoln Avery (Beach & Benedict, of counsel), for appellant.

      Joseph Walsh, for appellee.
   Montgomery, C. J.

Plaintiff recovered a judgment for injuries claimed to have been received by falling on a defective sidewalk. The plaintiff’s testimony was to the effect that the injury occurred while he was walking on the sidewalk, at some little distance from a crosswalk, to which reference was made by the testimony of the defendant’s witnesses. The sole error complained of is the refusal of the court to instruct the jury that, if the plaintiff was riding a wheel at the time he was injured, he could not recover.

There can be no doubt that the defendant was entitled to have this instruction given, if there was any evidence tending to sustain the defendant’s theory, for the reason that it wholly disproved any claim made by the plaintiff as to the manner of his accident, as well as the theory of his declaration. Nor do we think the general instruction of the court that, to entitle the plaintiff to recover, he must have been in the exercise of due care, nor the implication in the general instructions that he could not recover unless he received the injuries in the manner alleged, would be sufficient to cure this error. The defendant has a right to, have the attention of the jury challenged to his theory of the case, if that theory is supported by legal evidence. Babbitt v. Bumpus, 73 Mich. 331 (41 N. W. 417, 16 Am. St. Rep. 585); Parrish v. Bradley, 73 Mich. 610 (41 N. W. 818).

The evidence on the part of the defense which tended to show that this accident occurred at the crosswalk, and while plaintiff was riding a wheel, was evidence that he had his wheel with him; that the wheel was sold to plaintiff’s brother by one Unger, and by his brother to himself; that.it had, at the time it was sold, a “Vim” tire, which would make an impression in the earth the same as canvas; that the west plank of the crosswalk had been displaced, allowing sufficient space between it and the plank adjoining for a bicycle wheel to drop through; that there was a drop from the crosswalk to the north side of the ditch of about a foot, and that on this north slope there was found in the earth the mark of a bicycle tire which corresponded to the tire of plaintiff’s wheel; that this crosswalk in question was some eight or ten feet north of the point alleged in the plaintiff’s declaration; that a discovery of this condition and of these marks of the bicycle wheel was made by defendant’s witnesses the second day after the injury. We think that this evidence entitled the defendant to have the question submitted to the jury, and, as this was not done, although requested, the judgment will be reversed, and a new trial ordered.

The other Justices concurred.


author: Moore, J.

text:
    BAER v. MINOCK.
    Lease — Contract in Writing — Correspondence—Ambiguity.
    Where, in pursuance of oral negotiations concerning a lease, plaintiff wrote defendant; “Herewith please find receipt for advance rent on premises, beginning May 1st; rent $25 per month, first six months,” and defendant replied, “All is right,” there was a written contract of leasing for a term of six months.
    Error to Wayne; Hosmer, J.
    Submitted October 10, 1901.
    Decided December 3, 1901.

      Assumpsit by John D. Baer against John K. Minock for rent. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Bacon & Yerkes, for appellant.

      James H. McDonald, for appellee.
   Moore, J.

The plaintiff advertised his store building-in Detroit for rent. The defendant replied thereto .by letter. As a result, Mr. Minock came to Detroit, looked over the premises, and with Mr. Baer drove around the vicinity of the store, and after some conversation, according to the claim of the plaintiff, offered him $10 “for the rent of the building at $25 a month for the first six months, payable in advance,” providing that plaintiff build a barn on the premises for use in the hay and feed business, which Mr. Minock contemplated conducting in connection with a meat and grocery store, which offer was accepted by Mr. Baer, who sent Mr. Minock a letter the following day (April 21, 1900), stating the terms of the agreement in accordance with their conversation, in which it was stated, “Herewith please find receipt for advance rent on room 686 Third Ave., beginning May 1st, 1900; rent $25 per month, first six months. ” It also contained information concerning the building of the barn. Mr. Minock replied thereto by letter dated April 24, 1900, in which it was stated: “All is right. I am loading two cars with hay and produce, and will be in Detroit as quick as I can.” Mr. Minock went into possession, and paid $25 in advance for the rent of the building, and before June 1st vacated the store, and left the keys at the baker’s shop, next door. Mr. Baer did , not accept the surrender of the premises, but demanded the rent of Mr. Minock for each month as it accrued. He refused payment, and Mr. Baer commenced suit in justice’s court July 11,1900, to recover the accrued rent. The case was appealed to the circuit court, where a jury rendered a verdict in favor of defendant. Plaintiff brings error.

We do not deem it necessary to discuss all the assignments of error, as a disposition of one of them disposes of the case. The court was asked to charge the jury that the contract was in writing, but declined to do so. He said to the jury:

“About the only thing for you to decide in this case is what the contract between the parties respecting the leasing of the premises on Third avenue was. You have heard the testimony in this case, and it appears from the testimony of both that they met here in the city of Detroit, and that Mr. Minock and Mr. Baer went up to the premises and drove around the surrounding streets, or the streets in the immediate vicinity; that, when they parted, Mr. Minock at that time paid him $10 upon the lease of the premises. Their stories did not agree as to what the lease was. Mr. Baer tells you it was a lease for six months; Mr. Minock tells you it was simply a lease from month to month; and it is for you, I think, to decide which is correct. Now, after they separated, Mr. Baer wrote this letter, which I will read as far as is essential, though I shall not read the entire letter:
“‘Detroit, Mioh., April 21, 1900.
““J. K. Minock, Esq.
“ ‘ Dear Sir: Herewith please find receipt for advance rent on room No. 686 Third avenue, beginning May 1st, 1900; rent $25 per month, first six months.’
“On the 24th of April Mr. Minock answered the letter as follows:
“ ‘ Dear Sir: I received your letter. All is right. I am loading two cars with hay and produce, and will be at Detroit as quick as I can.’
“Now, these letters, together with the conversation * they had, I think, constitute all the evidence from which you are to deduce the terms of the contract between them. You may consider these letters as bearing upon the question. If it were not for the fact that I believe ‘ rent $25 per month, first six months,’ is ambiguous, I think it would be doubtless true that the contract would exist in writing; but' I am not prepared to say to you that ‘ rent $25, first six months,’ relates to the term for which the premises were leased. You may find that it does so relate to the term, and you may find from the oral contract, from the testimony 6f Mr. Baer, and from this letter, and the answer, ‘All is right,’ that it was for six months; but I do not think that the phrase ‘ rent $25 per month, first six months,’ necessarily refers to the term. It may be expressive of the rent alone; that is to say, you may find that the rent was payable at $25 per month, and was to continue for six months if he stayed that length of time.”'

