author: Bird, J. Ostrander, J.

text:
    LOVELL v. DENISON.
    1. Fraudulent Conveyances — Debtor and Creditor — Garnishment.
    As to a creditor whose account accrued after a voluntary conveyance of' property by the debtor, actual fraud as well as specific intent to defraud must appear to entitle the former to treat the conveyance as invalid.
    2. Same — Charge—Burden of Proof.
    The court erred in charging that such conveyance was presumptively fraudulent as to a subsequent creditor. The secret transfer of property by the debtor who thereafter increased her indebtedness upon the appearance of remaining the owner may be convincing evidence of an intent to defraud; that the creditor did not know of the transfer when he extended credit does not relieve him of the burden of showing actual fraud.
    Error to Bay; Collins, J.
    Submitted April 12 1911.
    (Docket No. 85.)
    Decided July 26, 1912.
    Garnishment by Clifford Fi Lovell against William E. Denison as garnishee of Genevieve S. McCormick, principal defendant. Judgment for plaintiff. Garnishee defendant brings error.
    Reversed.

      DaFoe & Johnson, for appellant.

      Frank 8. Pratt, for appellee.
   Bird, J.

This proceeding was instituted under the garnishee law to determine whether the garnishee defendant had money or property in his possession belonging to the principal defendant. It was so adjudged by a jury, and judgment was accordingly rendered against him. By writ of error, the case has been brought to this court for review.

Upon the death of her mother in February, 1908, Genevieve McCormick, the principal defendant, became the owner of her estate. The estate consisted of personal property of the value of nearly $1,500, and real estate appraised at $6,500. The debts owing by the estate amounted to about $4,000. Mrs. McCormick had no way of paying the claims against the estate, and, after consulting with relatives, made a proposition to the garnishee defendant that if he would pay the claims against the estate, she would convey the real estate to him. Denison later accepted her proposition, and the same was conveyed to him on the 29th day of April, 1908; but he did not place the deeds of record until July 29, 1908. Between the 1st day of May and the date on which the deeds were recorded, Mrs. McCormick became indebted to the plaintiff for wearing apparel. She neglected to make payment therefor, and in February, 1909, a judgment was rendered against her for $213.96, and costs of suit. This judgment was subsequently reduced, by an execution levy and sale, to $197.85. Garnishee proceedings were instituted against the defendant Denison. He answered that he had no money or property in his possession belonging to her. Interrogatories were subsequently filed and answered. Then a demand for trial was filed to test the truth of his disclosures, and it resulted in a judgment against him for the amount of plaintiff’s claim.

It was the claim of plaintiff that he extended credit to Mrs. McCormick on her apparent ownership of the estate and on her representations that the estate was solvent: these facts, together with the further facts that the transfer was unknown to him, and was withheld from record until after the credit had been extended, operated as a fraud in law upon him. On the other hand, it was contended by defendant that he purchased the real estate in good faith, paying nearly full value for it during the financial depression of 1907-08, and that the goods for which plaintiff now seeks to recover were purchased after the transfer to defendant, thereby making plaintiff a subsequent creditor, and as such he could not recover, without showing actual intent to fraud.'

The trial court eliminated the question of intent to defraud, and charged the jury that if plaintiff extended credit to Mrs. McCormick on her apparent ownership of the estate they might render a judgment against the garnishee defendant for the amount of plaintiff’s claim, provided they further found that the ’ value of the property transferred to him was sufficient to cover both what he had paid on the indebtedness Of the estate and plaintiff’s claim.

The defendant requested the court to instruct the jury that at the time the transfer was made by Mrs. McCormick to Denison she must have intended to injure, delay, and defraud creditors. We think no recovery could be had, unless she did so intend. If the plaintiff had been an existing creditor, the law would have presumed the intent ; but this is not the rule as to a subsequent creditor. In the case of a subsequent creditor, there must be proof of an actual intent to defraud some particular creditor, or creditors generally. This distinction is very clearly set forth by Mr. Justice Grant, in Cole v. Brown, 114 Mich. 396 (72 N. W. 247, 68 Am. St. Rep. 491), where it is said:

“While no fraudulent intent is necessary to set aside voluntary conveyances as to existing creditors, it must be established in order to set them aside as to subsequent creditors. In other words, actual fraud must be shown, and as well the specific intent to defraud the individual subsequent creditor complaining, or subsequent creditors generally. Wait, Fraud. Conv. §§ 96, 202; Simmons v. Ingram, 60 Miss. 898; Florence Sewing Machine Co. v. Zeigler, 58 Ala. 224. In the case of Howe v. Ward, 4 Greenl. [Me.] 195, an exhaustive examination of this subject was made, and many authorities cited and discussed. The conclusion reached in that case is thus stated;
“ ‘If the party for whose benefit the proof is introduced was not a creditor at the time the alleged fraudulent conveyance was made, such proof cannot avail him, unless found sufficient to convince the jury that the conveyance was made for the purpose of defrauding him in particular, or subsequent creditors generally, as well as those who were creditors at the time, if there were any such.’”

The question was again before the court in Barkworth v. Palmer, 118 Mich. 50 (76 N. W. 151), a case wherein the facts were much like those in the present case. The case of Cole v. Brown was followed; the court saying, among other things, that—

“ In order for the complainants to recover in this case, they should have shown that, at the time when these deeds were made, there was an express design on the part of the defendants to subsequently obtain credit from the complainants, and defraud them.”

We are of the opinion that the trial court was in error in refusing to charge as requested, and that he was also in error in submitting the case to the jury upon the theory which he did.

For these reasons, the case will be reversed and a new trial ordered.

B£<air, J., concurred with Bird, J.

Ostrander, J.

(concurring). Borne facts are herein stated which are not called to attention in the opinion of Mr. Justice Bird. The principal defendant had a running, open account with plaintiff, the first debit item thereof being entered December 9,190?; the last, July 31, 1908. The total debits amounted to $110.44 February 29, 1908, and were balanced by a cash credit of like amount. Beginning March 21, 1908, the debit items are continued with two credits, one of May 14,1908, $54.34, one of June 15, 1908, $55.72. The payment of May 14th left a balance unpaid of $37.19, and the payment of June 15th a balance of $98.62 But the payment of'May 14th was equal to the indebtedness existing April 29, 1908. She conveyed property to the garnishee defendant April 29, 1908; the deeds being recorded July 29, 1908. Plaintiff learned of the conveyances in January, 1909. The plaintiff was therefor a creditor of the principal defendant when the property was transferred, and has ever since been her creditor. There is testimony tending to prove that before and after the conveyances to the garnishee defendant were made, plaintiff extended credit to the principal defendant, relying upon her apparent ownership of property as heir of her deceased mother and upon the representation of the principal defendant that the estate was solvent. It was property of the said estate which was conveyed to the garnishee defendant.

In Cole v. Brown, 114 Mich. 396 (72 N. W. 247, 68 Am. St. Rep. 491), this court adopted the rule that, where the creditor’s judgment is for items of indebtedness, some of which were incurred before and some after the conveyance of the debtor’s property, the conveyance of property is presumptively fraudulent as to the debt then existing and valid as to indebtedness subsequently contracted, following the rule of the Pennsylvania courts. The court was there dealing with a case where there was no actual intent to defraud any creditor, existing or subsequent. See, also, Barkworth v. Palmer, 118 Mich. 50 (76 N. W. 151). Appling the rule in this case, it is evident that the judgment of the plaintiff is wholly for an indebtedness ^contracted after the conveyances in question were made by the debtor. The question is whether the rule stated ought to be applied. It should be applied, unless the fact that the creditor had no knowledge or notice that the debtor had transferred her property forbids its application. The whole doctrine of the fraudulent character of property transfers, as against creditors, where there is no actual intent to defraud, rests upon the idea that property is the basis of credit, and that, presumptively, credit is extended in reliance upon what the debtor possesses.

A secret transfer of property by a debtor, who thereafter increases his debts, or contracts others, upon the appearance that he still owns that which he has conveyed away, may be convincing evidence of an intention on his part to defaud. If such an intention, as to a particular creditor, is found to exist, no more is required. It is plain, however, that in such a case the plaintiff’s recovery will be based upon actual, and not presumptive, fraud. I agree, therefore, with the conclusion stated by Mr. Justice Bird. Plaintiff’s recovery, being for a debt contracted after the debtor transferred her property, cannot be sustained because the court in the charge applied the rule of presumptive fraud, and did not submit to the jury the question whether the purpose of the conveyances, in the light of all the facts, was fraudulent as to plaintiff, a subsequent creditor.

McAlvay and Stone, JJ., concurred with Ostrander, J.


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    PACCALONA v. PENINSULA BARK & LUMBER CO.
    1. Judgment —Res Judioata — Issues Concluded — Abatement of Actions.
    It was erroneous to overrule a plea of former adjudication, in an action upon a contract to manufacture tan bark that plaintiff claimed to have delivered to defendant, where defendant had brought a previous action against plaintiff and had recovered a judgment against him for over-payments on the contract and where plaintiff subsequently brought this action to recover damages for bark delivered, not credited, as he claimed, in the previous verdict, but necessarily passed upon by the former verdict and judgment, since the issue therein depended upon the amount of bark delivered and the payments made.
    2. Same — Set-off—Conclusiveness of Judgment.
    Plaintiff could not divide his claim into two portions, treating part of it as a set-off which he need not try out in the first . proceeding.
    Case-made from Chippewa; Steere, J.
    Submitted June 8, 1911.
    (Docket No. 21.)
    Decided October 1, 1912.
    Assumpsit by Louis Paccalona against the Peninsula Bark & Lumber Company for an amount due plaintiff for services rendered and materials furnished under a special contract. An order overruling a plea in abatement is reviewed by defendant on writ of error.
    Reversed.

