author: Moore, J.

text:
    DOANE v. BIGGS.
    1. Drains — Proceedings to Establish — Eminent Domain — Notice oe Citation.
    In proceedings to determine the necessity for a drain and to award compensation for land taken therefor, where a railroad company had agreed, before citation issued, to give a right of way across its lands for the drain, and later did so, other owners whose lands were traversed by the drain could not complain that notice of citation was not served upon said railroad company.
    2. Same — Prepared Verdicts — Aid to Jury.
    ,In such proceedings the giving to the jury of prepared verdicts without the knowledge and consent of defendants and their attorneys, held,, to be simply forms, and intended as aids to the jury under Act No. 254, Pub. Acts 1897 (1 Comp. Laws 1915, § 4870 et seq.), and in no way harmful.
    3. Same — Sujttoienoy oe Outlet — Appeal and Error.
    Where abundant opportunity to offer proof as to the insufficiency of the outlet of the drain was afforded objectors, but no proof was offered, there Is no ground for complaint.
    4. Same — Technical Errors No Cause to Set Aside Proceedings.
    Proceedings for the establishment of a drain will not be set aside for technical errors which do not amount to substantial defects.
    Error to Ingham; Snow, J., presiding.
    Submitted April 9, 1919.
    (Docket No. 15.)
    Decided May 29, 1919.
    Proceedings by E. J. Doane, drain commissioner of Ingham county, against Frank Biggs and others for the establishment of a drain. The necessity of said drain was determined in the probate court, and defendants appealed to the circuit court by writ of certiorari. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Avery, Cairns & Carbaugh, for appellants.

      William M„ Smith and William C. Brown, for appellee.
   Moore, J.

Prior to May 23, 1917, proceedings were taken by E. J. Doane, drain commissioner, to establish a drain known as the “Deer Creek drain,” which, if constructed, would pass through portions of the townships of Ingham, Wheatfield, and Williamstown. Some time prior to the 23d day of May, a citation was served upon Frank Biggs, Bert F. Hammond, Jacob Hahn, A. M. Oesterle, and F. W. Hammond and other landowners, who had not given right of way for said drain, to appear upon the 23d day of May, 1917, before the probate court of Ingham county, to show cause why commissioners should not be appointed to determine the necessity for said drain and to award compensation for the lands to be taken therefor. On the 23d day of May, 1917, said defendants appeared by their attorneys, and by agreement the hearing was adjourned until the 6th day of June, 1917. On the 6th day of June, 1917, defendants appeared and moved the court to dismiss all proceedings in said “Deer Creek drain” matter for the following reasons:

’ 1. That no notice was served upon the Pere Marquette Railway Company whose lands would be crossed by said drain and who had not granted a right of way.

2. That a proper and sufficient outlet for said proposed drain had not been provided.

Both of these objections were overruled. Thereupon the attorneys for defendants filed with the court a demand for a jury, and the proceedings were adjourned until the 16th day of June, 1917. On June 16, 1917, said defendants again appeared in court by their attorneys, a satisfactory jury was obtained and the oath was administered to the jurors. Such other proceedings were had that the necessity for the drain was duly established, and the damages awarded to the petitioners' in this case were as follows:

1. To F. W. Hammond for the right of way across one piece of land, $170.

2. To A. M. Oesterle and wife for the right of way across one piece of land, $180.

3. - To Jacob Hahn for the right of way across one piece of land, $112.

4. To Bert F. Hammond and wife for the right of way across one piece of land, $155.

5. To Jacob Hahn for the right of way across one piece of land, $.06.

6. To Frank N. Biggs for the right of way across one piece of land, $500.

7. To Frank N. Biggs for the right of way across one piece of land, $25.

The petitioners reviewed the proceedings by certiorari in the circuit court. The judge filed a written opinion from which we quote as follows:

“The demandants are some of the owners of lands to be traversed by said proposed drain who did not sign releases of rights of way, and the jury was secured in the manner provided by law to determine the necessity for the drain and for the taking of private property for the use and benefit of the public for the purpose thereof, and to appraise and determine the compensation to be made to the several owners or parties interested in the real estate proposed to be taken for the right of way and damages of said drain.
“Several objections are raised by the demandants to the regularity of the proceedings after the jury was secured and such of those objections as the court feels are worthy of consideration are hereby reviewed.
“It is the claim of the demandants that section 4888, 1 Comp. Laws 1915, has not been complied with, and that by reason thereof the probate court has no jurisdiction of the matter and that all subsequent proceedings are void. The section referred to is as follows:
“ ‘The jury or special commissioners may adjourn, such hearing from day to day, for any cause, not exceeding in all ten days, announcement of which adjournment shall be then and there publicly made.’
“Respondent’s return shows that the jury, on demand of demandants, was selected on the 16th day of June, 1917, and that after the organization' of the jury on said day the probate judge publicly announced in the presence of the jury that the jury should advise him from time to time of their progress in examining the line of the drain. The judge at that time also announced that the jury would convene on June 26, 1917, at the probate office in Mason to proceed to view the route of the drain,' and that said cause so far as the taking of testimony was concerned would be adjourned to June 30, 1917, at 10 o’clock the forenoon of said day, at the probate office in Mason, at which time it would be determined when testimony would be taken, as the jury would by that time be able to view the route of the drain. ' This statement of the court was made in the presence of the jury, although it is denied in the return that the jury adjourned the. hearing of said matter until the 30th. 4
“Later upon request of the probate judge the jury came together on the 21st of June, and on that day and the two following days, viz:: the 22d and the 23d, proceeded to go over the route of the drain and view the premises, and hear testimony in regard to the matters to be determined on the 25th and 26th of June and on the 30th of June made the report of their findings to the probate court, determining the necessity of the drain and awarding compensation and damages to the various land owners who had not released rights of way.
“The return of respondent, the probate judge, shows conclusively that each and all of the objectors to the drain and the demandants herein had actually written notice of each and every one of the proceedings and actions of the jury. They all had written notice served upon them of the days when the jury would go over the proposed route of the drain; they all had written notice served upon them of the day set for the taking of testimony, and each and every of the demandants knew exactly when the jury would view the premises and what day the jury had set for the taking of testimony. None of the demandants or those who had not signed a right of way was taken by surprise or did not know in plenty of time to look after and protect their rights before the jury. Their rights were safeguarded and protected in every way and every party in interest had actual notice of the time set for viewing the premises and taking testimony. The attorneys for the parties in interest also had actual notice of the proceedings; and no injury was done any one by viewing the premises and taking testimony on the days the jury decided upon; in fact no claim is made on the part of the demandants that they were in any way taken by surprise or but they had ample time to look after and protect their rights before the jury. They do not claim they were unable to be present on the days set or that they were unable to procure the attendance of their witnesses, but admit they were fully cognizant of what was being done, and could just as well have taken part in the proceedings as not. In fact they had present at the hearing a stenographer who took notes of the proceedings of the hearing.
“Additional complaint is made that some testimony was taken on June 30th, the day the jury filed the report with the probate court. On this day all parties, with their attorneys were present and some_ of the demandants were called upon by the prosecuting attorney to testify, after which the jury retired and made its report as provided by law.
“In the opinion of the court these proceedings were regular and in accord with the provisions of the statute referred to. The route of the drain was gone over, testimony was taken, and the report of the jury was made all within the fifteen days provided by law, viz., from the 16th day of June, 1917, when the jury was secured, to the 30th day of June, 1917, when the report was made and filed.
“The law in effect provides that the jury shall, after its proper selection, proceed to its hearings and determinations of the questions for its consideration, independent of the probate judge, and the fact that the probate judge saw fit to call the jury in on the 21st, in order that matters in issue might be determined and the report made within the fifteen days provided by law for such purposes, in no way affects the validity of the proceedings of the jury.
“From the facts disclosed by the return, the court is of the opinion that the demandants had no desire or intention of securing a fair determination by the jury as to- the necessity of the drain and the damages, if any, to be awarded, but elected rather to take the strained technical position that the jury could not proceed on any other day than that suggested by the probate court, which was the 26th day of June, for the purpose of going over the route of the drain and the 30th of June for the purpose of taking testimony. The court was not ousted of jurisdiction in making this announcement as to the date of proceedings, and in the judgment of the court the jury was within the strict letter of the law in fixing the earlier dates. * * *
“Demandants also complain that only eleven of the jurors viewed the proposed route of the drain on the 21st, but claim that the other juror had no right to go over any part of the drain alone, notwithstanding the fact that on the 22d the jury was all together and made return that each and all of the jurors viewed all of the proposed route either together or as above stated. While it is desirable that the jury view the premises together, the fact that one of the jurors looked over a portion of it not in the presence of the other eleven is not in violation of any statute, and in the opinion of the court is not such an irregularity as would make their determination a nullity.
“In this connection it may be stated that there is no claim of misconduct or any influence on the part of any one being brought to bear on any member of the jury, and no claim is made that any injury was occasioned thereby.
“The further claim is made that the probate court did not keep a proper record of its proceedings. The court finds that the probate ■ court did in fact keep such records of the proceedings as the law contemplates. There is no claim in this matter that all the proceedings throughout do not fully appear. * * *
“The court is of the opinion that the statute had been -strictly complied with; that none of the demand-ants have been injured in any degree; that they were given every right to have their matters determined in court before the jury, and that they are, without substantiai reason, attempting to obstruct and delay a necessary public improvement.”

