author: Ostrander, C. J.

text:
    LAWRENCE v. CITY OF GRAND RAPIDS.
    1. Municipal Corporations — Taxation—Sewers—District As sessed — Common Council.
    Where the0 common council of a city determined the boundaries of a sewer district as a basis for a special improvement tax, without reference to known and ascertainable facts concerning the property benefited, its occupancy, boundaries and the buildings thereon; the lines of the district dividing lots, buildings and houses, and failing to include lands benefited by the proposed sewer, the action of the council was arbitrary and invalid.
    3. Taxation — Special Assessments — Public Improvements — Assessment According to Benefits.
    An assessment of all property within a sewer district in proportion to its area, without differentiating land benefited by direct access to the sewer from land that received advantages only by reason of surface drainage, or from land that could not be connected with the sewer except by crossing other private property, is erroneously apportioned.
    3. Same — Conolusiveness of Assessors’ Certificate.
    Neither the certificate of the assessors that they assessed the property in accordance with benefits, nor the confirmation thereof by the common council, is conclusive.
    4. Same — Estoppel — Appeal from Determination of Council.
    No estoppel bars taxpayers in a sewer assessment district from having relief in a court of chancery from an invalid assessment, on the theory that they did not appeal from the action of the common council in fixing the assessment district, or that they did not tender a part of the cost of the improvement, where no method of appeal is provided and they had no means of determining a proper amount to tender.
    5. Same.
    Nor were they estopped on the ground that they stood by without objection while the improvement was under construction, since they did not own property fronting on the sewer and had no notice that their property was included in the district until the sewer was nearly completed.
    Appeal from the superior court of the city of Grand Rapids j Stuart J.
    Submitted February 8,1911.
    (Docket No. 8.)
    Decided June 2, 1911.
    Bill by John S. Lawrence and others against the city of Grand Rapids and another to set aside a special assessment. From a decree for complainant, the defendant the city of Grand Rapids appeals.
    Affirmed.

      Albert Crane, for complainants.

      Moses Taggart and Clark E. Higbee, for defendant.
   Ostrander, C. J.

Sixteen persons affected by a sewer tax, the roll for which was in the hands of the city treasurer of the city of Grand Rapids for collection, filed their bill against the city and the treasurer thereof, asking that the proceedings for the levying and collection of the tax and the said tax and assessment be decreed to be illegal and invalid, and that the defendants be enjoined from any further attempt to enforce the collection thereof. The defendant city answered the bill. There was the usual replication, and the cause came on to be heard upon the pleadings and proofs taken in open court as in a suit at law. A decree was entered adjudging the assessment district described in the bill to be illegal and invalid, the assessment and assessment roll to be illegal and invalid, and perpetually enjoining the defendants from collecting the unpaid assessments. The decree is without prejudice to the right of the city to locate a new assessment district and make a new assessment of property therein. The defendant city has appealed.

The several contentions of appellant, as we view them, amount to this: That a special assessment district was legally designated and the special assessment upon the property within the district to meet the cost of the improvement was legally made. If not, certain, if not all, of the complainants are estopped to take advantage of the illegal action complained about.

We shall consider, first, whether an assessment district was properly designated or whether the action of the council in fixing the boundaries thereof was arbitrary and therefore illegal; second, whether an assessment according to benefits within the meaning of the charter provisions was made; third, if either the fixing of the district or the assessment roll is found to be illegal, whether any of the complainants are estopped to question the validity of their respective assessments.

It is the duty of the common council under the charter, when a special improvement is made, the benefits accruing from which are regarded as local, to determine the boundaries of the district within which the property is supposed to be specially benefited by the improvement, and the district having been fixed by the common council and the cost of the improvement ascertained, or estimated, it is the duty of the board of assessors to apportion the cost of the improvement within the district upon all owners or occupants of lands or houses within said district in proportion as nearly as may be to the advantage each shall be deemed to acquire by the making of such public improvement. The carving out of a special assessment district in a city is a practical matter, depending wholly upon facts, and, if the improvement is a sewer, it cannot be supposed that the governing body can ever fix the boundaries of the district precisely in accordance with the boundaries of property which in opinion or in fact receive some special benefit on account of the improvement. It is the general rule that when a common council has in good faith, with reference to ascertainable facts, defined such a special assessment district, its conclusion in the premises is final.

It is claimed in this case that the council did not act with reference to the known or ascertainable facts, but in a wholly arbitrary manner, in fixing the boundaries of the particular assessment district. This brings us to an examination of what the record discloses upon this branch of the case. The district in question was located with respect to an improvement which consisted of the reconstruction of a part of the East Fulton street sewer. East Fulton street in the city of Grand Rapids may be described generally as a way running nearly east and west, built for a considerable or the greater part of its length upon the side of a hill. The land to the north of it (up the hill) is. higher than the roadway, and the land to the south of it (down the hill) is lower than the roadway. The entire area of the land involved here lying east of Jefferson street is drained naturally to the south, or, in the northern part of the district, to the south and east. Dwellings fronting upon the street on the south side thereof have, many of them, ground floors level with or below the level of the street, and their rear or south walls a considerable distance, sometimes the height of a story, above the level of the ground. From Jefferson street west, this abutting land is more nearly upon the same level as the street.

For many years a sewer had existed in East Fulton street, its mouth being at Division street, and its beginning a short distance west of North College street. Opening into Fulton from the south are Division, Sheldon, Lagrave, Jefferson, Lafayette, Prospect, Gay, and from the north Division, West Park, East Park, Ransom, Barclay, North Lafayette, North Prospect, all within the district traversed by the sewer as originally laid. The enlarging and deepening of the sewer began at Division street and was continued to, or near to, Barclay street. No lateral sewers enter Fulton street sewer from the south, but there are laterals opening into the sewer from the north from Barclay, from North Lafayette and from North Prospect street. The city engineer, whose testimony upon this point is undisputed, said:

“ The sewers carry away not only sewage but surface water; After streets have been paved the water flows away more rapidly,, and we put in more catch basins now than we used to; the water gets into the sewers quicker. As the lawns are improved the water runs off more quickly, and a large amount reaches the sewers. The changes in the pavement of streets from the old gravel to the new pavements and the building of lawns on the lots occasion a large flow of water and require larger sewers than were required originally. We are now figuring our sewers today four or five times larger than the old ones, depending upon conditions; the surface water as well as the sewage is anticipated. The house sewage is a secondary matter, and is a very small percentage of the whole. The amount of increase by reason of the paving of streets and their improvement cannot be estimated very closely, but we figure four or five times as large canal as under old conditions.”

It was in the office of the city engineer that the map used by the committee of the council which considered the location of the district was prepared. It is apparent from the testimony and from the map which is a part of the record that the council undertook to fix a district, with the aid of the engineer, embracing property the surface drainage of which, conducted by way of streets, lateral sewers, and otherwise, would reach the East Fulton street sewer, and to embrace also property which by reason of its contiguity to the sewer could be directly connected with the sewer. For the greater portion of the distance on the south side of East Fulton street the south boundary of the district is fixed 100 feet south of the street. On the north side of the street, and at the eastern end of the district, it is for a considerable distance limited to 100 feet north of Fulton street. Then the boundary line is extended north to within 100 feet of Fountain street, which appears to be the first street to the north of East Fulton upon which there is an east and west sewer, and which is about 762 feet north of Fulton. Paralleling Fountain street, the boundary runs west 100 feet from the street to a point about 100 feet west of Ransom street, thence south and west, and thence southwest and irregularly northwest to Division street, which is the mouth of the sewer. Complainants say with respect to this district that there is a considerable area of territory, which naturally drains into this sewer and must do so because it can have neither drainage or sewerage in any other direction, which has been omitted from the district, while other property within the district as fixed receives, and can receive, no possible benefit from the improvement. The boundary line of the district traverses the property of various owners without regard to the boundaries of the property and intersects dwellings and buildings devoted to business. As indicating the manner in which the boundary line of the assessment district intersects property, and also as indicating the extent of property draining into the sewer omitted from the assessment roll, we set out here some of the undisputed testimony upon the subject:

