text:
    ORBAND v. KALAMAZOO TELEGRAPH CO.
    1. Libel and Slander — Ridicule Libelous Per Se — Newspapers — Demurrer.
    On demurrer, plaintiff’s declaration charging that defendant, with the purpose of bringing plaintiff into ridicule and contempt, published an article stating that plaintiff was not going to marry a person named, who was a notorious drunkard and had been frequently imprisoned in jail therefor, that plaintiff stated she was not going to marry such person, that rumors of such engagement existed and were set at rest by plaintiff, all tending to bring plaintiff into ridicule and contempt, further charging that an alleged retraction, of similar import, was later published by defendant, as set out in full in the pleading, for the same purpose, and that such statements were false, that no rumor of plaintiff’s engagement existed, constituted a sufficient allegation of plaintiff’s cause of action for libel.
    2. Same.
    Articles tending to bring a person into shame, contempt, and derision in the community are libelous per se.

    3. Same — Declaration—Innuendo-
    Whether such articles would bear the construction placed upon them, and whether the innuendoes, colloquium, and inducement were true, were questions for the jury.

      Certiorari to Kalamazoo; Knappen, J.
    Submitted April 2, 1912.
    (Docket No. 10 )
    Decided May 31, 1912.
    Case by Caroline Orband against the Kalamazoo Telegraph Company for libel. An order overruling a demurrer to plaintiff’s declaration is reviewed by defendant on writ of error.
    Affirmed.

      Osborn & Mills, for appellant.

      D. O. French, for appellee.
   Stone, J.

This is an action on the case for damages for the publication by defendant of an alleged libel. The declaration contains four counts. We here set forth the substance of the first two counts.

After the preliminary statement, by way of inducement, it is alleged that the defendant did wickedly and maliciously compose and publish of and concerning the plaintiff the following libel, with prominent headlines, as follows:

(1) “‘ Caroline [plaintiff meaning] Says She Isn’t Going to Marry Pete [meaning Peter Mulder, hereinafter mentioned]. Sets at Rest Rumor Which had Gained Circulation; All Because Dogs Can’t Ride on Street Car.’ Following which headlines, and being a part of said wicked and malicious libel, the defendant did publish and cause to be published the following, to wit:
“ ‘The engagement [meaning an engagement or agreement to marry] of Miss Caroline Orband [plaintiff meaning] and Peter Mulder of this city will not be announced and they will not be married in the early fall according to a statement made by Miss Orband [plaintiff meaning] this afternoon.’
“ ‘ For the past few days rumor of the approaching announcement [meaning the announcement of an engagement or agreement to marry of plaintiff and the said Peter Mulder] have been heard in various places and much interest has been shown in the event In an effort to confirm the rumor [meaning a rumor of said engagement] a representative of the Evening Telegraph visited Miss Orband [plaintiff meaning] in her kitchen this afternoon and asked her concerning the rumor [meaning said rumor of said engagement].’
'“I suppose they have seen us out walking together and have thought from that that we [plaintiff and said Mulder meaning] were going to be married. You are young and probably don’t know that for years the newspapers and everybody else have picked me [plaintiff meaning] out and slurred me [plaintiff meaning] in every way they could. But you can tell them I [plaintiff meaning] am not going to be married. Pete [said Mulder meaning] has been doing some work for me [plaintiff meaning] on Lincoln avenue. I [plaintiff meaning] own two houses over there and we [plaintiff and said Mulder meaning] had to take the wheelbarrow and some things over there and I [plaintiff meaning] had to go along. I [plaintiff meaning] could not get a car for the dogs were with me [plaintiff meaning] and they won’t let dogs on the cars, you understand, so I [plaintiff meaning] walked over therewith Pete [said Mulder meaning]. You can tell ’em I [plaintiff meaning] ain’t going to marry anybody. I [plaintiff meaning] want to go in and take a nap and then go out and pick my cherries, so you can go along and tell them what I said and that they can go along their own way with their own noses.’ [Meaning the same to be a quotation of words spoken by the plaintiff, thereby meaning to subject to and bring the plaintiff into public ridicule, notoriety, disgrace, and humiliation, and to cause her great suffering, pain, mental anguish, and humiliation.]
“And the plaintiff avers that no engagement or agreement to marry existed, or ever had existed, between herself and the said Peter Mulder; that no rumor of any such engagement existed or was in circulation at or before the time of said publication; and that said alleged quotation is not a correct or true quotation of words spoken by plaintiff. And the plaintiff further avers that for many years the said Peter Mulder has been and was well known and notorious in said city of Kalamazoo for drunkenness and dissipation, and a disreputable, uncouth degenerate and unclean person; that he had been many times arrested and imprisoned in the jails and prisons of said county and State for such drunkenness; that he had been many times convicted in the courts of said city and county of Kalamazoo for such drunkenness, and had also been convicted in the courts of said city and county of being a common drunkard, all of which was well known to said defendant at the time of said publication.
(2) “And also for that, whereas the said defendant, further wickedly and maliciously intending to injure the plaintiff in her good name, fame, and credit, and to bring her into public ridicule, scandal and disgrace with and amongst all her neighbors and other good and worthy citizens, heretofore, to wit, at the city of Kalamazoo, in said county, in a certain newspaper published and circulated by the defendant in said city and county of Kalamazoo and State of Michigan, called the Kalamazoo Evening Telegraph, wickedly and maliciously did compose and publish, and cause to be composed and published, of and concerning the plaintiff, a certain other false, scandalous, malicious, and defamatory libel, containing and being a part thereof, large, prominent, glaring, and malicious headlines, the more particularly to call attention of the readers of said newspaper to said false, scandalous, malicious and defamatory libel of and concerning the plaintiff, which headlines are in words as follows, to wit: (The headlines in the first count of this declaration set forth). Following which headlines, and being a part of said wicked and malicious libel, the said defendant did publish, and cause to be published, in said newspaper, the following, to wit: (The article and matter following said headlines as alleged and set forth in the first count of this declaration). And further wickedly and maliciously intending to injure the said plaintiff in her good name, fame and credit, and to bring her further into public ridicule, scandal and disgrace with and amongst all her neighbors and other good and worthy citizens, and to aggravate the libel and enhance and increase the pain and suffering of the plaintiff, heretofore, to wit, on the 29th day of July, 1909, to wit, at the city of Kalamazoo, in said county, in a certain newspaper published and circulated by the defendant, in said city and county of Kalamazoo, and State of Michigan, called the Kalamazoo Evening Telegraph, wickedly and maliciously did compose and publish, and cause to be composed and published, of and concerning the plaintiff, a certain other false, scandalous, malicious, and defamatory libel of and concerning the plaintiff, which headlines are in words as follows, to wit:
“ 'IN which we apologize to miss orband.
“ 'Telegraph’s Sorry for Causing Well-Known Kalamazoo Lady any Embarrassment or Mental Distress.’
“ Following which headlines, and being a part of said wicked and malicious libel, the defendant did publish, and cause to be published, in said newspaper, the following, to wit:
“‘The Telegraph is in receipt of a registered letter from Attorney D. O. French, representing Miss Caroline Orband [plaintiff meaning], and setting forth that Miss Orband [plaintiff meaning] feels aggrieved over an article published July 21st, in which Miss Orband [plaintiff meaning] was quoted as denying that she [plaintiff meaning] was engaged to marry Peter Mulder.
“‘The Telegraph is sincerely sorry if Miss Orband [plaintiff meaning] has been caused any mental suffering by the article in question, which was published at her [plaintiff meaning] request when the report of her [plaintiff meaning] engagement then in circulation was called to her [plaintiff meaning] attention. The Telegraph begs to assure Miss Orband [plaintiff meaning] that it entertains the highest respect for her [plaintiff meaning] and would not willingly have injured that estimable lady’s [plaintiff meaning] feelings or been the part of the public.
“‘The Telegraph feels, however, that Mr. French is in grave error when he mentions Miss Orband’s [plaintiff meaning] mental distress is due to the “well known character and reputation of Peter Mulder.” Mr. Mulder [said Peter Mulder meaning] has conducted himself for the past two years in a manner to earn the respect and honor of his fellow citizens and is a sober, industrious gentleman. Such an attack upon his character cannot be allowed to pass unnoticed.’
“Thereby meaning and intending to subject and bring to the plaintiff further public ridicule, notoriety, disgrace, and humiliation, and to cause her great suffering, mental anguish, and humiliation.
“ And the plaintiff avers that no engagement or agreement to marry existed, or ever had existed, between herself and said Peter Mulder; that no rumor of any such engagement existed or was in circulation at the time of said several publications; that the plaintiff did not request the publication of the article and matter set forth in the first count of this declaration, as having been published by the defendant, and requested no publication to be made in said newspaper; and that said alleged quotation in said matter first published by the defendant is not a true and correct quotation of words spoken by plaintiff.
“And the plaintiff further avers that for many years the said Peter Mulder had been and was well known and notorious in said city of Kalamazoo for drunkenness and dissipation, and as a disreputable, uncouth degenerate and unclean person; that he had been many times arrested and imprisoned in the prisons of said city, county, and State, for such drunkenness; that he had been many times convicted in the courts of said city and county of Kalamazoo for such drunkenness, and had also been convicted in the courts of said city and county of being a common drunkard, and had been divorced by his wife, Elizabeth Mulder, in the circuit court for the said county, in chancery, viz., to wit, 17th day of September, 1904, upon the grounds of extreme cruelty, habitual drunkenness, and failure to support, all of which was well known to the defendant at the time of said several publications.”

To the declaration, the defendant demurred upon the following grounds:

First. Because no cause of action is stated, or alleged as against the defendant in any of the counts.

Second. For the reason that the matters which are alleged in the declaration and the several counts thereof to be libels as against the plaintiff are not, in law, libels of her.