Counsel raise the following questions in tliis court:

1. Did the probate court err in not adjourning the hearing upon the application for the appointment of commissioners until notice of the citation had been served upon the Pere Marquette Railway Company, or until a release of right of way had been secured by the drain commissioner from the Pere Marquette Railway Company?

2. Did the probate court err in refusing to hear proof as to the insufficiency of the outlet of the drain?

3. Did the probate court err in reconvening the jury at an earlier date than the adjourned day without the consent of the defendants and in the absence of a stipulation between the parties litigant?

4. Did the court err in holding that the notice served on the defendants on the 21st day of June, 1917, that the jury would convene upon said 21st day of June, 1917, was a reasonable, ample and sufficient notice?

_ 5. Did the jury and the probate court lose jurisdiction by the jury reconvening at an earlier date than the day to which said jury had adjourned for the purpose of taking testimony, in the absence of any stipulation between the parties litigant?

6. Did the jury and probate court lose jurisdiction by adjourning the hearing before the jury from time to time from the 16th day of June, 1917, to the 30th day of June, 1917?

_ 7. Did the probate court and the jury lose jurisdiction of the proceedings by the jury viewing the premises to be taken for said proposed drain separate and apart, and by one of the jurors viewing said premises in company of the son of the drain commissioner and not in charge of an authorized officer?

8. Was prejudicial error committed by the prepared verdict being handed and passed to the jury without the knowledge and consent of the defendants or their attorneys ?

9. Were the original files which were filed with the probate court such a record of the drain proceedings as are contemplated and required by the statute?

As to the first of these contentions the return shows that before the citation was issued the Pere Marquette Railway Company had agreed to give a right of way and did so on June 22, 1917. This point was passed upon contrary to the contention of the petitioners in Hauser v. Burbank, 117 Mich. 642.

Was prejudicial error committed by the prepared verdict being passed to the jury without' the knowledge and consent of the defendants or their attorneys? The record shows the defendants and their attorneys had left the court room when these papers were given to the jury. That they were simply forms to be used. One form would 'be useful in case the jury found there was a necessity for the drain and the other in case there was no necessity. In what was done by the probate judge as to these papers there was no suggestion by him as to what the jury should do. They were intended as aids to the jury and were in no way harmful. See Act No. 254, Pub. Acts 1897 (1 Comp. Laws 1915, § 4870 et seq.), and forms 38 and 34, pamphlet of the drain laws.

The other groups of errors may be considered together. The opinion of the circuit judge from which we have quoted is fully justified by the record as to what was done and not done. In the return of the judge of probate appears the following:

“Says that objectors to the drain did not ask the probate judge to himself hear testimony as to the sufficiency of the outlet of said Deer Creek drain, but that said probate judge did- not deny the right of the demandants to offer proof concerning the insufficiency of the outlet before the jury. The probate judge then and there stating that in his judgment he, said probate judge, had no right to hear the matter and substitute his judgment for that of the drain commissioner, but that he then and there stated to the demandants that proof as to the.sufficiency or insufficiency of the outlet of the drain could properly be made before commissioners or a jury as bearing on the necessity of the drain. He admits that he also stated in that connection that under certain circumstances such proof could be properly made in a court of chancery.”

There was an abundant opportunity to offer proof as to the sufficiency of the outlet, but the petitioners did not offer such proof.

The record also shows as follows:

The probate judge on June 19th asked all the jurors to come to the court house on June 21st, where the probate judge said:

“Since the meeting of the jury in the above matter, on June 16th, A. D. 1917, at the probate office in the city of Mason, it has come to my attention that the provisions of the law required that the taking of testimony in this case be begun within ten days from June 16th, A. D. 1917, the day the jury was sworn in. While I regret that it may cause the jury some inconvenience it is necessary to the validity of these proceedings that the taking of testimony be begun not later than Monday, June 25th, A. D. 1917.”

This explains the reason which actuated the probate judge.

The record also shows petitioners were at once advised of what was done. It shows no testimony was offered or taken on the days when the jurors were viewing the line of the drain. Written notice was served on the petitioners June 21st that testimony would be taken on June 25th and on June 30th. They had a stenographer present who took down the testimony, four of the petitioners were sworn as witnesses on June 30th. They had full notice that they could be heard on June 25th, June 26th, and June 30th, when other testimony was taken, but offered no testimony themselves, but evidently prefer to stand upon what they call their legal rights.

This court has had occasion to review drain proceedings many times. Some of the cases are Dunning v. Drain Commissioner, 44 Mich. 518; Wolpert v. Newcomb, 106 Mich. 357; Brady v. Hayward, 114 Mich. 326.

In the first of these cases Justice Cooley, speaking for the court, said;

“All the errors assigned, relate to the finding of the jury and the previous proceedings, and with the exception of those which relate to the giving of notice to the parties concerned and the filing of proof thereof, are somewhat technical. It appears from the return that plaintiff in certiorari had actual notice and took part in the proceedings before and at the time when the jury was struck, and there is no reason to suppose^ he has been taken by surprise in any of the proceedings. We are not inclined to reverse such proceedings except for very substantial faults, and the present case, in our opinion, does not call for our intervention.”

The other opinions are in harmony with this language of the learned jurist.

The judgment of the lower court is affirmed with costs to the appellee.

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


source: Caselaw Access Project

license: Public Domain

text:
    VERMOORTEL v. VERMOORTEL.
    Appeal and Error — Pleading — Amendments' — Hearing Upon Merits.
    Where the wife’s bill for divorce was amended at the hear-lug to ask for annulment of marriage claimed by defendant to have taken place after he had procured a decree of divorce from her while she was out of the State, an objection that the court, on the amended pleadings, could not grant a divorce and could not dispose of property matters is technical, and will be disregarded by this court, in view of the fact that the parties had a full hearing upon the merits, and this court has power to permit amendment of pleadings to conform with the testimony.
    Appeal from Wayne; Mayne, J., presiding.
    Submitted April 24, 1919.
    (Docket No. 123.)
    Decided May 29, 1919.
    Rehearing denied July 18, 1919.
    Bill by Marie Vermoortel against Victor Vermoortel for a divorce. From a decree for plaintiff, defendant appeals.
    Affirmed.

      B. D. Haley and J. W. Bennett, for plaintiff.

      Donnelly, Holly, Lyster & Munro, for defendant.
   Moore, J.

The parties to this litigation were married in Belgium in 1899 and came to America a few year» later. At first they settled in Mississippi, where they lived together for 26 months. They then separated, plaintiff claims because of the failure of the husband to get work. The wife took her two children to New Orleans and afterwards to Deerfield, Wisconsin, where she supported the children until she came to Detroit in 1911. The defendant claims plaintiff left him because she was infatuated with another man, which claim is denied by the plaintiff.

In 1911 plaintiff came to Detroit with, her children and resumed her marital relations with her husband soon after and lived with him until 1917. The parties had disagreements and finally separated. In February, 1917, the plaintiff filed this bill of divorce on the ground of extreme cruelty. An answer was filed and in March, 1918, a hearing was entered upon in open court. The defendant when a witness, though he had not mentioned the fact to his lawyer, when the answer was ‘prepared, testified that when the plaintiff was absent from him he had procured a divorce, and that when she came back to him in 1911 he told her about it and that they were remarried before a justice of the peace. Counsel for the plaintiff claimed to be taken by surprise and asked leave to amend his bill of complaint so as to ask for an annulment of the marriage of 1911. This he was allowed to do and the hearing was again resumed. -The plaintiff denied that she was informed of the divorce or that another marriage ceremony took place, but insisted the defendant told her the Belgian marriage still remained good and that they went to living together, relying upon that fact.

When the defendant was a witness and testifying as to the desire of the mother of the plaintiff that the parties should go to living together the record discloses the following:

“I would like to have you take her back again with you home and if I could help her I would do all I could. She says, ‘Do you think you could take her back again?’ I says, T don’t know, I had better see her.’
“Q. You finally got together and lived as husband and wife?
“A. Yes.
“Q. And you married her?
“A. We were married again by a justice of the peace. I got a divorce when she was living with the other fellow, and we were married again. I got my divorce, yes, when she was gone. I got it here in Detroit. She was in Wisconsin at that time.
“Q. Let me see your divorce decree.
“A. When I got home I gave her what was left; I didn’t take her money. (Witness produces papers.)
“The Court: This is a marriage‘license; this is not a divorce. Where did you get your decree?
“A. I could not tell.
“The Court: Who married you?
“A. You got me there.
“The Court: This doesn’t show a marriage, it shows a license. It. doesn’t show there was any marriage.
“Q. You were not married again, you went to living together again. Who married you?
“A. It was in the building here. I think it was in the ground floor.
“Q. What judge was it?
“A. i don’t know.
“The Court: You had no marriage ceremony performed ; you were not married under this license, were you?
“A. That is all I know.
“The Court: (To the plaintiff) Were you married in 1911?
“A. I don’t know.”