“ Beginning at the east end of the district on the north side of Fulton street, there is the Hughart property; about a quarter of that property is in the district. The whole property drains into this sewer and can’t drain into any other place. About a fourth of the house on that property is in the district and the balance of the house outside of the district. On the same side of the street next west is the Boshea property now owned by John W. Blodgett; all of that property drains into the Fulton street sewer and can’t drain to any other point; the entire house is outside of the district and about £ of the lot. The Shanahan property is next to the west; the only portion of the house within the district at all is a foot or two of the front porch; the whole house is outside of the district and about £ of the lot; all of that property can only drain into Fulton street. The next is the Gorham property in which case all of the house is outside of the district and about £ of the lot, neither of which could drain anywhere else excepting to Fulton street sewer. Next is the T. Stuart White property which lot and house can only drain into this sewer; £ of the house is within the district, and the balance of the house and about £ of the lot is outside. These lots all along there are approximately 400 feet deep and there is a front; 100 feet is in the district, the balance is outside. The next property is the Blodgett’s, and £ of the entire property is outside of the district, and also outside is his barn in which there is a family living; a portion of the house is also outside of the district. That property could only drain into the Fulton street sewer, Prospect being a lateral. Mrs. Worden’s property is north of the Blodgett property, and i approximately of that lot is outside of the district and the barn is out of the district, while the whole property drains to Prospect street. Next north of that is the Rood property which drains to Prospect street and can go nowhere else; a portion of his house and rear half of his lot is out of the district. Next north of that is Mr. Stiekley’s property. A portion of his house and the rear half of his lot including the barn, is outside of the district. There is no possible drainage for that lot except into Prospect street. Next to that is the Studley place. The rear half of the lot, including the barn and rear half of the house is outside of the district entirely. That drains to Prospect street. Coming west there is the rear of Mrs. Crosby’s place now occupied by Owen Chaffee who purchased it. The part of the Crosby lot which is in the district can’t get to any sewer running into Fulton street at all without crossing private property. At Barclay street there is the Methodist church parsonage on the east side of the street. That is divided longitudinally by the north line of this district; part of the house being in the district and part out. The whole of that property drains into Barclay street and could go nowhere else. It is so low they could not possibly get to Fountain. Next west is the Hoffman flats, a six-story apartment building. That is divided by the north line of the district, 4 of the building being in the district, and f out. That building drains into Ransom street and couldn’t possibly drain elsewhere. The Gillespie property, the bishop’s residence, fronts on Fountain street. About the rear $ of that property is assessed in this district and that portion of the lot couldn’t by any possibility be drained into the Fulton street sewer without crossing other private property. And the same thing is true of the one at the rear, i of the J. C. Wen-ham lot which adjoins the bishop’s residence on the east. The school of the Sisters of Dominic is a property which might drain into Fountain street or into Ransom street or both, and about $ of the building and f- of the barn on that property are in the district, and the balance of the building outside. The Birch property on the corner of North Park street and Ransom is divided by the west line of the district, a small portion of that building being outside of the district and the balance inside. About £ of the Park Congregational church building is in the district and § outside. At the corner of Sheldon and East Fulton streets are the Press and Herald buildings, both of which front on the sewer, and they are not in the district at all. A part of the Watson residence, the house, is outside of the district. A portion of the house on the rear of the Blake & Maris property is about i in the district and f out. Half of the Wellington flats is in the district, and the other half out. A portion of Mrs. Ransom C. Luce’s residence is in the district and a portion out. Part of the Platte residence is in the district and part out. Part of the old White place is in and part out. Part of the M. L. Sweet place is in the district and part out. Paul Steketee’s residence is divided longitudinally by the line of the district about half and half; while William H. Gay’s house is cut in two in the middle by the line of the district, and so is Mr. Morman’s. Mr. Gay’s, Steketee’s, Morman’s, Aldworth’s and Leonard’s residences on the south side of Fulton street are all divided by the line of the district; part of them inside and part outside.
“Witness is asked to take the map and, commencing at the east end of the East Fulton street sewer, to tell what property which drains into the sewer and must be so has been omitted from the assessment roll.
“Beginning with the Hughart property which is described as part of section 30 — 7—11, a part of lot 8 Coit & Curtis partition plat, commencing on the north line of East Fulton street 362.82 feet east of the north and south quarter line of said section, thence north 356 feet, east 134 feet, south 110 feet, east 16 feet, south 246 feet to the north line of East Fulton street, west to beginning. The next is the J. W. Blodgett property, part of section 30 — 7—11, commencing on the north line of East Fulton street 215.82 feet east of the north and south quarter line of said section, north 406 feet, east 147 feet, south 406 feet to the north line of East Fulton street, west 147 feet to beginning. The R. E. Shanahan property is described as the east half of the east half of the south half of lots, 1, 2, and 3 Coit & Curtis partition plat. The Gorham place as the west half of the east half of south half of lots 1, 2, and 3 Coit & Curtis partition plat. The White place as the west half of the south half of lots 1, 2, and 3, Coit & Curtis partition plat. D. A. Blodgett property as lots 78 and 79, block 5, Kendall’s addition. The Worden place is lot 6 and south 30 feet lot 5, block 5, Kendall’s addition. The Rood place is the south 44 feet of lot 4 and north 56 feet of lot 5, block 5, Kendall’s addition. The Stickley place is lot 3, block 5, and north 32 feet of lot 4, block 5, Kendall’s addition. The E. G. Studley place is lot 2 and the south 50 feet of lot 1, block 5, Kendall’s addition. The Berkey place is the north 100 feet of lot 1, block 5, Kendall’s addition. The Crosby property is lot 2 and east half of a 9-foot vacated alley on the west in block 4, Kendall’s addition. The Methodist parsonage, that part of block 3, Kendall’s addition commencing 82.5 feet south of the northwest corner of said block 3, south 52 feet, east 130 feet. The Hoffman flats is the north 55 feet of lot 4, block 26, Campau’s addition. The Sisters of St. Dominic is lots 1 and 2 and east half of lot 3, block 23, Campau’s addition. The Birch property is lots 10 and 11, block 23, Campau’s addition. Park Congregational Church is lots 1, 2, 3, 4, and 5 of block 22 of same addition. The Evening Press property is lot 1 and the east 12 feet of lot 4, block 16, Bostwick & Co.’s addition. The Herald building is the west 36 feet of lot 4 and east 24 feet of lot 5, the west 10 feet of the east 34 feet of north 62.5 feet of lot 5, block 16, Bostwick & Co.’s addition. Mrs. Watson is lots 9 and 12 and the west 10 feet of lot 8, block 13, Bostwick & Co.’s addition. Blake & Maris property is lot 9, block 2, Bostwick & Co.’s addition. The Wellington flats is the south 40 feet of lot 1, south 40 feet of east 8 feet of lot 4, and west 43 feet of lot 4 and the east 2 feet of lot 5, block 2, Bostwick & Co’s addition. Mrs. Luton’s property is the south 40 feet of the north 120 feet of lot 1 and the south 40 feet of the north 12.0 feet of the east 8 feet of lot 4, block 2, Bostwick & Co.’s addition. The Luce property is part of the N. E. \ of the S. W. i section 30 — 7—11, commencing at the S. E. corner of East Fulton street and Jefferson avenue, south 178 feet, east 132 feet, north 178.5 feet, west 132 feet to beginning. The Platte property is part of N. E. i of the S. W. £ of section 30 — 7—11, commencing on the south line East Fulton street east of the east line of Jefferson avenue, south 297 feet, east 82 feet, north 297 feet, west 82 feet to beginning. The A. W. Pike property is part of the N. E. £ of the S. W. J section 30 — 7—11, commencing 18 rods east and 2 rods south of the N. Y\7. corner of that 40, south 297 feet, east 132 feet, north 297 feet, west 132 feet to beginning. The M. L. Sweet place is part of the N. E. i of the S. W. ¿ section 30 — 7—11, commencing on the south line of East Fulton street 26 rods east and 2 rods south of the N. W. corner of that 40, south 136]-| feet east to the west line of South Lafayette street, north to the south line of East Eulton street and west to beginning. The Peter P. Steketee property is lots 1 and 2 except the south 3 feet of Mintu’s subdivision of part of block 2 of Campau’s addition. The Morman property is lot 2 and the north 30 feet of west 62.93 feet of lot 3, Gay’s subdivision. The Aldworth property is lot 1 and the north 40 feet of lot 3 except the north 30 feet of the west 62.93 feet of lot 3, Gay’s subdivision. The Leonard property is part of the N. W. i of the S. W. J of section 30 — 7—11, commencing on the south line of East Fulton street and the east,line of block 1, Campau’s second addition, west 100 feet, south 250 feet, west 100 feet, north 250 feet to beginning.
“ There is another house that is divided by this district line, and that is the residence of Silas F. Godfrey’s family. That is described as lots 1 and 6, block 22, Campau’s addition. _ The Wenham block is also divided by this line, and that is described as lot 5, block 21, Campau’s addition, except north 44 feet of lot 6, block 21, Campau’s addition, except south 21 feet, a part of lot 6, block 21, Campau’s addition, commencing 21 feet north of the south line of said lot 6, south along east line of North Division street to northerly line of Monroe street, southeasterly on said northerly line 45 feet, northeasterly at right angles with Monroe street 70 feet, west to beginning.
“ That covers the description of all the property all portions of which are omitted from this district.”

From this and other testimony we feel obliged to agree with the trial judge in the conclusion that the boundaries of the district were fixed by the common council without reference either to known or ascertainable facts; that the action was arbitrary and unwarranted. We are of opinion, also, that the bill of complaint, fairly interpreted, charges the creation of a district invalid because not including lands benefited by the improvement.

It appears that the expense of the improvement was apportioned to property within the assessment district in accordance with area, the tax amounting in each instance to substantially 9.6 mills per square foot. We can understand that natural drainage should be taken into account in fixing the limits of a special assessment district and in the apportionment of benefits in a city where the sewers serve the purpose for which storm drains separate from sewers are sometimes constructed; but we should expect, and we think reason demands, that property benefited otherwise than by surface drainage should be considered as enjoying an additional benefit and advantage on account of the sewer. Some of the property assessed appears to be so situated that its surface drainage is to the sewer, but no connection can be made with the sewer or any lateral thereof without crossing other private property. Such property is, however, assessed at the same rate as property immediately fronting upon the street in which the sewer is constructed.

