author: Ostrander, J.

text:
    COLLIN v. KITTELBERGER.
    1. Trial — Appeal and Error — Evidence—Witnesses—Books as Evidence — Cross-Examination.
    Where plaintiff on direct examination used a diary to refresh his recollection and was interrogated on cross-examination as to several entries not relating to the ease, a ruling of the court stopping the further examination was in the discretion of the trial judge and would only be reversed if the court abused its discretion.

      2. Same — Evidence—Hearsay—Brokers—Contracts.
    Testimony, in a suit for broker’s commissions, that in a conversation that related to the rental of a store which had been placed in plaintiff’s hands to secure an occupier on commission, to the effect that he told the prospective tenant he could have the premises for a rental named, and that the latter was willing to pay the rental, was competent and not open to the objection that it was hearsay.
    3. Same — Misconduct op Counsel — Prejudicial Error.
    An order of the trial court, striking out improper remarks of one of the attorneys, and a direction, following the re- ■ quest of defendant’s counsel to reprimand the attorney, to proceed with another question, was not reversible error or likely to be misunderstood by the jury.
    4. Same — Contracts—Cross-Examination.
    A question asked of a party whether he knew that plaintiff thought he had a certain agreement was not improper cross-examination.
    5. Same — Witnesses.
    The objection that a subject had been already gone over was within the discretion of the court.
    '6. Appeal and Error — Record—Assignments.
    Assignments of error should not be too general.
    7. Same — Exception.
    On objection by defendant’s counsel to a statement of plaintiff’s counsel to the jury, not supported by the testimony, counsel not asking for or getting a ruling, the court will not review it.
    8. Brokers — Frauds, Statute op — Commissions—Contracts.
    Act No. 238, Pub. Acts 1913, 3 Comp. Laws 1915, § 11981, requiring contracts for the commissions of a broker to be in writing, did not affect pre-existing agreements.
    Error to Wayne; Mandell, J.
    Submitted June 23, 1916.
    (Docket No. 70.)
    Decided September 26, 1916.
    Assumpsit by Frederick C. Collin against George Kittelberger for broker’s commissions. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      James H. Pound, for appellant.

      Samuel B. Williams {Stevenson, Carpenter, Butzel & Backus, of counsel), for appellee.
   Ostrander, J.

It is the theory of plaintiff’s case that he was employed by defendant in January, 1913, to secure a tenant of defendant’s building for a ten-year term beginning May 1, 1915, for $5,000 a year rent, net, for which service defendant was to pay him a commission of $800; that he found a man willing to make the lease and enter upon the term, to whom defendant made no objection, that defendant refused to lease, and later leased the premises to another, refusing to pay plaintiff his commission. This theory is supported by the testimony of plaintiff and that of the proposed lessee.

Defendant denied making the agreement, or any agreement, with plaintiff, and says that he did not contemplate leasing the premises, “except after giving his (defendant’s) then tenant a first chance to rent at the price offered.” The quotation is from appellant’s brief. Defendant denied also that plaintiff ever informed him that he had secured a tenant for him upon the terms stated. The court submitted to the jury the question whether the agreement alleged was made and performed by plaintiff, and, if so, whether defendant refused to perform it. The jury returned a verdict for plaintiff, and judgment was entered on the verdict. A motion for a new trial was denied.

As no one claimed that defendant had performed, or was willing to perform, the contract set up by plaintiff, the only issues were the simple ones whether the contract was made, and, if made, was performed by plaintiff. It is the contention of defendant, appellant, that 41 errors, which may be fairly reduced to 30, were committed during or after the trial, and each assignment, the brief informs us, is relied upon.

The first assigned error discussed in the brief for appellant relates to a ruling which is complained about because curtailing unduly defendant’s right of cross-examination. Plaintiff, upon direct examination, used a diary for the purpose of refreshing his recollection. Upon cross-examination he was interrogated with respect to various entries, not relating to this case, appearing therein. This was permitted for a time, when the court said:

“I think you have gone far enough to indicate the method of keeping the books, and that is all this testimony was competent for.”

An exception was taken. What else there was in the diary, what particular item or entry it is claimed would have cast discredit upon it, what further purpose of counsel than that indicatéd by the ruling, does not appear. After stating in the brief that he was entitled to a lax rule and thorough examination, counsel says, and with this concludes argument upon this point:

“But I have had occasion to complain of this judge’s idea of narrowing the issue before, and it does not do to repeat. He entirely misconceived what I was attempting to do. That is apt to occur from an endeavor to read another’s thoughts, and I did not want to apprise the plaintiff in this case as to what I wanted, by arguing to the judge when he- did not ask- for it, or what I wanted.”

Cross-examination for the purpose indicated is governed, and must be, by the discretion of the trial court, and in this case discretion does not appear to have been abused.

The second complaint discussed in the brief is of a ruling allowing an answer of a witness to stand. Interrogated about an existing lease, he had said it would expire May 15,1915. The objection was that the lease was the best evidence. It does not appear that the answer was incorrect, or claimed to be, or that defendant was or could have been prejudiced by the ruling. Commenting upon it in the brief, counsel for appellant says:

“And right here I want to call attention to Judge Mandell’s method of doing business. The admission of this evidence is plainly against an elementary principle of the law of evidence. Still it is permitted, and this judge says, ‘Note an exception.’ And twice more he does the same upon the same page and four times upon page 23.”

But the record discloses no other similar ruling and no other like objections. The other rulings referred to are upon another subject and relate to a conversation between plaintiff and his prospective tenant — the prospective tenant is testifying — and the testimony objected to was plainly competent as tending to support the contention and the testimony of plaintiff that he had found a tenant ready to accept the terms of defendant. The witness was testifying to the terms of the lease proposed to him by plaintiff and that he accepted them and was willing to make the lease. It is said in the brief upon this subject:

“Can there be anything clearer than that the talk of plaintiff and Wilson [the proposed tenant] not in defendant’s presence was and is incompetent? Also the question:
‘Q. Did he tell you the terms on which he could get the lease for you?’ * * *
“This evidence, in and of itself, ruined our case for the defendant. It was something we could neither admit nor deny truthfully, because we knew nothing about it. The answer was: ‘Yes, sir; he told me I could have the store. * * * I was willing to take a lease of that store, and so informed Mr. Collin.’ * * *
"‘Q. Did you so inform Mr. Collin?
“‘A. Yes, sir; I told Mr. Collin that I was willing.
‘Q. On what terms did Mr. Collin say he could get a lease?
‘A. A ten-year lease, $5,000 a year net.’ ”

If this is not an orderly and proper way to prove that plaintiff had, pursuant to his alleged contract, found a tenant willing to take a lease upon defendant’s terms, no other way is suggested by counsel. The brief next complains of a ruling, or suggestion, made by the court when counsel for defendant was examining his client. Referring to plaintiff and to the times he had seen him and what had been said between them, counsel asked:

“Q. Was there any other talk, besides what you have given us now, that you had between you and this man in September. Have you told us all in regard to the renting of the property? That is the only business you had in hand between you. What was the September matter about?
“A. About some other tenant that he brought up to me for the same location, but nothing came of it.
“Q. Who was the party?
“The Court: That is immaterial, unless the same party now spoken of.
“A. No, sir. (Exception for defendant.)
“Q. Was it the same man?
“A. No, sir.
“Q. Did anything, come of it? Did you enter into any bargain with the man he brought up ?
“A. No, sir; I did not.
“Q. When after that was it that you saw him again?
“A. Along in December, just before the holidays.
“Q. When afterward did you see Mr. Collin next?
“A. In the same office. I called on his office there. I was there in January.
■ “Q. So from the first interview that you have given us, in December, you had no more talks with him until January; is that right?
“A. No, sir.”

At considerable length thereafter the witness was interrogated upon the whole subject of his conversations with plaintiff. Counsel did not answer the court’s suggestion that the answer to the particular question would be immaterial. It is not pointed out that, if the witness had given .the name of the party referred to, it would have benefited defendant. There is no appearance in the record or by explanation of any prejudice of defendant’s rights. Counsel did not cease to pursue the subject, but says in the brief:

“How the defendant came to meet Collin appears from Kittelberger’s testimony on record, page 29, lower half. The acquaintanceship of Kittelberger consisted of talks in relation to this property, and. the one to some extent covering the other. I was entitled to both. But the court, without objection, rules the question out, tending to explain it. Assignment 9 covers it. I submit this error is well assigned, and should reverse this case. It would bear upon the range of price, if no other thing. This interference of the judge, unsolicited, was very irksome, and looked very prejudicial to the jury, who, as onlookers, would wonder at it, without suggesting who the judge was prejudiced toward, whether attorney or client.”

Upon the cross-examination of defendant, there was a reprehensible and altogether uncalled for statement, made by plaintiff’s attorney, which the court immediately ordered stricken from the record. Defendant’s counsel asked that plaintiff’s counsel “be reprimanded for making such a statement.” The reply of the court was, “You may proceed with another question,” and the examination proceeded. There follows in the printed record during the progress of the cross-examination of defendant several recitals, of which the following is an example:

“Q. You knew that Mr. Collin thought at least he had an agreement with you when you received the letter of January 28th? (Objected to. * * * Struck out by order of court. Words stricken out are ‘as incompetent.’)
“The Court: Answer the question. * * * (Struck out by order of court. Words stricken out are: ‘Note an exception.’)”