We cannot agree with the learned circuit judge that there is anything ambiguous about-this correspondence. The defendant says he does not remember getting the letter of April 21st, but does not deny getting it, and clearly the letter of April 24th is in answer to it. The construction of the contract was for the court, and not for the jury. Battershall v. Stephens, 34 Mich. 68; Wagner v. Egleston, 49 Mich. 218 (13 N. W. 522); Brown v. Schiappacasse, 115 Mich. 47 (72 N. W. 1096); Ranney v. Higby, 5 Wis. 62; Scanlan v. Hodges, 3 C. C. A. 113, 52 Fed. 354. Under the proofs the plaintiff was entitled to an instruction to the jury that he was entitled to recover two months’ rent. Scott v. Beecher, 91 Mich. 594 (52 N. W. 20).

Judgment is reversed, and new trial ordered.

Montgomery, C. J., Hooker and Long, JJ., concurred. Grant, J., did not sit.


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    BOARD OF MANAGERS OF MICHIGAN SOLDIERS’ HOME v. JACKMAN.
    Boundaries — Location—Evidence—Appeal.
    A decree finding that a certain fence had been acquiesced in as a line fence by the adj acent proprietors for more than 15 years, and establishing the true boundary accordingly, was affirmed on a review of the evidence.
    Appeal from Kent; Wolcott, J.
    Submitted October 10, 1901.
    Decided December 3, 1901.
    Bill by the' board of managers of the Michigan Soldiers’ Home against Richard O. Jackman to enjoin the removal of a fence. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      E. A. Maher, for complainant.

      Edward G. McBride (James E. McBride, of counsel), for defendant.
   Montgomery, C. J.

The bill asks that defendant be enjoined from interfering with a fence built by complainant, as it claims, upon its own grounds. The bill was dismissed by the court, with a finding that the fence stands wholly upon defendant’s land.

The boundary between complainant’s and defendant’s land is the north and south quarter line of the section. There is much testimony in the record bearing upon the location of the center post of the section, for,the purpose of fixing the boundary. But it is undisputed that a certain old board fence had served as a line fence between the two properties for many years. The testimony is very conflicting, and an attentive reading of the entire testimony has left some doubt in our minds; but, on the whole record, we incline to the opinion that the line as found by the circuit judge is the correct line, and one which has been recognized by adjacent proprietors for more than the period of the statute of limitations. When we take into view the better opportunity of the circuit judge to decide-the question of fact, we feel that we are not authorized to disturb his finding. The same considerations induce us to sustain his holding denying the application for a rehearing.

The decree will be affirmed.

Hooker, Moore, and Long, JJ., concurred. Grant, J., did not sit.


text:
    MURNAN v. MURNAN.
    Divorce — Extreme Cruelty — Refusal to Cohabit.
    After several years of married life, a wife refused longer to live with her husband, or to cohabit with him, declaring that she did not love him, and left his home, remaining away for 10 months. Held, not to authorize a divorce on the ground of extreme cruelty. Whitaker v. Whitaker, 111 Mich. 203, distinguished.
    Appeal from Wayne; Frazer, J.
    Submitted October 22, 1901.
    Decided December 3, 1901.
    Bill by John Murnan against Lillian Murnan for a divorce. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Warner & Godd, for complainant,
   Moore, J.

The bill in this case is filed for a divorce on the ground of extreme cruelty. The facts as they appeared in the testimony were that the complainant had been married some years to defendant, and that the result of said marriage was a child; that the child died, and, upon the death of the child, the defendant refused longer to live or cohabit with the complainant, and left his home, and went to live with her mother. Complainant was a lake captain, and lived with his wife during winters. The defendant lived with her friends or relatives during summers, while he was absent upon his boat. The ground specified, in the bill — cruelty—is that the defendant refused to cohabit with the complainant, and that for 10 months she has refused to live with him or cohabit with him, stating that she did not care for him and did not love him. The circuit judge was of the opinion that the proofs disclosed a case simply of desertion, which had not continued a sufficient length of time to constitute a ground of divorce, and dismissed the bill. The case is brought here by appeal, complainant contending the case is governed by Whitaker v. Whitaker, 111 Mich. 202 (69 N. W. 1151), and that a decree should have been granted in favor of complainant.

The opinion in Whitaker v. Whitaker is a brief one, and does not undertake to set out the facts disclosed by the record. In that case the defendant, during the entire period of her married life, refused to cohabit with her husband. She insisted upon having all the privileges of her new relation without assuming its duties. No such case is here shown. We think the circuit judge properly dismissed the hill of complaint.

The decree is affirmed.

The other Justices concurred.


author: Grant, J. Hooker, J.

text:
    GAGE v. CITY OF SAGINAW.

    1. Taxes — Payment—Duress.
    A payment of taxes on land to enable the owner to effect a sale no demand of payment or threat of levy having been made, is not an involuntary payment.
    2. Same — Voluntary Payment — Right to Recover.
    The only right to recover a void tax voluntarily paid is that given by 1 Comp. Laws, § 3876, under which the payment must have been made to a city or township treasurer under written protest, and suit brought within 30 days thereafter.
    3. Same — Defenses.
    But it is no defense to an action under such statute that the
    . tax was paid solely to facilitate a sale of the premises.
    4. Same — Reassessment—Authority.
    Authority to reassess a tax must proceed from the board of supervisors.
    5. Judgments — Proof—Enrolled Decree.
    Where a record on appeal shows the introduction in evidence of an enrolled decree, which is set out in full, reciting the presence of both parties by counsel, it cannot be said that the adjudication was not sufficiently proved.
    Error to Saginaw; Snow, J.
    Submitted December 6, 1900;
    opinion filed (for affirmance) January 29, 1901.
    Rehearing granted June 24, 1901;
    reargued October 25, 1901;
    former order reversed December 3, 1901.

