text:
    GUNN v. GUNN.
    1. Dismissal and Nonsuit — Issues of Fact — Pleading—Matters in Bar.
    Issues of fact may not be disposed of upon motion to dismiss a bill; it must be determined from the bill alone ■whether it is maintainable, hence affidavits denying allegations of the bill will not be considered on motion to dismiss.
    2. Divorce — Equity Court — Jurisdiction—Domicile.
    An allegation by a husband in a bill for divorce that he was a resident of the county conferred jurisdiction upon the court, and if not true it was there open to attack.
    3. Same — Res Judicata — Estoppel.
    The wife cannot collaterally raise the question of the husband’s residence, in an independent suit, after waiting over a year after she had knowledge of his suit, and long after his remarriage.
    4. Process — Alias Summons — Service—Limitations—Failure of Original Suit.
    Where a writ purporting to be an alias summons has no proper basis as an alias, the previous writ not having been seasonably returned, the second writ is not for that reason void, but, the statute of limitations not having run against the suit, it should, in case the first suit goes down, be treated as a new writ for a new suit and sustained accordingly.

      5. Judges — Disqualification—Statutes—Waiver.
    While section 12254, 3 Comp. Laws 1915, preserved the right to a litigant to a trial by a judge not related to either of the attorneys within the third degree of consanguinity, it is expressly provided that such right might be waived, and was waived unless objection in writing was filed before commencement of the trial or hearing.
    6. Divorce — Jurisdiction—Property Rights — Postnuptial Agreement — Res Judicata.
    Under section 11436, 3 Comp. Laws 1915, providing that “it shall be the duty of the court granting a decree to include in it a provision in lieu of the dower of the wife in the property of the husband, and such provision shall be in full satisfaction of all claims that the wife may have in any property which the husband owns,” the court granting a decree of divorce to the husband had jurisdiction to determine the claims of the wife to the property of the husband under a postnuptial agreement, and she may not maintain a separate suit thereon, over a year after the decree was entered, on the ground that said decree did . not recognize all of her claims under said agreement.
    Appeal from Wayne; Dingeman, J.
    Submitted January 15, 1919.
    (Docket No. 46.)
    Decided April 3, 1919.
    Bill by Anna L. Gunn against Thomas J. Gunn and another for the specific performance of a postnuptial agreement. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      William S. Jenney, for plaintiff.

      Stellwagen & MacRay, for defendants.
   Fellows, J.

In plaintiff’s bill it is alleged that she and defendant Thomas J. Gunn, were married December 19,1907. Facts are alleged in the bill which constitute grounds for divorce. In many regards the bill partakes of the charactér of a bill for divorce, but such relief is not prayed. It is alleged that an agreement was entered into for the settlement of property matters which in part was carried out by Mr. Gunn and in part is still unperformed. It is alleged that Mr.. Gunn obtained a decree of divorce in the Macomb circuit court and afterwards married the defendant Lillian Smith. • It is insisted that these divorce proceedings are invalid for reasons which we shall presently discuss. Defendants filed a motion to dismiss in the nature of a demurrer accompanied by affidavits challenging certain allegations of the bill. From an order dismissing the bill, plaintiff appeals.

The affidavits denying allegations of the bill will not be considered on this motion. The issues of fact may not be disposed of upon motion to dismiss. Pagenkoff v. Insurance Co., 197 Mich. 166. We must, therefore, determine from the bill and from the bill alone, whether it is maintainable.

1. It is insisted that the circuit court of Macomb county did not obtain jurisdiction in the divorce case and that the proceedings therein are absolutely void. The following reasons are alleged in the bill and insisted upon in the argument of plaintiff’s counsel: (a) That Mr. Gunn was not a bona fide resident of Macomb county; (6) That the original summons was issued August 26,1916, returnable September 26th following, was not served, and was not returned until December 30th following, when it was returned as not served and an alias issued; that the suit abated and the court lost jurisdiction; (c) That James G. Tucker, Jr., an attorney and son of James G. Tucker, circuit judge, who heard the case, appeared for Mr. Gunn.

(a) In Mr. Gunn’s bill he alleged that he was a resident of Macomb county. This allegation conferred jurisdiction upon the court. If it was not true it was there open to attack by the defendant there, plaintiff here, who had notice of that proceeding. She cannot after waiting over a year after she had knowledge of the suit and long after defendant’s re-marriage, collaterally raise for the first time in an independent suit this question which might have been then tried.

(5) The original summons was returnable September 26th. It was not served. On December 30th it was returned showing this fact and another summons labeled “alias” was issued and was served. It is insisted by counsel for plaintiff here that the continuity of the suit was not preserved and that it abated upon the failure to seasonably return the original writ and procure the issuance of an alias writ, and Colling v. McGregor, 144 Mich. 651, Peck v. Insurance Co., 102 Mich. 52, and kindred cases are relied upon. In each of these cases the statute of limitations was involved, and it was held that it was necessary, to prevent the-running of the statute, to preserve the continuity of the suit by the issuance of successive alias and pluries writs. But in the instant case the statute of limitations is not inyolved. The case is therefore controlled by Axtell v. Gibbs, 52 Mich. 639; Frantz v. Railway, 147 Mich. 199. In the Axtell Case, Chief Justice Cooley, speaking, for the court, said:

“But if the .last writ had no proper basis as an alias, it was not for that reason void. If the first suit had gone down, this should have been treated as a new writ for a new suit, and sustained accordingly.”

(c) Section 12254, 3 Comp. Laws 1915, provides:

“No judge of any court shall sit as such in any cause or proceeding in which he is a party, or in which he is interested, or in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties; nor shall any judge decide, or take part in the decision of any question which shall have been argued in the court, when he was not present and sitting therein as' a judge. Nor shall any judge sit as a court in any cause in which he is related within the third degree of consanguinity to either of the attorneys or counselors of either party to said cause: Provided, That such last mentioned disqualifi cation be made to appear and that it may be waived by stipulation, filed in the cause; and it shall be deemed to have been waived unless the objection on account of such qualification [disqualification] shall have been filed in writing at or before the commencement of the trial or hearing.”

This provision is section 7, chapter 4, Act No. 814, Pub. Acts 1915 (the judicature act).. It is a substantial re-enactment and amplification of section 1109, 1 Comp. Laws 1897, the words in italics being the added provision.

It is insisted by counsel that the appearance of the son of the circuit judge as attorney for Mr. Gunn renders the decree void, and subject to collateral attack. It is contended that the provision with reference to relationship to one of the attorneys found in the judicature act should be construed as was the former provision. With this contention we cannot agree. The commission which prepared this act and the legislature which enacted it very clearly had in mind the former decisions of this court under the former law; and, while preserving the right to the litigant to a trial by a judge not related to either of the attorneys within the degree named, expressly provided that such-right might be waived and was waived unless objection in writing was filed before the commencement of the trial or hearing. These provisions are meaningless if years after the rendition of judgments and decrees they may be open to collateral attack because one of the attorneys was related to the trial judge.

We conclude, therefore, that the decree of divorce rendered by the circuit court for the county of Macomb was not void and was not open to collateral attack in the circuit court for the county of Wayne.

2. The bill alleges the making of a postnuptial agreement for the settlement of property matters, its partial performance by the defendant, sets up its breach in other particulars and prays for a decree for the specific performance of its terms. It is most strenuously urged that the bill may be maintained as a bill for the specific performance of this postnuptial contract independent of the questions already discussed. It must be borne in mind that this is not a petition for the modification of the decree for alimony or allowance filed under the provisions of section 11417, 3 Comp. Laws 1915, but is an independent suit brought so far as the question now under consideration is concerned for the specific performance of a postnuptial agreement. While this court has frequently recognized the jurisdiction of a court of equity in cases of contracts between husband and wife where grounds of equitable jurisdiction exist, the recent case of Tipson v. Jeannot, 204 Mich. 403, must be regarded as controlling of the question here involved. In that case the husband and wife entered into a postnuptial agreement for the settlement of their property matters, divorce proceedings being then pending. Before a decree had been entered disposing of the divorce case, the wife died. Proceedings were instituted for the settlement of her estate in the probate court of Muskegon county. The bill was afterwards filed to secure the enforcement of the postnuptial contract. This court, while recognizing equitable jurisdiction in proper cases, there held that the probate court of Muskegon county, having first obtained jurisdiction, and the validity of the contract not being assailed, such court should hear and determine the question. In the instant case the circuit court for the county of Macomb first acquired jurisdiction over, the controversy between these parties. The present plaintiff was duly served with process from that court. Section 11436, 3 Comp. Laws 1915, provides:

“When any decree of divorce is hereafter granted in any of the courts of this State, it shall be the duty of the court granting such decree to include in it a provision in lieu of the dower of the wife in the property of the husband, and such provision shall be in full satisfaction of all claims that the wife may have in any property which the husband owns or may thereafter own, or in which he may have any interest.”

Under the express terms of this statutory provision the circuit court for the county of Macomb had jurisdiction to determine her claims under this postnuptial agreement in the property of her husband. That court first acquired jurisdiction. By the decree there granted, provision was made for the carrying out of part of the terms of the postnuptial agreement. Plaintiff insists there were other agreements not included in the decree. If so, she had the opportunity to appear and assert them. She chose not to do so, but to file an independent bill something over a year after that decree was entered. Following the recent case above cited we must hold that the circuit court for the county of Macomb, having first acquired jurisdiction, this bill is not maintainable. The trial judge so held.