Third. For the reason that the matters alleged to be libelous, and a libel of plaintiff, standing alone and unaccompanied by the innuendoes and explanations alleged and attempted to be made in and by the declaration, and the several counts thereof, are not libelous, or a libel of plaintiff.

Fourth. For the reason that no special damages are alleged or averred in the declaration, or in any count thereof.

Fifth. For the reason that nothing is alleged in the declaration, or in any count thereof, which is libelous, or a libel of plaintiff per se; and no special damages or injury are alleged to have been sustained, by her.

After the filing of the demurrer, the plaintiff’s declaration was amended by adding to each count of the same the following:

“ By reason of the publishing of said false, scandalous, malicious, and defamatory libel, and by means of the committing of which said several grievances by the said defendant, as aforesaid, she, the said plaintiff, has been and is greatly injured in her good name, credit, and reputation, and brought into public scandal, infamy, disgrace, public ridicule, and humiliation, and by reason thereof the said plaintiff has been caused and has suffered great mental suffering, anguish, and humiliation, all to her damage in the sum of $20,000.”

The demurrer was permitted to stand, as made, to said declaration as amended. Upon the argument of the demurrer, it was overruled by the court, and a writ of certiorari was allowed by this court to review that decision, in pursuance of the act of 1905 (Act No. 310, Pub. Acts 1905).

It is the claim of the appellant that the publication is not a libel per se; and, there being no claim of special damages, the declaration does not state a cause of action.

It is the settled law of this State that any printed publication, the natural result of which is to bring ridicule or contempt upon the plaintiff, is, if untrue, libelous. A leading case upon this subject, and one where the publication in its character was quite similar to the one here set forth, is Hatt v. Evening News Ass’n, 94 Mich. 114 (53 N. W. 952), where the earlier case of Tryon v. Evening News Ass’n, 39 Mich. 636, is cited. See, also, Smith v. Smith, 73 Mich. 445 (41 N. W. 499, 3 L. R. A. 52, 16 Am. St. Rep. 594), where the plaintiff was charged with deserting her husband in his sickness. It was held that the matter published was libelous per se, because, if the charge was true, the plaintiff was guilty of conduct deserving the contempt of all right-minded people.

In the instant case, appellant’s counsel claim that the publication at most amounted to no more than harmless pleasantry.” We think that this position is untenable. To connect the name of plaintiff with that of an alleged drunken degenerate, in the most sacred relation in life, tended to hold the plaintiff up to ridicule and scorn, and would tend to damage her in her social relations and standing. Both articles, in their general scope and apparent meaning, were well calculated to injure the plaintiff by bringing her into shame, ridicule, contempt, and derision. No good purpose can be served by such publications ; and the plaintiff was entitled to her right of exemption from such notoriety, and to the seclusion and privacy which are the rights of every private citizen. She is here held out to the public as a shallow-minded person, and as being the central figure of what is alleged to be an absolutely fictitious and absurd story. The articles naturally tend to her disparagement, and are well designed and calculated to hold her up to ridicule by making her the prominent figure in an alleged purely fictitious and absurd narrative. That publications of this nature are libelous per se is well' settled by the great weight of authority. Allen v. News Publishing Co., 81 Wis. 120 (50 N. W. 1093); Buckstaff v. Viall, 84 Wis. 129 (54 N. W. 111); Kay v. Jansen, 87 Wis. 118 (58 N. W. 245); Morse v. Printing Co., 124 Iowa, 707 (100 N. W. 867); McFadden v. Journal Ass’n, 28 App. Div. (N. Y.) 508, 51 N. Y. Supp. 275; Kirman v. Publishing Ass’n, 99 App. Div. (N. Y.) 367, 91 N. Y. Supp. 193; 25 Cyc. pp. 253-263, and cases cited; 18 Am. & Eng. Enc. Law (2d Ed.), p. 909 et seq. Many more authorities might be cited to the same effect.

The defendant, by demurring, admits the publications. Whether they will bear the construction placed upon them by the plaintiff is for the jury. The truth of the innuendoes, the colloquium, and of the inducement or extrinsic matter, is also for the jury. Newell on Slander and Libel (2d Ed.), p. 628; Buckstaff v. Viall, supra.

The demurrer was properly overruled, and the order of the circuit court is affirmed.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    SCHLIESS v. THAYER.
    1. Husband and Wife — Estates by Entireties — Bill in Aid of Execution.
    Land bought on contract by husband and wife jointly, and held . by the entireties, having been paid for in part before the husband incurred a debt, later reduced to judgment, could not be levied upon and subjected to his debt, where the only payments made after such debt was incurred were made by the wife from her separate funds.

    2. Same — Estoppel.
    Complainant’s olaim that the wife told him at the time he gave credit to her husband, that the latter owned the land, was properly held by the trial court not to be sustained by the evidence, which was in conflict, both husband and wife disputing complainant’s testimony.
    Appeal from Kent; McDonald, J.
    Submitted April 2, 1912.
    (Docket No. 2.)
    Decided May 31, 1912.
    Bill by K. Ludwig Schliess against Franklin M. Thayer and Alice M. Thayer, in aid of execution. From a decree for defendants, complainant appeals.
    Affirmed.

      Everett D. Comstock, for complainant.

      Lombard & Hext, for defendants.

       Liability of estate by entireties for husband’s debts, see note in 36 L. R. A. (N. S.) 205.

   Stone, J.

In this case the bill of complaint was filed in aid of execution. On March 7,1906, as appears by the date of the bill of sale which was in evidence, the defendant Franklin M. Thayer bought from the complainant a secondhand automobile for the sum of $203, payable $103 on March 12, 1906, and $100 hy note. Before the $103 had been paid by the defendant Thayer, he claimed that he had discovered that he had been defrauded as to the character and value of'the automobile, and he refused to pay. Complainant, as plaintiff, brought suit in the circuit court and recovered judgment for the amount, with costs. Later,- defendant Thayer gave a note for the balance remaining due upon the judgment. This note was not paid at maturity, and complainant, as plaintiff, brought suit upon this note in justice’s court, and on December 31, 1906, recovered a judgment against defendant Thayer for $108.15, including costs. A transcript of this judgment was filed in the circuit court on May 16, 1907, and on the same day an execution was issued upon this transcript judgment, and on June 10, 1907, a levy was made on that part of lot 43 of Gumming & Ferry’s addition to the city of Grand Rapids, which is involved in this suit. At the time this levy was made, the title to the premises in question stood in the names of Franklin M. Thayer and Alice M. Thayer, husband and wife, as tenants by the entireties, or with, right of survivorship.

The history of this property is, briefly, as follows: On September 16,1901, the defendants, as husband and wife, bought the premises from one Albert Stonehouse, on a land contract; the purchase price being $625. They held the same by virtue of this contract until March 21, 1906, when Stonehouse and wife conveyed it to them, as husband and wife, in pursuance of the terms of the contract. The land contract with the indorsement of 48 payments made thereon appears of record, and it is undisputed that the' last payment, before the final payment, indorsed thereon bears date February 18, 1906, being before the purchase of the automobile.

It seems to us that there are but two questions involved here:

(1) Did the defendant Franklin M. Thayer, at the time of the levy on June 10, 1907, have any such interest in the premises as should subject the same to the payment of his individual debt to complainant ?

(2) Did the defendant Alice M. Thayer make such representations concerning the title to said premises, at the time of the purchase of the automobile, and the giving of the original credit to her husband, as should now estop her from claiming title to the property, as against com • plainant’s levy ?

It should be borne in mind that the original indebtedness was incurred on March 7, 1906. The evidence is undisputed that by this record the only payment ever made upon this property, after March 7, 1906, was made by the wife with her own money on March 21, 1906, at the time the deed was made by Stonehouse and wife to the defendants. The evidence is undisputed that Mrs. Thayer obtained this money from an endowment of #500 received by her from the National Protective Legion, on a policy which she carried in that organization, and which she maintained in her own right It seems clear to us that property held by husband and wife by entireties, before or at the time the husband incurs a debt, cannot be reached for the satisfaction of that debt. If, however, after the incurring of a debt, a husband uses his individual assets in payment for property held by himself and wife by the entireties, the property, to the extent of that subsequent investment, might in some instances be reached for the satisfaction of that debt. It seems clear that, at the date of the levy, the defendant Franklin M. Thayer had no such interest in the premises here involved as would subject them to the payment of his individual debt incurred on or after March 7, 1906.

We do not think that the facts here stated bring the case within the authorities relied upon and cited by counsel for complainant.

It is claimed by complainant that, at the time of the purchase of the automobile by defendant Franklin M. Thayer, the defendant Alice M Thayer stated and represented to complainant that Franklin M. Thayer owned the property in question, and that she is now estopped to deny this representation. Whether or not this occurred is a question of fact. Both defendants denied that any such statement or representation was ever made. There was a sharp conflict in the evidence upon this subject. The witnesses were examined in open court, and the circuit judge had the advantage of seeing and hearing the witnesses testify. He distinctly found against the claim of the complainant on this question, and found as matter of fact that the defendant Alice M. Thayer did not make any such statement or representation. A careful reading of the record confirms us in the correctness of this finding and conclusion. Such statement or representation, if made by Alice M. Thayer, would not necessarily be binding upon the defendant Franklin M. Thayer, nor change his relation to the property.

By their answer and cross-bill, the defendants prayed that the levy of execution on their premises, being a cloud upon their title, should be discharged and removed, and the decree below so ordered.

The decree of the circuit court is affirmed, with costs to defendants.