      Assumpsit by Alice B. Gage against the city of Saginaw to recover taxes paid under protest. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      William G. Gage {Gamp & Broolcs, of counsel), for appellant.

      Henry E. Naegely, for appellee.

       The original opinion in this case was withheld from publication pending a rehearing.

   Grant, J.

Plaintiff’s real estate in the defendant city was taxed in 1894. The taxes were set aside by the court in 1897. The sanee were reassessed in 1899. Plaintiff was negotiating a sale of this property, and for that purpose desired these taxes paid, and the alleged cloud upon her property in consequence thereof removed. For this purpose she applied to the city treasurer to pay them, and, as well, those of 1897 and 1898. The treasurer had made no threats- of levy or demand for payment. He had only published the prescribed notice in regard to the payment of taxes. She, with her husband, went to the office of the city treasurer to pay. What there occurred appears from her husband’s testimony as follows:

Q. And that you wanted to pay them under protest ?
“A. I went there to make a formal protest against the payment of the taxes, and said to Mr. Messner, ‘ Mr. Messner, my wife is here, and I wish you to make demand upon her for the taxes of ’94, reassessed in 1899, and the taxes of 1899; it is desired to pay them under protest;’ and that is in substance what I said to him. I then introduced him to my wife, and stated that before her and Mr. Messner. I don’t remember what he did say.”

The court directed a verdict for the defendant.

The direction was right. The case is ruled by Weston v. County of Luce, 102 Mich. 528 (61 N. W. 15).

The other Justices concurred.

ON REHEARING.

Hooker, J.

The plaintiff was owner of a lot in Saginaw numbered 51, upon which there were unpaid taxes, assessed in 1894, 1897, 1898, and 1899. The cause was before us at the October, 1900, term, when the judgment was affirmed. It is now made to appear that the taxes for 1894 had been decreed invalid by the circuit court, but they were afterwards reassessed, and appeared upon the roll for 1899, and were paid to the city treasurer. Negotiations were entered into by her for the sale of these premises, and, as the circuit»] udge instructed the jury, in order that she might consummate such sale, which she could not do with the taxes unpaid, she caused them to be paid, those for 1899, including the reassessed tax, to the city treasurer, and those for 1897 and 1898 to the county treasurer, each payment being accompanied by a protest. This action was then seasonably brought against the city of Saginaw to recover the amount so paid. A verdict was directed in favor of the defendant, and the plaintiff has brought the case here by a writ of error. Her contentions are:

1. That the taxes were all void, and that they were involuntarily paid, and that the city is liable for the portion of them that came to its possession.

2. That as to the tax of 1899, including the reassessment, she had a statutory right to pay under protest and bring her action, under section 3876 of the Compiled Laws.

The taxes were none of them paid under duress. The court so finds, and we think his conclusion the only one which could have been legitimately drawn from the proof. That is a sufficient answer to the claim for the taxes paid to the county, for there is no right to recover a void tax voluntarily paid, from either county or city, except it be paid to the township or city treasurer under section 3876. This is held in Weston v. County of Luce, 102 Mich. 528 (61 N. W. 15).

Conceding that the payments made to the city treasurer were made for the purpose merely of facilitating a sale of the premises, such payment under protest was one which the statute gave the right to make. The object of the statute was apparently intended to permit the owner of property to avoid the inconvenience, and the State the expense, of unwarranted proceedings to collect the tax, by encouraging early action to be taken while the fund is still in the hands of the municipality receiving it, to test the taxpayer’s liability, as intimated in Weston v. County of Luce. This statutory right was an unqualified one, and if we might possibly hold that it should not extend to one who should pay a tax which he was bound to know was not colorably valid, — which we do not mean to intimate, — the right does not depend upon the character of the annoyance or inconvenience which leads him to avail himself of the provisions of this statute in ordinary or doubtful cases. There is some force in the suggestion that this construction of the statute makes it possible to annoy the townships with cases of this character for speculative purposes, but that is a reason for abrogating the law that should be addressed to the legislature, rather than to the courts. This leaves the questions relating to the sum paid to the city treasurer upon the roll of 1899.

The tax for the year 1894 was held void by the decree of the circuit court. It is said that this was not proved. The decree recites the presence of both parties by counsel, and, being a decree of a court of record, duly enrolled with the petition and presumably other papers, constituted the record, which was sufficient. See Thayer v. McGee, 20 Mich. 195.

It appeared that a reassessment was made without authority of the board of supervisors, lot 51 not being included in the list of lands contained in its resolution. It would seem to follow that the reassessment was void for this reason, if not for want of authority on the part of the supervisors to order the reassessment of a void tax. The court held this tax valid.

There are some questions relating to the validity of the tax for the year 1899, but, as none of these appear to have been passed upon by the circuit court, and the questions should be determinable under our previous decisions, we omit discussion of them here.

The judgment is reversed, and a new trial ordered.

Montgomery, C. J., Moore and Long, JJ., concurred. Grant, J., did not sit.


text:
    HURON LAND CO. v. ROBARGE.
    1. Deeds — Estates of Decedents — Prima Facie Title.
    A deed from the widow and sole heirs at law of a deceased landowner establishes a prima facie title in the grantee, without proof that the estate has never been administered.
    2. Same — Description of Property.
    A deed purporting to convey all the right, title, and interest of such persons in and to the estate of such owner, whether real, personal, or mixed, is sufficient to pass their interest in his real estate.
    3. Tax Titles — Risht of Possession — Notice to Owner — Cutting Timber. ‘
    . Under 1 Comp. Laws, § 3961, providing that no purchaser under any tax sale shall enter into possession of the land purchased until six months after notice to the parties in interest of their right to redeem, a tax purchaser who fails to give such notice obtains no possessory title to the land, and, in entering and' cutting the timber thereon, he is a trespasser.
    Error to Alpena;- Emerick, J.
    Submitted November 14, 1901.
    Decided December 3, 1901.
    Replevin by the Huron Land Company, Limited, against Ignace Robarge. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.
    This is an action of replevin for timber cut from certain lands described in the affidavit, the writ of replevin, and the declaration. Plaintiff showed a complete chain of record title from the State to it. Defendant claimed title by viutue of a tax deed dated April 7, 1899. Defendant failed to give notice to the original owner of his tax purchase, as required by Act No. 229, Pub. Acts 1897, entered upon the land, and cut off the timber in dispute. Thereupon plaintiff brought this action. The court directed a verdict for the plaintiff.