Of these recitals counsel for defendant says in the brief:

“Here comes the first of the conduct of the stenographer individually, which I complain of and severely criticise, to explain. The stenographer inserts, ‘Struck out by order of the court.’ I am probably voicing my objection at the same time.
“My objections were probably shut out from the stenographer having in his anxiety not to drop a word of what the court said. That is the only excuse I can see for his actions, except incompetency. But I didn’t know it until I saw the transcript, and I protest, but it does me no good, nor my client either.
“Why courts should try to evade responsibility for their ruling, when they are immune from liability, I cannot tell, but some do, and they have, since the Supreme Court of Massachusetts sought to deprive one Burton of an appeal which it took all the British ministers, and the Secretary of State, Thomas Jefferson’s, political influence, as well as Edmund Randolph, and President Washington, to get a review thereof by the Supreme Court of the United States. See volume 3 of Jefferson’s Correspondence, letter to Mr. Hammond, British minister.
“Assignments 10 and 11 I call attention to. The judge gets indignant, and forgets to put in an exception after his adverse ruling. I insist that both the assignments of error are good. Not an exception, not a word of caution to the jury which the judge omitted or the stenographer in error neglected to take. But, God be thanked, the law gives us the exception, now, just the same, through the judicature act, now in force.
“I will not discuss this matter any further, because it is a subject I cannot express my opinion upon for reasons patent to any one, except the counsel opposed, and inasmuch as he objected to the insertion, and the lower court agreed with him, I do not expect either one of them to agree with me on this subject. _ But I do expect this court to, and will be much disappointed if it don’t.”

This is the entire of the argument upon this point. Assignments of error 10 and 11 are:

“(10) In allowing and permitting the insulting question to be asked defendant without rebuke, although asked,
‘Q. I am not asking about that letter. You must have rehearsed that for some time.’
“This included 11, with Mr. Pound’s request:
‘Mr. Pound: I ask that the counsel be reprimanded for making such a statement.’ ”

In the brief for appellee an explanation is given of the apocryphal appearance of the record I have referred to. It is said that the words were stricken out by the court when the bill of exceptions was settled, for the reason that they were not in the stenographer’s notes, and had been inserted in the bill by counsel for defendant in accordance with his recollection of what objections were actually made and what exceptions were actually taken.

So far as the reprehensible statement of counsel is concerned, the rebuke from the court was immediate. To immediately order that a question and statement of counsel be stricken from the record is, it would seem, a rebuke not likely to be misunderstood by counsel or the jury. The questions objected to and about the objections to which the stenographer’s notes are regarded as faulty do not appear to be improper questions to be asked on cross-examination. In any event, the record is here, and obviously cannot be disregarded by this court upon this hearing.

The thirteenth assignment of error is based upon an objection that the subject had been gone over, an objection not recognized by the court, to whose discretion it was addressed. The twenty-first assignment of error is based upon an exception to a ruling excluding an answer to a question asked by counsel for defendant as follows:

“Q. Then you did not tell the truth, when you were on the stand before, that you only had one written proposition from Mr. Wilson ?”

The argument made in support of the assignment is, “I submit this was error.” Why it was error, and especially why this court should reverse the judgment on account of it, is not stated.

In argument to the jury, counsel for plaintiff made a statement of fact not supported by the record. Counsel for defendant excepted, but asked for and got no ruling from the court. It seems unnecessary to cite the numerous decisions holding that the point is not before us.

Defendant presented 11 requests to charge. Some of them were given, in substance; some others ask for a construction of testimony and a virtual finding of fact. The one most relied upon in the brief asks for a peremptory instruction favorable to defendant, and is based upon four assigned reasons, which are:

“First. Because at the time of the trial of this case no contract for a commission upon the sale of lands could be maintained, unless it was in writing, which this one sued’upon in this case is not claimed to be.
“Second. Because the contract was in reference to a ten-year lease at $5,000, which contract never became enforceable by a tender of a written lease, which was necessary to the commencement of this suit. - v. Wilkinson, - Mich. - .
“Third. It was for the entering into a contract for a claimed leasing for a period of upwards of a year, which, by the statute of frauds, is in force in this State. It was a contract not operative in this case, because it was not in writing.
“Fourth. Because the suit is based upon the conveyance of an alleged interest in lands, to wit, a ten-year lease involving an outlay of $50,000, which was inefficacious, for the reason that it was not in writing.”

The contract for commission alleged by plaintiff was made before Act No. 238, Pub. Acts 1913 (3 Comp. Laws 1915, § 11981), was passed, and the act did not affect the validity of a contract, existing when it took effect. Third National Bank v. Steel, 129 Mich. 434 (88 N. W. 1050, 64 L. R. A. 119). If the alleged contract was made, plaintiff performed it when he found a prospective tenant ready, willing, and able to take the lease upon defendant’s terms, and it is plaintiff’s testimony that the defendant announced satisfaction with the tenant proposed. See, also, Brittson v. Smith, 165 Mich. 222 (130 N. W. 599), and cases cited therein upon the subject of the contract for commission being within the statute of frauds.

None of defendant’s requests which were altogether refused should have been given. The case was clearly one for a jury, and, while the charge given is criticized as being in some respects less explicit than it should have been and as favorable to plaintiff, it fairly left to the jury the theories of the parties and the substantial and controlling issues of fact to be decided. No request was made by counsel for defendant to amplify or make more explicit any issue submitted or to give any definitions or explanations. To the time that the verdict was returned, I find no reversible error made out, and the verdict was not so clearly against the weight of evidence that this court may interfere with the ruling which refused a new trial.

The judgment is affirmed, with costs to appellee.

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


source: Caselaw Access Project

license: Public Domain

text:
    PEOPLE v. LAHNALA.
    1. Evidence — Homicide—Impeachment oe Witness.
    On the trial of a homicide case, it was improper to permit the prosecuting attorney to impeach the mother of the accused, who testified in his favor, upon being called by the prosecution, on immaterial statements alleged to have been made by her, and, the tendency of such testimony being to raise a false issue, was of so prejudicial a nature as to require the reversal of the conviction.
    2. Criminal Law — Impeachment—Evidence—Hostile Witnesses.
    It is competent for the prosecution to prove material contradictory statements of a witness who appears to be hostile, and whom the law compels the prosecutor to call as one of the eyewitnesses, or persons having ^knowledge of the circumstances, for the purpose of affecting his credibility.
    Error to Houghton; O’Brien, J.
    Submitted June 26, 1916.
    (Docket No. 129.)
    Decided September 26, 1916.
    John Lahnala was convicted of murder in the first degree.
    Reversed.

      Grant Fellows, Attorney General, L. W. Carr, Assistant Attorney General, William J. Galbraith, Prosecuting Attorney, and Edward McCormack, Assistant Prosecuting Attorney, for the people.

      Burritt & Burritt, for respondent.
   Ostrander, J.

August Lahnala was a farmer living in Stanton township, Houghton county, west, or northwest of Houghton, on a highway known as the canal road. The 5th day of September, 1914, was Saturday. August Lahnala, some of his children, and some hired men worked that day on his farm baling hay. In the evening he went to Oskar, a point between his farm and Houghton, purchased and carried home some articles, riding a part of the distance, and to the entrance to his farm, with an acquaintance. He arrived home about 8 o’clock. His wife, some of his minor children, and a hired man had retired in the upper floor of the house. The house was dark, and he entered through a shed sheltering the kitchen door into the kitchen, placing his parcels on the kitchen table. With the noise he made in entering and soon after he had entered three shots were heard, and probably the noise made by his falling body and his cry after he was shot. No voice except his was heard; no sound of altercation or of a struggle. The investigation immediately made with a lighted lantern by his wife and the others there discovered his body on the floor, wounded, him incapable of moving or of speaking. He survived but a few moments. An attempt to use the telephone failed, and fear, it is said, prevented any one present leaving the house to summon aid until early morning. In the morning it was discovered that the telephone wires had been cut at a pole near the house, three empty cartridge shells were found in the shed, two bullets were buried in woodwork in the kitchen, one of which was recovered, and one was taken from the wound. The shells and bullets were such as are used in an automatic 82 caliber gun, and were manufactured by the Winchester Arms Company. A single footprint was found in the earth at the foot of the brace to the telephone pole upon which the wires were cut. A “pliers,” with which wire can be cut, was found at or near the foot of the telephone pole. Nothing else about the premises connected with the tragedy appears to have been found or seen.

Besides his wife, Matilda, August Lahnala’s family included several married sons and daughters, not living at home, and six or more minor children, some of whom lived at home. Among the minors was John Lahnala, 18 years old September 20, 1914, who lived at home until May, 1913, when he left to work in one of the mines, returning to assist his father with the haying. He then went to Minnesota and Dakota, selling his labor, returning to Michigan in January, 1914. He visited his family and within a few days — three, perhaps — hired himself to work for a John Zurcher, who lived near by, with whom he remained until some time in April, 1914, frequently visiting his father’s house. Then, his brother William having bought a farm in Alger county, John purchased land adjoining his brother’s, and, William having built a house on his land, John made his home with his brother, working on his land and elsewhere until September, 1914, not returning to his father’s home during that time.

The land which William and John owned was not far distant from Rumley, which is a station on the Munising & Southeastern railway near the line between Alger and Marquette counties. A railroad map of Michigan will show the railroads operating in the vicinity and the various junction points. To the west of Rumley, beyond Little Lake, south of Negaunee, on the Chicago & Northwestern Railway, is Swanzy. That John Lahnala was at Swanzy in the afternoon of September 4, 1914, and in the station of the Chicago & Northwestern Railway, is an undisputed fact. It is the theory of the people that from this point he went by train to Negaunee, there boarded a South Shore train for Houghton, which he reached about 8 o’clock 'p. m. on that day; that he was seen during the evening in Houghton, spent the night somewhere, was seen about Hancock and Houghton Saturday forenoon; that he visited his father’s home in the evening, murdered his father, was seen passing along the road going away from his father’s house shortly after the crime was committed, that he left Houghton that night, and was at his brother’s home on Sunday, September 6th. In this theory the motive for murder is ill feeling and dislike of the father by the son. The son owned an automatic gun of the caliber, and which would use cartridges such as were used in committing the homicide. Arrested while on his way, with other relatives, to attend his' father’s funeral, John Lahnala was informed against for the murder of his father, put upon his trial on February 15, 1915, and, after 20 days of investigation, a verdict of guilty of murder in the first degree was returned by the jury. He was sentenced to imprisonment for life. A hew trial was refused.

