text:
    PRYZBYLOWSKI v. BOARD OF COMMISSIONERS OF THE POOR OF THE CITY OF DETROIT.
    1. Municipal Corporations — Cities—Detroit Charter — Paupers —Board op Poor Commissioners — Civil Service.
    Under the various local and public acts constituting the charter of the city of Detroit, it was provided that the board might make disbursements from the county temporary relief fund, as formerly authorized by city aldermen (Act No. 253, Local Acts 1883, sec. 5), and by said act authority was withdrawn from the county superintendents of the poor to administer relief in the city. It was also provided that the board might expend State funds to relieve persons who should become a public charge in a place other than their home, but in no case was it empowered to administer relief outside the city; held, that . the duties of such board were local in character and that it did not become a State agency in such sense as to exclude the board from the operation of the civil-service amendment to the charter of the city of Detroit, which classifies the city physician as subject to civil service and renders such official removable for cause only.
    2. Same — Statutes—Detroit Charter — Amendments.
    The intention indicated by such amendment to the city charter being to affect the local acts that gave the board its authority, by a reasonable construction of the language of the amendment, no ground for excepting them from such operation could be gathered from the titles of the special acts, because it was not thereby expressly declared that they were amendments to the Detroit charter.
    3. Same — Charters—Civil Service — Amendments—Repeal.
    By charter provisions enacted by the people of the city, adopting a new and comprehensive system of civil service as to all offices, departments and commissions, special acts and legislation in force relating to appointments and removals were repealed or amended, though the later enactment contained no express repealing clause.

      Certiorari to Wayne; Murphy, J.
    Submitted July 23, 1915.
    (Calendar No. 26,851.)
    Decided September 28, 1915.
    Mandamus by Felix J. Pryzbylowski against the Board of Commissioners of the Poor of the city of Detroit and others, to require the respondent to reinstate relator as city physician and for other relief. From an order granting the writ, respondents bring certiorari.
    Affirmed.

      Schmalzriedt, Spaulding & Toms, for relator.

      James H. Lee, for respondents.
   Stone, J.

Certiorari to the circuit court for the county of Wayne. As stated by counsel for respondents and appellants, the sole question here presented is whether or not the board of poor commissioners of the city of Detroit is, by reason of the functions it performs, a State agency, and therefore not subject to the civil-service amendment to the charter of the city of Detroit in the choice of and the discharge of its subordinates.

Relator was a city physician, who had been appointed to such position by the board of poor commissioners previous to the passage of the civil-service amendment of the charter of said city, and he was holding his said office at the time the said amendment was adopted. On July 1, 1914, the relator was discharged from said office of city physician by the said board, and his successor appointed, without complying with the rules and regulations of the civil-service amendment. The board seeks to justify its action on the ground that it is a State agency, performing a function of the State, i. e., the preservation of the health of the people of the State, and that it is therefore not subject to said civil-service amendment, any more than the Detroit board of health, or the Detroit school board, or the recorder’s court of the city, all of which have been determined to be State agencies, and not subject to said civil-service amendment.

On July 21,1914, a petition for a writ of mandamus was filed by the relator in the said circuit court, praying that said board be compelled to reinstate him in the said office of city physician, and to place his name on the pay roll as such, and also directing the city controller and city treasurer to pay or cause to be paid to relator his salary as city physician from July 1, 1914, to the date of his reinstatement. An order to show cause was granted, respondents answered, a hearing was had, testimony taken, and upon the hearing an order was made and entered, allowing the prayer of said petition, and a peremptory writ of mandamus was issued to said respondents, directing that relator be reinstated, and his salary paid as prayed for. The case is here upon a writ of certiorari sued out by respondents.

The civil-service amendment to the charter of the city of Detroit provides that (with certain enumerated exceptions, none of which are involved in this case) :

“All officers, clerks and subordinates of all offices, departments and commissions of said city whether now existing or hereafter created, shall be selected and appointed as herein provided, but the officers, clerks and other employees in the service of said city, when this amendment shall take effect, unless removed for cause, shall be entitled to retain their positions, except as herein otherwise provided.”

While the local acts, creating the board of poor commissioners of the city, and the office of city physicians, and prescribing their duties, are not designated specifically, in their title or wording, as parts of or amendments to the city charter, this fact does not except them from amendment by the people, if the intention to make such amendment appears by reasonable construction of the language of the charter amendment.

The charter as it stood prior to May 3,1913, provided distinct and various methods of appointment and removal of officers, clerks, and subordinates in the several departments. By this amendment a hew and comprehensive system of civil service was established, placing the appointment and discharge of employees of “all offices, departments and commissions” on a uniform footing, and placing all appointments and removals under the supervision of a civil service commission. Such amendment must necessarily repeal all, or supersede all special acts relating to appointments and removals in individual departments, even though it contains no express repealing clause. Grobbel v. Board of Water Commissioners, 181 Mich. 364 (149 N. W. 675).

As we understand the claim of respondents, it is that the board of poor commissioners is not a part of the city government, but a State agency, and that its duties are not local, but State-wide, in character, and that, consequently, it is subject to control by the legislature only, and not by the people of the city. This claim is based on the recent decision of this court in the case of Civil Service Commission v. Engel, 187 Mich. 83 (150 N. W. 1081), which followed the rule laid down in Davock v. Moore, 105 Mich. 120 (63 N. W. 424, 28 L. R. A. 783). In these cases the care of the public health was held to be a part of the police power which is inherent in the State, for the protection of the people of the State at large. In like manner the police force and criminal courts of local jurisdiction have been held to be State agencies for the preservation of public order and morals. People v. Mahaney, 13 Mich. 481; People v. County Auditors, 13 Mich. 233; People v. Reilly, 53 Mich. 260 (18 N. W. 849).

On the other hand, a large number of cases can be cited holding various activities of the city government to be of a local character, subject to local regulations, and wholly beyond the power of the State to regulate in any way which would interfere with the rights of local self-government. Among such cases are the following, relating to public works: People v. Hurlbut, 24 Mich. 44 (9 Am. Rep. 103); Moreland v. Millen, 126 Mich. 381 (85 N. W. 882). Relating to parks: Board of Park Commissioners v. Common Council, 28 Mich. 228 (15 Am. Rep. 202); Attorney General v. Lothrop, 24 Mich. 235; Attorney General v. Bolger, 128 Mich. 355 (87 N. W. 366). Relating to highways: Davis v. Board of Supervisors, 89 Mich. 295 (50 N. W. 862) ; Hubbard v. Township Board of Springwells, 25 Mich. 153; Wayne Co. Road Commissioners v. Auditors, 148 Mich. 255 (111 N. W. 901). Relating to waterworks: Blades v. Board of Water Commissioners, 122 Mich. 366 (81 N. W. 271). Relating to fire department: Davidson v. Hine, 151 Mich. 294 (115 N. W. 246, 15 L. R. A. [N. S.] 575, 123 Am. St. Rep. 267, 14 Am. & Eng. Ann. Cas. 352).

The department of waterworks and fire department, much like the board of poor commissioners, have to do with the furnishing of necessities or comforts of life for individuals located within the boundaries of the municipality. The system of poor relief is maintained for the benefit of the local community, and does not directly affect any person who is not, at least temporarily, an inhabitant of or found within the city. This is true, as well, of that part of the system which furnishes medicines and medical attention to those unable to pay for them, as of that part which furnishes fuel and clothing to those in the same condition. The fact that certain duties of the poor commission indirectly or casually affect the public health does not deprive the commission of its local character or transfer it to State control. We think that an examination of our statutes relating to the support of the poor will show that this has always been treated as a local function.

It is contended by the respondents that, although some of the duties of the board may be local, yet it is constituted a State board by reason of the fact that it expends State and county money for certain purposes. The expenditure of State money is authorized by section 8 of Act No. 72, Pub. Acts 1907, which regulates the granting of relief to persons who become a public charge in a place other than their home. This act, as well as the prior legislation,' is inconsistent with the theory that the support of the poor is a State duty. The fact that the State in certain cases refunds the cost of support does not take from the board which furnishes it its local character. In fact, the local character of the board is emphasized by its not being permitted to go outside its own territorial limit to furnish relief directly to its own citizens.

