author: Stone, J. Brooke, J.

text:
    FLETCHER PAPER CO. v. CITY OF ALPENA.
    Taxation — Remedy of Taxpayer — Board of Review — Exhausting Remedies — Illegal Tax — Assessment.
    Before resorting to the courts to recover taxes on the theory that property of another was fraudulently omitted from the tax roll or undervalued, the taxpayer must exhaust the remedies given him by law, as appearing before the board of review and complaining that other property was assessed too low, or omitted from the roll; so that plaintiff in such action to recover taxes paid under protest was estopped by failure to make timely objection before the board of review to which he appealed, but at the same time stated that he did not care to attack the undervaluation of corporate property of another taxpayer. Brooke, Steere, and MoAlvay, JJ., dissenting.
    Error to Alpena; Emerick, J.
    Submitted June 17, 1912.
    (Docket No. 101.)
    Decided October 1, 1912.
    Assumpsit by the Fletcher Paper Company against the city of Alpena for the recovery of taxes paid under protest. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Henry, Henry & Henry, for appellant.

      F. D. Scott, for appellee.
   Stone, J.

This is an action of assumpsit to recover from the defendant a judgment for a portion of the taxes assessed against the plaintiff’s property, and which it paid involuntarily in the city of Alpena for the year 1910, because and for the alleged reason that the real property of the Huron Portland Cement Company was, by the assessing officer of the city, and the board of review, assessed at the sum of $150,000, whereas the fair cash value of said property was $1,250,000; it being the claim of the plaintiff that there was a wilful and intentional undervaluation and assessment of the real property of the said Huron Portland Cement Company for the year 1910. It developed on the trial of the case that Frank W. Fletcher, the president of the plaintiff, appeared before the board of review at its June session in 1910, and had knowledge at that time of the action of the assessing officer concerning the amount at which the plaintiff’s property was to be assessed for the year; that he there stated that he supposed that the other property in the city, including his own mill property, was assessed at 50 per cent, of its valuation, and that to his own knowledge this really extended to the other manufacturing plants in the city of Alpena, with the possible exception of the Huron Portland Cement Company, but that he did not desire to interpose any objection against its assessments, or discuss the matter before the board, stating that he was not there to discuss the Huron Portland Cement Company. It further appeared with reference to the Huron Portland Cement Company’s real property that prior to bringing before the board of review the matter the city attorney was instructed by the board to see Mr. Fletcher, and notify him that the assessment of the real and personal property of the Huron Portland Cement Company was to be considered by the board, and to ascertain if he desired to appear before the board or make any objection to its personal assessment, as made by the comptroller. It further appeared upon the trial that about 2 o’clock p. m. of June 10, 1910, the pity attorney called upon Mr. Fletcher, and informed him that the representatives of the Huron Portland Cement Company had been called before the board, in order to assist the board in arriving at a conclusion as to the proper assessment of the Huron Cement Company property within the city of Alpena, and asked Mr. Fletcher if he desired to appear before the board relative to the Huron Cement Company assessment; that Mr. Fletcher informed the city attorney that he did not desire to appear before the board on the Huron Cement Company matter, which information was duly conveyed to the board while in session. That there may be no doubt of the correctness of the foregoing statement, we quote the following from the brief of plaintiff and appellant:

“ It further appears from the record that Mr. Fletcher stated to the board of review that he was not there for the purpose of discussing the value at which the Huron Portland Cement Company’s property should be assessed, stating that he had no desire to interpose any objection against any of their assessments or to discuss the same.”

The charter of the city of Alpena provides for a board of review and its duties, as follows:

“The comptroller and senior supervisor of each ward in said city, and city attorney, shall constitute a board of review, three of whom shall form a quorum. They shall have power and it shall be their duty to examine said assessment and correct any errors found therein; and, on cause shown, to reduce, equalize or increase the valuation of any property found in said city rolls, and to add thereto any taxable property in said city that may have been omitted, and to value the same. They shall meet at such time and place as shall be appointed by the common council, of which time and place notice shall be given by said council at least two weeks prior to the time of meeting by publishing a notice thereof in some newspaper published in said city, and also by posting same in three public places in each ward of said city, and shall continue in session at least three days successively, and as much longer as may be necessary, at least six hours in each day during said 3 days; and any person desiring so to do, may examine his or her assessment on said roll, and may show cause, if any, why the valuation thereof should be changed; and the said board shall decide the same and their decision shall be final; and said board shall keep a record of their proceedings and all changes made by them in said roll, and their records shall be deposited with the recorder.”

Before the plaintiff had concluded its case and submitted all of its proofs, the trial judge directed a verdict for the defendant. Before doing so, however, the court offered to allow Mr. Fletcher or the plaintiff to vary or qualify Mr. Fletcher’s statement to the board of review, as testified to, and upon that point counsel for plaintiff and appellant say in their reply brief:

“ The court was eminently fair in offering to permit us to show that Mr. Fletcher did not do and say what was claimed he did and said, before the board of review.”

The direction of the verdict for the defendant in this case was as follows:

“The plaintiff cannot recover in this case by reason of something that does not appear to be in dispute. If it is in dispute, that can be litigated. I will tell you what I mean. There is nothing any better settled in Michigan than that a man cannot complain in the courts of his own assessment, unless he has exhausted the remedies given to him in reference to such assessment at the board of review. * * * If he fails to appear at the board of review, or, if being there, does not remonstrate, and pursue in that tribunal to have his own assessment corrected, he is forever foreclosed from remedy in the courts.”

The court then cited the cases of Petoskey, etc., Gas Co. v. City of Petoskey, 162 Mich. 447 (127 N. W. 345), and Traverse Beach Ass’n v. Twp. of Elmwood, 142 Mich. 297 (105 N. W. 768), and proceeded:

“ These authorities state the doctrine that a man cannot pursue any remedy in court at all in regard to the assessment of his property, unless he has first exhausted his remedy which the law has given him before the tribunal creatéd for the express purpose of determining the assessment of property. Now, this is not just exactly that proposition ; but here was Mr. Fletcher, the president of the Fletcher Paper Company, before this board on the 10th day of June. He was there for the purpose of protecting his company in regard to the assessment of their property. He was also representing, at the same time, the Alpena Power Company, and for the purpose of making a showing before that board he made these statements that have been put in evidence here. He made the statement that the property of the city was generally assessed, the manufacturing property, at half its value, with the exception of the property of the Huron Cement Company, showing that he knew what the assessment was as made at that time, as it stood then, but that he did not wish to criticise that, nor to object to it. I cannot 'give just the exact words. * * * Now, I say, that shows that Mr. Fletcher was fully apprised of what the assessment of the Huron Portland Cement Company was at the time; and the effect of that to him, if it was too low, was just the same as if his property was assessed too high; and it was his duty, in good faith to the board, and it was his duty under the law, to then and there protest against that assessment, or, being silent then, when he ought to have complained, he will not be heard to speak in the court now.”

Thereupon the court directed a verdict for the defendant, and judgment followed.

The case has been brought here by the plaintiff upon writ of error, and the assignments of error raise the question as to whether the court erred in directing the verdict for the defendant for the reasons stated. We think the only question presented by the record is whether or not the plaintiff is estopped from claiming a remedy in the courts for the alleged unequal assessment of its own property as compared with the property of its neighbor under the circumstances as disclosed in this record. It is well settled by the repeated decisions of this court, covering a period of more than 30 years, that the board of review is the constituted tribunal for the correction of unjust or unequal assessments, and that a taxpayer who is subject to the board’s jurisdiction, and fails to make his appeal to thát tribunal, cannot later appeal to the courts for redress. The board of review is a tribunal provided by law in which the taxpayer may appear and contest an unequal or excessive assessment; and his failure to so appear es-tops him from assailing the assessment afterwards. Here it is undisputed that the president of the plaintiff understood the situation, and had an opportunity to be heard. The case is a stronger one for the defendant than it would be if the plaintiff had not appeared before the board of review. Having appeared before that tribunal, it was his duty to complain, if he had any complaint to make, of any antecedent fraud of the assessing officer. Traverse Beach Ass’n v. Township of Elmwood, supra. Not only did the plaintiff have an opportunity, but he was notified by the board to investigate, and was invited to examine the very subject-matter that he is in this suit complaining of. He not only refused to enter any complaint, but in the words of this record he informed the board ‘ ‘ that he did not desire to appear before the board on the Huron Cement Company matter.” The quotation from the charter of the city shows that the action and decision of the 'board are final. We think that this subject has been so fully covered by our decisions that a reference to them is all that is necessary. First Nat. Bank v. Township of St. Joseph, 46 Mich. 526 (9 N. W. 838); Williams v. City of Saginaw, 51 Mich. 120 (16 N. W. 260); Comstock v. City of Grand Rapids, 54 Mich. 641 (20 N. W. 623); Peninsula, etc., Lumber Co. v. Township of Crystal Falls, 60 Mich. 510 (27 N. W. 666); Meade v. Haines, 81 Mich. 261 (45 N. W. 836); Township of Caledonia v. Rose, 94 Mich. 216 (53 N. W. 927); Michigan Sav. Bank v. City of Detroit, 107 Mich. 246 (65 N. W. 101); Hinds v. Township of Belvidere, 107 Mich. 664 (65 N. W. 544); Detroit River Sav. Bank v. City of Detroit, 114 Mich. 81 (72 N. W. 14); Traverse Beach Ass’n v. Township of Elmwood, supra; Petoskey, etc., Gas Co. v. City of Petoskey, supra. In Traverse Beach Ass’n v. Township of Elmwood, supra, the identical case here presented was before this court. There, as here, the complaint was that the plaintiff’s assessment was relatively so unequal, as compared with the assessment of other property in the township, as to indicate fraud on the part of the supervisor, yet this court, referring to the board of review, says:

“It is clear that this board is the constituted tribunal for the correction of the injustice alleged by plaintiff. We have repeatedly held that the taxpayer who is subject to the board’s jurisdiction and who fails to make his appeal to that tribunal cannot appeal to the courts for redress.”

It was the duty of the plaintiff to have appeared and objected to any irregularity or any inequality of the assessment. Having appeared, it was his duty to make his objection. It is the claim of the appellant that all that he was required to do was to object to his own assessment under the language of the charter of the city. We think it too narrow a construction to say that he can only object to his own assessment. We have shown by the quotation that the powers of the board are very broad:

“They shall have power and it shall be their duty to examine said assessment and correct any errors found therein; and, on cause shown, to reduce, equalize or increase the valuation of any property found in said city rolls, and to add thereto any taxable property in said city that may have been omitted, and to value the same.”

We think the trial judge reached the correct conclusion in this case, and the judgment of the circuit court is affirmed.

Moore, C. J., and Ostrander and Bird, JJ., concurred with Stone, J.

Brooke, J.

I am unable to agree with the conclusion reached by Mr. Justice Stone in this case. The effect of his holding is that a property owner who believes his assessment to have been placed at too high a figure is under the legal duty to appear before the board of review, and not only object to his assessment as being too high, but he is likewise bound, at the peril of being held es-topped to afterwards complain, to point out to the board of review what he believes to be inequalities and undervaluations of the property of others. In my opinion no such duty should be imposed upon the taxpayer. It may be admitted; indeed, there is no question but that complaint must be made before the board of review in order to entitle the complaining taxpayer to relief. The decisions cited by Mr. Justice Stone in his opinion go to this extent, but I think no further. The records of this court show (see Fletcher Paper Co. v. City of Alpena, 160 Mich. 462 [125 N. W. 405]) that the .real estate of the Huron Portland Cement Company was assessed at the sum of $800,000 for the year 1908; that the board of review for that year reduced said assessment to $10,000. That action appears to have been taken by resolution of the common council of the city of Alpena. See page 464 of opinion, 160 Mich. (125 N. W. 405), above cited. The Fletcher Paper Company thereupon sued the city of Alpena to recover its taxes paid under protest, and was permitted in that case to recover such loss as it had suffered by reason of the unlawful reduction of the assessment of the property of the Huron Portland Cement Company. In that case Mr. Justice Stone, referring to the action of the board, said:

"That board had full authority to review the action of the assessing officer. Its action was illegal, not because it attempted any forgery, but because it arbitrarily reduced an assessment from $800,000 to $10,000 admittedly fraudulently, and acting in bad faith. The basis is furnished in this case which enables the court to do exact justice to this plaintiff. The plaintiff has brought an action of assumpsit, which is an equitable action, against the city of Alpena, and it ought to recover ■ the sum in which it has been damaged, by the unlawful and fraudulent action of the board of review.”

The declaration in the case at bar, as in the case above noticed, is in assumpsit, and it charges that the plaintiff’s assessment is too high by reason of the fact that the controller and the board of review knowingly, wilfully and fraudulently omitted, neglected and refused to place the property within the city of Alpena, owned by the Huron Portland Cement Company, upon said roll.”

It appears that for the year 1910 the board of review fixed the assessment of the Huron Portland Cement Company at $150,000. There is testimony in the record tending to show that its cash value is at least $500,000. In view of the record in the case of the Fletcher Paper Co. v. City of Alpena, supra, and the testimony in this record, it is, I think, obvious that the charge set out in the declaration that the board of review fraudulently undervalued the real estate of the Huron Portland Cement Company for the purposes of taxation is well founded. The two cases relied upon by the learned circuit judge and cited with approval by Mr. Justice Stone as controlling, namely, Petoskey, etc., Gas Co. v, City of Petoskey, 162 Mich. 447 (127 N. W. 345), and Traverse Beach Ass’n v. Township of Elmwood, 142 Mich. 297 (105 N. W. 768), do not cover the point in issue. In each of the above cases the question involved was the alleged improper assessment of the plaintiff’s property. In the instant case plaintiff complains of the underassessment of another. The charter provides:

“Any person desiring so to do may examine his or her assessment on said roll and may show cause, if any, why the value thereof should be changed.”

It is the duty of the assessing officers and the board of review to assess property at its true cash value, and a taxpayer has a right to assume that the officials charged with this duty will in good faith perform it.

It should, I think, be borne in mind that it is an extremely ungracious act to require of a taxpayer to compel him year after year to go before the board of review and complain of the undervaluation of his neighbor’s assessment. Mr. Fletcher, acting for the plaintiff, had very clearly voiced his views but two years earlier, and at the end of a vexatious law suit, had shown the fraudulent character of the assessment made upon the real estate of the Huron Portland Cement Company. He did, however, when before the board, call the attention of the board to the fact that the assessment of that company was a possible exception to the rule apparently adopted by the board of assessing manufacturing companies at 50 per cent, of their cash value. I am of opinion that in doing this he did more than was his duty. He complained of the burden imposed upon himself. Whether that burden was imposed through the overvaluation of the property of his own company or the undervaluation of the property of his neighbor, it was clearly the duty of the board to afford him relief.. Its failure to do so, in my opinion, should not now be palliated or excused by the fact that Mr. Fletcher refused to enter into an unseemly and unpleasant altercation with the board.

I am of opinion that the judgment should be reversed and the case should proceed to trial, and if, as seems clear, the fraud and bad faith of the board of review can be shown, the plaintiff should be permitted to recover such damage as it has suffered thereby.

Steers and McAlvay, JJ., concurred with Brooke, J.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    CARMAN v. SCOTT.
    1. Landlord and Tenant — Trespass—Evidence—Lease.
    That plaintiff claimed he had a lease or arrangement with defendant similar to a previous written lease of another tenant, whioh, however, was not referred to in the negotiations with defendant or incorporated into their contract by relation, did not warrant the admission of his oral testimony concerning the previous lease, upon trial of a suit in trespass against the defendant for forcibly dispossessing plaintiff and damaging his personal property.
    3. Damages — Statutes.
    Under a declaration counting on 3 Comp. Laws, § 11306, which authorizes treble damages for a forcible eviction, the plaintiff was not entitled to have trebled the damages awarded for injury to his household goods, or for the value of tools left on the premises, or for loss of profits, or as a punishment, and part of the damages so awarded were not even recoverable.

      3. Landlord and Tenant — Forcible Entry and Detainer.
    The only damages which should have been trebled was the item of the verdict awarded for damage in moving plaintiff’s household goods.
    Error to Eaton; Smith, J.
    Submitted June 11, 1912.
    (Docket No. 75.)
    Decided October 1, 1912.
    Trespass by Edwin O. Carman against Eugene Scott for forcible entry and eviction. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Elmer N. Peters, for appellant.

      Garry C. Fox and Frank A. Dean, for appellee.
   Ostrander, J.

