text:
    SOWICZKI v. MODERN WOODMEN OF AMERICA.
    1. Insurance — Waiver—Mutual Benefit Associations.
    The clerk of a local camp of a beneficial society who was forbidden by the by-laws of the order from waiving any provisions of its policies could not waive that portion of the certificate which limited the persons who might become beneficiaries under the insurance policy to heirs, blood relatives, or persons dependent on the applicant or member of the family.
    2. Same — Fraud—Directing Verdict.
    Evidence in plaintiff’s behalf, that the insured caught a cold which developed into consumption, disputed by defendant, who claimed that he had tuberculosis when he took out a policy in defendant association, held, to present a question for the jury as to the cause of the disease and existence at the time of representations made as to his good health.
    3. Same — Good Faith.
    Perfect good faith in answering the questions is required of the applicant by the law.
    4. Same — Certificate—Previous Health, etc.
    Where the applicant for fraternal insurance untruthfully answered that he was married, and had not consulted a physician for seven years, and had never spat blood or had certain diseases specifically described, in presenting his application for a benefit certificate, the beneficiaries were not entitled to recover on the policy, which was avoided by the fraudulent misrepresentations.

    5. Same — False Representations.
    And answers relating to such subjects were material and, if fraudulent, avoided a certificate of insurance.
    6. Same — Benefit Certificate — Evidence—Presumptions.
    A presumption exists that the applicant answered and signed understanding^ an application.
    7. Same — Use of Interpreter — Effect.
    The fact that he applied through an interpreter did not of itself tend to prove that he was unable to understand the questions, applicant having lived in this country nine years and having said he understood English in the application, which was fully explained to him through the interpreter and examiner.
    Error to Wayne; Cross, J., presiding.
    Submitted April 12, 1916.
    (Docket No. 123.)
    Decided July 21, 1916.
    Rehearing denied Sentember 27, 1916.
    Assumpsit by Ludwicka Sowiczki and a separate action by Anthony Sowiczki against the Modern Woodmen of America on a policy of insurance. Judgment for defendant on a verdict directed by the court. Plaintiffs, bring error.
    Affirmed.

      Clarence P. Mulligan, for appellants.

      Beaumont, Smith & Harris, for appellee.

      For authorities passing on the question as to what “constitutes spitting or coughing blood” contained in an application for life insurance, see note in 23 L. R. A. (N. S.) 917. As to what constitutes a consultation with or attendance by a physician, within the meaning of an application for life insurance, see note in 18 L. R. A. (N. S.) 362, and as to time covered by question or representation as to consultation with physician, see note in 45 L. R. A. (N. S.) 162.

   Steere, J.

In these two cases, combined by stipulation and heard as one, plaintiffs, who are husband and wife, each brought an action against defendant for the sum of $500, claimed- under and as specified beneficiary in a new benefit certificate issued July 29, 1913, by defendant to Steven Sowiczki, deceased, on his reinstatement after suspension in lieu of the original, issued on August 12, 1912, as to which he signed a “waiver of lost certificate.” A trial of said case in the circuit court of Wayne county resulted in a judgment of no cause of action on a verdict directed by the court, on the ground that deceased in his application for insurance made untrue statements as to material facts, which by the terms of his benefit certificate were representations, warranties, and conditions on which the certificate was issued, and for the further reason as to Mrs. Ludwica Sowiczki that she was not qualified to become a beneficiary under defendant’s by-laws and did not come within the terms of the policy.

Defendant is a foreign corporation organized and doing business as a fraternal beneficiary society with subordinate lodges or “local camps” in this and other States. The beneficiary certificate which it is'sued to deceased on August 12, 1912, through its local camp at Detroit, Mich., was for $1,000, and at his instance made payable upon his death to “Anna Sowiczki, Detroit, Michigan; relationship, wife.” The undisputed testimony showed that he was never married, although then living with said Anna, ostensibly as his wife, and had lived with her in that relation for about six years. She testified that she made the payments on this certificate while living with him. They separated ■ July 4, 1913.

On June 30, 1913, deceased was suspended from the order for nonpayment of dues. On July 20, 1913, he, or his brother for him, paid all his arrearages, and he made application for a new certificate, signing a waiver of the first, which named said Anna as beneficiary, under a claim that it was lost, and changed from her to plaintiffs, Anthony Sowiczki and Ludwica Sowiczki, as beneficiaries in the sum of $500 each, stating in said waiver that the benefit certificate payable to “Anna Sowiczki, who bears the relationship to me of wife,” had been lost, and it was not within his power to surrender it, but declared and agreed that the same should be void from the date of the new certificate, which he directed should be made payable to plaintiffs on his death, designating them separately, by name, as his brother and sister, at the same time certifying that he was then in good health. He was thereupon reinstated, and the new benefit certificate was issued to him as before noted, on July 29, 1913. It was conceded that he died September 10, 1913, of pulmonary tuberculosis.

Ludwica Sowiczki was his brother’s wife and bore no blood relationship to deceased. He was a common laborer, born in Russian Poland on May 6, 1877, and came to the United States in 1903. At the time of his first application for membership and benefits in defendant society he was living with Anna Sowiczki on Livingston street, in Detroit, and working for the American Car & Foundry Company. She testified that she left him because she could not stand it and he chased her out; while his brother, Anthony, testified that deceased afterwards came to live with him “because she threw him out,” about three weeks after Anna left him, and that in July, when they applied to have the “policy changed to me,” deceased was “still living in his own home.” This witness further said, “he lived with me two or three weeks before he died.” Although his testimony is very conflicting as to the length of time deceased lived alone (he states it in one part of his testimony as two months), it is shown deceased died at plaintiff’s home, where he had gone a month or more before his death under an arrangement, as Anthony testified, that “he would pay board and live with us, and my wife would fix things up for him.”

Deceased’s waiver of lost certificate, in which he changed beneficiaries, signed on July 20, 1913, while he was “living in his own home,” concludes as follows:

“I agree that the new benefit certificate hereby applied for shall be issued on and in consideration of my application for membership and benefits, and that said application, as it may be affected by the by-laws of the society now in force, shall be the basis of and the consideration for the issuance and delivery to me of such new benefit certificate.”

Defendant’s by-laws specify who mav become beneficiaries as follows:

“Benefit certificates shall be made payable only to the wife, surviving children, or some other person or persons specially named in said benefit certificate as beneficiary, who are related to the member as heir, blood relative (blood relative meaning relationship not further removed than cousin in first degree), or persons dependent upon him, or member of his family whom the applicant shall designate in his application.”

Plaintiff Ludwica Sowiczki bore to the deceased none of the relationships designated, nor was she dependent upon him, or a member of his family, either when he designated her as beneficiary or at the time of his death, although he became a boarder for pay in her home a few weeks before he died. Had she been designated by deceased in his application as a person .dependent upon him, or as a member of his family, there might be possible color for the contention that such designation would relate to and speak from the time of his death, which would invite a more careful consideration in that connection of the word “family,” recognized as “an expression of great flexibility” (Carmichael v. Benefit Ass’n, 51 Mich. 494 [16 N. W. 871]); but she was only brought within the class who might be beneficiaries by .untruthfully designating her as a “sister” of deceased, just as Anna was described as his wife, while it is admitted she was not.

Anthony Sowiczki testified that deceased told the clerk of the local camp that Ludwica was his brother’s wife, which is denied by the clerk, and it is urged in behalf of plaintiffs that this raised a question of waiver which should have been left as an issue of fact to the jury. The contract of insurance was with the Great Camp, and by section 39 of the by-laws of the order to which the insured subscribed the clerk of the local camp could not waive this provision. Showalter v. Modern Woodmen of America, 156 Mich. 390 (120 N. W. 994); Larkin v. Modern Woodmen of America, 163 Mich. 670 (127 N. W. 786).

The more serious and meritorious objections, however, reaching the validity of this entire benefit certificate, are the answers deceased made to plain and pertinent questions bearing directly on his prospects of longevity at the time he first applied for membership and his warranty, that he was in good health when reinstated. Under the by-laws tender of assessments for reinstatement by a suspended member is a warranty of then good health, and retention of such assessments until the head clerk or board of directors learns that such member was not in good health when he attempted to reinstate is not a waiver of suspension, and, if he was actually in poor health, will not have the effect of reinstating him nor entitle him or his beneficiaries to any rights under his benefit certificate. Anna Sowiczki, who separated from deceased a little over two weeks before he applied for reinstatement, testified that he was in poor health for over a year before that time, and had consulted several physicians who attended him when ill; that at times he would not be able to work, had-pain in his back, stomach, and lungs, coughed, and she had seen him spit blood often. On August 19, 1918, Dr. Laschajewski, who was called to attend him professionally, found that he was suffering with an advanced stage of tuberculosis, which soon proved fatal. Upon this subject the physician testified in part:

‘I believe Steve Sowiczki was suffering from a chronic form of tuberculosis. For a chronic form of tuberculosis to reach an advanced stage is somewhat dependent; as a rule it takes a few months any way. * * * I am as positive as any man can be positive that the man was not in good health July 20th. * * * He had been suffering in that condition for at least several months. * * * It is generally conceded consumption is a lingering disease. It is a slow developing disease. It may take several months, and it may take years. * * * I know a large part of the lung was destroyed.”

It is urged by the defense that such testimony shows conclusively, as a matter of law, against any testimony of plaintiffs, that deceased was not in good health when he applied for reinstatement. While this testimony is persuasive, there was also testimony of a contradictory nature. Plaintiffs’ claim and theory is that death was caused by quick consumption resulting from a recently contracted cold. Other witnesses called by plaintiffs, mostly relatives or of his nationality, testified that he was, on and about July 20th, a strong, healthy man, working regularly as a watchman at that time, and was sick but a few weeks before his death. Blanche Kubina, in explanation of her observations of the recent development of his fatal illness, testified that when she saw him at Anthony’s home about three weeks'before his death he shook as if he had a cold, and said to her “I got awful sore because Anna left me, and I was on a drunk and I caught cold.”