      R. J. Kelley, for appellant.

      H. K. Gustin (Cahill & Wood, of counsel), for appellee.
   Grant, J.

(after stating the facts). The patent from the State was issued to Lorenzo M. Mason. He died, and a deed was introduced from Charlotte Mason, his widow, and Charles E. and Julia B. Mason, his children, described in the deed as the sole heirs at law of Lorenzo M. Mason. The proofs conclusively show that they were such. It was unnecessary to show that the estate of Lorenzo M. Mason had never been settled. The title to real estate is in the heirs, and the title conveyed by them is good, subject to the claims of creditors, if the estate has not been administered. The deed from these heirs described the property as “all their.right, title, and interest in and to the estate, property, and effects of the late Lorenzo M. Mason, * * * be the said estate real, personal, or mixed,” etc. This description was sufficient. Austin v. Dolbee, 101 Mich. 292 (59 N. W. 608).

The defendant was a trespasser. He obtained no right under his tax deed to enter upon the land, or to remove the timber therefrom. He could obtain no possessory title thereto under the law until he had served the notice required under the act above named, and the plaintiff had had six months within which to redeem. Corrigan v. Hinkley, 125 Mich. 125 (83 N. W. 1020). The serving of this notice is a condition precedent to vesting the title under the tax proceedings in the tax purchaser.

Judgment is affirmed.

The other Justices concurred.


text:
    HORWITZ v. PEPPER.
    1. Brokers — Sale of Real Estate —Right to Commissions — Double Employment.
    Where, in an action for commissions on a sale of real estate, it appeared that plaintiff first took a contract to himself, refusing until afterwards to disclose the name of the purchaser, he was something more than a middleman, and hence if, without defendant’s knowledge, he was also to receive compensation from the purchaser, he could not recover from defendant.
    3. Same — Implied Contract — Evidence.
    Where, in an action for commissions on a sale of real estate, plaintiff’s claim rested on an alleged conversation in which he told defendant that he thought he-could sell his land for him, and defendant said that he wished he would, the fact that plaintiff was not a real-estate broker, but a dealer in cigars, and that he frequently stopped at the hotel of defendant, who bought all of his cigars from him, was competent for the jury to consider in determining whether there was an implied contract of employment. '
    Error to Alpena.; Emerick, J.
    Submitted November 15, 1901.
    Decided December 3, 1901.

      Assumpsit by Marks Horwitz against John Pepper to recover a commission on a sale of real estate. Prom a judgment for defendant, plaintiff brings error.
    Affirmed.
    This suit is brought to recover a commission for an alleged sale of real estate. Plaintiff was a manufacturer and dealer in cigars, residing in Alpena, and traveling over the adjoining country selling his goods. Defendant kept a hotel in Millersburg, a small village. Por some years defendant had purchased his cigars exclusively from plaintiff. When at Millersburg plaintiff stopped with the defendant. On one of these occasions a conversation occurred about the sale of defendant’s hotel, in which plaintiff testified that defendant asked him if he could find a buyer for the hotel; that he would like to sell it, and, if he could hear of anybody or find anybody to sell it, he would like to sell it; that afterwards he had another conversation with him, in which he asked defendant if he still wanted to sell the place; that defendant replied he did; that plaintiff told him he thought he could find a buyer, and that defendant said, “If you can, I wish you would.” This is the testimony relied upon to constitute an implied contract of employment to sell the property. Defendant denies this conversation, testifying that he only told plaintiff that, if he (defendant) got a chance to sell the property, he would sell it. Plaintiff effected a sale, first taking a contract to himself, refusing to tell defendant who the purchaser was until he had secured a written contract. The purchaser lived in Millersburg, and paid plaintiff $50 for services rendered by him in the matter. The jury rendered a verdict for the defendant.

      1. S. Canfield, for appellant.

      Charles It. Henry, for appellee.
   Grant, J.

(after stating the facts). The court very clearly instructed the jury in accordance with the rule in Friar v. Smith, 120 Mich. 411 (79 N. W. 633, 46 L. R. A. 229). There was evidence that neither the defendant nor his vendee had any knowledge that either was paying plaintiff a commission. Plaintiff, under his own testimony, was not a middle man, under the rule of that case. He negotiated the trade himself with the defendant, who did not know who the real vendee was until he had executed his contract to the plaintiff.'

Plaintiff was not a real-estate dealer, and never attempted to negotiate a sale before. This fact, and his relations and dealings with the defendant, were competent ■evidence for the jury to consider in determining whether, even under the plaintiff’s own statement, there was an implied contract of employment.

Judgment affirmed.

The other Justices concurred.


author: Long, J.

text:
    BROWN v. NEHMER.
    Drain Taxes — Duty op Supervisor — Mandamus.
    On mandamus to compel a supervisor to-spread a drain, tax upon his roll in accordance with the direction of the board of supervisors, the pendency in the Supreme Court of an appeal from a decree dismissing a bill against the drain commissioner to restrain the levy of the tax, and .dissolving a preliminary injunction issued thereon, is no ground for denying the writ.

      Certiorari to Saginaw; Beach, J.
    Submitted November 19, 1901.
    Decided December 3, 1901.

      Mandamus by Alonzo M. Brown, drain commissioner of Saginaw county, to compel Frederick Nehmer, supervisor of the township of Swan Creek, to assess a certain drain tax. From an order denying the writ, relator brings certiorari.

    Reversed.