The board of poor commissioners is authorized to make disbursements from the county temporary relief fund by section 5 of Act No. 263, Local Acts 1883 (section 505, Compiled Charter), which reads as follows:

“The said board of poor commissioners shall perform the duties and make the disbursements out of the county temporary relief fund now authorized by the statutes of this State to be made by the aldermen of each ward in the city of Detroit, whose term of office will soonest expire, in the capacity of supervisors of their respective wards, and the said board is vested with all the power and duties of the aldermen as such supervisors relative to the support of the poor. The county superintendents of the poor shall have no power to grant any temporary relief in the city of Detroit, but all such relief from the county temporary relief fund shall be granted by said board, and the said board may draw its warrants on the county treasury therefor.”

This section is in harmony with the general system of poor relief requiring aid to poor persons within the city to be given by city authorities, but not to be charged against city funds, when the persons aided are nonresidents. The duties of the board are strictly localized. The'above section merely transfers an already existing duty from one agency to another, imposing upon the board of poor commissioners duties formerly belonging to the aldermen of the several wards in their capacity as supervisors of the county. It would hardly be argued that the performance of this duty by the aldermen made them State officers, or the agency a State agency.

The act relating to city physicians nowhere requires or authorizes those officers to work outside the city. Their duties are prescribed by section 3 of Act No. 343, Local Acts 1891 (section 516, Compiled Charter), as follows:

“Said physicians shall perform such duties and observe such rules and regulations in the care and treatment of the sick poor of the city of Detroit, as the board of poor commissioners of said city may direct and make, and shall perform such further duties and receive such compensation as the common council of said city may prescribe.”

Even if the board be regarded as having- a dual character, and as performing duties both for the city and State, the city physicians are limited by this section to that branch of the board work which lies within the city, and is within the scope of regulation by the common council and the local government. We think that the case of Civil Service Commission v. Engel, supra, is readily distinguished from the instant case.

In our opinion the city physicians are within the classified service of the city as defined by the civil-service amendment, and cannot'be removed from office, except for the causes and in the manner provided by that amendment.

The order of the circuit court is therefore affirmed.

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

The late Justice McAlvay took no part in this decision.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    AKERS v. MEAD.
    1. Deeds — Evidence—Undue Influence — Competency.
    In reviewing, on appeal, a decree of the circuit court involving issues of fact relative to 'the validity of a deed of decedent to his daughter, evidence considered in the light of the presumptions arising from the opportunity possessed hy the circuit court to hear and see the witnesses, and held, to sustain the validity of the conveyance.
    2. Same — Undue Influence.
    In order to sustain a deed it is not essential that absolute freedom from influence should appear; the question being whether such influence was exerted as to take away the grantor’s freedom of disposition. Weakness of mind or forgetfulness are not sufficient to invalidate a will or deed, if it appears that the mind of the grantor was capable of attention and exertion when aroused and was not imposed upon. If capacity exists the court will not undertake to measure the degree of the capacity. Eccentricity, unless it take the form of monomania, will not incapacitate one from making a valid conveyance or will.

      Appeal from Ingham; Collingwood, J.
    Submitted June 30, 1915.
    (Docket No. 106.)
    Decided September 28, 1915.
    Rehearing denied December 22, 1915.
    Bill by George W. Akers and others against Eva J. Mead to set aside a certain deed. From a decree for defendant, complainants appeal.
    Affirmed.

      L. B. Gardner and Frank L. Dodge, for complainants.

      Cummins, Nichols & Rhoads, for defendant.

      As to undue influence in conveyance or transfer of property in consideration of support of the grantor or a third person, see note in 52 L. R. A. (N. S.) 476.

   Stone, J.

In this cause the bill was filed to set aside a deed bearing date February 14, 1911, made and executed by Aaron K.. Akers to the defendant, of all the real estate which he owned, upon the grounds that at the date of its execution Aaron K. Akers was mentally incompetent to execute it, and that the same was procured by the fraud and undue influence of the defendant. At the hearing there was no evidence that John F. Krumbak was the administrator of the estate of said Aaron K. Akers, and under the plea filed the bill was dismissed as to the administrator, and the case proceeded as between George W. Akers and Charles A. Akers, two of the four children and heirs of Aaron K. Akers, complainants, and the defendant, a third child and heir. The heirs of Belle Monroe, deceased, the other child and heir of Aaron K. Akers, are not parties to the suit.

The circuit judge, who heard the case, and heard and saw all of the witnesses testify, filed a written opinion, from which we quote as follows:

“The bill alleges: That said Aaron K. Akers was the father of complainants George W. Akers and Charles A. Akers, and of defendant Eva J. Mead. That the wife of Aaron K. Akers, who was the mother of the parties above named, died on the 17th day of January, 1911. That Aaron K. Akers died on the 22d day of February, 1911. That during his lifetime he was the owner of certain real estate, described in the deed, a copy of which is attached to the bill of complaint. That after the death of Aaron K. Akers defendant Eva J. Mead claimed title to this real estate by virtue of a warranty deed, dated February 14, 1911, purporting to be signed by said Aaron K. Akers and duly recorded. That at the time when this deed was purported to have been executed said Aaron K. Akers was more than 80 years of age, and was at the time of making the deed in question utterly incompetent and mentally incapacitated to transact any business, and especially of knowing what he was doing at the time of executing the deed in question. That at the time when this deed was purported to have been made and executed said Aaron K. Akers was by reason of his age and circumstances, and while living with,defendant, under the absolute control of and actually dominated by the said defendant Eva J. Mead, who wrongfully, unjustly, and fraudulently exerted over said Aaron K. Akers an undue influence, and obtained said deed without any valuable or adequate consideration. The bill prays that said deed be vacated, canceled, set aside, and held for naught, and the record thereof canceled.
“A large amount of testimony was offered by both the complainants and the defendant, and the life and surroundings of the Akers family, for the past 30 years, quite fully revealed. It was shown that at the time of his death Aaron K. Akers was about 86 years old; that up to about 30 or 40 years ago he had been somewhat intemperate, although since that time he had not used liquor of any kind. He was uneducated, being unable to read or write. For more than 50 years previous to the summer before his death, he and his wife had lived continuously on the farm described-in said deed. For more than 30 years he had not been actively engaged in farming operations, but had rented the several fields. During that time he went often to Williamston, went about the neighborhood, both in a carriage and on horseback, and conducted the small affairs intrusted to him. with more or less ability. The proofs show that he was an eccentric old man, with the physical and mental infirmities incident to age. During the summer of 1910 Aaron K. Akers and his wife went to live with the daughter, Eva J. Mead, on her farm. While there he made a will. This will was afterwards declared to be void, for want of capacity in the maker, Aaron K. Akers, first by the probate court, and afterwards by a jury in the circuit court of this county. About the middle of January, 1911, while Mr. and Mrs. Aaron K. Akers were at the home of the defendant, Eva J. Mead, Mrs. Akers, the wife and mother, died. There is considerable testimony, both before and after the death of Mrs. Akers, regarding the condition of Aaron K. Akers. That he was a childish old man, physically, and at times mentally weak, is clearly established. But in the words of Justice Christiancy, in Seeley v. Price, 14 Mich. 545:
“ ‘The evidence fails to establish, insanity, idiocy, or that degree of mental imbecility which would of itself render the grantor entirely incapable at the time of executing a valid deed.’
“It was shown by uncontradicted testimony that on the evening before the deed was executed Aaron K. Akers was in such possession of his faculties of mind that he declared his intention of deeding his property to his daughter Eva, and he could and did, from memory, and without prompting, give a full and accurate description of the lands in question. On the following day he executed the deed in the presence of two witnesses. These two men, without apparent prejudice, and without any interest in the case, were at the home of Eva J.Mead for the purpose of making and attesting this deed, if Aaron K. Akers were, in their judgment, competent to understand and make a deed. Each of the witnesses was a reputable and experienced man, one a lawyer and the other a physician. They went there prepared to test the competency of Aaron K. Akers to make a deed, and after talking with him they were satisfied. The testimony shows that the deed was drawn in his presence and read over to him twice, before he, in their presence, affixed his mark, and that in the opinion of these witnesses he could understand and did understand the provisions thereof. It is the opinion of this court that the deed in question was executed by Aaron K. Akers, and that at the time he was of sufficient mental capacity and ability to understand its provisions and to transact the business of transferring the real estate.
“Under the allegations of the bill, a second question arises: Did Eva J. Mead exert an undue influence on Aaron K. Akers, and secure this deed by fraudulently dominating his will? The provisions of the deed were such that Eva J. Mead, defendant, agreed to and was bound to suitably support and maintain Aaron K. Akers during his lifetime, and provide proper burial after his death. While at the date of the deed Mr. Akers was a feeble old man, and died in 10 days, his condition was such that he might have lived several months or even years. There is nothing in the testimony, or in the provisions of the deed, which would make its execution, under all the circumstances, unreasonable. The testimony shows that, during the past 30 years, the bonds of affection between the different members of the Akers family had been, at times, sadly strained. But there is nothing, as shown by the evidence, in the treatment of Eva J. Mead, defendant, especially during the past year of their lives, inconsistent with daughterly conduct. Aaron K. Akers might well have believed that, under all the circumstances, this was the best disposition he could make, for his own good, of his property.
“The court does not find the allegations of the bill sustained by the evidence. The bill is dismissed, with costs.”

