text:
    VEREEKE v. CITY OF GRAND RAPIDS.
    Master and Servant — Workmen’s Compensation — Industrial Accident Board — Stipulation — Contracts — Amount of Compensation — Waiver.
    Where claimant and contestant agreed and stipulated, in order to avoid expense, that the Industrial Accident Board should consider a claim for compensation as a full hoard as if the questions had been arbitrated and decision reached, also stipulating that the deceased earned $19.50 weekly, of which he contributed $12 to claimant, and where evidence was introduced at the hearing before the board by the claimant, without relying upon the alleged stipulation, and the board made an order granting $6 a week for three hundred weeks, the order of the board will not be reversed on the theory that it was bound by the amounts stated in the stipulation. Act No. 10, Extra Session 1912 (2 How. Stat. [2d Ed.] § 3939 et seq.).

    Certiorari to the Industrial Accident Board.
    Submitted January 14, 1915.
    (Docket No. 95.)
    Decided March 17, 1915.
    Kate Vereeke presented her claim for compensation for the accidental death of David Vereeke while he was employed by the city of Grand Rapids. An order awarding compensation is reviewed by claimant upon certiorari.
    Affirmed.

      Ellis & Ellis, for claimant.

      R. M. Ferguson, for defendant.
   Moore, J.

This is certiorari to the Industrial Accident Board, brought by Kate Vereeke as claimant against the city of Grand Rapids, for compensation for the death of her son, David Vereeke, who was killed while in the discharge of his duties as an employee of the city of Grand Rapids. At the inception of this cause, the parties, desiring to avoid the expense and delay of arbitration, entered into a stipulation whereby they waived the action of arbitrators. The stipulation contained the following:

“That the arbitration of the matters in difference between the parties hereto, provided for in said Workmen’s Compensation Law, be and the same is hereby waived, and the decision of said matters is hereby submitted to the Industrial Accident Board, sitting as a full board, the same as if this cause had proceeded to arbitration under said law and the decision on arbitration therein had been appealed from and said cause thereby brought before the full board on appeal from such decision. It is further stipulated and agreed that the decision of said board in this cause pursuant to this stipulation, and based upon the facts set forth herein, shall be valid and binding, and shall have the same validity, force, and effect as if said cause had proceeded in arbitration in due course, and was brought before the full board on appeal duly taken from the decision of an arbitration committee therein.”

The stipulation showed the amount earned was $19.50 a week of which he contributed to his mother $12 a week.

This stipulation was signed on the 5th day of March, 1914. After the signing of it and before action was taken by the Industrial Accident Board, the father of the deceased, whom the mother had divorced, attempted to prevent the mother from obtaining any benefit under the compensation law, and filed with the Industrial Accident Board objections to her claim, insisting she was not dependent upon her son. The return of the Accident Board contains the following :

“That a petition was filed in said cause by Cornelius Vereeke, the former husband of the applicant, Kate Vereeke, claiming for reasons set forth in said petition that the applicant, Kate Vereeke, was not entitled to receive or recover any compensation in said cause; that said cause came on to be heard before the board on due notice to all of the parties, said hearing being held at the office of the Industrial Accident Board on the 22d day of April, 1914, and that said Cornelius Vereeke did not appear at said hearing and did not offer _ or file any proofs tending to support his said petition; that on said hearing in said cause, said applicant, Kate Vereeke, was sworn as a witness in her behalf.”

After counsel for Mrs. Vereeke concluded his examination of her the following occurred:

“Mr. Reaves: Q. What other income did you have, Mrs. Vereeke, besides the $12 Dave gave you?

“A. John, my little boy, just commenced to work about a year ago next June, he ain’t very strong, so he just got little odds and ends working in five-cent shows and like that. He went to school and worked after school in the Vaudette; he was usher there.

“Mr. Reaves: Q. That was all the income you had?

“A. John wasn’t getting very much in the Vaudette. I got a little from him, and I had an old man there; I got some from him, too.

“Q. The old man boarded there?

“A. Yes, sir.

“Q. How much did you get from him?

“A. Four dollars.

“Q. How long was he boarding there?

“A. A couple of years.

“Mr. Allen: He was your father?

“A. - Yes, sir; he was my pa.”

No further explanation was made of her relations with her father or her son John.

The Accident Board made an order allowing Mrs. Vereeke $6 a week for 300 weeks, and a present payment of $124. Mrs. Vereeke seeks a review of this order claiming:

“First. Assuming that the board had the right to go outside of the stipulated facts, there was nothing in the evidence that could justify the decision of the board.

“Second. The parties having agreed upon the facts, the statute delegated no authority to the board to disregard the agreement.

“Third. The board having authorized a stipulation, and the parties having stipulated, the agreement should be treated the same as a case made or a stipulation of facts by the parties in the case.”

A great many authorities are cited to show that the Industrial Accident Board was bound by the stipulation. We think it clear, however, that the purpose of the stipulation was to avoid the necessity of a hearing before arbitrators, and to get the direct action of the Industrial Accident Board.

Section 5, pt. 3, of Act No. 10, Public Acts, Extra Session 1912 (2 How. Stat. [2d Ed.] §3973), reads:

“If the employer, or the insurance company carrying such risk, or commissioner of insurance, as the case may be, and the injured employee reach an agreement in regard to compensation under this act,_ a memorandum of such agreement shall be filed with the Industrial Accident Board, and, if approved by it, shall be deemed final and binding upon the parties thereto. Such agreements shall be approved by said board only when the terms conform to the provisions of this act.”

Section 11 provides what shall be done if a claim for review is filed. It is apparent from the record that when the divorced husband denied the right of the claimant to an order for support growing out of the death of her son, claimant and her counsel proceeded upon the theory that a hearing before the Industrial Accident Board should be had. It was not then urged that the parties were bound by the stipulation, but without objection the hearing was entered upon. It is not necessary to intimate what the situation would have been if the claimant had relied upon the stipulation, nor what the effect would have been if she had explained more in detail her relations with her father and her son John. She did not do either of these things.

The order of the Industrial Board is affirmed.

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


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    SCHUETZ v. VAN ORMAN.
    1. Master and Servant — Infants—Labor Law — Employment at Dangerous Occupation.
    Where plaintiff was an infant under thirteen years of age employed in a laundry in running a mangle, and the evidence showed that her hand was caught under the rolls and severely burned, necessitating its amputation, plaintiff's testimony tending to show that she received no instruction as to the dangers of doing the work or the proper methods of avoiding them, did not warrant defendants’ claim that there was a variance between the declaration and proofs which tended to show lack of instructions and plaintiff’s want of knowledge of dangers incident to her work, supported by evidence tending to show that other employees were also uninformed as to the proper methods of operating their machines; the court did not err in overruling the objection based upon the ground of a variance from the declaration which counted upon the violation of Act No. 220, Pub. Acts 1911.
    2. Same — Contributory Negligence.
    The charge of the court considered and held, to submit to the jury in a sufficient manner the question of plaintiff’s alleged contributory negligence.
    3. Same — Special Questions — Trial—Jury.
    There was no reversible error committed at the trial of such action in the refusal of the court to submit to the jury a special question whether plaintiff was engaged in attempting to straighten out a wrinkle in the cloth which she was running through the machine at the time of her injury: the question was not decisive of the issues.
    4. "Damages — Excessive Verdict — New Trial.
    Five thousand five hundred dollars for loss of plaintiff’s right hand was not so excessive as to require the court to set aside the verdict and judgment.
    Error to Jackson; Parkinson, J.
    Submitted January 26, 1915.
    (Docket No. 84.)
    Decided March 17, 1915.
    Case by Emilie A. Schuetz, by next friend, against Fred Van Orman and another for personal injuries. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Price & Whiting and A. O. Reece, for appellants.

      Thomas M. Poynton, for appellee.
   Moore, J.

The plaintiff, then 12 years and 3 months old, was employed to work in the laundry department of a hotel conducted by the defendants. While so employed, she was injured, for which injuries this suit was brought. The case was tried before a jury. From a judgment in favor of the plaintiff for $5,500, the case is brought here by writ of error.