A jury returned a vervict in favor of the plaintiff for injury to his household goods, $30; for tools and household goods left on the place (farm), $10; for damages sustained in moving plaintiff’s household goods, $15; for damages of plaintiff sustained by being deprived of the profits and benefits of his contract to occupy and enjoy the farm until the expiration of his lease, $175; for exemplary damages, $400 — a total of $630. The court trebled the damages, and entered a judgment for plaintiff for $1,890 and costs. A motion to set aside the verdict and grant a new trial was denied. Plaintiff claimed to be in possession of premises by virtue of an oral lease of them; his term beginning November 10, 1908, and expiring in one year, with a privilege to remain longer. His action is based upon an alleged wanton eviction by defendant in June, 1909, accompanied by injuries to and conversion of personal property and cost and expenses to plaintiff such as are indicated in the verdict. His declaration counts upon 3 Comp. Laws, § 11206, which reads:

“ If any person shall be ejected or put out of any lands or tenements in a forcible and unlawful manner, or being put out, be afterwards holden and kept out by force,, or with strong hand, he shall be entitled to maintain an action of trespass, and shall recover therein three times the amount of damages assessed by the jury or a justice of the peace in the cases provided by law.”

It was contended by appellant that plaintiff was a servant of defendant, or a cropper, with no possessory rights. It does not appear that a peremptory instruction upon this point was asked for by appellant, whose requests to charge treat it as involving disputed facts. Whether plaintiff was a tenant, entitled to possession, was a question submitted to the jury; they being instructed that, if the arrangement testified to by plaintiff existed, plaintiff had the right to use, occupy, and enjoy the premises for one year from November 10,1908. The reasons advanced for a new trial include the ones that the verdict is unsupported by evidence, and is against the weight of evidence, and that no proper evidence was produced sustaining the finding that at the time of the alleged trespass plaintiff was in possession of the land. In this court it is urged that the testimony conclusively shows that plaintiff was not a tenant, and was an employé of defendant, or, at most, a cropper. The point may be considered as a ground for reversal and new trial in view of the denial of the motion for a new trial and the errors assigned upon such refusal.

Defendant’s brother, a bachelor and a man upwards of 50 years of age, had a life estate in the premises in question here. He lived upon them and had always lived there. The testimony tends to prove that he was not mentally bright, and that his brother, the defendant, managed his affairs. When the arrangement was made with plaintiff, the farm was leased to one Starks, whose right to possession had not then expired. The lease was in writing. Defendant testified, corroborating plaintiff in this regard, that the arrangement he made with plaintiff was oral, and related the terms and conditions thereof. Upon his cross-examination he was interrogated about the Starks lease, the lease not, however, being produced, and, upon objection being made, counsel for plaintiff, stated that testimony had been introduced to the effect that defendant stated to plaintiff, in making their arrangement, the terms of the Starks contract, and that plaintiff could have the place upon the same terms. The objections, which included the one that the written instrument was the best evidence, were overruled, and counsel was permitted to examine the defendant at considerable length as to the terms of the Starks lease. The isshe had already and distinctly been made that plaintiff never had, and never bargained for, a lease or for any pcissession or joint possession of the premises, or any right to occupy them except during the continuance of amicable relations with defendant’s brother, who lived with plaintiff and his wife. The trial judge certifies that the bill of exceptions contains, all of the evidence given upon the trial.

To the time when the defendant was being cross-examined and when the colloquy referred to took place I find no testimony, and- the brief refers to none, tending to prove that plaintiff was ever informed about the terms of the Starks contract, or that his rights were in any respect identical with those given to Starks thereby. The testimony to which we are referred was given by defendant as follows:

*'‘ I had an arrangement of this kind with Starks. He was to furnish half and my brother furnish half. The contract with Starks and the one with Carman were substantially the same, except I claim no time was fixed when he was to go out of possession, or into possession. I had had experience with one man, and didn’t want another one. It is not true I told Carman in the presence of his wife he could have it for a year.
“Q. That he could have.it a year anyway, and just as much longer as you and he could get along ?
“A. No, sir; he could not have had it as long as six days if he hadn’t made it pleasant for Will. I did not tell him so. Did not keep track of Carman’s time when he went on the farm.”

Later, plaintiff having been recalled for cross-examination by defendant’s counsel, the subject was again referred to, plaintiff’s counsel asking him:

“Q. As I understand it, Mr. Scott, while he was there, stated to you the contents of the Starks contract; that is, under the Starks contract Mr. Starks was to do so and so, and so and so, and you could have the same rights ?
“A. That was the very first conversation Mr. Scott had with me.
“Q. Was that at the house?
“A. No; that was down there at Mr. Hooper’s, and he told me he was letting it, and why he was letting it. I says: ‘Mr. Scott, let’s go up to the house. We will
talk it over with my wife.’
“Q. Was it talked over there ?
“A. Yes, sir. -
“Q. Again?
“A. A bargain was made. There was no bargain at all made down there in the presence of Hooper. He was just simply telling me what he had and how he rented it.
Mr. Starks was going away, and he wanted somebody else. * * *
“Mr. Peters: Now, if the court please, I move to strike out all of the cross-examination of Eugene Scott relative to the Starks contract and the arrangement of the Starks contract, for the reason that the proofs show here that the contract with plaintiff in this case was verbal. That he never saw this contract and knew nothing about it or relied upon it in any way, and therefore it could not have been a part of his contract or the terms of his contract, or that he had any rights that were in any wise fixed by the terms of this contract.
“The Court: I will deny the motion.
“Mr. Peters: Exception.”

It is manifest that the motion to strike out should have been granted. It was not claimed that any of the terms of the Starks contract had been adopted by reference merely, and it was claimed that all of the terms of the contract with plaintiff were stated, and that the contract rested entirely in parol. We are not informed by inspection thereof what the Starks bargain was. Plaintiff never saw it. Yet it is evident that he was permitted, inferentially at any rate, to support his own testimony that he had a lease by this reference to another, written, agreement. It is doubtful if without this testimony the jury would have found that plaintiff had any right of possession which continued for a period after amicable relations with defendant’s brother had ceased, or if the court would have permitted a finding to that effect in plaintiff’s favor to stand. However, we should not say upon this record, no peremptory instruction upon the subject having been requested, that it was error to submit the question upon other testimony to the jury.

We need to consider one other line of exceptions which raise the question of the damages recoverable in this form of action, assuming that plaintiff was a tenant, and not a cropper or servant of the owner. The declaration alleges a forcible entry and detainer of premises, and the accompanying conditions from which injuries resulted are specially set out, with the nature and extent of the injuries. It was held in Shaw v. Hoffman, 21 Mich. 151, that a tenant for years might recover against his landlord for a wrongful and forcible entry under circumstances specified in the statute. The case was again before the court in 25 Mich. 162, where it was held that such a declaration would not support a judgment upon the verdict for single damages as for a trespass at common law. See, further, 2 Stevens’ Practice, § 310, and 2 Green’s Practice (3d Ed.), § 1575; Pelton v. O’Keefe, 144 Mich. 425 (108 N. W. 403); Osburn v. Lovell, 36 Mich. 246. Plaintiff relies upon McIntyre v. Murphy, 153 Mich. 342 (116 N. W. 1003, 15 Am. & Eng. Ann. Cas. 802), a case which is not in point because in that case plaintiff having, as in the case at bar, counted on the statute (section 11206), and having concededly made no case within this section, was permitted to and did amend the declaration by striking out all reference to the statute. This left the action one for trespass at common law, and no question of trebling the damages found by the jury was involved. In the case at bar plaintiff claims to have made a case within the statute. Assuming that he did so, or may do so upon a new trial, it is evident that items of damage were returned which may not be trebled under this section of the statute, as was distinctly held in Shaw v. Hoffman, 25 Mich. 162. It necessarily follows that the jury awarded damages for injuries which, under the statute, could not be recovered for at all. Indeed, accepting the verdict as it was returned, which we must do, there is no specific item thereof, excepting the one of $15 for damages sustained in moving plaintiff’s household goods, which can be trebled. The statute counted upon and pleaded in this action must not be confused with other somewhat similar statutes involved in various decisions of this court to which appellee refers.

The judgment is reversed, and a new trial granted.

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


author: Ostrander, J. Moore, C. J.

text:
    CITY OF LANSING v. BROWN.
    1. Theatres and Shows — Ordinances — Sunday —■ License — Criminal Law — Moving Picture Shows.
    Interpreting an ordinance strictly, as penal acts must be construed, under a municipal ordinance providing that no person should operate or conduot a moving picture show without a license and that no permit should be issued to exhibit on Sunday, and providing a penalty for violation of any provisions thereof, conducting a moving picture show on Sunday did not operate as a violation of the ordinance within the intent of the common council, although respondent had only the yearly license authorized, and could not have secured a valid license to keep open on Sunday.
    2. Same.
    The fact that conducting a Sunday show is forbidden by statute (2 Comp. Laws, § 5912), does not change the effect or intent of the municipal regulation.
    Moore, C. J., dissenting.