The court entered a decree which is very inartificially drawn, which reads in part as follows:

“That when defendant requested plaintiff to come and live with him as his wife, defendant knew he was deceiving his wife into believing that they resumed relations as husband and wife under the marriage of 1899, that by the accomplishment of such renewed marriage relation by defendant, Victor Vermoortel, the defendant deceived his wife by false and wilful suppression of the true state of facts till he disclosed them at the hearing of this cause, in March, 1918, at which time plaintiff, Marie Vermoortel, learned for the first time of such divorce in 1910, that after said hearing the plaintiff was given leave to amend her bill so that it would include a prayer for the annulment of such so-called common-law marriage, by an order of this court made on April 18, 1918, and the defendant was then and there granted further time to make answer to such amended bill, which said answer was made and filed by the defendant about May 17, 1918, and thence said cause came on for further hearing on said new pleadings but no new material facts were adduced therefrom and thereby; that the defendant has been guilty of the material facts charged in said bill and the said amended bill:
“On motion of Frank E. Whipple, attorney for the plaintiff, it is ordered, adjudged and decreed and this court by virtue of the authority therein vested, and in pursuance of the statute in such case made and provided, doth order, adjudge and decree that the so-called common-law marriage-be, and the same hereby is set aside and vacated and declared to be null and void and of no effect whatever, and was null and void from the beginning. And the. said parties are, and each of them is free from the obligation thereof and an annulment of the said marriage is hereby decreed.”

The case is brought here by appeal.

It is the claim of the plaintiff that the decree not only annulled what defendant calls a marriage in 1911, but that it is a divorce from the marriage that took place in Belgium. It was claimed on the oral argument by counsel for defendant that the divorce proceedings prior to 1911 dissolved the Belgium marriage, and that from then on the relations of the parties was that of common-law husband and wife.

We quote from the brief of counsel for appellant:

“It is perfectly apparent from a reading of the brief that even at this time, plaintiff is not aware of the change which took place in this lawsuit when the pleadings were amended to show the transaction of 1911. When that amendment was made, plaintiff was no. longer seeking a divorce, but was striving to have the relationship, whatever it might be called, which was entered into between herself and the defendant, declared a nullity. A bill filed to have- a marriage declared a nullity and a bill seeking a divorce are two very different things and the law bears very differently upon each of those two situations.”

It is argued that under the amended pleadings the court could not grant a decree of divorce and that under a bill for the annulment of a marriage the court could not make a final disposition of the property rights of the parties. Some light may be shown as to how the trial judge regarded the decree from the fact that the decree makes a full disposition of the property rights between the parties. There has been a full hearing upon the merits.

In Atkinson v. Akin, 197 Mich. 289, 300, it was said:

“It is, however, within the power of this court to permit amendment of pleadings to conform with the testimony where the subject is related and has been fully gone into with no claim of surprise. Under the circumstances we deem it equitable and proper to disregard this technical objection.”

We think this language is especially applicable to the case before us.

The decree is affirmed, with costs to the plaintiff.

Ostrander, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Bird, C. J., did not sit.


text:
    PEOPLE v. BIOSSAT.
    1. Criminal Law — Arson—Information—Sufficiency—Variance.
    In a prosecution for arson under 3 Comp. Laws 1915, § 15289, an information charging the felonious burning of a “certain hotel known as the Hotel Michigan of the property,” etc., Held, to state a sufficient description of the property burned to sustain a conviction.

      2. Same — Evidence—Fictitious Names — Validity of Insurance Policy.
    An objection that the admission in evidence of tbe fire insurance policy was error because tbe agents issuing same were doing business under a fictitious name without filing a certificate in conformity with 2 Comp. Laws 1915, § 8349 et seq., held, not well taken.
    3. Same — Absence of Revenue Stamps.
    Tbe absence of revenue stamps did not render tbe policy inadmissible, since tbe insurance company could take no advantage of its failure of dirty to affix tbe same.
    4. Same — Confessions — Voluntary Admissions — Question of Fact.

      Held, that tbe trial court properly submitted to tbe jury, under proper instructions, tbe disputed question as to • whether a claimed confession of defendant was voluntary.
    Exceptions before judgment from Charlevoix; Chester, J., presiding.
    Submitted April 17, 1919.
    (Docket No. 109.)
    Decided May 29, 1919.
    Cora E. Biossat was convicted of arson.
    Affirmed.

      J. M. Harris and Lisle Shanahan, for appellant.

      A. L. Fitch, Special Prosecuting Attorney, for the people.
   Moore, J.

This caséis here upon exceptions before sentence. We quote from the information which was filed in the case as follows:

“That heretofore to wit on the tenth day of March, A. D. 1917, at the city of Charlevoix and in the county aforesaid, one Cora E. Biossat, late of the city of Charlevoix, in the county aforesaid, feloniously, unlawfully and wilfully did cause or procure the setting fire to and burning of a certain hotel known as the Hotel Michigan of the property,” etc., etc.

The respondent was convicted. We quote from the brief of her counsel:

We classify the assignments of error as follows:

“1. The discrepancy between the information and the statute, 3 Comp. Laws 1915, § 15289.
“2. Admission of the insurance policy in evidence.
“3. The admission of the claimed confession in evidence and leaving it to the jury to determine whether the confession was voluntary or not.”

We consider these assignments in the same order:

1. We again quote from the brief of counsel:

“The statute reads:
"‘Every person who shall wilfully burn any building or any goods, wares, merchandise, or other chattels, which shall be at the time insured’ * * *
“The objection is that a description of Hotel Michigan does not describe any building within the terms of the statute and neither does it describe any goods, wares, merchandise or other chattels, and if it does it does not point out whether the accused is charged with procuring the burning of personal property or real property.”

We think that when the information describes the property burned as a certain hotel known as the Hotel Michigan that is the description of a building and is sufficient.

2. It is said that the admission of the insurance policy in evidence was error, first, that it was not proven the policy was signed by an authorized agent, and second, that no revenue stamps were affixed.

Under the first head counsel for respondent say the agent was doing business under the fictitious name of Myrtie Young & Son; that Earl A. Young claims to have continued to do business as Myrtie Young & Son, and that they filed no certificate of fictitious name as required by the statute (2 Comp. Laws 1915, § 6349 et seq.). We think there is nothing in this point. See Axe v. Tolbert, 179 Mich. 566; Cross v. Leonard, 181 Mich. 24; Sauer v. Construction Co., 179 Mich. 624; Zemon v. Trim,, 181 Mich. 130; Hager v. Schliess, 184 Mich. 472.

It is also said there was a failure to prove the authority of the agent to countersign the policy. The agent testified that a certificate of authority had been issued to him, but that he was unable to find it. It was then shown by a representative of the insurance department of the State that a certificate of authority had been issued to him. In this connection it is well to say that the policy received in evidence is the same one that was on the building when a fire occurred in the previous November for which the loss then sustained was adjusted. See People v. Jones, 24 Mich. 224. But it is said that as the policy had no revenue stamps it should not have been received. The insurance company could take no advantage of its failure to affix stamps where it was its duty to do so. We think the policy was properly admitted.

3. Did the court err in its rulings in relation to the admission of the so-called confession? The testimony was very conflicting as to what occurred when the paper was procured.

The circuit judge charged the jury in part as follows:

“There has been some testimony introduced in this case from which it is claimed that this respondent has confessed in writing and admitted orally that she procured the firing of this building. As to this branch of the testimony it is necessary for you to inquire and determine before you can consider it with reference to the guilt of respondent; first, whether or not such confession and statements, if you find any were made, were the free and voluntary confessions of the respondent. Also whether or not "there was such a loss of memory or disorder of memory or mental confusion that she did not realize that she confessed to committing a crime. If you find they were made and you find they were not her free and voluntary statements, then they cannot be considered by you; or if you find they were made and that they were not intelligently made — that is, that her memory or mind was so disordered and confused that she did not realize what she said, then they cannot be considered by you.
“I have said you must find whether or not they were free and voluntary. If you find that the claimed confessions were made and were made under fear, compulsion, deceit, threat or duress, or if they were made upon and inducement, promises, hope or expectation that it would be better for her to make them then they would not be the voluntary confessions of the respondent and should not be considered by you.
“I have said you' must find whether they were intelligently made — that is, whether or not she knew and understood what she was saying. If the condition of her mind was such because of loss of memory or disorder of memory, or mental confusion, and such impairment of memory had extended to that degree that she did not realize what she said, then it was not her intelligent statement, and could not be considered by you. But if she did mentally appreciate and realize what she said there, then it would be her intelligent statement, and, so far as the question of her mind was concerned, it could be considered by you.
“I have defined to you what is meant by voluntary confessions and also under what state of mental condition she would or would not be held for her statement.
“Then, gentlemen of the jury, if you find these confessions and statements were not the free and voluntary confession of the respondent, or that she didn’t know or understand what she was saying, under the instructions I have given you as to these confessions and statements, then they cannot be considered against her. But if they were her intelligent statements— that is, she knew, understood, appreciated and realized what she said, and they were voluntarily made, and made of her own free act without fear, compulsion, deceit, threat or duress, and without any inducement or promises, hopes or expectations of favor, or that it would be better for her to do so — then they may be considered by you, under all the instructions I give you as to confessions, and upon which you are instructed that voluntary and intelligent confessions of a prisoner are received in evidence of guilt upon the presumption that a person will not make an untrue statement against his or her own interest. The evidence of confessions of guilt is to be received with great caution because of the danger of mistakes from the misapprehension of the witness in detailing the confession, the failure of the witness to use the same words, the infirmity of memory; also because the prisoner may not have expressed the meaning which she intended to convey and it should be remembered and considered that the prisoner is often oppressed by the calamity of the arrest; the fact of being in custody of the officers; the refusal of the officers to allow her to see her husband or an attorney; and also as bearing upon this question you will consider her physical condition, whether weak or strong, all that was said to her and done there and the length of time she was in the room with the officers; the questions asked her and the statements by the prosecuting attorney that she and her husband were in a bad fix, and the statement made to her that Mr. Johnson had confessed and claimed she had hired him to do it, and any other facts or circumstances that you find from the evidence bears upon her condition at that time.
“Subject to these cautions in receiving and weighing evidence or confession, if is generally agreed that deliberate, intelligent and voluntary confession of guilt are among the most effectual proofs — the degree of credit to be given to the claimed confessions in. this, case is for you, under the evidence in the case and the manner in which they were made. Look over the testimony, gentlemen, with reference to the confessions and statements and determine if they were made, and if made, whether or not they were made deliberately, intelligently and voluntarily on the part of the respondent.
“In determining the effect to be given to these claimed confessions you will also consider the testimony of the experts who have testified before you as to the effect of all these things upon her mental condition and upon her ability to make a voluntary statement at the time she did make it.
“I further charge you that if you find that these admissions or statements were made under such circumstances, under the instructions I have heretofore given you, that you cannot use them, I charge you that all' such confessions or admissions which the people claim she made, you are not to consider, — that is, if the original admissions, or confessions are obtained under such circumstances as not to be evidence against the respondent, then all subsequent statements or confessions are impressed with the same infirmities.”

