text:
    PITTSBURGH & CONNEAUT DOCK CO. v. DETROIT TRANSPORTATION CO.
    1. Negligence — Wharves—Question eor Jury.
    In mooring defendant’s steamer, the mooring line caught on and displaced a timber on plaintiff’s dock, causing a hoisting machine to fall. Action was brought to recover damages for the injury done the machine. There was evidence that, when the line had been fastened to a pile on the dock, the captain of the steamer gave the signal to go ahead, after having asked a man on the dock to throw the line over the timber. The line failed to clear the timber, and the headway on the steamer caused the support to be pulled out before the line could be thrown off. Held, that the question of negligence on the part of the captain of the steamer was for the jury.
    2. Same — Premises—Unaccustomed Use — Contributory Negligence.
    It appearing that the timber supporting the machine was sufficiently fastened for the purpose for which it was intended, plaintiff could not be charged with contributory negligence in failing to fasten it so securely that it would withstand an unusual strain, such as that to which it was subjected through defendant’s negligence.
    3. Same — Principal and Agent.
    An accident happened from the manner in which the mooring line of defendant’s steamer was handled on plaintiff’s dock. The man handling the line was an employé of plaintiff, but performed the service in question at the request of the captain of defendant’s steamer, such duty not being in the line of his regular employment. Held, that he was the agent of defendant, and his negligence must be imputed to it.

      4. Trial — Requests to Charge.
    The refusal of requested instructions proper to be given is not error where they are fully covered in the general charge.
    Error to Wayne; Erazer, J.
    Submitted November 15, 1899.
    Decided December 21, 1899.
    Case by the Pittsburgh & Conneaut Dock Company against the Detroit Transportation Company for negligently damaging plaintiff’s machinery. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.

      Wells, Angelí, Boynton & McMillan, for appellant.

      Barbour & Bexford {Hoyt, Dustin & Kelley, of counsel), for appellee.
   Long, J.

This suit was brought to recover for damage done to the hoisting apparatus on plaintiff’s dock at Conneaut, Ohio, through the alleged negligence of defendant’s servants in the way in which they brought the propeller Iron Age up to the dock in order to unload thereon the steamer’s cargo of iron ore. The plaintiff owns a large ore dock extending several hundred feet along the west side of the Conneaut river, near its mouth. The river runs approximately north into Lake Erie. At its mouth are piers. On the morning of July 12, 1896, the steamer Iron Age approached the harbor. A tug came out of the harbor with orders as to the place where the steamer was to discharge her cargo. The tug took the steamer’s line, and the two proceeded through the piers up the river to the point where plaintiff desired the steamer to tie up. A line was passed to the dock from the steamer, and put over a mooring pile on the dock. This pile was intended to be used for this purpose. As the steamer began to move forward after the line was so placed, the line came, in contact with a timber on the dock, on which rested a support to a movable apparatus used for hoisting ore from vessels and conveying it back over the dock. The pressure of the line moved the timber ■outward, and the front support or leg of the hoisting apparatus was displaced, and fell partly over the front of the dock. This timber was from 10 to-16 feet long. The rail on it was much longer, and extended over the next southerly timber as well. When the northerly timber was pulled out, the next one south, to which the rail was spiked, was also drawn somewhat out of place, and the machinery fell. The declaration charges negligence, in the first ■count, in allowing the mooring line to drop over the end ■of the timber and to be drawn against it; and, in the second count, in taking so little care in the management ■of the steamer-that its line broke the machine.

On the day of the accident, the arrangement of the hoisting machinery was as follows: There were two Brown hoists or conveyers and one or two King hoists, Besides several other hoisting machines of a different type, called “whirlies.” The Brown machine had in front a pair of legs shaped like a capital A, called the “A frame. ” These legs rested and could be moved on the rails, which were spiked to the square timbers running for a long distance near to and parallel with the face of the dock. From the top of this frame a bridge led back across the dock to two supports or towers also resting on rails. By moving these front and rear supports, the whole apparatus could be moved up and down the ■dock from south to north and north to south. A bucket was let down into a vessel’s hold from near the top of the A frame, raised to the bridge, and carried back along it to the place where it was desired to dump the ore upon -a pile or into a car. The timbers beneath the rails were about 12 inches square. The witnesses for the plaintiff testified that all these timbers, except the northernmost one, which pulled out, were drift-bolted to the timbers of the dock; that is, heavy bolts were driven down through them into heavy timbers below. The one which pulled out was not so bolted, but was toe-nailed to the planks, as there were no timbers beneath to which it could be bolted. The defendant’s witnesses testify, from their examination and measurements made just after the accident, that the easterly side of the northerly end of ,the timber overhung the water, and was not supported by any plank beneath it. On the other hand, one of plaintiff’s witnesses testifies that the timber came only to the edge of the planking. There is likewise some dispute as to the-relative position of the mooring pile or snubbing-post and this timber. All agree that the timber was between the post and the face of the dock. Gillmore and Day, plaintiff’s witnesses, say the northerly end of the timber was 6 or 8 feet farther north than the post. Defendant’s witnesses say that the timber ended just about opposite-the post.

1. At the close of the trial, counsel for defendant asked the court to charge the jury that there was no actionable negligence shown, and that, under the undisputed evidence, plaintiff was not entitled to recover. This was refused, and we think very properly. The accident happened in daylight, and it appears that the pile to which vessels might tie was sufficient for that purpose. The timber on the dock which the rope caught and pulled out, thereby letting this machinery fall, was not intended, and not understood to be intended, to tie vessels to. It was, sufficient for the purposes for which it was used, to wit, to support the machinery placed upon it. There was evidence to go to the jury upon the question whether the defendant’s servants were negligent in permitting the rope to catch under the timber and thus pulling it out. The master of the boat testified:

“After I got our boat stopped, this man came out to the front of the dock, and my mate asked him to take a line, * * * so he came out to the edge of the dock. My mate hove him a line, * * * and he put it over the pile. When he got it over the pile, I asked him if he would throw it over that timber. * * * He made an effort to do so, and at that time'I had signaled our engineer to go ahead. * * * This man raised the bight of the line up to throw it over the timber. He did not get it over, and just at that time the vessel was taking up the slack of the line. It just began to straighten it up. I saw it was coming against the timber, and I sang out to my mate to throw off the line, but before he could get it off it pulled the timber out. ”

It was a question for the determination of the jury, under the circumstances here shown, whether the captain of the vessel was negligent in giving the signal to go ahead before seeing that the line was properly raised above the timber. The court submitted that question to the jury under a very fair charge.

But it is contended by counsel for defendant that the plaintiff invited the use of this post, and left an insecurely fastened timber and the leg of this hoist in such position that a line from a steamer seeking to work up to the dock against a wind would almost certainly bear with some force on one or the other; that under such circumstances the plaintiff permitted the landing place to be unsafe, and so invited the defendant into a trap, and gave it no warning of the situation; that this was fault contributing to the injury. But it appears that the timber upon which the rope caught was not intended to be used for hitching vessels, and the captain of the vessel knew this, and apparently apprehended the danger when the rope caught. Defendant’s servants were not invited to use it. It is not questioned but that the timber, whether toe-nailed or not, was fit and sufficient for the purposes for which it was intended, and the rule is settled that *» there can be no fault in a perfectly lawful and customary use of one’s own premises. Alpern v. Churchill, 53 Mich. 607. The question is well illustrated in Kinney v. Ousted, 113 Mich. 96 (38 L. ft. A. 665). It was there held that the proprietor of a grain elevator was not liable for injuries to a customer occasioned by the giving way of a railing about an elevator platform, even though he had knowledge of its defective condition, when the customer at the time of the accident was putting the railing to a use other than that for which it was intended by leaning against it for support. It was there said.

“But, before it could become a snare or a trap, it must be assumed that its apparent good condition was an invitation to make such a use of it as the plaintiff attempted. As we have seen, its presence was not an invitation to make that use of it.”

2. The court was asked by counsel for defendant to instruct the jury:

“If you find that the timber upon which the front of the hoist rested was not fastened to the dock in a reasonably safe and secure way, and that, if it had been fastened in a reasonably safe and secure way, the damage to the hoist would not have happened, then, whoever handled the line, the plaintiff cannot recover.
“If you find the damage was the result of two causes, — one negligence in handling the line or the steamer, or both, and the other an improper and unsafe mode of fastening the timber to the dock,- — then, under the circumstances of this case, the plaintiff cannot recover.”

These requests were refused, and the court charged the jury:

“If you shall find that a man slid down that line from the boat, and put it over the spile, and there was negligence in this act, either by the management of the boat or by the man who put it over the spile, then whatever negligence resulted was the negligence of the defendant in this suit, because nobody but the agent of the defendant had anything to do with it, if you shall believe the man slid down the line.”