Moore, C. J., and Steers, McAlvay, Brooke, Blair, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Moore, C. J.

text:
    PEOPLE’S OUTFITTING CO. v. PEOPLE’S OUTLET CO.
    Trade Marks and Trade Names — Unfair Competition — Names.
    Upon demurrer to a bill of complaint alleging that defendant, the People’s Outlet Company, became incorporated after complainant had established a general merchandise business, and had expended large sums in securing a good will, that by reason of the similarity of names, confusion resulted, and that complainant’s name the People’s Outfitting Comany had become a valuable right, that complainant had frequently requested defendant to adopt some other name, but the request was refused, coupled with a prayer for an injunction and for general relief, the averments of the bill stated grounds for equitable interference.

      Appeal from Wayne; Donovan, J.
    Submitted April 2, 1912.
    (Docket No 3.)
    Decided May 31, 1912.
    Bill by the People’s Outfitting Company against the People’s Outlet Company for an injunction to restrain the use of defendant’s corporate name. Prom an order overruling a demurrer to complainant’s bill, defendant appeals.
    Affirmed.

      Lucking, Emmons & Helfman, for complainant.

      Bernard Goldman (Leo M. Butzel, of counsel), for defendant.
   Moore, C. J.

The defendant interposed a demurrer to the complainant’s bill of complaint. Prom a decree overruling the demurrer, the defendant has brought the case here by appeal.

We quote from the bill of complaint as follows:

“(1) That your orator is a Michigan corporation duly organized under the laws of the State of Michigan and pursuant to Act No. 232 of the Michigan Public Acts of 1885 and the laws amendatory thereto. That your orator was incorporated in August, 1893, ‘ to sell and deal in at wholesale and retail house furnishing goods and general merchandise; ’ that continuously since said time your orator has been engaged in said business.
“ (2) That the said defendant, the People’s Outlet Company, was organized under the laws of the State of Michigan and pursuant to Act No. 232 of the Public Acts of 1903 and the laws amendatory thereto; that said defendant was incorporated in July, 1910, ‘to buy, sell and deal at wholesale and retail in general merchandise, dry goods, notions, shoes, clothing, and all other goods to such business belonging.’ * * * That since October 1, 1910, the said defendant has been and now is engaged in the retail business at 156 Gratiot avenue, Detroit, Mich., handling, selling, and dealing in clothing, shoes, and ladies’ ready-to-wear goods. * * *
“(4) That since its organization your orator has been and now is engaged at Detroit, Mich., in a furniture and house furnishing business; that it deals in furniture, carpets, rugs, stoves, jewelry, crockery, draperies, curtains, dry goods, ladies’ wearing apparel, and general merchandise; that your orator has for upwards of 15 years last past operated a large retail furniture and house furnishing business in a large five-story building and basement situated on the corner of Rowland street and Michigan Avenue, Detroit, Mich., and that it has also for several years last past operated a large mail order department in said city which is now situated on the West Grand Boulevard in said city of Detroit, and that your orator employs 250 men and women in said city in its retail and mail order business, and receives daily thousands of letters.
“(5) That your orator has spent and is spending many thousands of dollars in advertising its business, and that the name of your orator and the exclusive right to the use thereof has become a valuable property right built up at a large expenditure of money and worth thousands of dollars to your orator.
“(6) That on or about September 1, 1910, your orator learned of the organization of the said defendant company, and anticipating that the similarity of names between your orator and the defendant would lead to uncertainty and confusion in the minds of the public, your orator caused its attorney, Harry Helfman, to call upon the said defendant.”

The bill of complaint then recites the efforts made to induce defendant not to use the name taken by it.

“(9) Your orator avers that it refused to pay said sums and protested against the continued use of the name of the said defendant and caused its attorney to notify the said defendant that in due time your orator would file a bill in equity against the said defendant to restrain and prevent the use of the said name.

“(10) Your orator further avers that it contemplates engaging in the clothing business in the near future and instructed its attorney to so inform the defendant, and your orator charges the fact to be that its attorney did so inform the defendant during said negotiations.

“(11) Your orator shows that almost daily since the middle of September, 1910, your orator has been put to considerable trouble, annoyance, uncertainty, and confusion on account of the similarity of said names of your orator and the said defendant, which had arisen in a variety of different ways, viz.: (a) The various railroads, express companies, and navigation companies in the city of Detroit have confused the said names of your orator and said defendant. That your orator has been notified repeatedly by said railroad companies to call at their depots in order to take away merchandise alleged to have been consigned to your orator, and your orator would send its drivers to the depots and then learn that the freight in question was consigned to the defendant; that your orator was also notified by the navigation companies to take away freight alleged to have been consigned to it, but upon arrival of your orator’s drivers at the wharves or docks, the said drivers would be informed that the said merchandise was intended for the People’s Outlet Company; that boxes of shoes, boxes of clothing, etc., have actually been hauled by your orator’s drivers to your orator’s store before the mistake was discovered; that express companies have made similar mistakes. (&) That almost daily your orator receives mail intended for the People’s Outlet Company, and only after considerable trouble is the fact discovered that the mail was not intended for your orator; that your orator has received bills from creditors of the said defendant, demands for money, statements of account, bills of lading, notice to make payments, invoices, letters of various characters, which, upon investigation, after considerable trouble, your orator has learned were intended for the said defendant; that said letters would come not only from Detroit, but from New York City and elsewhere; that in view of the large mail order business of your orator, the confusion of mail is a serious matter and works much damage and annoyance to your orator, (c) That your orator has been called upon the telephone repeatedly by persons who desire to interview the People’s Outlet Company. (d) That your orator keeps its bank accounts at the First National Bank in Detroit, Mich., and the said defendant likewise keeps an account at said bank; that on one occasion your orator was notified by the said bank to pay a note alleged to be due from your orator to the said bank, and after considerable inquiry and correspondence it was discovered that the said obligation was due from the said defendant to the said bank and not from your orator.

“ (12) Your orator says that it did not file this bill of complaint before this date because your orator was advised by its solicitors to await a reasonable length of time until it could be demonstrated by actual experience whether or not the names of your orator and said defendant were so similar as to result in confusion and uncertainty, and for that reason only has your orator waited until this time, and that in the meantime your orator has protested to the attorney for said defendant against the use of the said name and has told the said attorney that in due season your orator would file this bill.

“ (13) That your orator is without adequate remedy at law and must forever lose its just claim and suffer great and irreparable damages to the extent of, to wit, thousands of dollars, unless relieved by a court of equity.

“Your orator therefore prays: (a) That the defendant, the People’s Outlet Company, appear and answer this bill of complaint, but not under oath; answer under oath being hereby expressly waived. (5) That the said People’s Outlet Company be restrained by an order of this court, and that a temporary and permanent injunction be issued herein, restraining the said defendant, its officers, agents, and employes, from using the name ‘People’s Outlet Company,’ until the further order of this court, (c) That your orator may have such other and further relief as to the court shall seem meet and agreeable to equity.”

The material parts of the demurrer are as follows:

“ (1) Because under the facts and averments set forth in complainant’s bill, the defendant, People’s Outlet Company, is legally and equitably entitled to the use of its corporate name, to wit, ‘ People’s Outlet Company.’
“(2) Because the word ' People’s,’ used in connection with the corporate name of defendant, People’s Outlet Company, is such a general term of description as not to entitle the complainant to the monopolization thereof.
“(3) Because the said bill does not show that the complainant has any interest in the subject-matter thereof.
“(4) Because by the averments of the bill, the parties not being engaged in competing business, the complainant is entitled to no relief.
“(5) Because the word ‘People’s’ is part of the English language, and complainant has no capacity to appropriate its use to the exclusion of any other portion of the public, natural or corporate.
“(6) Because the complainant has at best only a theoretical right to prevent defendant from using the name adopted by it, in case of unfair trade practices, and the bill does not so claim or allege, and in fact disproves such existing claims.”

It is not necessary to cite any authorities upon the proposition that the demurrer admits the truth of the averments in the bill of complaint. A reference to these averments shows that reasons 3 and 4 are not well taken. The other reasons may be considered together. Counsel say:

“That the word ‘People’s’ used in connection with and as a part of the corporate name of defendant is a generic term, and is not subject to monopolization by complainant. * * * That the bill does not allege unfair trade practices, and in fact by implication refutes any such claim. * * * The tests applied by all the authorities in this class of cases are: Is the corporate, or trade, or fictitious name simulated ? Is the name assumed or adopted false in fact ? Is it used in connection with locality or other representations so as to convey the impression that the business is the continuation of an old business, or the business of complainant ?”

The complainant is not complaining simply because of the use of the word “People’s” and “Company,” but it is complaining of the use of those words as arranged in the name of the defendant corporation, claiming the result is so similar to the name of the complainant as to be misleading in fact, in the actual business life of the complainant.

The solicitors for defendant, in support of their contention which we have already quoted, cite many cases which relate simply to trade-marks, and which we think do not apply to the instant case. They cite and rely upon the following Michigan cases: Williams v. Farrand, 88 Mich. 473 (50 N. W. 446, 14 L. R. A. 161); Supreme Lodge K. of P. v. Improved Order K. of P., 113 Mich. 133 (71 N. W. 470, 38 L. R. A. 658); Michigan Sav. Bank v. Dime Sav. Bank, 162 Mich. 297 (127 N. W. 864, 139 Am. St. Rep. 558).