The declaration was a very long one, containing two counts. In one of them are the following averments:

“And plaintiff avers that heretofore, to wit, on the 22d day of April, A. D, 1912, the said Emilie Schuetz, an infant, was employed by the said defendants, by and through their certain servants, to work in said laundry plant in the said hotel. * * *

“Plaintiff avers that Public Act No. 285, passed by the legislature of the State of Michigan in the year A. D. 1909, as amended by Public Act No. 220, passed by the legislature of the State of Michigan at its regular session of 1911, was, at the time of the committing of the grievances hereinafter mentioned, in full force and effect, and in accordance with the provisions thereof it thereupon became and was the duty of said defendants, .as proprietors of said hotel and said laundry plant in said hotel and by and through their said servants in charge thereof at the time and place aforesaid, to exercise such reasonable care and caution in the employment of its servants in and about the said laundry in said hotel as required by the provisions of said statute; and it thereupon became and was the duty of said defendants, by and through their said servants in charge of said hotel and laundry at the time and place aforesaid, to comply with the mandatory provisions of said statute respecting the precautionary measures to be taken upon the employment of minors under the age of 16 years, and to obey the inhibition of said statute, which prohibits the employment of minors under the age of 14 years. Yet the defendants, not regarding their duty in that behalf, by and through their said servants and agents in charge of said hotel and laundry, employed said Emilie Schuetz, a minor under the age of 14 years, and on the 22d day of April, 1912, placed her at work in said laundry in the said hotel about the said laundry machinery, and at an employment which was dangerous to life and limb for a child of her tender age and immature judgment; and in the employment of said child the said defendants, by and through their certain servants in that behalf, neglected and failed to exercise reasonable care and caution to procure. * * * And in this regard the said defendants, carelessly and negligently, and without regard to the inhibition of said statute which prohibits the employment of minors under the age of 14 years, employed said Emilie Schuetz, a minor 12 years and 3 months of age, without taking the precautionary means provided by said statute with reference to procuring of a permit, and registering birthplace, age, etc., of said child, as by said statute required.

“Plaintiff avers that, by and through the negligence and carelessness of the defendant as aforesaid, the said Emilie Schuetz was employed by the said defendants by and through their certain servant or agent in that behalf on the 22d day of April, A. D. 1912, and was placed at work in said laundry about the said laundry machinery, as hereinafter set forth, and carelessly and negligently suffered and permitted the said child to continue in said employment until, to wit, the 2d day of May, A. D. 1912, when she sustained the damages hereinafter mentioned; and plaintiff avers that the negligence and carelessness of the defendants, as aforesaid, contributed to and caused the injuries for which plaintiff seeks, to recover damages herein.

“Plaintiff avers that .while she, the said. Emilie Schuetz, was in the performance of her duties as a servant of the defendants, on, to wit, the 2d day of May, A. D. 1912, at, to wit, in the said laundry plant in said Otsego Hotel, in the county and State aforesaid, and while the said laundry machine, to wit, said mangle, was in operation with its said heated cylinder and auxiliary rollers and automatic feeding apron in rapid motion, and while this plaintiff, together with a certain other servant of the defendants, was engaged in the work of feeding said mangle, that is to say, in inserting a certain article, to wit, a cotton sheet, into the said machine and between said hot cylinder and said auxiliary rollers upon the said automatic feeding apron, and while said Emilie Schuetz, in the performance of her duties, was getting said cotton sheet into the machine, and using her hands for the purpose of straightening out a crease in said sheet, and while doing so her right hand was near one of said auxiliary rollers and said automatic feeding apron then in rapid .motion, and her right hand then^ and there came in contact with said roller and feeding apron, and was drawn underneath the said roller on top of said feeding apron and between said roller and said hot cylinder, with great force and violence, and plaintiff’s right hand became wedged there while said machine propelled by electric power as aforesaid continued in motion, and plaintiff’s said hand remained there until the same was released by certain other servants of the defendants, who came in response to her cries_ for help, and thereby plaintiff, Emilie Schuetz, sustained the injuries for which she seeks to recover damages herein.

“Plaintiff avers that during the time she was in the employ of said defendants, as aforesaid, she was not instructed by said defendants nor any other persons as to the dangers to life and limb attending the operation of said machine, to wit, said mangle; nor was she, the plaintiff, at any time or place during her lifetime, instructed as to the dangers incident to the operation of the said machine; and she, the plaintiff, being a child of tender years and immature judgment, did not understand and comprehend the perils and dangers incident to her said employment and the danger of having her hand drawn into the said machine in the event of her hand coming in contact with one of the said auxiliary rollers to said heated cylinder or with said automatic feeding apron while the said rollers, automatic feeding apron, and hot cylinder were then in rapid motion by means of electric motive power as aforesaid.”

There was much more of this count which we find it unnecessary to insert here. The defendants pleaded the general issue. The plaintiff was sworn. Her'testimony in part is:

“Was 14 years old the 20th of January this year. * * * Lost my hand two years ago in May. I was injured at the Otsego Hotel. Worked there nine and a half days. When I went to get employment, I talked with Mr. Lang. * * * Monday morning I went to the Otsego Hotel. I was about an hour late. * * * When I went to the hotel, Mr. Lang, he wasn’t in there, and there was a man named Charlie; I don’t know who he is. He says: ‘You can step in here at the storeroom. You can step in here and wait for Mr. Lang.’ And I waited. I can’t say how long I waited, probably about 10 or 12 minutes, and Mr. Lang came in, and I said I was the girl that was going to come with Lena, and he said, ‘All right,’ and he took me to the laundry, and he says, ‘Pete, here is a girl for you,’ and Pete says, ‘All right,’ so Pete put me in with Blanche.

“Q. Was that all that was said between you and Mr. Lang that morning?

“A. It certainly was.

“Q. Did he ask you any other questions at all?

“A. No, sir; he didn’t.

“Q. Did Pete ask you any questions?

“A. No, sir; he didn’t.

“Q. What did Pete say to you then?

“A. He didn’t say anything to me. I had my coat and hat on. He told me to hang them up on a nail there. Then he said, ‘You can go and help the girls,’

“The Court: Wasn’t there anything said about how much pay you would have?

“A. No, sir. * * * Pete is the boss of the laundry. He is the man who has been here in the courtroom they call Voorheis. I don’t know his last name. They always called him Pete. * * *

“Q. Did Pete give you any instructions about the work there that morning?

“A. No, sir.

“Q. Had you ever worked any place before?

“A. No, sir.

“Q. Did you have any other talk with Mr. Lang at any time while you were there?

“A. Mr. Lang came one day and asked me my name, and that was all he ever asked me. I gave him my name as Emilie Smith, because so many laugh at my name. He didn’t ask me anything about my age. Those were the only conversations I ever had with Mr. Lang. Pete never talked to me after that. I didn’t know where they were going to put me working when I went in there. Never worked about machinery before that time. Had no knowledge of laundry machinery when I went to work thei"e.

“Q. Did any person in that laundry explain to you the working of the machinery in the laundry there?

“A. No, sir. * * * ”

Mr. Lang’s version of the hiring is as follows:

“I first saw the plaintiff on Monday morning, the 21st or 22d of April, between 10 and 11 o’clock. She •was standing by the mangle at that time. I called her to one side and talked with her. * * *

“Q. Tell the jury what talk you had with this girl.

“A. I called her off one side, and asked her what her name was, and she told me her name was Emily Smith. I says, ‘Where have you worked before?’ and she told me she worked at some box factory. I says, ‘How old are you?’ and she told me she was 17 and would soon be 18, and that was all. I took the slip and left. That was the last conversation I had with her until she got hurt.

“Q. How did she look, how was she dressed that morning ?

“A. Her hair was done up on top of her head in kind of a wad up here, and she had a long skirt on, and she had a waist — the waist had a string tied around the middle of it. She looked 17 or better— 17 or older. I didn’t question her after that.”

Plaintiff testified that she was not instructed as to the dangers incident to her employment. A photograph of the mangle was in evidence. It shows a large heavy machine with a central roll or cylinder 2 feet in diameter and 8% feet long, with a number of rolls of the same length, but smaller, revolving with the central roll; the faces of the rolls coming near to each other. When in operation, the large cylinder was steam-heated. The first roll at the front was about 3y% inches in diameter and is called a guard roll beyond which the hand of the operator is not expected to be put. The sheets, tablecloths, and other articles to be ironed were smoothed out and engaged with an endless cloth apron which carried them forward between the rolls, bringing the article in contact with the steam-heated roll, and when it issued on the rear of the machine it was completely ironed.

The evidence indicates that when the mangle was started it was allowed to run continuously until the work for the day was done, and that plaintiff, though she was working the tenth day when she was hurt, did not know how to stop or start the machine. Some of the other employees were also ignorant of how this was done. Plaintiff’s version of how the accident happened is as follows:

“Q. On the day you were hurt, Emilie, what were you doing? * * *

“A. I was putting a sheet through, and there was a wrinkle, and I was trying to straighten it out, and it caught my hand. * * *

“Q. Point out to the jury on the picture just what part of the mangle, where it was your hand got caught in the rolls?

“A. (Indicating.) Right here between the wooden roller and the other roller.

“Q. I want you to tell the jury just what happened when your hand got caught?

“A. I don’t remember. I fainted away.

“Q. What were you doing just immediately before your hand got caught?

“A. I was straightening out a wrinkle.

“Q. Which way were you facing?

“A. Facing the mangle.

“Q. Were you standing up or sitting down?

