text:
    WILSON v. PHŒNIX FURNITURE CO.
    Master and Servant — Workmen’s Compensation Act — Personal Injuries — Finding of Industrial Accident Board.
    On certiorari to review an award by tbe industrial accident board, under tbe workmen’s compensation act, where there was competent testimony upon which to base the finding of the board that a fall which plaintiff suffered and which caused his injury, was caused by tripping on a nail protruding from the floor, the award of the board will not be disturbed.
    Certiorari to Industrial Accident Board.
    Submitted April 5, 1918.
    (Docket No. 41.)
    Decided June 3, 1918.
    See notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.

      James T. Wilson presented his claim for compensation against the Phoenix Furniture Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Furniture Mutual Insurance Company, insurer, bring certiorari.
    Affirmed.

      Francis D. Campan, for appellants.

      J. T. Preston, for appellee.
    Plaintiff, an employee of defendant furniture company, describes the accident as follows:
    _ “When I got hurt I was running one of them small single-head, I was standing up working this way (indicating), and there was kind of a rack or table behind me where I got stock. I shaped a piece, turned around, laid it down. I picked up another piece, I remember I got about that far around (indicating 45 degrees). I don’t remember any farther until those two men had me on my feet.”
    He struck his head in the fall causing a scalp wound and fractured two ribs. He was at the time nearly 71 years old and had worked off and on for the furniture company many years. Prior to the accident he had slight attacks of dizziness or weak spells, but claims never to have fallen in any of them and says they were nothing to speak of. Employees of defendant called by it testify that they had never seen him fall before or any indications of fainting spells; there was testimony that there were nails protruding from the floor where plaintiff worked and on two occasions before this, he testifies, he had tripped on them. He says:
    “I can’t account for falling unless that there was several nails where the heads was up and I had tripped a couple of times on them.

      “Q. Where were the nails?

      “A. In the floor.

      “Q. Where you were standing?

      “A. Right in front of the machine, like that (indicating). When I turned around like that probably might have caught my foot and throwed me, and that’s the only way I can account for the fall.”
    The industrial accident board found that the nails in the floor caused the accident, that this was more likely to cause his fall than the sudden coming on of a dizzy spell, and awarded compensation. The defendant brings the case here and insists that upon the whole record the cause of the accident is too conjectural to warrant and support the finding.
   Fellows, J.

(after stating the facts). In Ayr Steam Shipping Co. v. Lendrum, 6 B. W. C. C. 326, Lord Dundas said:

“I think one may deduce from the decisions (1) that the burden is always upon the applicant to prove that death resulted from an accident arising out of as well as in the course of the employment; (2) that such proof need not be by direct but may be by circumstantial evidence, but there must be facts from which an inference can be drawn, as distinguished from mere conjecture, surmise, or probability; and (3) that an award by an arbiter cannot stand unless the facts found are such as to entitle him reasonably to infer his conclusion from them.”

This language was quoted with approval by this court in Hills v. Blair, 182 Mich. 20. It was said by Lord Loreburn in S. S. “Swansea Vale” v. Rice, 4 B. W. C. C. 298, a case determined by the House of Lords:

“Now, my Lords, the question here being whether there is any evidence that justifies the County Court Judge in arriving at the conclusion which he did, I must point out that the difference between what is evidence of a fact and what is merely guessing at the fact is one that cannot be defined in any formula that one can invent. What you want is to weigh the probabilities, to see if there be proved facts sufficient to enable you to have some foothold or ground for comparing and balancing the probabilities, and their respective values, one against the other.”

And it has been frequently held by this court that it was within the province of the board to draw the legitimate inferences from the facts, proven and the circumstances established.

In the case of Van Gorder v. Motorcar Co., 195 Mich. 588, we.had before us the case of a workman predisposed to epilepsy, falling in an epileptic fit from a scaffold, causing his death. We theré held that the accident did not arise out of deceased’s, employment, but was due solely to the epileptic fit and denied compensation. But in that case the board found as a fact, and there was evidence and circumstances to support it, that the fall which deceased suffered was caused by the epileptic fit. Here the board has found, and the circumstances permit the inference, that the fall which plaintiff suffered was caused by tripping on a nail protruding from the floor. While plaintiff testifies that at times he had been dizzy and weak, he also testifies that it was nothing to speak of, but slight, and never sufficient to cause him to lose his balance and fall. His fellow workmen and superiors, in the plant who saw him daily never noticed any appearance of dizziness or fainting, and never saw him fall before. The fact that he did not recall just how the accident happened is in no way extraordinary when we contemplate that in the fall he struck his head with sufficient force to inflict a gash in his scalp. He was over 70 years of age — not as nimble as in his younger years — and had had trouble with his limbs and feet a short time before. We are not persuaded that we should say, as matter of law, that the cause of the accident under the evidence in the case is so conjectural as to require us to set aside the finding and award of the board. See Grove v. Paper Co., 184 Mich. 449; Papinaw v. Railway Co., 189 Mich. 441; Kinney v. Motor Car Co., 199 Mich. 435; Meyers v. Railroad Co., 199 Mich. 134; Holnagle v. Fuel & Gas Co., 200 Mich. 132; Wishcaless v. Hammond, Standish & Co., ante, 192; S. S. “Swansea Vale” v. Rice, supra; Fennah v. Railway, 4 B. W. C. C. 440; Carroll v. Stables Co., 38 R. I. 421.

The award will be affirmed.

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


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    MILLER v. JOHNSON.
    Appeal and Error — Jurisdiction—Dismissal.
    The Supreme Court will, of its own motion, dismiss a writ of error not obtained pursuant to the provisions of Act No. 172, Pub. Acts 1917, and Supreme Court Rule No. 59, where the amount of the judgment does not exceed in amount $500, although the judgment was rendered before the act took effect. J. F. Hwrtz Co. v. LulcaszcewsM, 200 Mich. 230.
    Error to Kent; Collingwood, J., presiding.
    Submitted April 2, 1918.
    (Docket No. 13.)
    Decided June 3, 1918..
    Case by William Miller against Aben E. Johnson, doing business as the Western Michigan Oakland Company, and others for the conversion of an automobile. Judgment for plaintiff. Defendants bring error.
    Dismissed.

      Colgrove & Potter, for appellants.

      Corie C. Coburn and Irving H. Smith, for appellee.
   Per Curiam.

May 23, 1917, judgment for $350 in favor of the plaintiff was entered in the Kent circuit court. October 5, 1917, defendants obtained a writ of error from this court without having applied therefor pursuant to Act No. 172, Pub. Acts 1917, and without taking any steps under that act, or under Rule No. 59 of this court (199 Mich.). In J. F. Hartz Co. v. Lukaszcewski, 200 Mich. 230, we held that this statute was applicable to a case in which the judgment was rendered before the act took effect, and that this court should, of its own motion, dismiss a writ of error not obtained pursuant to its provisions where the judgment did not exceed the statutory amount. The authorities were there considered and discussed. It follows that on the authority of that case' this writ of error must be dismissed. No costs will be allowed.


author: Fellows, J.

text:
    SEILNACHT v. WAYNE PROBATE JUDGE.
    Executors and Administrators — Claims Against Estates — Revival of Commission on Claims.
    Under section 13870, 3 Comp. Laws 1915, creditors are preserved tlie right to present their claims against estates of decedents “at any time before the estate is closed,” but after the estate is once closed, that right is at an end and is not revived by the discovery of additional assets for administration, and the appointment of an administrator de bonis non.

    Certiorari to Wayne; Webster, J.
    Submitted April 9, 1918.
    (Calendar No. 28,295.)
    Decided June 3, 1918.

      Mandamus by Frieda Seilnacht and another to compel Edgar 0, Durfee, probate judge of Wayne county, to revive the commission on claims of the estate of Therese Mueller, deceased. From an order granting the writ, defendant brings certiorari.
    Reversed, and writ dismissed.

      William E. Heinze, for appellant.

      Bishop & Kilpatrick, for appellees.
    August 2, 1913, a petition for the appointment of an administrator of the estate of Therese Mueller was filed in the probate court for Wayne county. Pursuant to the prayer of such petition Emil W. Snyder was duly appointed, and on September 10, 1913, commissioners on claims in said estate were appointed. They filed their report February 9, 1914. On April 2d, following, the administrator filed his final account and on May 5th, by an order of the probate court, it was allowed, the administrator was discharged, “his bond canceled and said estate closed.” Plaintiffs presented no claim before said commissioners. No question of the regularity of these proceedings is raised. On February 24, 1915, a petition for that purpose having theretofore been filed, Mr. Snyder was appointed administrator de bonis non for the purpose of administrating further assets of the estate which had lately been discovered. Thereafter plaintiffs filed a petition for the revival of the commission on claims to enable them to present a claim against the estate. Their petition was denied by the probate judge. A writ of mandamus was issued by the Wayne circuit court directing the defendant to revive the commission on claims of said estate. To review this order of the circuit court this writ of certiorari was allowed.
   Fellows, J.