In this court the record presented is certified as containing, in substance, all of the testimony “introduced in the case that is necessary to present the questions of law raised by this bill of exceptions and assignments of error accompanying the same.” The assignments of error number 169. Such as are relied upon are discussed by respondent’s counsel as presenting 29 questions.

A number of the questions may be properly disposed of without much discussion. No exception is found in the record as a basis for the second assignment of error, upon which the first question is raised. If it were otherwise, it would be assumed that after the preliminary examination of the witness by respondent’s counsel, no further objection being máde, no use was made of the memorandum by the witness which counsel regarded as improper. If the question was open, it would be necessary to consider whether a statement, or statements, consisting only of the answers made to interrogatories ought ever to be received as a confession or admission of a person accused of crime. Usually a question colors and gives meaning to the answer made to it.

It was not error to admit in evidence the gun owned by respondent. That he owned it and might have used it does not prove that he did use it, or any weapon, to kill his father. But a case must be made piecemeal. It was not error to acquaint the jury with the fact that such a gun was designed to fire such cartridges as were apparently used by the guilty person, and.to explain why such cartridges could not be used in the ordinary revolver.

As the record was made, the case could not properly have been withdrawn from the consideration of the jury. Nor was it error to instruct that the testimony was of such a nature that if the respondent did the killing he was guilty of murder in the first degree. The requests to charge preferred by respondent which ought to have been given were given, in form or in substance. The charge was an admirable one, open to no serious criticism. There are, however, some errors assigned which demand a more extended consideration. They challenge rulings admitting testimony tending to prove a motive for the commission of the crime, and tending to prove that respondent might have committed it — that he was in the vicinity; they challenge an examination and impeachment of respondent’s mother; they challenge, some of them, the method of producing to the jury the testimony of witnesses taken upon the preliminary examination. They cannot be considered without a somewhat extended reference to the record.

Respondent was a witness in his own behalf, and not only denied having committed the crime, and denied that there existed any reason or motive for committing it, but his own and the testimony of others tended to prove that he was not in Houghton, or Hancock, or at his father’s farm, on September 4th or 5th, but was at a distant point, in Marquette or in Alger county, when the crime was committed. I use the names of both counties, not because respondent’s testimony was uncertain, but because I cannot always fix the described location by county lines.

I have said that it was undisputed that respondent was at Swanzy in the afternoon of Friday, September 4th. He was at his brother’s home on Sunday, September 6th. His movements Friday evening and on Saturday are therefore of large importance. Four witnesses were produced by the prosecution, a young man and three young women, who testified that they saw respondent in a candy store in Houghton between 8:15 and 8:30 p. m. Friday evening. There is no testimony of any witness who saw respondent on the railroad train, or saw him get off the train. The candy kitchen referred to is a public place, where ice cream is served, and the witnesses were there seated at a table in the rear to be served with ice cream. The witnesses had known respondent. At some time while they were there one of them (according to the testimony) recognized John Lahnala. She described his dress; said that he bought something, apparently, at the candy counter, and left the place. She was asked this question:

“Q. I will ask that while John was in there, or immediately thereafter, you made any remark to any of your three companions as to who you had seen.”

She answered:

“Just at the time, not after he left, but just as he was leaving.
“Q. What remark, if any, did you make to any one of your three companions just as John was leaving?
“A. Just as he came in and just as I noticed him, I told the girls, ‘Look at John Lahnala,’ and the girls all repeated ‘John Lahnala,’ and that was all.”

The young man testified that he did not see respondent, whom he had known rather casually, until the remark; “There is John Lahnala,” was made, when he turned his head, “noticed him there, and I was satisfied it was John. I didn’t pay any more attention than that to him.”

Another of the party testified that her attention was attracted by the remark above quoted, when she looked and saw respondent, and that she made a remark. Asked what her remark was, she answered “that it was John.” The fourth member of the party testified that her attention was attracted by the same remark. No one is produced who claims to have seen respondent after he left the candy kitchen Friday evening, September 4th, before 8 o’clock the.next morning, at or about which hour John Webber, who operated a ferry, testified that he rowed a man across the lake from the Houghton to the Hancock side. This witness testified that he knew respondent, had no talk with him, and that when the boat reached the shore on the Hancock side the man “ran up the hill and ran down the road, ran as far as I could see him.” The next time he saw him was in justice’s court after his arrest, or, at any rate, after he was in custody. On cross-examination this witness testified:

“Q. That on the morning of the 5th, between 8 and 9 o’clock, a fellow asked you to row him across the lake?
“A. Yes.
“Q. And he had his face blackened up?
“A. Yes.
“Q. And he got in the boat, and you rowed him across the lake?
“A. Yes.
“Q. And the only means you had of distinguishing him from some other person was the back of his neck and his. ears wasn’t black?
“A. Yes.
“Q. And you had never seen Lahnala but three or four times ?
“A. Yes.
“Q. And from what you saw of him at that time, without speaking to him, you formed an opinion that it was John Lahnala; is that right?
“A. Yes.
“Q. And the officers came and talked to you?
“A. What?
“Q. And they confirmed your opinion, didn’t they?
“A. Yes, sir.
“Q. Now, at the time that you formed the opinion that it was John was the time the officers came to talk with you, wasn’t it?
“A. Yes, sir.
“Q. At the time you rowed him across the lake you didn’t think anything about it, did you, John?
“A. No.
“Q. And you told Barney and myself that he was ■ so blackened up that you couldn’t tell who it was?
“A. Yes.”

Two witnesses, a barber and his wife, testified that between the hours of 9 and 10 a. m. Saturday a man whom they did not know called at the shop in Hancock and asked for and purchased a mustache, paying 25 cents for it. After his arrest they saw respondent and were of opinion that he was that man.

A woman witness, who had been a schoolmate of respondent, testified that on the evening of Saturday, September 5th, she was at home about a mile from the Lahnala house and saw respondent passing by in the road. She says she was standing near the gate, inside the fence, a few feet from the traveled way, when her attention was attracted by some person coming from the direction in which Lahnala lived, walking fast. “He was running. That attracted my attention first. Then when he noticed me he stopped” and “walked very fast past me.” After passing her, he ran. It was between 8 and 9 o’clock. Most of the witnesses testifying upon the subject say that the night was dark, and one, at least, that it was very dark. The witness testified that she could not tell whether respondent’s face was blackened, or whether he wore a mustache. Neither said anything. Respondent did not look at her. But she described the clothing worn by the person she saw.

I have referred to all of the testimony of witnesses who claim to have seen respondent in Houghton or Hancock, or the vicinity, on Friday or Saturday. To make it more probable that he was there, the prosecution produced a railroad ticket, and freight clerk who went on duty on the evening of September 4th at 7 o’clock, and went off duty at 3 o’clock the next morning. He testified that a train from Calumet for Nestoria and points east left Houghton at 10:55 that evening. The train arriving at Houghton from Marquette, due at Houghton about 8 o’clock p. m., arrived while the witness was on duty, but whether on time or not he could not state without reference to the train register, which register was offered and received in evidence, and from which it appeared that the conductor of the train reported the train at Houghton at 8:09 p. m., 14 minutes late. It is conceded that it was error to admit the register in evidence. See People v. Dow, 64 Mich. 717, 721 (31 N. W. 597, 8 Am. St. Rep. 873); People v. Goodrode, 132 Mich. 542, 547 (94 N. W. 14). But it is said that it was error without prejudice, because it is established otherwise that respondent was in Houghton during the evening between 8:15 and 8:30 p. m., and the jury have so determined.

The positive character of the testimony of some of the witnesses who say they saw respondent at Houghton is rather shaken by cross-examination and opposed and contradicted by testimony of statements made by some of them. It is to be considered, in respect to this branch of the case, whether in admitting testimony of the first and succeeding exclamations of the witnesses who were in the candy kitchen, and in admitting the train register in evidence, reversible error was committed.

In seeking to prove a sequence of facts, the establishment of any one of them often aids in establishing the others. The average mind will require less proof of a fact which naturally follows another established or admitted fact. So an apparent agreement of several persons that a fact exists gives some additional weight to the testimony of each of them when they later testify to personal knowledge of the fact. Whether any of the four witnesses who stated that he or she saw respondent in the candy kitchen actually saw and recognized him is of peculiar importance. Whether the recognition was casual and uncertain, three observers accepting in part the exclamation, or statement, of the fourth, they having no interest in the matter and no reason for testing the truth of the exclamation or statement, is also of" peculiar importance. The testimony of the exclamations was not used to identify an occurrence or that a particular thing happened at a particular time; the time being fixed in the memory of the witness by a remark. Cole v. Railway Co., 105 Mich. 549, 550 (63 N. W. 647). The vital question to each witness was not whether he or she remembered that they saw Lahnala on a particular occasion, but was whether he or she did see and identify him upon an occasion which was fixed. The effect was to sustain the testimony of each witness by proof of an exclamation or of exclamations, showing that at the moment there was apparently a concurrence of opinion as to the identity of the person observed, show-ing also that at the time each witness announced the identity of the person observed. It was as though each had said, “I know it was the respondent because I said so at the time.” In People v. Eagle, 189 Mich. 404 (155 N. W. 460), testimony similar in character was held to have been erroneously admitted. See, also, People v. Mead, 50 Mich. 228 (15 N. W. 95); Brown v. People, 17 Mich. 429 (97 Am. Dec. 195). If respondent was in Houghton Friday evening, it is more probable that Webber ferried him across to Hancock, more probable that he was seen in the barber shop, and that the young woman was not mistaken in saying that she saw him coming from his father’s on Saturday evening, in the dark. If he was not seen in the candy kitchen Friday evening, all other testimony connecting him with the crime must at once be subjected to a new test before all reasonable doubt is removed.