As a general rule, the question of whether a person is in sound or good health at a particular time is one of fact for the jury, if the evidence is at all conflicting and we cannot under such, testimony hold as a matter of law that there was no issue of fact as to whether on July 20th deceased was, or believed himself to be, in good health. But the testimony of his physician as to the nature of the disease of which he died, and of the woman with whom he then lived as to his health at and during most of the year following the time he joined the association, has a material bearing on the significance and good faith of his answers when applying for membership. In Maine Benefit Ass’n v. Parks, 81 Me. 79 (16 Atl. 339, 10 Am. St. Rep. 240), a case in which it was held that the insured had misrepresented and misled by answering that she was in good health when she was, in fact, in a consumptive or tubercular condition, that court made the following pertinent observations :

“The good faith of the answers should be perfect. The presence of it goes very far to protect a policy; while want of it would be an element of great power in the defense.”

A copy of deceased’s application, including questions asked and his answers as signed by him, was attached to and made a part of his benefit certificate and contract of insurance, with the following notice immediately under.his signature:

“A copy of your application for membership is included in or attached to this certificate — read it. If any answer or statement therein is not correct notify the head clerk at once.”

Amongst the plain and direct questions asked and answered by deceased were these:

“Are you married? Yes. If so, when? Sept. 10, 1904. Where? Detroit, Mich. * * * Have you within the last 7 years consulted any person, physician or physicians in regard to your health? No. (If this was answered affirmatively, ailments, dates and duration of attack, name and address of physician con-suited or by whom treated were required.) Have you ever had, or has any physician ever, treated you for, or advised or informed you that you ever had * * * (naming certain diseases) or any other disease, or any disease of the * * * liver or have you ever had * * * spitting of blood or other hemorrhages? No.”

All these answers were untrue. He was never married, had consulted several physicians in less than seven years prior to that time, had been sick, unable to work, spit blood, and treated by a physician for a serious ailment scarcely two months before. Dr. Buss testified that he was called professionally to treat deceased at his home, and visited him in that capacity two or three times during the week previous to May 31, 1912; that he was then sick, unable to work, confined to his bed part of the time, said he had vomited blood, and thought he was seriously sick; that witness in examining him did not make out there was anything the matter with his lungs, and pumped out his stomach to see if there was anything wrong with it, and made a tuberculine' test to ascertain “if there was any infection of tuberculine there,” and says, “At the time I examined him that week I came to no conclusion.” A Dr. Panzner was also called to visit deceased on June 3, 1912, and testified that he found him sick in bed, but made only the one visit, because he learned another physician had the case. He stated that on that visit he diagnosed the patient’s ailment as* “probable cirrhosis of the liver,” and told him “he had trouble in his liver,” but was not positive of his diagnosis, because he “did not think one examination was sufficient.” Whatever his ailment at that time, it is undisputed that he was then sick, seriously as he himself thought and said, consulted with and was visited and treated by two physicians for a serious personal ailment of some kind, barely two months before he in his application stated that he had not consulted a physician in regard to a personal ailment within the last seven years. The materiality and importance of truthful answers in that particular are obvious and universally recognized. The subject is interestingly discussed, and various authorities reviewed in McDermott v. Modern Woodmen of America, 97 Mo. App. 636 (71 S. W. 833). Upon representations touching the health of an applicant for insurance this court said in Tobin v. Modern Woodmen of America, 126 Mich. 161 (85 N. W. 472):

“As said in the case of Modern Woodmen of America v. Von Wald, 6 Kan. App. 231 (49 Pac. 782), it was provided by the contract that ‘the certificate should be void in case of the untruthfulness of any of the answers, and neither the court nor the jury are at liberty to inquire into the materiality of the questions and answers, and, unless they are true, the beneficiary cannot recover.’ See, also, Mutual Benevolent & Aid Ass’n v. Hall, 118 Ill. 169 (8 N. E. 764); Ketcham v. Accident Ass’n, 117 Mich. 521 (76 N. W. 5); Continental Life Ins. Co. v. Rogers, 119 Ill. 474 (10 N. E. 242, 59 Am. Rep. 810); Finch v. Modern Woodmen of America, 113 Mich. 646 (71 N. W. 1104).”

In avoidance of the effect of such answers it is contended by plaintiffs that deceased was questioned by the medical officer of the local camp through an interpreter, and whether the questions were properly asked and understanding^ answered by deceased as written down in his application by the examiner should have been left to the jury as an issue of fact under the ruling in Clark v. North American Union, 179 Mich. 131 (146 N. W. 336), and analogous cases. In the Clark Case the exahiiner was unable to testify that he asked the applicant the question upon which the controversy turned, or that all the questions in the blank were asked, and from such a situation it was said an inference of fact might easily be drawn that the questions were not asked, and where this is true it became an issue for the jury. We find no evidence in this case from which any such inference can be drawn to overcome the presumption that deceased was fully advised and understood the nature *of these particular questions, at least, and his answers in the application signed by him. They were questions as to which there was little room for uncertainty or misunderstanding, whether deceased could speak or understand the English language or not. It is not shown that he could not, except as inferable from the use of the interpreter, who was present and acted at deceased’s request. A request for an interpreter is not uncommon or unnatural in such cases with those whose native language is foreign, where they can understand and speak English fairly well. Deceased had been in the United States nine years, and states over his signature in his application that he is “able to speak and understand the English language,” and is “a citizen of the United States.” The examiner testified that these questions were asked and answered through the interpreter, that he asked them correctly and recorded them as answered, and says:

“I read' everything in this application to this man. It took from 25 minutes to half an hour. * * * I wrote in everything that appears under these answers.”

The interpreter, a fellow countryman of deceased, who said he could read and write English some, and had told deceased, “II you feel sick, you never better step in; if you feel well, of course, the doctor can examine you,” testified of how he came to act as interpreter, how the examination was conducted, and what was said, in part, as follows:

“Q. Did you ask him if he had talked to any physicians or had any physicians treat him?
“A. I asked him, and he said, ‘No.’ When I asked him if he had any disease, he said not, and I told the doctor in English, and then I think the doctor write the answer down, he write it, he got a piece of paper. At that time I could not tell whether or not Anna was his wife. Steve asked me to be present when he was to be examined by the doctor. When these questions were asked, Steve was sitting in the kitchen. My daughter just happened to drop in the kitchen when this was going on. She asked Steve questions, too. We asked him a lot of other questions, too.. The doctor asked him when he was born, what country he came from, whether he drank beer, whisky or anything, or sickness of any kind.”

The testimony of these two witnesses is confirmatory of the presumption that this written application was understanding^ signed by deceased, and we can discover no evidence in this record giving rise to any inference to the contrary which creates an issue of fact upon that proposition.

The judgment is affirmed.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Brooke, and Person, JJ., concurred.


source: Caselaw Access Project

author: Steere, J. Ostrander, J.

license: Public Domain

text:
    HAWKINS v. COMMON COUNCIL OF THE CITY OF GRAND RAPIDS.
    1. Municipal Corporations — Public Officers — Removal from Office — Impeachment Proceedings.
    Municipal officers of a city are corporate, legislative, not constitutional, officers, and the power of removal is inherent in the corporation. The legislature has power to confer it upon a city council. Under the Constitution of 1850 the legislature was not prohibited from granting the said power.

    2. Same — Constitutional Law — Grand Rapids Charter.
    Power given to the city of Grand Rapids in its charter to remove* officers was but the recognition of an ancient usage and an incident inherent in municipalities and was valid under the former Constitution.
    3. Same — Public Officers — City Treasurer.
    Power to remove local officers does not exist exclusively in the governor under Act No. 149, Pub. Acts 1915, 1 Comp. Laws 1915, § 245. The provisions of Art. ix, § 7, of the Constitution confers upon the governor substantially the same general power to examine into the acts of any public officer elective or appointive, and to remove the same, as he previously had by the former Constitution.
    4. Same — Cause—Continuation in Office.
    Where removal may be made for cause only, the cause must have accrued during the present term of the officer: misconduct prior to the existing term will - not justify removal, except where the accused officer continuing in office by re-election is charged with official misconduct during the preceding term.
    5. Same — Removal or Amotion — Regulation.
    Under the authority of section 11, title 3, of the. Grand Rapids charter, power is given to legislate for various purposes, amongst them being to provide for and regulate the election- and appointment of all officers and for their removal from office and filling of vacancies and the language of title 3, being permissive, only, in relation to the regulation of means to be adopted, the procedure must nevertheless follow the method prescribed, including a record of the steps to be taken, a copy of the charges to be served, with ten days’ notice of the time and place of hearing and opportunity to the accused to defend, etc.
    6. Same — Procedure—City Treasurer — Hearing.
    In trying the treasurer, an official who was in no manner beholden to the council for his office, which he held from the same source and by equal right with the members of the council, it was bound to a strict observance of aii statutory requirements and fundamentals of a fair and impartial trial of the accused. The fact that the charges were prepared by a committee of the council appointed for the purpose as the result of an investigation made by or under direction of that body, did not in itself disqualify the members from participating in the trial.
    7. Same — Trial—Pair Trial,
    But in passing upon impeachment charges a fair trial was not given by conducting a hasty proceeding all night and before several of the members sitting who had intimated their opinion before the hearing that accused was guilty, and in conjunction with a showing that the accused was limited in, or denied, his right to introduce evidence in his defense.
    8. Same.
    It was illegal to permit members of the council to cast a vote for the removal of the city treasurer after hearing the evidence read by an unofficial stenographer engaged by the council for the occasion, and not previously sworn: only 15 out of 24 members attending all the sessions and , hearing all the testimony, where a two-thirds vote of all was required to remove the official.
    Certiorari by James S. Hawkins against the common council of the city of Grand Rapids to review its proceedings removing him from the office of city treasurer.
    Submitted April 19, 1916.
    (Docket No. 99.)
    Reversed and proceedings declared void July 21, 1916.