The decree is affirmed, without costs to either party.

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


source: Caselaw Access Project

author: Fellows, J. Brooke, J.

license: Public Domain

text:
    GRAY v. BERRIEN CIRCUIT JUDGE.
    1. Equity — Practice—Trial by Jury Before Hearing — Statutes.
    It is within the power of a circuit judge, in the exercise of a legal discretion, to order a jury for the trial "of an issue of fact in a chancery case, under section 12593, 3 Comp. Laws 1915, before any testimony has been taken as well as after the testimony has been taken in whole or in part, since the verdict of the jury is not binding upon the court but is advisory merely.
    2. Mandamus — Idle Ceremony.
    Mandamus to compel a circuit judge to set aside an order submitting an issue of fact to a jury in a chancery case before the hearing will not issue where it. would be idle, since by having one or more witnesses sworn the judge could comply therewith, and then issue another order and so defeat its effect.
    Bird, C. J., and Fellows, J., dissenting.
    Mandamus by Humphrey S. Gray to compel Charles E. White, circuit judge of Berrien county, to vacate an order in chancery framing an issue and directing its submission to a jury.
    Submitted March 26, 1919.
    (Calendar No. 28,703.)
    Writ denied April 3, 1919.

      Cady & Andrews and Dallas Boudeman (George M. Valentine and George W. Bridgman, of counsel), for plaintiff.

      I. W. Biford and Gore & Harvey (Ira A. Beck and . B. M. Ludlum, of counsel), for defendant.
   Fellows, J.

(dissenting). A bill was filed in the circuit court for the county of Berrien in chancery by Clayton M. Niles as guardian of George F. Sonner, an incompetent, to set aside a contract made with petitioner upon the grounds of mental incapacity and undue influence. Answer was filed putting in issue the allegations of the bill. Before a hearing, and before any testimony was taken, on motion of the plaintiif in that case, respondent, circuit judge, made an order framing an issue and directing its submission to a jury. This proceeding is brought to vacate such order.

In the case of Brown v. Kalamazoo Circuit Judge, 75 Mich. 274 (5 L. R. A. 226, 13 Am. St. Rep. 438), this court had before it the validity of Act No. 267, Pub. Acts 1887, which provided for a trial by jury in equity cases and made the verdict of the jury final as to the facts. This court there held such act in conflict with the Constitution, and in the course of the opinion written by Mr. Justice Campbell, it was said:

“The system of chancery jurisprudence has been developed as carefully and as judiciously as any part of the legal system, and the judicial power includes it, and always, must include it. Any change which transfers the power that belongs to a judge to a jury, or to any other person or body, is as plain a violation of the Constitution as one which should give the courts executive or legislative power vested elsewhere. The cognizance of equitable questions belongs to the judiciary as a part of the judicial power, and under our Constitution must remain vested where it always has been vested heretofore.”

The relator in the instant case therefore comes to this court armed with the right to an adjudication of his case in a court of equity and in accordance with the practice of that division of the judicial department. Is the order here reviewed in accordance with the practice on the equity side of the court as adopted and fixed in this State?

That “feigned issues” were known to the equity courts of England, and that issues of fact arising on the equity side of the court may be submitted to juries under our practice may be taken as well understood by the profession. Indeed, our own statute (3 Comp. Laws 1915, § 12593) permits such practice. This statute is the substantial re-enactment of a statute long in force (see section 56, chap. 90, Rev. Stat. 1846), and in force when the case of Dunn v. Dunn, 11 Mich. 284, to which we shall presently refer, was written. That the findings of the jury are advisory merely, and that the discretion rests in the chancellor to direct the trial of an issue are also well understood by the profession. The' questions here involved are: May the discretion of the chancellor be moved by an inspection of the pleadings alone? May the fact that the facts are disputed alone justify the exercise of that discretion? If so, in every contested equity case the chancellor may transfer, at least in the first instance, the responsibility of determining questions of fact to a jury. To reach an answer to these questions we should understand the functions of the jury under this statute, and the theory underlying its calling. That the finding of the jury is advisory only, and may be disregarded by the chancellor and this court on appeal, is established. Then why call a jury? Why submit an issue of fact to it? The answer to these questions we think is also well established: To aid and satisfy the conscience of the chancellor upon a close question of fact. Chief Justice Marshall, writing for the court in Harding v. Handy, 11 Wheaton (U. S.), 103, said:

“An issue, indeed, might have been directed; but we do not think it a case in which this course ought to have been pursued. The degree of weakness, or of imposition, which ought to induce a court of, chancery to set aside a conveyance, is proper for the consideration of the court itself; and there seems to be no reason for the intervention of a jury, unless the case be one in which the court would be satisfied with the verdict, however it might be found.”

How, then, may it be determined that the conscience of the chancellor needs the aid of the finding of a jury of laymen? By an inspection of the pleadings? Most assuredly not. They give no glint of where the preponderance of the evidence finally will be found. Defendant may most positively deny by his pleadings the facts alleged in the bill, but when the evidence is finally adduced it may all sustain plaintiff’s claim. Plaintiff on the other hand may positively affirm a state of facts in his bill and fail absolutely in his proof. In either event the conscience of the chancellor needs no aid to find the facts. Where the testimony on a given issue is quite evenly balanced, the witnesses of equal credibility, the chancellor in doubt, the judgment of a jury of laymen as to where the truth lies may be of aid and assistance in solving the doubtful problem. In Adams’ Equity (8th Ed.), p. 376, it is said:

“An issue is directed where an incidental question of fact is so involved in doubt by conflicting or insufficient evidence that the court, considering the inefficiency of written testimony, is desirous of referring it to the verdict of a jury. It can, however, only be . adopted where the evidence creates a doubt, and not as a substitute for omitted evidence; and, therefore, the party claiming the issue must first prove his case by regular depositions.”

In Fletcher’s Equity Pleading and Practice, § 618, it is said:

“If the court is not satisfied upon the proofs which have been taken as to the truth of the case, it may direct a feigned issue to ascertain the facts. As a general rule, it has, however, the power of determining all questions of fact without resorting to this mode of inquiry, and it should not be employed except where the conflict of witnesses or the obscurity of evidence is such as to make it doubtful on which side the preponderance of evidence lies.”

And Justice Campbell in the early case of Dunn v. Dunn, supra, speaking of the chancery judge, said:

“He cannot properly award an issue until he has been unable to form a satisfactory conclusion on the hearing, up.on some material facts, to which the issue must be legally confined.”

The Dunn Case was written 56 years ago. It has not been modified by our later holdings, and is not modified by Maier v. Wayne Circuit Judge, 112 Mich. 491, which is relied upon by counsel for respondent. It will be noted from an examination of that case that another statute was there involved. We have examined the original files in that case. They show that the relator there insisted upon two propositions: (1) assuming the validity of the statute under consideration its provisions had been waived; (2) the act was invalid under Brown v. Kalamazoo Circuit Judge, supra. The reply to these contentions was that there had been no waiver, and that the jurisdiction of the chancery court over the subject-matter there involved was statutory and the practice could be regulated by statute. The order of the respondent in that case had made the finding of the jury controlling. This was held to be improper. Upon the question of whether the case was controlled by Brown v. Kalamazoo Circuit Judge, supra, it was said:

“We are satisfied that this case is within the general jurisdiction of equity, and therefore clearly within the reason of Brown v. Kalamazoo Circuit Judge, supra, although we do not mean to' intimate that the result would not be the same were the cause one which only came within the jurisdiction by virtue of a statute.”

But the question there before the court was not the question in the instant case, i. e., when may the discretion of the chancellor be exercised, and upon what must it rest for its foundation? That case in no way militates against what was said in Dunn v. Dunn, supra. Under the holding in the Dunn Case, the discretion of the chancellor must rest upon testimony taken at the hearing and may not be moved by the claim of the parties in their pleadings.

It follows that the writ should be granted.

Bird, C. J., concurred with Fellows, J.

Brooke, J.

I do not agree with the conclusion reached by my Brother Fellows in this matter. The statute provides (3 Comp. Laws 1915, § 12593):

“In chancery cases if there be an issue of fact which, in the opinion of the court, shall render the intervention of a jury necessary or proper, said court shall, on request of either party, order a jury impaneled for the trial thereof, and the verdict of such jury may be used upon the hearing of the cause.”

While it is true that in the early case of Dunn v. Dunn, 11 Mich. 284, Justice Campbell made use of the following language: ’ ,

“An issue can only be granted at the hearing as a general thing and as this issue was so awarded, it is manifest that it must be confined not only to facts put in issue by the pleadings, but to facts concerning which some testimony has previously been introduced and read at the hearing.”

An examination of that case will show that the propriety of ordering the issue to be tried by a jury was not questioned; neither was the point raised or discussed as to whether a jury could be called for the determination of an issue of fact only after testimony had been taken. As a matter of fact in that case the chancellor had taken testimony before the issue was framed, so that I think we can properly regard the language of the distinguished Justice as. obiter. It will further be noticed that there were two other opinions in the case in neither of which is this point mentioned. The statute itself clearly imposes no limitation as to time upon the discretionary power to be exercised by the court.