These requests were properly refused. As we have said, the plaintiff was not guilty of contributory negligence in leaving the timber there in that condition. Neither was the court in error in the charge above quoted. It cannot be said that the man who slid down the rope, if he did slide down it, was not the agent of the defendant.

3. It is contended that the court was also in error in refusing the following request to charge:

“The burden of proof rests upon the plaintiff to show that the damage done was due wholly to the negligence of the defendant, and that it was itself guilty of no negligence contributing to the damage. Unless the evidence convinces you of both of these, viz., that defendant’s negligence produced the damage, and that negligence on the part of the plaintiff did not contribute to that damage, the plaintiff cannot recover.”

This request was a proper one, and correctly states the law, but the court refused to give the requests on either side. We think the general charge, however, fully covers this request.

4. Defendant also tendered the following request, which was refused:

“If you find that the damage to the hoist was not caused by any negligence or mismanagement of the officers or crew of the steamer, either in the running of the steamer or the handling of the line, the plaintiff cannot recover, and your verdict must be for the defendant.”

This request was substantially given in the general charge.

5. Defendant also requested the court to charge:

“ If you find the damage was due to the way in which the line was handled on the dock, and that the person who handled it was not one of the crew of the steamer or an employe of the defendant, the plaintiff cannot recover.”

This was refused, and the court charged the jury:

‘ ‘ If you shall believe that this man did not slide down the line, but that the man who took the line upon the dock was the watchman of the plaintiff company, in the discharge of his duty as such watchman, and that it was part of his duty to aid these boats in the landing, — to do what he could to contribute to their landing, — in the interest of his employer, then he would be, in that act, the agent of the plaintiff, and, if he was guilty of contributory negligence in this case, then the plaintiff cannot recover. * * * It is claimed by the plaintiff in regard to this matter that that was not a part of that man’s duty, that he was not employed for that purpose, and that it was no part of his business to interfere with the landing of these boats, or that, if he was asked to do it, being asked to do it made him the agent of the defendant. I charge you .that such is the law; that if this was no part of his duty, and he was asked to do it by the defendant, and did it at its request, and acting for it, in that respect he was the agent of the defendant, the boat company, and his negligence could not be determined or decided by you as contributing to the result as being the agent of the plaintiff. But, as I said to you before, if he was acting in that capacity, and he did this as a matter of duty or employment, or part of his duty or employment, on the part of the plaintiff, then a mere request to ask him to take the line would not make him the agent of the boat company, the defendant in this case.”

We think there was no error in refusing the request, nor in the charge as given. It appears that none of the plaintiff’s employés were on the dock at that time, except a Mr. Lindsay; and the evidence is undisputed that it was no part of the duty of Mr. Lindsay to take the line, and in fact it was shown that he was not on duty for plaintiff at that time, and was there only as a spectator. The court might well, under the undisputed evidence, have instructed the jury that the person who took the line was for that purpose the agent of the defendant. The captain testified that, when the line was thrown out, he called to this man to take it and place it over the pile.

6. We are of the opinion, also, that there was no error in the charge upon the measure of damages.

The judgment must be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    PEOPLE, ex rel. ATTORNEY GENERAL, v. A. P. COOK CO.
    Taxation — Part-Paid Swamp Lands;
    Upon the people’s appeal, the decree of the circuit court, declaring invalid the taxes assessed for certain years against part-paid swamp lands, and sustaining the validity of the taxes assessed against them for other years, was affirmed.
    Appeal from Ingham; Person, J.
    Submitted November 15, 1899.
    Decided December 21, 1899.
    Bill by the people of tbe State of Michigan, on tbe relation of Adolphus A. Ellis, attorney general, against tbe A. P. Cook Company, Limited, to restrain the removal of timber from certain part-paid swamp lands delinquent for taxes. Defendant filed an answer in tbe nature of a cross-bill, denying tbe validity of tbe taxes, and praying that a, patent be issued on tbe payment of such taxes as might be decreed valid. Prom the decree rendered, complainant appeals.
    Affirmed.

      Horace M. Oren, Attorney General (Birney Hoyt, of, counsel), for complainant.

      Taggart, Knappen & Denison, for defendant.
   Long, J.

This proceeding is by an injunction bill on behalf of tbe State to restrain tbe defendant from cutting and removing timber from about 200 acres of land in St. Josepb county. Tbe bill was filed in tbe Ingbam circuit court, in chancery. Tbe lands were included among those transferred to tbe State as swamp lands by tbe act of Congress of 1850, and were patented to this State in 1854. In 1855 Addison P. Cook entered into a contract to purchase the lands from tbe State. This contract was evidenced by swamp-land certificates Nos. 1,575 and 1,576, and tbe land then became of tbe class designated as “Part-Paid Swamp Lands.” By the provisions of the statute then in force, and by the terms of the certificates of purchase, no time was fixed within which the remainder of the purchase price should be paid. There was no law in force at that time authorizing the taxation of the interest of the certificate holder in such lands, and it therefore was not subject to assessment. The first law which is supposed to authorize such taxation was passed in 1858. Commencing with the year 1860, the public authorities have attempted to impose taxes upon the premises in question. Such taxes have, with few exceptions, not been paid, but Mr. Cook, the purchaser, and the present defendant, which succeeded to his interest in 1888, have insisted that the premises were not properly taxed. The State has continually declined to issue a patent, for many years insisting that all accrued taxes should be paid as a condition of such issue, and later insisting that the patent, if issued, should contain a reservation of a lien to the State for all taxes which had been assessed. The defendant has been unwilling to accept the patent on such terms, and has not paid the remainder of the purchase price, although it has paid every year the accruing interest.

In 1893 the treasurer of the township where the land is situated filed a bill in chancery in the St. Joseph circuit court against this defendant and others, alleging that it was removing timber from the land, that the township had large claims against the defendant, that the removal of the timber would destroy its security, and asking for an injunction. Pursuant to an agreement, this bill was dismissed, and a similar one filed by the State in the circuit court for Ingham county, in chancery. To this bill the defendant answered, denying the right of the State to the relief sought, and claiming that the taxes were invalid as against the defendant. The defendant also embodied in its answer allegations in the nature of a cross-bill, and asked affirmative relief. It set up its right to receive the patent for these lands, its willingness to pay the remainder of the purchase price and any valid taxes which might exist, the various reasons why the State had no right to insist upon the payment of these taxes, and asked a decree that, upon the payment of the remainder of the purchase price, the patent should issue; but, while denying the validity of any of the taxes as against it, the defendant offered to pay whatever taxes the court might decree to be valid. The case was heard upon proofs taken in open court, and it was decided that the greater part of the taxes assessed against the pi’operty was invalid, but that there was an equitable lien in favor of the State and against the defendant for certain portions of the taxes held to be valid, upon the payment of which, together with the principal and interest remaining unpaid upon the certificates of purchase, the defendant was entitled to receive patents pursuant thereto, and subject only to further liability for taxes legally assessed for the year 1896 and thereafter. Prom this decree the State has appealed. The defendant, although many of its positions were not sustained by the circuit court, has not appealed.

The decree below recites the findings of the learned circuit judge, and states what taxes are void, and the reason for such holding, and what taxes .are held valid, and the reason therefor. It would be of no profit to the parties or to the public to set out here the various claims made by the State and by the defendant. It is sufficient to say that, from a careful examination of the record and the briefs of counsel, we are satisfied that the court below was not in error in the case, and also that the proper decree was entered.

The decree below must be affirmed.

The other Justices concurred.


text:
    NEDOW v. PORTER.
    Highways — Proceedings to Establish — Notice,
    Where land has been occupied and held adversely for 18 years by one claiming to be the owner, it is not necessary, in order to lay out a highway on such land, to serve the statutory notice on others claiming an interest therein.
    Error to Leelanaw; Aldrich, J., presiding.
    Submitted November 15, 1899.
    Decided December 21, 1899.
    Trespass quare clausum by Joseph' Nedow against Prank J. Porter. Prom a judgment for defendant, plaintiff brings error.
    Affirmed.

      J. J. Tweddle, for appellant.

      O. L. Dayton, for appellee.
   Long, J.

Defendant is highway commissioner, and is charged by the plaintiff with trespass in cutting and removing certain wire fences for the purpose of opening a highway which defendant, as commissioner, had previously laid out and established. The only question is whether the proceedings to lay out said highway were in accordance with the statute. It is contended by plaintiff (1) that the commissioner had no jurisdiction, because no notice was served upon Mr. and Mrs. Paulus, or Mr. Doty, a nonresident; (2) that the notice to nonresidents .was insufficient, in that it did not name the persons to whom it was directed; (3) that there was no proper tender of damages to plaintiff. Defendant had verdict and judgment. Plaintiff brings error.

1. It was not necessary to serve notice upon Mr. and Mrs. Paulus or upon Mr. Doty. The land in which it is claimed they had an interest was occupied exclusively by Mr. Nedow, the father of the plaintiff, and had been so occupied for more than 18 years prior to the time the highway was laid out. It was a strip of land 20 feet wide, and an orchard had been set out there years before, and the entire strip fenced in and occupied by Nedow, for the entire period, as a part of his farm; and he claimed to own it, and occupied it adversely to Paulus and his wife and Mr. Doty.