At the hearing we were in doubt whether the circuit judge had reached the correct conclusion. A careful reading of the voluminous record has satisfied us that his conclusion was warranted by the weight of the evidence. The testimony was very conflicting, and a careful .and scrutinizing examination of it is necessary to reach a just conclusion. We have no doubt of the mental capacity of Mr. Akers at the time the deed was executed. The uncontradicted evidence shows that he knew what property he had, as well as the situation of the children and heirs. There is no doubt that the defendant had at all times treated both her father and mother with greater consideration than had the other children. The complainant Charles seemed to recognize that fact when, in a letter written to defendant on January 23, 1911, upon hearing of the death of his mother, he said:

“I am certain you have done all you could for Ma and Pa, situated as you were, without any help.. * * * I feel that you should have good pay for what you have done for them, as the rest of us have never done anything toward looking after them.”

The defendant had had the full care of both parents. In the summer of 1910 the parents reached a time when they were no longer able to live alone and take care of themselves, and they went to live with defendant, and remained with her as long as they lived, and nobody claims that they were not properly cared for. It is true that Mr. Akers lived but a short time after he executed the deed, but his death was unexpected. Charles had been there in December and early in January, and, while he considered his father feeble, yet he wrote just following the father’s death:

“It was a great surprise to me, as I thought he would live several years yet.”

It is urged by complainants’ counsel that the agreement by the defendant to care for her father was not binding upon her; she being a married woman. It is not necessary for us to discuss that question, for the reason that that part of the contract was in fact fully carried out and performed.

In our opinion, the question of undue influence is the most meritorious question in the case. We have examined the evidence bearing upon that subject with care. We shall not undertake to analyze the evidence upon that subject. Our conclusion is well expressed by the language approved by this court in Schneider v. Vosburgh, 143 Mich. 476, at page 479 (106 N. W. 1129, at page 1130) :

“Again, it is not necessary, in order to sustain either a deed or a will, that there should be an absolute freedom from influence shown. There is no testator or grantor, under the circumstances shown in this case, absolutely free from influence. The test is: Were such influences applied as to take away his freedom of disposition? If so, if his will was overcome by force, either physical or moral, or perverted by fraud, then a testamentary disposition of the property or a deed so made cannot stand.
“Weakness of mind and forgetfulness, therefore, are not sufficient to invalidate a will or deed, if it appears that the testator’s or grantor’s mind was capable of attention and exertion when aroused, and was not imposed upon. It has been truly said that the weak have the same right with the prudent and strong-minded to dispose of their property. In general, so that capacity exists, courts will not undertake to measure the degree of that capacity, and they will protect those deficient in strong natural ability in the exercise of the powers they possess. Eccentricity, unless it take the form of monomania, will not incapacitate a man from making a will or a conveyance of his property.”

We have examined the cases cited by counsel; but, as we have often said, previous decisions are of little assistance in determining these questions, and each case must be determined upon its own facts. A man addicted to the habitual use of intoxicating liquors and tobacco, who voluntarily abandons the habits, and persists therein, and leads a temperate life for more than 20 years before his death, must be something more than a mere weakling. This Mr. Akers did. Many reasons may be gathered from the evidence, consistent with freedom of action, which induced Mr. Akers to make the disposition of his property which he did. A perusal of the testimony will disclose these reasons.

The decree is affirmed, with costs to the defendant.

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


author: Kuhn, J.

text:
    JANKOVICH v. WAYNE CIRCUIT JUDGE.
    Amendments — Divorce — Order oe Publication — Statutes — Equity — Orders—Irregularity.
    A mistake in. the order for appearance of defendant in a divorce proceeding resulting in the order fixing a period for defendant to appear of four months instead of five, as it ought to have required, where complainant’s solicitor corrected the error, and caused the order to he correctly published, was open to amendment, and should have been corrected at the hearing by the circuit judge, nohody having suffered any prejudice. 3 Comp. Laws, § 10268 (5 How. Stat. [2d Ed.] § 12969).
    Mandamus by Dusanka Jankovich against George L. Hosmer, one of the circuit judges for the county of Wayne, to require respondent to grant leave to relator to amend an order of the court.
    Submitted July 23, 1915.
    (Calendar No. 26,833.)
    Writ granted September 28, 1915.

      Ira J. Pettiford, for relator.
   Kuhn, J.

The relator, through her counsel, made a motion before respondent to amend an order theretofore made in a divorce proceeding pending, which motion being denied, mandamus is sought in this court.

The facts with relation thereto are as follows: The relator filed a bill for divorce against her husband on the grounds of extreme and repeated cruelty and desertion, and on the 14th of April, 1914, made an affidavit for an order of publication, to the effect that the defendant be required to have his appearance filed within a certain time as required by the statutes of this State relative to service upon nonresident defendants. This affidavit for the order of publication, together with a “proposed order of publication,” was presented to the then domestic relations judge and ex officio circuit judge for Wayne county. It is claimed that in writing this order for publication the stenographer by mistake put in “four months,” instead of “five months,” and it was signed by the judge in the form in which it was presented. The error was subsequently discovered by the solicitor for complainant, and corrected while in the office.of the publisher, and the words were changed to “five mohths,” instead of “four months,” and as such the order was duly published as required by statute. On the 19th of September, 1914, the proper affidavits were filed and the cause noticed for hearing. It came on to be heard by the respondent, who refused to allow the cause to be heard because of the insufficiency of the said order of publication, being of the opinion that he was without jurisdiction.

The signing of the erroneous order did not, in our opinion, affect the jurisdiction of the court, and the question of the sufficiency of the order is properly raised, being in the proceeding itself. It was clearly an erroneous order made by the domestic relations judge. It being a statutory proceeding, it would necessarily result in making the proceedings irregular and voidable. In our opinion, however, it was within the power of the court, under our statute of amendments, to have corrected the error; the statute (section 10268, 3 Comp. Laws, being section 12969, 5 How. Stat. [2d Ed.], providing as follows:

“The court, in which any action shall be pending, shall have power to amend any process, pleading, or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment rendered therein.”

When the amendment sought is in the furtherance of justice, and neither surprises nor deprives the opposite party of any essential rights, under our decisions it should be permitted. See cases cited in note to statute. We do not think that the defendant can be heard to say that he has lost any right by an amendment of the order, as a proper five months order was duly published in accordance with the statute.

Being of the opinion that the judge should have granted the motion to amend the original order, it follows that the writ will issue as prayed, and without costs.