      E. S. B. Sutton, for appellant.

      Albert E. Sharpe, for appellee.
   Bird, J.

The complainant commenced an action of assumpsit against the defendant, and filed his declaration containing a special count and also the common counts, and later He filed a bill of particulars showing that his claim was for 225f cords of tan bark at $4 per cord.

The defendant filed a plea in abatement, which set up, in substance, a former adjudication of plaintiff’s claim. A hearing on the plea in the trial court resulted in an order overruling it. The defendant now contends in this court that the trial court was in error in overruling its plea.

The record discloses that Paccalona contracted with the defendant company to manufacture certain quantities of logs and tan bark during the seasons of 1906-08. For manufacturing the tan bárk, he was to receive $4 per cord. After the close of the last season, the defendant claimed that it had overpaid plaintiff, and sued to recover the excess. Paccalona pleaded the general issue and gave notice of a former settlement; and, further, that the defendant company’s system of checking was an unfair one. The issue was tried out, and the jury found due the defendant company $140.77. It is this judgment which the defendant now claims is res adjudicata of Paccalona’s claim.

The plaintiff, to avoid the effect of this judgment, argues that, whereas defendant gave him credit in that suit for 2,310J cords of bark, he was really entitled to credit for 2,536 cords. He insists that he is not attempting to recover for what he was' given credit in the other suit, but only such part, to wit, 225f cords, which he was not credited with.

The defendant, on the other hand, argues that it sued plaintiff to recover the over-payment on certain special contracts, and filed a bill of particulars showing the entire amount of logs and bark delivered to it on the contracts and the amount of the advancements made thereon, and that plaintiff put in his pleadings and made a defense, and that upon the whole account the jury found him indebted to it in the sum of $140.77, and that the question litigated necessarily involved the amount of bark which he delivered; that if plaintiff were entitled to the 225f additional cords, he should have made a claim for it in that suit, but, having failed to do so, he is now estopped by that judgment.

The subject-matter of the contracts between the parties was the manufacturing of logs and bark. As the work proceeded upon these contracts, advancements were made to Paccalona. When the work was finished and checked up, the company’s books showed that Paccalona had been overpaid. The suit to recover this overpayment followed. It would seem as though the question of how much bark had been delivered upon these contracts was in issue at that trial. It would, indeed, be difficult to ascertain how much overpayment, if any, there had been upon the contracts, without first determining the quantities of logs and bark it delivered in pursuance of them.

It is argued that the law made it optional with Paccalona whether he would litigate his set-off in that action or in the present one, and that, as he pleaded no set-off in the former suit, he is at liberty now to sue and recover for it. We cannot adopt this reasoning. If Paccalona’s set-off had consisted of an independent claim against the company, outside of the contracts, we agree that the law would permit him to do so, but when his claim grows out of certain contracts, and the issue is to determine what was due upon these contracts, and the subject-matter of the set-off must be used in determining that amount, it. then becomes the duty of Paccalona to present his whole claim; and if he fails so to do he will be estopped from afterwards asserting it in a counteraction. Suppose Paccalona’s set-off had been for certain bark delivered to the company before these contracts were made, or for extra work after they were made, then it would be clear, as counsel argues, that he could plead it in set-off to the company’s demand, or withhold it and bring a countersuit; but such is not the case here.' Paccalona’s set-off grows out of the contracts, and, in order to determine the issue, it' was necessary to determine how much bark was delivered by Paccalona upon the contracts. If he failed to assert his claim, which he now insists upon, we think he is estopped from showing it.

Much reliance is placed upon McEwen v. Bigelow, 40 Mich. 215, by plaintiff in support of his contention. The present case differs from that one, in that the subject-matter of both of the cases involved in this litigation is confined to matter growing out of the contracts; whereas in McEwen v. Bigelow there was no controversy over the amount due upon the special contract, but the differences arose over the claim for “extras” which were outside of the contract.

We are of the opinion that the cause of action was not divisible, and that plaintiff’s claim is barred by the former adjudication. Hazen v. Reed, 30 Mich,. 331; Huntoon v. Russell, 41 Mich. 316 ( 2 N. W. 38).

The order of the trial court overruling the plea is vacated, and one will be entered sustaining it.

Moore, C. J., and McAlvay, Brooke, and Ostrander, JJ., concurred.


text:
    JONES v. CITY OF DETROIT.
    1. Evidence — Measurement—Directing Verdict.
    In an action for personal injuries caused by an alleged defect in a city street, the court properly directed a verdict for defendant upon the testimony of its city photographer who measured the depression that caused the accident, finding it to be three inches deep, as against the testimony of plaintiff’s witnesses who variously estimated it to be from two and onehali to six inches in depth, without taking actual measurements.

      2. Municipal Corporations — Highways and Streets — Negligence.
    The city was not chargeable with negligence for permitting a depression to exist in its asphalt pavement three inches deep and about the area of a washtub.

    Error to Wayiie; Murfin, J.
    Submitted June 16, 1911.
    (Docket No. 76.)
    Decided October 1, 1912.
    Case by William Jones against the city of Detroit for personal injuries. A judgment for defendant upon a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Chamberlain, May, Denby & Webster, for appellant.

      Edmund Atkinson (P. J. M. Hally, of counsel), for . appellee.

      The authorities on the general question of the liability of a municipal corporation for defects or obstructions in streets are collated in an extensive note in 20 L. R. A. (N. S.) 513.

   Bird, J.

The plaintiff brought this action, under the statute, against the city' of Detroit to recover for personal injuries incurred by reason of a defective street. He was employed by Vinton & Co., building contractors, and at the time of the accident was riding east on Jefferson avenue in his employer’s auto truck, which was being driven by another employé at the rate of from 8 to 10 miles an hour. As they approached the intersection of Jefferson and Field avenues, they turned off from the street car track, where they had been driving, to avoid an approaching street car, and in so doing ran one of the forward wheels into a hole or depression in the asphalt pavement, and the axle broke, throwing plaintiff to the pavement on his head and shoulders and injuring him. The broken axle was afterwards examined and found to contain an old break or flaw. The testimony shows that the pavement in this vicinity was in rather bad condition, due to holes worn in it by the passing traffic. The depression in question was described as saucer-shaped, and as large in area as a washtub. The plaintiff’s testimony as to the depth of the depression varied from 2\ to 6 inches. These were simply estimates, however, as none of plaintiff’s witnesses measured it. One witness, the city photographer, measured it, and found that its greatest depth was 3 inches.

At the close of the testimony, the trial court found, as a fact, that the hole was only 3 inches in depth, in accordance with the testimony of the city photographer, and directed a verdict for the defendant, on the ground that a hole of that size in the pavement did not make the street out of reasonable repair and unsafe and unfit for travel.

Complaint is made because the trial court found, as a fact, that the whole was only 3 inches in depthj while several of plaintiff’s witnesses estimated that it was from 2% to 6 inches. The city photographer measured its depth, while the other witnesses merely estimated it. The testimony was in a like situation in the case of Perkins v. Township of Delaware, 113 Mich. 379 (71 N. W. 644), and the court, in passing upon it, said:

*' The highway commissioner made a measurement, and testified that at the north end there was an incline to the east of one inch. There is nothing in the record to impeach this actual measurement, and it must stand as true. The practice of permitting juries to base their verdicts upon guesses or estimates of distances or conditions which are susceptible of actual measurement is to be condemned. It is the duty of the plaintiff who seeks to recover damages for negligence to place before the jury the actual conditions when it is within his power to do so.”

If this case is to be followed, we think the trial court was justified in finding as he did.

But it is argued by plaintiff that, conceding the greatest depth was only 3 inches, it was still a question of fact, under all the circumstances, whether the street was in reasonable repair; and therefore the case should have been submitted to the jury. The statute is aimed at a condition of reasonable repair, not one of perfect repair. It is hardly probable that the legislature of 1879, which enacted the law, nor the legislature of 1887, which reenacted it, had in mind that by so doing it would make municipalities liable for such holes or depressions in the roadways of the State. It is true that a pavement with several of such holes might make it jolty and unpleasant to ride over, but would not render it unsafe, if it were used as a highway is ordinarily used. Depressions of 3 inches in a country road would not render it unsafe, and, if not, why should they mak,e a pavement unsafe ? Nearly all highways have- more or less rough and uneven places in them, over which it is unpleasant to ride; but because they have, it does not follow that they are unfit and unsafe for travel. The most that can be said for the testimony in this case is that it established the fact that the pavement on that part of Jefferson avenue was rough, and called for more careful driving than did other portions of it. Had plaintiff’s driver recognized this, he doubtless would have passed over it in safety, as hundreds of others were doing daily.

We are of the opinion that the trial court was right in holding that the plaintiff had made no case for the application of the statute. See Leslie v. City of Grand Rapids, 120 Mich. 28 (78 N. W. 885).

The judgment of the trial court is affirmed.