We shall not attempt to lay down a rule for determining the benefits accruing to property by reason of a special improvement like a sewer. It is likely that no rule could be formulated. Some things in connection therewith, however, appear to us to be reasonably clear. The benefit accruing to an owner of property when a sewer is constructed in the street upon which the property abuts does not necessarily depend upon the use to which the property is devoted. ' An owner of vacant property abutting upon a sewer is benefited by the construction of the sewer and perhaps quite as much so as if there were standing upon his land an apartment house housing a large number of people, since, with the sewer once laid, his property may be devoted to the housing of any number of people which it will contain. Nor are we impressed with the argument that the owner of an apartment house on property abutting upon a sewer is more greatly benefited by the sewer than would be the owner of a dwelling upon the same property; or, that a dwelling costing $100,000 is more greatly benefited than one costing $10,000 on account of the equal right and convenience of connection with the sewer. In whatever way these considerations may affect the judgment of those charged with the duty of apportioning the cost of the sewer to the owner of benefited property, it is clear that an apportionment upon the basis of the area of the property is not, in this case, an apportionment which is in proportion, as nearly as may be, to the advantage which each owner acquires or obtains. The apportionment is wrong because the theory and method of apportionment was wrong. Whether we call the action of the assessors a mistake, or an abuse of discretion, the result is the same, and the legal injury to complainants is apparent. Auditor General v. O’Neill, 143 Mich. 343 (106 N. W. 895). See, also, Auditor General v. Bishop, 161 Mich. 117 (125 N. W. 715). The fact that the certificate of the assessors recites that an assessment in accordance with benefits was made, and the further fact that the council finally confirmed the roll, are not in such a case conclusive.

In August, 1905, in accordance with a request preferred by the council, the board of public works reported, the estimated cost of the improvement. In October of' the same year, the improvement was declared to be a necessary one. A contract for its construction was approved September 17, 1906. In July, 1907, the estimated cost of the improvement, being $10,697, was ordered to be apportioned within the district theretofore fixed, and in the same month the board of assessors returned and filed the assessment roll. A day was fixed for hearing appeals from the said action of the assessors and notice thereof was given by publication in a newspaper published in the city. It is required by the charter, and was ordered by the council, that the said notice contain the names of those assessed. This notice was given. It did not contain the names of all owners of property assessed, because in some instances the wife of the person named therein, and in the roll, was the owner of the property; in others, the property was owned by the husband and wife by entireties and only the name of the husband was given. Twenty-nine or more persons appealed to the common council, among them eight of the complainants. It does not appear that all stated the same grounds for appealing and none of them questioned the action of the council fixing the assessment district except that four of the complainants stated that the district did not include all of the property benefited. Some changes were made in the roll by the council by diminishing certain assessments and adding the amount to other assessments. The roll was thereafter confirmed. The assessors certified that the roll was made in accordance with the resolution and direction of the council and according to benefits. It is said that no fraud of favoritism has been shown and that in view of the certificate of the assessors and of the settled law the courts may not review the matter. This point has already been disposed of favorably to the appellees. It is to be noticed, however, that the changes made in the roll by the common council affecting a few of the assessments leave it wholly uncertain upon what basis, or according to what theory, that portion of the expense of the improvement is levied. As to the remainder there is and can be no dispute. It was considered by the assessors that an assessment according to drainage area was an assessment according to benefits, within the meaning of the charter, and the assessment is so laid.

There is no provision of law for appealing from the action of the common council fixing a special assessment district. It is not possible for complainants to compute, and so to tender, or offer to pay, 'a proper assessment. We hold, therefore, that the complainants not appealing from the assessment roll are not estopped to question the assessment in this proceeding, and that the failure to pay or offer to pay any part of the cost of the improvement is excused. Nor do complainants occupy the position of taxpayers who stand by without complaining until they have received the benefit of a public improvement and thereby estop themselves to question the cost thereof apportioned to them. None of the complainants had property fronting on the sewer. Assuming that they were aware that the sewer was being reconstructed at the expense of taxpayers, it appears that the improvement was completed in the summer of 1907 and no notice of the creation of the special district was given until July 15, 1907. That is to say, the complainants could not know, until at or about the time the improvement was completed, how they would be affected, if affected at all, by the action of the public authorities.

There are some other questions argued in the brief for appellant which, in view of the rulings indicated, and the probability that a new district and a new roll will be made, do not require discussion.

We affirm the decree of the circuit court, with costs to appellees.

Bird, Brooke, Blair, and Stone, JJ., concurred.


source: Caselaw Access Project

author:
Brooke, J.
      Moore, J.

license: Public Domain

text:
    KROUSE v. DETROIT UNITED RAILWAY.
    New Trial — Weight of Evidence — Setting Aside Yerdiot — Motions.
    After one verdict has been set aside and a new trial granted because the verdict was against the weight of the evidence, and after a second trial resulting in a similar verdict, the trial court having expressed his opinion that the verdict was erroneous, but that he could not determine as a matter of law that it was contrary to the weight of evidence, the Supreme Court may grant a new trial on a record showing that the verdict rested on plaintiff’s unsupported testimony contradicted by four disinterested witnesses who were unimpeached on any material point. Moore, Bird, and Blair, JJ., dissenting.
    Error to Wayne; Mandell, J.
    Submitted February 15, 1911.
    (Docket No. 7.)
    Decided June 2, 1911.
    Case by Ella Krouse against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Brennan, Donnelly & Van De Mark, for appellant.

      William G. Gottman, for appellee.
   Brooke, J.

In this case as set out in the opinion of my Brother Moore, the plaintiff’s right to recover rests upon her own unsupported statements as to the facts. Her interest is, of course, manifest. .Opposed to her are four witnesses, not one of whom, at the time of the trial, had the slightest interest in the controversy. Drouillard, the conductor at the time of the accident, had been discharged by defendant before the case was tried in the lower court. Rogers, the motorman at the time, was, when the case was tried, employed by the Grand. Trunk Railway. Whether he was discharged by defendant or left voluntarily the record does not disclose. David was a freight handler for the Grand Trunk, and McLellan a locomotive fireman. Three of these men, Drouillard, David, and McLellan, were upon the back platform at the time of plaintiff’s injury and were consequently within a very few feet of her when she left the car. All four testify most positively that the car made no stop at Scotten avenue, and the three who were on the rear platform and saw plaintiff are equally positive that she stepped or stumbled off the car while it was in motion. The place in the street where she fell has also a very material bearing upon the probable truth of her statements. All agree that she lay upon the street at a point at least 150 feet west of Scotten avenue. After her injury she was carried back that distance to the drug store on the corner. In denying a motion for a new trial, the court made the following statement:

“While I do not agree with the jury in the conclusion reached by them, nevertheless I feel that on some material points the witnesses for the defense were impeached. One or two of the witnesses in giving their testimony conducted themselves in a manner that would not or might not have carried conviction in the minds of the jury. This case was heretofore tried before Hon. George S. Hosmer, one of my associates, and a verdict at that trial was returned in favor of the plaintiff. On a motion for a new trial, the court granted a new trial on the theory that the verdict then rendered was against the weight of the evidence. It seems proper to consider this fact in now determining whether the verdict at the second trial was against the weight of the evidence. While I agree with my Brother Hosmer, that the defendant should have prevailed at the trial, nevertheless, in view of the fact that twenty-four jurors have determined that the plaintiff, unsupported by other evidence, was to be believed in preference to the witnesses for the defendant, who were in some degree impeached, and in some particulars contradicted one another, nevertheless, I cannot as a matter of law find that the verdict was against the weight of evidence.”

This language of the learned circuit judge most clearly shows that in his opinion the verdict, if followed by judgment, would result in a miscarriage of justice. This situation differs radically from that discussed in Dupuis v. Traction Co., 146 Mich. 151 (109 N. W. 413), and the difference renders the quotation made from that case by my Brother Moore entirely inapplicable. The functions of the jury are too well defined to require discussion. I do not disagree with my Brother as to what those functions are. But it is nevertheless a fact that sometimes juries do render verdicts against the weight of the evidence, and when they do render such verdicts, either through inadvertence, sympathy, or prejudice, it is the duty of the trial court to promptly set them aside. The fact that a second jury falls into the same error which the first did should afford no reason for changing the rule or its application. Upon the failure of the trial court to act under such circumstances, our own duty is clear. In the late case (In re McIntyre’s Estate, 160 Mich. 117 [125 N. W. 51]), this identical question was discussed at some length. In that case, as in the case at bar, the trial judge, upon a motion for a new trial, had expressed his opinion that the verdict was against the weight of the evidence, but, despite this conviction, had denied the motion. This court there said:

“We held in the case of Hintz v. Railroad Co., 132 Mich. 305 (93 N. W. 634), that it was the duty of this court to review the evidence in a cause to determine whether a- ruling upon a motion for new trial upon the ground that the verdict was contrary to the weight of evidence was erroneous. We cannot escape this responsibility which was doubtless imposed by the legislature to provide relief against palpable miscarriages of justice through unjust verdicts, which all judges and lawyers know to be not uncommon. In the exercise of this power this court cannot content itself with a mere determination that there is a conflict of evidence, and that the jury is as well qualified to judge of the facts and the credibility of testimony as itself, which was the rule before, or that the trial judge has approved the verdict or even expressed his own belief that the verdict is not against the weight of evidence, and thereupon affirm the denial of a motion, but it must examine the testimony and determine for itself whether or not the verdict is so plainly against justice as to call for a new trial. That this statute may be disapproved by those who entertain the idea that the verdicts of juries are necessarily and invariably honest, candid, discriminating and just, does not affect the question. Evidently the legislature has recognized the common belief that jurors have their foibles and juries their faults which interfere with the ideal administration of justice, and has attempted to apply a remedy by enlarging the rule heretofore adopted and followed by the appellate courts.”