Mrs. Matilda Lahnala was called by the people. This they were bound to do, since she had knowledge of facts — the return of her husband on the night he was killed and what she knew of his movements — connected with the homicide, and was the first one to see and touch his body after the shooting. As to all of these matters she gave her testimony, and no one disputes it. She was then interrogated upon direct examination, upon other subjects, and among them as to whether she had a certain conversation on October 18th (after the shooting) with Robert Kuru. Having stated that respondent was not present, and objection having been made, the court inquired the purpose of the examination, to which the prosecuting attorney replied:

“It’s for the same purpose, your honor, that I question relative to the telephone, simply to the matter of interest, showing interest and bias in this case, and for the purpose of refreshing her memory as to past events, and for the possible purpose of impeachment on the material issue.”

The objection being overruled, the examination proceeded as follows:

“Q. Did you have a talk with Robert’s mother?
“A. Yes.
“Q. Did you not have a talk with Robert and his mother together?
“A. No.
“Q. I will ask you if you didn’t say to Robert in the presence of his mother that you wanted to say something to him that you didn’t want to say in the presence of his mother.
“Mr. Burritt: Now, if the court please, we object to that as incompetent, whether this witness did or did not make such a statement as contained in the question of the prosecuting attorney.
“The Court: I have heard the question, and I will overrule the objection.
“Mr. Burritt: I would like to have the question read again and give me an exception. (Last question read.)
“Mr. Burritt: Give me an exception to the ruling of the court.
“A. No.
“Q. I ask you if you did not at that time, not in the presence of Robert’s mother, but to Robert, ask that he should go to the office of .Burritt & Burritt, in Hancock, and tell them that he was the person who ran along the Oskar road past the Uusitala home on the evening of September 5, 1914, shortly after 8 o’clock.
“Mr. Burritt: We object to that, if your honor please, as incompetent and immaterial. It doesn’t tend to prove or disprove the point in issue. It doesn’t make any difference whether the witness made such statement or such request to the man Kuru or not. It can’t affect this defendant unless they connect him with it in some way directly.
“The Court: It need not be directly.
“Mr. Burritt: He has got to be connected.
“The Court: I will overrule the objection. If he is not connected with it it will be stricken out.
“Mr. Burritt: Note an exception.
“A. No.”

Continuing his examination of Matilda, the prosecuting attorney was permitted to elicit the following:

“Q. Do you not recall that in the summer of 1912 Eiono and his wife visited your place, and that August and Eiono went in the field, and that you and John and Eiono’s wife had some talk in the kitchen?
“A. I don’t remember.
“Q. Do you not recall that at this time you were cooking dinner, and that while cooking dinner you were telling about the trouble between John and his father? (Last question read. Objected to as incompetent, remote, and immaterial. Overruled. Exception.)
“A. They never had any bad trouble between them.
“Q. Will you answer the question? (Question repeated.)
“A. No.
“Q. Did you not then, in the presence of John, say to Eiono’s wife, 'Willie is too easy with his father, and John is the boy that will kill him if he doesn’t mend his manners’?
“The Court: The question is so obviously admissible there isn’t any reason of objection till it’s over.
“Mr. Burritt: I take exception to the ruling and statement of the court. (Last question read.)
“A. Never.
“Q. Did not John at this time get up from the chair where he was then sitting and say, ‘If he doesn’t change his ways I will — ’ and then leave the room without finishing his sentence?
“A. That isn’t true.”

Upon each of these points the prosecuting attorney was permitted to call witnesses in impeachment. In impeachment Mrs. Kuru said:

“A. I don’t remember the talk had in the kitchen. I went outside to get the milk cans that were on the steps. Mrs. Lahnala followed me to the steps. She said that, T would like to talk to your boy, Robert, but I hardly can.’ I asked her what she wanted to talk to him about.
“Q. And what was her answer?
“A. If he wouldn’t go and tell Burritt & Burritt that he was the one that ran along the road here. This was not said in the presence and hearing of Robert. He went past to get some wood. She did not go to Robert and talk with him; she had a talk with Robert. I don’t remember whether before she told me what she wanted she asked if Robert had run along the Oskar road on the evening that Mr. Lahnala was killed. That wasn’t all of her conversation that I related a little while ago. * * * I then told her that he can’t go and lie that way. He hadn’t been there all day; he had been in another direction.
“Q. And what did she say to that?
“A. She said, ‘You need not be afraid of that; one can’t lose by it.’ The boy came there then. He had an armful of wood. I told her that there was the boy, and then there is that which she said to the boy, ‘Won’t you go and tell Mr. Burritt that you were the boy who ran along the Canal road on your errands?’ ”

Robert testified:

“A. Yes; Mrs. Lahnala said, ‘Won’t you go to Mr. Burritt and tell him that you are the man who ran along the Oskar road that night in this direction?’ I said I wouldn’t go; that I hadn’t been to Oskar all day.”

On cross-examination:

“I don’t know how Mrs. Lahnala happened to come to my house. I don’t know whether my mother sent for her. Willie Lahnala was there to see me the day before. He said, ‘Were you the one that was at Oskar that evening?’ — the evening that the old man was killed, he said. He asked me whether I passed the Uusitala house the night his father was killed. I told him that I hadn’t passed it. Willie was there to see me the same day Mrs. Lahnala was there; it was the same day. This is the last time I ever talked with either of them.
“Q. Didn’t Mrs. Lahnala tell you that she heard that you went by the Uusitala house on the night of the 5th?
“A. I can’t remember.
“Q. Didn’t she tell you that if you did, and if you would go over to Burritt & Burritt’s office and see them and make an affidavit to the effect that you did go by there, she would like to have you do so, and Burritt & Burritt would pay you for your trouble?
“A. She asked me, but she didn’t say anything about being paid for the trouble.
“Q. Mrs. Lahnala said to you, in substance, that if you went by the Uusitala house on the night of September 5th, she would like to have you go over to Hancock to Burritt & Burritt’s office and make an affidavit to that effect, or statement, see Burritt & Burritt, didn’t she?
“A. No.
“Q. Well, what did she say to you?
“A. I can’t remember what-she said.
“Q. She said if you went by there she would like to have you come over to Hancock to Burritt & Burritt’s office, didn’t she ?
“A. She said wouldn’t I go to Burritt & Burritt’s office.
“Q. She asked you if you wouldn’t go to Burritt & Burritt’s office and say to them that you went by the Uusitala house on the night of September 5th, between 8 and 9 o’clock?
“A. Yes.
“Q. She didn’t say anything about paying for your trouble?
“A. No.”

As to the other alleged conversation had in 1912, the impeaching witness testified as follows:

“Mrs. Lahnala said, ‘There is a man, he will keep hired men to do the work and pay them, and he cannot keep his own children at home and get along with them like other people.’ She said that ‘he has work done by outsiders, can’t get along with his own, and can’t give decent words, especially so with Willie, because he is such a soft-natured fellow, never opposed him in anything.’
“Q. Go on.
“A. Pointing toward John, ‘But there is a boy that he can’t prod much.’
“Q. Go on.
“A. ‘That he would just as lieve kill if he should become angry.’ And then she said, ‘And what of it if he should kill?’
. “Q. What, if anything, did John then say?
“A. I said that ‘That’s too strong.’ John said, ‘Why should he be that way.’ - '
“Q. Go on.
“A. John went out.
“Q. Was that all of the conversation at this time?
“A. There was no further talk. Then at the time that Mrs. said, ‘What if he should be killed?’ she threw potatoes into the kettle just at that time so that the water squirted up and splashed on the stove.
“Q. Did you ever hear any words between John and his father?
“A. No.
“Q. Did you ever hear John make any threats of what he would do to his father?
“A. I have not talked with him much.
“Q. Did John say anything else in the kitchen than you have already stated?
“A. No; he didn’t say anything.
“Defendant moved to strike the testimony out as incompetent and immaterial. The point we make is any feeling Mrs. Lahnala may have had against her husband and anything she may have said concerning her husband cannot be charged up to this boy.”