The first named of these cases does not deal with a dispute between corporations, but with one between partners, some of whom bought out the others; the retiring copartners having organized a new business. In the case in 113 Mich, supra, this court adopted as its own the opinion of Judge Carpenter, in which opinion he used the following language:

“ The correct principle is stated in complainant’s brief (page 71) as a quotation from the opinion of Judge Foster, of the superior court of Vanderburgh county, Indiana, rendered in the suit of St. George Lodge, K. of. P., v. Rosenthal, et al.:
“‘Where a corporation has appropriated and used a name for such length of time as to become identified by the name, and has established a character and reputation under it, it is a fraud upon the corporation and the public if this name be assumed by others under such circumstances as would lead the public to believe that they constitute the original corporation, and, where injury will result to the corporation on account thereof, courts of equity will, at the suit of the injured parties, by injunction, restrain the further perpetration of the wrong. It is the special injury to the party aggrieved and the imposition upon the public that constitute the wrong which the courts will redress. It is not necessary that the wrong should be intentionally committed. It is enough that the name should be used under such circumstances as would lead the public to believe that the latter organization was the former, and thereby cause injury to the former corporation.’
“Where one uses the name of another for the fraudulent purpose of attracting to himself business which belongs to that other, no injustice will be done if the court assumes that the name chosen accomplishes this purpose, even though the resemblance be not great. If one intends that the name he has chosen shall be believed to be that of another, it is fair to infer that he will so use that name as to promote the desired belief. Accordingly, we find that the motives with which a name is chosen, and the circumstances attending its use, as well as the similarity of names, have a bearing in determining whether business is liable to be diverted, and consequently whether the courts shall interfere.”

In Michigan Sav. Bank v. Dime Sav. Bank, supra, Justice Ostrander, speaking for the court, among other things, said:

“ So Act No. 232, Pub. Acts 1903, in section 2 thereof, relating to names to be assumed by corporations, contains the proviso that—
“ ‘ No name shall be assumed already in use by any other existing corporation of this State, or corporation lawfully carrying on business in this State, or so nearly similar as to lead to uncertainty or confusion.’
“Courts of equity are frequently called upon to remedy the conditions which grow out of the use by a corporation of a name similar to the name of another corporation, carrying on a business of the same character. In such cases it is usually, if not always, true that relief is granted because experience has demonstrated that the public is misled, and the corporation first established is defrauded on account of the similarity of the names. We assume that the statutes referred to were intended to prevent, to some extent, the conditions which in such cases, when they arise, make a resort to the courts necessary. In this view of the legislation, in its enforcement by the courts as a preventive measure, it is necessary to consider, in advance of a demonstration based upon experience, and in a case where neither corporation has, or can acquire, the general right to an exclusive use of the words employed in the name, whether it is likely that the public will be misled, and whether the complaining corporation is likely to be injured. It is evident that experience, not in the particular case, but in other cases, must still be employed in determining the fact, and that mere conjecture that some confusion may result is not ground for granting equitable relief. We may also consider that if relief is refused and conjecture is in actual experience made fact, the complaining corporation may have its remedy.”

In Lamb Knit-Goods Co. v. Glove & Mitten Co., 120 Mich. 159 (78 N. W. 1072, 44 L. R. A. 841), Justice Montgomery said, among other things:

“ In the present case the testimony shows that dealers have been misled, and in view of the fact that the complainant’s business is largely the manufacture of gloves and mittens, and that the name ‘ Lamb ’ is prominent in the corporate name, we think it is likely to mislead. The case is very similar to Charles S. Higgins Co. v. Higgins Soap Co., 144 N. Y. 462 ([39 N. E. 490, 27 L. R. A. 42] 43 Am. St. Rep. 769). In that case the complainant’s name did not describe its business. The business was, in fact, the manufacture and sale of soap. The court restrained the defendant from carrying on the business in the name of Higgins Soap Company. The court held that, even if the name was assumed in good faith, without design to mislead the public and acquire the complainant’s trade, the defendant, knowing the facts, must be held to the same responsibility. See, also, Holmes, Booth & Haydens v. Holmes, Booth & Atwood Manfg. Co., 37 Conn. 278 (9 Am. Rep. 324); Myers v. Buggy Co., 54 Mich. 215 ( [19 N. W. 961, 20 N. W. 545] 52 Am. Rep. 811); Frazer v. Lubricator Co., 121 Ill. 147 ([13 N. E. 639] 2 Am. St. Rep. 73); Pillsbury v. Flour Mills Co., 12 C. C. A. 432, 64 Fed. 841; Walter Baker & Co. v. Baker [C. C.], 87 Fed. 209.”

Applying these principles of law to the case stated by the bill of complaint and admitted to be true by the demurrer, we think the complainant has stated a case for relief. See, also, Finney’s Orchestra v. Finney’s Famous Orchestra, 161 Mich. 289 (126 N. W. 198, 28 L. R. A. [N. S.] 458.

The decree of the court below is affirmed, with costs. Defendant is given 30 days in which to answer.

Steere, MoAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Steere, J.

text:
    DEHN v. DEHN.
    1. Evidence — Names—Presumptions—Parent and Child — Deeds.
    If father and son bear the same name, a conveyance to one by that name is presumed to mean the father, unless the testimony shows a different intent.
    2. Same — Real Property.

      Held, that the evidence sustained the finding of the lower court that land claimed by father, Charles Dehn, and son, Carl O. Dehn, belonged to the former.
    3. Lien — Equity—Parent and Child.
    Expenditures for repairs and improvements made on the home by a son who resided with his parents, are presumed to have been made gratuitously, in the absence of any agreement, and do not entitle the son to a lien on the premises.
    4. Same — Contract—Mistake:
    While a contract may be implied, as in the case of one who, under a mistake, makes improvements that benefit another, a son who makes a false claim to property of his father is not in a position to obtain equitable relief after failing to maintain his claim.
    5. Same.
    Equity cannot create a lien; it oan only declare one where the testimony equitably establishes an implied contract, liens can only be created by agreement, express or implied, or by some fixed rule of law.
    6. Attorney and Client — Authority of Solicitor — Courts.
    While the authority of complainant’s solicitor cannot, as a rule, be questioned at the trial, it was proper to consider the point on the hearing in chancery, if no opportunity had been previously given defendant to raise the question, and his solicitor had first learned facts at the hearing upon which he based the claim. The court in which suit is begun is the proper forum in which to determine the question.
    7. Same — Evidence.
    Where complainant, who was very old, feeble, and spoke German only, stated that he owned the home in which he lived, did not remember who paid the taxes, remembered making his mark on a paper brought to him in connection with the matter, and it appeared from bis solicitor’s testimony that he obtained information from complainant, who expressed a desire to have suit begun against his son, who claimed the property and had assumed to mortgage it, the court was justified in holding that the solicitor was authorized to act.
    Appeal from Bay; Collins, J.
    Submitted April 2, 1912.
    (Docket No. 4.)
    Decided May 31, 1912.
    Bill by Charles Dehn against Carl O. Dehn to quiet title to real property. From a decree for complainant, defendant appeals.
    Affirmed.

      Stoddard & McMillan, for complainant.

      Lee E. Joslyn, for defendant.
   Steere, J.

This is a suit between father and son to determine which is meant in a certain deed dated January 20,1891, executed by Mathias Kober and wife, conveying to Charles Dehn lot 1 and the north half of lot 2, block 7, Tromble’s addition to the village of Salzburg in Bay county, Mich. The parties to this suit each claim to be the Charles Dehn mentioned as grantee in said conveyance. The complainant, who is father of defendant, alleges in his bill of complaint that he has been in possession of said property, occupying the same as a homestead, since the time it was purchased in 1891; that he has never executed any conveyance of said premises, and now is, and has been at all times since its purchase, the owner thereof with absolute title in fee simple; that in July, 1900, defendant, without complainant’s knowledge or consent, claiming to be the owner of said property, gave a mortgage upon the same for the sum of $700, which defendant afterwards paid, securing a discharge of said mortgage; that defendant claims to be the owner of said property, with right to sell and convey the same, and to dispossess and evict complainant; that said act of mortgaging, together with defendant’s claim of ownership, creates a cloud upon complainant’s title which pre•vents him from selling or otherwise properly dealing with said property as his own; that complainant is 88 years of age and unable to support himself and has no property-except said premises. He therefore prays the court to determine and decree that said conveyance from Mathias Kober and wife to Charles Dehn was a conveyance of said property to, and intended for, complainant.

Defendant filed an answer in the nature of a cross-bill. He admits the execution and recording of said deed to Charles Dehn, but denies that it conveyed said premises to complainant, alleging, on the contrary, that defendant is the grantee named and intended in said deed; that his name is Charles O. Dehn; that Carl is the German equivalent of Charles in English, and he has been called Carl for that reason. He admits having given a mortgage on said property for $700, which he subsequently paid, and asserts he had‘a perfect right, as owner, to do so; alleges that he has paid the taxes and insurance on said premises since their purchase, and made repairs and improvements thereon amounting to over $2,000; asserts that complainant neither paid nor furnished, directly or indirectly, any part of the purchase price paid for said property, nor contributed anything toward the repairs and improvements which have been made, but has been permitted by defendant to occupy the place, with other members of the family, free of rent, being also further assisted in his living expenses by defendant from time to time. Defendant therefore alleges that complainant’s claim of ownership is a cloud on his title and asks for affirmative relief, praying, in his cross-bill, that complainant be required to quitclaim said property to him, or, if for any reason the court is not disposed to grant such relief, an accounting be ordered and defendant decreed to have a lien on said premises for the money he may be shown to have expended on said property. Complainant filed an answer to said cross-bill, meeting the same by proper denials and allegations, and reasserting his ownership of said premises. From a decree adjudicating complainant to be the owner of said property, and denying the prayer of defendant’s cross-bill, the latter has appealed.

The issues presented by counsel to this court under the pleadings and proofs are:

(1) The identity of the Charles Dehn named as grantee in said conveyance-

(2) The right of defendant to a lien on said premises for moneys expended thereon in case he is not found to be the owner.

(3) The authority of complainant’s counsel to institute this suit.

Complainant, accompanied by his wife and four sons, brothers of defendant, came from Germany to Salzburg, Mich., in 1888. The names and ages of the sons who came with him are: John, 30 years; Henry, 14 years; Frank, 10 years; and August, 6 years. Defendant, then 18 years of age, and next to the oldest of the boys, had come to America two years previous, and sent money to assist the family in joining him. When the family immigrated to America, the mother brought with her the proceeds of the sale of family property, disposed of before they left, variously stated by different members of the family as amounting to from $500 to $700. This she left with a sister in New York, and it was sent on to her later. Defendant testified that it amounted to $514, and was deposited by him in a bank in Bay City.