A careful examination of the record has failed to disclose to me a single instance where any witness for defendant was impeached or in any manner discredited as to the material question at issue; i. e., “Did the car stop at or near Scotten avenue before plaintiff attempted to alight, or was it in motion when she alighted ? ”

I think the verdict is clearly against the weight of evidence. The judgment should be reversed, and a new trial ordered.

Ostrander, O. J., and Hooker, McAlvay, and Stone, JJ., concurred with Brooke, J.

Moore, J.

(dissenting). The plaintiff recovered a judgment of $700 for injuries received by her while alighting from one of defendant’s street cars. The case is brought here by writ of error. The plaintiff testified in substance that she was a passenger on a Fort street car, and when the conductor called Campau-Scotten streets—

“ I went to the door and asked him if he said Scotten, and he rang the bell, and I had my hand on the left side of the door, waiting for the car to go slow, and when the car began to go slow I walked out of the door, and he said * * * he would stop the car for me. When the car stopped, I put my left hand on the bar and stepped down the step, and was about to put my right foot to the ground when the car started and threw me, and that is the last I knew. I signaled the car to stop at Campau, whether just before or just after Campau I could not say. Campau is east of Scotten. Scotten is sixty paces from Campau. When I was getting off my foot was on the lower step and I was holding onto the bar with my left hand. The car came to a dead stop. * * * It was something after seven; I could not tell the exact time, for I don’t know the time it would take to go that far. After I had been thrown from the car I don’t know what happened to me then. I was unconscious after then, and found myself at a west side hospital, and remained there until Saturday.”

The testimony of the conductor and two other witnesses on the part of the defendant tended to show that the car did not stop.

“We were going west on Fort street, and when I came to Campau avenue I called Campau and Scotten before I got there, and just after I had called a lady came from the middle of the car and asked if it was Scotten I called, and I said, ‘Yes,’ and she said, ‘ I want to get off there,’ and I said, ‘ I will let you off the next stop,’ and she said, ‘All right,’ and I gave themotorman the bell to stop. He had not stopped at Scotten avenue going west, and she jumped off the car as the car was in motion, after it passed there.”

Some of the testimony offered by defendant was to the effect that the car was going seven to ten miles an hour or even more. It will be observed that the testimony was very conflicting.

In Conely v. McDonald, 40 Mich. 158, it was said:

“ ‘The court of trial may set aside a verdict which violates justice, and it is to that tribunal that parties must apply for relief against excessive damages or any other of the wrongs for which it may be right to grant a new trial. We are bound in all cases to assume that the jury have done no legal wrong, when acting within their province.’
“* * * Under our system of jurisprudence, the jury is called to pass upon the facts.
“ It is not only their privilege but their right to judge of the sufficiency of the evidence introduced to establish any one or more facts in the case on trial. The credibility of witnesses, the strength of their testimony, its tendency and the proper weight to be given it, are matters peculiarly within their province. The law has constituted them the proper tribunal for the determination of such questions. To take from them this right is but usurping a power not given. The jury should be left entirely free to act according to their own judgment. Where there is a total defect of evidence as to any essential fact, or a spark, the least particle, a scintilla, as it is termed, the case should be withdrawn from the consideration of the jury. Where, however, the evidence introduced has a legal tendency to make out a proper case in all its parts, then, although it may in the opinion of the trial court or the appellate court be slight, inconclusive, and far from satisfactory, yet it should be submitted to the jury, whose proper province it is to consider and determine its tendency and weight.”

See, also, Swoboda v. Ward, 40 Mich. 424; Rosie v. Willard, 44 Mich. 383 (6 N. W. 872); Maxwell v. Bridge Co., 46 Mich. 278 (9 N. W. 410); Sheldon v. Railroad Co., 59 Mich. 175 (26 N. W. 507); Brezee v. Powers, 80 Mich. 182 (45 N. W. 130); Weidman v. Symes, 116 Mich. 620 (74 N. W. 1008). Under these authorities it is evident the case was a proper one to be submitted to the jury.

Error is assigned upon the following in the charge:

“What is the claim of the defendant? The claim of the defendant company is, first, that the plaintiff in what she did, did not act in a prudent and cautious way. The claim of the defendant company is that the car was signaled to stop by her, but it was signaled so late that it was impossible to stop the car where she desired to have it stop, and that she, either through inadvertence, because it is inconceivable to believe that she did what the defendant claims she did purposely, so they claim, through absent-mindedness, or something else, stepped off the car while the car was in motion.”

We quote from the brief:

“We submit that the language employed by the court was prejudicial to the defendant for the reason that it conveyed the impression that our claim was that she alighted from this car purposely.”

The language of the court is somewhat ambiguous, depending upon the punctuation and where you place the emphasis, but the jury was instructed in the most positive way*

“If you find that the car was moving and was in motion when she attempted to get off, I charge and instruct you that she under such circumstances would be guilty of contributory negligence and could not recover.”

It is claimed another portion of the charge was harmful because not supported by the evidence. That portion of the charge to which reference is made is not a statement of the evidence, but is a statement of the claim of the plaintiff, and we do not think it misleading. Error is assigned because the court did not give defendant’s written requests which were laid upon his desk, but to which attention was not orally called. It is sufficient to say of this assignment of error that some of the requests it would have been improper to give, and as to those that were proper they were fully covered by the general charge.

After the verdict, a motion was made for a new trial, which motion was overruled. This is assigned as error, and counsel urge very strenuously that a new trial should have been granted because the verdict was against the weight of the evidence. In overruling the motion for a new trial, among other things the circuit judge said:

“This case was tried by a jury, and the principal disputed question of fact submitted for determination to the jury was whether at the time the plaintiff attempted to alight from the car of the defendant company, the said car was at a standstill or was in motion. On this disputed question of fact it is true that there were four witnesses on behalf of the theory of the defendant, and but one witness, the plaintiff herself, who testified in favor of the theory of the plaintiff. It is on this ground that the defendant urges that the verdict was against the weight of the evidence. The court instructed the jury that in reaching a determination on this disputed question of fact, it was their duty to take into consideration the number of witnesses; the court also instructed the jury it was their duty to consider the nature and character of the testimony given by the various witnesses, the question as to whether the witnesses had been impeached or not, and so forth. While I do not agree with the jury in the conclusion reached by them, nevertheless I feel that on some material points the witnesses for the defense were impeached. One or two of the witnesses in giving their testimony conducted themselves in a manner that would not or might not have carried conviction in the minds of the jury.”

In Dupuis v. Traction Co., 146 Mich. 156 (109 N. W. 414), in discussing the question of a new trial, the court said:

“Unless the court is to substitute its judgment upon questions of fact for that of the jury, it logically follows that it would have been error to refuse to submit the question to the jury. See the late case of Line v. Railway Co., 143 Mich. 163 (106 N. W. 719), where many of the decisions of this court upon that point are collated. In Hintz v. Railroad Co., 132 Mich. 308 (93 N. W. 635), in discussing the duty of this court when the trial judge had refused a new trial, Justice Carpenter said:

“ ‘ In exercising it, we are bound to recognize the principles which have always governed trial courts in determining whether or not verdicts should be set aside. We are also bound to bring to the support of the decision of the trial judge all reasonable presumptions which arise from his superior opportunity to determine the credibility of witnesses.’
“ See, also, Finkbinder v. Ernst, 135 Mich. 226 (97 N. W. 684, 100 N. W. 180); Line v. Railway Co., supra.
“As said before, a number of witnesses testified supporting fully plaintiff’s theory of the case. The circuit judge saw and heard these witnesses, and had an excellent opportunity to judge of their truthfulness. He did not abuse his discretion in refusing a new trial upon the ground that the verdict was against the weight of the evidence.”

In Bartle v. Railway Co., 132 Mich. 290 (93 N. W. 620), in an opinion written by Justice Carpenter, this court declined to reverse the decision of the trial court in denying a motion for a new trial based on the ground that the verdict was against the weight of the evidence, where the only question was whether a street car was in motion at the time plaintiff attempted to alight, and her testimony was corroborated by other evidence, though the conductor and six passengers testified that it was in rapid motion.

In Hyde v. Haak, 132 Mich. 364 (93 N. W. 877), Justice Grant, speaking for the court, said:

“There have been three trials before a jury, and each time a verdict has been rendered in favor of the plaintiffs. Twice the court below set the verdict aside, upon the motion of the defendants, on the ground that the verdict was against the weight of the evidence. After three verdicts, the court refused to grant a new trial. Defendants now ask that this action of the circuit court be reviewed.
“ It is unnecessary to review the testimony. There was substantial evidence in behalf of the plaintiffs. Three juries have believed the witnesses on the part of the plaintiffs, rather than those in behalf of the defendants. It is not contended that there is not a conflict of evidence, so that the question is a proper one for the jury. After three juries have passed upon it, we think the court below was justified in refusing a fourth trial.”

In Stevens v. Soap Works, 134 Mich. 350 (96 N. W. 435), Justice Hooker, speaking for the court, said:

“We are cited to some extreme cases in support of the doctrine that an appellate court should order a new trial when the defendant’s testimony is corroborated, as against the unsupported testimony of the plaintiff. This court has never gone further than to reverse a case where the verdict is clearly against the overwhelming weight of evidence, and we think that this is not a case for reversal under our precedents.”