      James H. Davitt, for relator.

      F. E. Emerick and 6r. W. Davis, for respondent.
   Long, J.

It appears that the relator, as drain commissioner of Saginaw county, in the years 1899 and 1900 laid out and established a drain through the townships of Fremont, Richland, and Swan Creek, in Saginaw county, the total cost of which was $12,000; the sum of $1,800 being apportioned to the township of Swan Creek at large, and a special assessment of $1,596, less $31, awarded to landowners as damages, or a net special assessment of $1,565, being made upon particular descriptions. It also appears from the certificate of determination attached to the roll that one-half of said special assessment was to be collected in the year 1900 and the remaining half in 1901. The certificate to the special assessment roll bears date September 5, 1900.

The statute (1 Comp. Laws, § 2475) requires the board of supervisors to meet annually on the second Monday of October in each year, which in 1900 was October 8th. During that session the board ordered that there be assessed upon the tax roll of Swan Creek for that year, of these drain taxes, the sum of $2,587.50, composed of the $1,800 tax upon the township at large and $787.50 of the special assessment. The respondent is supervisor of the township of Swan Creek, and failed or refused to so assess the tax. Relator thereupon filed a petition in the circuit court for Saginaw county to compel the respondent to assess this tax. An order to show cause was issued, and respondent filed his answer thereto. The court denied the petition on the sole ground that there was then “pending in the Supreme Court in the case of Helon B. Allen and the township of Swan Creek, complainants, against Alonzo M. Brown, the above-named relator, drain commissioner of Saginaw county, defendant, an appeal from a decree entered in the circuit court for Saginaw county, in chancery, in and by which decree the bill of complaint in said cause was dismissed, with costs; this court being of the opinion that the pendency of said appeal renders it improper to spread upon the tax roll of respondent’s township the taxes and assessments so ordered to be spread by the board of supervisors of Saginaw county at its October session in 1900.” The case comes into this court by certiorari.

It appears that the chancery proceedings involve the validity of the drain proceedings for the assessment of the taxes as above ordered to be spread by the board of supervisors in the township of Swan Creek, and that that case is"btill pending in this court. It is the contention of the relator (appellant) that the court below was in error in refusing the mandamus because of the appeal of this chancery case to this court; that, the court below having refused to issue the injunction to restrain the collection of these taxes, an appeal would not estop the drain commissioner from insisting upon the assessment of the taxes, nor excuse the supervisor from the performance of his duty. In this, we think, counsel for relator is correct. The appeal does not reinstate the injunction. Tho supervisor’s plain duty under the circumstances is to assess this tax, and it must be so ordered.

The order of the court below must be reversed, with costs.

The other Justices concurred.


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    SHANAHAN v. COBURN.
    Sale — Payment—Title—Failure of Consideration — Election of Remedies.
    Plaintiff sold wheat to J., to he paid for on delivery on the cars. J. consigned the wheat to C., depositing with defendant a draft therefor, with bill of lading attached. C. paid the draft, but plaintiff, not having received his pay, replevied the wheat in transitu, whereupon C. sued the sheriff in trover. Both suits were afterwards discontinued on C.’s assigning to plaintiff his claim for the money paid to defendant on the draft, and plaintiff brought suit therefor, on the theory that the consideration for the payment had failed. Held, that, J. having no title to the wheat, none passed to C., and hence the bringing of the trover suit was not an election, but a mistake, of remedies, and would not bar plaintiff’s action.
    Error to St. Clair; Whipple, J.
    Submitted November 20, 1901.
    Decided December 3, 1901.

      Assumpsit by Michael P. Shanahan against Frederick GL Coburn for money had and received. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.
    Plaintiff, a farmer, sold to one Joyce, a grain buyer, about 800 bushels of wheat, to be delivered and put into •cars furnished by Joyce. Defendant, Coburn, was a banker at Memphis, Mich. The sale by plaintiff to Joyce was for cash. As fast as the grain was put into the cars, Joyce consigned them to Carson, Craig & Co., of Detroit, procured bills of lading, attached them to drafts, and deposited them in defendant’s bank, who at once forwarded them to Detroit for payment. Carson, Craig & Co. honored the drafts, and paid them immediately to defendant, Coburn. Joyce at that time was largely in debt to Coburn, who knew that plaintiff had sold his wheat to him. As soon, as the last wheat was drawn and delivered, plaintiff demanded his pay of Joyce. Joyce gave him a check on Coburn, which was dishonored because Joyce had no funds in the bank. Plaintiff then replevied the wheat in transitu.at Port Huron. Cárson, Craig & Co. brought an action of trover against the sheriff. The sheriff gave notice with his plea that plaintiff was the owner of the wheat, and that no title had passed to Joyce. Afterwards those suits were settled and discontinued, and Carson, Craig & Co. assigned their right of action against Coburn to the plaintiff. Plaintiff brought this suit to recover the money paid by Carson, Craig & Co. to Coburn upon the drafts, upon the ground that the consideration for them had failed. The court directed a verdict for the defendant upon the sole ground that Carson, Craig & Co., by suing the sheriff in trover, had elected to claim the ownership of the wheat by reason of the payment by them of these two drafts to defendant, and that that claim was inconsistent with the claim now set up by the plaintiff, their assignee.

      Hovey & Stockwell and James A. Muir, for appellant.

      Law & Moore, for appellee.
   Grant, J.

(after stating the facts). Was this instruction correct? This is the sole question presented. The court, we think, clearly confounded an election of remedies with a mistake in remedies. The court instructed the jury that, as between Joyce and plaintiff, it was a cash transaction, and that no title to the wheat passed to Joyce. It follows that Carson, Craig & Co. had no right of action against the sheriff, who had a complete defense to that action. Upon ascertaining this fact, they were justified in discontinuing that suit, and bringing an action to recover the money paid. McLaughlin v. Austin, 104 Mich. 489 (62 N. W. 719); Chaddock v. Tabor, 115 Mich. 27 (72 N. W. 1093); Smith v. Bricker, 86 Iowa, 285 (53 N. W. 250); McNutt v. Hilkins, 80 Hun, 235 (29 N. Y. Supp. 1047). .. It is not a case of election of remedies, but of mistake of remedies.