      Maynard & Chase, for petitioner.

      R. M. Ferguson, City Attorney, and Charles A. Watt, Assistant City Attorney, for respondent.

      Tor authorities passing on the question as to whether power conferred upon municipality to remove its officers is exclusive, see note in 20 L. R. A. (N. S.) 1128.

   Steere, J.

Unfortunately the entitled “Statement of Facts” in petitioner’s brief ignores the requirements of Rule 40 of this court, is meager of facts, and devoted largely to argument by adjective, necessitating resort to the voluminous two-volume record for a fair understanding of this case and history of the proceedings in it.

The record discloses that on August 16, 1915, so-called “impeachment charges” were drafted by a committee appointed for that purpose by the common council of the city of Grand Rapids, and presented to said body, accusing James S. Hawkins, treasurer of said city, petitioner herein, with official misconduct and improper performance of the duties of his office by reason of issuing tax certificates and certificates of redemption, securing the issuance of quitclaim deeds from the city, 'falsely representing the amount of the city’s claim against certain property delinquent for taxes, altering deeds signed by authority of the common council, conspiring with unknown persons to defraud the city by obtaining transfer ‘6f the city’s interests without adequate compensation to the city, etc., his alleged .delinquencies, stated at great length and covering many alleged dishonest transactions, being in substance that he availed himself of his official position to dishonestly manipulate and deal in municipal tax claims and tax titles for profit in fraud of and against the rights of the city.

On August '30, 1915, petitioner appeared specially by counsel and moved dismissal of these charges for many reasons which need not be stated here, which motion was denied.

On September 8, 1915, a ten days’ written notice of the time and place of hearing the charges by the common council was personally served upon petitioner, at which 'time he again appeared specially and by his counsel filed a motion tó dismiss the proceedings on grounds previously stated and numerous others, which was also denied. Thereafter, reserving his rights under the motion to dismiss, he filed an answer, containing also what might be termed a demurrer to said charges. The council-then adjourned the hearing until October 4,1915, when, parties being present, the hearing was entered upon and taking of testimony begun. Adjourned meetings for the hearing were held evenings, the matter being adjourned from one evening to another for taking testimony through eleven sessions until the evening of November 3, 1915. An adjournment to this meeting from November 1st was at the request of petitioner’s counsel, who stated that they were not then prepared to go on with the defense, but would be present at the next meeting and take such steps as they desired, although it was understood that the parties would put in some testimony at this adjourned meeting, of November 3d, and that all the testimony which had been taken should be read by the stenographer to the aldermen before they voted. When the meeting convened, petitioner’s counsel renewed his motion to dismiss, and, after further cross-examination of a witness who was produced, announced they were unable to proceed further for various reasons which he urged — among others, that the city’s case was not in because it was understood that the testimony was yet to be read over. After some acrimonious discussion, it was decided the hearing should proceed, and reading of testimony was entered upon, which, with interspersed discussion and voting upon each of the charges and specifications under them, occupied the entire night. In the early morning, without intermission and against protest of petitioner’s counsel with renewed request for further time in which to prepare and present his case, a resolution was adopted by a vote of 19 to 1, which, with recitals that the council had during the past month listened to the evidence produced in support of the charges, at which hearings petitioner was present in person or by counsel and given every opportunity to put in a defense, that said evidence had been re-read in whole to the council after it was taken, and the council had voted severally on the six charges filed and each specification thereunder, concludes as follows:

“Resolved further, that said James S. Hawkins be and he is hereby removed from the office of and as treasurer of the city of Grand Rapids, on account of and by reason of being guilty of the said several charges and specifications aforesaid; and that said office be, and it is declared vacant from and after November 4, 1915.”

The common council of the city of Grand Rapids consisted of 24 members, 20 were present and voting at the time this resolution was adopted. Of these, but 15 had attended all the meetings and heard all the testimony, except as read that night by the stenographer who had not been sworn, nor so far as shown officially selected to act in the proceeding.

It appears undisputed that the charges all covered acts alleged to have been committed prior to respondent’s induction into his then term of office, which began May 3, 1915; he having filled the office by election during previous terms and being his own successor.

Among the errors, or objections, urged in behalf of petitioner are, in substance, that the common council of the city of Grand Rapids had no jurisdiction to hear and determine charges for impeachment of an elective city officer, but the sole power of removal rested with the governor; that the provisions of the charter of Grand Rapids authorizing the council to remove a city officer are not self-executing, but the charter requires adoption of an ordinance or some other official action providing the method, machinery, and course to be pursued by the council when sitting as a court of impeachment; that an officer cannot be removed for acts done prior to his then present term of office; that the common council was disqualified to sit as a court of impeachment because certain of its members who participated and voted had prejudged the case and expressed opinions that petitioner was guilty before any testimony was taken; that the resolution was not adopted by a two-thirds vote, because only 15 members of said “court” attended all the sessions and heard all the testimony; that continuing in session all night without any . manifest reason therefor, and immediately thereafter talcing final action at so early and untimely an hour, against the protests of petitioner and request for time in which to make his defense, was inimical to a full and fair trial and conducive to a miscarriage of justice; that the charges were insufficient, not cause for removal under the charter; that errors were made in the admission and rejection of testimony; and that the proceedings were without due process of law and in contravention of the Constitution of the United States and of the State of Michigan.

These proceedings were instituted under section 11, tit. 2, of the charter of the city of Grand Rapids, as revised by the legislature of 1905 (Act No. 593, Local Acts 1905), which provides in part:

“Any elective or appointive officer of the city except judges or justices of the peace may be removed by the common council for official misconduct, or for unfaithful or improper performance of the duties of his office,” etc.

This section also requires that the proceedings shall be entered of record, a copy of the charges shall be served upon said officer with notice of the time and place of hearing at least 10 days prior thereto,, and an affirmative vote of two-thirds of all aldermen elected shall be necessary for his removal.

It is contended this provision of the charter is unconstitutional because unauthorized by section 7, art. 12, of the old Constitution, of 1850, in force when the charter was adopted, which says, “The legislature shall provide by law for the removal of any officer elected by a county, township, or school district, in such manner and for such cause as to them shall seem just and proper,” making no mention of city and village officers, while section 8, art. 9, of the present Constitution, of 1909, substituted for the above section does as follows:

“Any officer elected by a county, city, village, township or school district, may be removed from office in such manner and for such cause as shall be prescribed by law.”

From this it is urged that those who framed the new Constitution construed the old as conferring no power upon legislatures to provide for removal of city and village officers.

The address to the people from the constitutional convention, made under statutory requirement, stated “that none of the eight sections of article 9 are changed in any manner except for the purpose of phraseology” and certain purposes foreign to this question.

It is evident that no power is given cities and villages to remove their officers under said section 7 of the old Constitution, but it does not follow that they had no such power. Their officers are corporate, legislative officers, not constitutional. The power to remove their officers is, and was long before the adoption of our Constitution, inherent in municipal corporations. 2 Dillon on Mun. Corp. (5th Ed.) § 462; 2 McQuillin on Mun. Corp. § 552; Speed v. Common Council of Detroit, 98 Mich. 360 (57 N. W. 406, 22 L. R. A. 842, 39 Am. St. Rep. 555). In that case the authority of the legislature to confer such power upon a city council is recognized. There were cities and villages in Michigan before it became a State — municipalities for local government of common-law origin and with common-law rights, self-governing communities in matters of strictly local concern. The Constitution of 1850 in dealing with this subject, and authorizing the legislature to provide for the incorporation of cities and villages nowhere prohibits the legislature from conferring the power in question, but as a whole the constitutional provisions upon the subject give reason for inference to the contrary. The intended limitations are well defined and powers granted in general terms. By section 13, art. 15:

“The legislature shall provide for the incorporation and organization of cities and villages, and shall restrict their powers of taxation, borrowing money, contracting debts and loaning their credit.”

Section 14, art. 15, provides:

“Judicial officers of cities and villages shall be elected and all other officers shall be elected or appointed at such time and in such manner as the legislature may direct.”

And, in general, by section 38, art. 4:

“The legislature may confer upon organized townships, incorporated cities, and villages, and upon the board of supervisors of the several counties, such powers of a local, legislative, and administrative character as they may deem proper.”

The power conferred in the charter of Grand Rapids to remove its officers was but recognition of ancient usage, and an inherent incident of its incorporation, with stated limitations, was forbidden by no constitutional restriction and thus expressly conferred by its accepted charter, governed and limited corporate action in that particular. People v. Hurlbut, 24 Mich. 44 (9 Am. Rep. 103).

Neither can we recognize force in the contention that the power to remove local officers rests exclusively in the governor of the State, and the provision of the charter in question, if otherwise of any validity, is repealed by Act No. 149, Pub. Acts 1915, providing in part:

“Sec. 6. The governor may remove all county officers chosen by the electors of any county or appointed by him; and shall also remove all justices of the peace and township officers chosen by the electors of any township; or city or village officers chosen by the electors, of any city or village, or any ward or voting district thereof, when he shall be satisfied from sufficient evidence submitted to him as hereinafter provided, that such officer is incompetent to execute properly the duties of his office, or has been guilty of official misconduct, or of wilful neglect of duty, or of extortion,” etc.

This is but an amendment of Act No. 190, Pub. Acts 1879 (1 Comp. Laws, § 1159, 1 Comp. Laws 1915, § 245), and so far as applicable here is in the exact language of the former act, which it reaffirms; the minor particulars in which section 6 is amended being altogether foreign to the question raised here.