(after stating the facts). The learned probate judge denied the petition to revive the commission on claims solely on the ground that he had no discretion in the matter. The correctness of his decision is the only question submitted on this record. The statute in question, section 13870, 3 Comp. Laws 1915, provides :

“On the application of a creditor who has failed to present his claim, if made at any time before the estate is closed, the judge of probate may revive the commission and allow further time not exceeding one month, for such creditor to present his claim to the commissioners. When such claim shall have been presented to the commissioners, they shall personally notify the executor or administrator, and the creditor, or their attorneys, of the time and place of hearing such claim, and as soon as practicable they shall examine and pass upon said claim and make return of their doings to the probate court, within thirty days of the hearing thereof: Provided. That all costs and charges resulting from said application, and the proceedings thereon had in the probate court and before such commissioners shall be paid by the party making' the application or by the estate, or in part by the applicant and part by the estate, as the probate court, upon application and notice to the administrator or executor, and the party making the application, shall direct.”

We are not impressed that the language of this statute is ambiguous. By its terms creditors are preserved the right to present their claims “at any time before the estate is closed.” When the estate is once closed that right is at an end.- The proceedings are purely statutory. Before the estate is closed the right given by this statute is an absolute right, does not depend upon the discretion of the probate judge, and the commission on claims may be revived ex parte, and without notice. Hart v. Shiawassee Circuit Judge, 56 Mich. 592; Heavenrich v. Nichols’ Estate, 113 Mich. 508; Bresler v. Wayne Probate Judge, 152 Mich. 167. But by the terms of the statute when the estate is closed the right is at an end and the claims of creditors are barred. Showers v. Robinson, 43 Mich. 502, 508; Ogooshevitz v. Arnold, 197 Mich. 203. There is no provision in the statute which revives this right, once barred by the statute, upon the discovery of additional assets for administration and the appointment of an administrator de bonis non. In Showers v. Robinson, supra, this court said:

“All claims against the estate are barred which are not presented and proved before the administrator is discharged.”

In Ogooshevitz v. Arnold, supra, we said:

“There is a way provided in the statute for foreclosing claims against estates of decedents, viz.: Appointment of commissioners, or a hearing of claims by the probate judge, and closing the estate.”

The probate judge gave effect to the clear provisions of the statute and the holdings of this court. Title to property administered in probate courts should be stable. The statute has wisely provided ample time for the presentation of claims against estates and has also wisely provided a time at which they shall be barred. That time had been reached in this estate. The learned probate judge correctly held that he was without discretion in the matter.

It follows that the order of the circuit court must be reversed and the petition for mandamus dismissed. Defendant will recover costs of both courts.

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


author: Stone, J.

text:
    VAN SIMAEYS v. GEORGE R. COOK CO.
    1. Master and Servant — Independent Contractor — Control of Servant — Right to Interfere.
    The test of the relationship of master and servant is the right to control; it is not the fact of actual interference with the control, hut the right to interference, that makes the difference between an independent contractor and a servant or agent.
    2. Same — Workmen’s Compensation Act — Personal Injuries— Liability of Employer.
    Where claimant was accidentally injured while hauling dirt for defendant, claimant using his own team and wagon and being paid by the load, but defendant retained actual supervision and control of the work, the relationship of master and servant existed, rendering defendant liable under the workmen’s compensation act.
    See notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.
    Certiorari to Industrial Accident Board.
    Submitted April 3, 1918.
    (Docket No. 26.)
    Decided June 3, 1918.
    Albert Van Simaeys presented his claim for compensation against the George R. Cook Company for injuries sustained in defendant’s employ. From an order awarding compensation, defendant and the Prudential Casualty Company, insurer, bring certiorari.
    Affirmed.

      Frederick J. Ward, for appellants.

      Guy W. Moore and Hal P. Wilson, for appellee.
   Stone, J.

This case is before us upon certiorari to the industrial accident board, which board allowed the claim of the applicant. The applicant had been working for the respondent George R. Cook Company, with his team of horses, doing general teaming work for about five months before his injury, and had been paid by the day. A few days prior to his injury, however, a new arrangement was made between the applicant and said respondent whereby the applicant, together with a number of other employees, agreed to haul a quantity of dirt to make a certain fill, at the rate of 65 cents, then later 75 cents per load. While so engaged applicant received injuries, which he claims arose out of and. in the course of his employment, resulting in permanent disability. The respondent, as an employer of labor, was operating under the workmen’s compensation act, and was insured by the Prudential Casualty Company. The applicant, if an employee, which is the sole question in the case, was also operating thereunder. The respondents claim that the applicant was an independent contractor. The applicant relies upon the case of Tuttle v. Lumber Co., 192 Mich. 385, as justifying the finding of the board.

The contract was oral, and its terms were testified to by the applicant and another witness. We will briefly refer to the testimony to ascertain whether or not an inference of control of manner of the work of applicant by the respondent George R. Cook Company may be gathered, which, as matter of fact, warranted the finding. The injury occurred on October 17, 1916. The applicant testified before the arbitration committee, in part, as follows:

“Q. Who were you working for?
“A. For Cook. George R. Cook.
“Q. That is the respondent in this case — George R. Cook Company?
“A. Paying is done always by Jim Cook, by his Vivn'HiPT* »
“Q. Who hired you?
“A. The foreman.
“Q. Who is the foreman?
“A. John Reaum.
“Q. Who was he foreman for?
“A. For the company, Cook, for George and Jim Cook. * * * He has got 2,000 loads .of dirt to fill in there and we get 65 cents a load. That was on the start. Then I had that only seven days. Then raise the price to 75. * * *
“Q. Who told you where to get this dirt?
“A. The man on the street.
“Q. Who told you where to get that dirt — did anybody?
“A. There was Jim, the contractor; we got orders from him to do it; we could not do it our own way.
“Chairmcm Reaves: He asked you who told you to go and get that dirt.
“Q. Who told you? What is the name of the man that told you to go and get that dirt?
“A. Jim Cook.
“Q. Who is, Jim Cook?
C'A. That is brother from George Cook.
“Q. Who told you where to take this dirt?
“A. Jim Cook, of course I don’t know—
“Q. Now, I don’t want you to say anything — you are not supposed to do anything but answer my questions. We will find out what you don’t know later on. Who loaded this dirt into your wagon?
“A. I am loading the dirt.
“Q. You loaded it in. Who unloaded it?
“A. I unload; of course.
“Q. What work were you doing before you started hauling this dirt?
“A. Scraping. * * *
“Q. Everybody had to haul the dirt away?
“A. Yes.
“Q- What time did you go to work in the morning?
“A. Seven o’clock.
“Q- Who told you to come to work there at 7 o’clock?
“A. That was our orders. That is orders when we start at seven o’clock, to quarter of five at night.
“Q. Who told you that was your hours?
**A.* Tlx© forGinpii
“Q- On the 17th of October, 1916, just tell them what happened, how you got hurt?
“A. Well, I was loading, and the dirt was kind of hard, and I was loading and I jumped on the wagon and turned the horses around and my front wheel must have fell in a hole, and my horses got scared and began to kick, and I was turned around to go on that place where the dirt was loose, and the horses kick and start to run, and I fall between the pole and the two horses.
“Q. What happened to you ?
“A. I got my leg broken right here (indicating). * * *
“Q. On that job what did you furnish yourself besides yourself?
“A. He hires me and my team, that is all.
“Q. He hires you and the team? •
“A. My team and the wagon, too.
“Q. That was your wagon, too?
“A. My wagon and my horses.”

On cross-examination he testified:

“Q. You went there when you wanted to, didn’t you?
“A. No.
“Q. Sometimes you had nine or ten loads a day?
“A. I usually had twelve loads a day.
“Q. Did you sometimes have nine or ten?
“A. I don’t think I had. * * *
“Q. When you had your wagon full all that was necessary for you to do was to drive away?
“A. No. I got to see that the foreman see the load.
“Q. The foremán checked off your load?
“A. Yes.
“Q. They didn’t care how many loads you took?
“A. Well, no; no, sir.
“Q. You could come on there at any time you wanted to, couldn’t you?
“A. No, sir; had to start at 7, finish at 5. * * *
“Q. When you got your wagon loaded you drew out and the foreman took a check on your load?
“A. Yes, sir.
“Q. When you got unloaded you could go home if you wanted to, couldn’t you?
“A. No; at five o’clock. Got to be there at 7 o’clock in the morning.”