Judgment reversed, and new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    PEOPLE v. LINDGREN
    Criminal Law — Evidence—Depositions on Preliminary Examination.
    The deposition of a witness on a preliminary examination is not admissible on the trial as substantive proof of the offense charged. Distinguishing People v. Kennedy, 105 Mich. 436, and earlier cases.
    Error to Ottawa; Padgham, J.
    Submitted November 21, 1901.
    Decided December 3, 1901.
    Charles J.' Lindgren was convicted of keeping his saloon open on Sunday.
    Reversed.

      Dan F. Pagelsen and H. T. Boot, for appellant.
    P. H. McBride, Prosecuting Attorney, for the people.
   Hooker, J.

The defendant appeals from a conviction upon a charge of-keeping his saloon open on a Sunday. Many of the questions raised are to remarks of the court in the course of the trial. As the case can be disposed of upon another point, it is unnecessary to discuss them.

Ford Barnett was a witness called upon behalf of the people. The prosecutor sought to refresh his recollection by reading to him his testimony taken upon the preliminary examination. He was then asked:

“Q. Now, is that affidavit the truth?
“A. My signature is to it.
“Q. I ask you if it is true, — the whole of it.
“A. I swore to it.”

The testimony was then offered in evidence and admitted. He afterwards testified that he could not swear that the occurrence was upon Sunday, or that he swore that it was upon Sunday, and that any testimony that he gave on the last trial was from the knowledge obtained from reading the depositiqn.

After being out for a time, the jury returned, and the following occurred:

The Court: Gentlemen, is there some question that bothers you, — a question of fact or a question of law, was it?
A Juror: The main question was whether that affidavit that was read here, whether that stood all right the way it was sworn to, — if that was satisfactory testimony.
The Court: Whether it was evidence or not?
“The Juror: Yes, sir.
“The Court: Yes, sir; I so instructed you.
The Juror: That is what I thought.
“ The Court: Was that all, gentlemen ?
The Juror: That is all.”

Counsel for the prosecution relies upon the cases of People v. Butler, 55 Mich. 409 (21 N. W. 385); Lightfoot v. People, 16 Mich. 507; People v. Kennedy, 105 Mich. 436 (63 N. W. 405). In each of these cases the deposition of the witness was admitted by way of contradiction. The witness was contradicted by his own statements, which were not received as proof of or against the substance of the charge, but merely as evidence bearing upon the credibility of the witness, just as any contrary statement out of court may be used by way of impeachment. In the case before us the jury were given to understand that this deposition was competent evidence of the charge, and that they might find the accusation established by it. This was in contravention of the rule enunciated in Caldwell v. Bowen, 80 Mich. 382 (45 N. W. 185); Robinson v. Mulder, 81 Mich. 75 (45 N. W. 505).

We are constrained to reverse the judgment and direct a new trial.

The other Justices concurred.


text:
    FARNAM v. DOYLE.
    1. Pleading — Appeal from Justice’s Court — Amendment of Declaration — Assignment of Claim.
    On the trial of a case appealed from justice’s court, wherein the summons ran in the name of “ J. F., assignee of L. F.,” it was not error to permit plaintiff to amend his declaration by setting up an assignment of the claim sued on.
    2. Same.
    It was immaterial that the amendment allowed was not reduced to writing, the declaration being oral, and the parties having proceeded as though it were in fact amended.
    3. Same.
    It appearing that the claim was for services rendered.by plaintiff’s assignor, it could not be said that the amendment authorized did not aver the assignment of an antecedent debt.
    4. ' Same — New Cause of Action.
    The amendment of a declaration on the trial of an appeal from justice.’s court, by setting up an assignment of the claim sued on, does not introduce a new cause of action.
    Error to Wayne; Erazer, J.
    Submitted October 22, 1901.
    Decided December 3, 1901.

      Assumpsit by John Farnam against Patrick M. Doyle on an assigned claim for services rendered. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      William JS. Thompson and William Ilolston Brown, for appellant.

      Dohany & Dohany, for appellee.
   Long, J.

This action was commenced in justice’s court. The summons by which the suit was commenced reads, “John Farnam, assignee of Lawrence Farnam.” Defendant did not appear, and judgment was rendered in favor of plaintiff for $75. Defendant appealed. Shortly after the trial commenced in the circuit court, it was discovered that the declaration- did not aver the assignment, and the court permitted an amendment averring it. The declaration in the justice’s court was not in writing, and the amendment allowed by the court was not reduced to writing. The plaintiff recovered, and defendant brings error.

It is claimed that the court was in error in permitting the amendment to the declaration. We think the court properly allowed the amendment. It was a matter within the discretion of the court. Hoyt v. Wayne Circuit Judge, 117 Mich. 172 (75 N. W. 295).

It is contended that the declaration was not in' fact amended, and therefore does not aver an assignment. There was no written declaration filed. The plaintiff pleaded orally in justice’s court, and only the substance of the declaration was noted by the justice, as shown by the return. The court allowed the amendment averring the assignment, and the parties went to trial treating the declaration as being so amended, though it was not formally amended. This was a sufficient amendment. Johnston v. Insurance Co., 106 Mich. 96 (64 N. W. 5).

It is said that, if it be found that the amendment as made was sufficient, still it did not aver an antecedent -«debt.. The claim of the plaintiff was that some time prior to the month of April, 1900, Lawrence Farnam, the assignor, entered into an agreement with defendant to find a purchaser for certain real estate in Detroit belonging to defendant, who agreed to pay for such services the sum of $100; that defendant afterwards sold a portion of the property, and admitted that Lawrence Farnam found the purchaser for that piece; that another purchaser for the balance was found, who offered a satisfactory price, but the deal was never closed; that defendant paid Lawrence Farnam $35 on account, leaving a balance of $75 due; .and that the plaintiff purchased the balance of the claim from Lawrence Farnam, and paid $75 in money for it. When the question of the amendment came up, it appears that the court said to counsel for plaintiff:

“You may amend your declaration in this case by alleging in the declaration, in conformity with this summons, that the claim in this suit was assigned as you claim it was assigned, and as this assignment shows.”