      Error to Ingham; Wiest, J.
    Submitted June 7, 1912.
    (Docket No. 38.)
    Decided October 1, 1912.
    A. Leroy Brown was convicted of operating a moving picture show without a license contrary to the prohibition of an ordinance of the city of Lansing.
    Reversed and respondent discharged.

      G. P. Black, for the people.

      Jason E. Nichols and L. B. McArthur, for respondent.
   Ostrander, J.

Respondent, the proprietor of a moving picture show in the city of Lansing, kept open his place of amusement, gave an exhibition, and charged and received pay therefor from persons attending, on October 15, 1911, which was Sunday. He was arrested upon a warrant which charged that he—

“Did open and keep open a certain public exhibition and show, at which show he caused moving pictures to be operated and exhibited, and for which he demanded and received money; said 15th day of October being on Sunday, and such show, on said first .day of the week, being without permission or license granted to the said Alger Leroy Brown by the city clerk of said city for that purpose, contrary to the provisions of an ordinance of the city of Lansing entitled ‘An ordinance to • regulate the granting of licenses for shows and other amusements, being Ordinance No. 77 of the revised ordinances of said city,5 and against the peace and dignity of the people of the State of Michigan.55

There is no ordinance of the city of Lansing prohibiting the keeping open of places of business or amusement on Sunday. Ordinance No. 77 provides that no person shall conduct or operate such a place as respondent had without a license or permit for that purpose. Respondent held a yearly license, issued to him pursuant to this ordinance. Section 4 of the ordinance reads as follows:

“ Sec. 4. That no person shall act, exhibit, show or perform in, or cause to be enacted, exhibited, showed or performed or be in any way concerned in tbe acting, exhibition, showing or performance of any indecent or blasphemous play, farce, opera, public exhibition, show or entertainment or performance of any kind whatever, nor shall any permit be given to play, show or exhibit on Sunday.”

A penalty is provided for violating any of its provisions. Respondent was convicted in the justice’s court, appealed to the circuit court, in which the cause was tried without a jury, a verdict of guilty was entered, and a sentence was imposed, the execution of which was stayed to permit a review of the record in this court.

The question presented is a simple one, and is whether respondent was conducting his business without permission or license granted by the city clerk, within the meaning of the ordinance, and is therefore liable to the prescribed penalty. Briefly stated, the argument for the people is that the license which respondent held did not permit him to conduct his place of amusement on Sunday; that he could not conduct a place of amusement on any day without a license; that, having opened it on Sunday, he was conducting it without a license, and was therefore in the position of one conducting an entertainment “without a license or permit for that purpose first had from the city clerk.”

The argument is plausible, but to me it seems essentially unsound. The business of respondent is not an unlawful business, but is a business which the State may regulate. The command, and the only command, of the regulation imposed, with respect to a license, is: You shall not conduct your place of entertainment without a license or permit for that purpose first had from the city clerk. It is this command which respondent is charged with disobeying. Respondent does not seek to justify his conduct by his license. He does not contend here that the keeping open of his place, upon the particular occasion, was not unlawful conduct for which he may be called to account. He contends only that he has not made himself liable to the penalties of this ordinance. When, as matter of police regulation, a license is required as a condition for conducting a business, and a penalty imposed for carrying it on without a license, a charge that the business is being carried on without a license is answered by producing the license. The common council of the city of Lansing has power to prevent and punish violations of the Sabbath day, and to require all places of business to be closed on that day. It has no power to permit violations of the Sabbath day. A license or ordinance which in form permitted violations of the Sabbath would protect no one. The common council has power to regulate, restrain, and prohibit shows and exhibitions. It was this power which was exercised in passing the ordinance in question here. Suppose the ordinance not only required a license to be taken out, but also forbade the operation of the business on Sunday: Would it be contended that in keeping open a licensed place on Sunday the business was being conducted without a license ? When there is added to a police regulation the statement that a compliance with the prescribed conditions shall not be deemed to be also a license to violate some other law or laws, nothing is thereby added to the command of the regulation. Violation of the other enumerated laws is not a violation of the regulatory ordinance. If it were otherwise, then by multiplying such references to other laws a large category of offenses might be brought within the pains and penalties of the regulatory ordinance, and within the jurisdiction of municipal magistrates. Suppose, for illustration, the last clause of section 4 of the ordinance had read: Nor shall any permit be given to play, show or exhibit on Sunday, nor to sell liquor in any place of amusement, nor to harbor pickpockets therein, nor, during a performance, to lock the doors provided for egress therefrom. Would it be contended that a proprietor who sold liquor in such a place was guilty of carrying on his business without permission or license granted by the city clerk? Penal statutes (and the ordinance is of that character) are strictly construed. Without applying the rule of strictness, the ordinance in question cannot reasonably be given a meaning which will sustain the conviction.

The judgment of the lower court is reversed, the conviction set aside, and the respondent discharged.

Steere, Mcalvay, Brooke, Stone, and Bird, JJ., concurred.

Moore, C. J.

(dissenting). I do not agree with the conclusion reached by Justice Ostrander. He has sufficiently stated the facts and the questions involved. He has also referred to the ordinance, and has quoted the provisions of section 4. This section provides two things: First. It forbids the giving of any such show or performance on Sunday, as was confessedly given by the respondent. The language is, in effect, that no person shall give such a show or performance on Sunday. The act involved was in violation of this unambiguous language. Second. It is provided: “Nor shall any permit be given to play, show or exhibit on Sunday.” From this it clearly follows that the only permit which is lawful is a permit to give plays, shows, and exhibitions on other days than Sundays.

Under the ordinance, if an attempt in terms had been made to issue a permit for a Sunday performance, it would have been unlawful, and would have been no protection to respondent, for the reason that the ordinance forbade such a permit. It is true that respondent had such a permit as might lawfully be issued; but this permit only allowed a performance on such days as were not forbidden. The exhibition respondent gave was forbidden by the ordinance, and the granting to him a permit for that day was also forbidden.

I think it clear respondent was guilty of such an exhibition and show as was forbidden by the ordinance, and for which a permit could not be lawfully granted, and for which exhibition no attempt had been made to grant a permit.

The conviction should be affirmed, and the case remanded for further proceedings.


text:
    WEINBERG v. STRATTON.
    Stipulations — Time—Dates—-Variance.
    In an action of assumpsit based upon an alleged oral assignment of wages by one of defendant’s employés to plaintiff, it was error to charge the jury that a stipulation as to the facts in the case reserving for trial only the question of what was said between plaintiff and his assignor on a day specified, when the alleged assignment took place, limited plaintiff to proof of such conversation on the day named in the stipulation only, and that evidence of what was said on a subsequent date about the same time was incompetent.
    Error to Cheboygan; Shepherd, J.
    Submitted June 17, 1912.
    (Docket No. 103.)
    Decided October 1, 1912.
    Assumpsit by Max H. Weinberg against De Forrest A. Stratton for wages of one of defendant’s employés assigned orally to plaintiff. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Maxwell W. Benjamin, for appellant.

      Henry, Henry & Henry, for appellee.
   Ostrander, J.

As a basis for credit, one Charles Warren gave plaintiff a written order upon defendant, who was Warren’s employer, dated March 13,1908, reading:

“Please pay my wages to Max H. Weinberg hereafter until further notice.”

Defendant accepted the order. Plaintiff thereupon sold Warren goods upon credit. Warren countermanded the order January 4, 1909. Learning of this, plaintiff notified defendant that he was entitled to all of Warren’s wages until his (plaintiff’s) account was paid in full. Defendant, after receiving this notice, continued to pay Warren his wages. Plaintiff claimed there had been a parol assignment to him by Warren of all of his wages to pay the existing and future account, and sued defendant. There was a trial, which resulted in a verdict and judgment for defendant. In this court the judgment was reversed, because the trial court had denied to plaintiff the right to give in evidence a certain conversation which plaintiff claimed would have established a parol assignment to plaintiff of the wages. Weinberg v. Stratton, 163 Mich. 408 (128 N. W. 926).

Counsel had originally made, for the use of the trial court, a stipulation of facts which contains the following:

“On March 11,1906, one Charles Warren was indebted to the plaintiff in the sum of fifteen and -†6\ dollars ($15.42), and sought to get further credit from the plaintiff, which was refused. Plaintiff and Warren then had a conversation, wherein it was arranged that the said Warren could obtain further credit upon certain conditions. (As to this conversation the parties hereto cannot agree, and each expressly reserves the right to introduce testh mony to show this conversation.)”