Re-direct examination:

“Q. Who told you when to begin those dirt hauling jobs, and when to quit?
“A. The foreman.
“Q. That is whose foreman?
“A. Mr. Reaum, John Reaum.
“Q. John Reaum?
Yes. Same foreman.”

Re-cross examination:

“Q. Every time you drew a load there you got a coupon?
“A. Yes. * * *
“Q. At this time you were working according to loads ?
“A. Yes, that is the last where I got the accident.
“By Chairman Reaves: Q. Who told you where to unload this dirt?
“A. The foreman.
“Q. Did the foreman tell you?
“A. Yes.
“Q. What did he- say to you this particular day, you got hurt?
“A. The foreman gave us orders to draw the dirt there.
“Q. Did he tell you where to go and get the dirt?
“A. Right in the street. They make a new pavement. They make a new grading and the dirt was hauled from the grading.
“Q. The George R. Cook Company are paving contractors. Is that right?
“A. Yes.
“Q. You were simply taking the dirt off the street and unloading it some place else?
“A. Yes.
“Q. Did the foreman tell you where to unload this dirt?
“A. Yes, he has got two thousand loads.
“Q. What did he tell you to do? Where did he tell you to take it?
“A. To fill it up there, to that place there. I don’t know the name of the street.
“Q. Did he go and show you?
“A. Yes.”

Peter Reno, a fellow workman, testified:

“Q. There were eight or nine teams there hauling dirt?
“A. Yes.
“Q. Was Mr. Reaum there, or wasn’t he?
“A. Yes, he was there.
“Q. What time did he get there in the morning?
“A. He was always there before the teams got there. He got there practically before seven o’clock.
“Q. How long did he stay there?
“A. Until quitting time, five o’clock.
' “Q. Who directed you men hauling, where to haul from, where to haul to, and had charge of the work?
“A. There was a lot there they had dug out.
“Q. I don’t think you understand the question. Who?
“A. I don’t know the man’s name. I was trying to tell you about where he is. He got directed from our boss, and the boss told us where to put the dirt.
“Q. Wait a minute. Your boss. That is what I am trying to get at.
“A. Yes.
“Q. Who was that boss?
“A. Mr. Reaum. * * *
“Q. Outside of telling you just where to get the dirt, and where to dump, it, you used your own judgment?
“A. About getting it, yes.
“Q. Getting it and how you would get it. All that you were required to do, by him, was to get it at a certain place?
“A. Well, we couldn’t go to work and dig no holes. Had to take it off the grade stakes.
“Q. You had to take it off the grade stakes. But he did not tell you that you had to drive this way, or that you had to drive that way?
“A. No.
“Q. You used your own judgment in everything except where to put the dirt?
“A. Exactly.
__ “By Chairman Reaves: Q. Did he have the right to hire and discharge you?
“A. The boss did, certainly.
“Q. I will ask the same question of this other man (applicant). This foreman of that job, had he the right to discharge you at any time?
“Applicant: Yes. He has got the right to discharge me if I don’t do right.”

This is a part only of Reno’s testimony.

We have made these extended excerpts from the testimony, to demonstrate that the work was done under the immediate control and supervision of the respondent George R. Cook Company.

In the Tuttle Case, supra, we said:

“We are of the opinion that the test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interference, that makes the difference between an independent contractor and a servant or agent.”

The instant case is a stronger case for the applicant than was the Tuttle Case, for here, there was actual supervision and control.on the part of said respondent. The hours of labor, the inspection of each load, to see that it was a full load, the directions where to get the dirt and where to deposit it, and the right to discharge the applicant, all show that there was immediate control, direction, and supervision, as to the detail of the work.

The instant case is clearly distinguished from Gall v. Journal Co., 191 Mich. 405; Perham v. Roofing Co., 193 Mich. 221; Carleton v. Machine Products Co., 199 Mich. 148; Holbrook v. Hotel Co., 200 Mich. 597, and like cases.

In our opinion the order of the industrial accident board was fully justified by the evidence, and the same is affirmed.

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


text:
    PEOPLE v. WARNER.
    1. Criminal Law — Information—Assault—Joinder of Counts— Election of Count.
    A count charging the offense of assault with intent to do great bodily harm less than the crime of murder may be joined with one charging assault with a dangerous weapon, but without intending to inflict great bodily harm less than the crime of murder, and election between the counts could not be required on the ground that distinct offenses were charged, where they were committed by the same acts, at the same time, and the same testimony must be relied on for conviction.
    2. Same — Trial—Instructions—Warning.
    In a prosecution for assault with intent to do great bodily harm less than the crime of murder, where the evidence showed that defendant deliberately shot in the leg one of a party who were trespassing within the curtilage engaged in a charivari on defendant and his wife, who had been recently married, and the defense was that defendant feared forcible entry into the house and personal violence to himself and wife, held, that the charge of the court, taken as a whole, properly submitted to the jury the questions as to the trespass and threatened assault, and defendant’s duty to give warning and time enough to disperse, before firing designedly.
    3. Same — Venue—Evidence.
    In criminal trials the venue must be proved by competent evidence, beyond reasonable doubt, and a conviction cannot be sustained where the record fails to locate the place of the crime within the jurisdiction of the court.
    4. Same — Judicial Notice.
    The court will not take judicial notice of the existence or locatior of a place named which is not the name of an incorporated village or township or any other sort of municipality in the county where the trial was had, for the purpose of establishing a venue.
    Exceptions before judgment from Menominee; Flannigan, J.
    Submitted April 12, 1918.
    (Docket No. 126.)
    Decided June 3, 1918.

      ■ Harvey Warner was convicted of an assault with, intent to do great bodily harm less than the crime of murder.
    Reversed.

      Doyle & Bar stow, for appellant.

      Fred H. Haggerson, Prosecuting Attorney, and John J. O’Hara, Assistant Prosecuting Attorney, for the people.
   Stone, J.

This case is in this court upon exceptions before sentence. The defendant was convicted of an assault upon one Raleigh Deacon, with intent to do great bodily harm to the said Raleigh Deacon, less than the crime of murder. The information contained two counts. The first count charged the offense above stated, and alleged that it was committed on September 8, 1916, at the township of Mellen, county of Menominee. The second count charged the defendant with having, on September 3, 1916, assaulted the said Raleigh Deacon with a dangerous weapon, to wit, a gun, but without intending to commit the crime of murder, and without intending to inflict great bodily harm, less than the crime of murder. Upon arraignment the defendant pleaded not guilty.

Before proceeding with the trial, counsel for defendant moved the court that the prosecutor be required to elect which count of the information he would proceed under. The motion was denied, and the prosecutor was permitted to “go forward under both counts.” Upon the trial it appeared that on Wednesday evening, August 30, 1916, the defendant was married at the home of his bride’s parents at “Ingalls, Michigan.” Upon that evening between 8 and 15 boys and young men congregated near the house where the ceremQny was to be performed, and within the hearing of the young couple uttered vulgar language, the exact words of which do not appear in the record.

On September 8d, the Sunday evening following, between 7 and 8 o’clock, a number of young men and women of the neighborhood congregated at the same house where the defendant and his wife were staying and there made loud and offensive noises, shouting and shaking tin cans, and conducting what is commonly known as a charivari party. The defendant and his wife, being religious people, objected to such a disturbance on Sunday evening. They seem to have viewed the conduct of these young people as a slur upon the sanctity of the marriage ceremony, and in addition to this the defendant’s wife was a frail, delicate and sensitive young woman, and the conduct of this charivari excited in her great nervousness and fear that what, as she knew had happened in a former charivari in the same community, might again happen at the hands of the then present assembly.