The provisions of section 7, art. 9, of the new Constitution, and section 8, art. 12, of the old, confer upon the governor the same general powers to examine into the acts of any public officer, elective or appointive, and remove him for stated causes. Said Act No. 190 of 1879 (amended in 1915) is but affirmative legislation in harmony with those constitutional provisions defining procedure for exercising the constitutional authority. Even where repeal by implication is infer-able, the old law is repealed only pro tanto — to the extent of the repugnancy. There is nothing in the Constitution or legislation making this power exclusive or forbidding the legislature from also conferring the power to remove its own officers upon municipalities. When this is done, concurrent power exists and resort may be had to either. In view of the so-called “home rule” provision for cities found in the new Constitution and the trend of legislation in that direction, it is difficult to find in the new Constitution, or legislation under it, any indication of a purpose to restrict or repeal any municipal rights or privileges existing under the former Constitution and previously existing city charters, and we can discover no inferences of that import here.

It is stated broadly in 29 Cyc. p. 1410, that:

“Where removal may be made for cause only, the cause must have accrued during the present term of the officer. Misconduct prior to the present term even during a preceding term will not justify a removal.”

This statement in its entirety appears to find support in some authorities cited. Thurston v. Clarke, 107 Cal. 285 (40 Pac. 435); State v. Jersey City, 25 N. J. Law, 536; Conant v. Grogan, 6 N. Y. St. Rep. 322. While other well-considered cases, recognizing the general rule, make an exception where the accused officer, continuing in office by re-election, was charged with official misconduct in the same office during a preceding term. State v. Bourgeois, 45 La. Ann. 1350 14 South. 28); Brackenridge v. State, 27 Tex. App. 513 (11 S. W. 630, 4 L. R. A. 360); State v. Welsh, 109 Iowa, 19 (79 N. W. 369). Counsel for petitioner also cite and quote as follows from Gill v. Watertown, 9 Wis. 254:

“There are a number of charges, but the return admits that all except the last, relates to acts or omissions of the relator during a prior term of office. Now, without examining those charges, to determine whether they would show good cause of removal, if occurring during the term, when the removal was sought, which we think very doubtful, yet we think it a sufficient answer to them, that they did not relate to anything occurring during that term.”

Stopping here this seems quite conclusive, but in the next sentence the court said:

“We do not say that in no case could acts done during a prior term justify a removal. Thus, if, after a treasurer was elected, it should be discovered that during his prior term he had committed a defalcation, and been guilty of gross frauds in the management of his office, it might perhaps be just grounds for removal.”

The case of Speed v. Common Council of Detroit, supra, which states the general doctrine that “the misconduct for which an officer may be removed must be found in his acts and conduct in the office from which his removal is sought,” is not directly in point, because Speed had not previous to his then term been an incumbent of the office from which it was sought to remove him. We are not prepared to find in this case, nor to hold as a general rule, that the misconduct of an officer, who is his own successor, committed during the preceding term, may not be inquired into and furnish ground for his removal.

Under title 3 of the Grand Rapids Charter (Act No. 593, Local Acts 1905), entitled “Powers and Duties of the Common Council,” power is given to legislate for various purposes, amongst which is:

“Sec. 11. To provide for and regulate the election and appointment of all officers and for thew removal from office, and the filling of vacancies.”

It is urged this was a mandatory prerequisite to exercising the power, and, because the council had not passed a guiding ordinance or otherwise provided by legislation any regulations or course of procedure for removal from office, this hearing was a nullity. Having been given in general terms, under title 2 of the charter, a limited power of removal for cause, the language used in title 3 seems to suggest a legislative intent that before exercising such power the council would prescribe rules, or regulate by some preadopted method the manner in ' hich it would be administered. Considerations of fairness, certainty, and convenience suggest the wisdom of such a course before assuming to exercise the power. The language of the charter appears to be in its nature permissive and directory rather than imperative.

It was said in State v. Walbridge, 119 Mo. 383 (24 S. W. 457, 41 Am. St. Rep. 663):

“It is true that neither charter nor ordinance make any provision for the means whereby the amotion of an appointive officer is to be effected; but, where a grant of power is given, all the means necessary to effectuate the power pass as incidents of the grant.”

While this omission may be an element entering into consideration of what was done, we cannot say that it ipso facto nullified the action of the council because in direct violation of a mandatory provision. . Limited authority to remove for cause being conferred upon the council, the mandatory requirements are that the steps taken in that behalf be recorded in its proceedings, a copy of the charges be served with 10 days’, notice of time and place of hearing, opportunity to the accused to make a defense to such charges, and a two-thirds affirmative vote of all aldermen elect.

After written charges are preferred and notice given to the accused officer, the council, in session as such, at the legally noticed time and place of hearing, with the necessary quorum in attendance, complies with all statutory requirements in that particular, and may enter upon the hearing, the proceedings of which are to be entered in its records, without any reorganization or special formalities to resolve itself into a court. The members of the council are not judicial officers and when acting as a removing board that body is not a court in any strict sense nor bound by all the rules and technicalities recognized and enforced in regularly constituted courts; but when proceeding to hear and determine, in the exercise of the limited power to remove for cause an elective officer, the hearing is judicial in its nature, the body necessarily acts in a quasi judicial capacity, and the procedure must be of a quasi judicial character. Fuller v. Attorney General, 98 Mich. 96 (57 N. W. 33); Speed v. Common Council of Detroit, supra.

In this case the council was sitting in judgment upon the right of a public officer who was in no manner beholden to it for his office, which he held from the same source and by the same right as the members of the council did theirs. In the essentials of cause and effect the aim and object of the hearing were not only to depose an unworthy officer for official delinquencies, but to degrade and punish him. With such issues involved, while not bound by the technical rules of a regular court and within certain limits a law unto itself, the council was bound to strict observance of all statutory requirements and the fundamentals of a fair and impartial trial of the accused. The fact that the charges were prepared by a committee of the council appointed for that purpose, as the result of an investigation made by or under direction of that body, did not in itself disqualify the members from participating in the hearing and determination of the matter, even though impressed that, unexplained, there was reasonable ground for such charges. It was, however, essential that those participating be qualified to act fairly and impartially, without prejudice, personal interest, or ill feeling toward the accused, in a frame of mind ready and willing to hear, weigh, and judicially pass upon the evidence produced, and in the end determine the case upon its merits as disclosed upon the hearing. Although the matter of these charges had then apparently been before the council and under discussion for some time, notice that they would be heard on September 20th having been served on petitioner, the hearing, or trial, was begun on the evening of October 4th pursuant to a motion that they “proceed to the trial,” carried by the mayor’s vote which broke a tie of 11 for and 11 against the motion, after which the city attorney proceeded with introduction of evidence to support the charges. This motion to take up the hearing appears to have been argued, or discussed, by certain members of the council at considerable length, and during the discussion a member in urging the- motion said of certain charges:

“There is no question about the facts in that ease; they have been before us. Mr. Hawkins admits he issued deed after deed without any special authorization of the council, unless it is covered by the resolution in the year 1902. * * * I am just as well prepared at the present time to vote on any one of those three charges, as to whether in my belief and judgment there is sufficient to remove Mr. Hawkins from office, as I will be next December. * * * I think we better dispose of those that we have before us that we have been threshing over for five or six months. If they are established, it may be that a majority of the council will think that it is enough to remove him. If they do, that is all there is to it. He is just as much hung as if h¿ was hung a dozen times."

Another member expressed the view that the preceding man was not entirely conversant with all the details of the proposition, and said:

“It may be very desirable indeed, before we are through, to amend or formulate other charges, and that Mr. Hawkins be tried on other charges than the ones now before this council. I believe it is a good thing not to attempt to force some one to call your hand when you have only three deuces and you are trying to bluff that you have got four aces.”

Still another member announced:

“Í want to say, the defense seems to think we are a court, now that we are going; he says we are. I want bim to understand we are not only a court, as I understand it, but we are the jury, and a public jury, where everybody can hear the jury’s deliberations. In connection with giving the attorney for the other side an opportunity to know what we have got, some of the aldermen seem willing to let him know by asking certain questions which the city attorney has answered,” etc.

These three members voted for removal.

It is said in the brief of counsel for respondent that some of the foregoing remarks were made late in the progress of the hearing; but the record by which we must be governed shows them to have occurred as stated, on October 4th before the first witness was called. Later, another member, who voted for removal, said, in opposition to a movement for delay:

“It seems to me every night we meet we are delayed about an hour listening to different aldermen’s opinions in regard to this case. * * * I think we have enough charges now without waiting for the auditor to bring forth any more and try to hang him half a dozen times. I move we go ahead with this trial.”

Whatever the merits of petitioner’s request for more time in which to present his defense, these matters, taken in connection with insistence on closing and deciding the case, at an unusual hour, without an intermission, in the early morning after continuation of the hearing during the entire night, are not in harmony with what is commonly recognized as proper, fair, and impartial administration of justice in an inquiry judicial in its nature. No special circumstances are shown calling for hasty action at such an untimely hour, in this investigation directed to the serious question of deposing and degrading an elective officer who, what-’ ever his previous delinquencies, had been during his then incumbency which began the preceding spring, so far as charged or shown, as free from official misconduct as any member of the council.

Another serious, and statutory, infirmity in this proceeding, is the fact that but 15 out of 24 members of the council had attended all its sessions devoted to the hearing and heard all the testimony. A two-thirds affirmative vote of the members elect was required to remove petitioner. Of those voting, that many did not hear all the evidence or take part in all the proceedings. It was sought to cure this by having the stenographer read to those who voted all the testimony he had taken. He had no official connection with the case, was not sworn or appointed under any ordinance, or even pursuant to any resolution of the council, so far as shown, and the charter makes no provision authorizing this substitute for attendance. We think the charter contemplates and requires that, when exercising its limited power to remove for cause a public officer by such quasi judicial proceeding, there must be an affirmative vote amounting to two-thirds of the members elect, cast by members who participated in all the proceedings and heard all the evidence given by the witnesses who appeared and testified.

For the foregoing reasons, the action of respondent council in deposing petitioner and declaring his office vacant after November 4, 1915, must be, and the same hereby is, reversed, set aside, and held for naught.

Stone, C. J., and Kuhn, Moore, Brooke, and Person, JJ., concurred with Steere, J.