“A. Standing up.

“Q. State whether or not you were laughing or looking out of the window, or anything of that kind, at that time?

“A. No, sir; I was not.

“Q. When did you come to your senses after you fainted ?

“A. At the hospital. * * * ”

She also testified that when she was trying to straighten out the wrinkle in the cloth she was doing as she had been shown to do. She denied that when she sought employment she was dressed in long clothes, or that she stated she was 17 or 18 years old. The record shows that when her hand passed between the rolls, until it came in contact with the heated roll, it was held there until a wrench could be procured and several nuts removed from bolts, and the rolls separated so the arm and hand could be removed. The hand was afterwards amputated above the wrist.

The plaintiff was corroborated by another witness as to how the accident happened, and as to the instruction to straighten the wrinkle in the way she was attempting to do it.

It is claimed by counsel that plaintiff was properly instructed by Blanche Degrovich. It is true this witness, who was 19 years old, showed her how to smooth out the articles and pass them through the machine; but the record fails to show any instruction as to the dangers incident to the employment. The witness testified through an interpreter. She testified in part:

“Q. The only one who showed Emilie anything about that machine or about that work was what you showed her?

“A. She says she is the only one.

“Q. Did you ever explain to Emilie anything about that mangle?

“A. She says no, she didn’t know anything about that herself. * * *

“Q. Will you please state just what you showed Emilie?

“The Court: Tell her to tell us what she showed Emilie and all she told her about how to do her work on the mangle.

“A. She says she show Emilie just the same as she had to do, folding napkins, sheets, and everything, and put them— •

“Q. (Interrupting.) Was that all she did?

“A. Yes, that’s all.

“The Court: Did you tell her not to get her hand into the machine?

“A. She says no.

“Q. Why didn’t you?

“A. She says she didn’t know herself.

“Mr. Price: Didn’t know herself?

A. She says she showed her the way she did it.

“Q. Ask her how she did it. * * *

“Q. You-never knew yourself there was any danger of getting your hand caught in the way Emilie got her hand in there, did you?

“A. She says she didn’t know that.

“Q. You never told Emilie not to put her hand over that wooden roller, did you?

“A. She says no.

“Q. Did you know yourself what that wooden roller was for?

“A. She says no.

“Q. When a sheet or tablecloth or other article would get wrinkled as it passed under the big roller, what would you do?

“A. She says Pete tell her to straighten out some way. She says if they won’t Pete would give them hell.

“Q. If they wouldn’t straighten out the wrinkles, Pete would give them hell; is that what she says ?

“A. She says yes.

“Q. Just tell us what you mean by that. What do you mean by the words, ‘Pete would give them hell?’ Explain what he would say.

“A. She says sometimes she can’t help herself, can’t help it the sheet wrinkling up in the rollers, and that’s the reason Pete would give them hell.

“The Court: She was asked to tell what it was

Pete said that she called giving them hell.

“A. She says he told them to pay attention to it. They have to do it right.

“Q. Was that all that Pete would say?

“A. That’s all.

“Q. As I understand it you were the only person who showed Emilie anything about her work there?

“A. She says yes.

“Q. Did any one else in the laundry other than yourself, as far as you know, ever show Emilie anything about her work?

“A. She says ho.

“Q. How do you know that? ■

“A. She says she knows because she was working with her right along.

“Q. Did Pete, the foreman, ever give Emilie any instructions in your presence while you were there?

“A. She says no, never looked into it. She says Pete know when some of those girls know the work, and he didn’t care.

“Q. In other words, Pete left the instruction part to you and the girls there?

“A. She says yes. She says because he saw they knew that and he just come around there and look at her and go away.

“Q. Did you ever explain to Emilie there was a heated cylinder in back of those rolls?

“A. She says she didn’t know herself.

“Q. Did you know if you got your hand in under that first padded roller there it might be crushed and burned ? •

“A. She says no, she didn’t know that.”

We have quoted just enough of the testimony to indicate the claims of the parties. There is a very long record. The cross-examination of the plaintiff alone occupies upwards of 50 pages of the printed record.

The record shows the following:

_ “The defendants submit the following special question to the jury to be answered by ‘Yes,’ or ‘No’:

“Q. Was the plaintiff, Emilie Schuetz, trying to straighten out a wrinkle in the cloth on the feeding apron with her fingers, with the palm of the hand down, when her hand got caught in the mangle?

. “The Court: A question, to authorize its submission to be answered by the jury yes or no, must be one which is material to the case and if answered one way would dispose of it.

“Mr. Poynton: I object to that question.

_ “The Court: I am inclined to think that this question would not dispose of the case, is not so material as to be decisive of anything; and I will now, without any argument upon it, decline to submit it.”

The charge to the jury was in part as follows:

“Now, this is what is termed among lawyers an action on the case for negligence. The relations between^ these parties were that of master and servant, as it is understood in the law: the defendants being the masters and this girl the servant. Now, in order for the servant to recover from the master for injuries received in the course of the employment, two' things must be shown, and to which I may refer later. One is that the injury received was on account of the negligence of the master, or some one in his employ for whom he is responsible; secondly, that the person injured, was in the exercise of due care for his or her own protection and did not by neglecting anything bring about or help to bring about, the accident or injury complained of. In other words, the fault must be the fault of the master entirely, and not the fault of both master and servant, because if the servant is at fault, chargeable with lack of due care under all the circumstances and so helped to bring the injury upon herself, she cannot recover. * * *

“I might say here, however, the fact an accident happened, or that plaintiff got her hand injured in the mangle, is not of itself, standing alone, evidence of negligence on the pvart of the defendants.

“And before you can give the plaintiff a verdict in this case you must be satisfied by the greater weight of the evidence that the plaintiff was hurt while engaged with another servant in feeding a sheet into the mangle.

“Now, gentlemen, it is claimed by the plaintiff that she was at the time under the age of 14 years, in fact but a few months over the age of 12 years, and that she is now slightly over 14; this accident happening on the 2d day of May, as I recall, two years ago._

“Now, gentlemen, if she was under 14 at the time she was employed and working there at the time this accident happened, then she was unlawfully employed. The statutes of this State forbid the employment of .a child under 14 where there is dangerous machinery, and forbids their employment in a laundry, and she was not properly or lawfully employed in that place. * * *

“Now, while this statute forbids the employment of a child under 14 where there is dangerous machinery, and in this instance, in a laundry for laundry is specified in the statute, still the mere fact that they violate the statute and employ a child under 14 does not of itself give her a right of action because of any injury ■she might have received in the course of that employment. The statute imposes a penalty upon those who •shall violate it by hiring a child under 14 and putting him at work in such places, but you can see a child might work in such places and nothing happen to her, and in such case she would not have any right of action against the employer, even if the employer had violated the law in hiring her. So, for the mere violation of the statute in employing her she could not maintain this action for damages. * * *

“But, gentlemen, I stated to you that it is necessary for the plaintiff, in a case of this kind, and for this girl, even if she was under 14, not only to show negli.gence on the part of the master and the negligence complained of, which is that she was not instructed, shown, told, and warned of these dangers, but still necessary to trace the fault for the accident to the master and entirely to his fault, and the jury must be satisfied by the greater weight of the evidence that she herself was in the exercise of due care under all the circumstances.

“And what is due care for a child a little over 12 years old is not what is due care for a person of mature years and experience. What is due care for a child between 14 and 16 might not be due care on the part of a person of mature years and experience. So it is a relative term.' By due care is meant such care as a child of her years, her knowledge, her experience, or her lack of knowledge and lack of experience, ought to exercise for her own protection.

“Now, when one employs another to work with, or in contact with, or in connection with, dangerous machinery or in a dangerous, place, it is. the duty of the one so employing to inform and instruct the person employed as to such dangers as are naturally and reasonably attendant upon that work, provided the person so hired is not already familiar with and cognizant of such dangers.

“Now, to make the defendants guilty of negligence in this case for which recovery could be had, so far as their negligence is concerned, you must be satisfied by a preponderance or greater weight of the evidence that they were not only negligent in employing this girl, but also in not giving her proper and adequate instructions and warning as to such dangers as one would be likely to encounter in doing that work.

“And also, for her to recover, it is necessary for you to determine that she was herself not careless so as to cause or help cause the injury she sustained.

“So we get back to this principal proposition: Were these defendants, or the person in charge of this work, who represented them, who was at the head of it, careless in employing her and in not giving her proper and adequate . instructions and warnings? They say they did. You- have heard the testimony. If they did, and she understood and appreciated such instructions and then violated them, of course they did their duty and they would not be responsible. Or, if she was careless herself, taking into consideration her years and lack of experience, if there was lack of it, and such knowledge as had been communicated to her, then it is her fault, either in whole or in part, that she was injured, and in that case she cannot recover.