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

The late Justice McAlvay took no part in this decision.


author: Brooke, C. J.

text:
    ENGLISH v. MICHIGAN CENTRAL RAILROAD CO.
    Railroads — Carriers—Negligence—Fellow Servants — Comparative Negligence.
    In an action for the unlawful killing of a railroad employee, caused hy a freight car coming in contact with an ice chute which decedent and his co-servants were charged with the duty of placing far enough from the track so that ears would not strike it, the negligence of decedent was of equal degree with the negligence of his fellow employees, whether he actually assisted in placing the chute, or was merely present and saw the work done, and his estate could not recover for his death. See Act No. 104, Puh. Acts 1909.
    Error to Van Buren; Des Voignes, J.
    Submitted April 22, 1915.
    (Docket No. 111.)
    Decided September 29, 1915.
    Case by Edith English, as administratrix of the estate of Alyn J. English, deceased, against the Michigan Central Railroad Company for the unlawful killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      Gore & Harvey (Henry Russel and Frank E. Robson, of counsel), for appellant.

      Fred C. Cogshall and Thomas J. Cavanaugh, for appellee.
    Defendant company maintains in the cii^y of South .Haven, Mich., a large icehouse. This it fills with ice in the winter, and in the summer uses it for the purposes of refrigeration. A side track runs alongside of the icehouse. On the side of the icehouse toward the siding there is erected a platform high enough to permit refrigerator cars to be supplied with ice through the top. This platform is supported at its side nearest the siding by upright posts 8 by 8 inches.. Between the posts and the building were placed heavy boards, crossing each other, so as to brace and strengthen the platform. The posts were 8 or 9 feet apart and 4 feet from the siding. In unloading ice from a loaded car into the icehouse, defendant used a movable chute about 18 feet long and 3½ feet wide. It was built of heavy oak material and required two men to handle it. After a car of ice was placed in front of the opening into which it was to be delivered, it was the duty of those engaged in the operation to place one end of the chute in the door of the car and the other in the opening into the icehouse. The ice from the car was then passed along the chute into the house, until the last tier was reached, when the chute was lowered to a “horse” placed on the ground near the car, when the last tier likewise was unloaded. After a car was unloaded, the string of cars would be moved until the next loaded car came opposite the opening, when the whole operation would be repeated. When the entire string was empty, it would be removed, and a number of loaded cars would be placed on the siding.
    On the morning of January 30, 1912, plaintiff’s decedent, together with two other employees of the defendant company, named Edmonds and Greenman, were engaged in unloading ice at the place described. They had unloaded one car, which was the.lást one to be unloaded of those upon the siding at the time. As soon as that operation was completed the empty cars were removed from the siding in an easterly direction. It is the claim of the plaintiff, supported by the testimony of Edmonds, that after the last car was unloaded he and his associate, Greenman, who were standing on the ground' under the platform and on the east side of the chute, placed the chute upon the “horse” in a position which he thought to be far enough away to escape the side of cars moving upon the track, and that the empty cars were moved out after they had so placed it; that, at the time it was so placed, plaintiff’s decedent, English, was standing west of the chute, and between the chute and the upright post supporting the platform; that he was facing the east, the direction from which the loaded cars were to come. There is evidence in the record tending to show that English, plaintiff’s decedent, actually helped Edmonds and Greenman to place the chute upon the horse in the position it occupied at the time of the accident. All witnesses of the accident agree that, at the time the loaded cars were backed in, plaintiff’s decedent, as well as Edmonds and Greenman, faced the east, the direction from which the train came. Upon the top of the first of the advancing cars stood a brakeman, whose duty it was to see that the track was clear and to signal the engineer. It was the testimony of the brakeman that he had given the “easy” signal to the engineer, and that the train was proceeding about as fast as a man could walk; that he noticed the position of the chute, but believed from his observation that it was placed far enough away from his train to avoid collision. The front end of the car actually missed the end of the chute; but, when the center of the car was reached, the extreme end of the chute was caught, probably by some of the fittings about the door. The impact carried the end of the chute off the “horse” and against plaintiff’s decedent, who was standing against, or very near, the post, and so crushed him that he died some nine days thereafter.
    Touching the question as to how and by whom the chute was placed, the witness Edmonds testified as follows:
    “Mr. Greenman and myself manipulated and placed the ice chute. After the car was unloaded, as I say, we put the chute out so as to clear the car, and an engine came in and picked up the string of empties that we had unloaded that morning and pulled them out. We men stayed there by the chute, on the east side. Mr. Greenman was on the east side. Mr. English was on the west side. There was a post on the west side. $ $

      “Q. Did you see the cars pulled there?

      “A. Noticed them in a general way. We stood there while they pulled that string of empties out. Those cars were moved eastward. No portion of the cars that were pulled out struck this chute. The cars that were to the west of it passed clear. They were box cars all of them.

      “Q. Now, you and Mr. Greenman remained there in that locality until they returned?

      “A. Yes, sir.

      “Mr. Gore: Let him tell what they did, please.

      “Q. Were you doing anything while they were out for this other load?

      “A. No, sir.

      “Q. Was this chute that had been placed by you and Greenman changed while they were gone?

      “A. Not at all.

      “Q. Did you notice the trainmen returning?

      “A. We noticed a string of cars coming in.”
    On cross-examination this witness testified in part as follows:
    “I stated that Mr. English was on the west side of the chute at the time he got hurt. I was on the east side. Westgate and Greenman were also on the east side.- Mr. English was the only one of the crew that was on the west side, and he was standing between the side of the chute and this upright post, leaning against the post. There were 2½ or 3 feet of space between the side of the chute and the post, a short distance. I had been there in that position 10 or 15 minutes. I should judge; maybe a little longer. Mr. English had been there about the same length of time. We were watching for cars to be backed in; that is, cars loaded with ice. We were standing at the east side of the icehouse. Between these upright posts and the building itself, in the space under the porch between those posts and the building, there are some boards put crosswise to act as braces. One board would start at the upper side of the post and run down near the ground to the building, and the other would cross it in the other direction. I suppose that was to strengthen the porch. We had occasion sometimes, when filling and icing cars, to use the top of that porch. I believe this is what it was there for. I had been waiting, I think, on the east side, and Mr. English on the west side, some 10 or 15 minutes, when the car backed in. That chute is a good, heavy article. It is all a couple of men want to pick up and carry. It is strongly made and well adapted for handling ice. It is a strong, well-made chute. Before the injury to Mr. English, we had used the chute a day we had worked together. The chute was all right, weight and all. * * *

      “Q. No; I mean after you got down to the last tier, how far would you shove the chute out on the horse before you commenced to unload the last tier?

      “A. Well, that would, all depend on how far in the car it was when you were taking out the top tiers. You would have to shove it out, so the end of the chute would be clear of the car.

      “Q. Well, that is what you did?

      “A. That is what we did. * * *

      “Q. Well, under the “way you handled your business there, it was not the particular duty of any two to place the chute, but just those that happened to take hold of it and handle it; that is about the way you worked it, wasn’t it?

      “A. Why, that was the — why, that was the simple way of doing it.

      “Q. That those two men that happened to be convenient to it would handle it?

      “A. As a rule.

      “Q. That is what I mean. In other words, it was just as much the duty of one man to handle it as it was the other?

      “A. Why, certainly; it is three working together and not shirk. In moving that chute from its position in the car, most generally we got out of the car to handle it; jumped down and handled it with our hands, one on each side. Then we got back in the car.”
    The witness Greenman testified in part as follows:

      “Q. You assisted in placing the chute on the horse?

      “A. Yes, sir.

      “Q. And Mr. English?

      “A. Yes, sir. * * * George Edmonds and Mr. English, the deceased, assisted in putting it up there. I think Edmonds was on . the east side, the same side I was on. Mr. English was on the west side. * * *

      “Q-' State now what, if anything, you and Mr. English did before the cars were backed in that morning.

      “A. We put the end of the chute on the horse. * # *

      “Q. How far north of the top of the horse did you and Mr. English shove the chute?