Moore, C. J., and BrooEe, Stone, and Ostrander, JJ., concurred.


text:
    WALLS v. CITY OF DETROIT.
    Municipal Corporations — Negligence—Highways and Streets.
    It was negligence for a municipal corporation to permit the traveled portion of a street to be obstructed by a pile of crushed stone and sand, Without a warning lamp or other danger signal to mark the place, after it had notice of the obstruction which was left in the highway by persons having no oontraot relations with defendant.

    Error to Wayne; Donovan, J.
    Submitted June 16, 1911.
    (Docket No. 83.)
    Decided October 1, 1912.
    Case by Edward Walls against the city of Detroit, for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      John H. Dohrman, for appellant.

      Edmund Atkinson (P. J. M. Hally, of counsel), for appellee.

       As to notice of claim and cause of injury as condition of municipal liability for defect in highway, generally, see note in 20 L. R. A. (N. S.) 757.
      As to validity of requirement of notice of injury as a condition of municipal liability, see note in 36 L. R. A. (N. S.) 1136.

   Bird, J.

The plaintiff while driving his automobile on Dix avenue, in the city of Detroit, ran into a pile of crushed stone and sand, which had been deposited upon the pavement near the curb line by private contractors for the purpose of constructing a sidewalk. When the automobile ran into the obstruction, it overturned, and fell against a passing street car, throwing plaintiff out and injuring him, and he has instituted this suit to recover damages therefor. At the close, of the plaintiff’s proofs, the trial court directed a verdict for the defendant on the ground that the city was not liable because the obstruction was created, not by the city, but by third parties who had no contract relations with the city. There seems to have been a delay in construction, owing to several shade trees standing in the line of the walk, which the contractors were waiting to have removed, and the testimony shows that the obstruction had remained in the street for a period of time ranging from three to ten weeks. There was little question as to whether the city had notice of it, because it maintained a warning light on it at least a portion of the time. Whether a warning light was displayed on or near the pile at the time plaintiff ran into it, the testimony was in conflict.

The liability of the city in such a case is fixed by statute. 1 Comp. Laws, § 3441 (2 How. Stat. [2d Ed.] § 2462). The construction put upon this statute by the court is that where an obstruction has been placed in the highway by third parties, which renders it unfit and dangerous for public travel, it creates a liability against the city, after it has actual or constructive "notice thereof. Joslyn v. City of Detroit, 74 Mich.-458 (42 N. W. 50). After the statute of 1879 (Act No. 244, Pub. Acts 1879) was superseded by the present act of 1887 (Act No. 264, Pub. Acts 1887), this court passed upon the question again, affirming the construction of Joslyn v. City of Detroit. McEvoy v. City of Sault Ste. Marie, 136 Mich. 172 (98 N. W. 1006). More recently the same construction was applied and a judgment affirmed in Schelske v. Township of Orange, 147 Mich. 135 (110 N. W. 506). These cases so fully dispose of the question involved here that it is unnecessary to give it any further consideration.

It is further argued by counsel for the city that plaintiff had seen and known of the obstruction before the night in question, and that he was guilty of contributory negligence in failing to observe it and in driving his car at a high rate of speed. This testimony, taken in connection with the other testimony in the case, made the question of plaintiff’s negligence one of fact for the jury. We think the trial court was in error in directing a verdict for the defendant. The case should have been submitted to the jury-

The judgment is reversed, and a new trial ordered.

McAlvay, Brooke, Stone, and Ostrander, JJ., concurred.


author: Ostrander, J. Bird, J.

text:
    MONGER v. NEW ERA ASSOCIATION.
    1. Judgment — Res Judicata — Insurance—Appeal and Error.
    Where defendant, in an aotion on a mutual benefit policy, offered evidence of a by-law, passed subsequent to the issuance of the policy, but by its terms affecting the rights of the beneficiary, and requiring plaintiff to exhaust his remedy in the tribunals of the order, whose judgment should be final, and where the trial court held that the defendant had waived the effect of such by-law by refusing on other grounds to recognize any claim under the policy, but the judgment was reversed and the by-law held to be a part of the contract on appeal, the judgment of the Supreme Court was res judicata on the trial of a new suit between the defendant and plaintiff’s administrator as to the objection that the subsequently enacted by-law was not shown to have been legally adopted: the effect of such by-law having been determined in the first action on the policy, and the evidence being identical in both cases, the court will not consider the point a second time upon a new set of objections.
    3. Insurance — Mutual Benefit Policy — Fraud—Judgment.
    After pursuing his remedies in the tribunals of the fraternal beneficiary association, plaintiff could not, in the absence of fraud, attack their adverse determination by an action on the policy, which by its terms prohibited suits against the society by its members.
    3. Same — Fraternal Societies — Life Insurance.
    Where the by-law of the association was proved from its records, and oral testimony was introduced tending to show that the society duly enacted the by-law, which was thereafter treated as in force and circulated among the members, and filed with the insurance commissioner, the fact that the names of defendant’s officers instead of being signed were printed and pasted in the official record with the printed bylaw, did not render the evidence incompetent and it sufficiently proved the enactment of such by-law.
    4. Same.
    The decision of this court in the case of Monger v. New Era Ass’n, 156 Mich. 645 (121 N. W. 823, 24 L. R. A. [N. S.] 1027), held, conclusive as to plaintiff’s rights.
    Moore, O. J., and Bird, J., dissenting.
    Error to Berrien; Coolidge, J.
    Submitted April 12, 1911.
    (Docket No. 100.)
    Decided October 1, 1912.
    Assumpsit by Joseph Monger,-administrator of the estate of Maria Monger, deceased, against the New Era 'Association upon a benefit certificate. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      Kleinhans & Knappen, for appellant.

      John J. Sterling ( William G. Hicks, of counsel), for appellee.
   Ostrander, J.

The assignee of the beneficiary in a benefit certificate issued by defendant upon the life of Llewellyn Monger recovered a judgment thereon in the circuit court for the county of Berrien, which judgment this court reversed. Later a rehearing was denied. Monger v. New Era Ass'n, 156 Mich. 645 (121 N. W. 823, 24 L. R. A. [N. S.] 1027). In that suit the defendant gave notice with its plea that it would give in evidence and insist in its defense:

“(3) That the benefit certificate issued to the said Llewellyn Monger, if in fact issued, was issued subject to all the conditions of the constitution and laws of defendant association, and liable to forfeiture if said member did not comply with the said conditions, constitution, and laws and such as might thereafter be legally enacted by this association; and that the application made by the said Llewellyn Monger for membership in defendant association, and for the issuance of a benefit certificate provided:
“ ‘ I do hereby consent and agree that this application in all its parts, together with the laws of said association now in force and those that shall hereafter be legally enacted, shall form the sole basis of admission to a membership in said association.’
“That in the constitution and laws of defendant association at the time of the alleged death of the said Llewellyn Monger, and at the time of the commencement of this suit, was the following provision, namely:
“ ‘ The cabinet shall have power to pass on all death claims or other claims, and if, in its judgment, any such claim is not on its face a valid one, it shall notify the beneficiary or beneficiaries of the deceased member thereof, and give them or their attorney, an opportunity to appear before the cabinet within sixty days thereafter, and present such evidence as they may have to establish the justness or validity of such claim, and such decision shall be final on such claimant unless an appeal is taken to the senate. The notice of the appeal from the decision of the cabinet to the senate must be filed with the general secretary within thirty days thereafter, and no suit at law or in equity shall be commenced or maintained by any member or beneficiary against the association.’
“That the foregoing provision of the laws of defendant association became, and was, a part of the contract made by and between the said Llewellyn Monger and defendant association, if, in fact, any contract was made. That since the alleged death of the said Llewellyn Monger, the beneficiary in said benefit case, if in fact issued, or the plaintiff in this case, have neither of them filed with the cabinet of defendant any death claim, or other claim, although the cabinet of defendant has at all times been ready to receive and pass upon any claim arising out of the death of the said Llewellyn Monger, if any. And that by and on account of the laws of defendant association, as aforesaid, and by the contract, if any, made between the said Llewellyn Monger and defendant, the beneficiary in said benefit certificate, if issued, or any assignee thereof, including the plaintiff in this case, has no standing in this court, and could not and cannot commence a suit at law or in equity against defendant association on account of any benefit certificate whatever.”

Pursuant to this special notice of defense, the defendant upon the trial produced and offered in evidence testimony tending to prove that" no claim on account of the death of Llewellyn Monger was ever brought before the New Era cabinet by any person; that no action had ever been taken by the New Era cabinet upon a claim arising upon the death of Llewellyn Monger. It also produced as a'witness the general secretary of the defendant, New Era Association, who testified that he had been general secretary since the association was organized in October, 1897. He produced and identified a book, which he testified was the official journal of the meetings of the governing bodies of the New Era Association. This record, or certain parts or portions of it, was offered and received in evidence. The record purported to show a bylaw adopted by the said association, amending the laws of the association, corresponding with the one noticed and set out in the plea of the defendant. The parties having rested, the defendant requested the court to instruct the jury that, under the constitution and laws of defendant in force at the time of the death of Llewellyn Monger, and up to the time of the commencement of the suit, it was the duty of the beneficiary under the certificate and of her assignee, the plaintiff, to offer proof of the claim to the cabinetof defendant; that the laws provided machinery for hearing and passing upon all claims against defendant growing out of deaths and for proper appeal, and that no suit should be brought upon a certificate in any court except the courts of the defendant as constituted; that this agreement was valid and binding; that neither the beneficiary nor plaintiff ever filed any claim with the cabinet or asked for a hearing before that body; that therefore the verdict should be no cause of action. This instruction was refused. Defendant moved for a new trial, in deciding which the learned trial judge said, among other things:

“Counsel for defendant contends that it was the duty of the beneficiary to take her claim before the courts of the defendant order as required by its constitution and laws, and that for this reason she has no standing in a court of law. * * * My opinion is that in this case the operation of the rule requiring the beneficiary to proceed in the tribunals furnished by the association, and not to proceed in the civil courts of the State, was waived by the action of'the secretary on the ground that the company refused to take any action in the premises.”