“The plaintiff has the burden of showing by the preponderance or greater weight of the evidence the truth of both of these propositions: That the defendants were guilty of negligence in employing and not sufficiently instructing the plaintiff and giving her proper warnings as to the dangers of her occupation; and, second, that in view of all the circumstances, her age, experience, or inexperience, unfamiliarity with machinery or this machine, inadequate understanding or realization of the attendant dangers, she was not herself guilty of a failure to observe that degree of care and caution for her own safety and protection as under the circumstances and in view of the situation, her age, knowledge, and experience, she ought to have observed. Understand, she must maintain both of those propositions; their negligence or want of care in the respect I have stated and her own observance of due care under the circumstances I have stated.”

We will not quote more from the charge. It covers upwards of 20 pages of the printed record.

The first assignment of error relates to the refusal of the court to strike out certain testimony of Madelyn Bovyn. The testimony of this witness who testified through an interpreter, was very long; the cross-examination covering many printed pages. The court was of the opinion that, if there were inconsistencies in the testimony of the witness, they were for the jury. After carefully reading this testimony, we agree with the learned judge.

The next assignment of error relates to the refusal of the court to permit the introduction of the testimony of Mr. Allen and Mr. Reece as to an interview with Madelyn Bovyn, held after the accident happened. A reading of the record and of what was proposed satisfies us of the correctness of the ruling.

The next group of assignments of error relates to the refusal of the court to direct a verdict in favor of the defendants: (a) Because of variance between

the declaration and the proofs; and (b) on the ground of contributory negligence.

As to these contentions, we say: (a) There was no such variance between the declaration and the proofs as would justify a directed verdict; (5) the jury were instructed at length as to the duty of the plaintiff, and as to what would in this case constitute contributory negligence. The defendants were employing a girl contrary to the express terms of the statute (section 10, Act No. 220, Pub. Acts 1911). If any one may justly complain of the charge of the court upon the subject of contributory negligence, it is not the defendants.

Did the court err in declining to submit the special question? The court correctly stated the rule of law. See Neeley v. Stratton (151 N. W. 1045), and the many cases cited therein.

Many of the important questions in this case are fully covered by the opinion of Justice Ostrander in Syneszewski v. Schmidt, 153 Mich. 438 (116 N. W. 1107), and it is not necessary to repeat here what is said in that opinion.

The language of Justice HOOKER in Braasch v. Stove Co., 153 Mich., at page 656 (118 N. W. 366, 20 L. R. A. [N. S.] 500), is also pertinent here.

The other assignments of error have been considered, but we think discussion of them is not necessary.

It is said the verdict is excessive. We cannot agree with this contention. See Johnson v. City of Bay City, 164 Mich. 251 (129 N. W. 29, Am. & Eng. Ann. Cas. 1912B, 866).

The case was a hotly contested one. There was much conflicting testimony. There were many diverse views of the law presented. The trial judge attempted to guard the rights of the respective parties. We think he succeeded.

Judgment is affirmed.

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

       Decided April 6, 1915.


text:
    MATTHEWS v. LAMBERTON.
    1. Evidence — Assault and Battery— Trespass vi et Armis — ■ Hearsay.
    Testimony of the plaintiff, in an action for assault and battery, tending to show statements made to a justice of the peace after the alleged occurrence and after plaintiff had traveled a considerable distance from the place thereof, was incompetent and hearsay, and should have been struck out upon motion of the defendant.
    2. Damages — Assault and Battery — Probable Result of Injury.
    Damages for personal injuries sustained as a result of an assault should be limited to such as are reasonably certain to result from the injury. The court should not permit the jury to award damages for such results as are only reasonably probable.
    3. Same — Permanent Injuries — Medical Expert — Opinion Evidence.
    In an action for. assault the court should have instructed the jury, as requested by the defendant, that there was no evidence of any permanent injury to the head of plaintiff, whose physician, who gave testimony in support of his claim, did not testify that the condition was such that a permanent injury to plaintiff’s head or ears would be likely or reasonably certain to develop.

      Error to Cass; Des Voignes, J.
    Submitted January 27, 1915.
    (Docket No. 48.)
    Decided March 17, 1915.
    Case by William H. Matthews against Frank B. Lamberton for assault and battery. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Coolidge & White, for appellant.

      Wilber N. Burns (Carr & Eby, of counsel), for appellee.
   Moore, J.

This is an action of trespass for assault and battery. The defendant filed the plea of the general issue. The case was tried before a jury, which rendered a verdict in favor of the plaintiff for $1,000. The case is brought here by writ of error.

The case is anomalous in one respect. Certain written requests were offered on the part of the defendant which are marked as given. At the conclusion of the general charge the following appears in the record:

“The above and foregoing general charge - of the circuit judge to the jury contained all of the instructions that were given to the jury by the court on the trial of this cause, and none of the defendant’s requests to charge were given by the court to the jury, excepting such as are included in the foregoing general charge.”

An examination of the general charge shows that some of the requests marked as given do not appear in it. This apparent confusion can easily be avoided. The case was evidently a hotly contested one, and, in the main was carefully tried.

After the alleged assault was committed, plaintiff traveled a considerable distance to the office of a justice of the peace. This justice of the peace was a witness, and was allowed to testify concerning plaintiff:

“A. He said he felt very bad and was; he looked that, all right enough. He said he felt very bad, and he added something to that, but I simply have an impression as to what it was, but I am not sure about what that expression was.”

The trial court directed that what was said about the impression of the witness should be stricken out, but allowed the rest to remain. We think this error. Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537 (31 Am. Rep. 321).

In the general charge the court said:

“The plaintiff will be entitled to recover damages for the injuries suffered, for their natural consequences up to the time of the trial, together with such damages of a like character as would be and are reasonably probable to result from the nature and effect of the injuries received.”

We think this was error. Brininstool v. Railways Co., 157 Mich. 172 (121 N. W. 728); Kethledge v. City of Petoskey, 179 Mich. 301 (146 N. W. 164), and the cases therein cited.

The judge refused to give a request reading:

“There is no evidence in the case of any permanent injury to the head of the plaintiff, nor to any part of his head, from blows administered by the defendant.”

The nearest approach to testimony of permanent injury to the head is found in the testimony of a doctor:

“Q. What do you say with reference to whether or not the injury which he received in and about his head, which you had occasion to examine there, whether or not that is permanent?

“A. Well, all cases of injury to the nerve centers, where there is a hypersemic condition or congested condition, are apt to make after troubles. They may run for months or for years, and develop into some trouble traced back to injuries of the spine or brain or nerve centers.

“Q. Then the condition which he is suffering under, you say is liable to develop into—

“A. May develop into something at some time.

“Q. Now, with reference to his ear and the condition that you found his ear in at that time, as to whether or not that is permanent, or whether he will likely in the future have trouble with it?

“A. Well, these conditions of the ears may develop in permanent injury of the drum of the ear and prevent hearing — destroy hearing.”

It will be observed the doctor did not even hazard an opinion that the injury to the head or ears was of a permanent character. We think the request should have been given. Deneen v. Railway Co., 150 Mich. 235 (113 N. W. 1126, 13 Am. & Eng. Ann. Cas. 134); Kethledge v. City of Petoskey, 179 Mich. 301 (146 N. W. 164).

Without expressing an opinion as to whether it was reversible error, we suggest that, unless it is to be shown that he had something more to do with the trouble than is shown by this record, the testimony with reference to Mr. Sterner should be omitted upon the new trial.

For the reasons stated, the judgment is reversed, and a new trial granted. .

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


author: Steere, J.

text:
      In re LAUER’S ESTATE. PORRETT v. LAUER.
    1. Executions — Capias ad Satisfaciendum — Discharge — Satisfaction of Judgment.
    A judgment in a tort action was not satisfied by the arrest and imprisonment of the defendant on a capias ad satisfaciendum, where the prisoner was retained in jail for about eleven months and then discharged from custody because the writ was void, not having been issued within ninety days of the return day of the execution against the goods and chattels of defendant, as required by statute.
    2. Same — Arrest—Body Execution.
    The common law rules as to body executions in the main are still in force in Michigan.
    3. Same — Arrest.
    Final process that has been set aside on the ground of irregularity is a mere nullity and void, so that the taking of defendant thereunder does not satisfy the judgment.
    Error to Macomb; Tucker, J.
    Submitted January 26, 1915.
    (Docket No. 61.)
    Decided March 17, 1915.
    Bethany A. Porrett presented a claim against the estate of Andrew J. Lauer, deceased, for the amount of a judgment in an action of tort. The claim was disallowed by the commissioners, and claimant appealed to the circuit court, which entered judgment for claimant. Defendant brings error.
    Affirmed.

      Stevens, Graham & Stevens, for appellant.

      Warren S. Stone, for appellee.
   Steere, J.