When the family arrived at their destination, defendant received them. Being the only one who could speak English, and somewhat acquainted with the ways of the country, he took the initiative, renting a house for them into which they moved and established a home. Thus united, they lived together as one family, apparently in harmony, co-operating and working together for several years. Complainant and the sons who were old enough to work found employment and turned their wages over to the mother, who handled the funds and acted as the family treasurer. She seemed to rely on defendant more than the others in business matters, owing, as one of the sons testified, to his longer residence in the country, knowledge of the people, and ability to speak English. They were apparently frugal and industrious. The mother handled the funds and managed their financial affairs with defendant’s assistance. He negotiated loans for her, and money in her hands was deposited in a bank in his name. In 1891 the property in question was purchased for $550 and became the permanent home of the family. Since that time complainant has occupied the same continuously as a home, with his wife and children, until.they died or were married and left. Eor the last seven years Henry and his family had lived on the place with complainant and cared for him. When it was purchased, the family had been in the country for nearly three years, living in a rented house. The mother initiated and conducted the negotiations for purchase of a home from Mathias Kober and wife, who were also Germans and acquaintances. Complainant’s wife and Mathias Sober are both dead. • Mrs. Louisa Sober, wife of Mathias, and one of the grantors, testifies in part as follows:

‘ ’ To whom did you sell it ?
“A. To Mr. Dehn and his wife.
“Q. Which Mr. Dehn?
“A. The old Mr. Dehn. I had all my dealings with the mother and none at all with the father. The mother first came to see me, came to my home, and the old folks paid us the money. * * *
“Q. The deed gives the name of the grantee as Charles Dehn. Who did you understand Charles Dehn was ?
“A. Why, the father of the boys. We could not understand it any other way. The mother came to us and done all the talking and made the bargain with us. This here gentleman, Carl Dehn, did not never speak to us, and I don’t think he ever did, not even the day we made out the papers; but we came on the east side to make out the papers. I don’t know that we spoke together then, only that he passed over the money, but business was all done with the parents, with the mother. * * * Mrs. Dehn, the old lady, was at home when the deed was made out, and when 1 came over to the east side to have the deed made she stayed with my children so that I could get away.”

As a legal presumption, in the absence of any illuminating evidence, complainant would be the Charles Dehn. intended in the conveyance. If the father and son bore the same name, in the absence of any distinguishing designation the father is, prima facie, intended. 29 Cyc. p. 268.

In this case, as a matter of fact they did not bear the same name, though they may mean the same when interpreted. Defendant was always called Carl, and his name is Carl O. Dehn. He has since become a business man of some means and does his business in that name. Of 11 conveyances offered in evidence, to which he is a party, the only one in which his name appears as Charles Dehn is the mortgage he gave on the property in dispute. In all the others his given name is Carl, or Carl O. We think the testimony, taken as a whole, shows that the property was purchased by the mother as a home for the family and deeded to complainant, the husband and father, being paid for out of money brought from Germany, or the joint earnings of the family which she had received.

Defendant’s claim of lien for expenditures on the premises is not tenable. That he paid the taxes and insurance upon.the property and paid for certain improvements while living there, is admitted. Expenditures for repairs and improvements were also made by the other sons and by the parents. When the family moved upon the property in 1891, an addition and repairs to the house, costing $858, were paid for by John. Henry claims to have expended over $800 on the property. Defendant’s claim amounts to over $2,000. There is a conflict of testimony as to this amount. That he was more capable in business, more prosperous, and contributed more than the others while they lived together, is indicated by the evidence. He made his home there with his parents until after the mother died in 1901. In 1902 he married and left.

The history of this family indicates . convincingly that all the sons, while living in the family, contributed as they were able, not only sufficient to cover their own care and keep, but for support of the parents and betterment of the property which was the family home. Such contributions, made by sons while living at home with the parents, are impliedly gratuitous, in the absence of any agreement or understanding to the contrary, and create no lien.

It is true that an equitable lien may arise, in the absence of an express contract, under circumstances from which a contract is necessarily implied. 25 Cyc. p. 667. Such a lien may arise where a party innocently and in good faith, under a mistake as to the condition of the title, renders services, or makes improvements that are permanently beneficial to another. Miller v. Pickens, 26 Miss. 182; Haggerty v. McCanna, 25 N. J. Eq. 48. Defendant invokes this doctrine in support of his claim of lien. But his major claim in this case is not based on any mistake or honest misunderstanding as to the title to the property. He claims that he bought it and paid for it; that it was deeded to him; that he owned it and spent the money improving his own property. This is not a mistake from the consequences of which equity will grant relief. Failing in such claim, he cannot change front and establish a lien under an implied contract for expenditures made on property, the legal title and possession of which is in another. A court of equity cannot create a lien. It can only declare one where the testimony equitably establishes an implied contract. Liens can only be created by agreement, express or implied, or some fixed rule of law. Bennett v. Nichols, 12 Mich. 22; Frost v. Atwood, 73 Mich. 67 (41 N. W. 96, 16 Am. St. Rep. 560). There is nothing in the case at bar which favors the idea that defendant’s expenditures created a lien on this land, because made innocently and in good faith, under an ionest but mistaken belief that he was the owner.

The authority of complainant’s solicitor to represent his alleged client is raised. As a general rule, this cannot be questioned at the trial. 4 Cyc. p. 920; Norberg v. Heine-man, 59 Mich. 210 (26 N W. 481). It is said by defendant’s counsel that the authority of complainant’s solicitor was not raised before for the reason that the facts were not known until the testimony of complainant was taken, which showed that he did not know this suit was begun and had never given any one any authority to commence it. This is based on the answers to certain questions asked complainant at the taking of his testimony in his home; he- being physically unable to be present in court. His examination through an interpreter indicates clearly that he was old, feeble, forgetful, and somewhat childish, and did not have a very clear recollection of the facts and circumstances in connection with the subject-matter of the suit. He was nearly 90 years of age, unable to understand or speak English, and appears to have been confused and bewildered. He testified that the property was his; that he paid for it j that they all paid for it, that he had some money himself, and everybody gave their money for the purchase, all together; that it was all in one pile. As his examination progressed, he appears to have become more uncertain and confused, until most of his answers were that he did not remember, or a decided negative. He answered that he did not remember who paid the taxes and stated at one time that nobody paid them. As to the authority of his solicitor to act, he stated that he remembered making three crosses on a paper brought to him about this matter, but did not know the attorney who represented him, nor understand what the suit was. He was asked:

“ Do you want to have something done to keep the property for yourself ?
“A. No—
The Interpreter: He says the house belongs to him, that is all he knows about it.”

It is the testimony from other sources that, learning of defendant’s having mortgaged the property in question and subsequently offered the same for sale, complainant became worried, anxious, and shed tears, while talking of it to others and expressing a desire to have something done to settle the question and preserve the property for himself; that his son Henry, who lived with and took care of him, looked after the business and engaged counsel who filed this bill iñ his behalf.

Caleb Snyder, a witness for complainant, testified tnat the old gentleman only spoke German, was very feeble, and it was hard to carry on conversation with him; that there were few people who could thoroughly understand him when he talked; that he acted as interpreter for the solicitor, Mr. De Foe, when they were conversing in regard to this suit and—

“ The conversation at that time was all along this same line — beginning proceedings in the name of Charles Dehn against Carl O. Dehn. The old man said he wanted such proceedings commenced. The object of commencing the proceedings was to save his home.”

Frederick W. De Foe, the solicitor for complainant, testified that he obtained all the preliminary information from complainant, Mr. Charles Dehn, himself, and, through Mr. Snyder, questioned him as to the ownership of the property and his knowledge as to whether or not Carl had ever made a claim of ownership to it, and as to the allegation with reference to a mortgage that defendant had placed upon the property; that he questioned him also as to his desires, and what he wished done under the circumstances, after which the bill of complaint was prepared in accordance with the instructions and desires disclosed to said attorney by complainant through Snyder, the interpreter.

After hearing the testimony of the parties, the court held that complainant’s solicitor was authorized to act, saying:

“It would seem to me * * * that where an attorney and solicitor is consulted he would have a right to use his best judgment as to what was necessary to protect the interests of the party for whom he was consulting.”

We think the testimony of complainant’s solicitor that he had been consulted, and that complainant wished the suit commenced, was sufficient, under the circumstances disclosed, to invoke the discretion of the trial court.

The court in which the suit was begun is the proper tribunal to pass upon the question of authority of counsel when that question is raised. Krause v. Hampton, 11 Iowa, 457; Newhart v. Wolfe, 2 Penny. (Pa.) 295.

A careful review of the whole record in this suit leads us to the same conclusions arrived at by the learned circuit judge, and his decree is affirmed, with costs.

Moore, C. J., and McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    BROWN v. PEOPLE’S NATIONAL BANK.
    1. Bills and Notes — Forgery — Indorsement — Attorney and Client — Laches in Giving Notice.
    Plaintiff was entitled to recover from the defendant, a bank, which paid to her attorney and agent for collection a draft, executed to plaintiff as payee, indorsed by her attorney by forging plaintiff’s signature and indorsing his own thereunder, unless she was rightly held to be estopped from enforcing her demand by laches.
    3. Same — Estoppel—Delay—Negotiable Instruments.
    Estoppel barred plaintiff’s recovery upon undisputed testimony that her agent knew all the facts incident to her attorney’s forgery about a year, during which her agent attempted to assert plaintiff’s claim against the attorney, making no claim against the defendant bank, which, in ignorance of the forgery, permitted the delinquent attorney to withdraw funds deposited with it, and lost the means of protecting itself.