2. It therefore appears that no notice was necessary to Mr. Doty, as a nonresident. It is also conceded that the ' plaintiff had notice, appeared at the meeting, and made no such objection as to nonresidents as he now seeks to raise.

3. Defendant testified that he tendered the damages to the plaintiff, and the question was properly submitted to the jury.

We find no error in the case.. Judgment must be affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    FIRST NATIONAL BANK OF LAKE LINDEN v. CONDON.

    Fraudulent Conveyances — Inadequate Consideration — Evidence.
    A decree subjecting to an execution against a married man property conveyed by him to his wife, to the extent that the value of the property exceeded, in the opinion of the circuit judge, the consideration furnished by the wife, was reversed; the court being of opinion that the finding on which the decree was based, that the consideration was grossly inadequate, was not justified by the evidence.
    Appeal from Houghton; Haire, J., presiding.
    Submitted November 16, 1899.
    Decided December 21, 1899.

      Bill by the First National Bank of Lake Linden and the First National Bank of Calumet against William Con-don, Annie Condon, and others, in aid of execution. From a decree against defendants William and Annie Condon, the latter appeals.
    Reversed.

      Chadbourne & Bees, for complainants.

      Gray & Looney (B. M. Thompson, of counsel), for appellant.

       Rehearing denied April 24, 1900.

   Hooker, J.

The complainants were judgment' creditors of William Condon, and filed the bill in this case in aid of several executions which had been levied on the lands involved herein, to set aside deeds of the land from said William Condon to several relatives. At the hearing in the circuit court the bill was dismissed as against all of the defendants except William Condon and his wife, Annie Condon, and she only has appealed.

William Condon was engaged in business in the village of Hancock previous to 1896, and became involved. At that time he was owner of considerable land and other property, most of it being incumbered. Among his creditors was his wife, whose claim is shown to have amounted to over $10,000, and his daughter, whose claim was upwards of $3,000. Among the lands held by Condon was an undivided four-sixths interest in the following, viz., the N. E. i of the N. W. £, and the S. W. ¿ of the N. W. i, and a few acres in the N. E. corner of the S. E. |7 of the N. W. of section 27, adjoining the village of Hancock on the west. The testimony was taken in open court, and shows that Mrs. Condon was apprised of her husband’s failing circumstances, and urged him to pay or secure the amount that he owed to her and to the daughter, and he promised to do so, and upon August 16, 1896, he made the deeds attacked. We need not concern ourselves with the conveyance to the daughter. Mr. Condon testified that at the time he figured the interest upon his wife’s claim, and found due her $8,981.65 (though later he found that it should have been $10,672.14), and that he figured and estimated the value of the four-sixths interest in the lands mentioned, and found that to be $6,558.-34, which sum he inserted in the deed to his wife, as the consideration, and she accepted the deed. At that time the premises were not platted, being substantially unimproved. Immediately after the proofs were closed, the learned circuit judge said:

“Gentlemen, I may as well decide this case now as any other time. First. The court finds the indebtedness to Mrs. Condon was bona fide, and was something above $6,500, and the indebtedness to Miss Condon was bona fide, and was something over $3,000. It is admitted in the pleadings,, and in the testimony of Mr. Condon, that he was insolvent at the time he made the conveyances in question in this case; and the only question that this court will have to decide is whether the consideration named in the deeds to Mrs. and Miss Condon, respectively, was inadequate, — grossly inadequate. If it was, for all above that amount the conveyance will be deemed to have been voluntary, and must go to the creditors. If it was an adequate consideration, — a fairly adequate consideration, —the conveyance will stand, and the bill will be dismissed.”

This was followed by a short discussion of the facts, from which he concluded that the interest was deeded to the wife for half what it was worth, which sum he held to be a grossly inadequate consideration. The case seems to turn upon the value of the premises; for it appears to be conceded that Condon might lawfully prefer his wife’s bona fide debt.

After deeding this property, Condon was given a power of attorney from his wife and daughter to sell it. In August, 1897, the N. E. 40 acres, and the fraction of the S. E. 40 acres, were platted, and the streets were graded at an expense of $1,000 or upwards, and the lots went upon the market. But few lots were sold, as sales ceased in October, 1897, owing to this litigation; that being the time complainants’ levy was made. Condon testified that he and Mr. Gray, his solicitor, made up the figures upon the property. Some lots in West Hancock and First addition were conveyed to her. Of these, a number were subject to land contracts. He figured these on the basis of amount unpaid, and they amounted to $762.50; others were not incumbered, and aggregated $1,575, — making a total of $2,337.50. He deducted two-sixths, which others owned, $779.16; leaving the price $1,558.34 fixed for four-sixths. He placed a value of $5,000 on the four-sixths interest in the two 40-acre parcels, thus making the amount of the consideration mentioned in the deed. Emery testified that he went over the ground a day or two before the trial, in August, 1898, at the request of counsel for complainants, and fixed the value of the unplatted land in 1896 at $250 per acre. This was upon the theory that the land was valuable for platting. Upon cross-examination, he said that he was not positive that it could have been sold in 1896 for any such sum as that, but that it was his opinion that it was worth that for platting purposes. He said that he thought that had it then been sold at sheriff’s sale; in August, 1896, it would not have brought much, but that it would, in his opinion, have brought more than $7,-500; and added, “The times and conditions in August, 1896, were not as bright as they are now.” George Roulisson testified that he accompanied Emery for the purpose of estimating the value, and said, in substance, that they agreed upon Emery’s estimate. A. J. Scott was supervisor of Hancock township in 1896, in which the land lies. He placed the value of the N. E. i at $2,000, and the S. W. •J between $3,000 and $4,000. William H. Roberts testified that the N. E. J was worth not over $60 an acre in 1896, and the S. W. J $75 or $80 an acre. He had experience in platting and trying to sell lots upon an adjoining parcel, in 1896, upon which he based his opinion. It appears in the record that, in 1892, Joseph H. Chandler and the executrix of Charles E. Holland each sold an undivided sixth of all of this property for $500, and it was shown that the land did not increase in value much from 1892 to 1896.

Thus, we have the testimony of Condon, Scott, and Roberts, who testify that the value was $7,500 or below, added to the fact of actual sales a few years before on a basis of $3,000, against the testimony of Emery and Roulisson, who examined the land a day or two before the trial, and who state that in 1896 it might not have been possible to find a purchaser for any such price as they estimate the land to be worth. The circuit judge seems to have attached much importance to a letter written by Condon to Mr. John E. Jones, cashier of one of the complainants, on September 27, 1897. It is as follows:

“Hancock, Michigan, September 27, 1897.
“Mr. JohnE. Jones, Cashier,
“ Lake Linden, Michigan.
Dear Sir: You hold two notes made by me, amounting to about $10,000; also one note of my son’s for about $700, indorsed by me; also note or notes aggregating about $-, riiade by O. W. Robinson and indorsed by me; also a note made by W. B. Northrup, on which there is a balance due of about $3,063, indorsed by me and others, which has been paid by new notes of W. B.. Northrup and James A. Close, Jr. I also understand that you suppose something to be due from me to Mr. James A. Close, as trustee in certain stock matters. You hold an insurance policy on my life for $10,000 as collateral security for certain of the above obligations, on which there is now a cash surrender value of about $1,200, as stated by you, and an ultimate endowment value of about $12,500. I make you the following proposition in settlement of all the above obligations, and all claims or demands of every kind held by you against me, viz.: There has recently been platted and recorded by my wife and. daughters certain territory in the outskirts of the village of West Hancock, known as ‘Condon’s Second Addition to the Village of West Hancock.’ My wife and daughters have expressed a willingness to aid me to some extent in my financial troubles, and I think will consent to convey to you, in full settlement of my obligations above stated and referred to, blocks numbered 16 and 21 of said addition, comprising 46 lots. The inside lots (38)- are now selling at $200 each, and the corner lots (8) at $300 each. The town is growing rapidly out towards these lots, and no doubt in time -you will realize out of the same your claim against me with interest. This proposition is on the condition that you surrender back to me all your claim and interest in said policy of insurance. Awaiting your reply, I remain,
“Very truly yours,
“Wm. Condon.”

To our minds, this is not very conclusive evidence. Soon afterwards a levy was made upon these lands. It is significant that the complainants took no steps to attach the property at or about the time the transfer was made. After times got better, and the village became prosperous, and the land had been platted and streets graded, it was easy to see that it was possible to get more money out of the lánd than Mrs. Condon paid for it. Then they levied, and filed this bill. We think the preponderance of the proof shows that it was not deeded to Mrs. Condon for a grossly inadequate sum, and that the bill should have been dismissed. *

The decree is reversed and the bill dismissed, with costs of both courts.