The people having rested, and several witnesses having been sworn for the respondent, counsel for respondent announced that he recalled Matilda, to which the prosecuting attorney objected, and the court ruled that, if she was called, it must be as a witness for the respondent for direct examination, to which ruling an exception was taken. Having been so reintroduced as a witness in the case, she testified, in substance, that Mrs. Kuru told her that she thought it might have been her son Robert who was seen running along the Oskar road on the night the murder was committed; that counsel for the respondent advised her to inquire into the matter; that she had no conversation with the son Robert, but only with his mother. She denied the statement which was attributed to her by the witness Vetriga Lahnala (Eiono’s wife), and was then cross-examined at length by the prosecuting attorney, going over the same subjects, after which she was asked:

“Q. And were you satisfied to have John leave home? (Objected to as immaterial. Objection overruled. Exception.)
“A. I would have liked to have him at home; I have testified that John left because he couldn’t get what he thought was proper clothes.
“Q. And you did think that it was not right that one of the boys, one of your boys at that age, should have to go away from home to work when the father was hiring help on the farm? (Objected to as irrelevant and immaterial. Objection overruled. Exception.)
“A. I have never said anything about that.
“Q. I didn’t ask you what you said. I asked you what you thought.
“Mr. Bwrritt: We renew our objection as to what this woman thought as irrelevant and immaterial to this issue. (Objection overruled. Exception.)
“A. About what? (Last question read.)
“A. Because his father wouldn’t give him any clothes he had to go away and earn money to get clothes.
“Q. And you thought that it wasn’t right that he had to go away and earn money to get clothes? (Objected to as irrelevant and immaterial. Objection overruled. Exception.)
“A. I was just lonesome for the boy when he left.
“Q. And didn’t you say, while you were, talking to Mrs. Vetriga Lahnala in your kitchen, just exactly what Mrs. Vetriga Lahnala testified to, namely, ‘That here is a man, August, that hires help and can’t keep his own boys at home at work?’
“A. I haven’t said anything like that. I don’t remember of having said anything like that ever.
“Q. You want to testify now that you did not say what Mrs. Vetriga Lahnala has here testified you did say in your kitchen in the presence of John?
“A. I don’t remember; I can’t remember; I can’t remember. I don’t remember the conversation at all.
“Q. And you will not testify, then, that you did not have the conversation?
“A. I don’t remember the talk at all. I don’t remember. On our farm there are four 40’s. Two 40’s we have had for 27 years. The 40 the house is on and the other 40 is corner. We have had the third 40 nearly 20 years; the fourth 40, the farthest away from the house, about 10 years. That’s the cow pasture. The 40’s on. which the house stands, one is east of Canal road and one west.
“Q. Whom do you consider owned the two 40’s on which the house stood at the time August was killed?
“Mr. Bwrritt: I object to that as incompetent. The fact as to whom she considered owned the land is incompetent and immaterial.
“The Court: This is only admitted as bearing upon her motives and credibility, etc., and I think I will overrule the objection. (Exception.)
“A. They all belong together.”

As to the testimony of the interview of Matilda with the Kurus, mother and son, it was immaterial; respondent being in no manner connected with it. As to the impeaching testimony given by Robert and his mother, it was incompetent, because the testimony of Matilda was immaterial. The testimony was harmful to respondent, not alone because it was either merely immaterial or incompetent. This and other testimony with respect to which she was contradicted, and the final cross-examination of Maltida introduced into the case an apparent issue between the people and the witness, and the witness and the respondent were by suggestion and by inference made to stand together. The very statement of counsel for the people in offering the testimony of Matilda contained the suggestion. If the false issue was determined by the jury favorably to the people, respondent was correspondingly affected. The jury may have believed the Kurus and Mrs. Vetriga Lahnala and have believed that Matilda’s purpose in interviewing the Kurus was sinister, although she says it was innocent. They may have believed that she hated her husband and was prepared to uphold her son in taking his life; that she, in effect, counseled such a course.

With respect to the impeachment of witnesses whom the people are obliged to call by the people, the rule is stated in People v. Elco, 131 Mich. 519 (91 N. W. 755, 94 N. W. 1069), where the subject is exhaustively reviewed. See, also, People v. Miner, 138 Mich. 290 (101 N. W. 536). Upon the authority of that case the impeaching testimony should have been excluded. The danger in any case is that not the sworn testimony given in court, but the unsworn, extrajudicial statements made by witnesses will be used to convict a respondent. The court advised the jury that the purpose of the examination and of the impeaching testimony was to affect the credibility of Matilda, and that it and similar testimony was not received and was not to be considered as substantive evidence of the guilt of respondent. But the credibility of Matilda in giving material testimony was not attacked. It was about immaterial things that the issue of her credibility, her bias and interest, was introduced into the case. What has been said upon this subject applies to the testimony of Matilda and the contradicting testimony, she being asked if she had told a certain person that her son was at work for the railroad company. Suppose that she lied about it. Respondent is not to be convicted because of her statements nor upon the suggestions which they give rise to. If it was believed that the mother was an accomplice of the son, she could have been charged as such. But to suggest her complicity, as some of the questions asked her plainly did, without asserting it, and to contradict her upon immaterial matters, was a course calculated to do respondent great harm.

It was error, not reversible error in view of other testimony, to prove the sale of the automatic gun, in evidence, to the brother of respondent by the record of the sale; neither the sale nor the record having been made by the witness. The same is to be said of the introduction in evidence of the record of the telephone company.

. ■ Concerning the transcripts of testimony of certain witnesses, which were received in evidence, it is to be said that the use made of them by counsel does not appear. No opinion should be expressed upon the question presented, because whether what was done was reversible error depends, of course, upon what was done with them, what use made of them.

Wholly apart from the testimony I find objectionable, there was testimony requiring the case to go to. a jury. Our attention is directed on the part of the people, among other reasons for denying a reversal of the judgment, to one based upon Act No. 89, Pub. Acts 1915 (3 Comp. Laws 1915, § 14565), which provides that no judgment or verdict shall be set aside on the ground of improper admission or rejection of evidence unless, in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage .of justice. Without attempting an interpretation of the law or deciding whether in any case the justices should or will act in the capacity of jurors, I find in this case prejudicial error in admitting testimony calculated, notwithstanding the advice of the trial court to the jury, to induce the conclusion of fact which was reached when, if it had been excluded, a different conclusion might have been reached. In my opinion, that is, and must always be, a miscarriage of justice.

For the errors pointed out, the judgment is reversed, verdict set aside, and new trial granted. Respondent will be delivered into the custody of the sheriff of Houghton county to be dealt with according to law.

Stone, C. J., and Bird and Person, JJ., concurred with Ostrander, J.

Moore, J. I agree with Justice Ostrander there was prejudicial error.

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


text:
    WARREN v. VANDERVELDE.
    Brokers — Commission—Contracts.
    In a suit for brokers’ commissions where the agents did not secure a purchaser at the price stipulated in their contract, but secured a prospective buyer that finally took the property at a lower price during the life of the contract, held, that the evidence did not warrant the court in directing a verdict for defendant; that the question, under conflicting proofs, was for the jury.
    Error to Kent; Perkins, J.
    Submitted June 13, 1916.
    (Docket No. 61.)
    Decided September 26, 1916.
    Assumpsit by David H. Warren and Charles Rummell, copartners as Warren & Rummell, against Tryntje Vandervelde for brokers’ commissions. Judgment for defendant on a verdict directed by the court. Plaintiffs bring error.
    Reversed.

      Hatch, McAllister & Raymond, for appellants.

      Charles E. Ward, for appellee.
   Ostrander, J.

In justice’s court plaintiff declared orally upon all matters provable under the common counts in assumpsit and specially for a commission for the sale of real estate. Judgment for defendant was entered. In the circuit court the cause came on for trial before the court and a jury, and the trial was ended when the court directed a verdict for defendant. The plaintiffs, appellants, insist there was an issue of fact for the jury “on the question of whether of not the defendant wrongfully interfered with ‘plaintiffs’ pending negotiations with a prospective customer, and made the sale herself, thus entitling them to their commission,” and regard the case of Davis-Fisher Co. v. Hall, 182 Mich. 574 (148 N. W. 713), as controlling. It is undisputed that defendant desired and for a considerable time had tried to sell her farm, for which she asked $5,500. A sign was posted at the farm, and advertisements were put in one or more papers, giving notice that the property was for sale. Finally, plaintiffs undertook to sell the farm under an agreement reduced to writing,, but not correctly printed in the record. By the agreement the selling price was fixed at $5,700. The agreed commission was 5 per cent, upon $2,500 of the selling price and 2% per cent, upon the balance. The agreement or agency was to terminate after 30 days’ notice by the owner, and it was provided that the commission was to be paid if the “farm is sold directly or indirectly” by plaintiffs. There is the further provision that:

“If sold by owner without any aid of said agents, then the price will be $25.00 as compensation for their trouble and expense in advertising said farm.”

The writing bears no date, but was made, as the record is understood, in the latter part of July, 1912. Notice of termination of the agency was given October 15, 1912, and the contract was surrendered November 16, 1912. Defendant, on November 23d arranged to sell the farm for $5,500 to one James Boyland, and the conveyance of the property to him was completed by delivery of the deed November 28th. It is undisputed that plaintiffs introduced Boyland as a possible purchaser, and that defendant knew that plaintiffs had tried, or were trying, to sell him the farm for $5,700. Plaintiffs did not, within the time limited, produce a customer who announced himself ready and able to pay $5,700, or any other price, for the farm, but did produce one (Boyland) during the term limited who, knowing the price asked by plaintiffs, desired to examine the premises and soil, and who did, on November 2d and November 11th, visit the premises for that purpose. He was not produced as a witness at the trial, but it appears that he expressed to plaintiffs the view, or opinion, that defendant wanted too much for the farm, and stated that, while he knew the property, he would look further into the matter. Plaintiffs, too, were of opinion that $5,700 was too large a price for the land. On November 2d, when Boyland visited the farm, he was told that it was not for sale. On November 11th, when he was at the place examining soil, defendant did not, she says, see him. On November 18th, the defendant, Boyland having called on her in Grand Rapids, fixed- $5,500 as. the price for the farm, but wished to consult her- son about the sale, and did write to her son.

Plaintiffs make the argument which was successfully made in Davis-Fisher Co. v. Hall, supra, namely, that defendant is not in a position to say that they would not have made the sale; that Boyland was, to use the language of the opinion in that case, “a promising prospective purchaser, who not only had not refused plaintiff’s .offer, but with whom it might well pursue negotiations with fair prospects of success, but for the fact” that defendant advised him and the plaintiffs that the place was not for sale.