Further along in the stipulation, the subject is again referred to in these words:

“It is hereby stipulated and agreed by and between the attorneys for the respective parties in the above-entitled cause that the foregoing stipulated facts, except as otherwise stated, are the facts in this case. Both parties, however, reserving the right to produce witnesses for the purpose of showing the conversation between plaintiff and Charles Warren on the 11th day of March, 1908, preceding the giving of the order dated March 13, 1908, and that the court shall make a finding of facts as to what that conversation was, which, in addition to the agreed facts herein set forth, shall constitute the facts in this case.”

Upon the last trial a jury was called, and the attorney for defendant asked that, as the stipulation of facts was prepared in view of a trial by the court, each party should be permitted to produce testimony for the consideration of the jury upon any of the issues involved; the stipulation being also read to the jury. Especial reference was made by counsel for defendant tp the facts surrounding and leading up to the giving of the written order upon defendant by his employ é, Warren. The attorney for plaintiff objected to a departure from the stipulation and its terms, and the court agreed with him. Thereupon witnesses were produced and testimony given upon the subject of the conversation referred to in the stipulation. Plaintiff testified to a conversation occurring on March 13, 1908, and that one occurred a few days earlier, but at a date not remembered by tlie witness. In answers to special questions, the jury found that Warren did not, on March 11, 1908, assign and transfer to plaintiff his wages, to be earned from defendant, until plaintiff’s account was paid in full, by reason of a conversation independent of the written assignment; and they found that there were not two conversations between plaintiff and Warren, one on March 11, 1908, and the other later. They weré instructed :

“ Now, first one of the parties here, and then another, attempted to bring in things that took place aside from the 11th day of March; but the parties, before coming here, had made a written agreement, or what lawyers would call a-‘stipulation,’ whereby it was agreed that no witnesses should be introduced, no testimony should be given, except as to the conversation — that is, no testimony aside from this agreement, aside from the stipulated facts, or facts that were agreed upon — that no testimony should be introduced upon the stand, except as to the conversation between the plaintiff and Charles Warren upon the 11th day of March, 1908. Therefore I struck out all the other evidence, and you are not to consider it. You are to consider only the evidence that was given as to what took place on the 11th day of March, if any was given. If none was given, then your verdict will be for the defendant. If this conversation that Mr. Weinberg swore to in regard to assigning all his wages until Mr. Weinberg’s claim was paid in full was had upon the 11th day of March, you will find a verdict for the plaintiff for $57 and the interest, amounting to $6, which would be $63. So your verdict will be either for the plaintiff, $63, or for the defendant, no cause of action. If this conversation took place upon the 11th day of March, whereby he agreed to transfer his wages until Mr. Weinberg’s account was paid in full, your verdict will be for the plaintiff, $63. If that conversation did not take place upon the 11th day of March, your verdict will be for the defendant, no cause of action.”

There was a verdict and judgment for defendant. Plaintiff’s motion for a new trial was denied.

Plaintiff has assigned 16 errors, which, however, all depend finally upon the proposition that he has again been denied the right to present his testimony concerning, and to properly take the opinion of the jury upon, the subject of the alleged parol assignment to himself of the wages of Warren. He now asserts that he should have the right to give in evidence the conversation between plaintiff and Warren, whether it occurred on March 11th or March 13th, or at some other nearby time. More precisely stated, the contention is that it is the conversation which, under the stipulation, he had the right to give in evidence, whether it took place on one day or another. The trial court appears to have been of opinion that in his rulings he was limited by an interpretation of the stipulation by this court. It is not believed that any member of this court intended, in the opinion rendered, to construe or interpret the language of the stipulation, or that the ruling that the trial court “should have admitted the testimony in accordance with the stipulation,” found in the majority opinion, can be fairly construed as a direction to exclude any conversation other than one occurring on March 11, 1908. The particular effect and meaning of the stipulation was not a question debated upon the former appeal. The decision in no way turned upon its meaning or its effect. It did turn upon the fact that evidence of a conversation had been excluded. Read as an entirety, in the light of plaintiff’s contention, the stipulation reserves the right to go outside the words of the written assignment of wages, and to show what talk or conversation occurred when the arrangement was made between plaintiff and Warren for further credit. The date of the conversation, during which the “certain conditions” were fixed, is, it is true, stated in the stipulation. But if it turned out that parties were mistaken in so fixing the date, the plaintiff should not for that reason be debarred from proving the principal fact upon which his contention, and his suit, is rested. It is agreed in the stipulation that they had a conversation, “wherein it was arranged that the said Warren could obtain further credit upon certain conditions.”

Manifestly the parties reserved the right to offer testimony of the details of the conversation, in the course of which the plaintiff and Warren arranged about a future credit and an assignment of his wages. The effect of the rulings made at the trial was to exclude all testimony of such a conversation. It cannot be said that the testimony excluded had no tendency to support the theory of plaintiff, and beyond this we need not go. As was held in our former opinion, plaintiff should be permitted to submit as a part of his case the conversation he had with Warren before the written assignment of wages was given.

The judgment is reversed, and a new trial granted.

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


text:
    HAUSE v. STANDARD ACCIDENT INSURANCE CO.
    Insurance — "Waiver of Conditions — Age Limit.
    Though an insurer against accident had. printed on the back of its card policy a regulation that it would not insure persons over 65 years of age, it was liable on a policy for the accidental death of an insured policy-holder of 66 years of age whose attention was not called in any way to the restriction, and who was induced to purchase the insurance by advertising matter that contained no reference to an age limit; receipt of the premium and failure to inquire decedent’s age, with want of knowledge on his part that such restriction existed, operated as a waiver of the rule.
    Error to Lenawee; Chester, J.
    Submitted June 17, 1912.
    (Docket No. 53.)
    Decided October 1, 1912.
    Assumpsit by Franc C. Hause, executor of the estate of John Hause, deceased, against the Standard Accident Insurance Company upon a policy of accident insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Keena, Lightner, Oxtoby & Oxtoby, for appellant.

      Smith, Baldwin & Alexander, for appellee.
   Ostrander, J.

Plaintiff’s intestate, a man 66 years old, at Adrian, Mich., July 26, 1909, after purchasing a railroad ticket of a railroad ticket agent and leaving the ticket window, returned to the window a moment or two before taking the train and asked the agent for a two days’ accident insurance policy. He designated no company or form of policy, and, without any oral representation by either, the agent issued a post card accident policy of the defendant company, and was paid 50 cents for it. Displayed in the station waiting room, over or near to the window where tickets were sold, was a metal advertising card, on the margin of which, in large type, was the following:

Send Home a POST-CARD ACCIDENT POLICY Issued By The “STANDARD” of Detroit, Mich.
The Policy Goes Home. The Protection Goes With You.
RATES 25c Per Day 10 days $2.00 15 days $3.00 30 days $4.50.
Each One Stamped Ready, to Mail.

In the center of this advertising card, in small type, was a fae simile of the obverse or face side of the post card policy. The policy was printed on a card, ready for mailing, in form as follows:

prevent the insured from actually performing some one or more necessary important daily duty or duties pertaining to his oecupation, the Company will pay a weekly indemnity of 55.00 a week during the continuance of such partial disablement for not exceeding 26 consecutive weeks. In no case shall the indemnity payable under this oontract for both total and partial disability exceed 53 consecutive weeks.

C. If the insured be a man, and such injuries are sustained while riding as a passenger and being actually within any railway passenger car using steam, electricity or cable as a motive [power, by reason of the wrecking of said car, then the principal sum or weekly indemnity payable under clauses “A” and “B” shall be double the respective sums named therein as those to which the insured shall be entitled under the terms of the ticket. These double benefits shall not apply to any woman.

D. This ticket does not insure any person under 18 or over 65 years of age, nor any woman except against death only, nor any person employed on any public conveyance while on duty, nor any person bereft of reason, sight or hearing, nor any person maimed, crippled or deformed, nor any person suffering'from hernia or any other disease or bodily infirmity or disorder in any form.

E. This ticket is issued by the Company and accepted by the insured with the understanding and agreement that no benefits will be paid for injuries resulting fatally or otherwise, received under or in consequence of any of the following conditions: (1) While on any conveyance not provided for the transportation of passengers, or while on a locomotive, freight car or caboose used for passenger service; or while entering or leaving, or trying to enter or leave, any moving conveyance; or while on the right of way or bridge of any railway; or (2) while, or in consequence of being, or having been, affected by, or resulting, directly or indirectly, wholly or partly, from intoxicants, anaesthetics, narcotics, sunstroke, freezing, vertigo, sleep-walking, fits or any other disease or bodily or mental infirmity or disorder, in any form, either as a cause or effect, or medical or surgical treatment or operation; or from gas, poisonous substances, poison, or anything consciously or unconsciously, voluntarily or involuntarily, accidentally or otherwise taken, absorbed, administered or inhaled; or (3) while hunting, fishing, or on exploring expeditions, or under any circumstances from firearms of any kind or from explosives; or (4) from voluntary over-exertion, wrestling, lifting, racing, competitive games, or voluntary or unnecessary exposure to danger, or when inflicted upon the insured by himself or any other person, or received by the insured while insane or inflicted by the insured upon himself while insane; or (5) for disappearance, or in any case where there is no visible mark of violence impinging upon the body of the insured, the body itself in case of death not to be considered such mark.