The other Justices concurred.


text:
    PARSONS v. DETROIT & MACKINAC RAILWAY CO.
    Deeds — Cancellation—Railroads—Right oe Way.
    A deed to a railroad company of right of way, absolute upon its face, will not be set aside, where neither fraud nor mistake as to its terms is shown, on account of the company’s moving its depot to a point some distance from the land conveyed, though the grantor’s belief that a depot would be maintained near by was the principal reason for his giving the deed.
    Appeal from Bay; Maxwell, J.
    Submitted November 16, 1899.
    Decided December 21, 1899.

      Bill by Edwin M. Parsons against the Detroit & Mackinac Railway Company to set aside a deed. Prom a decree for complainant, defendant appeals.
    Reversed.

      Porter & Haffey, for complainant.

      T. A. E. & J. G. Wectdock, for defendant.
   Long, J.

Complainant was the owner of the S. E. £ of the S. E. £ of section 35, township 16 N., range 4 E., Bay county, and other lands adjoining the same on the west, including portions of the plat of the village of Linwood. Defendant was constructing an extension of its railroad from Omer, Arenac county, to Bay City, Bay county, and in surveying its route had crossed the land above described. The road was not contributed to by the public or local subscribers, and the cost was paid entirely by the company. The matter of obtaining the right of way was in charge of D. J. Casey, chief engineer, and, when conveyances could not be procured, condemnation proceedings were had. Mr. Casey employed Messrs. Anderson and Cook to procure options on right of way, and they were instructed to get options wholly without conditions. On the 23d day of April, 1896, a meeting was held in the village of Linwood, attended by parties from whom it was desirable to procure options for right of way. At this time it was supposed the railroad would be constructed through the village, and options were being procured on that route. At this meeting the question was asked of Messrs. Cook and Anderson whether a depot would be constructed in the village of Linwood, to which an affirmative reply was given. Then some one asked the complainant whether the depot would remain after being erected, and he (the complainant) replied, “Of course it would.” Messrs. Cook and Anderson did not agree to put such a provision in the option, but did state, as a matter of opinion, that, if the depot was erected in the village, it would not be moved; and the complainant states that he understood that such statement was made as a matter of opinion. After this, and on the same day, a paper prepared by Mr. Cook was signed by the complainant. Neither of the routes for which the preliminary surveys had at that time been made was adopted by the defendant company. Its road did not run through the village of Lin wood, but west of it.

When the option came to Mr. Casey’s attention, he did not accept it. Complainant was then in the employ of the company, and Mr. Casey had a conversation with, him, in which he explained that no deeds of right of way could be taken with conditions as to the erection and maintenance of depots; and Mr. Hewitt, who was in the-employ of the company, prepared a deed, and sent it to> complainant, who did not sign and return it promptly. In a conversation later with Mr. Hewitt, the complainant said it was not drawn in accordance with the option, and Hewitt told him he had instructions to take nothing but straight deeds without any conditions, and, if there was-any question about it, he (complainant) would have to see Mr. Casey. Complainant retained the deed for a time,, and on the 16th of October he was asked by letter to execute and deliver it. After that, and prior to the 2d day of November, 1896, which was the day the deed was recorded, the complainant brought it, as prepared by Mr. Hewitt, executed and acknowledged by himself under date of October 2d, and delivered the same to defendant by handing it to Mr. Hewitt. The deed covers the right of way occupied by the defendant company, and the center line of the road, as it goes north, crosses the east line of Mr. Parsons’ land about 600 feet south of the north line thereof, and the amount of land taken is one and two-tenths acres, leaving a triangular piece, containing only four-tenths of an acre, belonging to complainant and east of the railroad; or, in other words, the land taken, and all of Parsons’ land lying east of the right of way, would amount to one and six-tenths acres.

Mr. Casey testified that the deed was not prepared in reliance upon the option; that the option was never accepted, and was not turned over to Mr. Hewitt; that complainant was doing all he could to get other ]#nds; that he had a talk.with him, and complainant was willing to give the right of way without conditions; that a depot was originally erected, and maintained from September, 1896, to July, 1897, at an expense of $351.95; that the receipts of the office were $314.46, or $37.49 less than the expense of maintenance; and that the depot was moved a mile and seven-tenths to the south, to a point known as. “Linwood Beach.” There is a station one and a half miles north of the land in question, known as “Lengsville.”

The testimony was taken in open court, and the court held that the deed was invalid, and required the defendant to go into the probate court with condemnation proceedings, and make a deposit of $250.

The above facts are taken from the brief of counsel for appellant, and are fully sustained by the record. It is evident that the deed was made by complainant with the full understanding of its contents. This deed must control. There is no fraud or mistake claimed. Even if there had been a previous contract, containing the stipulation that a depot should be maintained in the village, such contract would not control the operation of the deed where no fraud or mistake in making the deed appears. Clifton v. Iron Co., 74 Mich. 183 (16 Am. St. Rep. 621). But no such thing appears. There was no contract containing such stipulation which was ever approved by the defendant company.

The decree below must be reversed, and a decree entered here dismissing complainant’s bill, with costs of both courts.

The other Justices concurred.


author: Grant, C. J.

text:
    NELSON v. CRAWFORD.
    1. Assault — What Constitutes.
    Where defendant dressed himself in woman’s clothes, and went, in a spirit of fun, with no malicious motive or intent, to the residence of plaintiff, a neighbor, where he neither offered nor threatened violence, but merely followed plaintiff • into her house, making no demonstration other than to tap the ground with a parasol, it was properly held that his conduct did not amount to an assault.
    2. Damages — Injury by Fright.
    Defendant, with no malicious motive or intent, dressed himself in woman’s clothes, and went at dusk to the home of plaintiff, who became frightened at his appearance, and,-, six  weeks later, sustained a miscarriage, which she attributed to the fright. Held, that the fright, unaccompanied, as it was, by any immediate physical injury, could not be made the basis of a recovery of damages for a result which could not have been contemplated by defendant.

    Error to Cass; Smith, J.
    Submitted November 17, 1899.
    Decided December 21, 1899.
    Case by Sarah Nelson against Robert Crawford for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    Plaintiff and her husband reside on a farm about 40 rods from the residence of defendant. One evening defendant, dressed in woman’s clothes, navy-blue bicycle skirt, light waist, sailor hat with flowers on it, and a thin, black face-veil, took a parasol, and went to her house. He had been a frequent visitor there, and was accustomed to play with her children. Although for many years he had been adjudged insane or incompetent, his malady was of a harmless character, and it had never been considered necessary to restrain him. There is no testimony to show that he acted from malicious motives, or with any intent to do injury to plaintiff or any one. He said to others, shortly afterwards, “I did it to have a little fun; to see if they had any nerve.” As he approached the back of the house, plaintiff stepped to the back door, and saw defendant standing three or four rods away. She spoke to him, but he made no reply, — only “mumbled.” She testified that she was frightened, and ran into the house, and into her bedroom, where her husband was in bed; that she called tp her husband to get up, telling him that “there is something here, — I don’t know what it is; ” that defendant followed her into the house, and to the bedroom door; that her husband took up a stick of wood, raised it, and told defendant to get out of the house; that defendant then gave his name; that she was made ill by fright; and that on October 22d, 42 days after the fright, she had a miscarriage, which she attributes to the fright. The only demonstration he made was by tapping the end of his parasol on the ground or floor. This suit is brought to recover damages resulting from the fright. The court directed a verdict for the defendant, on the ground that there was no assault or attempt to do her any bodily or physical injury, and that the law does not recognize fright alone, unaccompanied by any physical injury, as a basis for damages.

      John Wooster and John R. Carr, for appellant.

      Charles E. Sweet, for appellee.

       For fright as basis for cause of action, see note to Ewing v Railway Co., (Pa.) 14 L. R. A. 666.

   Grant, C. J.

(after stating the facts). We think the court properly held that no violence was offered or threatened, and therefore there was no assault. The second question is new in this State. The decisions are not harmonious, and cannot • well be reconciled. The court, in directing the verdict, quoted the following language from the late case of Mitchell v. Railway Co., 151 N. Y. 110 (34 L. R. A. 783, 56 Am. St. Rep. 605):

“ If the right of recovery in this class of cases should be once established, it would naturally result in a flood of litigation in cases where the injury complained of may be easily feigned without detection, and where the damages must rest on mere conjecture or speculation. The difficulty which often exists in cases of alleged physical injuries, in determining whether they exist, * * * would not only be greatly increased, but a wide field would be opened for fictitious or speculative claims. To establish such a doctrine would be contrary to principles of public policy. * * * We think the most reliable and better-considered cases, as well as public policy, fully justify us in holding that the plaintiff cannot recover for injuries occasioned by fright, as there was no immediate personal injury.”