The refusal to instruct the jury as so requested, and the refusal of the trial court to direct a verdict upon that ground at the close of the trial, were assigned as error in this court. The point was made in the brief for appellant in this court and the subject of the effect of the said bylaw was elaborately presented. The appellee in her brief in this court argued that this by-law was waived because defendant denied all liability. It was further contended in her brief that the by-law was unconstitutional and void; that it was unreasonable and unfair, and these contentions were somewhat elaborately presented to the court with citations of authority. It was not suggested that the bylaw had not been properly adopted. There was no intimation of an objection to its validity, based upon the fact that it appeared in the record of the defendant in printed rather than in written form, and was not in the record identified or attested by the written signatures of officers. In its opinion this court said:

This court is asked to reverse this judgment, principally upon the ground that plaintiff, before resorting to her suit at law, did not have her claim adjudicated in the properly constituted tribunals of the order, and that the court erred in refusing to so charge the jury, and in refusing to instruct a verdict for defendant. Upon the facts which bear upon this proposition there appears to be little or no dispute.”

After reciting some of the documentary evidence, the opinion proceeds:

“The language of the laws of defendant’s association at the time of Mr. Monger’s death was practically identi» cal with the laws of other fraternal benefit orders, as to -the tribunals established, and the mode of procedure for adjudicating claims, which have several times been considered by this court. The record shows that neither the beneficiary nor the claimant made any further attempt to bring this claim before the tribunals of the order. Unless we can hold that the action of the general secretary was a waiver of the laws of defendant, or a rejection and denial of her claim, the contention of defendant must be held good. * * *
“ Counsel for plaintiff do not dispute the legality of a contract wherein the member has agreed to be bound by future legally-enacted laws. They, however, insist, by cogent argument, that no change which deprives a member of a vested right, or which is unreasonable, can be said to have been legally enacted, which, applied to the case at bar, means that the right which this member had at the time he was admitted to proceed in the civil courts to enforce any claim under his certificate was a vested right, of which he could not be deprived by subsequent enactment.”

. After stating reasons for sustaining the contention of the appellant and denying those of the appellee, it was said:

“ Our conclusion is that this after-enacted legislation was reasonable; that it pertained to, and was within the authority of, the organization to enact; that it did not deprive this member of any vested right. It was binding upon him and his beneficiary, and within the terms of his voluntary agreement with the association. Therefore this claim should have been submitted to the tribunals established by the association.”

The judgment was reversed, with a provision for a new trial. The suit was discontinued. The plaintiff therein died. Her administrator, plaintiff in the case now presented, filed a claim before the cabinet of the defendant pursuant to its laws. It was heard in December, 1909, and disallowed. Plaintiff thereupon appealed to the senate in accordance with defendant’s laws, and in February, 1910, the claim was again disallowed. Thereupon plaintiff, as representative of the former plaintiff, now deceased, began this suit, upon the same certificate, for the same demand. The defendant under its plea again gave notice of the special matter of defense hereinbefore referred to, and, in addition thereto, that plaintiff’s intestate brought her action for the said debt or cause of action in the declaration mentioned, and that such proceedings were had that it was considered by the final judgment of this court that the said Maria Monger, plaintiff’s intestate, should take nothing by her writ in respect to the said debt or cause of action as by the records of the said court appears, and defendant prayed judgment if the plaintiff ought to be admitted to say that he is entitled to bring this suit against this defendant. Upon the trial, defendant’s record book which has been referred to was again produced and offered in evidence, and it was then and is now objected to the record of proceedings taken in the course of the adoption of said by-law that the matter of such proceeding and the signatures were in printed form and pasted in the book and not attested by signatures of proper officers written upon the book; that, therefore, the record was questionable. No such objection was raised at the first trial. The trial court excluded that portion of the record as not sufficiently proved. Concerning the book and record itself, it is said in the brief for appellee that at the end of the trial:

“A new and hitherto unknown record was introduced. * * * This was the first time it was ever offered in evidence during this long litigation.”

Reference to the records establishes the fact that the same pages of the same record were introduced upon both trials. There is, and can be, no doubt about the matter. It is said in the opinion of Mr. Justice Bird :

“ This by-law was made a direct issue by the pleadings. It was an important element in the case to both parties because if established it seriously affected the plaintiff’s right of recovery. Under such circumstances, the record of its enactment should have been established by evidence which would have left little room for doubt of its authenticity. Beyond the fáct that the by-law is found in the record book of the association, there is little to prove its authenticity. * * * We think the trial court was right in excluding the law upon the ground that it had not been properly proved.”

In my opinion, the matter was disposed of by the opinion and judgment of this court, and is res judicata. By that opinion and judgment plaintiff was denied the right to enforce this demand in the courts of the State and was relegated finally and irrevocably to the tribunals of the defendant order.

I express a further ground of dissent, namely, that the plaintiff in this action, pursuant to the judgment of this court, presented the demand in ¿he courts of the defendant order. He is not permitted to take the judgment of those tribunals, and thereafter, the judgment being adverse and no fraudulent conduct charged or relied upon, pursue his remedy in the courts of the State.

It is true that the judgment of this court reversed the judgment of the lower court and that no other judgment determinative of the rights of the-parties was thereafter entered. But the judgment of this court was conclusive upon the subject of the binding effect of the particular law upon the certificate holder and his beneficiary upon that record. It is equally conclusive upon this record.

“ Verdicts and judgments are conclusive evidence of the facts which they profess to find and which are necessary to uphold them, because those facts were properly in issue, were the subject of inquiry, and were upon such inquiry judicially determined. But in regard to facts about which the court could have made ho inquiry, no inference can be drawn from its determination.” Dickinson v. Hayes, 31 Conn. 417, cited with approval in Jacobson v. Miller, 41 Mich. 90, 98 (1 N. W. 1013, 1018).

See, also, Bond v. Markstrum, 102 Mich. 11 ( 60 N. W. 282); Hall v. City of Kalamazoo, 141 Mich. 503 (104 N. W. 689). I do not intimate that when the judgment of a trial court is reversed by this court, and a new trial granted, upon a new trial testimony other than, different from, or in addition to, that offered on the first trial may not be admitted and have the effect of requiring a wholly different determination of the fact or facts in issue. No such case as the one suggested is presented. The testimony in the case now presented is the same as that presented upon the former trial so far as the particular fact involved in the judgment of this court is concerned. In effect, this court is asked to consider the same record a second time, in view of a new set of objections. Upon this record, upon the other appeal, plaintiff was advised that his only remedy was through the tribunal established by the laws of defendant association. The result must be the same now.

While I regard it as immaterial, it is not improper to say that I find abundant evidence of the proper inception, passage, and approval of the law of defendant which requires such demands as plaintiff’s to be presented to and determined by the special tribunal, and I am of opinion that the trial court should have held that it was established. The record was authenticated, generally,- the printed portions appearing on certain pages pasted into the book included the printed signatures, or names, of proper attesting officers. That such action as the printed matter purports to record was in fact taken was shown by oral testimony, and was not disputed. The law was published, circulated, and treated as in force. It was filed with the commissioner of insurance.

Some question is made by appellee of the effect of our previous decision; i. e.3 whether it was meant that submission of the demand to the special tribunal was conclusive of plaintiff’s right, or merely preliminary to action in the courts if unsatisfactorily concluded. Cases cited in the former opinion would seem to leave no doubt upon the subject (Fillmore v. Great Camp K. O. T. M., 103 Mich. 437 [61 N. W. 785]), and the opinion itself clearly shows that this court was dealing with a law of the association passed after the certificate holder became a member thereof.

The judgment should be reversed, and no new trial ordered.

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

Bird, J.

(dissenting). Llewellyn Monger became a member of the defendant association on September 1,1900, and a benefit certificate was issued to him for $1,000. When he became a member of the association, he resided at Benton Harbor, in this State, but subsequently removed to Waterville, Wash., where he died in March, 1905. The association refused to pay on the ground that at the time of the death of Llewellyn he was suspended from the association for his failure to pay a special assessment payable in July, 1904. Suit was commenced and judgment by default was taken by the plaintiff. Subsequently this court set aside the judgment on jurisdictional grounds. 145 Mich. 683 (108 N. W. 1111). Suit was again commenced and resulted in a judgment for plaintiff. This judgment was also vacated by this court for the reason that, under the amended laws of the order, it was the duty of claimant to file and present her claim to the cabinet of the order. 156 Mich. 645 (121 N. W. 823, 24 L. R. A. [N. S.] 1027). The claim was then presented to the cabinet and rejected. An appeal to the senate was taken and a like result reached. Another suit, the present one, was then begun to recover upon the certificate, and, after a trial on the merits, the court directed a verdict for the plaintiff. The important questions raised by the defendant are: (1) Did the trial court have jurisdiction ? (2) If it did have jurisdiction, was Llewellyn Monger legally suspended from membership at the time of his death ?