In People v. Prestidge, 182 Mich. 80, Justice Bird, speaking for the court, said:

“If the preliminary testimony made it clear either that the statement claimed to have been made was voluntary, or involuntary, it was the duty of the trial court to admit or reject it. If the testimony left the question in doubt, it was the duty of the court to admit it, and leave the question to the jury under proper instructions to determine whether it was voluntarily made. People v. Barker, 60 Mich. 277 (27 N. W. 539, 1. Am. St. Rep. 501).”

The respondent was represented at the trial by able and alert counsel. The trial judge was a man of great experience who tried to and did safeguard the rights of the accused. The decisive questions were those of fact. ■ .These were carefully and fairly submitted. We find--no reversible error. The case is remanded for further proceedings.

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


text:
    LAGDEN v. CONCORDIA MUTUAL FIRE INSURANCE CO. OF BAY, SAGINAW & ARENAC COUNTIES.
    Insurance — Fire Insurance — Violation of Policy — Prejudice to Insurer — Statutes—Directed Verdict.
    In an action on a fire insurance policy, where defendant failed to sustain the burden of proof that it had been prejudiced by the failure of plaintiff to pay assessments or to notify it that he had taken out additional insurance, under Act No. 128, Pub. Acts 1911 (2 Comp. Laws 1915, § 9481), plaintiff was entitled to a directed verdict.
    Error to Bay; Houghton, J.
    Submitted April 29, 1919.
    (Docket No. 4.)
    Decided May 29, 1919.
    Assumpsit by Harry T. Lagden against the .Concordia Mutual Fire Insurance Company of Bay, Saginaw and Arenac counties on a policy of insurance. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Kinnane, Black & Leibrand, for appellant.

      Curtis E. Pierce, for appellee.
   Moore, J.

This case has been here before and is reported in 188 Mich. 689. Upon the second trial the evidence taken on the first trial was read in evidence and. some additional testimony taken. At the close of the testimony each of the parties asked for a directed verdict. It was the claim of the plaintiff that Act No. 128 of the Public Acts of 1911 (2 Comp. Laws 1915, § 9481) controlled the case and that a verdict should be directed in his favor. It was the contention of the defendant that as the policy was issued in 1908 that Act No. 128 had no applicability and such was the view of the circuit judge who directed a verdict in favor of the defendant. The case is brought here by writ of error. When the case was here before, Justice Bird, who wrote the majority opinion, quoted, from many of the provisions of the charter.and the by-laws and it will be helpful to refer to both of the opinions then filed. It may be well to add some things that did not appear in the record before. Section 21 of the charter reads:

“If any person having property insured in this company shall procure the same to be insured in any other company it shall be his duty to at once give notice of such other insurance to the secretary; and the president and secretary may in their discretion cancel his policy, and in case he shall fail to give such notice, his policy shall be void from the date of such other insurance, and this company shall not be liable for any losses occurring after that, date.”

Section 24 reads in part:

“The board of directors shall make assessments to pay all claims against the company, but they shall not (except as hereinafter provided) make more than one assessment in any one year; * * * that if the directors cannot borrow money at current rates of interest to pay losses, the board of directors may make a second assessment for the purpose.”

We quote from section 28:

“If any member shall not pay such assessment within the said thirty days, his policy shall thereupon be suspended without any further action on the part of the company or any officer thereof, until he shall have paid such assessment together with the further sum of twenty-five per cent, thereon as a penalty. The treasurer’s or receiver’s receipt shall be sufficient evidence of such payment, and shall reinstate the policy from the date of such receipt. The company shall not be liable to pay any loss on such policy occurring during the suspension thereof.” * * *

The policy had this provision in it:

“Provided, however, that if the said insured shall refuse or neglect for the space of thirty days after demand, as provided by the charter of said corporation to pay any assessment or assessments made against said insured according to the charter and by-laws of said corporation, then in such case this policy of insurance shall cease and be of no further binding force and validity whatever as against said corporation until payment of such assessment is made, as provided in section 28 of the charter.”

We quote from the testimony of the plaintiff:

“I always paid my assessment. The last assessment I paid was on November 15, 1911; that would pay me up to the 31st of December, 1911. On January 21, 1912, fire destroyed my house and all the contents. * * *
“At the time I took out the other policy of insurance^ had my father pay my assessment in the Concordia. I instructed him to tell the treasurer of the company that I had taken out additional insurance in the Patrons’ Mutual Fire Insurance Co., of Lansing. The Concordia issued assessments every year and I always 'paid them.”

See Brady v. Insurance Co., 11 Mich. 425; Ladies of the Modern Maccabees v. Surety Co., 196 Mich. 27.

The father of Mr. Lagden testified that he paid the assessment as requested by his son.

“He had an office up where I went to pay the insurance. He received the money and I told him Mr. Lagden had taken out another insurance in another policy. He said all right. I told him tb_e other company was the Patrons’. He gave me a receipt. I don’t know how it was signed.”

The treasurer was not called. We think upon this record a verdict should have been directed for the plaintiff.

The case is reversed and a new trial ordered, with costs to the plaintiff.

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


text:
    WHITMAN v. COCHRANE.
    1. Drains — Drain Saus — Preferred Bidder — Statutes.
    The right to be a preferred bidder at a drain sale, given by 1 Comp. Laws 1915, § 4904, is a substantial ■ one, of which all bidders are bound to take notice.
    2. Same — Contract for Construction — Preferred Bidder.
    Where plaintiff, a preferred bidder under the statute, notified the drain commissioner, who was acting as auctioneer, after all the bids had been made and the contract was declared sold, but before announcement to whom it was sold, that he claimed the contract as a preferred bidder, at the lowest bid, he was entitled to the same.
    Certiorari to Jackson; Williams, J.
    Submitted April 8, 1919.
    (Calendar No. 28,702.)
    Decided May 29, 1919.
    Mandamus by Seward E. Whitman to compel Emmett E. Cochrane and Raymond H. Briggs, drain commissioners of Jackson and Calhoun counties, to award a contract to plaintiff for the construction of a drain. From an order denying the writ, plaintiff brings certiorari.
    Reversed, and writ granted.

      William M. Smith and Nathan E. Bailey, for appellant.

      J. M. Hatch & Son and C. C. Cortright, for appellees.
   Moore, J.

This is a contest between the petitioner and George A. Smith as to which of them shall be awarded a contract to construct a drain. It involves a construction of the provisions of section 4904 of the Compiled Laws of 1915 which provides:

“The parties who are assessed a tax for benefits in the construction of such drain, and who may be bidders for the contracts thereon, shall, if equal bidders with other parties, be preferred in awarding such contracts.”

Mr. Smith claims his bid was accepted and that he should have the contract. The bidding had been going on for some time and one George A. Smith had offered to do a certain job for $12,399. Emmett E. Cochrane, county drain commissioner of Jackson county, was receiving bids.

It is the claim of the petitioner that before the bid of Mr. Smith was accepted he indicatéd to Mr. Cochrane that he desired to take advantage of the statute and said: “I will take that as a preferred bidder.”

A controversy arose which resulted in Mr. Whitman filing a petition in the Jackson circuit court, setting up the facts and asking for a writ of mandamus against the drain commissioners, commanding them to enter into the contract with him. The matter was put at issue, attorneys for George A. Smith, who were permitted to make a defense, asked for a jury which was impaneled. The testimony was all taken before the jury, the court later discharged the jury and denied the writ of mandamus. The case is sought to be reviewed here.