The damages claimed in that case were of the same character as those here claimed. The immediate effect of the fright in that case was greater, as the plaintiff became unconscious by reason of the fright. The facts were that, while plaintiff was standing upon the cross-walk of a street, awaiting, an opportunity to board one of the defendant’s cars, and just as she was about to step upon it, the team attached to the car drew near, turned to the right, and came so close to her that, when they were stopped, she stood between the horses’ heads.

Many of the cases are cited and commented on in the ..recent case of Braun v. Craven, 175 Ill. 401 (42 L. R. A. 1199), in which it was held that no recovery for fright, I without physical injury, is authorized by the common law or by statute. The facts of that case are much stronger for the plaintiff than are those in this case. The defendant was the landlord of plaintiff’s sister; went to the house to collect rent; found the door ajar; opened it; walked upstairs ; stepped inside the bedroom door; saw plaintiff sitting upon the floor; asked what she was doing, waived his arms, and, in a loud and apparently angry voice, said: “I forbid you moving. If you attempt to move, I will have a. constable here in five minutes. I refuse to take possession of these premises.” Plaintiff testified: “I was so frightened I. was paralyzed with fea)*,” Plaintiff recovered a largo verdict. Li its opinion the court says:

“These acts could not, in the ordinary course of things, have been reasonably anticipated to cause a diseased condition of appellee, — to create in her a seriously-diseased condition. Appellant might have reasonably anticipated that his acts would cause excitement, or even fright; Jjut fright and excitement so seldom result in a practically incurable disease that, from the ordinary experience of mankind, such a result could not have been expected. The evidence for plaintiff was that, by reason of the excitement and fright, a condition of chorea, or St. Vitus’ dance, was produced. This is shown to be a diseased physical condition resulting from mental suffering, super-induced by excitement and fright, .unattended by injury to the person resulting from impact. Under the pleadings in this case, mere words and gestures are sought to be made actionable because of the nervous temperament of the plaintiff, without which such words and gestures would not be actionable. This would introduce and incorporate in the law a new element of damage,— a new cause of action, — by which a recovery might be had for an injury resulting to one of a peculiarly nervous temperament, while no injury would result to another in identically the same position. Of such a cause of action and liability for damage a dangerous use could be made. No such recovery is authorized under the common law, and no statute gives it.”

In Lynch v. Knight, 9 H. L. Cas. 577, it was held that “mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone.” A very valuable discussion of the right of recovery for mental pain and suffering alone is found in Johnson v. Wells, Fargo & Co., 6 Nev. 224 (3 Am. Rep. 245 ). That was the first case upon the subject in that court, and the rule is so well and clearly stated that we quote the language:

“It is well to start from the ancient landmark, and to remember that all damage to be recovered in- such cases is strictly compensatory; that while it may be possible to compensate bodily pain, and so much of mental suffering as may be indivisibly connected therewith (and this rather on authority than reason), yet that it is absolutely impossible to measure mental agony by money, and that no established rule authoritatively commands such futile attempt ; and consequently it must be held that so much of the instruction given herein as allowed the jury to consider the plaintiff’s pain of mind, aside and distinct from his bodily suffering, was error.”

Where the negligence was gross, it was held that no damages could be recovered by reason of peril and fright, because they are too remote. Atchison, etc., R. Co. v. McGinnis, 46 Kan. 109. Where plaintiff’s horses became frightened through the negligence of the defendant, held, that he could not recover for mental suffering, vexation, and anxiety of mind, in the absence of averment and proof of physical injury. Gulf, etc., R. Co. v. Trott, 86 Tex. 412 (40 Am. St. Rep. 866).

These citations might be multiplied. They are sufficient to show the reasoning of the courts in support of the rule. Similar holdings were had in West Chicago St. R. Co. v. Liebig, 79 Ill. App. 567; Wyman v. Leavitt, 71 Me. 227 (36 Am. Rep. 303); Spade v. Railroad Co., 168 Mass. 285 (38 L. R. A. 512, 60 Am. St. Rep. 393); Ewing v. Railway Co., 147 Pa. St. 40 (14 L. R. A. 666, 30 Am. St. Rep. 709); Victorian Railways Com'rs v. Coultas, L. R. 13 App. Cas. 222. Some of the decisions above cited are careful to state that their opinions do not reach those cases where there was an intention to cause mental distress or to injure feelings. In some of the cases cited by the plaintiff in support of her theory, the decisions are based upon the violation of a legal right, where' at least nominal damages-are.recover able, as in a case of the mutilation of a dead body (Larson v. Chase, 47 Minn. 307 [14 L. R. A. 85, 28 Am. St. Rep. 370]); or the removal of a dead body from its place of burial (Meagher v. Driscoll, 99 Mass. 281 [96 Am. Dec. 759]); or the unlawful eviction of a tenant (Fillebrown v. Hoar, 124 Mass. 580). The two cases cited which most strongly support the plaintiff’s contention are Hill v. Kimball, 76 Tex. 210 (7 L. R. A. 618), and Purcell v. Railway Co.,j^^Bbinn. 134 (16 L. ¡saulted two negroes in front of the house occupied by the plaintiff and her husband as tenants, thereby frightening her, and causing a miscarriage. The court frankly stated that the case was a novel one, and they found no precedent for it. In Purcell v. Bailway Go. the correctness of the rule is admitted, but the decision is based upon the fact that there was a physical injury resulting from the confusion, con> \ motion, and excitement upon the car.

We think the clear weight of authority supports the instruction given by the court below. In this case there is no evidence that defendant intended any wrong, or con- s/ templatecL or can he. held to have contemplated, the consequences alleged to have followed his acts. It was not dark. The time was between ‘ daylight and dark. ” Plaintiff saw him when he was four rods from the house. Defendant was approaching plaintiff’s house along the customary way. Under these circumstances and the authorities above cited, we think the instruction of the court was correct.

Judgment affirmed.

The other Justices concurred.


text:
    TOWNSHIP OF HAMTRAMCK v. RAPID RAILWAY CO.
    1. Street Railways — Franchise—Revocation—Townships.
    A right conferred upon a street-railway company, by resolution of a township board, to extend its line, through the township to connect with another line, the connection to be made within a stated time after the completion of such other line, by which resolution it is provided that the "franchise” shall be void unless accepted in writing by the company,— when so accepted, constitutes a franchise, not subject to revocation.
    2. Same — Disregard of Conditions — Forfeiture.
    A willful disregard by the company of the conditions of its franchise with respect to the time within which the line should be built would entitle the township to maintain a bill to forfeit the franchise.
    3. Same — Completion of Road.
    A street-railway franchise provided for the construction of the R. railway to connect with the D. railway, the connection to be made within two years after the “completion” of the D. railway. Held, that the term "completion” meant such a completion of the D. railway as would enable the heavy cars of the R. railway to pass safely over its tracks, and not merely such a completion as was sufficient to accommodate the lighter cars of the D. railway.
    Appeal from Wayne; Adams, J., presiding.
    Submitted November 17, 1899.
    Decided December 21, 1899.
    Bill by the township of Hamtramck against the Rapid Railway Company to enjoin the extension of defendant’s tracks. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Bacon & Palmer, for complainant.

      Gray & Gray, for defendant.
   Long, J.

It appears that the defendant company, during the year 1894, constructed its road along Gratiot avenue, in the city of Detroit. On November 28, 1894, the complainant township granted a franchise to the defendant company to build and extend its line of road, connecting with the Gratiot-avenue line, westerly through the complainant township, along Harper avenue. It was provided, among other matters, in the franchise, that:

“ Said railway, so far as the same extends easterly from the Gratiot road, shall be equipped and put in operation within one year of the completion of the line of said the Rapid Railway Company heretofore authorized to be built on Gratiot road; and so much thereof as extends westerly from said Gratiot road, whenever convenient for the purpose of connecting with any street-railway line built in the city of Detroit, the connection to be made within two years after the completion of the railway in the city of Detroit on Harper avenue.”