      “A. Well, we supposed we shoved it far enough so it would clear the car.

      “Q. State whether you had that in view.

      “A. Yes, sir.

      “Q. Was there anything to prevent you from having left the end of the chute a foot from the car?

      “A. No, sir.”
    The declaration, filed under Act No. 104, Pub. Acts 1909, charges the defendant with negligence in many respects. No competent evidence, however, was introduced sustaining any of the -charges of negligence, except the one that defendant through its agents had negligently placed the chute too near the track upon which they knew loaded cars were about to come in. As to the other alleged elements of negligence, the court, we think, properly charged the jury as follows:
    “Now, upon that question, gentlemen, I charge you as a matter of law that it appears by undisputed evidence that the platform, the icehouse, the chute, the wooden horse, the cars, the tracks, and all the instrumentalities used by the defendant in the movement of ice from the switch track into the icehouse, were in .a sound state of repair, and that the defendant had performed its duty in that respect.”
    At the conclusion of the plaintiffs case, defendant moved for a directed verdict upon the following grounds:
    “(1) The defendant omitted no duty which it owed the deceased.
    “(2) There is no evidence tending to show negligence on the part of the defendant.
    “(3) The-deceased was clearly guilty of negligence contributing to his injury.
    “(4) It is undisputed that the negligence of the plaintiff and his fellow servants was the sole cause of the accident.
    “(5) The proximate cause of the injury was the placing of the chute too close to the track; and the defendant is not even connected, by the evidence, with such act.
    “ (6) It appears by the undisputed evidence that the tools and appliances, the cars and the chute, were in sound condition and without any defects whatever.

      “(7) The entire work of placing the chute too close to the track was obvious to the plaintiff.
    “(8) The defendant could not anticipate that the plaintiff and his fellow servants would place the chute in such dangerous proximity to passing cars as to be dangerous; but, on the other hand, the defendant had a right to presume that the plaintiff and his fellow servants would act with reasonable prudence for their own safety.
    “(9) The most that can be claimed under the evidence, for the plaintiff, is that the occurrence was an accident pure and simple.”
    This motion was denied, and the court submitted the case to the jury upon the single question as to whether the defendant company was guilty of negligence in placing the chute too near the track. Upon this question the court charged the jury as follows:
    “In this case, gentlemen, it is the contention of the defendant that all of the eyewitnesses to the accident have been called, to wit, Greenman, Edmonds, and Westgate; and it is the defendant’s contention that all of the witnesses, save Edmonds, have testified to the fact that the decedent assisted in placing this chute upon the horse a short time before the cars were pushed down on the siding. Plaintiff, upon the other hand, disputes the fact that the witnesses have so testified. As I have already stated to you, gentlemen, the plaintiff has the burden of showing by a preponderance of the evidence the material allegations necessary for her to recover in this case. If upon this question as to the placing of the chute you should find from the evidence that the decedent, English, did assist in placing the chute upon the horse at the time referred to, then the plaintiff cannot recover in this case, and you need inquire no further, but return a verdict of no cause of action.”
    Upon the question of negligence he further charged:
    “If, upon the other hand, you find that both were guilty of negligence, that is, both were guilty of contributing to this accident to the extent that it was negligence, then you should consider and determine to what extent or to what degree the defendant was negligent, and to what extent and degree the plaintiff was negligent; in other words, the degree of negligence of each, that is, the decedent’s as well as the .defendant railway company’s negligence. If deceased, Alyn J. English, was guilty of greater negligence, that is, a greater degree of negligence than the defendant railway company, then the plaintiff cannot recover. On the other hand, if defendant railway company was guilty of a greater degree of negligence than Alyn J. English, the plaintiff’s decedent, then plaintiff would be entitled to recover.
    “And, again, gentlemen, if under the testimony, a careful inquiry of the evidence, and a careful analysis, you are unable to determine which of the parties, that is, whether the deceased or the railway company was guilty of the greater degree of negligence, and that it is equal or evenly balanced as to the degree of such negligence, then the plaintiff cannot recover.
    “Now, in this connection, in relation to the degree of negligence, if you find that the injury resulting in the death of plaintiff’s husband was caused by placing the ice chute too close to the railroad track, and that plaintiff’s husband was not responsible for it being placed there, then I charge you that the defendant in this case is liable for the negligence of his coemployee so placing it, and the plaintiff may recover, even if her husband was guilty of negligence, providing that the negligence of her husband was of a lesser degree than the negligence of the defendant railroad company.
    “Whether the plaintiff’s husband was guilty of contributory negligence, or not, is a question of fact for you to determine. If you find that he was not guilty of contributory negligence, then you will not be concerned with the degrees of negligence; and if you further find that the defendant or its employees or servants were guilty of negligence, and that such negligence of defendant, its employees or servants, resulted in the injury and death of plaintiff’s husband, then your verdict should be for the plaintiff.
    “Again, if you find that the defendant was negligent, and that such negligence resulted in the injury and death of plaintiff’s husband, and you also find that the plaintiff’s husband was guilty of negligence which, contributed to his injury, then I charge you that the contributory negligence of the husband will not bar a recovery by the plaintiff in this case, provided that the negligence of her husband was of a lesser degree than the negligence of the defendant, its officers, agents, or employees.
    “I charge you, under the declaration in this case, you have no right to consider, as bearing upon the alleged negligence of the defendant, the statement of witnesses that there was snow, ice, sawdust, and hay under the porch to the icehouse and in the vicinity of where the men were about to engage in removing ice from the car. . If, after cónsidering all the evidence in the case, you find that there is no fault or negligence that can be fairly charged to any one, neither the defendant, nor the deceased, nor other employees, then I charge you that the occurrence was an accident pure and simple, and the defendant is not responsible, and your verdict should be for the defendant.
    “In other words, there can be no liability unless there was negligence, and if no one connected with the injury of Mr. English is chargeable with negligence then you should return a verdict for the defendant.”
    A special question was submitted to the jury as follows:
    “Did the deceased, Alyn Jay English, assist in placing the chute where it was at the time of the accident?”
    This question was answered in the negative by the jury, and a general verdict rendered in favor of plaintiff.
   Brooke, C. J.

(after stating the facts). Section 2 of Act No. 104, Pub. Acts 1909, provides that:

“The fact that the employee may have been guilty of contributory negligence shall not bar a recovery: Provided, that the negligence of such employee was of a lesser degree than the negligence of such company, its officers, agents or employees.”

We are of opinion that it must be held that plaintiff was precluded from recovery under the statute counted upon, as a matter of law. Her decedent, together with Edmonds and Greenman, were charged with the duty of handling and placing the chute in a position of safety. According to all the testimony, he alone was on the west side of the chute, standing in a space from to 3 feet wide, between the chute and the post. If, as claimed by plaintiff’s witness Edmonds, he did not actually assist in placing it in the position it occupied at the time of the injury to him, he at any rate was immediately present during the entire operation. It is entirely apparent, from the testimony above quoted, that Edmonds and Greenman believed they had placed the chute far enough away from the track to escape the oncoming train. It further appears from the record that the brakeman stationed on top of the first oncoming loaded car believed that the chute was so placed. It must be obvious, we think, that plaintiff’s decedent shared in this belief, because he occupied a position of extreme danger between the chute and the post in a confined space, where he was certain to be injured in case the end of the chute projected too far toward the track. The chute was placed in position in his immediate presence, even if he did not assist in placing it, and according to the testimony of Edmonds the duty of placing it devolved as much upon him as it did upon Edmonds and Greenman. It therefore is of no importance whether he actually assisted in placing it or not.

If this unfortunate occurrence is not a pure accident, due to an excusable error in judgment on the part of the plaintiff’s decedent and his fellow servants, for which no one is responsible, it is then the result of the negligence of Greenman and Edmonds and plaintiff’s decedent, and it must be said, under the circumstances disclosed by this record, that the negligence of plaintiff’s decedent is not less than that of his fellow servants; the three being equally charged with the performance of the duty claimed to have been violated. This being true, the statute forbids recovery.

The judgment is reversed, and there will be no new trial.