1. Did the trial court have jurisdiction? It appears that, after Llewellyn Monger became a member of the association, the laws of the order were amended,- creating a tribunal within the order to determine the differences arising between the association and its members, and providing that the decision of the tribunal should be final and conclusive. It is claimed this law was enacted in December, 1901. It was offered in evidence, and, for the purpose of laying the foundation for its reception, defendant’s counsel produced a book which was identified by the general manager as the record book of the association. At pages 83 and 84 of the book there appeared what purported to be the minutes of a special meeting of the senate, at which the law in question was enacted. The entire proceedings of this meeting, save the date, including the signatures. of the president and secretary, were in printed form and pasted in the book. It was further shown by the general manager that the minutes of this meeting were originally in typewritten form, that he assisted the secretary in getting them ready for publication to be sent to the members, and in so doing he personally read over the laws and the secretary verified them with the original resolution. The record was objected to by the plaintiff because not sufficiently proved. The trial court- agreed with the plaintiff, and at the close of the trial excluded the record. In view of the former opinion of this court, this law was an important element in the case to both parties, because, if established, it seriously affected the plaintiff’s right of recovery. Under such circumstances, the record of its enactment should have been established by evidence which would have left little room for doubt of its authenticity. Beyond the fact that the law is found in the record book of the association, there is little to prove its authenticity. The general manager testifies that he assisted in preparing the minutes for publication to send to the members, but he does not say that the copy which was pasted in the book was a correct copy of the original typewritten ones. There was no showing that the record at that time was in his possession, nor that it was ever in his possession, nor that he was familiar with it, nor how it was kept. There was no showing by whom the minutes were pasted in the book and there was no handwriting, nor signatures, from which it could be inferred that it was the work of the secretary. Neither was there any showing by any one who knew that such a law 'was ever enacted by the senate. Minutes of other meetings, which appeared in the record book and were admitted in evidence, were signed by the autograph signature of the secretary; but why it did not appear at the close of these minutes is not explained.

In Herman v. Supreme Lodge Knights of Pythias of the World, 66 N. J. Law, 77 (48 Atl. 1000), it was sought to defeat the payment of a certificate by an after-enacted by-law. The by-law was offered and rejected by the trial court. In passing upon whether the by-law was properly rejected by the trial court, the appellate court said, in part:

“ The only attempt at proof of the alleged law of 1896 was by a printed pamphlet purporting to be the constitution and general laws of the endowment rank of the order, which was excluded as evidence because not proved. One Charles Marks, the secretary of the local New Jersey section of that rank, was shown this pamphlet, and asked whether or not it contained the rules and regulations of the Order of Knights of Pythias in force April 11, 1899, and, upon due objection, the question was overruled. A similar question, propounded to Elmer E. Margerum, who said he was grand keeper of records and seals of the State of New Jersey of the Knights of Pythias, was overruled. No other evidence on the subject was offered.
“ In Downie v. Passaic County, 54 N. J. Law, 223 [23 Atl. 954], this court held that a by-law of the board of chosen freeholders was not proved by the use at a trial of a printed book containing it and purporting to be, 6 the by-laws of the Board of Chosen Freeholders of the County of Passaic,’ and that such book would have been inadmissible in evidence. It is too plain for argument that, in order to vary an existing contract, strict proof of the enactment of a law claimed to have such effect is requisite. Proof by members of the order that copies of what purported to be the laws extant had been promulgated could not legally stand in lieu of direct proof of such enactment.”

It was said in Highland Turnpike Co. v. M’Kean, 10 Johns. (N. Y.) 154 (6 Am. Dec. 324), where a like question was under consideration, that—

“The general rule is (and it is a rule of evidence essential to public convenience), that corporation books are evidence of the proceedings of the corporation, but then it must appear that they are the corporation books, and that they have been kept as such, and the entries made by the proper officer, or some other person in his necessary absence.”

See, also, 17 Cyc. p. 403. We think the trial court was right in excluding the law upon the ground that it had not been properly proved.

2. Was Llewellyn Monger legally suspended from membership at the time of his death ? It is contended by the defendant that in June, 1904, a special assessment was levied by the senate, payable in July; that notice of this special assessment was mailed Llewellyn Monger at his last known address at Waterville, Wash.; that under the rules of theorder Monger had all of the month of July to make payment, and, as one month must elapse after that before he could be suspended, he would have all of the month of August in which to make payment; that he failed to respond within that time and by reason thereof was automatically suspended from membership on September 1, 1904.

The plaintiff denies that under the rules of the order he could be suspended at that time, because it was admitted that on October 23, 1903, the assured paid in advance 12 assessments. The receipt given by the association at that time shows that this payment would pay all regular assessments up to and including September, 1904. Plaintiff says that one of these assessments should have been applied on the special assessment. Then the special assessment would have been paid and the regular assessments would have been paid up to and including August, 1904. For the nonpayment of the September assessment he could not have been suspended until November 1, 1904. Before that date and on September 15th, the father of the insured tendered to the company $5.80 more for future assessments (and this tender is admitted in the record), and was refused by the defendant. The whole difficulty apparently lies in the fact that the association suspended the insured for nonpayment of a special assessment while it had money in its hands belonging to him not yet applied to regular assessments. We do not think the association was justified in crediting the whole amount to regular assessments to the exclusion of special assessments, as the record does not show that, when the advance payments were made, the insured elected to have it applied solely to regular , assessments. If he did not,, then it was the duty of the association to apply one of these advance payments on the special assessment to rescue him from suspension. We think the trial court was right in holding that the insured was not suspended at the time of his death.

It is further insisted by the defendant that the reversal of the former judgment by this court is res adjudicaba of the present one. In the former case, the plaintiff recovered upon the merits in the trial court. This court reversed that judgment, and ordered a new trial. Subsequently that case was discontinued in the trial court, and the claim was presented to the tribunal of the order in accordance with the holding of this court. There the claim was rejected. Then the present suit was begun. On the former appeal to this court, several questions were presented, but only one was passed upon, and that one was the validity of such a law, which appeared to have been enacted by the defendant order with reference to death claims. This law was held to be valid and binding on the insured, and that it had not been waived by the defendant. The question as to whether such a law had ever been legally passed was not raised. The validity of the law, and not its existence, was the question determined. The question of the validity of the law raised a jurisdictional question. If it were valid, then the trial court had no jurisdiction to entertain the case. In determining this jurisdictional question as it did, this court held, in effect, that the suit was prematurely begun. Judgments rendered in suits prematurely brought are no bar to subsequent ones on the same claims. Gray v. Dougherty, 25 Cal. 266; Peck v. Easton, 74 Conn. 456 (51 Atl. 134); Williams v. Lewis, 124 Ind. 344 (24 N. E. 733); Seaton v. G. C. Hixon & Co., 35 Kan. 663 (12 Pac. 22); Oleson v. Merrihew, 45 Wis. 397; Harrison v. Insurance Co., 102 Iowa, 112 (71 N. W. 220, 47 L. R. A. 709); McNees v. Insurance Co., 69 Mo. App. 232; Franks v. Fecheimer, 44 Mich. 177 (6 N. W. 215). The parties, therefore, came up to the last trial with but one question judicially settled, and that was the validity of such a law as the defendant claimed to have passed. The reversal of the former judgment left all other questions open. 24 Am. & Eng. Ene. Law, p. 812, and cases cited. If, then, the defendant could establish that it had such a law as it claimed to have enacted, that would put an end to the controversy. It made the attempt and failed because of its defective records, and it is now in the same situation as though it had never made the attempt to establish it. Suppose defendant had neither pleaded the existence of the law nor made any attempt to prove it; could it now be reasonably argued that the former decision of this court was a bar to a recovery in this one ? Obviously counsel thought it was necessary, not only to plead, but to prove, the existence of the law as a part of his- case. If it were necessary, it would follow that plaintiff had a right to contest it. The defendant’s proof having been deficient on this issue, we think the trial court was right in his conclusion.

It is further contended by defendant that it had a right to have the question of the waiver of Monger’s membership and his acquiescence in his suspension submitted to the jury. We think the trial court was right in holding that, under the testimony, no question of fact was made out for the jury.

The judgment of the trial court should be affirmed.

Moore, C. J., concurred with Bird, J.


text:
    WINNETT v. DETROIT UNITED RAILWAY.
    1. Evidence — Books—Street Railways — Personal Injuries.
    Books of a street railway corporation in which a record of accidents is kept are not admissible to show that no accident was reported by the conductor or motorman and no record of it appeared, for the purpose of proving that an injury did not take place as plaintiff claimed.
    2. Same.
    Testimony to establish the correctness and accuracy of such books was necessary to render them admissible, even if they were otherwise competent.
    8. Husband and Wife — Married Women — Damages.
    Plaintiff, a married woman, was entitled to reoover the cost of her physician’s services, in a personal' injury case, having been separated from her husband more than four years, during which she had supported herself, while the husband had resided outside the State, having had nothing to do with hiring the physician.
    Error to Wayne; Donovan, J.
    Submitted November 21, 1911.
    (Docket No. 155.)
    Decided October 1, 1912.
    Case by Catherine Winnett against the Detroit United Railway for personal injuries. Judgment for defendant, plaintiff brings error.
    Reversed.

      Corliss, Leete & Joslyn (A. B. Hall, of counsel), for appellant.

      Thos. J. Mahon, for appellee.
   Bird, J.