Ostrander, J.

I concur in the result upon the ground that petitioner was denied a reasonable opportunity to put in his defense.

Bird, J., did not sit.


author: Brooke, J.

text:
    BURMAN v. EWALD.
    X. Mechanic’s Liens — Estate by Entirety — Husband and Wife —Written Agreement.
    Complainants agreed to construct a building on real estate owned jointly by defendant husband and his wife. The husband informed complainants that all business was turned over to his wife, that he did not bother about building and he left business matters to the wife, who would settle with them. The wife executed the contract and signed for her husband, who was absent. A decree awarding to complainant contractor a lien on the premises is reversed, under 3 Comp. Laws X915, § 14797, on the ground that, construing the statute strictly, the contract must be signed by both parties.
    2. Same — Construction.
    The statute providing for a mechanic’s lien is to be strictly construed to the point where the lien attaches — after that time it may be given a liberal construction.
    Appeal from Wayne; Gilday, J., presiding.
    Submitted April 4, 1916.
    (Docket No. 15.)
    Decided July 21, 1916.
    Bill by Joseph J. Burman and another, copartners as Burman Brothers, against Frank Ewald, Mathilda Ewald and the Detroit Savings Bank to enforce a mechanic’s lien. From a decree for complainants, defendants Ewald appeal.
    Reversed, and bill dismissed.

      Robert M. Drysdale, for complainants.

      Covert & Campbell, for defendants Ewald.
   Brooke, J.

The bill in this case was filed for the purpose of foreclosing a mechanic’s lien. On April 19, 1913, complainants entered into a contract with the defendants Frank and Mathilda Ewald, for the erection of a building to cost $4,450. It was the claim of Peter Burman, one of the complainants, that he submitted plans and specifications to the defendants which were finally made' satisfactory. He testified that he had no dealing with the defendant Frank Ewald, as said Ewald had told him that:

“All business is left to Mrs. Ewald. I don’t bother myself about the building at all. Whatever business matters you got, I leave that to her; she will settle with you.”

Burman further testified that he prepared a written contract and delivered the same to Mrs. Ewald- in the presence of her daughter; that he returned three or four days later, and Mrs. Ewald said the contract was all right, and that they were willing to sign the same. The contract was thereupon executed by Mrs. Ewald. When complainant Burman demanded the signature of defendant Frank Ewald to the contract, he was told by Mrs. Ewald that her husband was sleeping, and that she would sign it for him, which she did. Complainants thereafter erected the building, and received upon the contract price the sum of $8,865. The circuit court established complainants’ lien in the sum of $731.24, and ordered the property sold to satisfy the same. The decree further provided that complainants should make certain specified repairs to the building within 30 days from the date of the decree. From this decree, defendants Frank Ewald and Mathilda Ewald appeal. It is their claim that no lien attached in this case, for the reason that the contract was not signed by both of them.

It appears that the title to the lot upon which the building was erected rested in defendants Frank and Mathilda Ewald as tenants by the entirety. It was the contention of the complainants, and with this contention the learned circuit judge agreed, that defendant Frank Ewald, by his conduct after the contract was made, had, in effect, adopted it as his own, and was therefore bound by it. It is not claimed by complainants that defendant Frank Ewald ever in fact executed the contract, but they were able to show that he knew of its execution within 7 or 8 days thereafter, and that later he joined with his wife in a mortgage upon the property for the purpose of raising money to pay for the building to be erected. It was further shown that he told the contractors that his wife was looking after the business, and that they should deal with her. These facts were held by the learned circuit judge to be sufficient to bind Frank Ewald the same as if he had in fact signed the contract. The applicable statute (section 10711, 3 Comp. Laws, as amended by Act No. 143, Pub. Acts 1897) (section 14797, 3 Comp. Laws 1915) provides:

“In case the title to such lands upon which improvements are made is held by husband and wife jointly, * * * the lien given by this act shall attach to such lands and improvements if the improvements be made in pursuance of a contract in writing signed by both the husband and wife.”

This court has many times held that the statute providing for a mechanic’s lien, being in derogation of the common law, must be strictly construed to the point when the lien attaches; that thereafter, because of its remedial character, a liberal construction may be indulged. Lacy v. Heat Co., 157 Mich. 544 (122 N. W. 112, 133 Am. St. Rep. 360); Frohlich v. Klein, 160 Mich. 142 (125 N. W. 14); Godfrey Lumber Co. v. Kline, 167 Mich. 629 (133 N. W. 528).

It is apparent that the statutory requirement for the signatures of both husband and wife to the contract, where the property is held by the entirety, must be satisfied before the lien can attach, and that up to this point a strict compliance with the statute is required under all the authorities. McMillan v. Schneider, 147 Mich. 258 (110 N. W. 961); Bauer v. Long, 147 Mich. 351 (110 N. W. 1059, 118 Am. St. Rep. 552, 11 Am. & Eng. Ann. Cas. 86); Frohlich v. Blackstock, 155 Mich. 604 (119 N. W. 906); Restrick Lumber Co. v. Wyrembolski, 164 Mich. 71 (128 N. W. 1083); Sheldon, Kamm & Co. v. Bremer, 166 Mich. 578 (132 N. W. 117).

The decree of the circuit court below establishing the lien will be reversed, and a decree entered in this court, dismissing complainants’ bill of complaint, with costs of both courts.

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


author: Kuhn, J.

text:
    BEACH v. CITY OF ST. JOSEPH.
    1. Municipal Corporations — Negligence—Bridges—Maintenance op Drawbridge.
    In an action for negligence in failing to properly guard a drawbridge so that an automobile in which decedent was riding ran off the open draw, the question whether the driver was or was not guilty of contributory negligence for driving through the open gate at the entrance to the-bridge, which was out of order at the time so that it did not close when the draw opened, was properly left to the jury as a question of fact under the evidence.
    2. Death — Survival Act — Drowning.
    Where there is evidence of survival after an injury, however short, some courts hold that damages may be recoverable under the survival act. Where the injury is continuing and results in death within a few moments, it is instantaneous within the meaning of the statute. If the death is instantaneous plaintiff is limited to his right under the death act. Death by drowning is held to be an instantaneous death.

    3. Municipal Corporations — Bridge — City — Negligent Maintenance.
    Operation of a drawbridge by a city is not such a governmental function as would exempt it from liability, as the duty to maintain the same in a safe condition is fixed by sections 5516, 5517, 2 Comp. Laws, 1 Comp. Laws 1915, §§ 4432, 4433, and liability is imposed by the statute for negligent failure to keep the bridge in reasonably safe repair: 1 Comp. Laws, § 3341; 1 Comp. Laws 1915, § 4287.
    4. Same — Damages—Parent and Child — Failure to Support.
    Where the father of the deceased, who lived apart from his" family,' had not contributed anything to the support of the wife for more than seven years, and the deceased was engaged in teaching school on a salary, plaintiff administratrix was entitled to recover as damages the pecuniary loss actually sustained by the mother until decedent should reach the age of 21 years, after making a proper allowance for* the expenses of her care and support. 3 Comp. Laws 1915, § 14578.
    5. Same — Directed Verdict — Bridges—Defects.
    Where plaintiff claimed that the failure to maintain the bridge gates in working order was the proximate cause of decedent’s killing, the defense was entitled to show that on the day after the accident a defect was discovered in the mechanism of the gate, which prevented it from lowering when the operator opened the draw, and that neither defendant nor its agents knew of the defect before the occurrence or had notice of it, also, that it had been recently inspected, and it was error to exclude this line of proof.

      Rrror to Berrien; Bridgman, J.
    Submitted April 5, 1916.
    (Docket No. 18.)
    Decided July 21, 1916.
    Case by Delia L. Beach, administratrix of the estate of Lucy Mae Beach, deceased, against the city of St. Joseph for the alleged negligent killing of plaintiff’s intestate. Judgment for plaintiff. Both parties bring error.
    Reversed.
    Rehearing denied September 27, 1916.

      Gore & Harvey (I. W. Biford, of counsel), for plaintiff.

      Fremont Evans (O. W. Coolidge and Stratton & Evans, of counsel), for .defendant.

      Authorities on the question of nature of right of action in favor of injured person, which will satisfy the death statute in the event of his death, are collected in a note in 51 L. R. A. (N. S.) 710. And on the question of instantaneous death as test of right of action or amount of recovery, see comprehensive note in L. R. A. 1916C, 973.

      As to measure of damages in action by parent for death of child, see note in 17 L. R. A. 77. As to duty of one approaching drawbridge to stop, look, and listen, see note in 14 L. R. A. (N. S.) 452.

   Kuhn, J.

The plaintiff seeks to recover damages for the death of her daughter, Lucy Mae Beach, who was a passenger in an automobile which was driven into the open draw of a bridge over the St. Joseph river in the defendant city, as a result of which she was drowned. It is conceded that the gate was not lowered, as required by sections 5516-5521, 2 Comp. Laws (1 Comp. Laws 1915, §§ 4432-4437), and the action is based on the alleged negligence of the bridge tender, employed by the city, in failing to lower the gate when the draw was opened. Recovery is sought under section 3441, 1 Comp. Laws (1 Comp. Laws 1915, § 4287), and subsequent sections, known as the highway damage act. The situation was as follows: The bridge is maintained and operated by the defendant. It swings open on a center pier, under the control of a bridge tender in a tower in the center of the bridge. There were gates on the approach at each end of the bridge, which were lowered and raised by the turning of an electric button in the tower. There was a red light in the center of the highway line, below the level of the bridge floor,, clearly visible when the bridge was open. On the top of the draw there were three red and green bull’s-eye lanterns, one at each end and one in the center, which showed red when the draw was open, were 8 inches wide, and were visible for some distance. On each approach were four 16-candle power lights, two on each side of the highway on iron poles. An 80-candle power light was burning in the street 160 feet north of the open draw. On the north approach, where the accident occurred, 51 feet from the draw, on the right-hand side of the street, next the sidewalk, was a glass sign 3 feet high, with the word “STOP” spelled out vertically in letters 7y¡¡ by 5 inches. The word was illuminated by three 16-candle power lights behind the glass, which were lighted automatically by the turning of the draw. This sign had been there for years, and was working that night, and could be read 300 feet distant. On each side of the approach, at the edge of the abutment, just above the level of the sidewalk, a 16-candle power red light was burning, visible 600 feet away. Street lights and wharf lights were burning on the opposite side .of the river. One witness said:

“On that north approach it was about as light as electric lights could make it. A man could read a newspaper all right.”