The circuit judge was in grave doubt as to what he ought to do as is indicated by the following taken from his opinion:

_ “Section 4904 of the Compiled Laws of 1915, provides among other things that the county drain commissioner shall thereupon proceed to receive bids and let contracts for the construction of the sections and make contracts with the lowest responsible bidder giving adequate security for the performance of the work. A little further on in the statute the following language is used:
" 'Parties who are assessed a tax for benefits in the construction of such drain, and who may be bidders for the contracts thereon, shall, if equal bidders with other parties, be preferred in awarding such contracts.’
“Now, under the testimony in this case, I take it that there is no dispute that Mr. Whitman was assessed a tax for benefits under this drain, and therefore, if at the time which is in question in this particular sale he was an equal bidder with Mr. Smith, he should be preferred in awarding the contract, because there is, as I recall it, no claim that Mr. Smith was assessed any tax for benefits under the drain. That is correct isn’t it Mr. Hatch?
“Mr. Hatch: Yes, sir.
“The Court: So that the question narrows down to this precise point as I view it, at the time that the sale drew toward a close there, was Mr. Whitman an equal bidder with Mr. Smith, at $12,399, for the construction work? That involves a construction of the language of the statute, ‘equal bidder.’ I think the word ‘bidder’ as used in ordinary language signifies one who makes an offer at a public sale. Now then, I think it is necessarily implied in the use of that language by .the legislature that a man should make his offer according to the rules or custom of the particular kind of sale that was being carried on at that time.
“If in this case we followed the analogy of an auction sale, which counsel for relator think should not be followed, there would be very little difficulty with the proposition in my mind. The principle of the thing would be that the offer or bid would amount in law to an offer and the auctioneer signifying that the salé was closed, either by the fall of the hammer or by appropriate words and gestures, would amount to an acceptance of that offer, and unless a man who wanted to bid got in his bid at some time before the auctioneer had cried the price in the customary way, three times, and used the word ‘sold,’ or appropriate words to indicate that the transaction was closed, his bid would not be considered as made in the customary way and would be rejected by the auctioneer.
“I am inclined to think on the whole, although I have considerable difficulty with the question, that the analogy of an auction sale should be followed here. Here is a job of considerable magnitude which attracts bidders from considerable distances, as apparently was the situation here. Men were at the sale from a considerable number of surrounding towns and at considerable distances. It is important for the public good that such men as are competent to do that kind of drain construction can go where they are to do any bidding on such jobs. I submit if contractors —if the law were that contractors could name a bid and be told that the contract was knocked down to them and then at some later time the sale could be reopened and the matter all threshed over again, that there would be difficulty in securing bidders. This is a practical phase of the question. * * *
“Now, I fully realize that I may be entirely wrong in this matter. The Supreme Court may take an entirely different view of the situation and I am frank to say I am not at all certain what the final decision will be. I trust, however, that the matter will be reviewed because this is a novel proposition and there is much to be said on both sides. I shall therefore, gentlemen, deny the writ.”

There is not much conflict in the testimony as to what occurred. Mr. Cochrane testified in part as follows:

“Q. At the sale of that drain you acted as auctioneer?
“A. Yes, sir.
“Q. I wish you would tell us, Mr. Cochrane, in your own way — you know what this dispute is about — just what occurred there in reference to the bids on this drain between Mr. Smith and Mr. Whitman and yourself?
“A. It is quite a long story from the start of the sale to the finish.
“Q. We just — all we care about is what occurred at the end. ■ We don’t care about all the bids.
“A. Mr. Whitman was a consistent bidder on the drain until it got to $15,000, as I remember it, and then he dropped out. Mr. Smith was bidding continuously. Finally when the amount got down to $15,000 some other bidders came in, other men that was qualified to bid, and they bid the amount down to $12,399, as I remember it. I tried to have the bid lowered by different ones, and finally I called three times and sold, and Mr. Whitman says, T prefer that bid.’
“Q. What did you say after that, after the word ‘sold’ what did you say?
“A. I said ‘to this man here.’ I didn’t know Mr. Smith’s name.
“Q. Did Mr. Whitman speak up before you said that, ‘to this man here,’ that he would take it as a preferred bidder?
“A. Yes. He says, ‘I prefer that bid.’ That is the words he used.
“Q. Did he say that before you said the words, ‘to this man,’ pointing to Mr. Smith?
“A. Yes, sir.”

On the cross-examination he testified in part as follows:

“Q. Just tell what you did, Mr. Cochrane?
“A. I tried to get a bid as low as possible and when I found I couldn’t get it lowered, I gave fair warning once, twice, three times and sold.
“Q. You did use the word ‘sold’ before Mr. Whitman spoke?
“A. Yes, sir.
“Q. You had accepted the bid of George A. Smith—
“Mr. Smith (interrupting): I object to that, if the court please, as calling for a conclusion, and improper, incompetent and irrelevant, and calling for a question of law, whether he had accepted the bid or not.
“Mr. Cortright: That was the last bid that was made, $12,399.
“The Court: What he said is all right, but his construction of what it amounted to is for the jury as well. You may show what Mr. Cochrane did and what he said and all about it in that way, but try to avoid making him draw conclusions as to the result of what he did. They object to the word ‘accept’ because that calls for a conclusion and I think that is a proper criticism.
“Mr. Cortright: I can’t see it that way, but I am willing to frame the question another way.
“Q. Did George A. Smith offer — make a bid of $12,-399?
“A. Yes, sir.
“Q. Was there any other bid lower than that?
“A. Not that I heard.
“Q. It was George A. Smith’s bid of $12,399 on which you struck or said the word ‘sold’?
“A. Yes, sir.”

Before Mr. Cochrane indicated to whom he had sold the contract, he was advised by Mr. Whitman that he was insisting upon his rights under the statute to have the contract awarded to him. This was a substantial right given by the statute and of which all the bidders were bound to take notice.

The writ will issue as prayed. Petitioner will recover his costs of both courts, to be taxed.

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


author: MOORE, J.

text:
    ZOLADTZ v. DETROIT AUTO SPECIALTY CO.
    1. Master and Servant — Workmen’s Compensation Act — Witnesses — Matters Equally Within Knowledge of Deceased.
    In proceedings under the workmen’s compensation act for the death of plaintiffs’'husband and father in defendant’s employ, testimony by the foreman that deceased was disobeying instructions at the time he was hurt was inadmissible under section 12553, 3 Comp. Laws 1915, being equally within the knowledge of deceased.
    2. Same — Course of Employment — Review.
    Where the testimony showed that deceased, a metal polisher, was injured while attempting to put a belt on a pulley with a stick, held, sufficient to sustain a finding that the accident arose out of and in the course of his employment.
    Authorities passing on the question as to what injuries “arise out of and in the course” of the employment are collated in notes in L. R. A. 1916A, 40 and 232; L. R. A. 1917D, 114.

      3. Same — Provisions of Award to Dependents — Widow—Minor Children.
    Under section 5436, 2 Comp. Laws 1915, the award of the industrial accident board for the death of a husband and father properly provided that the payments should be made to the widow during her life, and at her death, if any remained unpaid, then to the living minor children in equal shares.
    Certiorari to Industrial Accident Board.
    Submitted April 23, 1919.
    (Docket No. 89.)
    Decided May 29, 1919.
    Mary Zoladtz and others presented a claim for compensation against the Detroit Auto Specialty Company for the accidental death of plaintiffs’ decedent in defendant’s employ. From an order awarding compensation, defendant and the General Accident, Fire and Life Assurance Corporation, Limited, insurer, bring certiorari.
    Affirmed.

      Kerr & Lacey, for appellants.

      Edward Pokorney, for appellees,
   MOORE, J.

Mary Zoladtz is the widow of Peter Zoladtz. The other claimants are his small children. Mr. Zoladtz was at work for the defendant as a metal polisher and received injuries which resulted in his death. The accident board awarded to Mrs. Zoladtz $7.79 per week for a period of 300 weeks from the date of the death of her husband, and in case of her death before all the compensation payable in the case has been paid, the unpaid compensation shall be paid to the other claimants then living, in equal shares. This is certiorari to review the award of the accident board.

The first assignment of error is:

“The industrial accident board erred in ruling that the personal injury sustained by Peter Zoladtz arose out of and in the course of his employment.”