F. Unless a written notice shall be given to said 'Company at its home office, Detroit, Michigan, within ten days thereafter, of any accident or injury for which claim is to be made, with full particulars thereof, and full name and address of the insured, all claim therefor shall be forfeited. Any such notice given to any agent of this Company shall not be deemed notice given to said home office. Unless direct and positive proof of death or duration of disability, which shall give full information of the manner of receiving the accidental injuries, and full information describing such injuries, shall also be furnished to said Company at its said home office, by the insured, or his legal representatives, within two months from the time of death or termination of disability, all claims based thereon shall be forfeited. Legal proceedings for recovery hereunder shall not be brought until after three months from the date of filing such proofs at this Company’s home office, nor brought at all unless commenced within six months from time of death or termination of disability. Indemnity for disabling injuries shall be payable at the end of period of disability only.

If the limitations of time for notice of injury, proof of claim or for legal proceedings herein contained, differ from the statutory provisions in relation thereto of the State in which the ticket is sold and delivered, it is agreed that such statutory provisions shall supersede such limitations in this contract.

Or. Insurance on any one person under this Company’s accident ticket is limited to one ticket for §2,500 with §12.50 weekly indemnity, exclusive of the sums named in clause “C.” The weekly indemnity to be paid shall, however, in no case exceed the average weekly earnings of the insured. Indemnity in excess of such limits shall be void and the premium paid for such excess shall be returned to the insured on demand. Should claim be made for death under this ticket, upon the insured, whose average weekly earnings were less than §12.50 per week, then the Company shall be liable for only such proportion of §2,500, or §5,000 under clause “C”as the case may be, as such weekly earnings shall bear to §12.50. If the insured held any other accident insuranee in addition to this insurance, this Company’s liability hereunder shall not exceed such proportion of the death benefit or weekly indemnity as this insurance shall bear to the combined accident insurance in all companies.

H. Any medical adviser of the Company shall be allowed, as often as he may require, to examine the person or body of the insured, and make post mortem examination at his discretion, in respect to the alleged injury or cause of death, and any refusal on the part of the insured, or legal representatives of the insured, to permit either of such examinations, shall cause a forfeiture of all claims under the ticket.

I. This insurance covers only injuries received within the limits of the United States, Canada, Newfoundland, Mexico, Hawaiian Islands, West Indies and Bermuda, and while traveling as a passenger on a regular passenger or mail line steamer, coasting along or between such limits; but does not cover injuries sustained in any part of Alaska or the British possessions in North America north of the sixtieth degree of north latitude, or in any of the territories of the United States acquired since the first day of January, 1897, except as above noted.

The stipulations and conditions of this contract cannot be expressly or impliedly waived or altered in any degree by any representative of the Company.

This ticket is good for the number of days canceled by a continuous line drawn by the selling agent across space for such term on left-hand margin of ticket and right-hand margin of stub, and according as the ticket is dated in the a. ,m. or p. m. space, it is good from the next 12 o’clock including also the time from such hour until said noon or midnight.

Lem W. Bowen, President.

E. A. Leonard, Secretary.

Series C, Feb., 1908.

On the next day plaintiff’s intestate was accidentally killed. Being advised of the death and of the date of the birth of the policy holder, defendant denied liability, relying upon clause D of the policy. Plaintiff brought suit, and in her amended declaration, in the second count, she pleads a part of the policy form printed in the said advertisement as clauses A and B, alleging “that by this advertisement, statement and quotation of policy, seen and understood” by the insured “the said defendant held itself out as agreeing that the foregoing was the contract and policy, and upon this” plaintiff’s intestate “relied when he purchased said insurance,” and that failure of the agent to inquire about the age of the applicant and the issuing of the policy and acceptance of the premium was a waiver of the provisions of clause D. In the third count she alleges that her intestate knew about the policy and the terms and conditions thereof what he was able to read from the advertisement printed in coarse print on metal cover over the ticket window of the Wabash Railroad in Adrian, and could read only the coarse print.

Plaintiff’s intestate could not, because of defective eyes, read so much of the policy form as was printed in small type in the said advertisement. It does not appear that he was seen to read the advertisement. Whether he ever read his policy is not disclosed. The testimony tends to prove that on account of the type used he could not have read it. The ticket agent testified that if he had supposed plaintiff’s intestate to be more than 65 years old he would have directed attention to clause D in the policy. The jury was advised—

“That if plaintiff’s husband, when he bought his railroad ticket to Detroit, did not then intend to take out insurance, and was thereafter attracted by the advertisement of the defendant on the metal advertisement to take out the insurance, and the advertisement led him to understand, and could fairly have led a reasonable man, exercising ordinary prudence, to understand that a man in his condition and of his age was insurable by defendant’s policy or contract of insurance, and then asked for the insurance, and no representations were made by Mr. Hause, and no questions were asked by defendant’s agent as to his being insurable, and no statements made by the agent as to who could or could not be insured, and under those circumstances Mr. Hause asked for this policy, paid for it, received the policy, and accepted it, without objection on the part of either, then defendant is estopped from denying its liability because of clause D, and, of course, if these things do not occur, gentlemen, then, of course, there wouldn’t be any liability on this part or branch of the case. In other words, if he did not see this advertisement at all, but he stepped up there and asked for a policy without any regard to the advertisement, and this policy was handed out to him, then I questiqn very much, under this case, whether he could recover at all. But these instructions have reference to his having examined and being directed by the advertisement which was hanging there at the time.”

A verdict having been returned for the plaintiff, and a judgment thereon duly entered, defendant alleges as errors, relied upon in this court, that—

“ The court erred in refusing to give to the jury defendant’s request to charge No. 1, as follows:
“ ‘Under the law and the evidence in this case, yonr verdict will be for the defendant.’
“The court erred in refusing to give to the jury defendant’s request to charge No. 3, as follows:
“ ‘The material allegations in the first count of the declaration are not sustained by the evidence, and plaintiff cannot recover on that count.’
“ The court erred in refusing to give to the jury defendant’s request to charge No. 4, as follows:
“ ‘The evidence in the case does not sustain the material allegations set forth in the second count in plaintiff’s declaration; therefore plaintiff is not entitled to your verdict upon that count.’
“The court erred in refusing to give to the jury defendant’s request to charge No. 5, as follows:
“ ‘ The evidence does not sustain the material allegations set forth in the third count in plaintiff’s declaration; therefore plaintiff is not entitled to a verdict upon that count.’
“ The court erred in refusing to give to the jury defendant’s request to charge No. 6, as follows:
“‘There is not sufficient evidence in the case tending to prove that the defendant at any time waived any of the material provisions in the policy, and you are not authorized to find a verdict for plaintiff on that theory.’
“The court erred in refusing to give to the jury defendant’s request to charge No. 7, as follows:
‘“Plaintiff, in her declaration, relies upon an alleged contract with defendant. This contract is in writing, and the plaintiff is bound by the terms and conditions of said writing. She cannot claim the benefit of those parts of the writing which are favorable to her and ignore such as are not favorable. Under clause D of the ticket or policy, when applied to the undisputed evidence in this case, plaintiff is not entitled to recover, because the assured was at the time that the .ticket was issued over 65 years of age.’
“The court erred in refusing to give to the jury defendant’s request to charge No. 10, as follows:
“‘The evidence is undisputed that Gund, the agent who issued the ticket or policy, acted in good faith, believing from what information was before him that John Hause was not over 65 years of age. Neither Gund nor the defendant company was guilty of any act of fraud or deception, and your verdict will he for the defendant; it being immaterial, in view of these facts, what other people may have thought of the age that his appearance indicated.’ ”

And that the court erred in the charge given, as above set out.