The draw was open to permit the. Steamer City of Chicago to pass through, and immediately before the opening of the draw the boat blew three loud blasts to signal for the opening, and one more to let go her line. An alarm bell, 14 inches wide, placed on the top of the bridge, was rung by the bridge tender when the boat whistled. The plaintiff’s counsel admits that:

“The usual lights on the street and the usual signal lights to guide navigators were burning on the bridge.”

It was 11 o’clock at night. The deceased was a guest in the automobile of Lawrence Blakeman. They had been on the beach of Lake Michigan, about a mile distant from the bridge. Only one of the head lamps on the automobile was burning, and it was being driven between. 8 and 15 miles an hour. There is evidence that it could have been stopped in 35 feet. But the plaintiff contends that Blakeman and the deceased, in reliance upon the upright position of the gate, assumed that the draw was closed, and discovered that it was not, too late to save themselves. They drove headlong into the river, and the automobile was found with the emergency brake set. It also appeared that Blakeman had crossed the bridge on previous occasions, and the night before had stopped his car when approaching the bridge because of the draw being open. Several witnesses heard cries after the accident, which indicated that the deceased struggled in the water for a short time, which one witness estimated to be not more than three or four minutes. In view of this testimony, the plaintiff counted on the survival act (section 10117, 3 Comp. Laws, 3 Comp. Laws 1915, § 12383) and the death act (section 10427, 3 Comp. Laws (3 Comp. Laws 1915, § 14577), claiming $10,000 damages. The defendant’s demurrer to the entire declaration was overruled, and the trial judge ruled that no recovery could be had under the survival act. The trial proceeded under an amended count based upon the death act, and the plaintiff recovered a verdict and judgment for $400, from which both parties appeal.

Many errors are assigned, and the principal questions involved are:

(1) Whether a verdict should have been directed for the defendant on the ground of contributory negligence of the deceased.

(2) Whether the evidence required a determination by the jury of plaintiff’s right to recover under the survival act, and whether the court erred in permitting the plaintiff to amend the second count of her declaration by striking out words alleging a survival.

(3) Whether the defendant, in maintaining and operating the bridge, was. performing a governmental function, and was therefore not liable for injuries caused by its negligent operation.

(4) Whether the plaintiff showed proper damages under the death act.

•(5) Whether prejudicial error was committed in rulings on the admission and rejection of evidence, and the granting and denial of requests for instructions to the jury.

1. We are unable to say that the plaintiff’s decedent should be held to be guilty of contributory negligence as a matter of law. Before such a conclusion can be arrived at, all reasonable minds must reach the same decision, that under the undisputed testimony there was such contributory negligence as would bar recovery. See Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 99; Teipel v. Hilsendegen, 44 Mich. 461 (7 N. W. 82); Marcott v. Railroad Co., 47 Mich. 1 (10 N. W. 53); Staal v. Railroad Co., 57 Mich. 239 (23 N. W. 795); Klanowski v. Railway Co., 57 Mich. 525 (24 N. W. 801); Sadowski v. Car Co., 84 Mich. 100 (47 N. W. 598); Ashman v. Railroad Co., 90 Mich. 567 (51 N. W. 645); Becker v. Railway Co., 121 Mich. 580 (80 N. W. 581); Scharman v. Bridge Commission, 158 Mich. 78, 83 (122 N. W. 1098, 123 N. W. 1106); Haines v. Railway Co., 129 Mich. 475 (89 N. W. 349); Welch v. Railroad Co., 147 Mich. 207 (110 N. W. 1069); Amanta v. Railroad Co., 177 Mich. 280, 285 (143 N. W. 76); Weitzel v. Railway, 186 Mich. 7 (152 N. W. 931).

It appears that Mr. Blakeman had passed over the bridge a number of times, and presumably knew that the drawbridge was provided with gates which were lowered when the draw was opened. The gates that were provided were in compliance with the legal requirements. It could be well contended that the gate, which the record discloses was easily seen, being open,' was clearly an invitation to one approaching to cross, an assurance that the way was safe. It is true that other safeguards had been provided in the way of lights and stop signals. But considering all the circumstances surrounding the case, we are of the opinion that whether or not Blakeman acted as a reasonably prudent man should act was, under the circumstances, a question of fact for the jury to determine, rather than one to be determined as a matter of law.

2. The question whether or not the plaintiff should have a right to recover under the survival act is an interesting one, which has received considerable attention from the courts. There are apparently two lines of decision, one holding that where there is evidence of a survival, however short, damages might be had under the survival act. This doctrine is followed .by the Iowa and Massachusetts courts. On the other hand, we have the doctrine, followed by the Federal courts, that death by drowning is instantaneous death. See Cheatham v. Red River Line, 56 Fed. 248; The Corsair, 145 U. S. 335 (12 Sup. Ct. 949). Michigan seems to have followed the rule of the Federal decisions. In the case of Olivier v. Railway Co., 134 Mich. 367 (96 N. W. 434, 104 Am. St. Rep. 607, 3 Am. & Eng. Ann. Cas. 58), Chief Justice Hooker,'discussing this question, said the following:

“We see no reason for splitting hairs as to what is meant by instantaneous death, though we can appreciate the difference between a continuing injury resulting in drowning, or death by hanging, throwing from a housetop, etc., and one where -a person survives the wrongful act in an injured condition.”

In West v. Railway, 159 Mich. 269 (123 N. W. 1101), the doctrine announced by this court in Olivier v. Railway Co., supra, was approved, and it was said that:

“Where there is a continuing injury resulting in death within a few moments, it is ‘instantaneous’ within the meaning of the statute.”

In that case the plaintiff’s decedent continued to live for about 15 minutes after he was struck by a street car, crossing a street in the city of Detroit. Applying the principle and logic of this decision to the situation before us, we are of the opinion that the trial judge was correct in ruling that no recovery under the facts in this case could be had under the survival act.

The objection to the amendment of the count under the death act is purely technical, as it could have done the defendant no harm, and merely served to correct an inconsistency in the declaration.

3. The statutes which the plaintiff contends fix the liability of the city are as follows:

“The people of the State of Michigan enact, That the corporation, firm, or individual, owning or operating any bridge within this State, free or toll, used for public travel, in which there shall be a draw or swing span for the passage of water craft, shall cause to be placed upon the approaches to such bridge, at either end thereof, not farther than ten feet from the landward ends of such draw or swing span, a gate or gates of not less than four and one-half feet in height, and of such design, shape and strength, as to effectually bar the progress of teams, animals, and foot passengers [passers], and prevent them from passing upon such draw or swing span when such gates are closed.
“Such gate or gates shall be at all times closed before such draw or swing span is opened for the passage of water craft, or any other purpose, and shall be kept closed until such draw or swing is closed, and such bridge ready for public travel.” 2 Comp. Laws, §§ 5516, 5517 (1 Comp. Laws 1915, §§ 4432, 4433).
“The people of the State of Michigan enact, That any person or persons sustaining bodily injury upon any of the public highways or streets in this State, by reason of neglect to keep such public highways or streets, and all bridges, sidewalks, crosswalks and culverts on the same in reasonable repair, and in condition reasonably safe and fit for travel by the township, village, city or corporation whose corporate authority extends over such public highway, street, bridge, sidewalk, crosswalk, or culvert, and whose duty it is to keep the same in reasonable repair, such township, village, city or corporation shall be liable to and shall pay to the person or persons so injured or disabled just damages, to be recovered in an action of trespass on the case before any court of competent jurisdiction.” Section 3441, 1 Comp. Laws (1 Comp. Laws 1915, § 4287).

It is the contention of the defendant’s counsel that the operation of the drawbridge is a governmental function, and the case of Corning v. City of Saginaw, 116 Mich. 74 (74 N. W. 307, 40 L. R. A. 526), is relied upon to sustain this contention. But an examination of that case discloses that no statute fixing liability was involved; that the court expressly said the highway statute had no application. The cases of McKellar v. City of Detroit, 57 Mich. 158 (23 N. W. 621, 58 Am. Rep. 357), and McArthur v. City of Saginaw, 58 Mich. 357 (25 N. W. 313, 55 Am. Rep. 687), relied upon by the defendant’s counsel in support of this theory, were decided before the enactment of the statute upon which the plaintiff’relies. These cases merely state the rule, which prevailed under the common law in a number of States, that, in the absence of express statute, there was no implied liability upon municipalities for an injury resulting from negligence in the performance of a governmental function. We have been unable to find any Michigan decisions which hold that the municipalities are not liable in a civil action for neglect to operate the gates of a drawbridge as required by statute, when such a neglect results in injury. The right to recover under such circumstances has been recognized in the case of Scharman v. Bridge Com mission, supra, and Benedict v. City of Port Huron, 124 Mich. 600 (83 N. W. 614).