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

The late Justice McAlvay, to whom this case was assigned, took no part in this decision.


author: Bird, J.

text:
    CASE v. BOGART.
    1. Deeds — Competency—Evidence.
    Testimony that decedent grantor was affected with a disease which caused dizziness and mental weakness and made him forgetful, met by the testimony of numerous friends and acquaintances that he was capable of transacting business though he showed the effects of advanced age, that at the time of executing a deed to his daughter he was 76 years of age, and was treated by complainants as competent until he entered into a marriage that was displeasing to them, held, to warrant the decree and finding of the circuit court sustaining the deed of his homestead to his daughter.
    2. Specific Performance — Equity Pleading — Prayer.
    Under a bill of complaint charging that a deed from decedent to his daughter was invalid because of the grantor’s mental incompetency, evidence that an agreement was made between the daughter and complainants after the father’s decease that if she would release her rights in and to the father’s estate they would deliver possession of the farm to her, but that she refused later to carry out the agreement, did not justify granting the relief of specific performance, in tbe absence of a prayer for sucb relief in complainants’ bill, especially when they did not come into court on that theory, and only demanded tbe specific enforcement of the arrangement if they failed to establish their claim.
    Appeal from Montcalm; Davis, J.
    Submitted June 22, 1914.
    (Docket No. 66.)
    Decided September 29, 1915.
    Rehearing denied December 22, 1915.
    Bill by Seymour J. Case and others against Estella Bogart to set aside a deed. From a decree for defendant, complainants appeal.
    Affirmed.

      N. O. Griswold, for complainants.

      Rarden & Rarden and Kelly S. Searl, for defendant.
   Bird, J.

Chauncey Case resided in the township of Crystal, Montcalm county, for half a century previous to his death, which occurred on May 13, 1911, at the age of 79 years. During this time he acquired the title to farm lands, whose value at the time of his death was about $12,000. He left him surviving one son, Seymour J. Case, a daughter, Emma Johnson, and a granddaughter, Marion Grimm, the complainants herein, and another daughter, Estella M. Bogart, who with her husband are the defendants in the case. In August, 1888, Mr. Case deeded to his son, Seymour J. Case, 50 acres of land, subject to a mortgage lien of $550, and called the consideration therefor $2,000. Three years later, in December, 1901, he made a will in which he gave to his wife the life use of all his property. To his two daughters and one granddaughter he gave the sum of $2,000 each. He recited in the will that he had given the son $2,000, and that he made this bequest in order to make the shares of the other children equal. The will disposed of only about half of his property. In 1907 his wife died, and about a year thereafter he married a second wife, with whom he lived about a year, when some difficulty arose, and they separated. Following this a property settlement was made, and she released all of her interest in and to his property. In November, 1909, he deeded to his daughter Estella M. Bogart, without the knowledge of the other children, the homestead, consisting of 40 acres of land, and left the deed in the hands of the scrivener, with instructions to place it of record and deliver to her after his death. After his death the scrivener did as instructed, and it was then learned by complainants that he had made this conveyance. Trouble arose at once between the complainants and defendants by reason of it, and this bill was filed by complainants to set it aside, claiming that the father was not mentally competent at the date of its execution to dispose of his property.

Upon behalf of both complainants and defendants several witnesses were sworn whose testimony bore upon the father’s physical and mental condition at the time the deed was executed. The gist of the complainants’ testimony was that beginning, with the year 1907, and continuing up to the time of his death, Mr. Case was suffering from the effects of a kidney and bladder difficulty, that he had difficulty about the retention of his urine, and that in consequence thereof, he declined physically and mentally, and that he was troubled with dizziness and had to be assisted in some of his business transactions, and that he became very forgetful.

The witnesses offered in behalf of defendant were people with whom he associated socially and in a busi- ’ ness way. His scrivener, banker, doctor, minister, and near neighbors gave evidence, in substance, that in 1909, when the deed was executed, he was showing the effects of advanced age, but so far as they noticed he was normal mentally, and that he transacted his business matters the same as he had done before that time.

The testimony shows very conclusively that at times nearly all of the children had had some trouble with the father; that he had taken offense at the defendants by reason of a lawsuit which he had had with defendant’s husband over a settlement growing out of their occupancy of his farm. It was also shown that about the time he was contemplating the second marriage complainants filed a petition in the probate court to have him declared incompetent and a guardian appointed; this was afterwards abandoned, but the old gentleman took offense at this, and after he married the second wife the complainants had very little to do with him until after she left; that during the time he lived with his second wife the daughter, Mrs. Bogart, was on friendly terms with him, and was friendly with him at the time the conveyance in question was made. It does not appear from the testimony that any disinterested person who had an opportunity to know anything about Mr. Case regarded him as incompetent in 1909 to look after his business matters and dispose of his property, and none of the children appears to have been possessed of that notion until they heard that he was contemplating matrimony the second time, and had deeded this 40 acres in question to the defendant Mrs. Bogart.

The testimony fails to convince us that the grantor of the deed was mentally incompetent at the time of its execution. Having reached this conclusion, it is of very little importance by what motives Mr. Case was actuated in giving to Mrs. Bogart more than to other of his children. He may have intended, as appeared from the testimony, to divide his property equally between them, but this resolve may have been altered by the treatment accorded him by his children in his last years in their impatience to get possession of what they were pleased to call their share of the property.

As soon as defendant learned that her father was dead, she caused the deed to be placed of record, and attempted to take possession of the homestead. In this she was prevented by the other heirs. The suggestion was finally made that, if she would release all right to her interest in the estate as heir or legatee, they would surrender possession to her. It is said that she agreed to this, but after being let into possession she refused to carry out the agreement. We are asked by complainants to decree a specific performance of this agreement in the event that we find Mr. Case was competent to execute the deed. One of the difficulties in the way of granting this relief is the fact that the bill of complaint does not pray for such relief. The complainants themselves did not come into court relying on the agreement and ask to have it specifically enforced, and do not ask it now, unless they fail on the other branch of their case. The pleadings and position of complainants on the hearing were such that no relief can be consistently granted on that ground.

It is further claimed that the understanding between the father and the scrivener was that the deed should be deposited with the scrivener subject to recall by the father. We do not find this claim sustained by the testimony.

We think the conclusion arrived at by the chancellor was the proper one, and the decree is affirmed, with costs to defendants.

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

The late Justice McAlvay took no part in this decision.


text:
    TAYLOR v. BELTON.
    1. Assumpsit, Action of — Common Counts — Rescission—Failure op Consideration — Sales—Justices of the Peace.
    Upon a declaration in justice’s court containing the common counts in assumpsit, the purchaser of a team of horses was entitled to recover the value of a horse which died; one having proved unsatisfactory and being returned to the seller, plaintiff receiving for it another that subsequently fell ill, and upon his returning it to the vendor, died while in the possession of the latter; plaintiff was entitled to treat the refusal to replace the horse or return the price-as a partial failure of consideration, and no special count was required.
    2. Justices of the Peace — Declaration—Review.
    No objection or demurrer to the declaration or to the sufficiency of the common counts having been raised in justice’s court, it was not available as a ground for reversal in the circuit or Supreme Court.
    3. Assumpsit, Action of — Exchange^Sales.
    Nor was it sufficient, to defeat plaintiff’s right of recovery, that he exchanged his team as a part of the consideration for the horses, receiving $200 credit for them in the trade, the testimony also showing that the defendant was allowed $150 for each horse.
    4. Appeal and Error — -Argument—Directing Verdict — Damages.
    Upon an affirmative showing in the record that appellants’ attorney did not claim the right to argue the question of damages to the jury, no prejudicial error resulted from the action of the trial court in directing a verdict for plaintiff.
    Error to Cass; Des Voignes, J.
    Submitted January 5. 1915.
    (Docket No. 14.)
    Decided September 29, 1915.
    Assumpsit in justice’s court by David A. Taylor against Arthur J. Belton and another for the return of the price paid for a horse. From a judgment for plaintiff, defendants appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendants bring error.
    Affirmed.