      Case-made from Jackson; Wiest, J., presiding.
    Submitted April 2, 1912.
    (Docket No. 17.)
    Decided May 31, 1912.
    Assumpsit by Catherine Brown against the People’s National Bank upon a draft made to plaintiff whose name was forged and the funds drawn by her attorney. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Grove H. Wolcott, for appellant.

      Thomas E. Barkworth, for appellee.
   Steere, J.

This is an action of assumpsit, in which plaintiff seeks to recover the sum of $608.37, with interest from the 4th of June, 1907, by reason of defendant having cashed a draft on that date, payable to her order, on which her name had been forged.

This draft was for plaintiff’s distributive share of her father’s estate, sent from Washington, D. C., to her attorney, in Jackson, Mich., who forged her indorsement, drew the money, and appropriated it.

Under a plea of the general issue, notice was given of special matters of defense, as follows:

“ (1) That the said plaintiff, after having received due notice, and having knowledge, on or about May 1, 1908, that the check or draft mentioned in plaintiff’s declaration had been paid by defendant bank to Robert Campbell, without notice that the signature, purporting to be that of plaintiff, indorsed thereon was not her true and genuine signature, did not give to said defendant bank notice of her claim with respect thereto, or of the fact that her purported signature thereto was not genuine, and that said bank had no notice thereof until August 2, 1909, and that in the meantime said bank had surrendered to said Campbell property in its possession out of which it might have saved itself from loss, had such notice of plaintiff’s claim been had by it.
“(2) That said plaintiff, having knowledge or notice that said bank had cashed said draft bearing the purported signature of said plaintiff, elected to follow her claim against Robert Campbell, the party negotiating said draft, and to look to him for repayment therefor, and did not for a long time make any claim against said bank, or seek to hold said bank liable to her on account thereof; and said bank, without notice of said plaintiff’s claims or of the false character of said plaintiff’s purported signature, was prejudiced thereby by the surrender by it to said Campbell of certain property of value more than enough to have satisfied said obligation, which said surrender was made in ignorance of any claim asserted by said plaintiff against said defendant arising therefrom.”

Defendant had judgment at the circuit, and the action is removed to this court on. a case-made.

From the statement of facts found by the court, it appears that Robert Campbell, an attorney of Jackson, Mich., having succeeded to the business of the law partnership of which he had previously been a member, and which had been dissolved pending this collection, by virtue of contract relations with plaintiff, in the latter part of May, 1907, received from the administrator of her father’s estate a draft reading as follows, with indorsements subsequently made by him:

“$608. Washington, D. C., May 27, 1907.
“ Pay to the order of Catherine Schilling $608.37 six hundred eight and 37/ 100 dollars.
“Fred K. Echelberger, Trust Officer.
“ Thomas Parker, President.
“To the Columbia National Bank, Washington, D. C.
“ Paid June 7th, 1907.”
Indorsements:
“Catherine Schilling.
“Robrt. Campbell.”

This was for her one-third of the money which said law firm had been employed to collect. Beside the plaintiff, whose name at that time was Catherine Schilling, were a brother and sister, who were each entitled to, and awarded, a like sum. By the terms of a written contract with the firm of which Campbell was a member, the attorney was entitled to retain 30 per cent., as collection fees, upon the whole amount collected.

The plaintiff’s brother and sister were residents of Michigan, and each duly received from Campbell the amount to which they were entitled — $426—being $608.37, less 30 per cent. The plaintiff, however, liyed in North Dakota, and never received her share, although she had, in May, 1907, signed and acknowledged, before a notary, a receipt to the administrator for the same. About a year afterward, she wrote to her brother, Capt. Charles J. Smith, in Jackson, that she had not yet received her share of the estate. Smith called upon Campbell for an explanation, and was assured by Campbell that the money had not yet been collected. Not satisfied with Campbell’s conduct in the matter, Smith then wrote to the administrator, the Washington Loan & Trust Company of Washington, D. C., and learned from it that the money had been sent to Campbell by draft drawn payable to plaintiff’s order. His further inquiries in Jackson developed that the draft was paid by the People’s National Bank, defendant herein, to Campbell on June 4, 1907. Shortly after receiving the letter from the administrator, Smith called upon Campbell, and told him that he had learned that he (Campbell) had received plaintiff’s draft. Campbell then admitted that he had received the money, and intimated that if he had indorsed Mrs. Schilling’s name upon the draft he had a right, as her attorney, to do so, but at the same time promised to settle the claim with Mr. Smith, which promise he never fulfilled. On June 1, 1908, Smith wrote his sister the following letter:

“Jackson, June 1, 1908.
“My Dear Sisver:
“Yours at hand. I have a letter from the administrator stating full facts. Campbell has drawn your money from the bank here the 4th day of last June, 1907, and he has kept it. Now, Sister,,! have counsel here and they say to make him pay the full amount of $608.37. Hi« contract calls for 30% of that amount. He has broken his contract and we have him. Just leave that to me. Don’t accept anything else. I have been under some expense and I know you will make it right with me. This man Campbell has done wrong.' He wanted to bribe me this morning by offering me money, asking me how much he owed me. I will not accept anything from him. I want you to write just as soon as you get this and let me know just what you are doing. Have Winterer write me. You can make him pay the full amount with interest. Katie, don’t accept anything else. Have Winterer write him to that effect for I have proof here to land him to prison and he knows it. I saw him this morning, and he said he would pay over the money in one or two days. Now Katie, let me know just what you want me to do, for I am here and I will save you all the expense I can.
“ Your brother,
“Capt. C. J. Smith,
“235 E. Wesley.
“P. S. — I hope you get this letter before you receive the money which he will try to settle for, about $400.25. Don’t do it. If the Bar Association gets hold of him, it will be all off with him.
“C. J. S.”

In reply, plaintiff requested her brother to try and collect her money for her, and use his own judgment as to what proceedings to take.

By a letter of May 20, 1908, Smith had learned from the Trust Company of Washington, D. C., that Campbell had requested the draft for Catherine Schilling’s share to be made payable to his order; but the same had been previously sent to him, drawn payable to her order. On June 25, 1908, Campbell was arrested on Smith’s complaint for embezzling the proceeds of said draft. While in jail, he sent for Smith, and an interview was had at which the sheriff, prosecuting attorney, and F. H. Helmer, cashier of defendant, were present. Helmer, in behalf of Campbell, offered to pay Smith the amount of the draft, less 30 per cent, for attorney’s fees specified in the contract for collection, proposing in that connection some kind of paper for Smith to sign, the contents of which are not shown. Smith declined to sign the same, stating he had no counsel, and he was not paid the money. The prosecuting attorney stated at the time that Campbell would be put under bonds. The criminal prosecution is yet pending, and he is under recognizance for trial. After this interview, nothing further was done by Smith to effect a settlement with Campbell. At the time the draft was cashed, Campbell bore a fair reputation as a member of the bar, and was a customer of defendant, which had in its possession, until June 27, 1908, personal property belonging to him amounting to at least three times the amount of plaintiff’s claim.

The indorsement of plaintiff’s name on the draft was a careful imitation of her genuine signature, and was a forgery. No effort was made by the officers of the bank, when it was cashed, to ascertain whether or not it was genuine. Plaintiff never saw the draft until April 21, 1910, and first learned defendant had cashed it from her present attorney, Mr. Wolcott, who was employed for her by her brother, July 14, 1909. Wolcott was unable to obtain and examine desired papers, and inspect the draft, until about August 4, 1909, when he advised plaintiff of the proposed action, and made written demand on defendant for the amount of the draft, with interest, which was the first notice it received of her intent to hold it responsible on account of the forged indorsement. There was no evidence that any officer of the bank was aware the indorsement was a forgery until that date.

So far as the record discloses, both parties to this suit were innocent of intentional wrong and honest in this matter; and both had misplaced confidence in Campbell. Plaintiff had employed and trusted him as her attorney. He was then an attorney in fair standing and a customer of the bank. When he presented to his bank the draft, fair on its face, apparently indorsed by the payee and indorsed by himself, the bank naturally cashed it without question on the strength of his indorsement and their acquaintance with him. As her attorney, he had no authority to indorse her name; and his letter to the administrator, requesting that it be made payable to his order, indicates that he well knew it. The power to indorse checks or bills must be expressly conferred; and his employment to collect her claim conferred no authority to indorse a check or draft received in payment of the claim, but made payable to her. Chatham Nat. Bank v. Hochstadter, 11 Daly (N. Y.), 343. The indorsement was an ingenious forgery, and conferred upon the bank no right to collect the money it represented, and no protection in cashing it for him. It was her draft, and could only be legally paid on her indorsement. The fact that Campbell was her attorney, and had it in his possession, made no difference. Prima facie the loss falls on defendant; for a forgery is a nullity, and no protection to any one. It is manifest she is entitled to recover, unless she is precluded from relying upon the forgery by the defense of equitable estoppel, which is urged by defendant, based on the claim that, by delay and failure to notify the bank within a reasonable time after she knew of the fraud, and by making her claim against Campbell, and attempting to collect it from him, she has released the bank and lost her right against it.

The general rule is that estoppel arises against one who, with knowledge of the fact, fails to give notice until an opportunity of recovery on the forged instrument, which would have been available if prompt notification had been given, is lost:

“If a man’s name be forged, and after himself becoming aware of the fact he refrain from advising the holder of the document, and by reason of such inaction the holder’s position is changed (by the death, escape, or bankruptcy of the forger, or otherwise), there will be estoppel of the man whose name was forged.” Ewart on Estoppel, p. 135.

The forged draft was cashed by defendant June 4,1907. Defendant had in its possession available personal property of Campbell, furnishing it opportunity to recover on the forged instrument, until June 27, 1908. Demand was first made upon it and notice first given, in her behalf, of the claim that the indorsement was a forgery on August 4, 1909; and it is conceded that there is no evidence that any officer of the bank knew, before that date, that the instrument was forged.