On October 9, 1905, Bethany A. Porrett (then Lauer), the above-named claimant, obtained against said Andrew J. Lauer, her father-in-law, in the circuit court for the county of Macomb, a judgment for a sum amounting, with costs, to $1,589. She was unsuccessful in her attempts to collect the same during the lifetime of said Andrew J. Lauer, who died March 4, 1914, leaving an estate inventoried at $1,798.72. Thereafter said judgment, with computed interest, was presented to the probate court as a claim against decedent’s estate, where it was disallowed by the commissioners on claims. On appeal taken to the circuit court it was allowed at the sum of $2,270.20, from which allowance an appeal has been taken by deceased’s estate to this court.

It is conceded by counsel for said estate that no question could be raised as to claimant’s right to recover except for the fact, as asserted, that said judgment was extinguished during deceased’s lifetime by his arrest and imprisonment upon a body execution issued at the instance of claimant, on September 9, 1910. By stipulation of counsel the trial of said cause in the circuit was ultimately before the court, without a jury. Findings of fact and conclusions of law thereon were made and filed by the court. From said findings of the court and records to which reference is made it appears that a property execution was issued on March 8, 1906, followed by an alias execution, and both were returned unsatisfied. On September 2, 1909, a body execution was issued by virtue of which said Andrew Lauer was taken into custody by the sheriff and confined in the common jail of Macomb county for over 11 months. During his incarceration he made two applications to the court for release, both filed on September 21, 1910. The first stated that petitioner had been imprisoned for over 11 months and was desirous of taking the benefit of the law relating to poor debtors, requested an order setting a time for hearing on his application for release from custody, submitting therewith an appended petition to the sheriff, which had been served on him, giving data as to said judgment and executions thereon, representing that he was unable to pay the same, that he desired to take advantage of the law for relief of poor debtors, and requested that the same be communicated to the circuit judge. These are without date, but amongst the calendar entries of said cause appear the two following:

“September 9, 1910 — order setting hearing under poor debtor’s act, entered and filed.”

“Sept. 16, 1910 — order entered hearing case in part.”

The second application represented petitioner had been imprisoned in said jail for a period of a year last past upon a body execution - issued during the year 1909; that a property execution was issued against his goods, chattels, etc., on February 1, 1906, returnable March 8, 1906; that both executions were issued upon the same judgment, of October 9, 1905, concluding:

“Petitioner says that the said body execution is therefore void under the statutes, and prays the court to order his release from custody upon said execution.”

Of these the trial court finds as follows:

“Both of these petitions were filed on the same day, September 21, 1910. A hearing appears to have been had upon the petitions, and on Saturday, September 24, 1910, before Judge Morse Rohnert, -then of the Wayne circuit court, while sitting in this circuit, and the court caused to be entered on the court journal of that date the following order:

“ ‘The application of Andrew Lauer, the defendant herein, for an order releasing him from custody of the sheriff, having been argued and submitted, and it appearing to the court that the execution by virtue of which the petitioner is being held in custody by the sheriff is illegal and void, it is ordered that such application be granted, and that the sheriff of said county forthwith release from custody said petitioner.

“ ‘Morse Rohnert, Circuit Judge/

“It appears from this order, or judgment, of the circuit court that the execution was illegal and void. The petition for release under the poor debtor’s act seems to have been abandoned. The order was never appealed from, nor were any steps ever taken to set it aside.”

That the application for discharge under the poor debtor’s act was previously called to the attention of the court may be inferable from the two calendar entries that on September 9, 1910, it was set for hearing, and on September 16, 1910, heard in part, but we find nothing in the record indicating that anything was done by court or counsel in relation to this petition after it was filed on September 21, 1910. The other petition, asking discharge on the ground that the body execution was void “under the statutes,” also filed September 21, 1910, had attached to it a notice, dated September 19, 1910, that said petition would be presented to the court for hearing on September 24, 1910, said notice being apparently addressed to plaintiff’s counsel and signed by counsel for defendant. On September 24th a judge from another circuit presided in that court and its records show but one application of defendant, for discharge from custody was before the court, which was argued .and submitted, whereupon the court found the warrant under which petitioner was held “illegal and void,” granted petition, and ordered his release from custody forthwith.

The form of this warrant is not given in the record, but we may assume, as did court and counsel in this proceeding, that it was held invalid and void, because it was not issued within 90 days of the return day of a property execution which preceded it, under section 10412, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13126). Under section 10413, in case of neglect to so charge defendant within that time he may be discharged from custody by a supersedeas, allowed by any judge of the court in which such judgment was obtained, unless good cause to the contrary be shown. Manifestly if no good cause to the contrary is shown it is the duty of the court, on the face of the records of the case and without further evidence, to pronounce such execution invalid and of no legal effect. Douglass v. Circuit Judge, 42 Mich. 495 (4 N. W. 225); Metcalf v. Moore, 128 Mich. 138 (87 N. W. 129). Prima facie it is invalid ; but if good cause is affirmatively shown by proof of conduct on the part of defendant which, in the opinion and within the discretion of the trial court, misleads, inducing delay for his benefit, and so estops him, in effect, from taking advantage of his own wrong, discharge may be withheld. Lapham v. Circuit Judge, 170 Mich. 564 (136 N. W. 594). Counsel contend the latter case establishes that a body execution taken out after said 90 days is not void, but merely voidable, and is of legal force until declared void by a court. Prima facie it is not only irregular, but invalid and a nullity, as would be an execution on a judgment against which the record showed the statute of limitations had run. The validity of either might be established aliunde. Until that is done they are and must be regarded by the court totally ineffectual and nugatory. The precise, technical distinction between “void” and “voidable” is not of controlling importance here. In this case, in a proceeding prosecuted to obtain an order for release of defendant, a decision by a court of competent jurisdiction, not appealed from, declared the warrant illegal and void in its inception and until the end, if, as appears conceded, the decision was based upon the statutory infirmity referred to.

Defendant could have obtained his release by application to. the court at any time after his arrest. His delay in making application until shortly before his discharge, whether because he was content to be a guest of the sheriff at plaintiff’s expense or through ignorance of his rights or for other reasons, does not affect the legal status of the case. He was legally entitled to a prompt release on application therefor, and might have had an action against plaintiff, and perhaps her attorney, to recover damages for a false arrest and imprisonment. This warrant was not issued by order of any court. It was caused to be issued by the plaintiff, in form and at a time selected by her or her attorney, under the general authority which a judgment confers upon the prevailing party to have issued at his dictation, by the clerk of the court, appropriate process for enforcement of such judgment. For an illegal arrest at the instance of a private party, such party may be held responsible in damages to the person injured thereby.

This record does not disclose the nature of the action in which plaintiff obtained the judgment which she now seeks to collect. But it is assumed by counsel of both parties, and we take it for granted, that it was of such a nature body execution might be issued. It was therefore ex delictu, for some fraud or wrong found to have been perpetrated upon plaintiff by him, duly adjudicated in a court of competent jurisdiction and not appealed from, presumably a just debt which it was his duty to pay. During his lifetime he successfully avoided and defeated collection of it. He died leaving' an estate. The sole question is whether his arrest on this unauthorized body execution, certainly irregular and invalid whether void or voidable, is a satisfaction of such judgment. In other words, is the release of respondent a discharge of the judgment if the arrest was not legal?

Counsel for appellant contend that it is, and in support of the proposition urge that the old common law upon the subject is in force in this State except as modified by statutes, which do not militate against the question raised; and at common law, when a judgment debtor was arrested on a capias ad satisfaciendum, the debt was thereby satisfied to the exclusion of a subsequent' execution against the property, citing, as directly supporting or illuminating this, Strawsine v. Salisbury, 75 Mich. 542 (42 N. W. 966); Grosslight v. Circuit Judge, 127 Mich. 414 (86 N. W. 997); Sink v. Circuit Judge, 146 Mich. 121 (109 N. W. 115), and certain sections of our statutes upon the subject.

In this case defendant did not die while under arrest nor escape from custody, neither did plaintiff consent to his release; he was discharged by order of the court because the process under which he was detained was in legal effect of no validity. In Strawsine v. Salisbury, supra, no question of the validity of the warrant by which defendant was arrested was involved. He was released by the sheriff because plaintiff refused to pay his board, as authorized by section 10553, 3 Comp. Laws (5 How. Stat. [2d Ed.] §14388). The court held that, defendant’s detention being contingent on plaintiff’s paying, on demand, the expenses of his board and keeping, a failure to so pay amounted to a consent that he be released; that under the common law such imprisonment operated as a satisfaction of the debt and discharge of defendant did not revive the judgment.