If defendant’s waiver of the provision in clause D of its policy is established, the judgment ought to be affirmed, although the facts supporting the finding are not those submitted to the jury. All of the circumstances are to be considered in determining the question. We are impressed that they conclusively establish a waiver of the provisions of the said clause. If they do not, if upon the facts disclosed this provision of the policy is enforced, a fraudulent business is and may continue to be carried on by defendant. We assume, without hesitation, that it does not intend to conduct a fraudulent business, or to conduct its business in a fraudulent manner, and that it does intend that its agents who sell its post card policies of indemnity shall inform intending purchasers that it in fact offers them to only a portion of the public. Otherwise its advertisement, its course of business, and the circumstances under which it is done, invite any one and every one to buy. They necessarily operate to prevent the purchaser from discovering, after the policy is delivered and the'premium is paid, that the indicated indemnity is not offered to him. They demand affirmative action on the part of the agent before the contract is entered into. The printed rule of defendant, with respect to the age of persons with whom it will contract, is an arbitrary one, made byitself, and may be changed, waived, or abrogated at its pleasure. It should be held to have waived it when such affirmative action is not disclosed, and when it is not shown that the purchaser had knowledge of the condition.

The judgment is affirmed.

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


text:
    SLOAN v. DETROIT UNITED RAILWAY.
    1. Trial — Negligence—Directing Verdict — Animals.
    Upon, the trial of a personal injury case against another defendant and a street railway company in whose car plaintiff was riding when a runaway team, alleged to belong to the other joint defendant, collided with it, injuring plaintiff, the court did not err in directing a verdict for the alleged owner of the team, a corporation, which the evidence did not show owned or controlled the horses or was in any way connected with the accident.

    2. Same — Street Railways.
    But as to defendant street railway company, an inference that the horses, which were beyond the driver’s control, might have been seen and avoided by defendant’s motorman could be fairly drawn, and sufficiently presented a question for the jury.
    3. Same — Joint Tort — Negligence.
    Whether or not the driver of the team was negligent, if the motorman was negligent, defendant railway corporation was liable.
    Error to Wayne; Donovan, J.
    Submitted June 4, 1912.
    (Docket No. 7.)
    Decided October 1, 1912.
    Case by Mary Sloan against the Detroit United Railway and the Detroit Creamery Company for personal injuries. A judgment for defendants- upon a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      O’Neil & Command and Lehman, Biggs & Lehman, for appellant.

      Corliss, Leete & Joslyn and Frazer, Griswold & Sly field {Thomas T. Leete, Jr., of counsel), for appellees.

      Plaintiff’s declaration alleged the duty of the defendant railway company to carry her, a passenger on one of its cars, safely and securely, a violation of duty, and careless and negligent conduct in causing the car to come into violent contact and collision with a delivery wagon, owned and operated by the defendant Detroit Creamery Company, at the intersection of Hendricks and Elmwood streets in Detroit. Specifications of the negligent conduct- of the railway company are (1) failure to note the approach of the delivery wagon and the direction of its movement in time to bring the car to a stop; (2) running the car at excessive speed, to wit, 20 miles an hour; (3) injuring plaintiff, who was a passenger, and herself free from negligent conduct. The duty of the defendant Detroit Creamery Company is alleged to be to drive its vehicles in a careful manner along the highways of the said city, and when approaching a street car crossing, so as to avoid a collision with street cars; the duty of the drivers of its vehicles to stop, look, and listen before attempting to cross a street railway track, to drive at a rate of speed allowed by law, and to have the vehicle in such control in approaching a street railway crossing that it can be stopped upon the near approach of a car. It is alleged that the agent of the creamery company in charge of one of its wagons drove it against the side of a passing street car, at an intersection of streets, in such manner that the tongue of the wagon pierced the side of the car and injured plaintiff, a passenger in the car; the wagon being driven at the time at high speed, wantonly, and recklessly. Issue having been joined, the cause came on for trial by the court and a jury, and the plaintiff, a witness in her own behalf, described how she came to be injured, as follows:
    “ I remember the day of December 5, 1909. On that day I left my home to go to a lady that was doing some sewing for me, who lives on Congress street. I do not know whether the number has been changed. Her number used to be 636. I think it is the fourth house from Chene street. Her name is Mrs. Hayes. When I left my house, I went over to Van Dyke street and called on one of my sons, and stayed a few minutes, and then walked over to Kercheval and took the Kercheval car or the Sherman car. I got on the car. I paid my fare to the conductor. I am not acquainted with those streets, and cannot say just how far I rode on that car; but I think it was to Elmwood and Hendricks streets. I paid a five-cent fare and got a transfer to a south Chene car. The car did not reach south Ohene without a mishap.

      “Q. Just tell the jury now in your own way, and take all the time you want, what happened ?

      “ A. I was watching to see the street where I would get off, to ring the bell — I was not very well acquainted with the streets — I saw a big team coming. It was just coming galloping, and the horses tearing. I never thought they would strike me at all; and the first thing I knew I was knocked right over in the car, and I felt so funny. * * *
    “ Q. Where were you sitting on the ear ?

      “A. I was sitting right against the window.

      “Q. Do you remember at this time the seat that you were in ?

      “A. Well, I was in the second or third seat; I could not say.

      “Q. And were there other people in the other side of the seat?

      “A. Yes, sir; there was a lady and an old gentleman on the same seat.

      “Q. And they were between you and the other side of the car ?
    “A. Yes, sir.

      “Q. So that you had no opportunity to move from the seat where you were sitting ?

      “A. No, sir. * * *

      “Q. Did you have an opportunity to move from the position which you were occupying ? * * *

      l‘A. No, sir.

      “Q. Why?

      “A. Because I did not think I was going to be hurt; I did not see them coming there until they came right there. * * * This was on a Sunday that this happened, and I had an errand to go down to a dressmaker. I first went down to my son’s on Van Dyke; but I started to go to this lady’s on Congress street. I think she lived the fourth house from Chene. I walked down to my son’s. After visiting my son, it was about the noon hour, and after visiting him I started to visit the lady. To go there, I took a Sherman car on Kercheval, intending to ride on that car as far as Chene street, and then transfer and go down to this lady’s house, and before I got to that place we had this accident. After I had the accident, they sent a man for the car. I went to the lady’s house right along. After the accident on the Sherman car, I went on it to Chene street and transferred and went down to my friend’s house. * * *
    “ Q. I understood you to say you were sitting in the second or third seat from the front of the car, a Sherman car, on the day of the accident ?

      “A. Well, I am tired of talking. I have told you that two or three times.

      “Q. I am sorry; but I want to get at two or three things about it. This car was a car that had a middle door?

      “A. I do not know how many doors it had; I could not say.

      “Q. Well, a Sherman car — that car had seats that ran crosswise, did it not ?

      “A. Yes, sir.

      “Q. Mrs. Sloan, the car that you were riding on, the seats ran crosswise, did they not ?

      “A. Yes, sir.

      “Q. And do you remember what street it was that you were near when you saw those horses coming ?
    “A. Well, it was Elmwood and Hendricks, I think.

      “Q. Which way were the horses coming, from down towards the river or the other side ?

      “A. They were coming from down nest the river.

      irQ. And there was a team of horses with a pole between them, and that is part of the rig that ran into the car, you say, near the seat where you were sitting ?

      “A. Yes, sir; the pole with the iron on it.

      “Q. Ran through the car?

      “A. Yes, sir.

      “Q. And just back of the second or third seat from the front ?
    “A. Yes, sir.

      “Q. And then back of the fender the front of the car, the vestibule, and as far as the third seat ?

      “A. Yes, sir.

      “ Q. And this was at noon, or daylight, as I understand it?
    “A. Yes, sir. * * *

      “Q. On this day you say you saw the horses jumping and plunging down the street there, is that right ? * * *

      “Q. It is immaterial to me. I am not familiar with that territory. You say the horses came up the street jumping and plunging ?
    “A. Yes, sir.

      ‘'•Q. They seemed to be out of the control of the man ?
    “A. Yes, sir.
    “Q. What was the man trying to do ?
    “A. He was pulling the reins. I could not see anything else he was doing.”
    A witness testified to measurements of Hendricks and Elmwood streets at their intersection, and to other distances as follows:
    “We made the measurement across Hendricks from curb to curb. The width was 29 feet and 6 inches from curb to curb. On Elmwood it was 26 feet and 3 inches from curb to curb.

      “Q. From curb to curb ?
    “A. Yes, sir; and from the middle of the car track then they measured 42 feet 10 inches south to Elmwood about, and from that point we figured we could see a car 85 feet 6 inches east on Hendricks.
    “Q. Did you have anyone stand there to see if you could see them in that direction ?
    “A. Mr. Command stood there, and I saw him from these measurements.

      l‘Q. You stood on Elmstood and he on Hendricks ?
    “A. Yes, sir.”
    The bill of exceptions contains no other testimony upon the subject of the cause of the injury, the conduct of any agent or servant of either defendant, or the rate of speed of either vehicle. The attorney for the defendant railway company offered in evidence the ordinance under which defendant was operating. There is no testimony respecting the identity or ownership of the delivery wagon which was in collision with the car. A verdict for defendants was directed by the court. Plaintiff moved for a new trial, which was refused. In this court plaintiff relies upon the alleged errors committed in directing the verdict and in refusing a new trial upon the ground of newly discovered evidence.