On September 14, 1898, the defendant began the construction of its road on Harper avenue westerly from Gratiot avenue under the above franchise. On September 16th the roadbed, for nearly two blocks, had been excavated, and the road was being rapidly pushed forward. On that day an injunction was issued by the Wayne circuit court in chancery, restraining the defendant from building its road; the complainant claiming by the bill that the defendant’s rights had lapsed, owing to its failure to construct the road earlier. On a full hearing in the court below the injunction was dissolved, and the complainant’s bill dismissed, with costs. The court filed an opinion in the case, which we think fully covers the case, and the facts therein recited are fully sustained by the record. The opinion is as follows:

“ The bill of complaint in this case is an injunction bill for the purpose of restraining the defendant railway company from constructing a branch of its road along the north side of Harper avenue, in the city of Detroit, from Gratiot road westerly to St. Charles street, and to cancel, annul, or forfeit the right or franchise claimed by the railway company under which it proposed to construct such branch. The bill of complaint was filed and suit commenced on the 16th day of September, 1898, and it is claimed by complainant that at that date the right of defendant to construct such branch had lapsed, and become forfeited or lost, for the reason that it had not constructed such branch within two years from and after the completion of the street railroad along Harper avenue from the west to the point of connection at St. Charles street.
“It appears from the evidence introduced in this case that the township board of the town of Hamtramck, acting under the authority of section 3548, 1 How. Stat., as amended by Act No. 12, Pub. Acts 1893, on the 28th day of November, 1894, adopted a resolution granting a right or franchise to the Rapid Railway Company, among other things, to construct a railway along the northerly side of Harper avenue westerly from the Gratiot road to St. Charles street, and to maintain the same during the corporate life of the company, upon certain conditions set forth in the resolution, only one of which — the first — is material to consider in this case. Leaving out the portion referring to the railway east of the Gratiot road, and quoting only that portion referring to the road in question, it reads as follows:
“ ‘And so much thereof as extends westerly from said Gratiot road [ shall be equipped and put in operation ] whenever convenient for the purpose of connecting with any street-railway line built in the city of Detroit, the connection to be made within two years after the completion of the railway in the city of Detroit on Harper avenue.’
“It is contended by complainant’s counsel that this resolution does not create a franchise, but is only a license, subject to revocation. In connection with this contention, the fifth paragraph of the resolution may be referred to, which provides that:
“ ‘ This franchise, and the permission hereby granted, shall cease and be utterly void unless said the Rapid Railway Company shall, within ninety days of the date hereof, accept the same in writing.’
“Such acceptance by the Rapid Railway Company appears to have been executed in writing on the 6th day of February, 1895, and its receipt by the township clerk was acknowledged on the same day.
‘1 It will be noticed that in this fifth paragraph, and in the acceptance by the railway company, and in the acknowledgment by the clerk, the right granted is called and treated by the parties as a franchise. • A franchise is defined to be ‘a special privilege emanating from the government by a legislative or royal grant, and vested in an individual person or in a body politic or corporate.’ And when accepted, and the terms agreed to by the person or corporation, it has frequently been held that a contract has been created. It seems to me that this right conferred upon the railway company, taken in connection with the acceptance, constituted what is known as a ‘franchise,’ and is not subject to revocation; and the doctrine that forfeitures are not favored, and that equity will not decree a forfeiture except for substantial reasons, applies to this case.
“I am of the opinion, however, that if the railway company had willfully, and without due regard to the rights of the township, disregarded the conditions of its franchise, and failed for two years after the completion of the Detroit Railway to make connection with it, as contemplated by the condition, this" bill might be maintained and the franchise forfeited.
“This brings us to the question as to the meaning of the term ‘completion,’ and as to the facts developed by the testimony. On the part of complainant it is contended that the two years would begin to run from the time when the road was substantially completed so as to answer the purpose of its construction, and was put into' use as a public conveyance for passengers, although many more things might be required to complete the road in the technical sense of that term. The evidence tends strongly to show that as early as July 4, 1896, the Detroit Railway commenced to carry passengers over its Harper-avenue line, and continued with more or less regularity to do so from that time on. It is not contended, however, that the road was fully completed until much later; the evidence tends to show not till November or December, 1896. Complainant’s counsel refer to a number of cases in support of their contention, and I am constrained to think that their contention is correct, and that only such completion would be required in law, under the condition quoted, as would render the road suitable for the use contemplated by the parties in making the contract. In the cases cited by complainant’s counsel, only the general use of the road as a public means of travel seems to have been contemplated. But in the present case it seems to me that something more was contemplated by the parties. It is evident to me, from the words of the resolution and from the proofs, that the words ‘the connection to be made ’ mean the connection of the track of the Rapid Railway with the track of the Detroit Railway for the purpose of allowing the Rapid Railway cars to pass over the Detroit Railway track on the way to the central portion of Detroit. The proof tends to show that the Rapid Railway cars are much heavier and much longer than the Detroit Railway cars, consequently requiring a more solid and more even track. The proofs tend to show that along Harper avenue the track was not leveled up, nor ballasted, nor made safe for the Rapid Railway cars, till as late as November, 1896. In one case' — if I remember right, as late as October — one of the Rapid Railway, cars, in attempting to pass over the Harper-avenue track, had its fender or cow-catcher broken off because of the unevenness of the track. On the whole, I am of the opinion that the words ‘ two years after the completion of the railway in the city of Detroit on Harper avenue’ should be construed to mean two years after the completion of such railway to the extent that the cars of the Rapid Railway might safely pass over its tracks. And, after carefully considering the evidence, I am of the opinion that the Detroit Railway on Harper avenue was not so far completed as to be safe for the Rapid Railway cars until as late as November, 1896; consequently, that this suit was prematurely brought, and that the defendant, having commenced the construction of its branch on the 14th day of September, was within its rights under the franchise quoted. The bill of complaint will therefore be dismissed, with costs to defendant.”

We fully agree with Judge Adams in the views above expressed. The decree must be affirmed, with costs of both courts.

The other Justices concurred.

       Viz.: Tower v. Railroad Co., 34 Mich. 328; O’Neal v. King, 3 Jones, N. C. 517; DeGraff v. Railroad Co., 23 Minn. 144; Railroad v. Keene, 62 N. H. 81; Freeman v. Matlock, 67 Ind. 99; Fernald v. City of Boston, 12 Cush. 574; Russell v. Barry, 115 Mass. 300.


text:
    CHAMBERLAIN v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Railroads — Rate op Fare — Fractions.
    Under 2 Comp. Laws 1897, § 6234, subd. 9, establishing a rate of fare of 3 cents per mile for certain railroads, a company may lawfully charge only 19 cents for carrying a passenger 6.48 miles; the fraction over being less than one-half cent.
    2. Same — Ejection op Passenger — Willful Wrong — Evidence.
    In an action against a railroad company for ejecting a passenger from its train because of his refusal to pay a fare which had already been declared excessive in a suit brought by him against the company, and then pending on appeal,— the distance between the points being agreed upon, and the statute fixing the rate per mile which the company might lawfully charge, — it was not error to permit the records and files of the former suit to be introduced in evidence, they being proper to be considered by the jury, as bearing upon the willful nature of the wrong, in determining the damages to be awarded.
    3. Same — Excessive Damages.
    Where a passenger was wrongfully ejected from a train in the presence of 30 to 35 passengers, and was compelled to walk 5 miles, 8650 damages were not excessive.
    4. Trial — Misconduct of Counsel.
    Where plaintifE’s right to recover was clear, and the only question related to the amount of damages, the court refused to reverse an award which was reasonable in amount, because of intemperate and ill-chosen remarks in the argument of plaintiff’s counsel.
    Error to Monroe; Kinne, J.
    Submitted November 17, 1899.
    Decided December 21, 1899.
    Case by William Y. Chamberlain against the Lake Shore & Michigan Southern Railway Company for the wrongful ejection of plaintiff from defendant’s train. From a judg- ' ment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      C. E. Weaver (George C. Greene and O. G. Getzen-Danner, of counsel), for appellant.

      Willis Baldwin, for appellee.
   Long, J.

October 28, 1895, plaintiff was ejected from defendant’s train between Flat Rock and Trenton for refusing to pay a fare of 25 cents. He tendered 19 cents fare, which was refused, and defendant’s conductor ejected him. He had been accustomed to travel over this line once a week or once in two weeks for a number of years, and had been compelled to pay 25 cents between these two points. The distance between these places is somewhat in dispute; the plaintiff claiming that it is only 6.3 miles, while defendant claims it to be 6.48 miles. On the trial, however, the time-table of the defendant was offered in evidence, from which it appears that the distance therein stated is 6.3 miles. It is admitted that the defendant company has no right to charge more than 3 cents per mile. In either view of the case, however, the defendant had no right to charge 25 cents. The utmost that could be charged, even upon the defendant’s theory that the distance is 6.48 miles, would be 19 cents. Calling the distance that number of miles, at 3 cents per mile would be 19.44 cents. The fraction over the 19 cents is less than one-half of 1 cent. In Zagelmeyer v. Railroad Co., 102 Mich. 214 (47 Am. St. Rep. 514), the statute fixing rates of railroad fare within this State (Act No. 202, Pub. Acts 1889; 3 How. Stat. § 3323, subd. 9) was under consideration, and it was said:

“This language would apparently not permit a charge for a fraction of a mile unless it was so large a fraction as to make the charge of 1 cent or more not in excess of 3 cents per mile. The statute formerly provided that the price of tickets might, for convenience in making change, be fixed at that multiple of 5 which was nearest the exact amount of fare; but the present statute (Act No. 202, Pub. Acts 1889) contains no such provision.”

The plaintiff in the present case had judgment for $650. Defendant brings error.