This assignment is based upon the contention that Mr. Zoladtz was disobeying instructions when he was hurt. This was sought to be shown by the testimony of the foreman. This testimony was received over the objection that it was against the statute as Mr. Zoladtz could not give his version of the conversation. We think the testimony was incompetent. Hanna v. Michigan Steel Castings Co., 204 Mich. 139. VWth this testimony eliminated it is not shown that Mr. Zoladtz was violating any instruction or any rule to which his attention- had been called. We quote from the testimony:

“Q. Do you know a fellow up there by the name of Charlie, he is a machinist?
“A. The one that puts on belts?
“Q. Yes.
“A. Yes.
“Q. How many times have you seen Charlie put on the belt?
“A. After that accident I saw him that he put on the belt two times.
“Q. Who is Charlie up there? What does he do?
“A. He is the man that when a drill breaks on the machiné he takes it over on an electric drill — I take it and he repairs it. If any belt breaks it is taken to him and he repairs the belt.
“Q. Has he got a room there where he works?
“Á. Yes, he works in the basement.
“Q. Ever been down there?
“Á. Yes, I was there a couple of times.
“Q. Did anybody say anything to you with reference to what you should do if your machine broke?
“A. No, I took the drill myself down and he fixed it.
“Q. How do you know where to take it?
“A. The man that used to work with me, Steve, he told me where to bring it.
“Q. You take it down to Charlie because somebody told you to take it there, is that right?
, “A. Yes.
“Q. And when the belt broke you took that down to Charlie?
“A. Yes.
“Q. That was Charlie’s job, wasn’t it?
“A. Sure, Charlie’s work.
“Q. When anything broke there in the shop they took it to Charlie, is that right?
“A. Yes. * * *
“Q. Did you see Peter trying to put the belt on the wheel?
“A. Yes.
“Q. Just tell us what you saw him do, what did you see Peter do?
“A. The first thing the afternoon he started to work, in the afternoon.
“Q. On the polishing machine?
“A. On the polishing machine. He went to put the belt on, the belt broke and dropped on the floor.
“Q. Between one and two o’clock?
“A. Between one and two o’clock, something, like that, I couldn’t tell for sure.
“Q. Where?
“A. After that he go—
“Q. He took the belt to Charlie? '
“A. He went to the cellar.
“Q. All right.
“Mr. Lacey: He went to the cellar you said?
“A. Yes. I don’t know for sure what he got there for.
“Q. Did you see him when he came back?
“A. Yes, he came back.
“Q. Was the belt fixed when he came back?
“A. The belt fixed.
“Q. The belt was fixed?
“A. Yes.
“Q. Did Peter have the belt with him when he came back from the cellar?
“A. He came back with the belt from the cellar. “Q. With the belt?
“A. He hold it in his own hands.
“Q. .You mean the belt was in his hands?
“A.- Yes.
“Q. Then what did you see Peter try to do?
“A. After that he put that belt in the machine with a piece of board. I don’t know how he figured with the piece of board.
“Q. What was he trying to do?
“A. It was about four inches long.
“Q. How wide?
“A. About an inch.
“Q. Thick?
“A. Yes.
“Q. Now stand up and just show us'what was Peter doing with the board.
“A. Well he took the board and put — he wanted to put the belt on the wheel on that pulley. After the pulley — must be the pulley — must be the spokes, then he get the pulley here, and that stick, when the stick hit Peter right here (indicating).
“Q. You mean in the stomach?
“A. Yes.”

We do not think it can be said that there is no testimony that the accident did not arise out of and in the course of the employment of Mr. Zoladtz. See Rayner v. Sligh Furniture Co., 180 Mich. 168 (L. R. A. 1916A, 22, Ann. Cas. 1916A, 386); Reck v. Whittlesberger, 181 Mich. 463 (L. R. A. 1916C, 771); Papinaw v. Railway Co., 189 Mich. 441; Vogeley v. Detroit Lumber Co., 196 Mich. 516; Hanna v. Michigan Steel Castings Co., 204 Mich. 139.

Appellant’s second assignment of error is as follows:

“The industrial accident board erred in the entry of its order in which they held that compensation should be paid to Mary Zoladtz ‘at the rate of seven dollars and seventy-nine cents per week for a period of three hundred weeks from and after May 10, 1917, but said award is hereby modified and amended so as to provide that in case of the death of Mary Zoladtz before all the compensation payable in this case shall have been paid then and in such case all unpaid compensation shall be paid to the said above mentioned children or to any of them, who are then living in equal shares.’ ”

In the findings of the industrial accident board is the following:

“The proof shows that the deceased left four children, the issue of himself and the applicant, whose names and ages are as follows: Nellie Jones Zoladtz, aged 12 years, George Jones Zoladtz, aged 7 years, Stanilaus Zoladtz, aged 4 years, Joe Zoladtz, ^aged 17 months. These four children were just as dependent upon the deceased as their mother was. By agreement of the attorneys for the respective parties the title of this case was amended so as to make the children as well as their mother applicants. The compensation will be paid to the mother, but should her death occur before it is all paid any unpaid balance will be paid to any of the above named children then surviving in equal shares.”

Upon this record the award as made cannot be disturbed. See section 5436, 2 Comp. Laws 1915, and especially subdivision c.

The award is affirmed with costs to the appellee.

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


text:
    HERP v. MURPHY.
    Landlord and Tenant — Construction of Lease — Feed for Stock, A lease providing that “party of the first part is to furnish feed for stock until feed can be grown on premises except for horses. All grain and bran purchased shall be paid for one-half each after feed is grown on the premises,” construed and held, that, after the crops for the summer began to come in, the horses as well as the other stock should be ied from the products of the farm, and that ail grain and bran purchased thereafter should be paid for one-half each.
    Appeal from Allegan; Cross, J.
    Submitted April 10, 1919.
    (Docket No. 30.)
    Decided May 29, 1919.
    Bill by Michael Herp against George Murphy and another to restrain an action at law and for an accounting. From a decreé for plaintiff, defendant Murphy appeals.
    Modified, and affirmed.

      Herman & Johnson, for plaintiff.

      Clare E. Hoffman, for appellant.
   Moore, J.

April 12, 1916, the plaintiff leased in writing from defendant a farm for a series of years. At about the same time Mr. Herp bought from Mr. Murphy a quantity of personal property including four horses. He gave his notes for a portion of the purchase price. Mr. Herp worked the farm, selling the cream and other farm products until December, 1917. There were alleged settlements between the-parties from time to time. The lease was terminated, by the consent of both partiés. During its existence a, good deal of friction had arisen between the parties1. At the close of the lease there was an auction sale and an attempt was made to settle with the clerk of the auction the respective interests of the parties. When Mr. Herp left the farm he left upon it a quantity of hay, clover seed, potatoes and perhaps other farm products which he claims were to be sold and the proceeds divided, or were to be divided between the parties. Soon after the auction sale Mr. Murphy commenced a suit against Mr. Herp before Frank Gregg, a justice of the peace. The plaintiff then commenced this chancery case to restrain the prosecution, of the suit in justice’s court, he claiming that defendant had refused to give him his share of the farm crops as agreed and asking for an accounting of their partnership affairs, averring that there was a considerable amount of money due him. The subsequent conduct of Mr. Gregg is not important. Mr. Murphy answered in detail the averments of the bill of complaint. The case was put at issue and heard in open court. The trial judge filed a written opinion and after a little delay a decree was'entered, the material parts of which read:

“This cause having been duly brought on to be heard upon the bill of complaint, answer and cross-bill of defendant, George Murphy, and after issues joined and proofs taken in open court, and this court being” advised that plaintiff has heretofore returned to defendant Murphy the stock tank and has received from defendant Murphy one hundred twelve and one-half (112%) pounds of clover seed, and the court being fully advised in the premises, it satisfactorily appears to this court that plaintiff is entitled to recover from defendant Murphy for the following items:
For hay tackle sold defendant................ $18.00
For corn furnished for feed.................... 33.86
For potatoes used for seed..................... 9.00
For oats used for feed......................... 297.50
.Being a total amount of..................... $358.36
“And it also appears to this court that defendant Murphy is entitled to recover from the plaintiff for the following items:
To replace stove wood......................... $28.00
For 14 bu. of wheat........................... 14.60
For pork consumed by plaintiff................ 78.00
For carpet sold plaintiff....................... 40.00
For half price of two calves.................. 29.75
For hay furnished plaintiff.................... 86.00
For milk from November 15th................ 15.00
For credit on hay tackle...................... 4.00
For half expense of threshing clover seed...... 10.83
A total amount of.......................... $306.18
“It is therefore ordered, adjudged and decreed, and the court doth hereby order, adjudge and decree that the defendant George Murphy forthwith shall pay to the clerk of said court for plaintiff, the sum of fifty-two dollars and eighteen cents.”

The case is brought here by appeal.

We quote from appellant’s brief:

“From the decree rendered the plaintiff did not appeal. ' Defendant appealed and claims that the court was in error:
“a.. In failing to allow to the defendant the damages sustained by reason of the unlawful detention of the hay.
“6. In allowing to the plaintiff the item of $297.50 for oats used for feed.
“c. In allowing to the plaintiff the item of $33.86 for corn furnished for feed.
“d. In allowing the item of $9 for potatoes for seed in 1916.
“e. In allowing to the defendant but $40 instead of $45 for the carpet.”

We take up the items in the order in which they are presented:

a. Between the date of the commencement of the suit and the time of the trial the price of hay had dropped and it is claimed that as plaintiff had tied up the sale of the hay by his injunction suit, he should have shared the loss. The plaintiff replies that the defendant himself is responsible for the delay as he refused to allow the hay to be baled or sold by the plaintiff. The record shows that the hay was after-wards divided in the mow and Mr. Murphy testified: “I never objected to their, taking their half of the hay. I .wanted to feed mine.”

5 and c. Defendant claims no charge should be made against him as to these two items. It is agreed the item $33.86 should be for corn and feed instead of as it reads. Whether these items should be a charge in whole or in part against the defendant depends upon the construction to be given that part of the lease reading as follows:

“Party of the first part is to furnish feed for stock until feed can be grown on premises except for the horses. All grain and bran purchased shall be paid for one-half each after feed is grown on the premises. All stock is to be fed from the general products before division. * * *
“And the said party of the second part does hereby hire the'said premises for the term of three years, as above mentioned, and does covenant and promise to pay to the said party of the first part his representatives and assigns, for rent of said premises for said term, the sum of one-half of all crops and all increase that may be produced from livestock and party of second part is to furnish all teams and tools to carry on said farm and is to perform all the labor. The binder twine and expense of threshing, baling hay, each to pay one-half. Second party is to market all the produce that is to be sold by them and deliver one-half of the money to first party.”