Defendant gave testimony tending to prove that she had desired to sell the farm and live in Grand Rapids, but concluded, before she moved to Grand Rapids, that she would not sell the farm, and would return to it. In any event, she wished, before determining to sell, to see how she liked to live in the city. Some rumor that an interurban railway passing by or near the farm would be built came to her, and was another reason given for determining not to sell and for canceling her contract with plaintiffs. Satisfaction with city life and the discovery that the railway was not to be built were reasons for again concluding to sell the farm. The testimony for the defendant, if believed, would indicate her good faith in withdrawing the land from sale and canceling the contract of agency. But from all of the testimony and the circumstances disclosed by it, I think the inference might be drawn that within the life of the agreement plaintiffs indirectly sold the farm, that defendant did not, in good faith, withdraw the property from sale, but was ready and willing at all times to sell it for $5,500, and that the announcement that the place was not for sale and the cancellation of the contract were acts in an attempt to deprive plaintiffs of a commission. Upon the authority of Davis-Fisher Co. v. Hall, supra, and Smith v. Anderson, 2 Idaho (Hasb.), 537 (21 Pac. 412), the case should have gone to the jury.

The judgment is reversed, with costs to appellants, and a new trial ordered.

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


author: Bird, J.

text:
    STEEL v. BLANCHETTE.
    1. Homestead — Exemption—Abandonment—Evidence.
    As mere absence from her bomestead for four or five years would not conclusively establish abandonment of the homestead rights of an old lady of seventy-five years of age, the enforced absence of such owner because of feeble health or the necessity of going out to earn a living, by work as a nurse, did not authorize a creditor to levy on the property, though she also, about the same time, sold her furniture and rented the land and residence, and had offered to sell the place in a deal for certain village property which she could have occupied in the same manner. The question of abandonment of a homestead is principally a question of intention.
    2. Same — Intent—Sale—Proceeds.
    Upon selling the homestead with the purpose of investing the proceeds in another home, the proceeds also become exempt during the transition up to the statutory limit of fifteen hundred dollars.
    Appeal from Oceana; Sullivan, J.
    Submitted June 6, 1916.
    (Docket No. 2.)
    Decided September 26, 1916.
    Bill by Elizabeth Steel against Victor J. Blanchette for a decree setting aside an execution levy on complainant’s homestead. From a decree for complainant, defendant appeals.
    Affirmed.

      F. E. Wetmore, for complainant.

      Hall & Greene, for defendant.
   Bird, J.

Complainant asked for and obtained a decree in the trial court setting aside an execution levy on her premises in Oceana county, claiming that they constituted her homestead. The defendant resisted the proceeding upon the ground that prior to the levy of the execution in December, 1914, complainant had abandoned her homestead. The same contention is made in this court.

Defendant contends that in leaving the premises soon after the death of her husband in 1909, and living elsewhere, and offering the premises for sale, she has abandoned her homestead right therein. The premises, consisting of 40 acres, were purchased by complainant in 1907, and she and her husband resided thereon until his death in 1909. Soon after she sold the furniture, except her bedding, and lived around among her relatives, and at times acted in the capacity of nurse. She had several Michigan relatives, and a son and daughter who resided in Northern Indiana. She testified that she was induced to take this action because of the advice of her sister that it was unwise for a woman of her age to remain in the farmhouse alone. She was at that time 74 years of age. She rented the place from year to year to a tenant, and on the income derived therefrom, and the income from her work as a nurse, she has. paid her living expenses and her taxes. She has no other property, either personal or real. She insists that she never abandoned the premises as her home, and that when she rented it and went away she did it with the intention of returning, and it was shown by complainant’s relatives that she frequently stated that she was going to return to her home.

1. The sole question is one of abandonment. The mere absence from the premises 4 or 5 years would not be conclusive that she had abandoned it as a homestead if she had, during all that time, intended to return. Kaeding v. Joachimsthal, 98 Mich. 78 (56 N. W. 1101). In a way her absence from her homestead appears to have been enforced. It is evident that a woman of her age could not work the premises. The income from the farm, which was shown for two years to have been $65 a year, would have been insufficient to support her and pay the taxes. The question of abandonment of her homestead is almost entirely a question of intention. 21 Cyc. p. 602; Bunker v. Paquette, 37 Mich. 79. When she asserts that it was her intention to return to her home, and that it was never her intention to abandon the premises as her homestead, I can find no good reason in the record for disbelieving her, or doubting the sincerity of her claim. Most people, and especially elderly people, have some place they call home, even though they do not occupy it much of the time: and, notwithstanding defendant insists that she has abandoned this home, the record does not disclose that she has any other home.

But it is argued that her offer to sell it was evidence of abandonment. Complainant explains this by saying that at one time she offered to trade the premises for a home in the village of Walkerville, where she would be near her relatives, or she would sell and purchase a home there. This was a mere unexecuted intention, but had she done so, the house and lot received in exchange, or the proceeds of the sale, would have been exempt during the transition if neither exceeded the statutory limit of $1,500. Myers v. Weaver, 101 Mich. 477 (59 N. W. 810); Corey v. Waldo, 126 Mich. 706 (86 N. W. 122).

The decree of the trial court is affirmed, with costs to complainant.

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


text:
    CADY v. DOXTATOR.
    1. Evidence — Automobiles—Principal and Agent.
    In a negligence action where the plaintiff charged that defendant’s servant negligently collided with and damaged his automobile, and the defendant contended that the driver was not in his employ and used the car without the consent or knowledge of such owner, evidence was admissible to show that the defendant had in a previous suit against plaintiff for the same collision averred in his declaration that he, by his agent or servant, was in charge of the car when the collision took place.

      2. Same — Admissions—Impeachment—Distinction.
    It was also competent to show as an admission that the defendant testified on the previous trial that the driver was in his employ and the evidence was not necessarily impeaching testimony such as would require the laying of a foundation to impeach the party testifying.
    3. Same — Agency—Directing Verdict.
    And the evidence conflicting, the question of agency was one of fact and the trial court properly refused to direct a verdict for defendant.
    Error to Wayne,; Hally, J.
    Submitted June 15, 1916.
    (Docket No. 136.)
    Decided September 26, 1916.
    Case by Guy B. Cady against Charles H. Doxtator and another for damage to plaintiff’s automobile. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      W. C. Gottman, for appellant.

      Louis C. Wurzer, for appellee.
   Bird, J.

On Sunday evening, November 8, 1914, plaintiff’s automobile was standing in front of his residence in the city of Detroit. While in that position it was run into and damaged by defendant Doxtator’s automobile. Doxtator was not with his automobile at the time. It was being driven by his brother-in-law, Harry Benzing, who resided with him, and was in his employ, and who is also made a defendant. It is the claim of defendant Doxtator that defendant Benzing was at the time driving his automobile without his knowledge or consent. . Judgment having passed against the defendant in both the justice’s and circuit courts, defendant Doxtator assigns error. The questions which he raises are those relating to the authority of his brother-in-law to possession of the car on the occasion in question.

1. To establish the liability of defendant Doxtator, plaintiff offered the declaration in a previous case in which Doxtator sued him for damages to his car on account of the same accident, alleging that Cady was remiss in his statutory duty to maintain lights on his car. The portion of the declaration which was admitted over defendants’ objection is as follows:

“By means and in consequence of which wrongful and negligent acts of said defendant afterwards, to wit, upon the night of, to wit, the 8th day of November, 1914, while the said plaintiff by his agent and servant was in the lawful possession of said car, the said plaintiff was a lawful traveler by motor vehicle, to wit, an automobile, belonging to the said plaintiff upon the said street,” etc.

The admission of this pleading is urged as error, because the former action was brought under the city ordinance, and therefore was immaterial.

The case in which the declaration was filed was be-, tween the same parties, concerning the same subject-matter, and involving the same controversy as to which party was at fault for the collision. Under the general rule this pleading was properly received as an admission, if it can be said that Doxtator, on whose behalf it was made, directed it to be made, or afterwards sanctioned it. 1 R. C. L. p. 499. We must presume that Doxtator sanctioned the statements contained in the allegation, as he testified in that trial in support of them. No error was committed in receiving it.

2. Plaintiff also produced several witnesses who were present at the former trial, and showed by them that defendant Doxtator, who was the plaintiff therein, testified that Benzing was driving his car with his knowledge and consent, and as his agent and servant. This testimony was admitted over defendant’s objection that said “testimony could only be admitted as impeaching evidence.” Doxtator was at the time giving testimony in his own behalf, and was a party to the record, and is also a party to this suit. The testimony was offered as an admission. As such it was admissible (Merrill v. Leisenring, 166 Mich. 219 [131 N. W. 538]); and it was unnecessary to lay the foundation for an impeachment before showing it. Churchill v. White, 58 Neb. 22 (78 N. W. 369, 76 Am. St. Rep. 64); Owens v. Railroad Co., 95 Mo. 169 (8 S. W. 350, 6 Am. St. Rep. 39); Bullard v. Bullard, 112 Iowa, 423 (84 N. W. 513).

The rule counsel contends for is applicable where it is sought to show that a witness made previous inconsistent statements, but it has no application where it is sought to show admissions by the parties to the record.

We are of the opinion that no construction of the statute is necessary. The question as to whether Ben-zing was operating the car at the time with Doxtator’s knowledge and consent was purely a question of fact, and under the testimony was very properly submitted to the jury.

The judgment of the trial court is affirmed, with costs to the plaintiff.

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


text:
    WALKER v. BRITTON.
    Damages — Insufficient Verdict — Nominal Damages.
    Where a verdict was found for plaintiff, who charged that defendant negligently drove his automobile against plaintiff, and the plaintiff therefore was held not guilty of contributory negligence, and where plaintiff, who was a music teacher, was injured so that she was unable to follow her profession as a teacher of music for about six months, six cents damages was inadequate and contrary to the weight of the evidence, requiring a new trial in plaintiff’s behalf, on error.
    Error to Kent; Smith, Clement, J., presiding.
    Submitted April 11, 1916.
    (Docket No. 68.)
    Decided September 26, 1916.
    Case by Georgia Walker against William Britton for personal injuries. Judgment for plaintiff for an inadequate amount. Plaintiff brings error.
    Reversed.