The plaintiff claims she was injured while leaving one of defendant’s cars at or near the intersection of Woodward and Willis avenues, in the city of Detroit. The car stopped, in response to her signal, to permit her to alight, but started again while she had one foot on the car step. She clung to the railing for a short distance, when her hold was broken, and she fell to the pavement with such force that she was seriously injured. It was late in the evening, and no one seems to have witnessed the occurrence. Neither the conductor nor motorman had any recollection or knowledge of such an incident. The case was submitted to a jury, and they found for the defendant. The plaintiff claims- that several errors made by the trial court were responsible for the verdict.

Defendant produced Mrs. Mell McDonald as a witness, who was permitted, against plaintiff’s objection, to give the following testimony:

" I am employed by the Detroit United Railway in the claim department. I have charge of the records of the accidents that happen and the claims made.
“ Q. Have you searched your files for any claim, or for any report of the conductor or motorman, in the case of Mrs. Catherine Winnett, which is alleged to have happened on the 11th of August, 1909 ? (Objected to as irrelevant, immaterial, and incompetent.)
The Court: You can say ‘Yes ’ or ‘ No.’
“A. Yes, sir. (Note an exception.)
“Q. Have you found any report of any accident on that day in any case of car No. 1713 and in the case of Catherine Winnett? (Objected to as incompetent, irrelevant, immaterial. What the conductor and motorman reported to the company cannot bind the plaintiff.)
The Court: Say ‘ Yes ’ or ‘ No.’
“Mr. Mahon: I take an exception.
teA. No; I have not found any such report.”

Plaintiff’s counsel argues that this testimony was negative testimony, and was neither relevant nor competent, and that it was especially harmful, because plaintiff’s case depended almost wholly upon her own testimony. This testimony was obviously admitted for the purpose of showing that the accident did not occur as detailed by the plaintiff. The fact that defendant’s books and records did not show that plaintiff filed a claim with the defendant before she brought suit was no evidence that the occurrence did not take place. She was under no obligation to make a claim before bringing - suit; and, in view of the testimony of the motorman and conductor, the fact that its records failed to disclose any such occurrence was no evidence that it did not occur. As a general rule, private books and records are not evidence of what they do not contain. Corner v. Pendleton, 8 Md. 337; Hyde v. Lookabill, 66 Iowa, 453 (23 N. W. 920); Scott v. Bailey, 73 Vt. 49 (50 Atl. 557); Roe v. Nichols, 5 App. Div. (N. Y.) 472 (38 N. Y. Supp. 1100); Sanborn v. Insurance Co., 16 Gray (Mass.), 448 (77 Am. Dec. 419); Chadwick v. Chadwick, 52 Mich. 545 (18 N. W. 350); 16 Cyc. p. 1120.

Such evidence is admissible, with reference to public records, where the law requires certain entries to be made, and in cases where an instrument is required to be recorded in order to be effective. The rule has been relaxed with reference to private books and papers, but only in exceptional cases. Doolittle v. Gavagan, 74 Mich. 11 (41 N. W. 846); People v. Kemp, 76 Mich. 410 (43 N. W. 439). But it would, indeed, be a strange rule of evidence which would admit a private book or record to show that an event did not, take place, when the witnesses upon whom the record depended for its existence and accuracy could be and were present in court as witnesses.

Even if the testimony were admissible as an exception to the general rule, the proper foundation was not laid for its admission. The motorman and conductor testified that it was the custom to report all accidents at the office; and the witness McDonald testified that she had charge of the record of accidents. There was no proof as to how or when the record was made, or by whom it was made; and no showing was made bearing upon its accuracy. This testimony of the witness McDonald, as it came in, had the appearance of having some cogency, and was well calculated to mislead the jury. Its admission was undoubtedly harmful to plaintiff’s case, and the objection to it should have been sustained.

Complaint is also made because the trial court denied plaintiff the right to recover for medical services on account of her being a married woman. Plaintiff testified that she was a married woman, but that she had been separated from her husband over four years; that during that time she had, with the help of her daughter, supported herself; and that her husband was a resident of the city of Chicago. It did not appear that her husband had anything to do with the employment of the physicians who treated her injuries. A fair inference from the testimony is that she employed them herself. We are of the opinion that this case is ruled by Lammiman v. Railway Co., 112 Mich. 602 (71 N. W. 153), and that the trial court was in error in holding that she could not recover for medical services. Other errors are assigned; but, as it is unlikely that they will arise on a retrial, they will not be considered.

The judgment of the trial court is reversed, and a new trial ordered.

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


author: Moore, C. J.

text:
    HOLMES v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    Railroads — Negligence — Trespassers on Railway Track — Gross Negligence.
    Gross negligence was not made out by evidence that defendant’s engineer saw decedent and another person upon the track about 1,600 feet ahead, decedent being upon his hands and knees, that the engineer gave the usual signals and, when he saw that decedent was not going to get off the track, applied the brakes and took the usual precautions for an emergency, that the engineer did not know they were drunk when he saw them on the track, and that both being helpless with intoxication were struck by the locomotive.

    Error to Shiawassee; Miner, J.
    Submitted January 29, 1912.
    (Docket No. 141.)
    Decided October 1, 1912.
    Case by Henry L. Holmes, administrator of the estate of Asa Mitchell, deceased, against the Detroit, Grand Haven & -Milwaukee Railway Company for the wrongful killing of decedent. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      Harrison Geer (W. K. Williams, of counsel), for appellant.

      Pearl L. Sawyer and Odell Chapman, for appellee.

       As to duty of trainmen, upon perceiving object the character of which is unknown, but which in fact is a trespasser helpless on track, see note in 2 L. R. A. (N. S.J 498.

   Moore, C. J.

Plaintiff brought this suit, as administrator of the estate of Asa Mitchell, to recover damages for injuries received by Mr. Mitchell on the 10th day of June, 1909, which caused his death a few hours later through being run over by the defendant’s passenger train, while decedent was a trespasser upon the railroad track at a point 1,500 feet west of the first highway east of Durand. Asa Mitchell and Fred Snaggs, residents of the village of Fenton, Genesee county, which at the time in question was in a local-option county, came to the village of Durand, which at that time was a place where intoxicating liquors were sold, and became so drunk as to be unable to care for themselves. While intoxicated, they started east from Durand on the railroad track where the injury occurred. The defendant asked for a directed verdict. This was refused, and the case was submitted to a jury. From a verdict and judgment in favor of the plaintiff the case is brought here by writ of error.

Counsel are agreed:

“ The only question in the case is, Do the facts as they appear in the record make a case showing the defendant to be guilty of gross negligence ? ”
The only eyewitnesses of the transaction were the engineer and fireman, who were called as witnesses for the plaintiff and cross-examined by him.
The fireman testified:
“ The accident occurred a little better than half a mile east of Durand. I observed deceased upon the track when we were about half a mile east of him.
“Q. I wish you would describe the track, and how far you can see down to when you are looking out of the engineer’s or fireman’s window. How far could you see down the track, how far back ?
“A. Why, about a mile straight ahead.
“Q. You say for about a mile east of where this man was struck you could see right straight down the track, couldn’t you, if there was anything on the track or could you?
“A. Yes; if you are looking pretty particular.
eiQ. If you were keeping close watch ?
“J.. Yery close watch you might.
“ Q. But you discovered him about half a mile before you got to him ?
“A. I saw something on the track about half a mile before we came to him.
“Q. How did it appear, whether he was lying down or sitting on the track, standing up, or what ?
“A. Kneeling down, I thought. He appeared kind of bent over as though on his hands and knees. I saw what I thought was one man.
“Q. Did you see another object besides that ?
“A. I could not tell what it was.
“Q. What was the other object like besides this one you thought was á man on his hands and knees ?
“A. I thought he had a dog or something.
“Q. You say that looked like a dog, you thought ?
“A. Yes.
“Q. What was there about it ? Can you describe anything about it that made you think this other object was a dog ?
“A. No; only from the way it was bending over.
“Q. That object was bent over ?
“JL Yes, sir; I suppose it was. I didn’t know.
“Q. From the shape of this other object besides what you thought was a man on. his hands and knees, you thought the other object was a dog ?
“A. Yes; as near as I could see. I thought it from the shape that the object was in. Wbien I saw those objects on the track, I didn’t do anything. We were half a mile away. I said nothing to the engineer. He was looking down the track. He said nothing to me. He appeared to see them at that time. He was looking straight ahead the same as I was. He sounded the whistle. He blew danger signals when he got near them. I think we were about 50 or 60 rods away at the time he gave the danger signals. They consisted of short, quick blasts of the whistle. A service application of the brakes had been made at this time.
“Q. You finally went on, and, when you were 50 br 60 rods away, you could plainly see them, couldn’t you ?
“A. Why, yes. We were slowing down quite rapidly when we struck these men. I think we were running about 15 or 20 miles an hour at the time we struck them. I understand to get a train under control means to have it so that you can stop in a short distance. I do not understand that it means to have-it so that you can stop almost any time.
“Q. If you get what you call having your train under control, how far, if you get under what we call under control, would it go if you would immediately turn on the emergency, and throw the lever over so as to reverse the wheels ?
“A. That depends upon the weight of the train, what they have got.
“Q. Take this train, it had how many cars on ? It had the engine, tender, express car, baggage car, and a mail car ?
“A. I should think two or three car lengths.
“Q. Don’t you think if you had it under control, and put the emergency on and reversed the engine, don’t you think you could stop inside of 100 feet, if you made an emergency stop; never mind whether she breaks the drawheads or not, but just turn the emergency on and reverse her ?
“A. Well, we would have a train under control under difficult circumstances. Under control—
‘ ‘ Q. Having regard to human life, putting it under such control as you would do to save the life of a man so you could stop, I won’t say what it ought to be, but under control so as to prevent the taking of human life; isn’t it a fact if you would put on the emergency in air and then throw the lever over, reverse her so it would set the wheels going the other way, ought not that train to have been stopped in less than 100 feet ? Don’t you think that is so?
“A. If I had any idea it was to save a human life, I would think I could.
“Q. You could stop a train like that, if you have it under control, suppose what we call under control, not going over 15 miles an hour, if you turn on the emergency and reverse her, you can stop her almost instantly, can’t you ?
“A. If a person knew these people were going to stay there, you certainly could.
“Q. Suppose you knew if you didn’t stop you were going to kill a man, or you were going to kill yourself, suppose you knew, if you didn’t stop her, you were going to kill yourself and your fireman; don’t you think if you had it under control, not going, as you say more than 15 miles an hour, that if you would turn on the emergency air, and then reverse the lever so as to set the wheels going the other way, don’t you think you could stop it almost immediately ? Don’t you think you could do that ?
(‘A. If I knew it was for that purpose, I could prepare before getting near to them; but under that circumstance I couldn’t.
“Q. Take a time. We will suppose we start right in now, and it comes on you that, if you don’t stop that train, you are going to kill yourself and your partner, and it is only going 15 miles an hour, this train you were on, can’t you turn on the emergency air and reverse the lever, and stop it almost immediately ?
“A. If I knew?
“Q. Yes.
“A. Well, I should he prepared before.
“Q. I don’t say about being prepared before. I want you to stop it now going only 15 miles an hour. I will come to this preparing. I will treat you fairly. If you knew right now and your train was only going 15 miles an hour and came on this accident, if you didn’t stop it, it was going to kill you and your fireman, couldn’t you by turning on the emergency and reverse her, stop her almost instantly ?
“A. I could not say.
“Q. What is your best judgment about that? Don’t you think you could ?
“A. When we were going 15 miles an hour, the emergency brake was on before that.
“Q. Suppose this train is going only 15 miles an hour, and you should turn on the emergency and reverse the engine; couldn’t you stop it almost instantly ? I am going to insist on an answer yes or no.
“A. Fifteen miles an hour ? No.
“Q. I want an answer — yes or no.
“A. No; not instantly. The engineer reversed the engine. This helps to stop the train. It locks the wheels. We were running between 35 and 45 miles an hour when I first observed the objects on the track. Going at that rate of speed, we could make a reasonable stop in about a quarter of a mile I think. * * * I think it would take 50 or 60 rods to put the train in condition so that it could be stopped at any time under ordinary circumstances. It would be my estimate that we were running 15 to 30 miles an hour at the time we struck the men. I did not discover there were two men before we struck them. I saw Mr. Mitchell after he was struck. I helped lift him into the baggage car. I think he was about a train length east of where the rear coach stopped.”