In the case of Maier v. Wayne Circuit Judge, 112 Mich. 491, it is very apparent that the order for the jury was made before any testimony was taken. While the order was made under a different statute, Justice Hooker, speaking for the court, said:

“We are satisfied that this, case is within the general jurisdiction of equity, and therefore clearly within the reason of Brown v. Kalamazoo Circuit Judge, supra, although we do not mean to intimate that the result would not be the same were the cause one which only came within the jurisdiction by virtue of a statute. We think that the statute in question was not mandatory, and might be waived, as said in the case of Schafberg v. Schafberg, 52 Mich. 429; and where a case had been noticed for hearing without mention of a desire for a jury, especially when the party is in court ready for trial,'the court would be justified in denying trial by jury upon the ground that it had been waived. It does not follow, however, that he must deny it under such circumstances. We are also of the opinion that the verdict is advisory.”

The making of the order in that case was affirmed although modified so far as it attempted to make the finding of the jury final. I am satisfied that it is within the power of a circuit judge in the exercise of a legal discretion to order a jury for the trial of an issue of fact in a chancery case before any testimony has been taken as well as after the testimony has been taken in whole or in part. That practice was followed in the case of Fidelity Mutual Life Ins. Co. v. Blain, 144 Mich. 218, and seems to have been approved by this court in the review of that case. The claim that such a course would tend to deprive a court of equity of its jurisdiction to determine facts in equitable cases is without foundation. No one contends that the verdict of a jury in such a case is anything but advisory. In the last analysis the findings of fact must be made by the chancellor himself. He may agree or disagree with the verdict rendered by the jury, but upon him rests the responsibility for a final determination in his court.

Further than this it seems to me that it would be idle to issue the mandamus for, as said by Justice Hooker in Maier v. Wayne Circuit Judge, supra:

“The judge had the authority to send the question to the jury upon his own motion, and nothing would be gained in this case by setting aside his order, as he might make another.”

If the order is set aside the learned circuit judge could proceed to hear the case and after one or more witnesses were sworn he could then order a jury and so defeat the effect of the mandamus and at the same time comply with the views of my Brother.

I am of opinion that mandamus should be denied.

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


author: Stone, J. Brooke,- J.

text:
    ROTTER v. DETROIT UNITED RAILWAY.
    1. Street Railways — Survival Act — Personal Injuries — Crossing Accident — Negligence—Question eor Jury.
    In an action against a street railway company and a brewery company, under tbe “survival act” to recover damages for personal injuries resulting in tbe death of plaintiffs decedent, a boy about 15 years of age, caused by a collision between a street car and a brewery truck at a crossing on a public street, testimony that tbe street car was traveling at an excessive rate of speed in violation of tbe city ordinance, that tbe car was not under control, and • as to whether tbe motorman attempted to slacken tbe speed of the car was a disputed question, as was also the testimony with reference to the speed and handling of the truck by the employee of the brewery company, held, sufficient to carry the case to the jury:
    2. Same — Contributory Negligence — Eyewitnesses — Question eor Jury.
    Where, in such action, it was the theory of plaintiff that decedent was injured in the absence of eyewitnesses, and therefore presumptively free from contributory negligence, sustained by the testimony of four witnesses who testified that they did not see decedent until he was discovered under the truck after the collision, and that if he had been in the position where two of defendants’ witnesses placed him, viz., hitching onto the north side of the truck, riding on a bicycle, in violation of a city ordinance, they would have seen him, a question of fact as to whether there were eyewitnesses was presented for the jury. Brooke, J., dissenting.
    3. Trial — Instructions—Contributory Negligence Per Se — Violation oe City Ordinance.
    The court below was in error in instructing the jury that a violation of the “hitching” ordinance was contributory negligence per se, this court having held repeatedly that the breach of an ordinance is evidence of negligence, not negligence per se.

    Error to Wayne; Codd, J.
    Submitted January 10, 1919.
    (Docket No. 27.)
    Decided April 3, 1919.
    Case by Augusta Rotter, administratrix of the estate of Stanley Rotter, deceased, against the Detroit United Railway and the Union Brewing Company for the negligent killing of plaintiffs intestate. Judgment for defendants on a directed vérdict. Plaintiff brings error.
    Reversed.

      Harry J. Lippman, for appellant.

      Frederic T. Harward (Corliss, Leéte & Moody, of counsel), for appellee railway.

      Vandeveer & Foster, for appellee brewing company.
   Stone, J.

The plaintiff is the administratrix of the estate of Stanley Rotter, deceased, and, as such, brought this action under the “survival act” to recover damages, because of the injuries to, and resulting death, of, the infant decedent due to a collision of a street car of the defendant Detroit United Railway with a large truck of the defendant Union Brewing Company at about 5:80 o’clock on the evening of November 21, 1913, at the intersection of Third street and Calumet avenue in the city of Detroit.

Exhibit X.

To aid in a clear understanding of the location of streets, intersections, etc., we here append exhibit “X” taken from the record.

Third street runs approximately north and south. The Hamilton car line runs south on this street. Third street at its intersection with Calumet avenue is 32 feet wide, from curb to curb. Calumet avenue, Can-field avenue, Forest avenue and Warren avenue, each runs east and west, Canfield being one block to the north of Calumet avenue, and is about 200 feet distant. Forest avenue is three blocks north of Calumet avenue, and Warren avenue five blocks north of Calumet. From Forest avenue to Calumet avenue and beyond, there is a gradual down grade. The intersection of Calumet avenue and Third street is spoken of as “particularly dangerous,” because of the fact that Calumet ends at Third street, and is but 26 feet wide from curb to curb, and there being a block of stores on the east side of. Third street at the head of Calumet avenue; and a large brick store building being situate at the northwest corner of Third street and Calumet avenue. Upon the southwest corner of these streets there stood a large street arc light.

This point was at the time in question in a thickly populated district, and a large number of persons and vehicles were constantly passing and repassing. The street car in question was a regulation “pay-as-you-enter” car, with folding doors, the motorman’s vestibule being separated from the body of the car by a partition, and it was in charge of one Frank L. Fox as motorman. On the evening in question the street car left the car barns at 5:10 p. m., proceeded to Holden avenue where passengers from the shops of the Burroughs Adding Machine Company were picked up, the car having waited there about 8 minutes, leaving at 5:20 p. m. From Holden avenue to Calumet avenue is a distance of 11 blocks. The street car traveled these 11 blocks, making stops at Warren and Forest avenues, loading and unloading passengers— the car going south or down town,, and the collision taking place about 5:30 p. m.

The intersection of Calumet avenue and Third street was well lighted by lights in the stores and the arc light, one being able to see plainly from Forest avenue to Calumet avenue. The conductor of the street car testified that:

“It would be safe to say that standing at the point of the collision, at that particular time, one could look north up the car track, and see as far as Forest avenue. There is nothing there to obstruct your view.”

The automobile truck in question was a large 3-ton 4-cylinder Packard truck, being used by the defendant brewing company in the delivery of its beer, and at the time of the collision was in charge of a driver and helper. The truck was loaded with empty beer barrels, weighing about one ton. At the time of the collision the truck had emerged from Calumet avenue going in an easterly direction, was part way across the street car tracks of the defendant Detroit United Railway, it being the intention of the driver'of the truck to turn north on Third, street, and to go east on Canfield avenue. .The truck was struck in about the middle by the car and was shoved to near the east curb of Third street, the street car after the collision having proceeded south probably about 25 feet before coming to a stop. After the collision the location of the truck is indicated by the letter “M,” and the location of the street car by the -letter “N,” in exhibit “X.” Before the collision the motorman jumped from the car, and it was a disputed question whether the gong was sounded and the brakes applied. At the time of the collision the street car was being run as a “tripper” — an extra car to carry workmen home from work — and as soon as loaded the car would go directly down town. After the collision the little boy, the decedent, then in the employ of the Western Union Telegraph Company as a messenger boy, was found under the truck close to the east curb of Third street, with beer barrels all around, and there is some testimony that some of them were on him, the bicycle which he is supposed to have been riding being found between the beer truck and the east curb of Third street. Being severely injured, the boy was at once taken to Grace Hospital where he died from his injuries 51 hours thereafter, having been conscious most of the time. In his employment he was earning $10 to $12 per week. He attended night school, studying woodwork in the hope of becoming a pattern maker. He was an exceptionally bright and industrious boy.

It was the claim and theory of the plaintiff, upon the trial, that the decedent was injured in the absence of eyewitnesses; witnesses being produced and sworn who were in a position to observe, and who testified positively that the boy was not seen before the accident, but was first discovered under the truck after the collision.

Upon the trial it was also the claim of the plaintiff that the decedent was injured as a direct result of the collision of the street car of the defendant Detroit United Railway and the automobile truck of the other defendant, in the absence of eyewitnesses; and in support of this claim the plaintiff introduced testimony upon the question as to whether the boy was seen immediately prior to the collision.

Defendants defended upon the grounds, among others, that the whereabouts of the decedent at the time of the collision were known; that it was not shown that the decedent was free from contributory negligence; and that at the time of the collision decedent was “hitching onto” the truck, on the north side thereof, in violation of a city ordinance, and therefore was negligent per se, and could not recover.