      Hatch, McAllister & Raymond, for appellant.

      H. Monroe Dunham and John M. Dunham, for appellee.
   Bird, J.

While plaintiff was driving upon the highway in the early evening, defendant ran his automobile against her carriage, and as a consequence she was thrown out and injured. She charged the defendant with negligence, because of unreasonable speed, because he failed to turn to the right of the traveled way, and because his lights were insufficient to comply with the statute. The case was submitted to the jury, who, after deliberating for a time, returned-a verdict of six cents and costs. The trial court refused to accept the verdict, and said to them in part:

“Now, gentlemen, I do not think that you can render a verdict like that for this reason: You render a verdict of six cents. A verdict for six cents did not carry costs. Now, if you are going to add anything to this woman’s damages, you have got to do it in dollars and cents. If I take your verdict, it means six cents. She would not recover costs. She not only would not recover costs, but the plaintiff (defendant) would recover costs against her. Now, if you want to render a verdict for six cents, it is up to you; but, if you think it would carry costs, you would be mistaken, and consequently there would be in a sense a miscarriage of justice. * * * I think I will have you go back.”

The jury again deliberated for a time, and returned a verdict for plaintiff of six cents. A new trial was asked upon the ground that the verdict was against the great weight of the evidence, because it was a compromise verdict, and because the damages allowed were grossly inadequate under the undisputed evidence in the case. The trial court denied this application, and, among his reasons for so doing, said:

“The verdict is, in effect, one of ‘Not guilty’; and had such a verdict been rendered under the proofs, I would not have disturbed it.”

The defendant was a very frank witness. His. own account of the collision furnished the jury a basis for finding him guilty of negligence. As a result of the collision, plaintiff was thrown to the ground and injured to the extent that she was unable to follow her profession as a music teacher from the date of the accident, November 13th, until the following June. By their verdict the jury found defendant guilty of negligence, and they must necessarily have found, under the instructions of the court, that plaintiff was free from contributory negligence. This being true, the remaining consideration for the jury was the assessment of plaintiff’s damages. The uncontradicted testimony shows that she was entitled to substantial damages. It will hardly do to say that the verdict was equivalent to a verdict of “Not guilty.” It possibly may have been in dollars, but not in law. There is this difference: A six cent verdict fixes upon defendant the responsibility for the collision. A verdict of “Not guilty” exonerates him therefrom. The trial court explained to the jury in detail what their duties, were in the premises, and opened the way for them to find that defendant was without fault, but they persisted in finding him guilty, and they should have followed that finding by an allowance of some reasonable compensation for what she had lost and suffered by reason of that negligence. The sum allowed is so grossly inadequate, and bears so little relation to what was shown to have been plaintiff’s actual damages, that the verdict should have been set aside on the ground that it was clearly against the weight of the evidence. Kilmer v. Parrish, 144 Ill. App. 270; Fleming v. Gemein, 168 Mich. 541 (134 N. W. 969, 39 L. R. A. [N. S.] 315).

For failure of the trial court to set the verdict aside, the judgment must be reversed, and a new trial ordered. Plaintiff will recover her costs.

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


author: Kuhn, J.

text:
    STEKETEE v. WATERS.
    1. Carriers — Railroads—Negligence—Alighting.
    The authorities are uniform in holding that aged or infirm passengers are entitled to more attention and care from the carrier than others and the carrier is bound to exercise a degree of care commensurate with their condition or infirmities.
    2. Same — Evidence—Negligence.

      Held, under the testimony in plaintiff’s behalf, in an action for defendants’ failure to help plaintiff from the car, in a duly careful manner, that the determination of the jury that defendants were negligent is sustained.
    3. Same — Contributory Negligence — Notice.
    Where plaintiff did not inform defendants’ servants that she was an invalid and would require a stool to step on in alighting from the train, until she stood on the bottom step of the car, ready to alight, it cannot be said that she was guilty of contributory negligence, as matter of law, even though she was familiar with the conditions at the depot.
    4. Pleading — Variance—Amendment—Discretion.
    There was no abuse of the court’s discretion in permitting an amendment of plaintiff’s declaration, after the proofs were in, by inserting the word “conductor” following the word “brakeman,” and further amending by stating that as plaintiff was on the steps and about to alight from the train she informed the defendants’ brakeman or conductor that she could not alight unless a step was furnished because she had recently undergone an operation, where the notice was given to either the brakeman or conductor and both were sworn upon the trial, and no claim was made by defendants that they were surprised.
    Error to Ottawa; Cross, J.
    Submitted June 23, 1916.
    (Docket No. 55.)
    Decided September 26, 1916.

      Case by Alida Steketee against Dudley E. Waters, Frank W. Blair, and Paul H. King, receivers of the Pere Marquette Railroad Company, for personal injuries. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Parker, Shields & Brown and Charles E. Ward, for appellants.

      Smedley & Linsey, for appellee.
    In October, 1913, the plaintiff, a married woman 43 years of age residing at Holland, went to Evart, Mich., for the purpose of having an operation performed by one Dr. Hooverter. She had given birth to two children, and since the birth of her second child had experienced some female trouble. To obtain relief from this trouble she sought the help of Dr. Hooverter, and after the operation was confined to her bed for three weeks. On November 18th, accompanied by her husband, she returned to the city of Holland. On her return trip she drove from her brother’s home in Evart to the depot in a surrey with a low step. A little stool was used for her to get into and out of the carriage, and the same- stool was used in mounting the steps of the Pere Marquette train which she took from Evart to Reed City. The trip necessitated change of cars at Reed City and Grand Rapids. At Reed City the distance between the platform and the last step of the coach was five inches, and at Grand Rapids on the Pere Marquette Railroad between three and four inches, and on the Grand Rapids & Indiana Railroad between four and five inches. It is the plaintiff’s claim that in alighting from defendant’s train at Holland, because of the negligence of employees of the defendant, she received injuries which caused her operation to become undone, and that some time afterwards she returned to Evart and there underwent a second operation by the same surgeon identical with the first.
    In addition to the mail and baggage cars, the train in question was composed of two day coaches and a parlor car. The parlor car was equipped with an extra step, but the day coaches were not. It was shown by measurements that the distance from the bottom step of the coach in which plaintiff rode to the platform was sixteen and a half inches.
    The two following special questions were submitted to the jury, and were both answered by them in the affirmative.
    “(1) Were the defendants guilty of negligence in failing to furnish plaintiff a step?
    “(2) Were the defendants negligent in the manner in which the conductor or brakeman assisted plaintiff off of the car?”
    The trial resulted in a verdict in favor of the plaintiff for $1,500.
    It is now urged by counsel for defendants that the judgment entered should be set aside and reversed because it appears:
    (1) That the defendants were not guilty of any negligence.
    (2) That the plaintiff was guilty of contributory negligence as a matter of law.
    (3) That there was a fatal variance between the pleadings and the proofs.
    (4) That the trial judge erred in the charge to the jury as given.
   Kuhn, J.

(after stating the facts). There is no claim made by counsel for the plaintiff that it was negligence on the part of the railroad company to run a passenger car the last step of which is 16% inches above the ground or platform at a station. Plaintiff’s claim as to how the accident happened was thus stated by the learned trial judge in his charge to the jury:

“Plaintiff further claims as she was about to alight from the train at the place where the train stopped at Holland she informed the defendants’ brakeman or conductor that she had recently undergone an operation, and that it would be necessary for defendants’ brakeman or conductor to furnish a stool or step to be placed upon the ground beneath the steps of the passenger coach so she would not be compelled to take ■an unreasonably lengthy step in order to reach the ground, because of her condition, and that it would •be necessary for defendants’ brakeman or conductor to assist her in alighting from the train. Plaintiff further claims that after said brakeman or conductor had been requested to furnish the step or stool, and while plaintiff’s husband was in the act of setting down their suit cases upon the ground so as to be in position to assist her to alight, and while she was standing upon the step of the coach, said brakeman or conductor suddenly and without warning to her took hold of her person in a careless and negligent manner, pulled her off the step of the coach, thus causing her to take a long step from the step of the coach to the ground, and this long step, with the sudden pulling or jerking of said brakeman or conductor, caused the whole operation to be undone, and made it necessary for plaintiff to again submit to another operation, which caused her a great deal of pain and suffering, as described by her and her witnesses upon the stand. Plaintiff therefore claims: First, that it was the duty of the defendants to furnish her a safe and convenient method of alighting from said train, and that because of her condition, and because she informed defendants’ brakeman or conductor of her condition, and because of the distance of the step of the coach to the ground was greater than she could safely step, defendants should have furnished her a stool or step from which she could step from there to the ground; second, that it' was the further duty_ of defendants’ brakeman or conductor while attempting to assist her in alighting to do so in a careful and prudent manner, and not to suddenly pull her from the step.”