Grosslight v. Circuit Judge, supra, was a case where there was a voluntary return by the principal in jail limits bond, and plaintiff afterwards brought an action on the bond for an escape. The court held he could not thereafter sue out a new body execution. It was there said, citing authorities:

“In general, the taking a party in execution is deemed a satisfaction of the judgment, so that no other writ can be sued out by the plaintiff upon the judgment while the défendant remains in custody.”

No question was involved as to the validity of the original execution under which defendant was taken. In Sink v. Circuit Judge, supra, a double object execution against both the property and body was issued and, not being able to find property upon which to levy, the sheriff took the body of defendant, who was subsequently discharged by an order of the circuit judge. In a short per curiam opinion this court sustained the circuit judge, and said, in substance, citing the statute, that the paper issued was in fact two executions in form, neither of which could issue while the other was issued and unreturned; that the execution was a nondescript, unauthorized by statute, void and incapable of amendment. It may also be said of the body warrant in the' case at bar that it is incapable of amendment, but that throws little light on the issue before us.

Quoting from the statute “Any execution issued upon any judgment,” and referring to the language used in text-books and our decisions stating the general rule, but not specifying in express, adjective words that a body execution must be valid to operate in satisfaction of a judgment, counsel urge that just what is said is meant, and, as said, an arrest under any attempted body execution, followed by action of a court discharging the arrest according to law, is a satisfaction of the judgment.

It would be anomalous to construe the general language found in decisions, text-books, and statutes referring to and discussing rules relative to body executions being a satisfaction of judgment, as meaning that executions which are invalid and inadequate to detain the party arrested, and which lay those at whose instance they are issued liable for false imprisonment, are valid and effectual for the purpose of satisfying judgments under which such executions purport to issue; that they are void to hold the debtor, but at the same time valid to operate in payment of the debt. We find no authority in this State directly passing upon that question. Eliminating States where it is controlled by statute, little authority is found elsewhere precisely in point. It must be conceded that, in the main, the common-law rules as to body executions are in force in this State. In 3 Cyc. p. 975, it is stated as a general proposition that:

“A defendant who has been discharged from arrest may not ordinarily be rearrested in the same action, unless the order under which the first arrest was made was void.”

Going back to English authority, from whence our common law is chiefly derived, the rule is stated in the old case of McCormick v. Melton, 5 Tyrwhitt, 147, referring to a capias ad, satisfaciendum previously held invalid, as follows:

“Final process set aside for irregularity is a mere nullity and void, so that the taking of the defendant under it is no satisfaction of a judgment.”

We conclude the decision of the learned circuit judge, holding that in this case the body execution previously set aside as invalid and void, from which defendant could have obtained a discharge at any time, was a mere nullity and the taking of defendant under it no satisfaction of the judgment, is sustained by reason and authority.

The judgment is therefore affirmed.

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


text:
    SOLOMON v. STEWART.
    1. Evidence — Chattel Mortgages — Parol Evidence Rule — Replevin — Conditions Precedent.
    Where plaintiff brought replevin for two cows which he claimed, under a chattel mortgage, and defendant alleged that at the time of giving the mortgage, as a condition precedent to its taking effect, the plaintiff, upon the sale of a horse to defendant, warranted that the horse was well and strong and able and willing to work and right in every particular and that, if not, defendant might return the horse, testimony that the animal proved to be unsound or worthless, where there was evidence tending to prove defendant’s theory, was inadmissible and should have been'ruled out by the trial court as in violation of the parol evidence rule.
    2. Same — -Variance—Notice of Defense — Want of Consideration —Fraud.
    Under a special notice of defense, presented by the defendant in an action of replevin, alleging failure of consideration, that the note and mortgage were not intended to be absolute and that the horse, concerning which false representations were made, might be returned to plaintiff if it did not correspond with the representations, evidence tending to show partial failure of the consideration and the return of the horse was incompetent and should have been excluded.
    3. Trial — Argument—Misconduct of Counsel.
    It was error on the part of defendant’s counsel to refer to the nationality of the plaintiff in his address to the jury by asking the question whether the jury ever had a proposition put up to any white man, black colored, German Jew, etc., and to make further reference to plaintiff’s nationality and insist on his right to do so, although he was checked by the trial court; the misconduct was prejudicial, and requires the reversal of the judgment.-
    Error to Hillsdale; Chester, J.
    Submitted January 19, 1915.
    (Docket No. 3.)
    Decided March 17, 1915.

      Replevin in justice’s court by Moses Solomon against Albert G. Stewart for two cows. From a judgment for defendant plaintiff appealed to the circuit court. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Fitzpatrick & Grommon, for appellant.

      C. A. Shepard and B. E. Sheldon, for appellee.
   Steere, J.

This action in replevin was brought by Moses Solomon, plaintiff, to secure from A. G. Stewart, defendant, possession of two cows; Solomon claiming the right thereto under a chattel mortgage which he held covering said animals. The case was begun in justice’s court, and after trial removed by appeal to the Hillsdale county circuit court, where, on retrial, verdict and judgment were rendered against plaintiff.

The chattel mortgage in question, accompanied by a note, was given plaintiff by defendant to secure the purchase price of a horse, also included in the mortgage, but which was returned by defendant and died before this action was begun. It appears undisputed that on May 4, 1912, Solomon sold Stewart a certain black horse for $50, at the same time delivering possession of the property and taking in return Stewart’s note, due in six months, secured by a chattel mortgage on the horse sold and two cows belonging to Stewart. Within a few days Stewart returned the horse, claiming that he was not as represented and guaranteed, but, on the contrary, was unsound, weak, and worthless, and that according to the terms of their agreement it was his privilege to return him if, after trial, he did not prove as represented. This was denied by Solomon, who also claims to have refused to accept the horse when returned and left in front of his place of business, which was, however, entertained for about a month at a livery stable under an agreement with the keéper that Solomon would pay the charge if Stewart would not, and was later taken from there by Solomon. Having observed in the local paper, as he states, that Stewart was advertising two cows for sale, Solomon, deeming himself insecure, demanded possession, and on refusal sued out this writ of replevin.

It is unnecessary to recite or review at length the -flatly contradictory evidence of the respective parties upon numerous details of this transaction, which, if all admissible and all true, shows each did the other a great wrong. The only feature of it material here is that portion of Stewart’s evidence in which he was permitted, against objection, to testify that the sale was conditional and contingent upon the horse proving to be, after a fair trial, well and strong, able and willing to work, and right “in every way, shape, and manner,” as represented and guaranteed by Solomon, if not he might be returned, and that upon trial the horse proved hopelessly unsound, weak, incompetent, and worthless.

It is contended for plaintiff that the admission of such testimony to prove a conditional sale, which was its avowed purpose, was error, because it tended to change the terms of a written contract between the parties embodied in the note and mortgage, as held in Martin v. Hamlin, 18 Mich. 354 (100 Am. Dec. 181), and Sheffler v. Sherman, 167 Mich. 42 (132 N. W. 466). In the case of Martin v. Hamlin, a suit in chancery, complainant bought a farm of defendant, relying as to acreage on grantor’s representations, and oral warranty, that the farm consisted of 110 acres. The amount of land was stated in the deed as “110 acres, more or less.” Notes secured by mortgage were given for a portion of the purchase price. A subsequent survey disclosed a shortage of over 16 acres. Complainant sought to have the proportionate value of the deficiency ordered credited on his mortgage. The exchanged papers nowhere providing for such a contingency, the court held, under the general rule excluding evidence of previous parol agreements not appearing in the final written contract consummating a transaction, that evidence of an oral warranty touching the number of acres in the farm could not be considered:

“Because the parol agreement would tend to contradict and vary the notes and mortgage given by complainant at the same time as a part of the same transaction; * * * and this rule applies as well in equity as at law.”

Sheffler v. Sherman, supra, was an action in replevin for possession of two cows and a bull covered by a chattel mortgage, given in the place of a former one covering two cows and a horse. A note accompanied the mortgage, both absolute on their face. The animals were taken under the mortgage and replevied by the mortgagor, who sought to show that the note and mortgage were conditional, being given as security for a guaranty as to the value of a certain team he had traded. It was held error to admit this “testimony on the part of the plaintiff tending to show a verbal contemporaneous agreement which would reduce the note from an absolute and specific undertaking, according to its terms and legal import, to a defeasible engagement,” citing numerous cases of like tenor.

Unquestionably it is competent to show as a defense to such instruments a failure of consideration, or fraud, or even that by distinct understanding and agreement a physical delivery of the papers was not, as between the parties, complete and operative in law until something further was done. Brown v. St. Charles, 66 Mich. 71 (32 N. W. 926); Phelps v. Abbott, 114 Mich. 88 (72 N. W. 3); Central Savings Bank v. O’Connor, 132 Mich. 578 (94 N. W. 11, 102 Am. St. Rep. 433). But it is not competent, under the theory outlined in defendant’s notice, insisted upon to the court and strenuously urged before the jury, to show by evidence of a contemporaneous parol agreement that the chattel mortgage and note, absolute on their face, were in fact conditional, and not what they purported to be.