We think, under these circumstances, it cannot be said that the declaration did not aver an assignment of an antecedent debt. It was an assignment of a debt due the plaintiff’s assignor, which was for services performed in selling property for defendant.

Counsel claim that the averment of the assignment sets up a different cause of action. It was held in Dawson v. Peterson, 110 Mich. 432 (68 N. W. 246), that the averment of such an assignment did not set up a different cause of action.

Some claim is made that the court was in error in .some portions of his charge to the jury. We have examined the charge, and think it not open to criticism. It fairly presented' the issues to the jury.

The judgment must be affirmed.

The other Justices concurred.


text:
    POLLASKY v. SCHMID.
    Municipal Corporations — Common Council — Ordinances — Passage Over Veto — Votes Requisite.
    Under a charter provision requiring a two-thirds vote of “all the members elected ” of the common council in order to pass an ordinance over the mayor’s veto, where one alderman ha'd died and another resigned, and their places were vacant, a two-thirds vote of the remaining aldermen was not sufficient to pass an ordinance over a veto.

      Certiorari to Wayne; Carpenter, J.
    Submitted November 12, 1901.
    Decided December 3, 1901.

      Mandamus by Marcus Pollasky to compel John A. Schmid, city clerk of the city of Detroit, to publish a certain ordinance. From an order denying the writ, relator brings certiorari.

    Affirmed.

      Groesbeck & Turner, for relator.

      John W. McGrath and P. J. M. Hally, for respondent.
   Moore, J.

This is an application for a writ of certiorari to review the action of the circuit judge of Wayne county, who denied an application for mandamus to compel the respondent to publish a certain ordinance which petitioner claims was regularly adopted. The ordinance referred to was vetoed by the mayor. The charter divides the city of Detroit into 17 wards, and provides for the election of two aldermen from each ward. The legislative power of the city is vested in a common council, to be composed of aldermen elected from each ward. Charter, § 89. One of the aldermen died, and one resigned. After the ordinance was vetoed, a motion to pass it over the veto of the mayor received 22 votes, while 7 votes were in the negative. Section 103 of the charter provides that, after the veto of any ordinance, resolution, or proceeding, the common council shall proceed to reconsider the vote by which the same was passed, and, after such reconsideration, two-thirds of all the members elected of the common council shall be necessary to pass or adopt the same. The sole question is as to the construction of this provision of the charter. The petitioner claims that, though 34 aldermen were in fact elected, as one had died and one resigned, the same number of votes would suffice to pass an ordinance over the veto of the mayor as would secure the passage of the ordinance if the council was made up of only 33 members.

There are not many authorities bearing upon the question, and they are not uniform. State v. Orr, 61 Ohio St. 384 (56 N. E. 14), sustains the contention of the petitioner, but we are not satisfied with the reasoning of the case. In City of San Francisco v. Hazen, 5 Cal. 169, the charter provided for a board of aldermen and a board of assistant aldermen, each to consist of one member from each ward; that a majority of each should constitute a quorum; and that no ordinance or resolution should be passed except by a majority of all the members elected. An ordinance was passed by a vote of four to three, there being a vacancy in the board by reason of the resignation of a member. Held, that the ordinance was not passed by a majority of all the members “elected,” and was therefore void. This case was followed in McCracken v. City of San Francisco, 16 Cal. 591, where Field, C. J., wrote the opinion, declaring an ordinance passed under similar circumstances a nullity.

In Pimental v. City of San Francisco, 31 Cal. 351, Mr. Justice Field, speaking for the court, said:

“At the time this ordinance was acted upon by the board of assistant aldermen, there was a vacancy in the board, occasioned by the resignation of one of its members, so that of the eight members elected only seven remained in office. Of this number four members voted for the passage of the ordinance, and three against it. As a consequence the ordinance was not passed, not having received the necessary vote required by the charter then in force. The charter vested the legislative power of the city in a common council, consisting of a board of aldermen and a board of assistant aldermen, each board to be composed of eight members; and fixed the limits of. their authority. * * * It declared that no ordinance shoqld be passed ‘unless by a majority of all the members elected to each board.’ The ordinance in question, therefore, not having received the vote of a majority of all the members elected, was never passed. It was, in fact, rejected; as much so as if every member had cast his vote against its passage. It was, therefore, for all purposes, an absolute nullity.”

In Satterlee v. City of San Francisco, 23 Cal. 314, the question was reconsidered. It was claimed that the alderman who it was alleged had resigned was not in fact elected, but was an alien, and not, therefore, eligible to office; but the court held that he had been regularly elected, that the charter provided that each board should judge of the qualifications of its members, that he was an officer de facto, and that the validity of his election could not be inquired into in a collateral proceeding; and the court followed the other cases cited from that State. See, also, Lawrence v. Ingersoll, 88 Tenn. 52 (12 S. W. 422, 6 L. R. A. 308; 17 Am. St. Rep. 870); Rex v. Devonshire, 1 Barn. & C. 609; Rex v. Bower, Id. 492; Rex v. May, 4 Barn. & Adol. 843; Rex v. Morris, 4 East, 17; Rex v. Bellringer, 4 Term R. 810; Rex v. Miller, 6 Term R. 268.

In Peck v. Berrien Co, Sup’rs, 102 Mich. 346 (60 N. W. 985), the resolution received 18 out of 26 votes, but 2 of the 18 had not been elected, but had been appointed to - fill vacancies. The statute provided that the board of supervisors should have power, by a vote of two-thirds of all the members-elect, to designate, etc. Mr. Justice Hooker in that case says:

“We find no authority for the proposition that a township temporarily represented by an appointed supervisor has not the same voice upon the board that it had before the vacancy. * * * That the use of the term ‘elect ’in section 489, 1 How. Stat., has a purpose, is plain; but we think it more reasonable to believe that it was intended to require the consent of two-thirds of a full board, than that it was designed to deprive townships, which should be represented by appointive officers, of a voice in the proceedings. It was intended to preclude action by two-thirds of a quorum, or of a board whose numbers had been lessened by vacancies.”