The plaintiff, in support of the claim that the decedent was injured in the absence of eyewitnesses, introduced the testimony of four witnesses: Spencer H. Roys, Richard Fenn, Jesse Stevenson and Frank L. Fox, the motorman at the time of the collision, all of whom testified with positiveness that the boy was not in the position claimed by the defendants.

It was the testimony of the witness Roys that just prior to the crash of the collision he was standing in front of a partition in the back room of his store, at the northwest corner of Third street and Calumet avenue, mixing chocolate, standing close to the glass door, and was looking out upon Calumet avenue and saw the truck passing by, going towards Third street. Upon direct examination' he testified as follows:

“At about five-thirty o’clock I was in the back part of my store. There is a door in the back part of the store that has glass windows in it, and it looks out upon Calumet.
“Q. At that time when you were in the back part of this store did you look out through the door and see a truck pass on Calumet?
“A. Yes. It was a big truck loaded with beer kegs, and it was going towards Third on the right side of Calumet, going at between four and five miles an hour.
“Q. You saw it.pass?
“A. Yes, I was making chocolate, that is, I had a little stove in front of the window, and I saw it go by.”

Upon cross-examination he testified as follows:

“Q. Did you see any boy when the truck went by?
“A. No.
“Q. You did not see the boy until he was taken from underneath the truck?
“A. No.”

Upon redirect examination he testified as follows:

“Q. Mr. Roys, this is Calumet, and you saw the truck pass towards Third?
“A. Yes.
“Q. Did you see any boy around that truck?
“A. No, sir, I didn’t.
“Q. Did you see a boy anywhere around the truck seated on a bicycle?
“A. No.
“Q. If there had been a boy seated on a bicycle, hanging onto that truck, would you have seen him as you looked out?
“A. I would have.
“Q. And you saw no boy?
“A. No.
“Q. You saw no bicycle?
“A. No.”

The witness Richard Fenn testified, on direct examination, that at the time of the collision he resided on Third street about half a block from Calumet avenue, and on the evening in question he left his home at about 5:30 o’clock to go to the grocery .store on the east side of Third street directly opposite Calumet avenue. He said:

“As I arrived on the east side of Third street, and when I was directly in front of the Busy Bee grocery store, I looked north and saw a street car between north and south Canfield avenue; Canfield avenue jogs off at Third street. At the same time that I noticed the street car,.I noticed a truck stopping at Calumet and Third, in a direct line with the sidewalk on the west side of Third. The truck did not entirely stop, but it slowed down almost to a stop. It then started up. again and proceeded east, and as it crossed the intersection swung around and started north on Third avenue. The truck, as it crossed the intersection, made a full wide swing. When I saw the truck come almost to a stop the street car was opposite to southern Can-field. That is that portion of Canfield avenue going toward Woodward avenue from Third. The front of the street car was opposite the southern curb of south Canfield, which would be opposite ‘B’ on the plat. The front of the truck stopped in line with the sidewalk on the west side of Third. I was at the point marked ‘J’ on the map, and when I stood at ‘J’ I saw the street car at point T>.’ I saw the truck slow down at point ‘A.’ After I saw the street car and the truck, I did not go into the grocery store. I watched it. The reason that I watched it was that I was sure something was .going to happen. I had a strange feeling that something was going, to happen. I do not know what gave me that feeling, but it was at the same instant that the street car was coming down that the truck started up, and I stood there and watched. * * * The street car was carrying a standing load. The collision smashed the front end of the street car completely. I did not see the motorman before the crash, but after the crash, I saw him go back in the front of the car and shut off the motor. Point. *G’ on the map is the intersection of Third street and Calumet. The point of collision is at point ‘K’ designated on the map. When the street car hit the truck it pushed the truck off the track. The position of the truck after being hit was at point ‘M.’ The front of the truck was closer to the curb on Third. The rear of the truck was about three or four feet from the track. After the collision at point ‘K’ the street car went past the point of collision to about point ‘N.’ After the collision the truck was in position ‘M’ and the street car was in position of ‘N.’
“Q. As you looked up Calumet avenue did you have a clear, unobstructed view of this truck as it approached?
“A. Yes.
“Q. Did you see any boy anywhere around there?
“A. No.
“Q. If there had been a boy anywhere around there in connection with that truck would you have seen him?
“A. Yes. After the collision I heard screams; I was too frightened to do anything and I stood still. After hearing the screams I saw the boy, and he was under the middle of the beer truck.”

Upon cross-examination by the defendant Detroit United Railway the witness testified:

“I saw the car strike the truck.
“Q. Is that all you saw?
“A. I saw it approaching it.
“Q. And you had a funny feeling because you knew it was going to hit it?
“A. Yes.
“Q. And'you had that funny feeling before it hit it?
“A. Yes.
“Q. After you had that feeling you turned?
“A. No.
“Q. Did you watch them?
“A. I watched them come together.
“Q. You knew they were going to come together?
“A. Yes.”

Upon cross-examination by the defendant Union Brewing Company the witness testified:

“When I first saw the street car it was up towards Canfield avenue. At that time I was on the east side of Third avenue. I was facing in a westerly direction, with my back to the east, and I could see west perfectly. I saw the street car coming at about 25 miles an hour. The intersection of Calumet and Third was well lighted up by means of an arc light and lights from the windows in the stores. I had no difficulty in seeing everything that took place there.
“Q. Now, you say that you looked in a westerly direction and you saw the automobile truck coming east on Calumet?
“A. Yes.
“Q. And was there any other vehiclé on Calumet avenue at that time?
“A. No.
“Q. The only one that you could see was the truck?
“A. Yes. ■
“Q. That is the only thing that you saw there?
“A. Yes.
“Q. You did not see the boy to the south of the automobile truck?
“A. No.
“Q. Then did you see the boy on the wheel to the north of the truck when hé was on Calumet?
“A. No.
“Q. Nor was there a boy on the wheel in front of the automobile on Calumet?
“A. No.
“Q. And when that machine approached Third avenue you at no time saw a boy in close proximity to the truck?
“A. No.
“Q. Now did you see any vehicle- going north on Third avenue as you looked towards the street car approaching at 25 miles an hour?
“A. No.
“Q. If there had been any going north on Third avenue it would be on the right side?
“A.. Yes.
“Q. Now, as the car approached you, did you see anybody on a bicycle, or a bicyclist on the west side of Third avenue, going in a southerly direction?
“A. No.
“Q. So as you stood there facing the west you could see an automobile coming, and at the same time there was a street car coming?
“A. Yes.
“Q. And you had a feeling that probably a collision was going to take place?
“A. Yes.
“Q. And you stood in that position where you could see what took place?
“A. Yes.
“Q. Now, the accident happened almost directly under the arc light, didn’t it?
“A. Yes.
“Q. And you saw and heard the impact?
“A. Yes.
“Q. And you saw the collision?
“A. Yes.
“Q. And at that time were you in a position where you were facing almost to the west?
“A. Yes.
“Q. So that you could see a few feet to the right of the automobile, and also you were brought within a few feet of the left side of the automobile to the south?
“A. Yes.
“Q. Did you see just at the time of the accident, a boy riding on a wheel go to the left of the automobile, or to the right of the automobile, or to the south of it?
“A. No, sir.
“Q. You did not see any boy at all?
“A. No.
“Q. If the boy had been to the south of the automobile when it was right by the street car, would you have seen him?
" “A. Yes.
“Q. Just before the crash took place, did you see a boy to the south of the automobile?
“A. No.
“Q. You did not see the boy thrown underneath the automobile?
“A. No.
“Q. If he had been thrown under the south side you would have seen it?
“A. I cannot say as to that. The point of collision was in the light, I looked west, I saw no small boy at all, there was nothing to obstruct the view if the boy had been thrown under the truck from my side.”

The witness Jesse Stevenson, at the time of the collision, stood in the front part of Roys’ store at the northwest corner of Third street and Calumet avenue, looking out upon Third street, and saw the street car pass the front of the store and strike the truck. Upon direct examination he testified as follows:

“Q. Did you see the boy at all, before you saw him under the truck?
“A. No. * * * The street car hit the truck right behind the front wheel, pretty close to the center; the truck had come down Calumet and was pointed toward Canfield. I was looking right at the truck when it was struck and I could not help seeing it.”

Upon rebuttal the motorman was recalled under the statute, and testified as follows:

“Q. Now, Mr. Fox, it is a fact, isn’t it, that you were looking out of your window on this particular day, and that you saw the north side of the , truck as it was going towards the track?
“A. Yes.
“Q. You looked that way?
. “A. Yes.
“Q. And you saw the truck?
“A. Yes.
“Q. You say that you saw the truck from the nose of it to the tail of it, facing the street car?
“A. Yes.
“Q. Now, if there had been a boy at any point alongside of the truck, between the nose of it and the tail ' of it, you would have seen the boy, wouldn’t you?
“A. Yes.
“Q. You also say, then, do you not, that there was no boy between the front of the truck and the tail of the truck, as you saw the truck about to approach this track?
“A. No, sir, there was not.”

Upon cross-examination he testified as follows:

“Q. You mean none that you saw.
“A. .No, sir, I did not.
“Q. You will not say that the boy was not there?
“A. No, I don’t know that he was there, but he was not there that I know of; no, sir, he was not there.
“Q. Could he have been there and you not see him on account of the happening so quickly of that accident?
“A. I did not see him.”