It appeared that in 1892 the defendant company had ejected the plaintiff because he had tendered 21 cents instead of 25 cents fare between these points, and that he brought an action based thereon. On that trial it was .admitted that the distance was only 6.3 miles, and that distance only was shown by the time-table. In that case the plaintiff recovered a judgment for $400. The case was removed to this court, and was here affirmed at the October term, 1896 (Í10 Mich. 614). That case had resulted in a judgment against defendant in the circuit court before the present case was brought. On the present trial the plaintiff offered in evidence the files and records in the former suit. This was objected to by defendant’s counsel, but the court overruled the objection and admitted such files and records. This is claimed to be error. We think there was no error in this. It appears that the plaintiff had continued to pay 25 cents fare for several years prior to the former suit. In that suit it was admitted that the distance was only 6.3 miles; yet after that suit had gone to judgment, and the defendant and its officers knew by the ruling in that case that 19 cents fare was the utmost limit it could charge, it continued to demand from its passengers 25 cents fare between these points. The wrong to the plaintiff was aggravated by these facts. In Welch v. Ware, 32 Mich. 84, it was said:

“When the law gives an action for willful wrongs, it •does it on the ground that the injured person ought to receive pecuniary amends from the wrong-doer. It assumes that every such wrong brings damage upon the sufferer, and that the principal damage is mental, and not physical. And it assumes further that this is actual, and not metaphysical, damage, and deserves .compensation. When this is once recognized, it is just as clear that the willfulness and wickedness of the act must constitute an important element in the computation, for the plain reason that we all feel our indignation excited in direct proportion with the malice of the offender, and that the wrong is aggravated by it. ”

See, also, Warren v. Cole, 15 Mich. 265; Tefft v. Windsor, 17 Mich. 486; Brushaber v. Stegemann, 22 Mich. 266; Swift v. Applebone, 23 Mich. 252; Leonard v. Pope, 27 Mich. 145.

Some claim is made that the damages are excessive. It appears that the plaintiff was ejected in the presence of 30 to 35 passengers, and was compelled to walk from that point to Trenton, a distance of about 5 miles. We think the circumstances of the ejection were such that the jury very properly gave him substantial damages. The court' below properly guarded the rights of the defendant in this respect. He stated to the jury that “ nov damages can be allowed except such as have been established by the evidence in the case, and no damages should be allowed as a matter of punishment to the railroad company.”

One other question is raised which we think proper to discuss. On the closing argument by counsel for plaintiff, he said, among other things:

“ Little bits of outrages, perpetrated upon one man at a time, — a cent here, half .a cent there. If a man pays 5 cents more than he ought in traveling a little piece of the road, and another man pays 10 cents more than he ought for freight, it amounts to a good deal in a year. It amounts to very little between Mat Rock and Trenton, says some one; but in 25 years how much would it amount to? The regular fare is 19 cents. They have taken 25 cents from Flat Rock to Trenton for 25 years. That amounts to $5,470 that has gone into the pockets of the Lake Shore & Michigan Southern Railway Company between these two little points. Just imagine the work the farmers did along there to earn that amount. How many hours of hard work has it taken for these men to earn that? I call your attention to that because he called your attention to those things. I am calling it to your attention so that it can go into your mind and heart, and mine, and that of every man who has thought of the thing, that the little outrages from year to year gradually become all centered upon some one man, until he is so much outraged that he takes, it into his hands and tries to correct the outrage against all the people. For 25 years, between Flat Rock and Trenton, the people had been outraged to the extent, and had been stung, and this old man had been, he had felt it, not only by the outrage to himself, but to his neighbors. He felt the outrage that was going on, but he stood it a long time, as the other people had stood it; and why? Why, that the railroad company’s lawyers-— And, by the way, during the last year, according to the report of this old road— As people grow old, they ought not to have lawsuits. As railroads grow old, they ought not to have lawsuits, unless for such things as Mr. Weaver and his associates have had in cases like this. According to the report, there has been a large amount of expense for lawsuits, etc., — $63,024.45. That is takqn from somebody. Every bit of it has been taken from the people of the State of Michigan, or other parts where this railroad goes; and still Mr. Weaver would laugh at you. Mr. Weaver would laugh at you and say: ‘ What do you care about it? You walk about your yard, — a great, big man.’ It does ■ not cost much to make a common, ordinary devil walk 5 or 6 miles; but if the president of your railroad, Mr. Vanderbilt, who said, ‘The public be damned,’ had been asked to walk 5 or 6 miles,, would Mr. Weaver say it was worth only five, or six, or ten, or one hundred dollars? Why, it would mount into the millions. He would not want a man of that kind to be put off, and walk from Flat Rock to Trenton, for a few paltry dollars. But it is Mr. Chamberlain, an ordinary farmer, used to walking around the fields. I have walked around the fields, and I know it is no fun. Farmers do not have fun walking around the fields for earning their dollars.”

While some of these remarks were made in answer to the arguments of counsel for defendant, yet many others of them were not, and counsel spoke of many things outside the record. This practice of counsel has many times been condemned by this court, and the language here is deserving of the severest censure. The court below should have interposed and stopped the intemperate speech. But we are not satisfied that any substantial injury was done the defendant. The amount of the verdict is not large, when we consider the aggravated circumstances under which the plaintiff was ejected; and we are not, therefore, inclined to reverse the case because of these intemperate and ill-chosen remarks of counsel. The plaintiff was clearly entitled to recovery, and the only question was the amount of damages.

We find no substantial error in the case. The judgment must be affirmed.

The other Justices concurred.


text:
    CHAPELLE v. WEBSTER.
    1. Replevin — Service—Sufficiency of Copy of Writ.
    Under 3 Comp. Laws 1897, § 10659, requiring the officer to summon defendant in replevin by delivering to him a “cer tified copy ” of the writ, service by delivery of a copy which omits the name of the justice in the place for his signature is irregular, and, on failure of plaintiff to remedy the defect, the proceedings should be dismissed.
    2. Same — Alias Writ — Procedure in Justice’s Court.
    Whether a justice of the peace is authorized to issue an alias writ "of replevin for the sole purpose of remedying a defect in the service, — queers.
    Error to Chippewa; Steere, J.
    Submitted November 17, 1899.
    Decided December 21, 1899.
    Replevin by Louis Chapelle against William Webster. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      John A. Steinlein, for appellant.

      John P. Qonrick, for appellee.
   Hooker, J.

A writ of replevin issued by a justice of the peace was executed by seizing the property described therein, and serving upon the defendant a paper which, but for the omission of the justice in the place for his signature, was a true copy of the writ. Upon the return day the defendant appeared specially, and moved that the proceedings be dismissed, and that damages be assessed in his favor, upon the ground that the justice did not acquire jurisdiction. The motion was based upon an affidavit of the defendant, to which was appended the defective copy. Upon the face of this copy the following certificate was indorsed:

“In Justice Court.
“Before Alexander Gurnoe, Justice of the Peace in and for Chippewa County.
“Louis Chapelle vs.
William Webster.
“Writ of Replevin.
“ I do hereby certify that the within is a true and correct copy of the original writ to me directed and delivered, and now in my hands for service.
“Thomas E. Dixon, Constable.
“Filed May 22, 1899.
“Alexander Gurnoe,
“Justice of the Peace.”

The motion was denied, and the defendant took no part in the subsequent proceedings before the justice. Judgment being rendered for the plaintiff, a special appeal was taken by the defendant to the circuit court, where the judgment of the justice was reversed, and the plaintiff has brought the case to this court by writ of error.

The service, not conforming to the statute (3 Comp. Laws 1897, § 10659), was irregular, and the justice should not have proceeded to try the cause, and render judgment, against the defendant’s motion. Unless the plaintiff chose to remedy the defect, as suggested in People v. Mecosta Circuit Judge, 26 Mich. 414, and Anderson v. Lenawee Circuit Judge, 105 Mich. 90 (if such procedure was competent before a justice of the peace,— a question which has not arisen; but see Tiff. Justices’ Guide [How. 5th Ed.], 105), the motion should have been granted. Griffin v. McGavin, 117 Mich. 872. As no attempt was made to remedy the defect in the proceedings, the judgment was irregular, and the learned circuit judge had no alternative but tp reverse ik

The judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    PETERS v. YOUNGS.
    Tas: Sales — Validity’op Decree — Res Judicata — Writ op Assistance — Collateral Attack.
    Where, upon an application for a writ of assistance by the holder of a tax title, the owner appears, and questions the jurisdiction of the court to enter the decree of sale, an order ' overruling the objections so raised, and directing the issuance of the writ, is res judicata as to the validity of the decree, precluding the owner from afterwards attacking it in an action of ejectment, even though on different grounds.
    Error to Marquette; Stone, J.
    Submitted October 28, 1899.
    Decided December 21, 1899.
    Ejectment by Robert Peters against Clark W. Youngs and others. Prom a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Clark & Pearl, for appellant.

      Hill & Smith, for appellees.
   Montgomery, J.