It appeared in evidence that some time before, a charivari party in that neighborhood had put a ladder up to the window of a room then occupied by a recently married couple, and had taken them from the house, clad in their night clothes, and afterwards put a kimono on the bride and dressed her up in rags. Defendant and his wife had been told of these facts before their marriage. As the population of the settlement was small the defendant and his wife assumed that the charivari crowd on the night in question were the same parties who had conducted the former charivari, and would inflict upon them the indignities practiced before. On the night in question, the charivari, on the defendant and his wife, was conducted by about 20 people. The noise was so loud that it was heard a quarter of a mile away. There was evidence that after the noise had continued for some 20 minutes members of the charivari party began to advance toward the house, which was situated about 40 feet from the fence and gate in front of the house, upon the highway. The defendant claimed that he could not make his voice heard on account of the noise, and in order to give what he deemed an effective warning he fired from the upstairs window (he and his wife being in the upper room of the house), two shots in the air from his gun by way of warning. It was in evidence that the crowd paid no heed to this warning. A few minutes thereafter, the defendant, who. without question was an exceptionally good shot, took thoughtful and deliberate aim with his 22 calibre rifle and fired at a point between the ankle and the knee of the farthest advanced member of the party, who was then within 16 or 18 feet of the house, and within the curtilage; the result being that the said Deacon received a flesh wound in the calf of his leg from the bullet so fired. The court charged the jury in part as follows:

“Now, assuming that these people in the highway or in the yard conducting a charivari — if they came inside the gate and were in .the yard, unless the defendant believed they were ¿bout to enter the house, force an entrance into the house, he had no right to shoot the rifle at any person in the party.
“The charivari in the roadway, or the charivari conducted in the yard, if no assault was made on the house, amounted to a mere trespass, and the defendant would not have a right to use the gun to prevent a continuance of the trespass until he had warned these people to leave. Now, gentlemen of the jury, did they receive any such warning? That will be a question-of fact for you to determine from the evidence in the case. No person is entitled to use a deadly weapon in preventing a trespass which is not of a most serious and aggravated nature, without warning the other party to desist.
“So much for the question of trespass, simply th,e trespass upon the property.
“With regard to the claim of the defendant that he feared a forcible entry into the house and an assault upon either himself or his wife, or both of them. He is to be judged by the circumstances and surroundings as they appeared to him there at that time; and you are to take into consideration the excitement and turmoil and the whole situation. If he believed honestly, in good faith and on reasonable ground, that the charivari party, or members of the party, or any one of that party, intended to forcibly enter the house and therein make an assault upon his wife, he had a right to take such means as to him under the circumstances appeared reasonably necessary to prevent the act. So, you see, gentlemen, that in determining whether or not the respondent fired the shot in the lawful'exercise of his right of self-defense in behalf of .himself or his wife, or both of them, you must settle that from the evidence — the question, first, did' he in good faith and upon reasonable grounds believe that the party or some of the party were about to forcibly enter the house, and having entered the house, to make an assault upon him or his wife, or both.
“Did he in good faith believe that? If he did in good faith believe that, the next question for you to take up and determine from the evidence in this case will be this, whether or not, under all the circumstances and surroundings as they appeared to him on that occasion, the means which he used to prevent what he feared was reasonable. If so, then, gentlemen of the jury, your verdict here must be not guilty.
“But if he feared the entry and assault upon himself or his wife, and if you find that the means which he used, under all the circumstances and surroundings, in view of the danger to himself, or indignity to himself or his wife, which was reasonably to be apprehended from the threatened or expected assault; if you find that the means which he used to prevent what he feared were unreasonable and excessive, then he would be guilty of an assault with a dangerous weapon. That the weapon used was dangerous is conceded in the case.”

The trial resulted in a verdict of guilty under the first count of the information'. There was a motion for a new trial based upon the following reasons:

(1). Because of error in denying defendant’s motion that the prosecuting attorney be required to elect. on which count of the information the trial should proceed.

(2) Because the defendant was required, notwithstanding his objection, to submit to trial for more than one offense.

The trial judge denied the motion for a new trial, filing his written reasons, which were duly excepted to by defendant’s counsel. In giving his reasons for such denial, the judge said:

“The joinder in one information, in separate counts, of two or more offenses, which, though distinct in point of law, yet spring out of the same transaction, and are covered by the same testimony, cannot operate to the legal prejudice of the accused, and is permissible, and when distinct offenses are so committed and so charged, the people are not obliged to elect. People v. Sweeney, 55 Mich. 586; People v. McDowell, 63 Mich. 229; Van Sickle v. People, 29 Mich. 61; People v. Sessions, 58 Mich. 594, 597; People v. Summers, 115 Mich. 537, 543. See, also, People v. Prague, 72 Mich. 178; People v. Durham, 170 Mich. 598, 604.
“But, if the counts were improperly joined, or if the prosecutor should have been compelled to elect, the verdict should not be set aside. Clearly, the submission of the question of the respondent’s guilt of either of the offenses charged did not operate to his prejudice. The jury convicted him of the major offense charged. There can be no question of a compromise in the jury room. It is only where the major offense was improperly submitted and there is a conviction of the lesser offense properly submitted, that prejudice could result through- compromise.”

The questions presented by the exceptions and discussed by counsel are the following:

(1) Should the defendant’s motion, made upon the opening of the trial, that the prosecuting attorney be required to elect the count of the information upon which the trial would proceed, have been granted?

(2) Did the court err in instructing the jury that the defendant was obliged to first warn or order away the people of the charivari, before he could, in defense of himself and wife, be excused for firing the final shot at the parties?

(3) Was the evidence sufficient to sustain the verdict?

(4) Did the court below have jurisdiction on the evidence produced, as to the venue?

1. The second count of the information is based upon Act No. 241, Pub. Acts 1915 (3 Comp. Laws 1915, § 15228), which amended a similar act of 1913. It was undoubtedly the intent of the legislature to here create what may be termed an intermediate offense between assault with intent to do great bodily harm, less than the crime of murder, and simple assault and battery. We are of the opinion that the circuit judge did not err in his ruling upon this subject.

As was stated in People v. Sweeney, supra:

“Election between counts cannot be required on the ground that distinct offenses are charged, where they are committed by the same acts, at the same time, and the same testimony must be relied on for conviction.”

This has been the rule in this State for many years, and in our opinion the cases cited by the learned circuit judge, in his denial of the motion for a new trial, are applicable here.

2. Was there error in the charge of the court in the particular complained of? We have read the entire charge with care, and it should be stated that the following language also appears therein:

“Now, gentlemen, coming back again to the question of warning; the respondent testified that he gave warning by firing two shots. It will be for you to say whether or not he honestly and fairly believed that those two shots amounted to a warning to these people. If he in good faith believed that he had already warned them, and had given them time enough after the warning to disperse before firing designedly, then, insofar as the warning is concerned, he gave them the warning."

Taking,the entire charge together, we cannot say that any error was committed in the manner in which the case was submitted to the jury. Both phases of the case, that of a trespass and that of a threatened assault upon the defendant and his wife, were considered in the language used, and we find nothing to indicate that the jury failed to comprehend the same.

3. Was there evidence sufficient to sustain the verdict? We shall discuss this question in connection with the fourth point: Did the court below have jurisdiction on the evidence produced as to venue? This court does not generally disturb the rule that it will not examine the weight of the evidence in a criminal case, where there is positive evidence tending to establish the guilt of the defendant, especially where the question is not raised in the motion for a new trial. An examination of this record discloses that it is entirely barren of any evidence that a crime had been committed in Menominee county; the county where the trial was had; and it is. in that connection that we consider the third point as to whether the evidence was sufficient to sustain the verdict. We do this because there is no distinct exception upon the subject of venue, nor was the question raised in the trial court; but it is a jurisdictional question, — a question which is essential to the jurisdiction of the court — in order that the trial may be a bar to a further prosecution in another jurisdiction.

It is said by counsel for the people that it cannot be seriously contended that the venue was not proven beyond a reasonable doubt. We cannot agree with this statement. It is true that one or two of the witnesses stated their residence as Ingalls, Michigan. But whether Ingalls is in the county of Menominee of not, does not appear. It is also stated by the prosecuting attorney that the court stated in the charge that the crime' was committed in the township of Mellen, Menominee county, Michigan. In this the prosecutor is mistaken. It is true the court called attention to the information, and stated that the offense was charged to have been committed in the township of Mellen, Menominee county. In our opinion this question is controlled by the case of People v. Ayres, 182 Mich. 241, 246. In that case Justice Steere, speaking for this court, said:

“It is also urged as a ground of reversal that no venue was proven. The rule is elementary that in criminal trials the venue must be proved by competent evidence beyond a reasonable doubt, and where the record fails to locate the place of the crime within the jurisdiction of the court, whether through inadvertence or otherwise, the judgment must be reversed. While in this State, under section 11919, 3 Comp. Laws (3 Comp. Laws 1915, § 15746), an information is not to be held defective for want of proper venue, and time and place need not be proven exactly as alleged, a venue must nevertheless be proven in all cases to show that the court has jurisdiction of the offense charged. Tiffany’s Criminal Law, p. 535; 22 Enc. of PL & Prac. p. 827; 2 Bishop’s New Grim. Procedure (2d Ed.), p. 1171; 13 Enc. of Ev. p. 929; Kolman v. State, 124 Ga. 63 (52 S. E. 82); State v. Hartnett, 75 Mo. 251; Boykin v. State, 148 Ala. 608 (42 South. 999). The venue is laid in this information as at the township of Penn, county of Cass, and State of Michigan. We have searched in vain all testimony given upon the trial of this cause, as disclosed by the printed record, for any mention of the township, county, or State, as alleged in the information. The only identification of the time and place, when, and where the alleged offense was committed, is found in the prosecutrix’s testimony, wherein she states that the intercourse which she had with respondent causing pregnancy, resulting in birth of the child she bore (which is the act relied on for conviction), took place on the Underwood farm, in the bedroom, in the house.
“While courts may take judicial notice of the extent and boundaries of political subdivisions, such as counties, townships, cities, and villages, the rule has never been, and cannot be, extended to cover a farm or other locality only designated and identified by the name of its present or former owner.
“Contending that it is possible to draw from the record, taken as a whole, and particularly from the testimony of nearby neighbors as to their residence, an inference that the Underwood farm is in Penn township, the case of People v. Waller, 70 Mich. 237 (38 N. W. 261), is cited to sustain this conviction. If any such inference is to be drawn, it locates the Underwood farm in the neighboring county of Calhoun, the only county mentioned by any witness in the record. Although the locality named may have been so well known and familiar to all engaged in the trial that to prove it was in Penn township' seemed superfluous, so far as the evidence taken on the trial localizes, the Underwood farm in any political subdivision, it might be situated anywhere in the United States, or even in a foreign country. The Waller Case deals with political subdivisions, and the court went no further than to hold that judicial cognizance can be taken of the division of a county into townships.”

It may be said that to apply the rule here contended for, by defendant’s counsel, is to give effect to a technical nicety; but questions affecting the jurisdiction of the court are very frequently somewhat technical. At the same time a question which affects the jurisdiction of the court to try a man for a crime cannot be said to be without merit. It nowhere appears by evidence that the assault alleged to have been made, was in the county of Menominee. The jurisdiction of the trial court is restricted to the trial of persons charged with the commission of offenses in that county, except in cases of change of venue. It is worthy of passing mention that the seeond count of the information is defective in not charging the offense to have been committed in any township or county, but of course this defect could have been amended. A little more care in the trial of the case would have orobably avoided this question of venue and saved the necessity of a new trial.

In 15 R. C. L., under title of “Judicial Notice/’ at § 20, p. 1083, it is said:

“Courts will take judicial notice of the existence of villages, towns and cities. They will include in this notice the boundary lines of cities and villages that have been established by statute, but they will not recognize the boundaries of cities which have not been established by law.”

After speaking of the conflict of authority upon the subject, in § 22, p. 1085, it is further said:

“Unquestionably, if a mere collection of houses be unincorporated, judicial notice cannot be taken of their location, on proof simply of the name that such collection of houses is known by.”

To the same effect, and applied in a criminal case, is State v. Bush (Kan.), 118 S. W. 670, wherein the court said:

“It is not claimed that Whitton is an incorporated municipality: we cannot therefore take judicial notice of its existence or location.”

Ingalls is not an incorporated village in Menominee county, nor is it the name of any township' or any other sort of municipality in that county. No one knows where as a hamlet, or settlement, it begins, or ends. Probably it is a name given to a locality, by an early settler. Like “Underwood farm,” the designation is not sufficient to establish a venue.

Under these authorities, and because the question raised is jurisdictional, we feel constrained to set aside the conviction. The case is therefore reversed, and a new trial granted.

Ostrander, C. J., and Bird, Moore, and Steere, JJ., concurred with Stone, J. Brooke, Fellows, and Kuhn, JJ., concurred in the result.


text:
    FORSYTH v. NOSTRAND.
    1. Set-off and Recoupment — Oral Contracts — Conflicting Claims.
    In an action for money due, where defendant admitted his liability but claimed the right to recoup under an oral contract, the court below was in error in withdrawing from the jury the subject of recoupment because the plaintiff and defendant did not agree upon what the contract was.
    2. Trial — Instructions—Requests to Charge.
    There was no error in refusing requests to charge, where the charge as given covered the substance of the requests.
    3. Evidence — Cross-Examination—Witnesses.
    Where plaintiff sued defendant for only one item, on account of one real-estate transaction, cross-examination of defendant as to money which .he received from parties not named in the record, and for transactions entirely outside of the case, which might leave the impression in the minds of the jury that defendant was withholding large sums of money due the plaintiff outside of and beyond any claims made by the pleadings in the case, was prejudicial error.
    4. Trial — Appeal and Error — Prejudicial Error.
    While the answers of the. jury to special questions were adverse to the claim of defendant and virtually disposed of it, where it cannot be said that had the evidence as to the recoupment been received, and the cross-examination properly restricted, the same result would, have been reached by the jury, the judgment of the court below will be reversed.
    Error to Wayne; Murphy, J.
    Submitted April 18, '1918.
    (Docket No. 86.)
    Decided June 3, 1918.
    Assumpsit by Henry I. Forsyth against John R. Nostrand for an amount due on commissions earned jointly by plaintiff and defendant. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Gray & Gray and Allan H. Frazer (Edwin C. Lewis, of counsel), for appellant.

      Robert M. Brownson, for appellee.
   Stone, J.

This action is upon a special count in assumpsit for recovery of $2,500 due to the plaintiff as the plaintiff’s one-half of $5,000, paid to defendant by Gray & Gray on account of a commission for the joint efforts of the plaintiff and defendant as real estate brokers, in negotiating a 99-year lease for the Mc-Kinstry estate, on property situated on the northeast corner of Woodward and Jefferson avenues, in the city of Detroit. The common counts were added to the special count; but in plaintiff’s amended bill of particulars the claims of the plaintiff under the common counts were restricted to the item as set forth in the special count, and interest thereon. The defendant admitted that he owed the plaintiff the item of $2,500 referred to, and the interest thereon; and the contested matters in the case arise out of a claim of set-off and recoupment interposed by the defendant. The plea was the general issue, with a notice the substance of which, after claiming a set-off for moneys due that had been earned by the parties hereinafter named, the defendant claimed, as follows:

“That the plaintiff and defendant, prior to the time the said suit was instituted, made and entered into contract arrangements whereby one William P. Merry and one William L. Dodds were brought into the defendant’s office by the plaintiff and were given desk room and certain office accommodations at the joint expense of the plaintiff .and the defendant, the said Merry and the said Dodds having, before coming into the office, made financial arrangements with the plaintiff as to compensating the plaintiff for such desk room aforesaid, to which financial arrangements the defendant was not a party; and, in consideration of the consent of the defendant that the said other occupants be brought into the office and have such desk room and office accommodations in part at the expense of the defendant as aforesaid, the plaintiff agreed to pay to the defendant a sum equivalent to one-quarter of all of the commissions and profits earned by said other occupants of the office during their stay therein, such sums, equivalent to one-quarter of such commissions and profits respectively, to be due and payable from the plaintiff to the defendant as such commissions and profits should be respectively due and payable to such other occupants respectively; and further, that the said William P. Merry and the said William L. Dodds came into the said office of the parties under the said arrangements, and earned large commissions and profits during the period of such occupancy. * * *
“Whereupon if became and was the duty of the said plaintiff to pay to the defendant, sums of money equivalent to one-quarter of such commissions so earned by the said occupants of the office respectively, and that large sums of money have accrued to the defendant and have become due and payable in accordance with the terms of the said contract with the plaintiff; but the plaintiff has made arrangements with the said occupants of the office, and particularly with the said Merry, without the consent or approval of the defendant, whereby commissions and profits made and earned by the said occupants of the said office, and particularly by the said Merry, have been postponed, released, collusively reduced in amount, and otherwise manipulated for the purpose of improperly and unlawfully preventing the falling due of payments under the said contract arrangem'ents between the plaintiff and the defendant, collusively and fraudulently manipulating the amounts upon which the sums payable to the defendant under said arrangements were to be computed and otherwise unlawfully affecting and manipulating the contract rights, of your petitioner in the premises — all of which the defendant avers constitutes a breach of the contract of the plaintiff aforementioned and a breach of his obligation to pay to the defendant sums equivalent to one-quarter of such commissions and earnings; and that the defendant has often requested the plaintiff to pay to him, the defendant, sums equivalent to one-quarter of such commissions, and earnings as originally made and earned without regard to such improper and .collusive postponements, releases and manipulations as they were properly due and payable on account of said commissions and earnings as originally earned, made due and payable, but so to do, said plaintiff has. neglected and refused and still does, neglect and refuse, to the damage of the defendant of five thousand dollars ($5,000).
i “That the defendant' under the evidence to be introduced in support of the above facts and circumstances, will insist upon a recoupment and set-off to the extent and amount so due to him from the plaintiff, as aforesaid — this in addition to the defenses heretofore set forth under the defendant’s notices heretofore filed in said cause under his said plea of the general issue.”