4. It appears from the evidence that the husband of the plaintiff and father of Lucy Mae Beach lived apart from them, in the West, and had not contributed anything to the support of the plaintiff for over 7 years. The action here, however, is by the administratrix of the intestate’s estate, and the recovery is had under the statute (section 13703, 5 How. Stat. [2d Ed.], 3 Comp. Laws 1915, § 14578) for the benefit of the parents, for the pecuniary loss sustained by them. The measure of such damages, if any, is limited to the prospective earnings of the child until she should arrive at the age of 21 years, taken in connection with the prospect of life, less the expense of her care and support. See Hurst v. Railway, 84 Mich. 539, at page 545 (48 N. W. 44); Lincoln v. Railway Co., 179 Mich. 189 (146 N. W. 405, 51 L. R. A. [N. S.] 710). We think there was sufficient evidence in the record to warrant the submission of this element of damages to the jury. The plaintiff testified that her daughter was to earn $52.50 a month for the next eight months, teaching school. The record is somewhat unsatisfactory as to evidence upon which the jury was able to base an estimate as to the cost to -the mother of her daughter’s care and support, so as to arrive at the exact amount that the plaintiff was entitled to. And while this may not have been sufficient to reverse the case, attention is called to it in view of the fact that the case will have to be sent back for a new trial because of other errors hereafter discussed.

5. The statute (the highway damage act) upon which this action is predicated limits the liability for injury on its highways or bridges to the provisions of the act, ana proydes that:

“In all actions brought under this act it must be shown that such * * * city has had reasonable time and opportunity, after knowledge by or notice to such * * ■ * city that such highways, streets, bridges * * * have become unsafe, or unfit for travel, to put the same in the proper condition for use, and has not used reasonable diligence therein after such knowledge or notice.” 1 Comp. Laws § 3442 (1 Comp. Laws 1915, § 4288).

It was the contention of the defendant’s counsel that the accident was due to a defective mechanism, which defect had not been discovered at the time of the accident. For the purpose of showing the existence of this defect, and lack of knowledge and use of diligence by the city, he made an offer to show that the morning after the accident a defect was discovered in the mechanism of the gate which prevented its lowering when the button was turned the first time the defendant attempted to lower it after the accident; that neither the defendant nor its agents knew of any such defect before the injury, nor had any notice; and that one of the defendant’s officers, when the gate refused to work on the first subsequent trial, ordered the draw closed, and fixed the defect in the mechanism of the contact box, and on the next opening of the draw the gate worked. The claim of the plaintiff is grounded solely on negligent operation by the bridge tender. We are of the opinion that the defendant had a right to have its theory of the accident, viz., a defective mechanism of which the city had no notice, submitted to the jury, and that it was prejudicial error to exclude the testimony offered, above referred to. The defendant proved that the bridge and gates were inspected only several hours before the accident, and that they worked at 8:30 o’clock, about three hours earlier. The evidence offered and rejected, in our opinion, tended strongly to show that the accident was not due to a negligent failure of the bridge tender to turn the button for the lowering of the gate, but was due to a sudden defect in the mechanism of which the city did not have notice, even after an inspection which took place that day; constructive notice and knowledge being both negatived by the fact that the gate worked at 8:30 the same evening. As to the question of notice, see Randall v. Township of Southfield, 116 Mich. 501, 504 (74 N. W. 716); McEvoy v. City of Sault Ste. Marie, 136 Mich. 172, 175 (98 N. W. 1006); Walls v. City of Detroit, 171 Mich. 612 (137 N. W. 532).

We have examined the other assignments of error, and, finding them without merit, do not deem any discussion of them necessary. For the reason above stated, the judgment must be reversed, and a new trial granted, with costs to defendant.

Stone, C. J., and Bird, Moore, Steere, and Person, JJ., concurred with Kuhn, J. Ostrander and Brooke, JJ., concurred in the result.


text:
    MONROE LUMBER CO. v. BEZEAU.
    1. Evidence — Opinion.
    In an action by a lumber company against an owner for materials furnished to tbe contractor in building a bouse, it was incompetent to permit a witness to express bis opinion or conclusion relative to tbe meaning wbicb another intended to convey by certain language that was put in tbe proofs. Held, however, that no prejudice was made to appear.'
    2. Same — Appeal and Eeeok — Lien—Statement.
    It' was not harmful error to permit tbe plaintiff to introduce evidence in relation to tbe preparation of a statement of lien not filed or served on the defendant.

      3. Same — Impeachment—Hearsay.
    Testimony tending to impeach the defendant by a witness who heard a conversation the time and place of which he definitely fixed was not reversible as against defendant’s objection that the time, place and person were not sufficiently fixed to lay a proper foundation.
    4. Contracts — Frauds, Statute of — Promise to Answer for the Debt of Another — Consideration.
    It was a sufficient consideration for a contract not to file a lien for building materials, that the owner agreed to answer for the debt of the contractor.
    Error to Monroe; Gilday, J.
    Submitted April 12, 1916.
    (Docket No. 109.)
    Decided July 21, 1916.
    Assumpsit by the Monroe Lumber Company against Emma M. Bezeau for goods sold and delivered. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Golden & Haas, for appellant.

      Jesse H. Root and Thornton Dixon, for appellee.
   Kuhn, J.

The plaintiff company is engaged in the lumber business in the city of Monroe. Suit was brought against the defendant to recover for certain lumber furnished by it to her. It appears that in May, 1913, the plaintiff entered into a contract with one John Roberts, whereby it agreed to furnish to said Roberts such materials as he would need in remodeling a dwelling house belonging to the defendant, with whom he had previously made a contract by which he undertook to remodel the house for the defendant. Before the job was completed, and after having received about three-fourths of his contract price, he absconded on or about the 15th day of July, 1913.

It was- the claim of the plaintiff on the trial of the case that shortly after the contractor absconded, in the latter part of July, the defendant came to the office of the plaintiff, and while there discussed the matters of the absconding contractor’s indebtedness to the plaintiff and the plaintiff’s furnishing the necessary-additional material upon credit to complete the building; that during this conversation Mr. Walter P. Sterling, who is the treasurer and general manager and a director of the plaintiff company, informed the defendant that they were going to hold her responsible for the absconding contractor’s indebtedness, and that they were going to hold her property; that the defendant thereupon promised that if they would refrain from taking any steps to hold her property, and would furnish her the necessary additional materials to Complete the building, she would pay the Roberts indebtedness, together with such indebtedness as she might incur in the completion of the building; that the officers of the plaintiff company agreed to this, and proceeded to furnish the necessary additional material to complete the building. On the other hand, it was the claim of the defendant that, shortly after the contract- or absconded, some one purporting to represent the plaintiff company called her by telephone and requested that she come to their office; and when she arrived at the office of the company one of its officers, Edward W. Gaynier, sent for the general manager, Mr. Walter P. Sterling, and upon his arrival they discussed the contractor’s conduct and the matter of furnishing the material for the completion of the building; that she agreed to take the balance of the material needed to complete the building from the plaintiff; but that neither Mr. Gaynier nor Mr. Sterling said anything about a lien on her property or about holding her or her property for the Roberts bill; that she never agreed to pay said bill, and did not know that the company intended to hold her for it until suit was commenced against her; that shortly after the building was completed the plaintiff filed a lien against her premises, claiming $1,056.05 as due on their claim, whereupon the defendant offered to pay the plaintiff the amount of her indebtedness, and tendered the sum of $625, which sum was paid into court to carry out the tender.

The issue thus made by the conflicting claims of the parties was submitted to the jury, who rendered a verdict for the plaintiff for the full amount of its claim, and judgment was entered thereon. The case is here by writ of error. The assignments of error relate to the charge of the court and the admission of testimony.

While the witness Gaynier was on the stand, he was asked a question and allowed to answer as follows:

“Q. Well, do you know what he meant by protecting himself?
“Mr. Golden: I object to that as incompetent, irrelevant, and immaterial, what Mr. Gaynier concluded that Mr. Sterling meant.
“The Court: I think you may answer that question.
“Mr. Golden: Exception.
“A. Yes, sir.
“Q. What was it?
“A. By a lien.”

It is urged that this testimony was clearly incompetent and inadmissible because it was the expression of a conclusion on the párt of the witness as to the intention of a third party, which intention, even if expressed in the absence of the defendant and without her knowledge, and not acted upon by her, would be incompetent, and hearsay. We are of the opinion that this was clearly incompetent for the reason assigned, but the admission of it cannot be said to have been prejudicial.

Some discussion is had concerning the fact that it appears conclusively from the testimony that the word “lien” was not used in the conversation. But it does appear, according to the claim of the plaintiff and the testimony of Mr. Sterling, that it was agreed that the company would not hold the defendant’s property. And it was very reasonable that the jury might conclude from this conversation that what was meant was that he would file a lien against the property, which was the only method under the circumstances by which the property could be held.

We cannot find any error on the part of the court in the admission of testimony, relative to the preparation of the statement of lien, which was not filed or served on the defendant.

Assignment of error No. 5 is based on the ruling of the court in permitting the impeachment of the defendant by the testimony of Mr. Boyez Dansard. Objection is made that the time, place, and person were not sufficiently and definitely stated and determined to lay the foundation for and permit the impeachment of the defendant. Mr. Dansard, on his direct examination, was not quite positive whether he had the conversation in question with the defendant or her husband, but stated later in his examination that to the best of his recollection the conversation was had with the defendant. The place was absolutely fixed, and the time was stated to be at or about the time the defendant was at the bank with reference to a loan. There is no question but that the defendant did go to the bank for a loan, and the time of the conversation was fixed by a reference to this certain occasion. This, we think, was sufficiently positive to meet the objection.