The jury in answering the second special question found that the company was negligent because of the manner in which the conductor or brakeman assisted the plaintiff off of the car. It is urged by defendants’ counsel that there was not sufficient evidence in the record to sustain this finding, and that a fair construction of all plaintiff’s testimony shows that the railroad employee assisted her to alight with great care. The plaintiff while on the witness stand testified in part as follows:

“Q. As you started to get off the step what took place ?
“A. I got down to the bottom step. I saw I could not step that high step, and I said I could not step that.
“Q. Who did you say it to?
“A. I said I must have a step.
“Q. What did he say?
“A. He said he could help me. I said, ‘No,’ I could not be lifted, because I had gone through what I had; I had the operation.
“Q. Did you tell him that?
“A. Yes.
“Q. And then what did he say?
“A. He said he would help me.
“Q. What did you say?
“A. Of course, I don’t remember everything, it went so quick, but I said I should have a step.
“Q. Then what happened?
“A. He took hold of me and pulled me carelessly off of there, and it hurt me, and hurt me awful, and I said so to Mr. Steketee afterwards.
“Q. When he pulled you, what happened to you?
“A. It hurt me.
“Q. What happened to your feet?
“A. I had to step that step.
“Q. Why? Why did you have to step that step?
“A. That was the only thing I could do.
“Q. Was it because he had hold of you pulling you?
“A. Why, yes.
“Q. Go on and tell why you had to take that step; where did he have hold of you?
“A. He took hold of my arm.
“Q. And then what did he do?
“A. Tried to help me down there and the step, of course, was too much — rather pulled me .like, and, of course, I felt the hurt. (Continuing.) I felt the hurt at the time I was taken off. When he took hold of my arm I had to step with one foot first. It was about 19 inches to the ground. I didn’t know how far it was just then; of course knew it was an awful high step. It was a high step for a well person. As he got me down I didn’t say anything particular to him; I said it hurt me awful.”

The authorities seem to be uniform in holding that in the case of a sick, aged, or otherwise infirm passenger the carrier should exercise a degree of care commensurate with the responsibility assumed', which would be such care as would be reasonably necessary to protect him in view of his condition. 2 Hutchinson on Carriers (3d Ed.), p. 1140; 6 Cyc. p. 598; 2 Moore on Carriers (2d Ed.), p. 1250; Croom v. Railway, 52 Minn. 296 (53 N. W. 1128, 18 L. R. A. 602, 38 Am. St. Rep. 557); 4 R. C. L. p. 1160, par. 594.

Whether or not the defendant upon this record failed to perform its duty was a question which in our opinion was properly submitted to the jury. The jury having affirmatively determined in answer to the special interrogatory that the company was negligent in the manner of helping the plaintiff off of the car, which determination, we think, finds support in the evidence, it will be unnecessary, to consider the other question of negligence relied upon by the plaintiff.

Neither are we of the opinion that it can be said that the plaintiff was guilty of contributory negligence as a matter of law. It is urged that it appears she was familiar with the conditions ’at the depot at Holland, and that neither she nor her husband gave any notice to the conductor or any member of the train crew of her physical condition, or made any request to be furnished with a stool at Holland until she was on the last step of the car and in the act of stepping off. It may be true that the distance between the step and .the platform had not impressed itself upon her mind while she was well, and undoubtedly she did not realize' the distance until she stood on the last step and was' about to alight. It does not appear that she got off of the car voluntarily, and when it became evident to her that taking the long step might possibly do her injury she had a right to hesitate and state her reasons for not alighting to the employee who was there to assist her.

The variance between the pleadings and proofs relied upon relates to the time and place of giving defendants’ employees notice of the plaintiff’s condition. With reference to this amendment, which was asked for and allowed after the proofs were in, the following occurred:

“Thereupon counsel for plaintiff moved ‘to amend the declaration at these places where it says the brakeman by inserting the word “conductor” following the word “brakeman,” and further, on page 3, the second paragraph from the top, I wish to amend by stating that as plaintiff was upon the steps and about to alight from the train she informed the said defendants’ brakeman or conductor that she could not alight from the step without having a step furnished because she has recently undergone an operation.’
“Mr. Diekema: We object to the motion being made at this time when the proofs are all in and the case has been closed.
“The Court: I think the amendment may be made.”

The -notice given by plaintiff was either to the defendants’ brakeman or conductor, and both of these witnesses were sworn upon the trial of the case and were present in the courtroom. It was not claimed by defendants’ counsel that they were surprised and could not meet the issue raised by this amendment, and we cannot say that the court abused its discretion in permitting the amendment to be made.

Careful reading of the court’s charge is satisfying that the issue presented was fairly submitted to the jury with proper legal instructions, and no prejudicial error was committed by the court therein.

We are unable to find any reason for disturbing .the judgment of the court below, and it will therefore be affirmed.

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


text:
    GALINSKI v. CITY OF DETROIT.
    1. Adverse Possession — Private Way — Highways and Streets.
    It is the general rule that use by permission of a private way cannot convert it into a public way.
    2. Same — Taxation,
    Where a city lot has not been occupied by any one, and has been used by adjoining owners as a court, and improved as such, with the apparent acquiescence of the original owners, there has been no such actual possession by the original owners or their grantees as to establish title by adverse possession as against a city claiming under a sale for city taxes.
    Appeal from Wayne; Hosmer, J.
    Submitted June 14, 1916.
    (Docket No. 122.)
    Decided September 26, 1916.
    Bill by Frank Galinski and others against the city of Detroit and Max Koch, city treasurer, to quiet title to certain land. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      William C. Gottman, for complainants.

      Walter Barlow (Harry J. Dingeman, of counsel), for defendants.
   Ostrander, J.

Complainants, whose bill was filed in December, 1913, charge that they are owners of a parcel of land, which is described, and have been such owners “for days now last past,” and that the land is worth $1,000 and more. The evidence of their title is a quitclaim deed which, desiring to have recorded, they presented to the city treasurer of Detroit in accordance with Act No. 472, Local Acts of 1901, chap. 10, § 10, with a request that he certify thereon that all city taxes and special assessments on said premises had been paid. This the said treasurer refused to do, exhibiting a book of “Land Sold for Taxes,” in which it appeared that the premises had been sold by successive city treasurers, beginning with the year 1886, and each year thereafter, to and including the year 1912, to the city of Detroit for city taxes and for certain special assessments, for the terms of 99 years. They charge, further, that they are in actual possession of the premises, and that from May 25, 1885, to the time of filing the bill of complaint they or their grantors have at all times been in the actual, continuous, notorious, distinct, hostile, and exclusive possession of the premises; that therefore all right, title, and interest in said city of Detroit through such sales are barred, avoided, and made of no effect. It is charged, further, that, excepting three described special assessments, there are no other unpaid assessments, and no city taxes on or against the premises; that the city proposes to issue a tax lease or leases for a period of 99 years to some person or persons unknown; and that the city of Detroit sets up title to the premises based upon tax sales. The relief prayed for is that the city of Detroit and its treasurer answer the bill; that the said several special assessment rolls and sales by city treasurers be decreed to be barred, avoided, and of no effect, and the premises be discharged from the apparent cloud upon the title; that the city of Detroit be decreed to release to complainants all of its apparent right and interest and the city treasurers be ordered to certify, as requested, that there are no outstanding taxes or assessments. The city and its treasurer joined in an answer, there was a replication, hearing, and a decree dismissing the bill.

In the answer it is asserted that the premises in question belong to the city by virtue of the said several tax sales', the total of taxes and special assessments laid and unpaid amounting to $972.22, the land having never been redeemed from such sale, nor the taxes and assessments paid. It is alleged, also, that in platting the original premises, of which lot 19 in question here was a part, and as said platted premises were. afterwards sold by the owner and built upon and used by various purchasers of parts thereof, lot 19 became in fact a private way, a roadway, improved and used as such, called and known as “Davis Place.” They allege that neither complainants nor their grantors have had adverse, or any actual, possession of the premises, and that the land has never been occupied since the year 1885 except as a private court for the purposes of adjacent owners and by public improvements made upon the premises to permit owners of dwellings fronting on said court to use the same,- and that the original owners, complainants’ grantors, abandoned the premises to be used as a private court.

Complainants’ theory appears to be that after a sale of land to the city for taxes and the expiration of the redemption period, the title vests in the city, the lien for taxes being merged in the title; that the title thus acquired may be lost by adverse possession, and that the city has, therefore, no lien for unpaid taxes against this property and the treasurer should have so certified; that in this case the certificate should be given and the title should also be quieted. See Gray v. City of Detroit, 113 Mich. 657 (71 N. W. 1107); Schneider v. City of Detroit, 135 Mich. 570 (98 N. W. 258); Cass Farm Co. v. City of Detroit, 139 Mich. 318 (102 N. W. 848); Klatt v. City of Detroit, 162 Mich. 186 (127 N. W. 409).

The bill and proofs show certain assessments for which the land has not been sold; and, unless it is held that the land was not liable to the assessments, this alone affords reason for refusing the treasurer’s certificate. And unless it is held that after the first sale and failure to redeem and, in consequence thereof, the premises were no longer liable to be taxed because they were city property, it is not perceived how the possession of complainants, assuming that it has been adverse to the city, has continued for a period long enough to toll the statute of limitations relied upon. But there is a serious objection, going to all of the relief claimed by complainants. While it appears that the complainants have acquired a quitclaim deed to the premises from the original owners, who platted the land and adjoining land, it also appears that the particular lot has not been occupied by any one, and has been used by adjoining owners and fitted for such use by improvement as a way or place, fronting which residences were erected, a use apparently acquiesced in by the owners of the original title. It is the general rule that use by permission of a private way cannot convert it into a public way, and there is no evidence that the owner of this land ever dedicated the land to the public. The evidence is, however, that the city has, to some extent, recognized the land as a way, or place, and, it being unoccupied, had no occasion to begin proceedings to eject or oust any private owner, none such appearing to have asserted a right to occupy. There has been no occupancy by one claiming the right, and no possession except such theoretical possession as runs with the title. Such a theoretical possession of the land may be as well claimed by the city as by complainants and their grantors. It will be assumed that when complainants, or some one else claiming the right to do so, actually occupies the premises, the city will begin proper legal proceedings to try title, or adjoining owners, who by the testimony appear to be interested, will take proceedings to establish such rights as they assert.

The complainants’ claim of a title by possession adverse to the title of the city is not sustained, and for this reason the decree dismissing the bill was right, and is affirmed with costs to appellees. Dismissal of the bill, however, is without prejudice to the right to institute such proceedings at law as may be advised.

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