In Lovely v. Railway Co., 137 Mich. 653 (100 N. W. 894), Justice Montgomery, speaking for the court, said:

“The case must be a very clear one, affording very strong evidence that the verdict is the result of bias or prejudice, to justify this court in overturning a decision of the trial judge adverse to a new trial on this ground. He has the advantage of having seen the witnesses, and of having noted their appearance on the stand.”

In Re Hoyles’ Estate, 162 Mich. 275 (127 N. W. 284), Justice Stone, writing the opinion, this court declined to direct a new trial, though the trial court in denying the motion for a new trial used language indicating that in his opinion the verdict was against the weight of evidence.

If the plaintiff told the truth, the conductor and motorman did not. That presented a question of fact for the jury. An examination of the record shows the judge was right in saying that on some material points the witnesses for the defense were impeached and their manner in giving their testimony might have discredited them. There is nothing in this record to justify this court, which has not seen and heard the witnesses, in overruling the action of the trial judge who saw and heard them.

Judgment should be affirmed.

Bird and Blair, JJ., concurred with Moore, J.


author: Bird, J. Ostrander, C. J.

text:
    BALDWIN v. BALDWIN.
    1. Landlord and Tenant — Recording Lease — Possession as Notice oe Tenant’s Bight.
    A purchaser of land knowing that a building stood on it claimed by a tenant in possession, was put on' inquiry to ascertain the tenant’s rights, and took subject to a five-year written lease of the premises under which the tenant had possession, although the instrument was not recorded as required by statute. 3 Comp. Laws, §§ 8988, 8994. Ostrander, C. J., dissenting.
    2. Estoppel — Landlord and Tenant — Beal Property — Summary Proceedings.
    In summary proceedings for the possession of real property, defendant is not estopped to claim rights under a lease of the premises because, in a prior proceeding against him, brought by the same complainants, he claimed possession under an earlier agreement for a shorter term, and complainants dismissed the cause and recommenced the action after such prior agreement had terminated.
    Error to Ingham; Collingwood, J.
    Submitted February 7, 1911.
    (Docket No. 135.)
    Decided June 2, 1911.
    Summary proceedings for the possession of real property by William H. Baldwin and Maude Baldwin against Frank J. Baldwin. From a judgment in favor of complainants in commissioner’s court, defendant appealed to the circuit court, where the judgment was affirmed. Defendant brings error.
    Reversed.

      Baudabaugh & Person (Fred J. Slayton, of counsel), for appellant.

      Lawton T. Hemans, for appellees.
   Bird, J.

Complainants brought summary proceedings before a circuit court commissioner to obtain possession of a village lot in Onondaga. They prevailed in the commissioner’s court and again on appeal in the circuit court. From a judgment of the circuit court, the defendant has assigned error.

Grove Baldwin, the grandfather of the parties to this suit, was the owner of the village lot in question. He and the defendant were the owners in common of a small building situate thereon, which had been used for several years for commercial purposes. For some time prior to August, 1908, Grove Baldwin and the defendant had been conducting a meat market in the building. In August of that year they closed out the business and entered into a written agreement with reference to the lot as follows:

“Onondaga, Mich., August 8, 1903.
“Grove Baldwin and I quit market this day. We divide meat and cash equally, one-half each and here is what we agree: Frank Baldwin is to pay five dollars ($5.00) per year for rent of lot that market building is on, and Grove Baldwin is to pay the taxes. Lot is described same as building. Received of Frank Baldwin five dollars ($5.00) for rent of lot from August 8, 1903, to August 8, 1904.
[Signed] “Grove Baldwin.
“Grandpa signs name to contract and receipt.
[Signed] “Frank Baldwin.”

The defendant kept possession of the premises until 1907, when they were leased to the telephone company for one year with the privilege of five years. At the time of making this lease, the following agreement was made between Grove Baldwin and the defendant:

“Onondaga, Mich., June 17, 1907.
“We rent our market building to the Onondaga Telephone Exchange Company today for one to five years and I give Frank this to show that he is to have the use of the lot our market building is on for five years from date, and he is to pay same as old contract five dollars ($5.00) per year.
“Grove Baldwin.
“I agreed to pay five dollars ($5.00) per year for the five years.
“ F. J. Baldwin.”

Later, and on December 28th, 1907, the following paper was executed by Grove Baldwin and delivered to the defendant :

“Onondaga, Mich., December 28, 1907.
“ Frank pays for the paint and the hardware also for painting building and expenses all come to $4.33. He pays out of his own money and I am to pay one-half which is one-half of $4.33, $2.16. Frank has receipts for hardware but not from Van Riper $1.50. I pay my one-half by giving Frank credit on his rent for $2.16 to apply on and after August 8, 1908, for rent of lot that our market building is.on; balance due on year’s rent $2.84.
“Grove Baldwin.”

In January,-1908, Grove Baldwin died, and in the settlement of the estate, the village lot fell to O. W. Baldwin of Nebraska, a brother of the parties to this suit. Soon afterward he sold it to the complainants and about that time the defendant purchased from the Grove Baldwin estate the undivided one-half interest in the building, which made him the sole owner thereof. The complainants gave the defendant notice on the 18th day of August, 1908, to remove the building from the lot. Defendant disregarded this notice, and in April, 1909, the complainants commenced a proceeding before the circuit court commissioner to obtain possession of it. Upon the hearing before the commissioner, the defendant exhibited his receipt under date of December 28, 1907, showing his right of possession until August 8,1909, whereupon the complainants discontinued the proceedings. On October 5, 1909, this suit was begun for a like purpose before the commissioner, and a hearing had. At this hearing the defendant not only offered the receipt which he offered at the first hearing, but also the receipt under date of June 17, 1907, which showed his five-year lease of the premises. On appeal to the circuit court, the defendant offered the same receipts in evidence. At the conclusion of the proofs, the trial court directed a verdict for the complainants, basing it upon the following propositions:

First. It- is the theory of the trial court that the lease under which defendant claims, being a five-year lease, is void because it has not been recorded in the office of the register of deeds, as required by statute.
Second. The trial court held that because the defendant introduced his receipt only as showing his right of possession at the time of the first trial, before the commissioner, he is estopped in the case now before the court from claiming possession under any other or further or different agreement, and is, therefore, estopped from claiming any rights under his five-year lease.

The appellant has assigned error upon these propositions: The statute makes unrecorded leases for more than three years void as against subsequent purchasers in good faith. 3 Comp. Laws, §§ 8988 and 8994. This lease was for more than three years and was not recorded, so it becomes important to inquire whether at the time complainants purchased the lot they were good-faith purchasers. Complainant William H. Baldwin’s own testimony seems to determine the question. He testified that at the time he purchased the lot he knew the building stood upon it; he also knew that the building was claimed by the defendant and that the defendant was in possession of it. Under these admissions complainants were not good-faith purchasers. Knowing these facts, they are put upon inquiry, and should have ascertained what the rights of the tenant were. Failing in this, they took title to the property, subject to the rights of the defendant. Russell v. Sweezey, 22 Mich. 235; Dickinson v. Wright, 56 Mich. 42 (22 N. W. 312); Stevens v. Castel, 63 Mich. 111 (29 N. W. 828); Holmes v. Deppert, 122 Mich. 275 (80 N. W. 1094); Howatt v. Green, 139 Mich. 289 (102 N. W. 734).

Complaint is made that the trial court held that the defendant was estopped from introducing the receipt under date of June 17, 1907, showing his five-year lease because he did not introduce it upon the first hearing before the commissioner. This proposition cannot be sustained. The defendant offered his receipt under date of December 28, 1907, showing his right of possession until August 8, 1909. This was sufficient to and did defeat the complainants’ action. The defendant was under no legal obligation in that action to show that he had the right of possession beyond that period. The record does not disclose that the complainants made any inquiry of him concerning the extent of his interest in the premises. It might have been in the interest of fairness on defendant’s part to have disclosed at that time his entire interest in the premises, but evidently the kind of brotherly love which existed between the brothers prevented defendant from disclosing anything more than the exigencies of the case required.

There are other errors assigned, but we think it will be unnecessary to consider them on account of the conclusion reached.

The judgment of the trial court is reversed and a new trial granted.

Brooke, Blair, and Stone, JJ., concurred with Bird, J.

Ostrander, C. J.

(concurring). I agree with Mr. Justice Bird in reversing the judgment, but not in the reasons assigned therefor.

It is doubtful if the rule that possession of real estate is notice of the possessor’s rights therein, whatever they may be, and the rule that a purchaser is not a good-faith purchaser within the meaning of the statute, as against one in possession of the land, should be applied in this case. The land was occupied by a building owned jointly by the defendant and the owner of the fee. The land was part of the owner’s homestead. The fee owner died. His interest in the land passed by the warranty deed of an heir at law to complainants September 8, 1908, pursuant to a contract for its purchase made June 13, 1908. His interest in the building passed, through his administrator, to the defendant July 16, 1908. When complainants contracted to purchase the land, the building was occupied by the Onondaga Telephone Exchange Company. It paid rent, one-half to the fee owner, and one-half to defendant. Before defendant purchased the building from the administrator, he had notified the telephone exchange company to vacate the building, and it did vacate it in July, 1908, moving to another building erected by the complainants on the same lot. It does not appear that defendant’s building was thereafter occupied. Defendant introduced the following memorandum as evidence of the sale of the building to him:

“Onondaga, Mich., July 16, 1908.
“Received of Frank J. Baldwin fifty dollars ($50.00) for the estate’s one-half interest in the market building located •and described in joint bill of sale given to Grove and Frank Baldwin by A. J. Swift, October 1, 1900. I agree to turn over the keys and see that the building is vacated July 31, 1908, or forfeit the money on building and rent.
“Helen D. Baldwin, Administrator.”