      As to presumption of negligence from injury to passenger by collision, see notes in 13 L. R. A. (N. S.) 608; 29 L. R. A. (N. S.) 812.

   Ostrander, J.

{after stating the facts). It was not error to direct a verdict for the defendant Detroit Creamery Company, because there was no testimony connecting it or its servants, or property, with what occurred.

It was not error to direct a verdict for the defendant railway company, unless, as plaintiff claims, the circumstances may support the inference that the car was carelessly operated. The circumstance supposed to call for the exercise of particular care on the part of the motorman was the approach of the horses and wagon upon the intersecting street. This circumstance is to be regarded with reference to the duty owing to plaintiff, since she is entitled to recover if the motorman was negligent, though the driver of the wagon was also negligent. Manifestly the conduct of the motorman should have been suited to the appearance of things. If the horses were approaching the crossing at a walk, with the approaching car in plain view of the driver, it would be supposed that the horses, and not the car, would stop, if it became necessary for either to stop. The testimony is — and it must be viewed most favorably for plaintiff — that just before striking the car the horses were running and apparently out of control of the driver. The pole of the wagon pierced the side of the moving car near the front of the car. The team was traveling for some distance in view of the motorman. Usually a team of horses attached to a wagon must move some distance before acquiring any considerable momentum and escaping control. And if we assume that the driver of the horses was controlling and urging them to approach the crossing at speed, his purpose and the risk would ordinarily be apparent to a watchful and careful motorman. In my opinion, the testimony is sufficient to support the inference that the motorman did not exercise the care for the safety of his passengers which the situation apparently demanded, and the case is within the rule of Thurston v. Railway, 137 Mich. 231 (100 N. W. 395), and Sewell v. Railway, 158 Mich. 407 (123 N. W. 2). The inference is, of course, open to rebuttal, and may be wholly destroyed when all of the surrounding conditions are considered. We have before us only the testimony for the plaintiff, and, considering that, we are constrained to hold that the court should not have directed a verdict for the defendant railway company.

The judgment is reversed, and a new trial granted.

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


text:
    SECURITY SAVINGS BANK & TRUST CO. v. ST LOUIS CHEMICAL CO.
    1. Corporations —Reorganization —Conflict of Laws —Foreign Corporations.
    A New Jersey corporation cannot effect a reorganization under ' the laws of Michigan, although it may transfer its assets and business to a Michigan corporation of the same name for a consideration to be agreed upon, the new company assuming the obligations of the old.
    2. Mortgages —Bonds — Issuance —Successor Corporation — Foreclosure.
    And the transfer of assets from the New Jersey company to the Michigan corporation having the same name and assuming its indebtedness, did not invest the new organization with authority to issue unsold bonds of the original corporation, remaining in its treasury, so as to place creditors receiving them on an equal basis with prior bondholders of the New Jersey company.

      Appeal from Gratiot; Searl, J.
    Submitted June 18, 1912.
    (Docket No. 140.)
    Decided October 1, 1912.
    Bill by tbe Security Savings Bank & Trust Company against the St. Louis Chemical Company and another for the foreclosure of a trust mortgage. From a decree denying petitions of Martha H. Wright and others claiming an interest in the resulting fund as bondholders, petitioners appeal.
    Affirmed.

      N. O. Griswold, for appellants.

      Stone & Watson, for appellees.
   Ostrander, J.

A New Jersey corporation doing business in Michigan voted December 28, 1904, an issue of $100,000 of bonds, 200 in number, secured by mortgage on the property of the company and running to the Security Savings Bank & Trust Company, trustee. The bonds were certified by the trustee, and returned to the mortgagor, by which 112 were sold. Of the remaining 88 bonds, 40 were pledged by the mortgagor to the Old National Bank of Grand Rapids, Mich., as security for a line of credit limited to $25,000. The directors of the1 mortgagor company on May 15, 1907, took action evidenced by the following extract from the record:

“ Resolved that whereas the stockholders of this company at a special meeting duly called and held at the office of the company at East Orange, New Jersey, on the 3rd day of May, 1907, by a vote of more than three-fourths of the stock issued and outstanding, passed the following resolution: Resolved, that this company sell all its real and personal property, plants, warehouses, leases, tank car equipment, good will and all of its assets of whatever description and wherever located, to a new company to be organized by stockholders of this company under the laws of the State of Michigan for and in consideration of the sum of $60,000 in cash and the assumption by the said new company of the bonded indebtedness of this company and all of its other indebtedness in excess of said bonded indebtedness plus $60,000 that is admitted to be due at the time of the sale; and further resolved, that the board of directors of this company be and they hereby are authorized and directed to effect this sale as soon as the said new company is organized and ready to transact business; and further resolved, that the actual time, place and other details of the said sale .be left to the board of directors of this company to determine and arrange; and, whereas, the holders of more than three-fourths of the stock issued and outstanding have given their written consent' to the sale of the entire assets of the company, which written consent is filed with the records of the company; and, whereas, the financial condition of the company is such that it cannot continue to operate its plant and maintain its business, and its assets are of such a nature that a failure and foreclosure of the bonded indebtedness would result in a total loss to stockholders and a heavy loss to creditors; and, whereas, the proposed sale is to a new corporation to be organized under the laws of the State of Michigan by stockholders of this company with the privilege extended to all the stockholders of this company to subscribe to stock on the same terms and conditions; and, whereas, this board is convinced that this sale is for the protection of the creditors of the company and will afford all stockholders an equal opportunity to protect their investment and is for the best interests of all concerned: Now, therefore be it resolved, that the said sale be authorized and is hereby authorized and the president of the company be authorized and directed, and he is hereby authorized and directed to execute the deed hereinafter set forth in full, conveying the property, rights and franchises of this company to L. B. Alger of St. Louis, Michigan, and the secretary of the company be authorized and directed, and he is hereby authorized and directed to affix-the seal of this company to the said deed, and attest the same.”

Pursuant thereto, a transfer of all property of the said company was made to a third person, who, in turn, transferred the same to a company organized in the State of Michigan, under its laws, of the same name as the selling company and composed of stockholders of the selling company. The New Jersey corporation filed with the secretary of State of Michigan formal notice that it had ceased to carry on business in the State by reason of a transfer of its “ entire assets, property and rights located in said State.” The Michigan corporation was organized May 16, 1907, with an authorized capital of $300,000 (one-half that of the New Jersey company), $30 being paid in in cash and $299,970 in property acquired from the New Jersey company. Its business was the same as that of the New Jersey company. When the assets of the New Jersey company were transferred to the Michigan company, it owed the Old National Bank of Grand Rapids $18,000, evidenced by two notes, one for $3,000 and one for $15,000; this amount being included in the sum of $56,466.84, which was the total of debts, exclusive of bonded debt, owing by the New Jersey company. The Old National Bank was paid and surrendered up the bonds held by it as security. It returned 11 of them ($5,500 par value) to the secretary of the Michigan company, and sent the remainder, by direction of said company, to other banks. The Michigan company defaulted interest on its bonds and was otherwise in default, and the trustee foreclosed the trust mortgage. The mortgaged property was sold, producing for distribution among bondholders something more than $23,000. Creditors of the company, to whom 31 bonds in excess of the 112 sold by the New Jersey company had been pledged as security, who had sold them in default of payment of their debts, petitioned the court to be allowed to share pro rata in the distribution of the fund. This was refused, and these creditors have appealed to this court. The question presented is whether these bonds stand equally secured by the mortgage given by the New Jersey company. The trial judge was of opinion that neither reason nor precedent supported the proposition that “officers of a new corporation can give validity to unissued bonds of another corporation, even though it succeeded to all its assets and was bound to pay all its debts.”

Appellants contend that the New Jersey company was reorganized, the new or second company merely succeeding to all of the property and rights of the old company. One of the rights of the old company was, it is said, to sell for cash, or to pledge as security, any of its unissued bonds.

It is manifest that the original corporation was not reorganized. It was a foreign corporation, and its right to reorganize would derive from New Jersey laws. It had never sold the 31 bonds in question. The Michigan corporation never voted to issue, or issued, any bonds. It assumed the mortgage debt incurred by the old company. It might have made a new and second mortgage of corporate property to secure a new issue of bonds, but could not deprive the holders of bonds secured by the first mortgage of their prior lien.

The decree must be affirmed, with costs to appellees.

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