Under his notice of set-off the defendant filed a lengthy bill of particulars showing numerous different transactions in which it was claimed he was entitled to commissions earned by the said Merry, aggregating $4,600.

It was the contention of the plaintiff with reference to the aforesaid claim of the defendant as to terms of the contract, that he agreed with the defendant, in October, 1910, that the latter should receive one-quarter of any commissions paid by Merry to the plaintiff, out of commissions, earned by Merry in the leasing of property; that this contract was in effect for a few months only; and that on or about April 22, 1911, the contract was modified so that thereafter the defendant was to receive only one-half of 15% of any of Merry’s earnings in the making of leases; and it was the further position of plaintiff that subsequent to April, 1911, namely, upon August 12, 1911, there was still another modification by which it was agreed between the parties that thereafter the Merry commissions were to be entirely eliminated, except that one-half of the so-called Faltis commission, amounting to $25 per month, was to be turned in by Merry upon payment of office rent, and that this $25 per month was to be in full settlement of Merry’s earnings, or the defendant’s share of it.

It was the claim of the defendant that no such modifications were ever made, and he contended upon the trial that the first agreement made was maintained throughout, without modification in any manner.

Upon the trial of the case the learned circuit judge appears to have been of the opinion that because the plaintiff and defendant did not agree upon the terms of the contract there could be no recoupment. The trial resulted in a verdict and judgment for the plaintiff for the full amount of his claim of $2,500 and interest, the claim of the defendant being entirely rejected. The defendant has brought the case here for review, and error is assigned upon the ruling of the court withdrawing the matter of recoupment from the jury, and also in permitting certain cross-examination of the defendant; also in refusing to charge the jury as requested.

It should be borne in mind that the plaintiff sued the defendant for only one item of $2,500 on account of one real estate transaction, which claim was admitted by defendant. The notice of set-off and recoupment of the defendant embraced certain specified claims or transactions, easily understood and pointed out. However, upon cross-examination of the defendant the following occurred, relating to matters wholly outside of the issue in the case:

“Q. Why didn’t you give him a part of the commission on the property next door to the Goldsmith property, the Smith property?
“A. He was not in that, he had nothing to do with it.
. “Q. You got the commission of $3,500 out of that, and a commission of $7,500 out of the Metropole Hotel deal?
“A. No, sir.
“Defendant’s Counsel: I object to these questions and the testimony, as it is absolutely foreign to this case and it is immaterial.
“Plaintiff’s Counsel: I think in view of the claims made in this case, I have a right to go into it, their relations, on cross-examination. This witness comes along and claims certain commissions on certain deals because he says he has an interest in them. I want to know how they conducted that business and on what grounds the claims are founded.
“The Court: I think a wide latitude should be allowed. The pending question may be answered. The jury here have to depend upon the oral testimony of contending parties for the purpose of ascertaining the truth on the vital issues of the base, and I think a wide inquiry ought to be permitted on cross-examination.
“Q. Didn’t you have a deal whereby you negotiated a lease on the Metropole Hotel, owned by Judge Man-dell and his mother, to David Stott, where the commission was $5,000, and didn’t Mr. Forsyth participate in that deal?
“Defendant’s Counsel: Objected to.
“The Court: That may be answered.
“Defendant’s Counsel: Exception.
“A. I did have a deal and Mr. Forsyth absolutely did not have anything to do with it.
“Q. Didn’t you make a deal with the Cadillac Hotel and earn a commission of $7,500, and wasn’t Mr. Forsyth interested in that?
“Defendant’s Counsel: Objected to as incompetent and immaterial.
“The Court: It may be answered.
“A. He was not interested in that, absolutely none.
“Defendant’s Counsel: I move to strike out that testimony, as it appears, that Forsyth had nothing to do with that deal.
“The Court: I think it may stand.
“Q. Didn’t you have such a deal in the Bamlet building; didn’t you make a deal with the Bamlet building, a lease, a commission of $4,500, in which Mr. Forsyth was interested?
“Defendant’s Counsel: Objected to. ,
“A. He was not interested.
“Q. Didn’t he do any work on it?
“A. Absolutely none.
“Q. There was such a deal?
“A. I made such a deal.
“Defendant’s Counsel: Objected to as incompetent and immaterial.
“The Court: The answer may stand.
“Defendant’s Counsel: Exception.
“Q. Didn’t you make a deal next door to the Liggett property?
“A. Yes, sir, and J. Henry Smith and Conrad Smith.
“Q. Was there not a commission of $3,500, and was not Forsyth interested in that?
“Defendants Counsel: Objected to.
“The Court: It may be answered.
“A. The commission—
“Defendants Counsel: I object to it as a double-barreled question.
“The Court: It is a double question.
“Q. Did you have such a deal over there?
“Defendant’s Counsel: Objected to as incompetent and immaterial.
“The Court: It may be answered.
“Q. Did you have any deal over there?
“A. I had a deal for 60 feet on Gratiot Ave.
“Q. Is that the deal on which there was a commission of $3,500?
“A. No, sir.
“Defendants Counsel: Objected to as incompetent, and immaterial.
“The Court: It may be answered.
“Defendants Counsel: Exception.
“A. I don’t remember, I think it was a one thousand dollars.
“Q. Didn’t Forsyth help you and participate in that?
“A. No, sir. Forsyth was not in it for a minute and knew nothing about it.
“Defendants Counsel: Objected to as bringing in a whole lot of figures which are not really vital to the cáse here.
“Plaintiff’s Counsel: We want to know how much good faith you have in this case, Mr. Frazer.
“Defendants Counsel: I object to that.
“Plaintiff’s Counsel: It was called out by him.
“Defendant’s Counsel: No, and I move to strike it out from the record.
“The Court: I think this is all in evidence, it will be stricken out.
“Q. You consider you have treated Forsyth fairly?
“A. I know I have, yes, sir.
“Q. You think he has not treated you fairly?
“A. Yes, sir, I do think he has not treated me fair.”

The following special questions were submitted to the jury by consent of counsel, and were answered by the jury as follows:

1. “Do you find from the testimony in this case that the original agreement between Forsyth and Nostrand was to the compensation to be paid Nostrand on account of Merry coming into the office, was that Forsyth was to pay Nostrand one-fourth of the commissions earned by Merry so long as Merry remained in the office?” Answered: “No.”

2. “Do you find from the testimony in this case that the original agreement between Forsyth and Nostrand as to the compensation to be paid Nostrand on account of Dodds coming into the office, was that Forsyth was to pay Nostrand one-fourth of the commis-' sion earned by Dodds so long as Dodds remained in the office?” Answered: “No.”

3. “Do you find from the testimony in this case that the original agreement between Forsyth and Nostrand was that Forsyth was to pay Nostrand one-half of the fifty per cent, commissions which Forsyth received in cash from Merry?” Answered: “Yes.”

4. “Do you find from the testimony in this case that Nostrand consented to a modification of the original contract, by which modification Forsyth was to pay one-half of the fifteen per cent, net commission which Forsyth received in cash from Merry so long as Merry remained in the office, and in addition, one-half of the twenty-five dollars which Forsyth received in cash from Merry out of the so-called Faltis commissions for the period from April 22, 1911, to August 12,1911?” Answered: “Yes.”

5. “Do you find from the testimony in this case that the agreement between Forsyth and Nostrand from August 12,1911, to October, 1912, was that the twenty-five dollars paid to Merry and collected by Forsyth in cash each month out of the commissions due to Merry from the so-called Faltis deal, should be applied toward the payment of the rent of the office in the Home Bank building as full compensation to be received for the office accommodations furnished Merry so long as Merry remained in the office?” Answered: “Yes.”

1. Referring to the subject of recoupment, the ruling of the court is sought to be justified by counsel for the plaintiff upon the authority of Sharpless Separator Co. v. Brown, 174 Mich. 16.

In the recent case of American Varnish Co. v. Furniture Co., 199 Mich. 316, we had occasion to refer to that case, and we held that it was improper to take from the jury the question of recoupment, simply because the parties did not agree upon what the contract was; and we there held that the court should have submitted the question to the jury, for them to determine what the terms of the contract were. The mere fact that the plaintiff and defendant did not agree upon all the terms of an oral contract does not excuse the court from submitting the question to the jury to determine what the contract was. Then, if the breach springs out of the contract which the jury find to exist, the doctrine of recoupment may be applied. The court withdrew, in the instant case, the subject of recoupment from the jury. We think this was error.