It is the claim of plaintiff that the parties to the lease expected that oats and other grain could be grown upon the farm sufficient to feed the horses and other stock, but that because of the wet season oats could not be grown and that the land which should have been used to grow oats was used to grow other crops and that as it was necessary to buy oats to feed the horses the defendant should pay for them. This view seems to have been accepted by the judge. In the testimony of the defendant the following appears:

“I never told Herp that he had to furnish com and oats under his contract. He had to furnish the feed for his horses until it was grown on the farm.
“Q. But if there wasn’t anything grown for two or three years, you wouldn’t expect him. to furnish feed, would you?
“A. I should expect him to grow it. I never saw the time but that I raised a good crop on that farm, or anybody else. * * *
“I understand I was to furnish all the coarse feed to feed the stock until it should be grown on the premises. Whilé the lease doesn’t say so, that is the meaning of it, coarse feed. I supposed the word ‘coarse’ was in the lease.
“Q. You told him you wanted the lease drawn like somebody’s else lease?
“A. Yes.
“Q. So you engineered what should go in the lease, didn’t you?
“A. I did, yes, sir. I was to pay half for the grain and bran purchased after things were grown on the place.”

It is impossible to read the somewhat ambiguous provisions of the lease in the light of the circumstances and the facts disclosed by the record without reaching the conclusion that after the crops for the summer began to come in it was expected the horses as well as the other stock should be fed from the products of the farm, and that “all grain and bran purchased shall be paid for one-half each after feed is grown on the premises.” We think the trial judge was in error in not dividing equally the charge for the oats.

d. This item is justified by the record.

e. We think counsel must have overlooked the correction plaintiff made in his testimony and the testimony of defendant. “They kept kicking about paying a dollar for oats so I gave them five dollars credit on the carpet.”

The chancellor had a complicated case in which many witnesses were sworn who gave contradictory testimony. A number of exhibits containing many items required his examination. The only error we discover is the one we have indicated.

The .decree will be modified as indicated. The defendant will recover costs.

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


author: Ostrander, J.

text:
    MILLER v. S. FAIR & SONS.
    1. Master and Servant — Workmen’s Compensation Aot — Common Labor — “Employment.”
    Under the workmen’s compensation act, work ordinarily described as common labor is. an “employment.”
    2. Same — Partial Disability.
    Where plaintiff’s injuries resulted in partial disability, in that he could use only one hand instead of two in working at common labor, the compensation to which he was entitled was properly computed on the basis of partial disability.
    8. Same — Computation op Award — Average Weekly Wage.
    Where the order and award of compensation to which the injured employee is entitled under section 10, part 2, of the workmen’s compensation law, specifies the wages plaintiff is able to earn since the injury, instead of the average weekly wages he is able to earn, the award should be amended accordingly.
    As to the constitutionality, construction and effect of the workmen’s compensation acts, see comprehensive notes in L. R. A. 1916A, 23, and L. R. A. 1917D, 80.
    Certiorari to Industrial Accident Board.
    Submitted January 31, 1919.
    (Docket No. 64.)
    Decided April 3, 1919.
    Rehearing denied June 13, 1919.
    John Miller presented his claim for compensation against S. Fair & Sons for accidental injury in defendant’s employ. From an order awarding compensation in an insufficient amount, plaintiff brings certiorari.
    Amended, and affirmed.

      B. L. Crane, for appellant.

      Cummins & Nichols, for appellee.
   Ostrander, J.

Claimant was injured March 23, 1916. His average weekly wages were $12.70. The rate of compensation agreed upon by claimant and the insurance ■ company carrying the risk, and approved by the industrial accident board, was $6.35 per week, “subject to the terms of the act.” The statute, Act No. 10, Extra Session 1912, part 2 (2 Comp. Laws 1915, §§ 5439-5441), so far as it applies, reads:

“Sec. 9. While the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee, a weekly compensation equal to one-half his average weekly wages, * * *
“Sec. 10. While the incapacity for .work resulting from the injury is partial, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee, a weekly compensation equal to one-half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, * * *
“Sec. 11. * * * The weekly loss in wages referred to in this act shall consist of such percentage of the average weekly earnings of the injured employee, computed according to the provisions of this section, as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the accident, the same to be fixed as of the time of the accident, but to be determined in view of the nature and extent of the injury.”

We have held that, reading these provisions together :

“The language of this last provision is plain, and has but one obvious meaning, designating as the test capacity to earn in the same employment in which the employee was injured. That under this rule instances may arise where it works inequitably, does not authorize the court to read exceptions into it or modify its plain language defining the basis for estimating incapacity, which at best can only be approximated. If the method ought to be changed or exceptional cases provided for, the remedy rests with the legislature.” Foley v. Railway, 190 Mich. 507, 515.

And in Jameson v. Walter S. Newhall Co., 200 Mich. 514, when claimant was permanently disabled from pursuing the employment in which he was engaged when injured, but was nevertheless later on able to secure other and different employment, a finding that he was permanently wholly disabled, within the meaning of the act, was sustained. See, also, Mellen Lumber Co. v. Industrial Commission, 154 Wis. 114 (142 N. W. 187, L. R. A. 1916A, 374, Ann. Cas. 1915B, 997).

In the case now before us, the industrial accident board made the following finding and award on March 16, 1918:

“A petition having been filed by the applicant in the above-entitled cause, praying for reasons therein set forth that payments of compensation be continued therein, and the same having come on to' be heard before the board on February 14, 1918, and proofs and briefs having been filed and due consideration having been had thereon, the board finds as a fact from the files and testimony that said applicant is partially incapacitated as a result of the accidental injury received while in the employ of said respondents on March 23, 1916; that he has been employed part of the time since the date of the completion of the last payment of compensation, May 18, 1917; that while employed, with the exception of about two weeks following May 18, 1917, he has received reduced wages; that said applicant should receive compensation while employed, at the rate of one-half the difference between his wages before the accident and the wages he has received thereafter from the time he resumed work, May 18, 1917; that if said applicant should be at any time, either before or after the date of this order, unable to continue his work or unable to secure employment because of any disability resulting from his accidental injury, then he should be paid compensation at the rate of six dollars and thirty-five cents ($6.35) per week in accordance with the terms of the agreement approved by the board April 29, 1916, during such periods; that there is now due and payable to said applicant by said respondents compensation from the time payments were stopped, May 18, 1917, to the date of this order in conformity with the foregoing, which sum shall be paid presently.
“It is therefore ordered and adjudged that said applicant is entitled to receive and recover from said respondents compensation equal to one-half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, during his partial disability, in the employment in which he was engaged at the time of his injury, said payments to commence on May 18, 1917, the date of the last payment made to applicant by respondents.
“It is further ordered that at the present time applicant is entitled to receive compensation from May 18,1917, to the date of this order, less amounts earned during that period, and the sum due shall be paid forthwith.
“It is further ordered that if at any time applicant, during his disability, is unable to perform or secure work in view of said disability, then he shall receive compensation at the rate of six dollars and thirty-five cents ($6.35) per week in accordance with the terms of the agreement approved by the board April 29, 1916.”

Upon further application in the nature of application for a* rehearing, and upon the whole record, the board made the following finding and award:

“a. That the expression ‘less amounts earned during that period’ used in the third paragraph of the order of March 16, 1918, was intended to mean that the applicant was not to be paid workmen’s compensation during any time he was able to work and earn full wages and that said expression was not intended to mean that the earnings of the applicant should apply upon the compensation to which he should be entitled.
That the applicant was injured while doing the work of a common laborer such as wheeling, shoveling and mixing sand and carrying things necessary to be carried around the foundry.
“e. That the applicant at the time he was injured was not engaged in employment as a moulder and that he was not a moulder.
“d. That his average weekly wage at the time he was injured was $12.70; that his compensation rate during total disability was and is $6.35 per week.
“e. That at a time about fourteen (14) months after the man was injured he returned to the employment in which he was injured but only worked a couple of weeks or some such time and that it does not affirmatively appear that he worked steadily during that time, and hence it may be that during all of the time since the man was injured he may be entitled to receive compensation either for total or as for partial disability.
“f. That during all of the time since March 23, 1916, during which the applicant has not been able to earn at all he shall be paid $6.35 per week.
“g. That running an elevator is in the judgment of the board common labor and that during anjr of the time since the applicant was injured in which the applicant has. been able to earn some wages at common labor he is entitled to be paid one-half of the difference between the wages he has been able to earn at common labor and $12.70 per week, his average weekly wages at the time he was injured.
“h. That it appears to the board that the hand of the applicant is in quite bad condition and that it is likely that the applicant will be either totally or partially disabled for some considerable time to come. That during a part of the immediate future he may be totally disabled and during a part of the time he. may be partially disabled, and it is impossible for the board to say at present just what the future will develop in his case. That it cannot be said to a certainty that he will be totally disabled nor that he will be only partially disabled, and therefore the order of the board should provide for either condition.”