Considering these facts, I am not prepared to hold that complainants as purchasers of the land were put upon inquiry as to defendant’s rights in the land on which the building stood. The statute (3 Comp. Laws, § 8988 ) is:

“Every conveyance of real estate within this State, hereafter made, which shall not be recorded as provided in this chapter, shall be void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate or any portion thereof, whose conveyance shall be first duly recorded.”

And the term “conveyance,” used in this statute, includes leases for a term exceeding three years. 3 Comp. Laws, § 8994. Undoubtedly, the title of a purchaser of land is affected by the interest of a tenant in possession. But as possession under an unrecorded deed to constitute notice must be open, manifest, unequivocal, and referable to the deed (Atwood v. Bearss, 47 Mich. 72 [10 N. W. 112]), so the possession of one claiming to be a tenant under a lease which the law requires to be recorded ought to be open, manifest, unequivocal, and referable to the lease. The occupancy of this land by the building was entirely consistent with the ownership of the fee of the land by one who owned also a half interest in the building. The estate having sold its interest in the building, there would appear to be no reason why the land of the estate should any longer support it, or why the owner of the building should not remove it upon request.

But there is testimony, sufficient in my opinion to carry the case to a jury, tending to prove that complainants’ grantor and complainants had actual notice or knowledge that defendant had, or claimed, some right, based upon contract, to occupy the land. The notice to move the building, given by complainants’ grantor, is a notice to move it in three months from date of notice. The notice contains the following:

“Your lease and all rights to occupy said lots having expired.”

This was the last notice given. The complaint made to the circuit court commissioner in the present suit alleges that defendant is tenant of complainants. What was set out in the earlier complaint does not appear. There is testimony tending to prove tha,t upon the first trial before the commissioner defendant stated that he claimed the right by contract to remain on the land and that he would surrender possession in 1912. It appears, further, that complainant William H. Baldwin was secretary of the Onondaga Telephone Exchange Company, which leased the building in June, 1907, from Grove Baldwin and defendant for one year with the privilege of five years. Upon the first trial, judgment was given for defendant and the judgment was not appealed from. No new notice was given to defendant, but this suit was begun after the time to which defendant showed that he had paid rent to the original owner.

If, before purchasing the land, complainants had inquired of defendant about his interest in the land, defendant might be bound by the answers he made if they were acted upon by complainants. Complainants did not inquire. It is urged that defendant is nevertheless estopped to now assert a right or interest in the land other than the one he asserted upon the first trial before the circuit court commissioner. It has been pointed out that upon the last trial testimony was given to the effect that upon the first trial defendant claimed in his testimony the right to occupy the land until 1912. That he gave such testimony upon the first trial is disputed. It is plain, therefore, that whether the estoppel relied upon exists cannot be determined as matter of law. It is quite as plain that the estoppel relied upon does not meet the contention of defendant that complainants purchased the land subject to his leasehold interest therein; a contention which is based upon the state of things existing at and before the time when complainants acquired title to the land.

These several conclusions lead to the further one that the judgment of the circuit court should be reversed and a new trial ordered. We cannot anticipate the course which will be pursued at another trial. Assuming that a record will be made substantially like the one before us, the jury should be permitted to determine whether the complainants (appellees), or either of them, when they purchased the land, had actual notice, or knowledge, that defendant had, or claimed to have, a lease of the land upon which the building stood.


author: Blair, J.

text:
    SMITH v. COLE.
    Landlord and Tenant — Ejectment—Title—Estoppel—Right to Institute Action.
    A tenant who. during his occupancy, purchased title from third persons against whom his landlord claimed rights by adverse possession, was entitled to maintain ejectment against the landlord after being dispossessed by proceedings in commissioner’s court, although, shortly after commencing the action, he resumed possession of the premises in question in defiance of his lessor.
    Error to Oceana; Sessions, J.
    Submitted February 16, 1911.
    (Docket No. 55.)
    Decided June 2, 1911.
    Ejectment by Milton Smith against George W. Cole. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Affirmed.

      Frank F. Wetmore, for appellant.

      Nims, Erwin, Vanderwerp & Foote, for appellee.
   Blair, J.

On the 26th day of February, 1909, plaintiff filed his declaration in ejectment, alleging that, he being in the possession thereof as owner in fee—

“ The said defendant afterwards, to wit, on the 23d day of February in the year 1909, entered into said premises and unlawfully withholds from the said plaintiff the possession thereof, to the damage of the said plaintiff,” etc.

To this declaration defendant pleaded the general issue with notice of adverse, open, notorious, and peaceable possession of said premises for more than 15 years prior to the commencement of this action.

In support of his title and right of possession, plaintiff proved that on the 7th day of September, 1907, he acquired the original and record title to the premises described in his declaration from the then owner thereof. He further showed that on the 3d day of May, 1889, his predecessors in title executed a land contract to the defendant for the purchase of said premises; that defendant made two payments upon this contract, one on May 3, 1889, of $35, and the other, of $30, on November 16, 1891; and that since November 16, 1891, defendant had been in possession of the premises and that no payments had been asked of him since that time. Plaintiff testified that in November, .1906, supposing that the premises in question belonged to defendant, he rented the premises from defendant for one year and continued in possession of the premises until the institution of summary proceedings by defendant Cole to obtain possession of the premises.

“ Then, after the suit in commissioner’s court, you kept right on in possession there, didn’t you ?
“A. No.
“Q. Who plowed it this spring?
“A. I plowed it this spring, but it was left there — I can explain that to you. It was left there, and Cole was going to rent the place, and he couldn’t get no one to rent it, and he had Frank Washburn to look after the place and wanted to rent it to him.
“Mr. Wetmore (interrupting): Wait a minute, that is objected to.
“Q. You kept in possession of the place and are in possession now, are you not ?
“A. I am in possession now. Wait until I explain this.
“Q. No, you simply explain this: You are in possession now ?
“A. I am now, at the present time.
“Q. And were at the time of the commencement of this suit, were you not ?
“A. Yes, sir.”

There were no buildings upon the premises, but plaintiff owned lands which cornered upon them.

The summary proceedings resulted in a judgment in favor of the plaintiff therein and defendant in this case for restitution of said premises upon the 17th day of February, 1909, and the writ of restitution issued upon said judgment was executed by the sheriff on July 16, 1909, as appears by the return, “by removing Milton Smith from the premises therein described and have put George W. Cole into peaceable possession of the same as I am within commanded.” At the close of the proofs, the following colloquy occurred between the court and counsel:

The Court: Do you, gentlemen, either of you, contend that there is any question of fact for this jury ?
“Mr. Wetmore: I claim not.
The Court: What do you say, Mr. Foote?
“Mr. Foote: No, I think not.
The Court: It is a question of directing a verdict one way or the other, is it not ?
“Mr. Wetmore: It is.
“Mr. Foote: Yes.”

Thereupon, the court directed a verdict in favor of plaintiff, and defendant brings the case to this court for review upon writ of error.

The record indicates, and counsel insists in his supplemental brief on behalf of defendant—

“That adverse possession was not the issue tried in the case, and the record shows that the question being tried was that the plaintiff was in no position to begin or maintain his suit, and that he had not made out a case.”

Defendant argues:

“ That a tenant in possession cannot buy a title adverse to his landlord and then try titles with him unless he has first surrendered possession back to his landlord.” Bertram v. Cook, 32 Mich. 518; Id., 37 Mich. 124; Id., 44 Mich. 396 (6 N. W. 868); Id., 86 Mich. 356 (49 N. W. 42); Morse v. Byam, 55 Mich. 594 (22 N. W. 54).

And, further, that a person in possession is not entitled to maintain ejectment, citing Lockwood v. Drake, 1 Mich. 14; Dawson v. Peter, 119 Mich. 274 (77 N. W. 997).

It is true that the plaintiff, Smith, testified: That he was in possession of the premises at the time of the commencement of this suit; but he further testified:

“Q. And have been ever since that time, have you not ?
“A. No, I have not.
“Q. When were you out of possession ?
“A. From the time of the suit last winter, I don’t remember exactly what time, until this ■ spring in May. And that he had held possession from about the 1st of May until the sheriff had served his writ.
“Q. Who had possession before that ?
“A. I was going to tell you a moment ago, when Frank Washburn—
“Q. (interrupting.) No, I don’t care about Frank Washburn.
“A. Then I can’t answer the question. * * *
“Q. Did you get word that there had been a judgment in favor of Mr. Cole for possession of that land ?
“A. Yes, sir.
“Q. Then did you pay any more attention to the land or work it until you came back here along in May ?
“A. No, sir; I was in Indiana then, and I didn’t get back until in April.
“Q. How far is this land from where you live ?
“A. The 40’s corner.
”Q. After you came back it laid vacant, and you went and put in some crops, is that it ?
“A. Yes, sir.
“Q. Cole didn’t live there ?
“A. No, sir; he lives in Montmorency county, near Atlanta, the county seat. * * * When he notified me the court commissioner had given George Cole possession of the place, why from then on before I came home I didn’t do nothing; it laid quiet; I didn’t pay no attention to it. But when I came home Cole had rented it, or wanted to, and did rent it. There was no papers made out and—
“Q. What is your explanation of why you went and worked the land ?
“A. Simply because it laid there. I paid my money for it, and nobody else went and worked it, and I went and farmed it.”