On redirect examination he testified as follows:

“Q. Could he have been on the north side of the truck between the front and back of it, unless you had seen him when you were looking?
“A. No, sir.
“Q. Would you have had to see him?
“A. Yes.
“Q. And he was not there?
“A. No.
“Q. You will say he was not there?
“A. Yes.”

The defendants’ witness James W. White testified that on the day and hour in question he was in the vicinity of Calumet avenue and Third street; that he was on his wagon, traveling on the west side of Third avenue between Canfield and Calumet avenues, going south, and that the street car passed him when about 50 or 60 feet from Calumet avenue; that he saw the truck appear from Calumet avenue going east and that it didn’t stop; that he saw a boy on a wheel, about which he testified as follows:

“Q. Did you see a boy on a wheel?
“A. I did.
“Q. Where was he?
“A. On the north side of the truck.
“Q. And what was he doing?
“A. He had his hand on the truck.
“Q. What did the truck do?
“A. It went right across the track.
“Q. In what direction?
“A. There is a blind street there, it made a turn and started to approach Canfield on the east side of Third avenue.
“Q. It made a long turn?
“A. Yes.
“Q. Did the boy continue where he was? Where was the boy? With his hand on the truck?
“A. I should say he was just probably a little ahead of the rear wheel.
“Q. What was he riding?
“A. A bicycle.
“Q. He was riding a bicycle?
"A. Yes.
“Q. When this automobile or whatever it was—
“A. It was a i>eer truck.
“Q. Loaded with anything?
“A. Empty kegs.
“Q. When this truck came over the first rail of the track, how far away was the street car from it?
“A. I should judge 45 or 50 feet.
“Q. Did the boy on the wheel stop before he went on the track?
“A. I cannot say as to that, but he was there after I got up there — there was going to be a, collision and the boy was under the truck after it.
“Q. Did you see them as they went on the track?
“A: Yes.
“Q. The boy and the automobile?
“A. Yes.
“Q. Did either of them stop before they went on the track?
“A. No/’

On cross-examination he testified that the boy was pedaling along hanging on the truck with his right hand, and pedaling.

“Q. The only thing you know is that the automobile was going about 10 or 12 miles an hour, and the boy was clinging to the side of the truck, and the collision took place and the boy was hurt?
“A. Yes.”

There was. more testimony of this witness, but it was to the effect as above stated.

The witness. Wilbur Jessop, called by the defendants, testified that, he was going east, on the south side of Calumet avenue, and that when the accident occurred he was about 20 feet off of the curb of Third street on the south side of Calumet; that he saw the truck as it went by him, and as the truck turned he saw the boy upon the north side of the truck, coasting along with his right hand -hold of the truck, and the substance of his testimony was, that the boy was upon the left side, or north side of the truck holding on, and was in that position as the truck made the swing to turn north on Third street.

There was testimony tending to show that the street car was traveling at an excessive rate of speed, and in violation of the ordinance of the city; and that the motorman did not have the car under control. Whether he attempted to slacken the speed of the car was a disputed question, as was the testimony with reference to the speed and handling of the truck by the defendant the Union Brewing Company.

Upon the subject of negligence of the defendants there was, in our opinion, sufficient evidence in support of the declaration to carry the case to the jury. We do not think there was any evidence of gross negligence of either defendant.

At the close of all the testimony, counsel for the defendants made a motion for a directed verdict on the ground that, as matter of law, the deceased was guilty of contributory negligence which must defeat recovery in the case. Counsel for the plaintiff insisted that the case was, under the evidence, a proper one for the consideration of the jury. The court granted the motion of the defendants; and in its charge directing a verdict for the defendants, after referring to the duty of the decedent to stop, look and listen before entering upon the street car track, said;

_ “There has been, unfortunately, in this case no testimony introduced as to compliance, on the part of this unfortunate young man, with these duties. There has been positive testimony, however, of Mr. White and Mr. Jessop, Mr. White testifying that the boy was coming down and was coasting alongside the beer wagon, and had his hand on the wagon — was hitching —that is a direct violation of the ordinances of the city of Detroit and is an act of contributory negligence. For myself to entirely disregard that testimony would be a violation of my oath of office. This testimony and the testimony of Mr. Jessop is the only testimony of any person who saw this accident. Both testify that he was not going up Third avenue on the east side of Third avenue where he had a right to be, but it is the positive testimony that he was going down Calumet avenue with his hand on the side of the wagon. An unfortunate thing that too many boys do; in doing it they deliberately take their own lives in their hands, and to establish any precedent that, a recovery could be had, when an accident happened by reason of such action would be to invite people to deliberately disregard our laws to their own detriment. It becomes my duty, therefore, not to allow and it is your duty not to allow sympathy to enter into our deliberations in this case, for the reason that exact justice is never meted out when we do. If we allow sympathy to enter into our judgment, exact justice cannot be done. For me to do it would be for me to violate my oath of office. I have no right to put before you a temptation to allow sympathy to enter into your deliberation. I cannot see how the testimony of Mr. White and Mr. Jessop can be set aside by any man unless his vision is clouded by sympathy. Under these circumstances it is therefore my duty to relieve you of all further consideration of the case, and direct that you return a verdict of not guilty for both of the defendants.”

!• Whereupon, without leaving their seats, the jury returned a verdict of not guilty as to both defendants, and a judgment in accordance therewith followed.

The ordinance referred to by the court in its charge reads as follows:

' “It shall be deemed a violation of this ordinance for any person to hitch onto/ or get upon or take passage on, any vehicle which is passing through or upon any of the streets of this city, without the consent of the driver or operator of such vehicle.”

It should be stated also that both the driver of the truck and his helper testified that they saw no boy at or around the truck as they approached Third street, and therefore gave no consent upon the subject.

The plaintiff has brought error, and there are many errors assigned to the rulings of the court upon the introduction of testimony. We have examined the same and find no reversible error in that regard. The 37th assignment of error is that the court erred in refusing to submit to the jury the questions of fact raised by the evidence. The 38th is that the court erred in taking the case from the jury, and in directing a verdict in favor of the defendants and against the plaintiff, of no cause of action.

In discussing the questions relating to the charge raised by the said assignments of error, if is urged by the plaintiff that the testimony presented a question of fact for the jury to pass upon, as to whether or not there were eyewitnesses to the injury received by the decedent; and counsel urges that as there were four witnesses, all in a position as to time, place and circumstances, to observe what occurred, who saw and testified that the boy was not there about the truck, against two witnesses who say he was there as the truck made the turn across the track, a question for the jury was raised; and that the court erred, also, in charging that the boy, having hold of the truck, or “hitching onto” it, was guilty of contributory negligence per se. Many cases are cited by counsel upon both sides.

It is the claim of counsel for the defendants that the case is controlled by Baker v. Delano, 191 Mich. 207, and they quote from the opinion of Justice Kuhn in that case. Indorsing all that this court held in that case, we do not think it controlling of the instant case. The uncontradicted evidence in that case showed that there were eyewitnesses of the accident who were able to, and did, give direct testimony on the subject, and, consequently, under the authorities there cited, the presumption relied upon by the plaintiff was removed.

In the instant case whether or not there was an eyewitness, or were eyewitnesses to this injury, involved a question of fact. Four witnesses, who were in a position to see what occurred, testified positively that had there been a boy where the defendants’ witnesses placed him, they would have seen him. It is unnecessary to raise or discuss any fine spun theory as to whether this evidence was positive or negative in its character. We have passed that question, and it seems to us that the real and meritorious point here is, whether or not there was a question of fact for the jury to pass upon, namely, the question of who testified correctly upon this issue.

This court said in Woodin v. Durfee, 46 Mich. 424, at page 427:

“A jury may disbelieve the most positive evidence, when it stands uncontradicted; and the judge cannot take from them their right of judgment.”

If this is true as to uncontradicted evidence, it is doubly true, in a case like this, where the evidence is in conflict. Upon this subject the plaintiff has cited the following cases: McDuffie v. Railway Co., 98 Mich. 356; Lonis v. Railway Co., 111 Mich. 458; Cinadar v. Railway Co., 193 Mich. 38.

What this court said in the Cinadar Case, on page 48 et seq., is, in our opinion, applicable here. Many other cases are cited by counsel, including Rhoades v. Railway Co., 58 Mich. 263, where it is held that where such evidence conflicts the weight thereof is for the jury.

That questions relating to plaintiff’s contributory negligence should be submitted to the jury when the testimony is conflicting, plaintiff’s counsel also cites Haines v. Railway Co., 129 Mich. 475, where nearly a score of cases are cited in the opinion. A case very much in point, also, is Tietz v. Railway Co., 166 Mich. 205, where the rule laid down in the Lonis Case is reiterated.

It is hardly necessary to go outside of our own jurisdiction, but attention is called to the case of Baltimore & Ohio R. Co. v. O’Neill, 108 C. C. A. 115, 186 Fed. 13, where the same doctrine is announced with reference to a headlight, and a number of our cases are cited, including the Lonis Case:

We are of the opinion that the state of the record did not justify the trial court in directing a verdict for the defendants upon the ground stated, or upon any ground appearing in the record. The question should have been submitted to the jury as to whether there was evidence of the contributory negligence of the plaintiff’s decedent, the evidence upon the subject being conflicting.