2. A reading of this record discloses the fact that there was a sharp conflict between the testimony of the plaintiff and that of the defendant as to what the contract really was. The court, after instructing the jury that there was an oral contract between these parties, the terms of which should be found by them, and after giving them full instructions as to the burden of proof in the case, referred to the conflict in testimony as follows:

“There is very much conflict in the testimony here, gentlemen. This testimony, I think it can be said, in some respects, is so much in conflict that it is impossible of being reconciled at all. Someone is certainly, at least, very grievously mistaken as to some phases of this case. Now, where such a sharp conflict as. that arises, the duty resting upon the jury becomes all the greater, because the duty to rest your verdict, to plan your conclusion, upon the truth becomes, all the clearer.”

Certain requests to charge were made by defendant’s coúnsel. We have examined them, as well as the charge of the court, and are of opinion that the substance of the requests was given, and that there was no error in that regard.

It is strenuously urged by defendant’s counsel that, the case being so close a one upon the facts, there was prejudicial error in permitting plaintiff’s counsel to cross-examine defendant as to commissions which he had received aggregating upwards of $21,000,- which were entirely outside the record in this case.

It is the claim of plaintiff’s, counsel that defendant’s counsel had “opened the door” for this sort of cross-examination. We are unable to agree with plaintiff’s counsel upon that point. Nowhere in the record is there any question by defendant’s counsel asking plaintiff why he had not paid defendant any item of money not claimed in the notice of set-off and recoupment. Nowhere does it appear that there was. any question by defendant’s counsel whether the plaintiff did not owe the defendant sums of money not mentioned in, the pleadings. It is urged by defendant’s counsel that these questions were all answered in the negative, and therefore that they did not injure the defendant; and Johnson v. Grondin, 170 Mich. 447, 466, and Connor v. McRae, 193 Mich. 682, 690, are cited. These cases are not controlling here.

It will be noted that in the instant case counsel were permitted to pursue the examination, to the extent of showing the amount of money which the defendant had received from parties not named in the record, and for transactions entirely outside of the case. There was testimony that in their joint transactions they — the plaintiff and defendant — divided the proceeds, as one termed it, “fifty-fifty.” It is claimed by defendant’s counsel that this examination left the impression in the minds of the jury that the defendant was withholding large sums of money due the plaintiff outside of and beyond any claims made by the pleadings in the case. There is much force in this claim.

While the cross-examination of witnesses is a matter resting largely in the discretion of the trial court, and while that discretion when not abused will not generally be disturbed, and while the rule in this State has generally permitted a liberal cross-examination, yet under the peculiar circumstances of this case, and especially owing to the fact that the plaintiff' nowhere made any claim, or claims for any money received by the defendant in either of the transactions named in the cross-examination, and the good faith of the witness as a party was challenged, it seems to us that the court should have restricted counsel in such cross-examination.

“It is a general rule that it is not proper for the purpose of creating distrust of the integrity of a witness, and thereby disparaging his testimony, to show on his cross-examination particular acts of alleged misbehavior and dishonesty in relations to matters foreign to the issues involved in the trial.” 8 Enc. of Ev., p. 868.

In Holbrook v. Dow, 12 Gray (78 Mass.), 357, it was held that a party to an action who is called as a witness cannot be asked, on cross-examination, in order to affect his credibility, about his part in transactions irrelevant to the issue on trial. Counsel for defendant have made an extensive extract from this opinion, to which we direct attention.

This court said in People v. Pinkerton, 79 Mich. 110, 113, 114, that

“Whatever latitude is proper in cro.ss-examination to test veracity, it cannot properly introduce independent issues against the person who is both witness and respondent. * * *
“It raises false issues, and is likely to lead a jury to try the accused of what is not in the information.”

We are of the opinion that the latitude given to this cross-examination was prejudicial to the defendant and his rights under the circumstances.

While it is true that the special answers of the jury virtually disposed of the defendant’s claims, we cannot say that had the evidence relating to the recoupment been received, and the cross-examination of the defendant properly restricted, the result would have been as found by the jury. The ruling of the court upon the subject of recoupment resulted in the exclusion of a number of items in the bill of particulars of defendant from the consideration of the jury, which is made the basis of a number of assignments of error. They are disposed of in what we have said upon the subject of recoupment.

For these errors we are constrained to reverse the judgment below and grant a new trial. The appellant will recover his costs in this court.

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


text:
    ENGBERG v. VICTORIA COPPER MINING CO.
    1. Master and Servant — Workmen’s Compensation Act — Personal Injuries — Dependents.
    In proceedings by tbe father and mother for the death of a son under the workmen’s compensation act, it was improper to take into consideration the changed condition of the father, and the fact that he earned a lower daily wage, after the son’s death.
    2. Same — Deductions for Decedent’s Support.
    Where the industrial accident board, in determining the dependency of the father and mother, and in making an award for the death of a son, erred in refusing to make proper deduction for the support of the son, the cause will be remanded for further proceedings and the application of the proper rules of law pursuant to the opinion.
    See notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.
    Certiorari to Industrial Accident Board.
    Submitted April 16, 1918.
    (Docket No. 90.)
    Decided June 3, 1918.
    Mary Engberg and Axel Engberg presented their claim for compensation against the Victoria Copper Mining Company for the accidental death of their son in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Reversed, and remanded.

      Hanchette & Lawton, for appellant.

      E. A. McNally, for appellee.
   Stone, J.

Albert Engberg, who was the son of Axel Engberg and Mary Engberg, the claimants, was 19 years of age, unmarried, and lived with his parents. On December 6, 1916, Albert was accidentally killed at the mine of the respondent. Claimants made application for compensation under the workmen’s compensation act, and the case duly went to arbitration, and at the hearing before the committee of arbitration, the attorney for the respondent stated:

“We admit that Albert Engberg, the intestate, was an employee of the Victoria Copper Mining Company, and met with an accident that was the cause of his death while in the company’s employ; that the respondent here has elected to abide by the compensation law. The accident arose out of his employment, and in the course of his employment. He has not filed any notice of election not to abide by the act. The only question in dispute is the dependency of Mary Eng-berg, the mother of deceased, and the extent of such dependency.”

(Axel Engberg, the father, was by stipulation later admitted as a joint claimant.)

“The company claims that the father and mother, or neither of them, were dependent upon this young man’s wages for their support; that he made no contributions towards their support, as contemplated by the law.” * * *

Respondent’s counsel also stated:

“It is admitted that the average weekly wage of Albert Engberg, for the year immediately preceding the accident which caused his death was $15.11 per week, and for the next preceding year his average weekly wage was $10.84 per 'week, and that for the next preceding year his average weekly wage was $8.65 per week.”

After hearing evidence the committee of arbitration awarded to the applicants the sum of $5,148 per week for a period of 300 weeks. From this award respondent appealed to the industrial accident board, and it may be said that the only question involved is that of dependency. Additional testimony was taken before the full board, and the hearing resulted in a finding and order affirming allowance, to claimants, but slightly increasing the amount to $5.24. Among other findings of the industrial accident board are the following:

“The proofs also show that the father’s health is not the best, he having been compelled to give up his employment as an underground miner, subsequent to the death of the deceased, although previous to the date of the death he had been employed under ground quite steadily, at a daily wage of $3.25. * * *
“That under the Michigan workmen’s compensation law the cost of the board of the deceased should not be deducted from the amounts that the deceased contributed to his father and mother, as there are no provisions in the workmen’s compensation law under which the cost of board could be deducted.”

There was testimony to the effect that after the death of Albert, and after the making of the claim of April, 1917, the father changed his job on account of poor health; that instead of working under ground where he had for a number of years earned $3.25 a day, he did surface work at $2.65 a day. Without detailing all of the facts, it sufficiently appears that the industrial accident board in making its award erred in not applying to the facts, the proper legal principles. It was improper to take into consideration the changed condition of the father, and the fact that he earned a lower daily wage, after the son’s death. What occurred after the death of Albert, as to the earnings of the father or mother was immaterial.

In Miller v. Cartage Co., 189 Mich. 360, we said:

“Questions as to who constitute dependents, and the extent of their dependency, are to be determined as of the date of the accident to the employee, and their right to any death benefit becomes fixed as of such time, irrespective of any subsequent change of conditions.”

That it is the condition existing at the time of the accident which determines the question of dependency, see, also, Finn v. Railway, 190 Mich. 112.