It is admitted that, if 2 of the 34 aldermen had been temporarily absent, the ordinance would not have been passed. We cannot see how the fact that 2 of the 34 aldermen elected were permanently absent, instead of being temporarily so, would change the terms of the charter. The language is not ambiguous. The purpose, doubtless, was that, when legislation was proposed the wisdom of which was in so much doubt as to meet with the veto of the mayor, before it could become a law it should receive the vote of two-thirds of all the aldermen, when all the wards of the city were fully represented in the council.

The action of the circuit judge is affirmed.

The other Justices concurred.


text:
    PEOPLE v. CURTIS.
    Intoxicating Liquors — Druggists—Sale to Minor — Intent.
    In a prosecution under 2 Comp. Laws, § 5381, making it unlawful for a druggist to sell liquor to a minor except on the written order of his parent or guardian, it is no defense that, from the appearance or statements of the minor, respondent believed him. to be of full age. People v. Welch, 71 Mich. 548, distinguished.
    Exceptions before judgment from Van Burén; Carr, J.
    Submitted November 21, 1901.
    Decided December 3, 1901.
    Frank W. Curtis was convicted of selling liquor to a minor.
    Affirmed.

      Thomas J. Cavanaugh and Hammond & Hammond, for appellant.

      David Anderson, Prosecuting Attorney, for the people.
   Montgomery, C. J.

The sole question presented in this case is whether a druggist who sells liquor to a minor without any written order from the parent or guardian of such minor may prove, by way of defense, that, from the appearance or statements of the minor, the respondent believed him to be more than 21 years of age.

The statute (2 Comp. Laws, § .5381) provides that:

“It shall not be lawful for any druggist, * :1; * directly or indirectly, * !|! * to sell, furnish, give, or deliver any spirituous, malt, brewed, fermented, or vinous liquor * * * to a minor, except for medicinal or mechanical purposes, on the written order of the parent or guardian of such minor.”

Whether, under statutes of this character, it is essential to show an intent to violate the law, the authorities are not altogether agreed. In People v. Roby, 52 Mich. 577 (18 N. W. 365, 50 Am. Rep. 270), it was held that the provision of this statute which requires that saloons shall be closed on the first day of the week imposed a positive duty upon the respondent to see at his peril that the saloon was closed. Mr. Justice Cooley, in his opinion, said:

“Many statutes which are in the nature of police regulations, as this is, impose criminal penalties irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible.”

Numerous cases are cited to support this position, and, among them, cases from various States supporting the rule that, where a statute prohibiting sale to a minor does not make knowledge of the minority an ingredient of the offense, belief that the minor was of age will not constitute a defense. So-we have held in numerous cases since that, in enactments providing police regulations, there are many cases in which intent is not to be held an ingredient of the offense. City of Grand Rapids v. Bateman, 93 Mich. 135 (53 N. W. 6); People v. Snowberger, 113 Mich. 86 (71 N. W. 497, 67 Am. St. Rep. 449); People v. Longwell, 120 Mich. 311 (79 N. W. 484).

But it is contended that this court laid down a rule which, as to sales to minors, makes the intent an ingredient of the offense, in the case of Faulks v. People, 39 Mich. 200 (33 Am. Rep. 374). The language of the opinion, it is true, is very general; but it is to be construed in connection with the statute which was being considered at the time (Act No. 231, Pub. Acts 1875). That statute was entitled, ‘ ‘An act to prevent the sale or delivery of intoxicating liquors, wine, and beer to minors,” etc.; and, while it contained a provision in the first section making it unlawful to sell to a minor, section 4 also provided a penalty against the minor for misrepresenting his age. Whether it was the view of the court that this section was an indication that a criminal intent was necessary under the first-section, we have no means of knowing definitely; but of this case it was said by Mr. Justice Cooley in People v. Roby:

“It was held in Faulks v. People, 39 Mich. 200 (33 Am. Rep. 374), under a former statute, that one should not be convicted of the offense of selling liquors to a minor who had reason to believe, and did believe, he was of age; but I doubt if we ought so to hold under the statute of 1881, the purpose of which very plainly is, as I think, to compel every person who engages in the sale of intoxicating drinks to keep within the statute at his peril.”

This is followed by the citation of numerous authorities where similar statutes have been so construed. It is apparent, therefore, that Faulks v. People rested upon the peculiar terms of the statute then in force, which contained provisions not found in the present liquor law.

The question was again considered, as affecting saloon keepers, in People v. Welch, 71 Mich. 548 (39 N. W. 747, 1 L. R. A. 385). The section there under consideration is the one corresponding to 2 Comp. Laws, § 5391, which contains, among other provisions, the following:

“The fact of selling, gisring, or furnishing any liquid in any place where intoxicating liquors are sold or kept for sale, to any minor, * * * shall be prima facie evidence of an intent on the part of the person so selling, giving, or furnishing such liquid to violate the law.”

The court, in construing this section, places stress upon the concluding words of the section, which were held to indicate that intent was an element of the offense, inasmuch as it provided, in effect, that the furnishing of liquor should be but prima facie evidence of an intent to violate the law. Mr. Justice Champltn said:

“The question which confronts us here is whether the legislature, in making it unlawful to sell liquors to minors, created an offense for which the person selling would be culpable, irrespective of his intent to violate the law. Had the last clause of section 13 [Act No. 313, Pub. Acts 1887], above quoted, been wholly omitted, it would not be material to the offense. But the language of that clause plainly infers that the offense cannot be made out without there exists on the part of the accused an intent to violate the law. ”

' Section 5381, which governs the present case, contains no such limitation, and we think it should be held that intent is not an ingredient of this offense, but that, like many other police regulations, this statute imposes upon the seller the duty of ascertaining the fact at his peril.

The conviction will be affirmed.

The other Justices concurred.

      See, also, with reference to the construction of this decision, People v. Longwell, 120 Mich., at page 312.