Lewis Nichols, a witness on behalf of defendant, testified that the plaintiff, Smith, went away before the 1st of February and did not return until the latter part of March, and that he rented the place of Smith about the last of April.

We think, therefore, in view of the agreement of counsel as to the direction of a verdict, the court was warranted in assuming that at the time of the rendition of the judgment of restitution by the commissioner and until, at least, the latter part of March following, the defendant was not in actual possession of the premises.

By the judgment in the summary proceedings case, no appeal having been taken therefrom, the relation of landlord and tenant was terminated, and the right of defendant, Cole, to possession of the premises, was conclusively established. After this judgment had become conclusive, and while the plaintiff, Smith, was out of possession and in the State of Indiana, the present ejectment suit was begun in his behalf; he then owing no duty as a tenant to his previous landlord. There was also some evidence, although under objection, that the defendant, Cole, had placed the lands in charge of one Washburn to look after and endeavored to rent the lands to him. Whatever possession the plaintiff, Smith, took after he returned from Indiana was not in subordination to the defendant’s rights but in defiance thereof, and if the defendant, having maintained his right of possession by the judgment of the commissioner, had instituted a suit in ejectment to maintain his title in fee, the defendant, Smith, in such suit would have been entitled to introduce his own title in defense. Jochen v. Tibbells, 50 Mich. 33 (14 N. W. 690); Shaw v. Hill, 83 Mich. 322 (47 N. W. 247, 21 Am. St. Rep. 607); Hubbard v. Shepard, 117 Mich. 25 (75 N. W. 92, 72 Am. St. Rep. 548); Hoffman v. Nelson, 158 Mich. 573 (123 N. W. 41).

The judgment is affirmed.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.


author: Bird, J.

text:
    DAILEY v. DAILEY.
    Divorce — Infant—Custody—Cruelty.
    Evidence examined and held not to show that a child, whose control was given to the husband in divorce proceedings on the ground that the wife was unfitted to have its custody, had been cruelly treated or that the wife who had since remarried had become sufficiently well fitted to have it, or that its interest required the modification of the decree.
    Appeal from Kalamazoo; Knappen, J.
    Submitted February 20, 1911.
    (Docket No. 30.)
    Decided June 2, 1911.
    Rehearing denied September 29, 1911.
    Bill by Fred Dailey against Minnie Dailey for divorce. After a decree for complainant, to whom the custody of the children was awarded, defendant presented a petition to have the order so modified as to give her the custody of one of them. From an order granting the prayer of the petitioner, complainant appeals.
    Reversed.

      Jackson & Fitzgerald, for complainant.

      Boudeman, Adams & Weston, for defendant.
   Bird, J.

This is an application by defendant to modify the decree, heretofore rendered in this cause, granting complainant a divorce and the custody of the children. In her petition, the defendant asks for the custody of the youngest child, Garnett. The trial court granted the prayer of the petition, and the complainant appeals therefrom to this court.

The parties were married in December, 1902, and divorced upon the application of complainant in July, 1907, and the custody of the two children was given to him. The children were cared for by his mother and a married sister until his remarriage in December, 1908, since which time Garnett, who is now past six, has been living with him. The complainant has been for several years and is now engaged in the business of selling nursery stock for a Kalamazoo company, and when this petition was filed he was living in that city. The changed conditions chiefly relied upon for a modification of the decree are:

First. That complainant is remarried, and has taken the child from his mother’s home into his own, where she is abused and ill-treated by her stepmother.
Second. That defendant is remarried, and has a good home with her parents, where she can care for the child with the consent of her husband.

1. The charge that the child had been abused and ill-treated by the stepmother was sought to be established at the hearing mainly by the testimony of two women with whom complainant and his wife had roomed for short periods. Their testimony was to the effect that, while complainant was rooming with them, the stepmother whipped and slapped the child frequently and severely, and that the stepmother manifested no affection for the child. There was much testimony bearing on the treatment of the child given at the hearing by neighbors of complainant, and by people with whom he had roomed or boarded since taking Garnett into his family, and the great weight of this testimony is to the effect that the child was well treated and cared for by her parents, and many manifestations of affection between the stepmother and the child were testified to by these witnesses. Several of these witnesses testified that the child was hard to control, and that they had seen the stepmother whip her, but that it was usually done with á switch cut from the trees or bushes, and was neither severe nor cruel, nor of a character to be injurious to the child. Soon after the alleged abuse at the rooming houses took place, an agent of the Humane Society made an investigation of the case, but found no marks of violence on the child’s body. He gave it as his opinion that the child was being well treated and cared for by its parents. After an investigation by one of the detectives of the city of Kalamazoo, he came to the same conclusion. This testimony leads us to the belief that the severity of the punishments was greatly exaggerated in the minds of the landladies. Had it not been, these investigations made so soon after would have disclosed some marks of violence on the child’s body. "We are of the opinion that the charge that the child was abused and ill-treated by the stepmother is not sustained by the testimony.

2. We are convinced from a reading of the record that the defendant, prior to her second marriage, was morally unfit to have the care and custody of her child. If any reliance is to be placed upon the testimony, she had very little affection for the child, and up to the time it was taken away from her she gave it rather indifferent attention. Most of the care and attention it received was bestowed upon it by her mother, with whom she lived. But it is said she is now remarried and has a good home with her parents, and that her husband is willing to take the child and support it. This argument would have great force with us, and doubtless incline us to affirm the order of the trial court, were it not for the fact that since the child was taken away from her she has seen it but once, and then only at the urgent request of another. She has made no other attempt to see her baby, and has manifested no interest in it by sending it playthings or sweetmeats.

This conduct on her part is so unlike the normal affection of a mother for her offspring that we are not persuaded that the change which has come into her life since her remarriage would justify a transfer of the child to her. The testimony further shows that the complainant is better able to care for and support the child than when the decree was granted. While it is generally true that a natural mother will do more for a child than a stepmother, that rule seems to be more often true where the stepmother has children of her own. In this case she has none. The testimony shows she has affection for the child. Little complaint is made that the complainant has not done his duty toward the child, and we are not impressed from a study of the record that it will be for the best interest of the child to transfer it to its real mother.

The order of the trial court will be set aside, and another entered in accordance herewith.

Hooker, Moore, McAlvay, and Stone, JJ., concurred.


author: Brooke, J.

text:
    SLATER v. SORGE.
    1. Pleading — Animals—Trespass on the Case — 'Vicious Nature — Declaration.
    A declaration in case for personal injuries by being bitten by a dog, alleging that defendant wrongfully, recklessly and injuriously owned, kept and harbored a large number of vicious and ferocious dogs, knowing that they were accustomed to bite mankind, and that one of them not being properly restrained bit plaintiff, stated a cause of action.

    2. Animals — Dogs—Keeper or Owner — Personal Injuries.
    In an action for injuries inflicted by a vicious dog, evidence that the defendant had presented the dog to his wife, that it was kept on the premises occupied by his household, that he returned home from Chicago at the end of each week and remained over Sunday, sufficiently proves that the defendant was the keeper of the animal.
    3. Same — Vicious Nature — Evidence—Negligence.
    It is not necessary to show that the dog had actually bitten any one prior to plaintiff’s injury.
    4. Evidence — Privilege—Physicians.
    By calling to the stand one physician who treated plaintiff for a dog bite and by testifying that another physician treated him previously for the same injury, plaintiff did not waive his privilege to object to the testimony of the other physician called as a witness by defendant as to the nature of plaintiff’s injuries.
    Error to Berrien; Coolidge, J.
    Submitted February 28, 1911.
    (Docket No. 19.)
    Decided June 2, 1911.
    Case by James B. Slater against Adolph Sorge for negligently keeping a vicious dog. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Stratton & Evans, for appellant.

      George M. Valentine and Cady & Andrews, for appellee.

       liability of owner for injuries by animals to person coming upon master’s premises, see note in 14 L. R. A. 196.

   Brooke, J.

Plaintiff recovered a judgment against defendant for $200 as damages for injuries alleged to have been sustained by him resulting from the bite of a vicious bulldog. Defendant brings the case to this court for review. There are 102 assignments of error raising the following questions:

(1) Does the declaration state a cause of action ?
(2) Was the defendant either owner or keeper of the dog?
(3) Was the dog vicious — i. e., did he have a propensity to bite mankind — and did defendant have notice that the dog was vicious ?
(4) Was Dr. Taber’s testimony privileged ?
(5) Is mental anguish, suffered from a contemplation of what merely might occur, an element of the damages ?
(6) Errors in the admission of testimony. Errors in the refusal of defendant’s requests. Error in trial court’s general charge.

Plaintiff, a machinist by trade, was sent by his employer, a Mr. Duncan, to the house occupied by defendant and his family, to fit a number of keys. While passing from one room to another in the house, he claims to have been attacked by the dog and bitten in the left hand.