If plaintiff knew it, or her agent had knowledge of it imputable to her, before June 27, 1908, and defendant’s opportunity to recover from Campbell on the forged instrument was lost through failure to give notice, she is estopped from asserting the forgery., She had no positive knowledge of the forgery of her indorsement until after that time, but did know of enough facts to put a reasonable person on inquiry. . She knew that she had receipted to the administrator for the money in May, 1907. She was advised by a letter from her brother; of June 1, 1908, of Campbell’s dishonesty; that he had drawn her money from a bank in Jackson on June 4, 1907; that he had broken his contract and tried to bribe her brother. Following the suggestion in her brother’s letter to “just leave that to me,” she constituted him her agent, and authorized him to “ try and collect her money, and use his own judgment as to what proceeding to take;” in fact, turned the whole matter over to him, with full power to act.

Being on the ground, knowing the “full facts,” and vested with complete authority to represent her and act for her in the matter, he elected to proceed against Campbell, not by civil suit, but by criminal prosecution instituted in the public name, presumably for the public good and for the suppression of crime, seeking by criminal process to force the payment of a private debt in contravention of public policy. He made no demand on defendant, and gave it no notice of the forgery. His acts, if known to defendant, were an intimation that the grievance was Campbell’s failure to pay her the money after he had obtained it, not in the manner of obtaining it. He at that time knew Campbell had drawn the money from the bank a year previous, on a draft payable to her order, not indorsed by her. He remained silent, and permitted defendant to part with the property of Campbell, by which both parties could have been protected, in ignorance of what he knew, which, if communicated, would have avoided the loss.. It is the common voice of our authorities that, notice of a forgery must be given and demand made without unreasonable delay after knowledge^ and that this was not done by Smith is patent from the conceded facts, “He had opportunity to speak, it was his duty to speak, and he failed to speak.”

It is claimed his agency was special, only for collection of the claim, and such agency did not require him to give the bank notice; nor did his knowledge of the forgery, if he had any, bind the plaintiff. .. The scope of his agency was to act for and represent her in collecting the money, to collect which this suit is brought. She left it to him to “try and collect it,” and use his own judgment as to what proceeding to take. With that authority, his efforts were her efforts, his judgment was her judgment, and his knowledge was her knowledge, in all matters involving that transaction. .

“ Because of the identity of principal and agent in dealings by the agent within the scope of his authority, it is a well settled general rule that,notice of an agent in the course of his employment, and in relation to a matter within the scope of his actual or apparent authority, is notice to his principal, whether the agent communicates his knowledge to the principal or not.” 1 Clarke & Skyles on The Law of Agency, § 474.

See, also, Mechem on Agency, §§ 718, 719.

In United States v. National Exchange Bank (C. C.), 45 Fed. 163, it was held that the neglect of the drawer of a check, for more than a month after discovery that it had been paid upon a forged indorsement, to notify a bank that it will hold it responsible therefor, releases the bank from liability, In the case at bar, defendant was not notified that it would be held responsible for over a year after the agent had discovered the full facts, and the principal, with knowledge of facts sufficient to put a person on inquiry, had commissioned the agent with full discretionary power.

In United States v. National Exchange Bank, supra, it was said:

" So, in respect to two persons equally innocent, where one is bound to know and act upon his knowledge, and the other has no means of knowledge, there seems to be no reason for burdening the latter with loss in exoneration of the former; or, if both are equally innocent and equally ignorant, the loss should remain where the chance of business has placed it. Gloucester Bank v. Salem Bank, 17 Mass. 33; Bank of U. S. v. Bank of Georgia, 10 Wheat,. [U. S.] 333; Price v. Neal, 3 Burrows (U. S.), 1355.”

We are agreed that an equitable estoppel arises in this case by reason of plaintiff’s failure to give notice of the fraud to defendant within a reasonable time after it was known to her, or to her authorized agent; and therefore the loss must remain where the chance of business has placed it.

The judgment is affirmed.

Moore, C. J., and McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Ostrander, J.

text:
    FOLKMIRE v. MICHIGAN UNITED RAILWAYS CO.
    Negligence — Contributory Negligence — Appeal and Error— Law of the Case.
    Judgment for plaintiff having been reversed for contributory negligence of decedent in driving across defendant’s electric railway tracks without seeing an approaching car, the evidence on the second trial was not substantially different by reason of testimony of a new and additional witness that at the last point of safety decedent had an ‘ ‘ unobstructed view ” for only 217 feet in the direction of the approaching car, which other undisputed testimony showed could have been seen about 400 feet away.

      Error to Calhoun; North, J.
    Submitted April 2,1912.
    (Docket No. 12.)
    Decided May 31, 1912.
    Case by John E. Eolkmire, administrator of the estate of Minnie W. Folkmire, deceased, against the Michigan United Railways Company for the unlawful killing of plaintiff’s intestate. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      D. C. Salisbury and Jesse M. Hatch, for appellant.

      Sanford W. Ladd, for appellee.
   Ostrander, J.

In this cause a judgment for the plaintiff was reversed and a new trial granted. Folkmire v. Railways Co., 157 Mich. 159 (121 N. W. 811, 17 Am. & Eng. Ann. Cas. 979). An application was made to the court for a rehearing and was denied. Upon the record then presented this court said:

“ The case falls so plainly within the rule laid down in several of our own cases that we are compelled to say that the court erred in not directing a verdict for the defendant upon the ground of contributory negligence.”

The cause has been again tried. Upon the last trial the testimony taken upon the former trial was read into the record, with the objections and exceptions then made to such testimony. In addition, two witnesses were produced on the part of the plaintiff who were not sworn upon the first trial. The court was of opinion, and so stated to the jury, that “we have identically the same record that we had upon the former trial,” and directed a verdict for the defendant. Plaintiff moved for a new trial, and that was refused.

We, find nothing in the additional testimony produced on the part of the plaintiff which demands mention, except the testimony of the witness Chase, of whom the court asked the question:

“When the horses’ heads were five feet from the north side of the track, how far would the occupant of the buggy be able to see west down the track, to see an approaching car ? ”

And the witness answered :

“ To get an unobstructed view of the car would be 217 feet.”

In the brief for appellant this testimony is strongly relied upon, and it is said:

“The previous record had no positive testimony that deceased could not see an approaching car at a point from 400 to 500 feet to the west, if she had looked at her last point of safety. This record contains positive testimony that deceased would only have a view 217 feet toward the west from her last point of safety; that point being with the horse’s head five feet from the north rail. Then a new question arises: Could plaintiff see far enough west to warn her and give her time to avoid an approaching car ? The present record has also gone further than the previous record and more fully explains and shows how the view of a person, coming from the east on the highway, is obstructed and making it impossible to see an approaching car until it is within 217 feet of the crossing.”

The same photographs were used upon the second as upon the first trial, and the same map, drawn to a scale, showing the highway, the defendant’s right of way, the fences, and the curve of the track. The same testimony with respect to measurements and distances appears in this record as appeared in the former record, and it was mentioned and commented upon in the opinion which was delivered by this court. There is nothing in the present record to dispute or to change or modify the effect of that testimony, excepting the testimony which has been noticed; that is to say, the testimony that when the head of the horse was within five feet of the north rail of the track, the driver sitting in the vehicle would have an unobstructed view of 217 feet. We think it is clear, and are confirmed in this conclusion by the opinion of the trial judge, that the witness used the term “unobstructed view ” advisedly, and that this testimony has no tendency to disprove or modify or qualify the other, and otherwise’ undisputed, testimony that the driver could have, and if she had looked would have, noticed that a car was approaching when it was at a point very much more than. 217 feet away from the highway crossing.

The judgment is affirmed.

Moore, C. J., and Steere, McAlvay, Brooke, Blair, and Stone, JJ., concurred. Bird, J., did not sit..


text:
    STANTON v. TOWNSHIP OF WEBSTER.
    1. Highways and Streets — Municipal Corporations —Ice and Snow — Negligent Construction op Highway.
    While a township is not liable for injuries caused by natural accumulations of ice and snow upon a reasonably safe highway, it may be liable if it constructs a public road in such a manner as to be unsafe whenever it is covered with a natural accumulation of ice and snow.

    2. Same — Negligence —Questions op Law and Fact — Directing Verdict.
    Where plaintiff claimed that the highway in defendant township was constructed with so much slope or curve to the surface and was so narrow along an approach to a culvert that it caused the rear of his sleigh to slide down one side, which, frightening the horses, made them run until the vehicle overturned and plaintiff received injuries, the questions of negligence, contributory negligence, and proximate cause'were for the jury.
    3. Same — Evidence—Conclusions—Jury.
    A question whether a railing on either side of the embankment would have protected plaintiff was properly excluded, since it was a matter for the jury to determine.

      4. Same.
    Nor was it erroneous to exclude an inquiry of plaintiff’s attorney why witness stated she was afraid of the road, the condition of which, by the ruling of the court, plaintiff was permitted to show fully.
    Error to Washtenaw; Kinne, J.
    Submitted April 5, 1912.
    (Docket No. 57.)
    Decided May 31, 1912.
    Case by Harriet Stanton against the township of Webster, for personal injuries. A judgment for defendant upon a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Arthur Brown and Andrew Sawyer, for appellant.