Defendant’s special notice sets out in detail an untruthful laudation of the property sold, a warranty, and an oral conditional contract, as before outlined, in effect contradicting or varying the written instruments given at the time of entering into said contract; but it contains no direct allegation of failure of consideration or distinct understanding and agreement between the parties that delivery of the note and mortgage was other than absolute, and, while deception and fraud in representations as to worth are charged, the alleged fraud, read in connection with the particulars stated, is limited and negatived by the alleged agreement giving defendant absolute right to return the horse, if not as represented. We think the testimony objected to inadmissible under defendant’s special notice, and incompetent for the purpose to which it was devoted, argued, and left to the jury.

In argument before the jury counsel for defendant laid much stress upon the poverty of his client and the character of plaintiff, in a manner indicating much could be assumed on those subjects outside the evidence in the case. While reasonable allowance has always been made for the zeal of counsel in' their forensic efforts to influence the emotions of the jury, the courts do not hesitate to draw the line on appeals to race prejudice. It is indicated by his name and to be implied from statements of court and counsel in the record that plaintiff is of Semitic antecedents. Counsel for defendant sought to make prejudicial use of that fact in his client’s favor. In addressing the jury he said in part: “Did you ever have a proposition, or hear of a proposition put up to any white man, black colored, German Jew, or anybody else?” Being cautioned by the court, opposing counsel having excepted to the remark, addressing the court, counsel stated that he put it on the ground of the way plaintiff did business, and, the court in further caution saying, “I think the reference to his being a Jew ought not to be made,” counsel replied, “I didn’t apply it because he was of that nationality; I applied it upon the ground that his conduct in this case showed, if he wasn’t a Jew, he was adopting all the principles and the sharp practice that we call the. Jew system.” Again cautioned by the court, and told there was no evidence of such a system, counsel took exception to the remarks and ruling of the court, and proceeded to further argue the propriety of such comments, saying, “I have got a right to refer to and comment upon it as a Jew deal.” Again checked by the court, he replied, “All right; we will call it a Christian act.”

The mind of counsel in this case seems to have run in somewhat the same channel as that of counsel for plaintiffs in Cluett v. Rosenthal, 100 Mich. 193 (58 N. W. 1009, 43 Am. St. Rep. 446), who referred to defendants’nationality, calling them “men from Jerusalem,” and on being checked by the court replied, “Take it back then; suppose they came from Podunk instead of Jerusalem.” This adroit geographical shift did not save that case from reversal.

All such evident purpose to arouse the prejudice of the jury, and particularly when attended by a persistent effort to prolong in effect prejudicial argument to the jury by insisting on the right, and debating to the court that such argument is proper and competent, cannot be overlooked, nor can it ever, in the final analysis, prove other than detrimental to the interests of the litigant whose counsel resorts to such a course.

The judgment is reversed, and a new trial granted.

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


author: MOORE, J.

text:
      In re DISSOLUTION OF HECLA CO. CITY OF DETROIT v. HERTZ.
    Taxation — Deposits — Banks and Banking — Assessment of Credits.
    Under section 3832, 1 Comp. Laws, as amended (1 How. Stat. [2d Ed.] § 1777), providing that debts due or to become due, which shall equal the amount of the debts of the person taxed, shall be exempt from taxation, a personal tax against an insolvent corporation in the hands of a receiver upon money deposited in a bank was not properly assessable, and, in an action by the city to recover such tax upon the personal property of insolvent, a judgment for defendant was properly entered.
    Appeal from Wayne; Van Zile, J.
    Submitted January 15, 1915.
    (Docket No. 111.)
    Decided March 17, 1915.
    The city of Detroit filed a petition, in a suit to dissolve the Hecla Company, for which a receiver had been appointed under an order of the court, to compel such receiver to pay taxes alleged to be due upon personal property of the corporation. Judgment for defendant. Petitioner appeals.
    Affirmed.'

      Walter Barlow (Richard I. Lawson, of counsel), for appellant.

      Beaumont, Smith & Harris, for appellee.
   MOORE, J.

The Hecla Company is in process of dissolution, and is in the hands of a receiver. The city of Detroit, on September 14, 1914, filed a claim for $50.22 for general city taxes for the year 1914, assessed on the personal property of said company, accompanied by a petition, praying that the court make an order directing the receiver to pay said taxes. The receiver filed an answer, stating said taxes were assessed on $2,500 in money deposited in banks without deducting the amount of the debts of said company from the amount of said deposits, and that said assessment was illegal and void. Proofs taken in open court showed that said company filed with' the board of assessors a personal tax statement for the year 1914, in which was listed $2,500 'in money deposited in banks, the only personal property of said company subject to taxation. The tax statement also contained a list of the debts due or to become due from said company, which debts more than equaled the amount of money deposited in the banks. The court denied the petition for an order directing the receiver to pay said taxes. The city of Detroit has appealed to this court from the order.

The claim of the city is:

“There is nothing in section 3832 of our statute that especially exempts money deposited in a bank from taxation. Money is tangible personal property, as much so as any other class of personal property enumerated for taxation purposes in section 3831 of the statute. It was not the intention of the legislature in classifying personal property for taxation purposes, as provided for by said section 3831, to permit the moneys of the taxpayer, although deposited in a bank, to be set off by his debts in assessing taxes against him” (citing several cases).

The case requires the construction of certain portions of sections 3832 and 3842,1 Comp. Laws, sections 1777 and 1787, 1 How. Stat. (2d Ed.). The provision of section 1777, important here, reads:

“The following personal property shall be exempt from taxation, to wit: * * * So much of the debts due or to become due as shall equal the amount of the bona- fide and unconditional debts by the person owing.”

Section 1787 provides for the blank forms to be used by the assessing officer. Under the heading “Personal Property Credits” appears the following:

2. “All credits of every kind owing to such person, * * * including' all deposits in banks.”

As long ago as in 1875, Justice Campbell, speaking for this court, said:

“It is well settled that in the case of all but special deposits the money deposited becomes the property of the banker, and he becomes the debtor of the depositor.” Perley v. Muskegon, 32 Mich. 132, 20 Am. Rep. 637.

To the same effect are Davis v. Bank, 53 Mich. 163 (18 N. W. 629); Neely v. Rood, 54 Mich. 134 (19 N. W. 920, 52 Am. Rep. 802); Grammel v. Carmer, 55 Mich. 201 (21 N. W. 418, 54 Am. Rep. 363); People v. Wadsworth, 63 Mich. 500 (30 N. W. 99); and Stumpf v. Storz, 156 Mich. 228 (120 N. W. 618, 23 L. R. A. [N. S.] 152, 132 Am. St. Rep. 521).

We have examined the cases cited by counsel for appellant, and find them based upon statutory provisions unlike those of our statutes.

The decree is affirmed, with costs.

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


author: Brooke, C. J.

text:
    REED v. BROWN.
    1. Fraudulent Conveyances — Execution—Debtor and Creditor— Deeds — Presumption erom Failure to Record.
    Where defendant, a farmer, in 1904 executed a deed of his farm to two sons, reserving a life interest in the parents and providing that as part of the consideration one of the two grantees should pay . to each of five sisters, fifty dollars on coming into possession of the property, and where the grantees in the deeds omitted to place the same upon record for a period of about three years, and, also, where no evidence was introduced tending to show that the grantor was engaged in conducting any business which required credit, or that he owed any indebtedness, and where in 1907 he executed a guaranty to enable one of his daughters to open and conduct a millinery store upon which he later became liable to the plaintiff, who obtained a judgment against him, a court of equity would not set aside the conveyances on the ground that they were fraudulent as to such subsequent creditor.

    2. Same — Estoppel.
    In the absence of any proof tending to show that the grantees in the deeds represented that defendant owned the property, there was no ground for holding that they were-estopped from relying on their title obtained through the instruments.
    3. Same — Deeds—Wills—Testamentary Conveyances.
    The condition in such instrument requiring the payment of a stated sum to e^ph of the grantor’s daughters did not have the effect of making the instrument testamentary in 'character. Upon delivery of the deed a vested estate passed which would not be affected by the condition requiring performance after the death of the grantor.

    Appeal from Sanilac; Beach., J.
    Submitted January 5, 1915.
    (Docket No. 13.)
    Decided March 17, 1915.
    Bill by Charles T. Reed and others, a copartnership, against Alfred Brown and others to set aside alleged fraudulent conveyances and in aid of execution. From a decree for defendants, complainants appeal.
    Affirmed.

      C. F. Gates, for appellants.

      H. 0. Babcock, for appellees.

       On the question whether failure to record a conveyance is a fraud upon creditors, see note in 31 L. R. A. 638.