This is an action of ejectment to recover .possession of a lot in the city of Marquette, Mich., with store buildings thereon. Plaintiff showed a chain of title from the United States to himself. Defendant Youngs showed that he was a purchaser from the auditor general under a sale made in pursuance of a decree of the circuit court for Marquette county, in chancery, and that he was put into possession by a writ of assistance.

It appears that an answer was put in to the application for a writ of assistance, alleging, among other things, that the decree was void for want of jurisdiction for certain reasons specifically set up in the answer. On the hearing the court overruled the answer, and granted the writ of assistance. On the trial of the present case the plaintiff; contends again that there was no jurisdiction to render the decree, but assigns another and different reason for his contention than those assigned on the application for a writ of assistance. The circuit judge held that the order in the chancery suit, granting the writ of assistance, and determining that the court had jurisdiction, was res judicata. The appellant contends that the issue on the application for a writ of assistance was narrowed by the reasons which he put forth to establish the want of jurisdiction. We think, however, that the question as to the validity of the decree was necessarily involved in the determination of the application, and, having once submitted that question to a competent tribunal, the plaintiff cannot retry it on discovering additional grounds on which to attack the jurisdiction. Rawiszer v. Hamilton, 51 How. Prac. 297.

It is contended that the validity of the decree could not be litigated on the application for the writ of assistance, and for this reason the order in the chancery case is not conclusive. It is not accurate to say that the validity of the decree as affected by want of jurisdiction was not open in the proceedings. It is true that, the jurisdiction once established, the defendant would be precluded from retrying the merits on an application for a writ of assistance;but it was competent for the defendant to show want of jurisdiction, as was held in Ball v. Ridge Copper Co., 118 Mich. 7. The plaintiff in this case did litigate the question of jurisdiction on the application for a writ of assistance, and we agree with the circuit judge that, whatever remedy he may have by bill of review, he cannot collaterally again attack that holding.

Judgment affirmed.

The other Justices concurred.


text:
    TOWNSHIP OF SPRINGWELLS v. DETROIT, YPSILANTI & ANN ARBOR RAILWAY CO.
    Street Railways — Grading Highways — Franchise.
    Under a street-railway franchise providing that the track should be laid on the north side of a country highway, and in such manner as to obstruct as little as possible the free passage of vehicles “along” the said highway, and that the portion of the roadway lying adjacent to the south rail of the track should be properly dressed to the track, in order that vehicles might easily cross, the company must continue the grading of the highway upon the track wherever it is within the 16-foot driveway used by vehicles, but, where it is wholly without such driveway, it need only grade to the south rail.

      Certiorari to Wayne; Carpenter, Hosmer, Frazer, Lillibridge, and Waite, JJ.
    Submitted November 22, 1899.
    Decided December 21, 1899.

      Mandamus by the township of Springwells to compel the Detroit, Ypsilanti & Ann Arbor Railway Company to comply with certain'provisions of its franchise. From an order granting the writ in part, relator brings certiorar i

    Affirmed.

      Hayes & Lawson (T. E. Tarsney, of counsel), for relator. ,

      Cutcheon & Stellwagen, for respondent.
   Hooker, J.

The petition of the supervisor of Spring-wells township, in the county of Wayne, was filed in the circuit court of that county, alleging that the township board granted to the defendant a franchise for the construction and operation of a street railway through such township, upon and ■ along a certain toll road, known as the “Chicago Road;” that its railway is now in operation, but that its condition and operation are not in compliance with said franchise- — First, because its rails are from 5 to 19 inches above the highway; second, it has not built crossings at farms and highways as prescribed; third, it is not ballasted between the ties, and by reason thereof teams cannot cross it; fourth, it runs its cars less frequently than the franchise prescribes. It prays a mandamus requiring the defendant to put its railway in such condition as the franchise prescribes, and operate it in accordance with the requirements. The defendant answered, admitting some of the allegations of the petition, and denying others. It states that the rails are raised a little above the roadbed, and that it is necessary to the successful operation of said road. It states further that the railway is built north of the center of the highway, and contiguous to the road ditch; that the highway slopes to the south edge of the railway. It denies that the highway is not dressed up to the south line of its railway. It claims that it should not be required to ballast between ties, for the reason that the track was not built within the traveled portion of the way, and was not designed to be used as a part of the highway, and that to so use it would be dangerous. Issues were joined and sent to a jury, which found against the defendant upon all material questions. Upon the hearing the court granted the writ, but refused to compel the defendant to lower its track to a level with the roadbed, and to fill between the rails, so that the whole of the roadbed or highway upon which the track is laid can be used by the public for the purpose of traveling thereon. The relator has brought the case to this court by certiorari.

Paragraph 2 of the franchise provides that:

“The track of said railway shall be laid to 4 ft. in. gauge, and so as to obstruct as little as possible the free passage of vehicles along the said highway. When the railway herein authorized to be constructed is built, that portion of the roadway lying adjacent to the south rail of the said track shall be properly dressed to the track, so as to provide for the easy crossing of the same by vehicles. This portion of the work herein authorized to be performed shall be done to the satisfaction of the highway commissioner of Springwells township and the township board of said township.”

Section 3 provides that, “so long as said highway shall remain unpaved, the tracks shall be laid on the north side of said highway.”

It is apparent that, if the defendant is to fill between the rails to the level of the top of the rails, it must be done by paving or planking, to accommodate the flanges of its car wheels. This was a country road. The learned judges held that, where the railway was within the 16-foot driveway, the defendant must continue the grading of the highway upon its track, but, where it was wholly without such driveway, it should continue it to the south rail of the track. We are of the opinion that this is all that it can be asked to do, under the proofs.

The order of the circuit court is affirmed.

The other Justices concurred.


author: Per Curiam.

text:
    CITY OF KALAMAZOO v. KALAMAZOO HEAT, LIGHT & POWER CO.
    Appeal — Delay—Fault op Stenographer.
    Delay in perfecting an appeal, due to the stenographer’s failure to furnish in time a transcript of the testimony, is not ground for dismissing it, where it appears that the appellant acted with all diligence, procuring an order for an extension of the stenographer’s notes immediately after the decree was rendered. Harrison v. Van Burén Cireuit Judge (unreported), McGrath, Mand. Cas. No. 965, distinguished.
    Bill by the city of Kalamazoo to enjoin tbe Kalamazoo Heat, Light & Power Company from occupying the city streets. Prom a decree for complainant, defendant appeals. On motion to strike from the files the case as settled, and to dismiss the appeal.
    Submitted December 2, 1899.
    Motion denied December 21, 1899.

      Boudeman & Adams (N. II. Stewart, of counsel), for the motion.

      William G. Howard and E. A. & R. B. Crane, contra.

   Per Curiam.

The delay in settling the case was not due to any fault of appellant. The order for the extension of the stenographer’s notes was given immediately after the decree, and at every stage the appellant appears to have used all reasonable diligence. The delay was owing to the default of an officer of the court, and is excused, under our former rulings. Cameron v. Calkins, 43 Mich. 191; Gram v. Wasey, 45 Mich. 223; Lake Shore, etc., R. Co. v. Chambers, 89 Mich. 5. See, also, Waterman v. Bailey, 111 Mich. 571.

The case of Harrison v. Van Buren Circuit Judge, McGrath, Mand. Cas. No. 965, relied on by appellee’s counsel, is not like this case, as it appears that no order for extension of notes was given in that case, which the stenographer was bound to act upon, until after more than four months had elapsed after the decree.

The case, as settled, should not be stricken from the files, nor should the case be dismissed, for the reasons stated in the motion.

Motion denied, with costs.


text:
    DAGES v. SANILAC CIRCUIT JUDGE.
    Replevin — Quashing Writ — Mandamus.

      Mandamus will not lie to compel a circuit judge to vacate an 01’der quashing, with costs, a writ of replevin, since the order is final, and reviewable on error.

      Mandamus by John W. Dages and William H. Andrews, survivors, etc., to compel Watson Beach, circuit judge of Sanilac county, to vacate an order quashing a writ of replevin.
    Submitted December 12, 1899.
    Writ denied December 21, 1899.

      James A. Muir, for relators.

      William H. Aitkin and John H. Farley, for respondent.
   Per Curiam.

This is an application for a mandamus to compel the circuit judge to vacate an order quashing a writ of replevin with costs. The order was a final one, and reviewable on error. The papers on which the order was based were matters of record. Jewell v. Lamoreaux, 30 Mich. 155; Pingree v. Steere, 68 Mich. 204. The case is unlike People v. Bay Circuit Judge, 41 Mich. 326. In that case the application was to vacate an order quashing an attachment. The writ contained the usual summons clause, which defendant was still bound to answer, and the case was not dismissed. The order was not, therefore, final. In the present case the order was final, and reviewable on error. See Olson v. Muskegon Circuit Judge, 49 Mich. 85; Orth v. Montcalm Circuit Judge, McGrath, Mand. Cas. No. 717.

The writ will be denied on this ground.