We think it was also error for the court to instruct the jury that a violation of the “hitching” ordinance was contributory negligence per se, for this is really what the charge means. This court has held repeatedly that the breach of an ordinance is evidence of negligence, not negligence per se. See the language of Justice Brooke in Scott v. Dow, 162 Mich. 636, at page 640, citing Blickley v. Luce’s Estate, 148 Mich. 233. Upon this point may be cited the following cases: Taylor v. Railroad Co., 45 Mich. 74 (40 Am. Rep. 457); Cook v. Johnston, 58 Mich. 437 (55 Am. Rep. 703); Flater v. Fey, 70 Mich. 644; Haines v. Railway Co., supra; Sterling v. City of Detroit, 134 Mich. 22; Mollica v. Railroad Co., 170 Mich. 96, 100 (L. R. A. 1917F, 118); Westover v. Railway Co., 180 Mich. 373, 378; Weber v. Beeson, 197 Mich. 607.

In Cook v. Johnston, supra, Justice Campbell, speaking for this court, used the following language:

“The court also charged the jury that a violation of the city ordinance requiring ashes to be kept in metallic or other incombustible vessels was negligence in law, for which defendant would be liable; and this was emphasized by the further statement that if this was not done she was not responsible in this case.
“This doctrine is not maintainable as stated. The primary object of municipal ordinances is public and not private, and their violation is redressed by the legal penalties. Taylor v. Railroad Co., supra. City ordinances are necessarily made general, and impose duties which in a given case may be of no special importance. It is quite possible that under certain circumstances, and in various surroundings, it is in no way dangerous to put ashes in wooden barrels, and it can never be dangerous to put cold ashes in them. It is certain that ash-barrels are and always have been more or less used. Whether the use of them is culpably negligent in a given case must usually be a question of fact to be determined by the jury on the facts, and not by the court.”

In Weber v. Beeson, supra, Justice Bird, in a unanimous opinion, said:

“But it is said that the testimony is uncontradicted that plaintiff was violating the ordinance as to the rate of speed he was traveling while crossing the intersection. We have held that a violation of an ordinance was merely evidence of negligence. (Citing cases.) Whether the speed of the motorcycle caused or contributed to the accident was, in connection with the other facts, a question for the jury. We think it is clear upon the whole record that the question of contributory negligence of the plaintiff was one for the jury.”

Many other alleged grounds of error are discussed by counsel for appellant. Such of the questions as are likely to arise upon a new trial we have examined, and think the objections are without merit. We think there was evidence tending to show negligence of the defendants, as alleged, sufficient to carry the case to the jury.

For the errors above discussed, we are constrained to reverse the judgment of the court below and grant a new trial, with costs to the appellant.

Bird, C. J., and Moore, Steere, Fellows, and Kuhn, JJ,, concurred with Stone, J.

Brooke,- J.

I am of opinion that the evidence adduced at the trial warranted the direction of a verdict upon the ground assigned therefor.

Ostrander, J., did not sit.


author: Stone, J.

text:
    CRAMPTON v. CRAMPTON.
    1. Judgment — Judgment Non Obstante Veredicto — Statute — Court Rule.
    A motion for judgment non obstante veredicto in a case tried before the court -without a jury was ineffective, since Act No. 217, Pub. Acts 1915 (3 Comp. Laws 1915, § 14568 et seq.), and Circuit Court Rule No. 44, made in pursuance thereof, are applicable only in actions tried before a jury.
    2. Garnishment — Interpleader—Stipulation—Fraud—Burden of Proof — Pleading.
    In garnishment proceedings, where it was stipulated by counsel that interpleaded defendant, who as assignee claimed the fund garnished, was to have the affirmative on the issue as to whether he was the owner of the fund, the court below was not in error in permitting him to be interrogated upon the subject of fraud or bad faith in his transactions with the principal defendant, Circuit Court Rule No. 23 providing that notice shall be given where fraud is an affirmative defense, being inapplicable.
    3. Trial — Evidence—Sufficiency—Witnesses—Credibility.
    The credibility of testimony and its sufficiency to support a finding are to be determined by the trial judge when he hears a case without a jury,
    4. Same.

      Held, that the state of the record was such that the finding of the court supporting judgment for plaintiff was justified, if he did not believe the testimony of interpleaded defendant, who was sole witness on his own behalf.
    5. Stipulations — Evidence—Proof—Waiver — Immateriality of Finding.
    Where it was stipulated by counsel that, although plaintiff in garnishment proceedings had not yet obtained a judgment against the principal defendant, the interpleaded defendant waived any proof upon that question, the finding of the court that plaintiff had a decree upon which said suit was based was immaterial and of no importance.
    Error to Kent; Brown, J.
    Submitted January 16, 1919.
    (Docket No. 53.)
    Decided April 3, 1919.

      Garnishment proceedings by Mae Crampton against the Grand Rapids Brass Company, as garnishee defendant of Basil R. Crampton. Isadore Wolf was interpleaded as defendant claiming as prior assignee of the fund. Judgment for plaintiff. Defendant Wolf brings error.
    Affirmed.

      Herman & Johnson (Arthur Jones, of counsel), for appellant. ■

      Earl F. Phelps (William M. Johnson, of counsel), for appellee.
   Stone, J.

The plaintiff brought action in assumpsit in the circuit court for the county of Kent against the principal defendant, seeking to recover a sum amounting to $1,020, with interest and costs,' upon a claim for alimony which was alleged to have been awarded to her in an action for divorce in the circuit court for the county of Cook, State of Illinois, and upon which decree a judgment had been obtained in said circuit court for the county of Cook, on November 27, 1917, in favor of the plaintiff and against the principal defendant in said sum. The plaintiff, at the same time, brought garnishment proceedings against the Grand Rapids Brass Company.

In a disclosure filed January 9, 1918, and also by a later disclosure filed June 20, 1918, the brass company disclosed an indebtedness to the principal defendant for royalties on a certain contract dated January 25, 1916; but also disclosed that subsequent to the service of such writ of garnishment one Isadore Wolf, of Detroit, had claimed, by an assignment from the principal defendant, to be the owner of such contract for royalties; whereupon an order was entered requiring the said Isadore Wolf to interplead as a defendant in the said garnishee proceedings. The said Wolf duly appeared, and the court ordered an issue to be formed in pursuance of the provisions of section 28 of chapter 28 of the judicature act (3 Comp. Laws 1915, § 13149) and an issue was formed accordingly. On June 25, 1918, the issue joined between the plaintiff and Wolf came on to be tried before the court without a jury.

The issue had been formed as follows: ■

(а) Has the plaintiff in the case a judgment against the principal defendant herein; upon which the plaintiff is to have the affirmative?
(б) Did Isadore Wolf, the interpleaded defendant, at the time of the service of the writ of garnishment in the case, own the fund disclosed by the disclosure of the garnishee defendant herein; upon which the interpleaded defendant is to have the affirmative?

Thereupon, in open court, it was stated by counsel and agreed to, that two certain writs of garnishment had been issued therein, both against the same garnishee defendant, and that disclosure had been made as to both writs, and upon request of counsel for both parties, it was ordered that the trial should proceed as to said issues, and upon both of said writs of garnishment and both of the disclosures therein.

It was thereupon agreed between counsel, in open court, that, although the plaintiff had not at that time obtained a judgment in said court against the principal defendant, yet the interpleaded defendant voluntarily waived any proof upon that question, and asked, that the case proceed as to the second issue joined,, for the determination of the question as to the rights of the interpleaded defendant, and this being agreed to in open court by counsel- for the plaintiff, the case proceeded to trial upon that issue alone.

The said Wolf was the only witness sworn in his own behalf.

The trial court after the trial, having announced an oral opinion, gave the interpleaded defendant leave to file a written request that the court make and file special findings of fact and law. Pursuant to such request, the trial court made and filed such findings, which, omitting the formal part thereof, was as follows:

“After mature deliberation thereon the court doth find that Mae Crampton, plaintiff, and Basil R. Cramp-ton, principal defendant, were formerly husband and wife; that a separation between them took place prior to the year 1912, and that in October, 1912, the said Mae Crampton obtained, in the circuit court for the county of Cook and State of Illinois, a decree of divorce from the said Basil R. Crampton, in which decree the said Basil R. Crampton was ordered to pay the said Mae Crampton the sum of four dollars per week; that afterwards the said Basil R. Crampton removed from the State of Illinois and came to the State of Michigan and city of Detroit without having complied with the said decree, and the said Basil R. Crampton has never complied with the said decree, or paid anything thereon, and that there accumulated on said decree ten hundred twenty dollars, for which amount the said Mae Crampton obtained a judgment in the said circuit court for the county of Cook and State of Illinois against the said Basil R. Crampton, November 27, 1917, and that suit was brought in this court on said foreign judgment in December, 1917, garnisheeing the Grand Rapids Brass Company of Grand Rapids, Michigan; that said Grand Rapids Brass Company filed its disclosure setting forth that it owed the said Basil R. Crampton, principal defendant, eight hundred twenty-seven and 12/100 dollars, but that it had received a letter from one Isadore Wolf enclosing a copy of an alleged contract between the said Wolf and the said Crampton subsequent to the time it was served with process, which contract pretended to assign moneys due Crampton to Wolf; and that the said Grand Rapids Brass Company was later garnisheed in the same suit and filed a disclosure that it owed twelve hundred sixty-six and 94/100 dollars to the said Crampton and again referring to the letter and copy of alleged contract received from Wolf.
“That the said Wolf is a young man. working in Detroit for McCray & Co. of Indiana, receiving a salary of twenty-five dollars per week and some commissions, the amount of which does not appear, and that the said Wolf and Crampton were young men and had been acquainted with each other and in close personal relations since 1913.
“The court doth further find from the evidence that the said Crampton and the said Wolf conspired together to the end that the said Crampton should assign his interest in a contract for royalties with the Grand Rapids Brass Company to the end that the said Crampton should be immune from any claims his former wife, May Crampton, should have against him, and to attain that end they had drawn up and executed a contract appearing to be dated March 4, 1916, but whether the said Wolf knew of the precise status of said claim of Mae Crampton, or the exact legal proceedings that she had taken in Chicago on said claim the court cannot say; and that in furtherance of said conspiracy they had inserted in said contract a clause to the effect that neither party thereto should let the brass company know of any such assignment unless the exigencies of the occasion should require it, in which event the said Wolf could notify the said brass company that he had an assignment, and thereupon become subrogated to the rights of the said Crampton for royalties, provided for in said contract.
“The court doth further find that the said Wolf did not actually and in good faith own the fund at the time of the service of the writs of garnishment in this cause and that the effort between Crampton and Wolf to transfer the said fund was only a makeshift and for the purpose of defrauding plaintiff, Mae Cramp-ton, out of the moneys that were due her from the said Basil R. Crampton, and therefore the said instrument alleged to have been entered into March 4, 1916, was void so far as the said Mae Crampton was concerned, and that the interpleaded defendant Wolf has therefore failed to prove by a preponderance of the evidence his claim that he was the owner of the fund at the time of the garnishments in this cause.
“The court doth further find that it is the law that an interpleaded defendant has the burden of proving his claim, and also that the parties to this cause had stipulated that in this cause the interpleaded defendant Wolf should have the burden of proof on the question as to whether he was the owner of the fund, and that the said plaintiff was never required to plead to said issue, and that the plaintiff was therefore entitled to cross-examine the interpleaded defendant on the question of fraud, or any question that would bring out any infirmity in his claim to the fund on which he had the burden of proof; and further, that the plaintiff might question the validity of the alleged assignment of March 4, 1916, or attack it for lack of consideration, or on the ground of fraud, or for any other reason because it was incumbent upon the interpleaded defendant to prove by preponderance of the evidence that he had a valid claim to the fund, and if it appeared by his own proof that his claim was invalid, or if he failed to show that his claim was valid, he had not complied with the burden resting upon- him.
“The court doth further find that said pretended contract was a fraud and the result of.a conspiracy between the said Crampton and the said Wolf and that the said Wolf was not the owner of the fund at the time that the garnishment processes were served on the Grand Rapids Brass Company, and that the inter-pleaded defendant has failed to establish his claim by a preponderance of the evidence, and that his claim to said fund should be denied, and that the plaintiff should have judgment against the said Grand Rapids Brass Company for whatever amount she secures judgment against the principal defendant, Basil R. Crampton, which amount is ten hundred twenty dollars with costs of this suit to be taxed.”

The interpleaded defendant thereupon filed exceptions to the foregoing’findings. There was also entered a motion for a new trial, for the following reasons:

1. Because the court erred under the pleadings in permitting cross-examination of the interpleaded defendant tending to establish fraud.
2. Because there was no evidence in the case that at the time the agreement of March 4,1916, was made, the interpleaded defendant had any knowledge or notice that the plaintiff had a.cause of action against the principal defendant.
3. Because the decision of this court is against the clear weight of the evidence.

The motion was denied, and the interpleaded defendant duly excepted.

There was also a motion for judgment non obstante veredicto. As Act No. 217, Pub. Acts 1915 (3 Comp. Laws 1915, § 14568 et seq.), and Circuit Court Rule No. 44, made in pursuance thereof, are only applicable in actions tried before a jury, this last motion was ineffective, and no further notice will be taken of it.

Judgment having been entered upon the findings of the court, the interpleaded defendant has brought error, and the assignments of error raise the same questions as were presented in the motion for a new trial; and, also, that the court erred in refusing to grant the interpleaded defendant a new trial for the reasons therein stated.

The first question argued by appellant is that the court erred in permitting the interpleaded defendant, to be interrogated upon the subject of fraud or bad faith in his transactions with the principal defendant, claiming that it was an affirmative defense and that notice should have been given thereof, under Circuit Court Rule No. 23. We cannot agree with appellant’s counsel in this claim. Not only by stipulation, but under correct practice, the interpleaded defendant had the affirmative of the issue, and the rule referred to is wholly inapplicable in such a proceeding.

The next question discussed by counsel for appellant, and one on which he says the assignments of error all turn, is as to whether the plaintiff succeeded in breaking down the validity of the contract of March 4, 1916, between the interpleaded defendant and the principal defendant. And it is also claimed that the •finding of the court was against the clear weight of the evidence.

The case is somewhat peculiar in that it presents a situation where the trial court manifestly did not believe the testimony of the interpleaded defendant, who held the affirmative of the issue. He saw fit to submit the case upon his sole testimony, only corroborated, as he claimed, by certain written documents. These documents disclosed that when the agreement of March 4th was entered into, and signed by the principal defendant and the interpleaded defendant, there were present not only the principal defendant, but one of the counsel of the interpleaded defendant, and the wife of the interpleaded defendant who witnessed the contract, yet Wolf did not even call Basil R. Crampton as a witness, although he (Wolf) had testified that he had seen Crampton since he had been in Grand Rapids in attendance upon the trial, and his own counsel was present and taking a part in the trial, to say nothing about the wife of Wolf, and he saw fit to submit his case without the aid of testimony of any of those persons.

We have read this evidence with great care, and are unable to say that there was no evidence to support the findings of the circuit judge, and the inferences which he drew, and the conclusions which he reached upon that testimony. The evidence disclosed many peculiarities. The trial court had the advantage of seeing and hearing Wolf testify, and the case presents the question: “What shall be done in a case tried by the court where the findings show that the court, did not believe the testimony of the witness?” We shall not undertake to quote from the testimony. It is sufficient to say that the state of the record is such that we think the court was justified if it did not believe the testimony, in reaching the conclusion which it did. We have held that the credibility of testimony and its sufficiency to support a finding, are to be determined by the trial judge, when he hears a case without a jury. Edwards v. Nelson, 51 Mich. 121.

The finding has been likened to a special verdict. We have held that a jury may disbelieve the most positive evidence even when it stands uncontradicted; and the court cannot take from them their right of judgment. If they return what the court thinks is a perverse verdict, the court may set it aside, and order a new trial. Woodin v. Durfee, 46 Mich. 424.

Referring to the case last cited, ’Chief Justice Brooke, speaking for the court in Yonkus v. McKay, 186 Mich. 203 (Ann. Cas. 1917E, 458), said:

“The administration of justice does not require the establishment of a rule which compels the jury to accept as absolute verity every uncontradicted statement a witness may make.”

In Brand v. Johnrowe, 60 Mich. 210, referring to Woodin v. Durfee, supra, this court held that the testimony of a certain witness was for the judgment of the jury, as they had the right to disbelieve the positive evidence given by him, and find from circumstances outside of his testimony a different state of facts. See, also, Montague v. Dougan, 68 Mich. 98. As to the credibility to be given, the witness, the advantages of the circuit judge for arriving at a correct conclusion were superior to ours.

In Bateman v. Blaisdell, 83 Mich. 357, Chief Justice Champlin, speaking for this court, said:

“It is the province of the circuit judge, sitting as a trial court, to find all the facts which the testimony in the case tends to prove; and all inferences of facts which are, or may be drawn from the testimony, must be drawn by the trial court. This court can draw no inferences from the testimony contrary to the facts found by the court below” — citing Neumann v. Mining Co., 57 Mich. 97, and other cases.

The correct rule is well expressed in 38 Cyc. p. 1944:

“On a trial by the court without a jury, it is the province of the j'udge to determine the credibility of the witnesses, and the weight to be attached to their testimony, and the appellate court will not disturb or set aside the finding, unless it is apparent that the court misunderstood or disregarded material evidence introduced on the trial. The court is at liberty to discredit any witness or multitude of witnesses, and disregard any testimony which it deems unworthy of belief, although it is uncontradicted.”

See numerous cases cited in note.

In a case before the court without a j'ury, the court may do with the facts whatever a jury may do.

We quote further from 17 Cyc. pp. 809, 810:

“The following circumstances have been noticed as tending to impair the credibility of testimony to oral declarations or admissions: that the testimony is improbable in view of other facts in the case; that the alleged statement is inconsistent with proved facts in the case, absurd or demonstrably false; that the statement is not in harmony with the conduct of the witness or of the declarant; * * * that the witness is uncorroborated by any independent circumstance in the case; that there is no written corroboration under the party’s own hand in a case where written evidence of the fact would be expected; * * * that better and available evidence to- prove the fact admitted in the alleged statement is not produced; * * * and that other persons present when the alleged statement was made are not produced, nor their absence accounted for.”