       As to when- a deed may be deemed testamentary in character, see note in 1 L. R. A. (N. S.) 315.

   Brooke, C. J.

Mabelle Brown, a daughter of defendant Alfred Brown, being desirous of opening a millinery store in Detroit, had her father make the following guaranty to the firm from which she was to purchase her stock. This guaranty was received by complainants on February 15, 1907:

“Messrs. Reed Bros. & Co.,

“Cleveland, Ohio.

“Gentlemen:

“For and in consideration of you extending credit to Miss Mabelle Brown, doing business at No. 506 Michigan Ave., Detroit, Mich., I hereby agree to become responsible to you for the payment of bills made by her at any time from and after this date either by herself in person or for her on order and on your usual terms. This guarantee to be good at any and all times on any bills or balances that may be due you or become due. Alfred Brown.”

The credit man for the complainants, in a deposition, which was received in evidence at the trial, says that he sent for mercantile reports on Alfred Brown. These reports showed .that Alfred Brown owned about 80 acres of land in Elk township, Sanilac county.

The daughter failed to pay her bills, which, at the time complainants ceased to extend credit to her, amounted to $923.77. Demand was then made on Alfred Brown for this amount, and he refused to pay. An action was then brought in the circuit court for the county of Sanilac against Alfred Brown to compel him to pay this sum. The plaintiffs in that case (complainants herein) recovered a judgment on March 18, 1910, for $1,046.16, and costs amounting to $51.72. The judgment being unpaid, an execution was levied on the real estate, title to which stood of record in Alfred Brown at the time he made the guaranty to complainants.

It appears, however, that on June 2, 1904, Alfred Brown and his wife, Elizabeth, deeded this property to their two sons, Austin and Frank — deeding each son 40 acres. The deed to Austin Brown contained the following reservation and condition:

“First parties reserve unto themselves all the use, benefits and control of said land during the life of each or either of them. It is a part of the consideration of this conveyance that second party pay to each of his fiye sisters or their legal heirs the sum of fifty dollars on coming into possession of said land.”

In the deed to Frank Brown, Alfred Brown and his wife also reserved a life estate, and required Frank to pay off a mortgage of $300, and to take care of them during their life.

The deeds in question were drawn by one James Foster, a scrivener of Peck. His testimony tends to show that, at the time of their execution, the grantor, Alfred Brown, directed him to deliver them to the boys. The record discloses that, at the time they were made, Austin Brown was about 29 years of age, and Frank some years older, and that both boys had remained upon the farm working it for the father up to at least the fall of 1903. They both testified that they remained with their father upon his promise to compensate them for their labor by dividing the 80 acres between them. At the time the deed was made, Austin Brown had worked for his father about eight years after attaining his majority, and Frank Brown a somewhat longer period. The record shows that in the fall of the year 1904 Frank Brown and his brother Austin went to the scrivener’s office and there received and examined the deeds and handed them back to Mr. Foster; that they remained in Mr. Foster’s hands until November 5, 1907, at which time Mr. Foster, at the direction of Frank, caused them to be placed on record. Austin Brown testified, and in this he is corroborated by Frank, that he instructed Frank to take charge of his deed and record it when his own was recorded.

There is no evidence in the case tending to show that, at the time the deeds were made, Alfred Brown was engaged in any business requiring credit, or that he was indebted to any one, except, perhaps, that there was a mortgage upon the farm for $300, an indebtedness which he had incurred in building a house.

It was not until three years after the making of the deeds and their delivery, as above pointed out, that he signed the guaranty which was the basis of the judgment against him. The record fails to disclose that either Alfred Brown or either of his sons made any representations as to the title of the farm, contrary to the facts.

It is beyond dispute that, at the time the deeds were made, they were made for a valuable consideration, and that they were delivered. The record discloses no adequate reason why they were withheld from record from 1904, when they were made, until November 5, 1907. This fact alone, however, in the absence of affirmative proof of a fraudulent intent on the part of the parties in interest to secure a false credit by the withholding of the papers from record, is insufficient to postpone the rights of the grantee under these deeds to those of creditors who have not acquired a lien prior to the making of the deeds.

As was said in the case of Campbell v. Remaly, 112 Mich. 214 (70 N. W. 432, 67 Am. St. Rep. 393) (a case much stronger upon its facts in favor of complainant than the case at bar) :

“It cannot, therefore, be inferred that the deed was originally withheld from record with the fraudulent, purpose of enabling the grantor to maintain a false credit. Nor are we able to find in the record any evidence which convinces us that there was any subsequent agreement or common purpose to withhold this deed from record with that intent. Indeed, the only fact from which it could be inferred consists of the continued withholding of the deed from record, and the false claims of ownership made by Frank Remaly. But these false claims are in no way brought home to the defendant Nina, and are not binding upon her.”

This record is absolutely barren of any testimony tending to show that Austin Brown knew that his father intended to or did secure credit for his sister by the making of the guaranty in question. In any event, that guaranty was made three years after the deed from the father to Austin, and the deeds having been delivered, and the interest of Austin vested, the father by no act of his could impair the title conveyed by the instrument.

It is the claim of the appellants that, by reason of the condition and reservation in the deed, it is testamentary in character. This claim we think untenable. Immediately upon delivery of the instrument, a vested estate passed, and the fact that the performance of the condition was postponed until the death of the grantors could not have the effect of converting a deed absolute into a testamentary disposition.

The decree of the court below is affirmed.

McAlvay, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    WALKER v. VILLAGE OF BROOKLYN.
    Appeal and Error — Exceptions—New Trial — Findings oe Fact and Law — Trial Without Jury.
    Upon the trial of an action to recover back an illegal sidewalk tax, the court sitting without a jury filing no findings of fact and law, where no requests were presented by either party, and no exceptions were taken or filed to the opinion and judgment of the court on behalf of plaintiff and appellant, and the only exceptions appearing in the record were filed after the motion for a new trial was denied, appellant was not entitled to a review of questions presented under Circuit Court Rule 26, subdivisions c and d.

    Error to Jackson; Parkinson, J.
    Submitted January 11, 1915.
    (Docket No. 53.)
    Decided March 17, 1915.
    Assumpsit by David Walker against the village of Brooklyn to recover back taxes paid under protest. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      William H. Martz, for appellant.

      John E. Shekell, for appellee.
   Brooke, C. J.

Plaintiff herein sued defendant to recover the sum of $20.10 alleged to have been collected under an unlawful sidewalk assessment and for $11.15 for work done for defendant in grading in front of plaintiff’s house in the village of Brooklyn. The case was tried by the court without a jury. No requests for finding of fact or law were made by either party. The court filed a written opinion in which he said:

“As I am unable to find that the village acted without jurisdiction in respect to this sidewalk, and as the jurisdictional question has been submitted by counsel as the fundamental one in this case, it follows that judgment must be entered in favor of the defendant, the village of Brooklyn, together with its costs to be taxed.”

This opinion was filed on the 3d day of March, 1914, and judgment entered thereon. No requests fori amendments to the opinion filed were made by either party. No exceptions were made, taken, or filed to the opinion and judgment filed by the court. On July 7, 1914, plaintiff made a motion for a new trial, assigning 35 specific reasons therefor. That motion was overruled by the court, to which ruling the plaintiff duly excepted. Plaintiff now assigns 64 errors on the refusal of the court to grant his motion for a new trial.

Circuit Court Rule No. 26, subd. “c,” provides:

“Within four days after the filing of such completed finding (or such %other time as may be allowed by the court), any party aggrieved may briefly, in writing, allege exceptions to the matters of law embodied in such finding, and such exceptions shall be thereafter put in form and settled in the same bill, which may contain the exceptions taken during the trial, and in the same manner with bills of exceptions in other cases.

“(d) The finding of the facts by the court shall be treated in all respects as a special verdict, and error may be alleged that the same does not support the judgment, as on a special verdict; but no ruling of law embodied in such finding can be reviewed except on exceptions, or on a case made as provided by statute.”

In the case of Nichol v. Ward, 156 Mich. 136 (120 N. W. 569), it was said:

“The case was tried before the judge without a jury. * * * No objection was made, and no exception taken, to the admission of testimony. At the conclusion of the testimony a motion was made to dismiss the case. No request was made for special findings of fact and law by the judge. He took the motion under advisement, and later rendered the judgment before stated. No exceptions were taken to the rendition of judgment. No special findings of fact and law have been made. The record does not comply with Circuit Court Rule 26. There is nothing in this court to review.” Haines v. Saviers, 93 Mich. 440 (53 N. W. 531); and Robards v. Waterman, 96 Mich. 233 (55 N. W. 662).

The assignments of error based upon exceptions taken to the denial of a motion for a new trial cannot be considered where, as in the case at bar, there has been an absolute failure to comply with the rules of the court.

The judgment is affirmed.

McAlvay, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.