      James H. Kinnane and W. J. Barnard, for appellants.

      Hendryx & Mosier, for appellee.
   Brooke, C. J.

Plaintiff, a farmer, was the owner of a team of light horses. Defendants were dealers in horses. In November, 1913, plaintiff made an arrangement with defendants by the terms of which he turned in his team to defendants at the sum of $200, and purchased from defendants a team for the sum of $300. He states the bargain as follows:

“I went over to the office, and I asked Mr. Belton, I says, ‘Well,’ I says, ‘how are we going to deal?’ ‘Well,’ he says, T will tell you what I will do.’ He says, T will just take your team,’ he says, ‘allow you $200 for it, and I will sell you my team for $300.’ He says, ‘My team is worth more than that, but this time of the year,’ he says, T can get along with your team better than I can with this big team. * * *.’ He allowed me $150 for the gray horse and $50 for the sorrel; that made the $200, and he sold me his at $150 apiece.”

With reference to one of the horses purchased by plaintiff from defendants, the plaintiff testified:

“Mr. Belton told me, if this horse bothered me any in pulling at the halter, he had a big halter, a big rope, to put on him. I says, ‘My land, if he pulls at the halter, I have got a little barn there; he is liable to take it and walk off with it,’ He says, T don’t think he will ever bother you at all.’ He says, ‘If he does, bring him back.’ So I took the horse under those conditions, that if he bothered me I was to bring him back.”

Immediately after the consummation of the transaction the plaintiff discovered that one of the horses was balky. After reporting this fact to defendants, he was instructed by defendants to return the horse to them, which he immediately did. Defendants gave him another horse, which he tried for a short time, when it fell ill. Plaintiff reported this fact to the defendants, and was instructed to return this horse to them. This request was complied with by plaintiff, and later the horse so returned died while in defendants’ possession. Plaintiff thereafter demanded from defendants either the return of $150, the price he had paid for the horse which he did not get, or that defendants supply him with a horse of that value in lieu thereof. Defendants declined to comply with either demand, and this suit was commenced in justice’s court. The action is in assumpsit. A bill of particulars was filed in the following language:

The following is a bill of particulars of plaintiff’s demand and for which this action is brought:

Money and value paid by plaintiff to defendants for one team of borses of tbe value of $300.... $300
Received of defendants one borse of tbe price and value of $150.................................. 150
Balance due from defendants to plaintiff tbe price and value of $150.............................. 150

A plea of the general issue was interposed by defendants, and the parties went to trial in justice’s court, where a jury assessed plaintiff’s damages at the sum of $75. Defendants thereupon appealed the case to the circuit court. There they offered no testimony, but contented themselves with objecting to any testimony under the declaration, and to making objections and taking exceptions to the admission of testimony as offered. At the close of the proofs, counsel for defendants made two motions as follows:

“(1) I move the court at this time first to strike out all the testimony in this case, as none of it is material as made by the issue raised by the pleadings in this case.”
“(2) I move the court to direct verdict in this case for the defendants for the following reasons: First, the plaintiff can only seek to recover on one of three grounds: First, for breach of warranty of the horse; second, they might rescind the sale and sue for the recovery of the purchase price; and, third, for breach of contract. And in either case there must be a special count in the declaration.”

Both motions were denied by the court. A verdict was rendered in favor of plaintiff for $150 under direction of the court. In this court, after the citation of many cases as to the sufficiency of the declaration and the impropriety of permitting recovery thereunder, counsel for appellants say:

“We contend, first, that no recovery can be had for breach of warranty under a declaration containing only the common counts in assumpsit; that where there is an exchange of property, if a party seeks to. recover on the common counts, he can only do so by a rescission of the- contract and tender back all of the property he has received, demanding the property he let go; that in no event can the circuit judge direct a verdict for a specific amount, when the damages depend upon the value of the goods exchanged, and where there is no evidence as to the market value of the same; that the case should have been submitted to the jury under proper instructions, leaving the jury to determine the amount of damages from the testimony adduced on the trial; that damages in a case of this kind must be assessed by the jury and not by the court; that the defendants were entitled to a directed verdict on the record as it stands; that an appeal from justice’s court is a trial de novo; that a valid objection made in the circuit court should be adhered to, regardless of what might have taken place in justice’s court; that no unwarranted presumption can be indulged in against the appellants in an _ appeal from the justice’s court, because the return is silent as to objections made during the progress of the trial in said court; that under any view of the case counsel for defendants were entitled to argue the question of damages to the jury, and have the jury assess the same under proper instructions.”

The theory upon which the plaintiff attempted to recover was that he had paid to defendants $150, for which he had received no consideration, and that under such circumstances he was entitled to recover on the common counts in assumpsit. This view was accepted by the trial court. We are of opinion that in this the learned trial judge was not in error. Murphy v. McGraw, 74 Mich. 318 (41 N. W. 917). In any event, we are of opinion that it was the duty of the defendants to have questioned the sufficiency of the pleading in the justice’s court, if not satisfied, as was said in Wilcox v. Railroad Co., 43 Mich. 584 (5 N. W. 1003) :

“When the defendant fails to demur, he tacitly concedes the sufficiency of the declaration, and the court will hold him to this concession, whenever this can be done without probable injustice.”

See, also, Carmer v. Hubbard, 123 Mich. 333 (82 N. W. 64), and Millspaugh v. Schultz, 180 Mich. 310 (146 N. W. 634).

In the latter case, speaking through Justice Moore, this court said:

“If the defendants had in the justice’s court demurred to the declaration, or objected to the testimony because the requirements of the statute had not been observed, the declaration could at once have been amended. This was not done. * * * The defendants pleaded the general issue, and a trial was had upon the merits. We do not find any reversible error.”

We think the fact that plaintiff paid $200 of the purchase price of the team he secured from defendants by turning over to them his team at that figure is of no consequence. He swears that defendants sold him the team he purchased for $300, or $150 each. This testimony is nowhere contradicted in the record. In the absence of contradictory testimony, we are unable to perceive how defendants were prejudiced by the action of the trial court in directing a verdict for the amount which plaintiff testified he had paid for the horse which he did not get.

Counsel for defendants now urges that he should have been permitted to argue the question of damages to the'jury. The record affirmatively shows that:

“Neither party requested to be heard in argument to the jury, and neither did the court ask either of the attorneys if they desired to argue to the jury.”

We find no reversible error, and the judgment is affirmed.

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

The late Justice McAlvay, to whom this case was assigned, took no part in this decision.


author: Brooke, J.

text:
    PEOPLE v. DIXON.
    Criminal Law — Sunday Theatres — Moving Picture Show — Arrest — Riot —■ Misdemeanors.
    The enforcement of section 5912, 2 Comp. Laws, forbidding shows, work, etc., on Sunday, under a penalty of not more than $10, must be by a civil action to collect the penalty: the act of conducting a moving picture show on Sunday does not amount to a misdemeanor and may not be prosecuted by an indictment; nor did the assemblage of the parties owning or operating the theatre and 30 or more persons in such theatre for the respective purposes of conducting and. witnessing the exhibition of moving pictures and the refusal of such persons to disperse as commanded by the sheriff amount to a violation of section 11334, 3 Comp. Laws, relating to riots and unlawful assemblages, so as to bring tbé violators witbin tbe authority for summary arrest provided for by that statute, in the absence of disorder, violence, or breach of the peace.
    Exceptions before sentence from Ionia; Davis, J.
    Submitted April 23, 1915.
    (Docket No. 125.)
    Decided September 29, 1915.
    Charles Dixon was convicted of operating a moving picture theatre on Sunday in violation of statute.
    Reversed; respondent discharged.

      Herbert C. Hall, Prosecuting Attorney, and Alfred R. Locke, Assistant Prosecuting Attorney, for the people.

      John Nichol and R. A. Colwell, for respondent.
   Brooke, J.