There was evidence supporting the finding that when injured the employment of claimant was that of common laborer. The labor he was performing, shoveling and wheeling a barrow, required the use of both hands. He can and does perform labor which does not require the use of the right hand and arm. It is the contention of claimant that because he cannot do the work he was doing when he was injured his case is governed by the decisions above referred to, and that he should be allowed compensation as for total disability while the disability continues.

Employing the language of claimant’s brief, the contention is:

“Claimant being incapacitated from doing the kind' of work, or similar employment, being done when injured, or any part of it, entitles him to what compensation during the disability? , We contend full compensation not exceeding 500 weeks.”

The award must stand unless, as claimant contends, one who is a common laborer and is 'disabled while doing some particular labor requiring the use of both of his hands and arms is totally disabled if on account of an injury he cannot perform the same labor or labor which requires the use of both arms and hands but can perform other common labor. We are unable to make the required distinction, being of opinion that the work of one engaged in what is ordinarily described as common labor is an employment within the meaning of the act. The act does not classify persons employed at labor, but it does recognize that there are different kinds of employment. The act was intended to affect and apply to existing conditions, one of which, generally recognized, is that persons are employed as common laborers — that the employment of certain wage earners is, and is known as, common labor. A definition of common labor, exclusive and inclusive, is not easily formulated, - but the common understanding is, for the purposes of this decision, illustrated in the testimony of the claimant. Upon direct examination, the questions and-answers referred to are:

“Q. What were you doing at the time of the injury in question?
“A. Just common labor.
“Q. Well, go right on and describe what you were doing for the respondent?
“A. Shoveling sand and carrying pots where they melt, the melted steel pots.”

Stating that at the instant of his injury he was assisting three others in carrying a tank, he was asked: “Was the carrying of this tank a part of your duties and work at the time?” and he answered, “Yes.” On cross-examination, the following testimony was given:

“Q. How long had you been working for the S. Fair & Co., when you got hurt?
“A. For about six weeks.
“Q. In that six weeks what was the nature of your duty?
“A. Just shoveling sand and carrying iron and stuff.
“Q. Shoveling sand and what?
“A. And carrying stuff around, parts, wherever they .send us we go.”

Claimant’s incapacity for work, in the employment in which he was engaged when he was injured, being partial and not total, the compensation to which he is entitled was rightly computed accordingly. A criticism of the order and award of the board which might have been but is not made is that it specifies the wages he has been able to earn since the injury, and not the average weekly wages he is able to earn, as one factor in the computation. The award in this respect should be amended accordingly. Neither party will recover costs.

Bird, C. J., and Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concuned.


author: Bird, C. J.

text:
    GRANADER v. DETROIT UNITED RAILWAY.
    1. Street Railways — Personal Injuries — Crossing Accident— Negligence — Question eor Jury.
    In an action against a street railway company for personal injuries caused by a collision between a street car and a motor truck, testimony that, although when the car was more than 100 feet away it became evident that the truck was attempting to cross the track in front of the car, but the motorman made no effort to slacken the speed of the car until within a few feet of the truck, held, to present a question for the jury as to whether the motorman used such care as he should, under all the circumstances.

    2. Same — Pleading — Ordinances — Evidence — Trial — Instructions.
    In such action, a city ordinance regulating the speed of street cars that was neither pleaded nor received in evidence was unavailable, and an instruction as to the speed of street cars as fixed in the ordinance was reversible error.
    Error to Wayne; Hosmer, J.
    Submitted January 15, 1919.
    (Docket No. 41.)
    Decided April 3, 1919.
    Rehearing denied June 13,1919.
    Case by Jacob Granader, an infant, by his next friend, against the Detroit United Railway and another for personal injuries. Judgment for plaintiff. Defendant railway brings error.
    Reversed.

      Corliss, Leete & Moody and Benjamin Si Pagel, for appellant.

      Bauble & Baubie, for appellee.

      On right of motorman to assume that no one will attempt to cross track so close in front of car as to render a collision probable, see note in 5 L. R. A. (N. S.) 1059.

   Bird, C. J.

Plaintiff, a boy 17 years of age, was riding on the platform of a motor truck owned by Morgan & Wright, and operated by one of its drivers, in the city of Detroit. The motor truck was going south on Brush street. When it reached the north curb line of Warren avenue the driver observed a street car about 250 feet away approaching from the west. He kept on his course and concluded he could cross in advance of the car. When he was entering on the track the car was about 125 feet distant. The motor truck was 40 feet long and before he could clear the track the street car struck the rear end of it and threw plaintiff therefrom to the ground and seriously inj ured his shoulder. The negligence charged in the declaration was excessive speed of the car; the failure to give warning of its approach and the negligent operation of the car. A trial resulted in a judgment for plaintiff of $3,500.

1. Defendant complains of the refusal of the trial court to direct a verdict in its behalf, its contention being that no negligence upon its part was shown. We do not agree with this contention. By the time the truck driver reached the north line of Warren avenue, both he and the motorman were in plain view of each'other. Each knew the other .was going to cross his pathway. It therefore became the duty of each to úse reasonable care to avoid a collision. The testimony left it an open question as to whether the motorman discharged his duty. The testimony shows that the motorman made no effort to slacken the speed of his car until he got within a few feet of the truck, notwithstanding the fact that he was considerably over 100 feet distant when it became obvious that the truck driver was attempting to cross in advance of him. The truck driver was an experienced operator and he appears to have thought from the way traffic ordinarily moves he could clear the track before the street car arrived. The motorman evidently thought so too, and he delayed taking any precaution until it was too late to be effective. The question as to whether the motorman used such care as he should have used, under all the circumstances, was clearly a question for the jury. Bush v. Railway Co., 113 Mich. 513; Rahaley v. Railway, 177 Mich. 96; Purulewski v. Railway, 181 Mich. 133; Millette v. Railway, 186 Mich. 634; Prince v. Railway, 192 Mich. 194; Hickey v. Railway, 202 Mich. 496.

2. Complaint is made of the following instruction:

“The ordinance of the city of Detroit provides that within the three-mile circle, and this would be within the three-mile circle, the cars may not run at a greater than an average rate of ten miles an hour, but when I speak of that, gentlemen of the jury, I do not mean to say that ten miles is a maximum speed, but is the average speed, including all the stops on the line, and I cannot say, gentlemen of the jury, that to run a car at 18 miles an hour or 17 miles or whatever the testimony shows, that this is an indication that there is a breach of the ordinance. But on the other hand, gentlemen of the jury, a truck driving along the street is not obliged to wait until every street car in sight has come and passed by, because in some places obviously, gentlemen of the jury, you would never get across. But what it does mean is this, that a person shall exercise reasonable care when a motorman is running at 18 miles an hour, which he may properly do under some circumstances. It does not mean, gentlemen of the jury, that it shall continue at 18 miles an hour when any vehicle which is approaching nearer the crossingdhan he is, attempts to cross in front of him, it is for you to say under the circumstances of this case whether or not the Detroit United Railway was guilty of negligence under the circumstances.”

It is argued that inasmuch as the ordinance referred to was neither pleaded nor received in evidence, the instruction was error, and it is urged that it was rendered more harmful by the fact that the principal ground of recovery was based on excessive speed of the car.

It was held in Richter v. Harper, 95 Mich. 221, that a city ordinance to be available in establishing the negligence of the defendant must be pleaded. In Gardner v. Railway Co., 99 Mich. 182, the rule was approved and the reason therefor stated to be that a common-law declaration will not support proof of a duty created by an ordinance, unless defendant is given notice thereof. This rule has since been adhered to by this court in many cases, although we have held that an ordinance, not pleaded, was admissible in evidence when offered solely for the purpose of affecting the question of plaintiff’s negligence. Putnam v. Railway, 164 Mich. 342; Millette v. Railway, 186 Mich. 634.

In the present case the declaration made no reference to the ordinance. Neither was it offered in evidence. Had counsel in his argument to the jury made the same use of the ordinance without correction by the court, it would have been regarded as a serious error. Coming as it did from the court it had greater force with the jury. While the case finally turned on the negligent operation of the car the question of speed was much relied on in connection with this question. In view of this we think the reference made to the ordinance by the court was harmful to the point of being reversible error. For this reason the judgment is reversed and a new trial ordered, with costs to defendant.

Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Ostrander, J., did not sit.


author: Per Curiam.

text:
    HAMILTON v. SECRETARY OF STATE.
    ■Constitutional Law — Petition for Submission of Amendment— Revival — Elections.
    A petition, filed with the secretary of State to submit to the electors'at the next general election a proposed constitutional amendment, and found insufficient for that purpose, because lacking signatures, performed its office and cannot be treated as a continuing petition, to be revived from time to time by the addition of other names.
    Mandamus by James Hamilton to compel Coleman C. Vaughan, secretary of State, to submit a proposed amendment to the Constitution.
    Submitted May 29, 1919.
    (Calendar No. 28,840½.)
    Writ denied June 10, 1919.

      Moore & Moore, for plaintiff.
   Per Curiam.

We are of opinion that the petition filed with the secretary of State and considered in Hamilton v. Secretary of State, 204 Mich. 439, cannot be treated as a continuing petition, to be revived as such from time to time by the addition of other names. It was filed to effect a purpose. It was found and declared to be insufficient for the purpose because lacking signatures. It performed its office and as a petition, in view of the law, is dead.