      M. J. Cavanaugh and George J. Burke, for appellee.
    One of the highways in defendant township ran through a ravine or low place, and in this ravine the traveled part of the highway — the roadway — was constructed on an embankment, through which, in the fall of the year 1909, a culvert was laid; the approaches thereto being newly graded. It is alleged in the declaration that the embankment, where it approached the culvert from the west—
    “Wasbuilt upon a curve and in cone shape,and so narrow upon the top of said embankment that in the nighttime teams and conveyances were liable to and naturally would slue, slide sidewise, sweep over, and fall down said embankment. That said township negligently and carelessly failed and neglected to build or construct any railing, or any other protection, along the side of said traveled track on top of said embankment. * * * That said defendant also carelessly and negligently failed and neglected to keep the said narrow and cone-shaped embankment^ where it approached said culvert from the west, free from ice and snow and snow drifts, and carelessly and negligently permitted large snowdrifts and fields of ice to form, be, and remain upon and across said traveled track of said highway, * * * and negligently and carelessly drove a large stake into the ground at or near the foot of said embankment on the south side thereof, and carelessly and negligently permitted said stake to remain standing and being at or near the bottom of said embankment. * * * ”
    The road runs east and west; but, as it approaches the culvert from the west, it bends or curves somewhat to the south and then back to the north again.
    When the plaintiff rested, the court, upon motion of defendant, directed a verdict for the defendant. The grounds of the motion were:
    (1) Because the undisputed evidence disclosed that the proximate cause of injury was the ice in the road.
    (2) Because it appeared conclusively from the evidence that the driver of the sleigh was within two or three rods from the culvert where the accident occurred when the hind bobs, or back part of the sleigh, commenced to slip or slue on the ice, towards the south, and the horses began to kick, and ran in an easterly direction, until the hind bob struck the culvert or end of the culvert, and thus caused the sleigh to tip over and injure the plaintiff.
    (3) Because it appeared that the ice on the highway was a natural accumulation and a result of the elements; and therefore the township was not liable.
    (4) Because the plaintiff’s driver was guilty of contributory negligence, in that he was perfectly familiar with the icy condition of the road.
    (5) Because the condition of the highway was not the proximate cause of the injury; but same was due to the running of the team against the end of the culvert.
    (6) Because the testimony of the plaintiff failed to establish any negligence on the part of the defendant.
    (7) Because the plaintiff failed to show freedom from negligence on the part of the driver of the sleigh.
    The court gave no reason for the ruling.
    Plaintiff’s theory is indicated in the following requests to charge submitted to the trial court:

      “First. It is the claim of the plaintiff that on the evening of February 17, 1910, as she, with several friends, was riding in a sleigh drawn by a pair of horses, driven by one Chester Johnson, along what is known as the Scio road in the township of Webster, in attempting to pass over the west approach to a culvert in said highway, that said sleigh, on account, of the narrowness of the road and the crowning or conelike shape of its top or surface, when about three (3) rods west of said culvert, commenced to slide to the south, the back end of the sleigh sliding clear off of the embankment, the tongue of the sleigh striking against the legs of one of the horses, and the tugs of the harness striking against the legs of the other horse, frightening the team and causing them to run with the sleigh turned" in a slanting position almost at right angles to the road, the back end being down the side of the approach or embankment, so that the rear bob of the sleigh struck the south end of the culvert that extended several inches above the surface of the ground; that this caused the sleigh to turn over the rear bob and the box of the sleigh going into the ditch at the south end of the culvert, throwing plaintiff and the other occupants of the sleigh into said ditch.
    “ Second. It is the further claim of the plaintiff that the west embankment or approach to said culvert is about five (5) feet high at said culvert, and that it gradually grows less in height for about six (6) or eight (8) rods, where it is level with the ground on each side. That the immediate and proximate cause of the injury resulted from, first, the crowning or narrow top or surface of the artificial embankment, and, second, the want of any barrier along the sides of said embankment or approach to said culvert to prevent vehicles from going over in the nighttime. * * *
    “Fourth,. If you find from the evidence in this case that Mr. Johnson had his team of horses in control, and that he was driving said horses at a reasonable rate of speed, and as an ordinarily prudent man would do, and that said horses were at or near the center of said highway, as was reasonable to expect when driving along and over said highway and approach to said culvert in the nighttime, and that when he was about three (3) rods west of said culvert the rear bob of his sleigh commenced to slide to the south,' causing the tongue of said sleigh to strike against the horses, thus frightening them, and that said rear bob continued to slide around to the south off from said embankment and until it struck the end of said culvert, causing said sleigh to turn over, throwing plaintiff into ditch, and if you further find from the evidence that said rear bob of said sleigh was caused to slide to the south on account of the narrowness of said roadbed and its crowning or cone-shaped top or surface, and the accumulation of snow and ice thereon, which narrowness and conelike or crowning shape of the highway concurred with the accumulation of snow and ice thereon to bring about the sliding of said sleigh off from said embankment, then and in that case the defendant is hable in this action, and your verdict should be for the plaintiff. * _* *

      “ Sixth. If the embankment was so narrow that, on account of its crowning top or surface, teams could not pass each other on it without being in danger of having their vehicles slip or slide off from the embankment, when said embankment and road was covered with a coat of snow and ice, then said road over said embankment was not a legal and lawful road, and said defendant should have either widened it, or constructed railings or barriers along the sides thereof to prevent vehicles from being overturned; and if, on the night in question, Mr. Johnson was in the exercise of due care on his part, and if he was driving his team in the center of the road, or as near to the center of the road as an ordinarily prudent man would and could drive in the nighttime and under similar circumstances, and if the sliding of the sleigh off from the embankment was due to the concurrence of the narrowness of the roadbed and its crowning or conelike top or surface, and the fact that said embankment was covered with snow and ice, then the defendant is liable in this action, and your verdict should be for the plaintiff for such damages as the evidence shows that she has sustained.”
    Seventeen errors are assigned, eight of which are based upon- the refusal of the court to instruct the jury as requested by plaintiff and upon the instruction directing a verdict. The others relate to the rulings of the court in refusing to receive and in striking out certain testimony. The principal, and, for the purposes of this hearing, the controlling, question is whether the court should have submitted the case to the jury.

       The authorities on the question of the liability of townships for defects in highways are collated in an exhaustive note in 13 L. R. A. (N. S.) 1219.

   Ostrander, J.

{after stating the facts). It does not appear from the testimony that the embankment upon which the road was laid was formed from earth drawn from a distance. It seems to have been made by turning, or turnpiking, the soil in the highway in such manner that, beginning a few rods from the highway at the level of the surrounding land, the road was carried to the height of, and over, the culvert, and approaching which the embankment was, perhaps, six feet higher than the level of the land on either side. It does appear that the top of the embankment was not wide enough to permit two teams to pass; and some witness, or witnesses, testify that outside the point at which wheels of a wagon would run on either side there was less than two feet of space upon the top of the embankment. The testimony also tends to prove that the embankment was rounded; the highest point being in the center of the traveled way. We infer from the testimony that if there had not been snow and ice upon the road, rendering it slippery, a safe passage over it could have been made with a sleigh or a wagon, without any considerable, if any, risk, by a prudent driver. But in this latitude there is more or less snow and ice during the winter months; and roads, as well as other structures, should be, and usually are, constructed with some reference to this fact. A roadway, otherwise reasonably safe for public travel, is not usually made unsafe, within the méaning of the statute invoked in this case, because of natural accumulations of ice or snow thereon. It is obvious, however, that a road may be constructed in such manner as to become unsafe for ordinary travel whenever its surface becomes slippery, and especially whenever it is covered with snow or with ice. In other words, it may be so constructed that it is safe only when it is free from snow or ice, and is unsafe whenever it is covered with a natural accumulation of either. We find it impossible to determine, as matter of law, that the roadway in question, as constructed and existing, was reasonably safe for public travel, that the driver of the horses was negligent, or that the proximate cause of the injury was the icy, slippery condition of the road. We are of opinion that these questions should have been submitted to the jury. Malloy v. Township of Walker, 77 Mich. 448 (43 N. W. 1012, 6 L. R. A. 695); Shaw v. Township of Saline, 113 Mich. 342 (71 N. W. 642); Gage v. Railroad Co., 105 Mich. 335 (63 N. W. 318); Hannon v. City of Gladstone, 136 Mich. 621 (99 N. W. 790).

Other assignments of error have been examined. The second appears to be based upon a misapprehension of the record. The question stated does not appear on the page of the record to which we are referred. The brief does not point out where the exception upon which the third assignment is based may be found.

The driver was asked whether a railing on either side of the embankment would have been any protection to him, and the answer was excluded upon the objection that opinion evidence was called for. The question is not precise. A railing would probably have made the road more safe for travel; whether a properly constructed railing would have saved the plaintiff from the particular injury depended upon how the jury might view certain of the testimony. We do not find reversible error in the ruling.

The fifth assignment is based upon a ruling excluding an answer to a leading question — a proper ruling, and one which this court should not be asked to review. The seventh assignment is equally frivolous.

The eighth assignment is based upon a ruling refusing an answer to a question asked of one of the women who was in the sleigh at the time. The question was:

“ You stated that you watched the road, because you were afraid of it. Why were you afraid of it ? ”

It is said in the brief that an answer to the question would have explained the condition of the road as the witness viewed it. The court advised counsel that they were permitted to discover all that the witness knew about the condition of the road; and the witness stated that it was narrow, very narrow. We do not see that plaintiff was prejudiced by the ruling. A witness, asked to describe the condition of the road, said:

“It was turnpiked up, and was what I call unsafe at that time, no railings at the side.”

The court, on motion, struck out the statement that it was unsafe. Error is assigned upon this ruling; and in the brief it is said in support thereof:

“ That part of the answer relating to the turnpike condition of the road and to the fact that there were no railings along the sides was certainly competent.”

It is clear the court did not rule that it was incompetent, nor strike it out. The purpose of presenting the ruling in this court is not evident.

For the error pointed out, the judgment is reversed, and a new trial granted.

Moore, C. J., and Steere, McAlvay, Brooke, Blair, and Stone, JJ., concurred. Bird, J., did not sit.