Direct examination by Mr. Geer:

“The engineer had given the station whistle before the accident occurred. I know where the highway is east of the point where the accident occurred. The station signal was sounded quite a ways before we came to this highway crossing. The engineer also gave the crossing signal for this highway. He sounded it 40 or 50 rods I should think east of that point. It is 2,000 feet from this highway to the county ditch which crosses the railroad. I have measured it. I was nearly a quarter of a mile east I should think of this highway when I saw a person bending over on the track.
‘ ‘ Q- When you saw this person bent over, what did you think he was doing ?
“A. Why, I did not think nothing only he might have been a sectionman, as you generally see them looking up along the road.
“Q. I ask whether or not it is a common occurrence to see sectionmen in substantially the same position this man was in ?
“A. Yes; regular occurrence.
“Q. How near were you to the crossing when you discovered there was some object under him that you took to be a dog ?
“A. Why, I must have been at the crossing then?
“Q. About at the crossing ?
“A. Yes.
“Q. That would be about 2,000 feet east of the county ditch. Where were these men struck with relation to the county ditch, in what direction at the crossing ?
“A. Between 500 and 600 feet east of that.
“ Q. So that would be something like 1,200 feet west or a little more of the highway ?
“A. Yes. The engineer commenced to sound the danger signals when we were just about at the highway, and continued to give them until we struck the men. The service brake was put on before we reached the highway. That would take from five to ten pounds of air off. It was applied at the usual place for the purpose of making a stop at the station. The emergency brake was applied very soon after the engineer started to blow the alarm whistles. He applied the brake as soon as he started the alarm whistles. If the emergency brake had not been applied, the train would have ran much faster than it did. The train was running 35 to 45 miles an hour when we were a quarter of a mile east of the highway. The service brake checked the speed of the train some. The track is downgrade towards the west all the way from Gaines to Durand. The service application of the brake would check the speed of the train just a little. I think we were running 25 to 35 miles an hour when we went over the highway. The bell was ringing. It is an automatic bell rung by air. I put some coal on the fire east of the crossing. I did not put in any coal after we had passed the highway and before the accident occurred.
“ Q. I will ask you if at any time you had any knowledge or information in any form that the people who after-wards turned out to be individuals on the track were intoxicated ?
“A. No, sir. •
“Q. Was there anything in any shape or form to indicate to you there was any reason why they shouldn’t get off from the track ?
“A. No, sir.
“Q. What, if anything, was there in the actions or conduct of the men that you saw on the track to indicate to you that they were not aware of your approach ?
“A. There was nothing.
“Q. Were you at any time before the collision occurred in any way advised that either of them were intoxicated ?
“A. No, sir. The engineer started sounding danger signals about the time we crossed over the highway. We were east of the crossing a little when he commenced sounding these warnings. We were a little west of the crossing when he applied the emergency brake, but it was shortly after we had passed over the highway. Applying this brake reduces the speed of the train. The emergency brake was on in full force, and was left on. We were about six rods I should say from this man before I discovered that he was not going to get off the track.
(eQ. I will ask you how this man’s position on the track compared with the position of sectionmen that you had seen before that examining the track ?
“A. It was the same natural position.
“Q. So the jury may know in what position you have seen sectionmen frequently as you are coming over the road ?
“A. They are frequently down looking at the rails to see if there is any humps in the' rails.
“Q. I will ask you when you first saw this man leaning over what you supposed to be a dog or something else, whom did you think it was ?
“A. I thought it was one of the sectionmen.
,eQ. I will ask you when was it with relation to the collisien that you discovered that there were two men, instead of one?
“N. After walking back up the track.
“Q. Up to that time had you any knowledge that there were two men, one man over the other ?
“A. No, sir. It was not possible for the engineer to have stopped this train before the collision at a time we were within five or six rods of these men. They were right between the rails and nearly in the center of the track, a little to the left side of it. There is no road or public crossing between the highway which I have mentioned and Durand station. This ditch which I have spoken of is a county ditch, and there is a culvert over it. The accident occurred about 2 o’clock. The engineer was John McKay.”

The engineer testified:

“ I was an engineer on the Detroit, Grand Haven & Milwaukee Railway on the 10th of June, 1909. I ran between Detroit and Durand that day. I was due at the latter place at 2:05 p. m., I think. I noticed something on the track ahead of the train just before we reached Durand. I could not tell what it was until I got close enough. It was two men. One was underneath and the other was on top. The one on top was on his hands and knees. I thought before I got there that it was a track-man squinting the track. He was about like this [indicating] toward the left rail, looking toward the east, toward the engine. He wasn’t exactly across the track. He was near the left rail until we got very close to them, and then he turned and looked around. We were only about six rods away from him at that time. I think he attempted to get off the track after that. He did not have time to get off. I observed the objects on the track before I whistled for the station, which was about half a mile away. I whistled before we got to the road crossing. I also sounded the crossing whistle. I then gave the danger signals two or three times. I did not know but what they would get off the track. The station whistle is the first signal I gave. We were about 80 rods east of the crossing at that time. I then gave the crossing signal: We were probably 90 rods away when the station whistle was given, and 80 rods when I sounded the highway crossing signal. I have never been down there to make any measurements. We were about 90 rods from the crossing when I first noticed the men on the track ahead of me. If I remember right, I sounded the danger signals two or three different times. I kept whistling at them, and, when I saw they were not going to get off the track, I tried to stop, and made every effort I could when I saw they were not trackmen. I do not think I could state when I first saw them that the object on top was a man. I discovered this when I started to blow the danger whistle at the highway. The men were about 1,400 or 1,500 feet west of the highway.
“Q. Why is it that you didn’t stop after noticing that the object on top was a man ?
“A. Gracious, if I did, I would be stopping every little while, because you see trackmen squinting the track nearly every day. .
“Q. You see men on the track like that nearly every day ? >
“A. Yes, they always get down like that when they squint the rails.
11Q. And is it usual to see people down in that position with something under them ?
“A. No; I don’t think it is.
“Q. Didn’t you notice before you got there that there was something underneath this man ?
“A. Just about the same time.
“Q. What did-you think the object was ?
“A. I didn’t know. I was expecting every minute that they would get off the track. I didn’t have any idea they was going to stay there. * * * There was sand used that day, but I think she would skid the drivers, anyway, even if the track was sanded. I sanded the track that day. I commenced when I put on the emergency, brakes. I did not put on this brake when I commenced to sound the danger signal. I did not put it on until I saw they were not going to get off the track. Then I put her on for all she was worth. It was my judgment that it is not possible to stop such a train as I had, using all the methods in my power, within a distance of 500 or 600 feet, with a low-pressure brake. We must have been going 15 or 18 miles an hour when we struck the men. I probably ran a train length and 100 feet more after striking them. The emergency brake was on until the train stopped.”