Respondent stands convicted under the following information:

“Alfred R. Locke, prosecuting attorney in and for the county of Ionia aforesaid, for and in behalf of the people of the State of Michigan, comes into said court, in the November term thereof, in the year one thousand nine hundred and fourteen, and gives the court here to understand and be informed that one Charles Dixon and Guy Alexander together, with thirty and more persons whose names are to this complainant unknown, late of the city of Belding, in the county of Ionia, and State of Michigan, heretofore, to wit, on the 11th day of October, A. D. 1914, the same being the first day of the week, commonly called Sunday, at a certain theater and show building in the city of Belding at the city of Belding, in the county of Ionia aforesaid, unlawfully did assemble and meet together to disturb the peace and to listen to, to see, and to conduct a certain show and entertainment and public exhibition in said theater and show building, and while so unlawfully assembled and meeting together in violation of law, one Lucius Stoddard, then and there a deputy sheriff of the county of Ionia, did go among them, the said Charles Dixon and Guy Alexander, and the said thirty and more persons, and did then and there command the said Charles Dixon and Guy Alexander and all the said persons therein in said theater and show building assembled, immediately and peaceably to disperse, and that he, the said Charles Dixon, and Guy Alexander, being so commanded, and being then and there unlawfully assembled as aforesaid with the said thirty or more other persons, did wilfully, maliciously, and unlawfully refuse and neglect immediately and peaceably to disperse and leave the said theater and show building and unlawful assembly, and did then and there, contrary to the order and command of the said officer, wilfully, wickedly, and unlawfully refuse to obey the said order, and in defiance of said order and command did remain at said unlawful assembly, and did continue to conduct said show and theater and place of amusement and cause said unlawful assembly to continue, and, being so assembled and gathered together, the said Charles Dixon and said Guy Alexander and the said other persons did then and there unlawfully remain and continue in operating said show and theater, and did continue said unlawful assembly, thereby committing great grievances and a breach of the peace, and thereby disturbing and annoying the good and peaceable people in said city and for a great distance in said city and about the vicinity of said theater and show building, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.”

The facts are not in dispute and are sufficiently disclosed by the information. It was the theory of the people that respondent should be held guilty not only under section 5912, 2 Comp. Laws (2 How. Stat. [2d Ed.] § 5261), which provides:

“No person shall keep open his shop, warehouse, or workhouse, or shall do any manner of labor, business, or work, or be present at any dancing, or at any public diversion, show, or entertainment, or take part in any sport, game, or play on the first day of the week. The foregoing provisions shall not apply to works of necessity and charity, nor to the making of mutual promises of marriage, nor to the solemnization of marriages. And every person so offending shall be punished by fine not exceeding ten dollars for each offense”

—but likewise under section 11334, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14750), which reads as follows:

“If any persons, to the number of twelve or more, being armed with clubs, or other dangerous weapons, or if any persons, to the number of thirty or more, whether armed or not, shall be unlawfully, riotously, or tumultuously assembled in any city, township, or village, it shall be the_ duty of the mayor and each of the aldermen of such city, the supervisor of such township, the president and each of the trustees or members of the common council of such village, and of every justice of the peace, living in such city, township or village, and also of the sheriff of the county and his deputies, to go among the persons so assembled, or as near to them as may be with safety, and in the name of the people of this State, to command all the persons so assembled immediately and peaceably to disperse.”

Assuming that the running of a moving picture show on Sunday is unlawful under section 5912, supra, which we do not determine (People v. Finn, 57 Misc. Rep. 659 [110 N. Y. Supp. 22] ; People v. Hemleb, 127 App. Div. 356 [111 N. Y. Supp. 690] ; William Fox Amusement Co. v. McClellan, 62 Misc. Rep. 100 [114 N. Y. Supp. 594] ; Edwards v. McClelland, 118 N. Y. Supp. 181; State v. Chamberlain, 112 Minn. 52 [127 N. W. 444, 30 L. R. A. (N. S.) 335, 21 Am. & Eng. Ann. Cas. 679] ; State v. Penny, 42 Mont. 118 [111 Pac. 727, 31 L. R. A. (N. S.) 1155]; and Rex v. Charron, 15 Can. Crim. Cas. 241), we are of opinion that the judgment in the case at bar must be reversed, in harmony with the reasoning of Justice HOOKER in Yerkes v. Smith, 157 Mich. 557 (122 N. W. 223). We there said:

“The playing of baseball on Sunday is an act prohibited and punishable by lav/; the penalty being a fine of $10. It does not amount to a misdemeanor and cannot be prosecuted by indictment; the only remedy being a civil action. See 3 Comp. Laws, § 9797 et seq.; Pettinger v. People, 20 Mich. 336. The action sought to be enforced by this proceeding is primarily the prevention of a game of baseball, advertised for August 30th last, and of games that are said to have been contemplated on Sundays of later dates. We suppose that relator expects such games to be prevented by arrest of those engaged in them. The law has prescribed another method for preventing infractions of this law, viz., a penalty to be collected through judicial proceedings ; and a summary arrest, even after a violation of the law, is not contemplated, and is not authorized by law, as a means of preventing the violation of this statute. 2 Comp. Laws, § 5912. See authorities above cited.
“We understand that counsel does not contend otherwise, and that he rests his right to a writ upon the claim that under 3 Comp. Laws, § 11334, and succeeding sections, a game of baseball played in the presence of 30 or more persons is per se, and necessarily, a breach of the peace, and an assemblage of persons to the number of 30 or more, for the purpose of playing and witnessing such a game in Detroit on Sunday, is such an ‘unlawful, tumultuous, or riotous assemblage’ as to make it the duty of this respondent to be present in person, or by policemen under his control, and prevent the game and the alleged consequent breach of the peace, by commanding said assemblage to immediately and peaceably disperse, enforcing such command by the arrest of all such persons as may fail to obey. Before the respondent could be required to arrest any one there must have been either a breach of the peace already committed or a failure to comply with a lawful order to disperse. Taking the answer as true, we must assume a willingness on the part of this respondent to cause warrants to issue for the arrest of all persons violating section 5912, and, acting through his subordinates, summarily to arrest all persons who should be guilty of a breach of the peace, but that he refused to assume that all baseball games played on Sunday required his personal attendance or would justify a command by him to disperse and subsequent arrest under the statute cited, if such command should not be obeyed.
“We have said that the mere playing of a game of baseball upon Sunday is not of itself and necessarily a breach of the peace, justifying arrest and indictment. In a sense, a game of baseball on Sunday may often be a breach of the peace, perhaps usually is, but it cannot be said that it is necessarily so, and before a summary arrest can be made for a breach of the peace, not only must overt acts be committed in the presence of the officer, but they must be violent and dangerous acts of some sort. * * *
“It is clear that a mere assembling of persons to play, and witness any Sunday game is not sufficient, without overt acts of violence or disorder, to authorize an officer to make a summary arrest. This being so, relator’s claims must be left to rest upon the statute (section 11334) which has been held to be applicable, where a game of baseball on Sunday in a public place was attended by several hundred assembled, unlawfully and tumultuously, to witness it. Scougale v. Sweet, 124 Mich. 315 (82 N. W. 1061). Before an arrest can be required under this statute, there must be:
“(1) A condition of things justifying a command to disperse by the proper officer designated by law.
“(2) Disobedience of the command.
“This statute is apparently based upon the common-law duty of sheriffs and others to read the riot act and command a dispersal of persons at a time of riot. This statute may perhaps be said to have enlarged the common-law rule. It has certainly made it an offense to disobey a lawful command. But before one can be convicted of such an offense, there must have been:
“(1) An occasion for such a command;
“(2) the command must have been made by one of the statutory officers;
“(3) the command must have been disobeyed.”

While the foregoing statement was not necessary to the decision in the case there considered, we are of opinion that it correctly states the law applicable to the instant case, and that the remedy against the respondent, in the absence of any overt acts of violence or disorder, must be confined to that provided under section 5912, 2 Comp. Laws.

The judgment is reversed, and the respondents are discharged.

Kui-in, Stone, Ostrander, Bird, and Steere, JJ., concurred. Moore, J., did not sit.

The late Justice McAlvay took no part in this decision.