The instant claim was acted upon by the board, October 31, 1917, about two months before the handing down of the opinion of this court in Moll v. City Bakery, 199 Mich. 670. We think that opinion is decisive of the instant case. Chief Justice Kuhn, speaking for the court in that case, said:

“In determining the question of the dependency of the parents, the board refused to take into consideration the cost of the son’s support. It is conceded that the cost of the maintenance of the deceased son would be, if allowed at a reasonable figure, $4 per week, and it is the claim of respondents that this should have been deducted from the family expenses, when the dependency of the parents is considered; and it is their claim that the money devoted to the decedent’s own support could not at the same time be devoted to the support of his parents. The board was of the opinion:
“ 'That there is nothing in the compensation law which would suggest any deduction for hoard of a son in a case of this kind.’
“But in our opinion this overlooks a fundamental principle underlying the law, and that is that it was adopted to compensate for a loss, and that the loss in every case must be determined by the facts in that particular case.”

We see no distinction in principle between the cases. In the Moll Case it appeared that, deducting the $4 per week, there was no dependency.

Applying the proper rules of law as here indicated, in the instant case there may be a reduced dependency. The amount, if any, we shall not undertake to determine from this record. Applying the rule stated in Carpenter v. Forging Co., 191 Mich. 45, the order of the industrial accident board will be reversed, and the case remanded for such further hearing therein before the board as the parties may desire.

It is so ordered.

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


text:
      In re SHAW’S ESTATE. FLANNERY v. TISCHNER.
    1. Husband and Wife — Claim of Married Woman.
    A claim for board and room of a boarder would belong to the husband and not to the wife, where he was the head of the household, and furnishing the family supplies.

    2. Executors and Administrators — Husband and Wife — Assignments — J udgment — Inseparability.
    In an action by a daughter-in-law against the estate of her mother-in-law for the latter's board and room and for personal services rendered by plaintiff while decedent lived in the home of plaintiff and her husband, a judgment for the full amount claimed, in the absence of an assignment of the claim for board and room, which belonged to the husband, it being impossible to say how much was allowed for board and room and how much for personal services, was manifestly excessive, and should be reversed.
    Error to Wayne; Mandell, J.
    Submitted April 10, 1918.
    (Docket No. 57.)
    Decided June 3, 1918.
    Elizabeth Flannery presented a claim against the estate of Elizabeth Shaw, deceased, for services rendered. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. Judgment for claimant. Joseph E. Tischner, executor, brings error.
    Reversed.

      Thomas A'. E. Weadoelc, for appellant.

      Dohany & Hersch and Dennis B. Hayes, for appellee.

       See note in 46 L. R. A. (N. S.) 238. '

   Stone, J.

The claim of the plaintiff was originally presented to the commissioners on claims in the estate of Elizabeth Shaw, deceased, and as appears by the bill of exceptions, was as follows:

“The Estate of Elizabeth Shaw, Deceased,
“To Mrs. Elizabeth Flannery, Dr.
“For board and room for Elizabeth Shaw, deceased, for 208 weeks between July 10, 1903, and September 1, 1908, and services rendered ' as attendant or general nurse in caring for deceased during that time, she being sick most of the time, and required waiting on.
“208 weeks at $7.00 per week..............$1,456.00.”

Plaintiff was. the daughter-in-law of deceased, and the wife of John Flannery, a son of deceased by a former marriage. Plaintiff was married to John Flannery in June, 1903, and went to live in the home belonging to the husband at No. 526 Fort street, Detroit, and the deceased was a member of the family. They lived there until in 1906, when they all moved to 832 Congress street, east, into a house belonging to deceased. The husband of plaintiff kept the house and paid the grocery bills.

On June 19, 1908, the husband of the plaintiff died, and in September of that year plaintiff left the home of deceased and did not return. Elizabeth Shaw died testate November 7, 1910. The estate of John Flannery has never been administered. He never assigned any claim, or right which he had against the estate of Mrs. Shaw, to the plaintiff.

The claim of plaintiff being disallowed by the commissioners on claims, she appealed to the circuit court. Upon the trial at the circuit, there was no evidence the husband of plaintiff ever gave any consent to her to make claim for the board, room or services involved in this case. Upon the trial the plaintiff was sworn and testified in her own behalf. It is the claim of appellant that she was permitted to testify, over his objection and exception, to many facts that were equally within the knowledge of the deceased. These questions related to whether, and how long, Mrs. Shaw lived with plaintiff and her husband; who owned the home; who were members of the household; what doctors attended Mrs. Shaw; how much and how often she was sick, etc. There was a large amount of testimony taken, and at the close of the plaintiff’s case counsel for appellant moved for a directed verdict in his behalf for the reason that the plaintiff had not made out á case, owing to the family relationship, and the circumstances of the case. It is the claim of the appellant that the trial court, in the presence of the jury, in ruling against said motion, said:

“There is testimony enough here so that an inference could be drawn that there were contract relations between the claimant and the deceased.”

The case was submitted to the jury, and the result was a verdict and judgment for the whole amount of plaintiff’s claim, with interest, amounting to $1,692.62.

The defendant made a motion for a new trial based upon many grounds, among which was the claim that the verdict was excessive in amount. The motion was denied, and exceptions duly entered. The following appears in the charge of the court:

“Starting out in this case with the presumption that whatever services were rendered by Mrs. Flannery, those services were expected to be gratuitously rendered, you should determine whether or not the testimony in this case overcomes and rebuts that presumption. _ The claim of the claimant is that on numerous occasions during the term of years, statements were made in her, that is in Mrs. Flannery’s presence, by Mrs. Shaw, to persons outside of the family, that compensation would be made and that she would receive pay for her services. The claim of the defendant with regard to the question of liability is that the relationship that existed was such, and the services were of such a character, that no compensation was expected or should have been expected by Mrs. Flannery, and that none was intended by Mrs. Shaw. There is the issue of facts and you will have to determine from the evidence in the case, which unfortunately is very contradictory, whether or not there should be compensation.”

In the course of the charge the following occurred:

“Mr. Weadock: I want to call your honor’s attention to the fact that in the amount stated to the jury that includes board and washing, and there is no testimony to support that claim.
“The Court: I do not wish to state the character of the claim. There has been a bill of particulars of that claim and I believe that does include the items for board and washing, and care in the nature of attendance and nursing, and of course in determining the amount of compensation, if you reach that question at all, you will have to take into consideration the claim and determine whether any or all of it has been earned, under the instructions that I have already given to you.”

The defendant has brought the case here upon writ of error, and there are many assignments of error. Among the numerous errors assigned are those complaining of the testimony of the plaintiff as to matters equally within the knowledge of the deceased; the claimed prejudicial remarks of the court in the presence of the jury above set forth; the part of the charge of the court first above stated; and the denial of the motion for a new trial.

As we said in Brackett’s Estate v. Burnham’s Estate, 199 Mich. 326, it seems to us that this case was tried and submitted to the jury upon a wrong theory. The claim sued upon and submitted to the jury contained the items of board and room, which manifestly belonged to the husband of the plaintiff, and recovery should have been limited to the personal services of the plaintiff. There was no evidence of the value of these services independently and separately from the value of the board and room. As was said in Stackable v. Estate, 165 N. W. 665, it seems to us that this case was

“It is clear that, without some assignment, this claim for board would belong to the husband and not to the wife. He was the head of the household, and furnishing the family supplies. There had to be some agreement on his part with his. wife that she should receive the pay for the board.”

The rule has been so recently restated, and the authorities cited in the Brackett Case, that we content ourselves- by a reference to that case. It will be borne in mind that the plaintiff recovered the full amount of her claim, and it is impossible to say how much was allowed for board and room, and how much for personal services. No error is assigned upon the latter part of the charge above quoted, but it is so manifest that the verdict was excessive, that the judgment should not stand. To permit it to stand would be a miscarriage of justice.

As the case must go back for a new trial, it is not necessary to pass upon many of the questions raised by the assignments of error relating to the rulings upon the admissibility of evidence, as the questions are not likely to arise upon another trial. We refer, however, to the objection that plaintiff was permitted to testify to some matters that were equally, or alike, within the knowledge of the deceased. The case presented much conflicting testimony, and was a close one upon its facts, and as was said in Shouldice v. McLeod’s Estate, 130 Mich. 444, 448: It is

“apparent at a glance that the slightest contravention of the rules of evidence, by permitting testimony from the claimant which was incompetent, might have turned the scale.”

This matter will probably be properly taken care of upon another trial. For the prejudicial error above stated, relating to the manner in which the case was tried and submitted to the jury, we are constrained to reverse the judgment of the circuit court, with costs to appellant; and a new trial is ordered.

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