It is urged by the defendant that the declaration is fatally defective in that there is no averment that the bulldog had a propensity to bite mankind. The declaration is in part as follows:

“For that whereas the defendant at the time of the injuries to the plaintiff hereinafter mentioned, and for a long time prior thereto, to wit, one year, wrongfully, recklessly, and injuriously owned, kept, and harbored a large number of vicious and ferocious dogs at the premises of the defendant in the city of St. Joseph in said county of Berrien, he, the defendant, then and there knowing that said dogs were used and accustomed to attack and bite mankind, and knowing that it was dangerous and improper to allow said dogs to be or remain unconfined and not properly secured. Yet the said defendant while he kept, owned and harbored the said dogs as aforesaid, to wit, on June 4, 1909, at the said city of St. Joseph, wrongfully, carelessly, recklessly, and improperly suffered said dogs to go at large, unconfined and unsecured, and without taking due and proper precautions or any precautions, to secure or confine the said dogs, or to prevent them from attacking and biting the plaintiff. Plaintiff avers that on the day aforesaid, one of the said dogs, the same being a ferocious and vicious bulldog, did then and there, and while the plaintiff was lawfully and. peaceably on the premises of the said defendant in the performance of certain work and labor on said premises by the consent and invitation of defendant, did attack, bite, wound and injure the plaintiff, and then and there seize, bite and lacerate the left hand of him the plaintiff,” etc.

The declaration was sufficient. Brooks v. Taylor, 65 Mich. 208 (31 N. W. 837), and cases there cited and discussed.

Was defendant either the owner or keeper of the dog ? It appears from the record that Mrs. Sorge, wife of defendant, owned the dog, it having been presented to her by her husband when a pup; that it was fed and cared for by Mrs. Sorge’s sister. Defendant himself appears to be engaged in business in Chicago, coming home on Friday or Saturday of each week and remaining until Monday. The household consisted of himself, his wife, his wife’s mother and sister. While there is no evidence in the record that defendant owned the premises, we think there is evidence that he occupied them in such manner as his business permitted. The husband is .usually considered the head of the family, and, in the absence of proof to the contrary, his residence at each week end, being shown by the record, was such occupancy as warranted the charge of the court that in law he was the keeper of the dog. Burnham v. Strother, 66 Mich. 519 (33 N. W. 410); Fye v. Chapin, 121 Mich. 675 (80 N. W. 797); Jenkinson v. Coggins, 123 Mich. 7 (81 N. W. 974).

Upon the question of the vicious character of the dog, defendant’s counsel stated:

> “ Our position is that they must show that the dog has bitten some one. Nothing short of a dog bite proves the vicious character of the dog. In other words, every dog is entitled to one bite, that is my understanding of the law, and that bite must be a good one.”

We are of opinion that this statement of counsel does not correctly define the law upon the question.

In Emmons v. Stevane, 77 N. J. Law, 570 (73 Atl. 544, 24 L. R. A. [N. S.] 458), the court said:

“ It is not necessary that the same injury should have actually been committed by the animal to the knowledge of its owner, but knowledge by the owner that the disposition of the animal is such that it is likely to commit a similar injury to that complained of, is sufficient to maintain the action. Curtis v. Mills, 5 Car. & P. 489; [1] Thomp. Com. Negl. § 872.”

See, also, note to this case reported 24 L. R. A. [N. S.] 460.

In Kennett v. Engle, 105 Mich. 693 (63 N. W. 1009), Mr. Justice Montgomery, speaking for the court, said:

“It is undoubtedly the law — and the charge of the court so laid it down — that, in addition to the facts of the injury to the plaintiff from the bite of the dog, it was incumbent upon the plaintiff to prove that the dog had on previous occasions manifested a vicious disposition, indicating a disposition to bite mankind, and that the defendant had knowledge or notice of the fact.”

Defendant contends that there was not sufficient evidence introduced by plaintiff to warrant the jury in finding, either that the dog had previously exhibited a disposition to bite mankind, or that defendant had knowledge or notice of that fact if it was a fact. We think there was testimony to go to the jury upon each issue.

Was Dr. Taber’s testimony privileged ? On direct examination plaintiff testified:

“I caught a car and came over to Dr. Taber’s office in Benton Harbor. I showed him my hand and walked the floor and halls until he got to it. He treated the hand; put medicine on. He gave me a bandage, and put some stuff on it. * * * I went to Dr. Taber’s again, next day. He saw it the day of the injury and the next day, and the following Sunday — three days in succession.”

Plaintiff described his injury as consisting of three wounds, two of which were on the back of his hand, the third on the outside of his index finger. He further testified that after Dr. Taber quit treating his hand, it was treated by Dr. Taylor, and he offered Dr. Taylor as a witness who described the condition of plaintiff’s hand at the time he saw it and his method of treatment. Defendant offered Dr. Taber as a witness. Plaintiff objected to the testimony upon the ground that it was privileged under the statute. Section 10181, 3 Comp. Laws. The testimony was excluded, and the following colloquy occurred:

The Court: Suppose you proposed to show by the physician that he didn’t treat him for the wound but treated him for the colic, I think you can show it, but that is not the case here.
“Mr. Stratton: (attorney for the defendant): We propose to take the position you state; we propose to show that Dr. Taber did treat him for the colic, but that is not the right way to say it. We propose to show that he did not treat him for three wounds; that he did treat him for one scratch, which is the same thing as the colic. * * *
“ The Court: My opinion is you can show the doctor treated this man professionally and the date of the visits, but not the nature of the disease, because it is a matter which must come to the physician from something said by the patient. * * *
“Mr. Stratton: The bars have been let down by Dr. Taber’s (Taylor’s) testimony. The plaintiff has permitted one physician to go on the stand and testify to his injury and condition, treatment, and so on. * * *
The Court: He would let down the bars as far as Dr. Taylor is concerned, but not as far as another witness is concerned. If you can go into the nature of the disease you can go into the whole treatment and draw out just what the doctor was treating him for this week, next week, and there might be a complication of diseases and the doctor can testify to all of them, and the statute shuts out anything of that kind.”

Mr. Wigmore, in his admirable work on Evidence, in vol. 4, § 2390, says:

“ To call a physician as a witness to one’s physical condition is a waiver of the privilege as to the knowledge acquired by other physicians of the same condition. This is generally not conceded in the judicial rulings; but it cannot be escaped, if regard is had to the foundation of the privilege.”

Among the cases cited by the author as against the principle laid down in the text is Dotton v. Albion Common Council, 57 Mich. 575 (24 N. W. 786), where Mr. Justice Cooley said:

“ The defense undertook to show that the plaintiff, instead of being healthy before, was afflicted with chronic ailments, and for this purpose they called two physicians who testified that they attended upon her professionally, and were able to tell whether her constitutional health was impaired before the time of the alleged injury. They were then asked to state whether it was impaired in fact; but having stated, in response to an inquiry by the court, that such information as they had on that subject was obtained professionally, while in attendance upon the plaintiff as her physician, and was necessary to enable them to prescribe for her, the proposed evidence was excluded. It is said that this was error, because the plaintiff waived her privilege to have the seal of professional confidence preserved unbroken when she put her own physician upon the stand to testify to her condition. Doubtless she did so as to him to the extent to which she carried his examination; but it does not appear that he testified to any professional knowledge acquired in a relation of confidence, previous to the injury; and a waiver of her privilege in his case to permit him to disclose what he learned of her condition at that time could be no waiver of a similar privilege in the case of others relating to other occasions. If the other physicians had been called by her and partial examination gone into on her behalf, it would have been different; but, as the case stood, there seems to have been no error in excluding their evidence ” — citing cases.

This case should control, unless the fact that plaintiff himself had testified as to the treatment by Dr. Taber, of the identical injury for which suit was brought, should be held to be such a waiver of the privilege conferred by the statute as would permit Dr. Taber to testify. Upon this point, defendant cites the case of Lane v. Boicourt, 128 Ind. 420 (27 N. E. 1111, 25 Am. St. Rep. 442).

The weight of authority, however, seems to be against the defendant’s position. Williams v. Johnson, 112 Ind. 273 (13 N. E. 872); McConnell v. City of Osage, 80 Iowa, 293 (45 N. W. 550, 8 L. R. A. 778); Burgess v. Drug Co., 114 Iowa, 275 (86 N. W. 307, 54 L. R. A. 364, 89 Am. St. Rep. 359); Green v. Town of Nebagamain, 113 Wis. 508 (89 N. W. 520). See, also, Chamberlayne’s Best on Evidence (1908), p. 449, note (c); Brown v. Insurance Co., 65 Mich. 306 (32 N. W. 610, 8 Am. St. Rep. 894); Briesenmeister v. Knights of Pythias, 81 Mich. 525 (45 N. W. 977); Jones v. Assurance Co., 120 Mich. 211 (79 N. W. 204); Perry v. Insurance Co., 143 Mich. 290 (106 N. W. 860). While this court has said in Campau v. North, 39 Mich. 606 (33 Am. Rep. 433):

“ So far as practicable, the courts ought to see to it that the statute is not used as a mere guard against exposure of the untruth of a party, and that a rule intended as a shield is not turned into a sword.”

The same justice in the same case used the following language:

“ The rule given by the statute is beneficial and based on elevated grounds of policy, and it ought not to be frittered away by refinements.”

The court below did not err in excluding Dr. Taber’s testimony.

The other questions raised by defendant have been examined, but require no comment. The charge was fair to defendant and stated the law correctly, and the small verdict indicates that the jury acted without prejudice.

The judgment is affirmed.

Ostrander, O. J., and Blair, McAlvay, and Stone, JJ., concurred.