The trial court saw this witness, listened to his testimony, saw his manner of testifying and how he could have corroborated his story if it had been true, and failed to believe him. Under the circumstances, we see no reason why we should disturb the finding.

It is urged by appellant that there was no evidence to support the finding of the decree in the Chicago court. In view of the stipulation of counsel, above set forth, such finding was immaterial and of no importance, and cannot be held to be reversible error.

It is finally claimed by counsel for the interpleaded defendant that the finding should be set aside because against the clear weight of the evidence. We think the question is fairly raised by appellant, so far as the practice is concerned, under section 15, chapter 18 of the judicature act (3 Comp. Laws 1915, § 12587) ; but the court having found that the' party upon whom the burden of proof rested had failed to sustain the burden of proof required, we do not think that it is a case where it can be said that the finding is against the clear weight of the evidence.

Under the case as presented, we are constrained to affirm the judgment of the court below.

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


text:
    SKINNER v. SKINNER.
    1. Divorce — Alimony—Modification of Decree — Jurisdiction— Property Settlement as Basis of Decree.
    Under section 11417, 3 Comp. Laws 1915, after a decree for alimony or otlier allowance for tlie wife and children has been made, the court may, from time to time, on petition of either of the parties, revise and alter such decree respecting the amount of such alimony or allowance and the payment thereof, and may make any decree respecting any of the said matters which such court might have made in the original suit; and it is immaterial that the-original decree was based upon a property settlement entered into by the parties.
    2. Same — Changed Financial Conditions — Modification of Decebe.
    Where the evidence shows that defendant’s financial condition has changed since the date of the original decree so that it is impossible for him to pay plaintiff $100 a month without depleting and in the end exhausting what little property he has left, the decree will be so modified in this court as to require the defendant to pay in a lump sum the back payments and in the future to pay $75 a month instead of $100.

    Appeal from Genesee; Collingwood, J., presiding.
    Submitted January 10, 1919.
    (Docket No. 21.)
    Decided April 3, 1919.
    Petition by Aurah W. Skinner against William D. Skinner for the enforcement of the terms of a decree of divorce respecting alimony. Defendant filed a cross-petition asking for a modification of said decree. From a decree denying the cross-petition, defendant appeals.
    Reversed, and decree entered.

      George W. Cook, for plaintiff.

      Farley & Selby, for defendant.

      See note In 44 L. R. A. (N. S.) 1026.

   Stone, J.

This case is here upon appeal by the defendant from an order of the court below, denying the petition of the defendant for a modification of a decree for the payment of alimony. On September 30, 1911, the plaintiff obtained a decree of absolute divorce from the defendant upon the ground of extreme cruelty. The parties never had any children. The record discloses that on August 10, 1911, a property settlement was entered into by the parties, in writing, which agreement was approved by the court, and the terms thereof were incorporated in the decree made and entered in the ease. By the terms of this agreement, as contained in the decree, the defendant agreed to pay the plaintiff the sum of $100 per month for and during her life, and it was provided that if .she should survive him, his estate would continue such payments, and the same were made a charge on his estate. In consideration of the agreement to pay the aforesaid sums of money, the plaintiff released her dower in all real estate owned by defendant, and also agreed to convey to defendant all real estate then possessed by her. The real estate then standing in her name and possessed by her, and which she conveyed in pursuance of the terms of said agreement and decree, consisted of three houses and lots in the fourth ward of the city of Flint which the defendant afterwards sold to the Chevrolet Motor Company, realizing therefrom, over and above a mortgage indebtedness of $500, the sum of about $3,000.

The defendant made the payments agreed upon to the plaintiff to, and including January 1, 1916, when he, without first obtaining consent of the court, reduced the payments to $50 per month. In 1913 the defendant remarried.

At the time of the property settlement it is claimed by the defendant, and we think supported by the evidence, that he was worth about $12,000. This included the three houses and lots in the fourth ward of the city of Flint, above referred to. They had been purchased by the defendant and paid for by him out of his own funds; but for some unexplained reason the title to the houses and lots stood in the name of the plaintiff. Defendant’s property also included $7,-000 to $8,000 which he had invested in the lumber business in the city of Flint which he afterwards was obliged to discontinue at a loss of about $2,000; and it is claimed by the defendant, and appears to be uncontradicted, that he subsequently suffered another loss of about $2,000 through, an investment he had previously made in a corporation known as the Wolcott Packing Company.

At the time of the conference leading up to this property settlement the defendant was drawing a salary of $2,200 per annum in the said lumber business. After the lumber business was discontinued, defendant was unable to go into other business that would pay a salary of that amount; and it is claimed by him that in order to pay the plaintiff the $100 per month provided by the decree, for the years preceding January 1, 1916, he sold the said three houses and lots, and used up most of the money in paying this alimony.

It is also the claim of the defendant, supported by his -testimony and uncontradicted by any direct evidence, that the only property he has left is his homestead, worth about $4,500; his household furniture, worth about $400 or $500, and from $1,200 to $1,500 invested in, tax titles. It further appeared at the hearing of his petition in this case that his annual income amounted to from $1,600 to $1,800 a year, derived from his salary as supervisor and assistant city assessor, his tax business, and the rental of rooms in his home. He is 49 years of age, and avers and testifies that he- is in bad health and that his physical troubles are such as will require an operation.» His present wife had, when he married her, between $500 and $600 invested in real estate. She sold this real estate and re-invested the proceeds in other real estate. It is the claim of the defendant that by means of investments his present wife now has an equity of $2,000 or $8,000 in a two-story building, with stores on the ground floor and living apartments above, on North Saginaw street in the city of Flint. It is his claim that this property was accumulated from investments from real estate that his present wife owned before she was married.

On the other hand, it is the claim of the plaintiff that the defendant has studiously attempted to place his property in the name of his second wife for the purpose of defrauding the plaintiff and depriving her of her alimony. There is testimony pro and con upon the subject, but there is no direct testimony to support the claim of the plaintiff upon this subject.

In July, .1918, the plaintiff filed a petition setting up many of the foregoing facts, and prayed the court for an order to be directed to said defendant commanding him to show cause why he should not be punished for contempt of court in failing to obey the decree of the court; which order was duly made.

Defendant filed an answer, and a counter-petition alleging changed conditions; that he had met with financial reverses, and that because thereof, and because of poor health, he should be relieved from such payments, and prayed the court to revise said decree and determiné what amount, if any, was due from him to the plaintiff. Plaintiff filed an answer to the counter-petition denying the allegations therein contained. Upon the hearing the contempt proceedings were not pressed, and the court dismissed the counter-petition and held that the defendant should pay plaintiff the amount then due, and ratified and affirmed the decree entered therein.

From the opinion of the court, which is a part of the record, it is stated that if the court were taking up the question de novo, it would not feel that it should grant $100 a month for the period of the plaintiff’s life, but expressed some doubt as to its having authority to modify or change the decree because of the agreement of the parties incorporated in it.

The statute (8 Comp. Laws 1915, § 11417), provides that after a decree for alimony or other allowance for the wife and children, or either of them, the court may, from time to time, on the petition of either of the parties, revise and alter such decree, respecting the amount of such alimony or allowance and the payment thereof, and may make any decree respecting any of the said matters which such court might have made in the original suit. Jurisdiction of the court to revise such decree is affirmed in Camp v. Camp, 158 Mich. 221, and in Aldrich v. Aldrich, 166 Mich. 248, in each of which cases an agreement of the parties with respect to alimony was approved by the court and embraced in the decree. See, also, Meyers v. Meyers, 161 Mich. 487; Kelly v. Kelly, 194 Mich. 94; Gittings v. Gittings, 197 Mich. 446. We lay no stress upon the fact that the decree in this case was based upon the property settlement entered into by the parties, and embraced in the decree. In Camp v. Camp, supra, this court, speaking through Justice Grant, said:

“The statute authorizes courts of chancery to at any time, on the petition of either party, revise and alter the decree as to alimony or allowance for the support of minor children. The learned circuit judge held that the only remedy for the defendant was by direct proceeding to set aside the contract of settlement. In this, we think he was in error. It is immaterial whether the decree for alimony and the support of children is incorporated in the decree by the consent of the parties, or by a determination of the court. When once incorporated in the decree, the court obtains jurisdiction to revise it at any time thereafter. The sole question, therefore, is whether the defendant by his petition and evidence has made a case entitling him to any modification.”

See, also, similar language of Justice Ostrander in Kelly v. Kelly, supra.

So we are brought to the meritorious question: Has the defendant’s financial condition changed since the date of the decree to such an extent as to justify us in modifying the decree. We have read the evidence with a good deal of care, and it seems to us that the changed financial condition of the defendant is such as to render it impossible for him to pay the plaintiff $100' a month without depleting and, in the end, entirely exhausting what little property he has left. We are satisfied that his annual income is much smaller than it was when the agreement and decree were made. With due regard to the equities in the case, it seems to us that the monthly payments in the future should be reduced to $75. He has since January 1, 1916, paid but $50 a month.

The order of the court will be reversed, and the decree below will be so modified here as to require the defendant to pay, at once, the remaining $25 a month from January 1, 1916, to the present time in a lump sum, and to continue to pay $75 a month instead of $100, in accordance with the terms of the decree. No costs will be awarded to either party.

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