Direct examination by Mr. Geer:

“I am about 53 years of age, and have been an engineer 30 years, all the time on the Detroit, Grand Haven & Milwaukee Railway. I was on - No. 13 on the day in question. When I first discovered an object on the track, we were about half a mile east of it. I could not tell at that time what the object was. There is a vibration when you are driving an engine, and this interferes with determining what an object ahead is. I thought it was a trackman at the time I gave the station whistle. It is a common thing to see trackmen squinting the track. The position they would occupy in so doing is just about the same as this object was in. The object of squinting the track is to get the level of the rails. The trackmen do at times get down in that position to see how an engine rolls on the rails. My custom when I see trackmen looking towards the engine is to give them the danger signals.
“Q. After you gave them danger signals, they still remained on the track?
“A. Yes, sir.
S‘Q. On this occasion, until you got within five or six rods, you didn’t know the difference but what they were trackmen ? *
“A. No, sir. I expected they would get off every second.
“ Q. Were you in any way advised by any action on their part that they were intoxicated ?
“A. No; not a thing. The bell on the engine was ringing. It rings automatically. I fixed the distance that these men were from the highway crossing by estimate, and not actual measurement. I fixed the place where I blew the whistle bjr the highway crossing. I continued to sound the danger signal until the accident happened. I did everything I could to stop this train after I saw they were not going to heed the signal I had given them. When the emergency brake has been applied, there is nothing else you can do to stop a train. Reversing the engine would have been a detriment. It would have caused it to slide. The wheels skid right along, and don’t take hold near as much as when the emergency brake only is applied. Sometimes we get very anxious and reverse the engine, though. I could have done no more than I did to have stopped that train after I discovered those men were not going to get off of the track. They were near the south rail. The road is quite a downgrade from the highway crossing to where the accident occurred.”

In addition to this testimony was the testimony of the baggageman:

“ This train stopped about half' a mile east of Durand, just east of the culvert which-the track crosses. I saw after the train stopped the man lying near the track. I got off the train immediately' after it stopped. When I got off, I went to the rear of the train and a little bit further. I saw the limb of a man. It had a rubber boot on. I then returned to the train, and signaled it to back up. It went about a train length and ¡stopped. I then went farther east, and found a man sitting in the ditch. He was more sitting up than lying down. I again came back to the train, and signaled them to come east. They backed the train until the baggage car 'was about opposite this man. Then I stopped it. I got in my baggage car. The train backed up about twice its length altogether. * * * Our train consisted of an engine, two coaches, baggage car, and a combination mail.and baggage car. I should judge the coaches were about 60 feet long. They were a trifle longer than the mail and baggage car. I judge the engine and tender was about .as long as the cars. I think all told the length of the train was somewhere near 300 feet. I judge that the train ran 400 or 500 feet or nearly that distance after striking these men.”

Direct examination by Mr. -Geer:

“ I know where the highway is just east of the culvert. I judge the distance is half a mile. I never measured it. I am simply giving my best judgment. This culvert goes over the county ditch. The highway is the first road east of Durand, and is somewhere near a mile from the Durand station. The distance is estimated. I know the station signal was given before the accident occurred. That is one long blast of the whistle. I know that the crossing signals were also given. Those .are two short and two long blasts. The crossing whistle was for this highway east of Durand. The whistling post for this crossing is to the east. I also heard the danger signals sounded. They are continuous short blasts of the whistle. Shortly after those danger signals were sounded, I was thrown over upon my hands and knees upon the express by the emergency brakes being thrown on. I did not look out of the car to see where we were at the time the emergency brakes were applied, nor can I tell where we were when the signals were given.”

This is all the testimony as to the accident.

It is claimed from this testimony, and we have quoted all that was important, that gross negligence might be inferred. We quote from the supplemental brief of appellee:

“It is not necessary for the plaintiff, in order to show gross negligence, to prove that the defendant’s servants in charge of that engine and train knew the deceased was incapacitated and unable to get off the track, and then wilfully and maliciously run the train against him, after having time to stop and avoid injuring him. This court has repeatedly held that where a person by the exercise of the most ordinary care should have known of the precedent negligence of the plaintiff and of his peril, and subsequently does him an injury, it is gross negligence.”

Counsel cite a number of cases in support of their contention. The first one is Lake Shore, etc., R. Co. v. Miller, 25 Mich., and counsel quote from page 279. The quotation is too brief. We quote as follows:

“ But if an engineer sees a team and carriage, or a man in the act of crossing the track, far enough ahead of him to have ample time, in the ordinary course of such movements, to get entirely out of the way before the approach of the engine; or if he sees a man walking along upon the track at a considerable distance ahead, and is not aware that he is deaf or insane, or from other cause insensible of the danger; or if he sees a team or man approaching a crossing too near the train to get over in time, he has a right to rely upon the laws of nature and the ordinary course of things, and to presume that the man driving the team or walking upon the track, has the use of his senses, and will act upon the principles of common sense and the motive of self-preservation common to mankind in general; and that they will, therefore, get out of the way,— that those on the track will get ofE, and those approaching it will stop, in time to avoid the danger; and he, therefore, has the right to go on, without checking his speed, until he sees that the team or the man is not likely to get out of the way, when it would become his duty to give extra alarm by bell or whistle, and, if that is not heeded, then, as a last resort to check his speed or stop his train, if possible, in time to avoid disaster. If, however, he sees a child of tender years upon the track, or any person known to him to be, or from his appearance giving him good reason to believe that he is, insane, or badly intoxicated, or otherwise insensible of danger, or unable to avoid it, he has no right to presume that he will get out of the way, but should act upon the belief that he might not, or would not, and he should therefore take means to stop his train in time. A more stringent rule than this — a rule that would require the engineer to check his speed or stop his train, whenever he seas a team crossing the track or aman walking on it, far enough ahead to get out of the way in time, until he can send ahead to inquire why they do not; or which would require the engineer to know the deafness or blindness, or acutness' of hearing or sight, or habits of prudence or recklessness, or other personal peculiarities of all those persons he may see approaching, or upon the track, and more especially of all those who may be approaching a crossing upon the highway, though not seen —any such rule, if enforced, must effectually put an end to all railroads, as a means of speedy travel or transportation, and reduce the speed of trains below that of canal boats 40 years ago; and would effectually defeat the object of the legislature in authorizing this mode of conveyance. But how are railroad companies, or their engineers or employés, to know the personal peculiarities, the infirmities, personal character or station in life, of the hundreds of persons crossing or approaching their track ? By inspiration or intuition ? And, if they do not know, then how and why shall the company be required to run their road, or regulate their own conduct, or that of their servants, by such personal peculiarities of strangers of which they know nothing? These questions suggest their own answers.”

This authority, instead of supporting the claim of plaintiff when applied to the facts of this case, is an authority the other way. The case of Keyser v. Railway Co., 56 Mich. 559 (23 F. W. 311, 56 Am. Rep. 405); Id. 66 Mich. 390 (33 F. W. 867), cited by counsel, is easily distinguishable from the instant case, as the person injured was an infant boy 2£ years old. In the case cited by counsel of Bouwmeester v. Railroad Co., 63 Mich. 557 (30 F. W. 337), a verdict was directed upon the opening statement of counsel. This statement in part was that deceased was rightfully upon the track; that the men in charge of the train saw him; that he was unconscious; that the train was approaching; that this was known to the engineer; that the deceased did not hear the signals, and that his actions were such as to convince any engineer or fireman of that fact; that after they saw that the alarm bell and whistle were not heeded by Brandel, and knew it was necessary to stop the train to save his life and knew that they could stop it, they negligently failed to do so. This case was very clearly different from the instant case. In Battishill v. Humphreys, 64 Mich. 514 (38 N. W. 581), cited by counsel, the person injured was a little girl two years and seven months old. The other cases cited are Laethem v. Railway Co., 100 Mich. 297 (58 N. W. 996); Montgomery v. Railway Co., 103 Mich. 46 (61 N. W. 543, 29 L. R. A. 287); Herrick v. Wixom, 121 Mich. 384 (80 N. W. 117, 81 N. W. 333); and Schmidt v. Mining Co., 159 Mich. 308 (123 N. W. 1122). Without stopping to analyze these cases, it is sufficient to say that each of them differs essentially from the case at bar.

The testimony of the engineer and fireman is not ambiguous. It is clear and distinct and to the effect that, as soon as it was apparent the decedent would not heed the signals, every effort was made to stop the train. It is not conceivable that one in charge of a locomotive would willingly run over a person that he knew would not pay heed to the signals of danger. If human instinct would not deter, self-interest would. The life of the engineer and fireman would be placed in more or less danger, the passengers in the train behind would be endangered. There is an entire failure to show negligence so gross as to create liability. See Strong v. Railway Co., 156 Mich. 66 (120 N. W. 683); Levy v. Railway Co., 164 Mich. 572 (129 N. W. 683); Knickerbocker v. Railway Co., 167 Mich. 596 (133 N. W. 504). The request for a directed verdict should have been given.

Judgment is reversed, and no new trial ordered.

Steers, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.