The other assignments of error relate to the charge of the court, as to the law applicable to the facts of this case. It is the contention of the appellant that the promise to forego the filing of a lien was not sufficient consideration to support a promise to answer for the debt or default of another, which without such consideration would be within the statute of frauds. But in the case at bar, according to the claims of the plaintiff, it relinquished a right, an advantage to file a lien, and that right or advantage which it gave up in consideration of the promise of the defendant inured to the benefit of the defendant, released her property from a threatened lien, extended the time of payment of the debt, and furnished additional material. We think the situation here presented is no different in principle from that presented to this court in Haak v. Kellogg, 146 Mich. 541 (109 N. W. 1068), where it was said by Mr. Justice Moore :

“The situation, then, was that plaintiff had furnished material to Mr. Beckley which was put into a house belonging to defendants for which, if he pursued the proper course, he could enforce a lien against the property. It is claimed that it was stated by one of the defendants that they wanted the job finished; that they agreed to pay for the lumber then furnished, and to be furnished, and that plaintiff was not to look to Mr. Beckley for the pay for this lumber, but to them, and that as part of this agreement one of the defendants gave him a short-time note for $200; that, relying upon the agreement, he continued to furnish lumber and materials until the building was completed. Gibbs v. Blanchard, 15 Mich. 292; Potter v. Brown, 35 Mich. 274, and the cases cited in the note. McLaughlin v. Austin, 104 Mich. 489 (62 N. W. 719), and Wenzel v. Johnston, 112 Mich. 243 (70 N. W. 549), sustain the proposition that under the testimony offered upon the part of the plaintiff the case should have been submitted to the jury.”

See, also, Mitchell v. Beck, 88 Mich. 342 (50 N. W. 305); McLaughlin v. Austin, 104 Mich. 489 (62 N. W. 719); Howell v. Harvey, 22 L. R. A. (N. S.) 1077, and note (65 W. Va. 310, 64 S. E. 249).

Finding no prejudicial error in the record, the judgment is affirmed.

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


author: Steere, J.

text:
    PLANK v. AUDITOR GENERAL.
    1. Taxation — Cancellation—Certificate of Error.
    It was unlawful and invalid for the auditor general to issue a certificate of error canceling a tax deed without the request of one having an interest in the title, and over six years after issuance of the deed, more than ten years after the default in paying the tax for which the property was sold, and after six years’ continuous possession of the land under the tax title, as a limitation of five years is placed upon the issuance of the certificate by 1 Comp. Laws 1915, § 4096; Act No. 80, Pub. Acts 1903.
    2. Same — School Site — Exemption.
    The exemption from taxation of real estate owned and occupied by educational and scientific institutions and lands owned by any county or school district and buildings used thereon for public purposes (1 Comp. Laws 1915, § 4001), did not have the effect of avoiding an entire tax on a large parcel which included a leased school site, 100 x 150 feet in dimensions, that was only a small fraction of the entire parcel, as it would be presumed that the assessment was made by deducting the value of the site from the entire valuation.
    3. Same — Mandamus—Auditor General.
    Mandamus will lie to determine whether or not the issuance of the certificate by the auditor general was lawful, no application having been made to the State by persons having interests in the land, since its issuance was a ministerial act, and, hence, subject to review by the courts.
    Mandamus by John O. Plank to compel Orámel B. Fuller, auditor general, to vacate and set aside a certificate of error.
    Submitted June 20, 1916.
    (Calendar No. 27,172.)
    Writ granted July 21, 1916.

      M. G. Paul, for relator.

      Grant Fellows, Attorney General, and Duane H. Hosier and Clare Retan, Assistants Attorney General, for respondent.
   Steere, J.

In this proceeding it is sought by mandamus to compel respondent to vacate and set aside a certificate of error, canceling a tax deed obtained by petitioner, dated May 24, 1909, covering lot 3, sec. 27, township 27 north, of range 15 west, in Benzie county, Mich.

From the petition and answer it appears, undisputed, that the tax deed in question was given upon sale for delinquent taxes regularly levied and- assessed against said land for the year 1905, no part of which was ever paid or tendered by the Standard Cement & Lime Company, then holding the original title, or by its representatives or assigns. Said tax deed was reg-. ularly recorded in the office of the register of deeds of Benzie county, and the notice required by law to bar redemption and authorize possession under it (Act No. 206, Pub. Acts 1893, as amended by Act No. 270, Pub. Acts 1909, 1 Comp. Laws 1915, § 4138) had been duly served upon the holders of the original title, as appeared by the sheriff’s return of service on file in the office of the county clerk of Benzie county. After thus perfecting his tax title and right to possession, petitioner procured and continues in possession of said lands under his title so acquired.

In June, 1915, over six years after said tax deed was issued to relator, and more than ten years after default in payment of the taxes for which the land was sold, the county treasurer of Benzie, on his own initiative so far as known to respondent, and as appears by the answer—

“certified that the taxes for the year 1905 on said lands ‘as assessed in said year included school site with schoolhouse thereon, used and occupied for public purposes under a perpetual lease,’ and that upon return of said certificate of said county treasurer respondent issued a certificate of error, canceling said tax deed previously issued by him in whole,” etc.

The only disclosed explanation of the county treasurer’s certificate and respondent’s action at that late date is the fact, as disclosed by the petition, that in 1888 a small portion of said land, consisting of a piece, or lot, 100 by 150 feet, had been leased to a school district for a term of years, under a lease granting to said district no title or interest in said lot except the right of occupancy and a license to, use the same for school purposes, which might at any time become forfeited by nonuser or misuser, and right of re-entry thereafter become complete.

That the certificate of error in question was inadvertently and illegally issued cannot be, and is not, seriously controverted. The statute under which the certificate purports to have been issued (section 3921, 1 Comp. Laws, as amended by Act No. 80, Pub. Acts 1903) (1 Comp. Laws 1915, § 4096) expressly prohibits issuing a certificate of error after a period of five years from the date of the sale of land delinquent for taxes, except for the reason that the taxes had actually been paid within the time limited by law, or the land was not subject to taxation at the time of assessing the taxes for which it was sold. Neither of those facts appeared in this case. The certificate of the county treasurer upon which respondent acted did not even bring the small portion of said lands leased for a schoolhouse site under exemptions for educational purposes. These exemptions (section 3830, 1 Comp. Laws, 1 Comp. Laws 1915, § 4001) are limited to “such real estate as shall be owned and occupied by * * * educational and scientific institutions,” etc., and “lands owned by any county * * * or school district and buildings thereon used for public purposes.” The tax for which this property was sold was by statute imposed upon the land, which admittedly did not belong to the school district. If under its occupation the district was entitled to exemption of its building or tenements actually used and occupied by it, the assessor might, and presumptively did, deduct the value of the same from the entire value of the legal description assessed, as suggested in Detroit Young Men’s Society v. Mayor, etc., of Detroit, 3 Mich. 184; but in any event the land was properly assessed to the owner, so far as appears here, and no complaint or application for a certificate of error was made by the school district or the original fee owner, according to respondent’s answer.

The county treasurer, on whose certification relative to a school site this certificate of error was issued, does not appear from the answer to have been interested in the property, nor even to have moved for a cancellation of the deed.

“The tax law does not confer upon the auditor general the right to proceed upon his own motion to withhold the conveyance of lands sold- for taxes, or upon his own motion to proceed to cancel deeds. * * * The statute clearly contemplates that somebody interested in the lands shall set the auditor general in motion in order to confer upon him the authority to act.” State Land Commissioner v. Auditor General, 131 Mich. 147 (91 N. W. 153).

It is contended, however, that, conceding the certificate of error was improvidently issued, mandamus will not lie against respondent to vacate the same, for the stated reasons that the statute confers upon him no authority to do so, “there is no unquestionable and legally defined duty imposed upon him to vacate a cers tificate of error issued by him, and therefore mandamus should be denied”; that relator has another adequate remedy, and if respondent’s action in this particular may be directly questioned in any proceeding, it is of a quasi judicial character, and can only be reviewed on certiorari.

In support of the contention that respondent acted in a quasi judicial capacity, and therefore his determination in that particular can only be reviewed by certiorari, counsel cite Vetterly v. McNeal, 129 Mich. 507 (89 N. W. 441), and Flint Land Co. v. Auditor General, 133 Mich. 542 (95 N. W. 543). In the Vetterly Case, which was an action for trespass, the court incidentally said, without deciding, that a certificate of error which figured in the case, “if a judicial act, is one of a limited tribunal.” In Northrup v. Maneka, 126 Mich. 550 (85 N. W. 1128), where the court had occasion to directly consider and decide the question, it was squarely held that the acts of the auditor general in issuing such certificates are ministerial, and not judicial. In the Flint Land Co. Case, supra, the court did review upon certiorari the action of the auditor general in issuing a certificate of error and held under the facts shown that the same “must be vacated and held for naught,” but the propriety of the particular form of procedure resorted to does not appear to have been raised by counsel or called to the attention of the court. The case is, however, precedent for the proposition that this court may review in a direct proceeding, and annul if found erroneous, the action of the auditor general in issuing a certificate of error. In Hubbard v. Auditor General, 120 Mich. 505 (79 N. W. 979), it was contended that mandamus would not lie to correct an error of respondent in refusing to issue a certificate of error to which the court found relator was entitled, and it was held:

“Mandamus is the proper remedy to compel performance and determine the validity of the reason for refusal.”

In Hoffman v. Auditor General, 136 Mich. 689 (100 N. W. 180), where relator’s rights depended upon a proper construction of the same section of the tax law involved here (section 3921, 1 Comp. Laws, 1 Comp. Laws 1915, § 4096), it was held that mandamus was a proper proceeding to determine the validity of the reasons for respondent’s action, as well as refusal to act, and a writ was granted as prayed to compel him to undo what it was found he had done in contravention of the statute.

The certificate of error, unquestionably issued inadvertently and in contravention of the statute, operates prima facie, both on the records and in a court, to nullify relator’s title and right to possession of the property he now holds. As shown by the answer, no one interested in the title to the property involved moved for the issuance of this erroneous certificate of error. On the face of these proceedings, relator is entitled to relief from this, in effect, defamation of his title, and his only recourse is against respondent. We see no reason under the circumstances disclosed here why relief cannot be given to correct such erroneous ministerial act by this direct and comparatively simple remedy. The action complained of must be vacated and held for naught.

A writ of mandamus may issue, directing respondent to make,, certify, and enter upon his records in proper form an order vacating, setting aside, and annulling said certificate of error. As this proceeding involves the action of a public officer and a question of public interest, no costs will be awarded.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Brooke, and Person, JJ., concurred.