text:
    JUDSON v. JUDSON.
    1. Divorce — Jurisdiction—Conflict of Laws — Foreign Judgment.
    Courts of chancery, having no authority in divorce proceedings in addition to that conferred by statute, may not award alimony for the support of a minor child, in proceedings supplemental to a decree of divorce obtained ex parte in a foreign State by the wife who was not awarded alimony by such decree.
    2. Same — Alimony—Equity.
    Neither the Constitution nor the law of comity authorizes the courts of this State to take over by supplemental proceedings a suit begun in courts of another State where different statutes prevail, and enter a decree requiring defendant to support his child.
    Suoh a proceeding is an independent suit, in which alimony cannot be awarded.
    4. Same — Separate Maintenance — Statutes.
    Authority to so order is not conferred by 3 Comp. Laws, § 8686, conferring the right of separate maintenance upon the wife.

      5. Same — Laches—Revising Decree — Judgment.
    After nineteen years, a decree of divorce entered in a foreign jurisdiction will not be revised by courts of this State so as to allow alimony in favor of complainant, who became a resident of Michigan within a year subsequent to obtaining the decree and lived for a part of the time in the same town with her former husband, he refusing to contribute to the support of herself or child, and asserting that he was under no obligation to contribute anything: laches bars any rights that complainant may have had.
    Appeal from Wayne; Hosmer, J.
    Submitted April 11, 1912.
    (Docket No. 46.)
    Decided July 11, 1912.
    Bill by L. Grace Judson against Frank Judson for an order awarding alimony to support a minor child of defendant. From an order sustaining a demurrer to complainant’s bill, she appeals.
    Affirmed.

      John T. Nichols (James Gf. McHenry, of counsel), for complainant.

      Arthur Brown and Frank De Vine, for defendant.
   Steers, J.

In this suit complainant appeals from a final decretal order of the Wayne circuit court, in chancery, sustaining a demurrer to her bill of complaint, which was filed to compel defendant to provide for the support of herself and minor child, Esther Judson, now 19 years of age. The bill of complaint alleges: That complainant and defendant were married at St. Paul, Minn., on March 15, 1892, and lived together in that State until April 14, 1893, when defendant deserted her and went to Ann Arbor, Mich., where he has since resided; that she thereupon applied for and obtained a divorce from defendant in the district court of Blue Earth county, Minn., where she was then living, the decree, dated June 19, 1893, being one of absolute divorce, granted on the ground of extreme cruelty, and giving complainant the custody of their minor child, then an infant. Service of process upon defendant was in its nature a substituted service, although personally served upon him in Washtenaw county, Mich., by the sheriff of said county. In June, 1893, shortly after obtaining her divorce, complainant returned to Ann Arbor, Mich., which was her former home, where she resided for about two years, when she removed to Detroit, Mich., where sho and her daughter have since resided.

The bill further alleges that at the time of obtaining her divorce in Minnesota she was advised by her counsel that subsequent proceedings would be instituted, and arrangements made, to secure alimony and support for herself and child, and in answer to subsequent letters said assurances were repeated; that while she was living in Ann Arbor defendant and members of his family tried to induce her to remarry him, which she refused to do; that, in answer to her request that some provision be made for the support of herself and child, he asserted he was under no obligation to do so, and would do nothing for them, unless remarried to her; that since her divorce she has, by her own labors acting as nurse, supported herself and child, defendant never contributing anything thereto; that her daughter has at times suffered from severe sickness, the effects of which continue, to a greater or less degree, so that she has never fully recovered, and is able to earn little or nothing for herself; that both complainant and her daughter are unmarried, and defendant is amply able to provide for both of them a proper support. The prayer of the bill asks that he be compelled to make provision for the future support of complainant and their daughter during minority, and that an accounting may be had to determine the expenses complainant has already incurred in the support of their child, for which she asks a decree against him.

To this bill of complaint defendant, by his solicitor, filed a demurrer setting forth numerous causes therefor, most of them, in different forms, based on the contention that equity has no jurisdiction to entertain a suit of this character. The defense of laches and the statute of limitations is also set up. It is also claimed, as a ground of demurrer, that it appears from the allegations of said bill that complainant was awarded the care and custody of their child by the decree of divorce obtained in 1893, which she has maintained ever since, to the exclusion of all rights and privileges of the defendant as a parent, hav-. ing refused him the care and custody of said child during all said time, and deprived him of her society and services, or any part thereof, by reason of which he was released from any obligation to care for, maintain, and support her. Upon the hearing before the Wayne circuit court in chancery said demurrer was sustained, and complainant’s bill dismissed.

The two questions of importance raised by defendant’s demurrer are want of jurisdiction and laches. So far as the bill discloses, complainant never was the wife of defendant in the State of Michigan. She was, of her own volition, married and divorced in another State, and returned to her former home in Michigan a single woman. Within two months of the time defendant left her she was a resident of the same town with him, in this State. Had she seen fit to remain his wife for that short time, she could have proceeded against him in this jurisdiction, under the statute to enforce separate maintenance for herself and child, or could subsequently have filed her bill for divorce and alimony in the county where they resided. She did not see fit to do so, but, choosing her forum in a foreign jurisdiction within 15 days from the time defendant left her, she began divorce proceedings there, which resulted in a decree of absolute divorce with custody of their infant child. It is manifest she or her counsel then knew defendant was residing in Michigan at her former home town, for process was personally served on him there. Thereafter no longer the wife of defendant, she could not proceed against him for separate maintenance as such under the statute; and, not being his wife, she could not file another bill against him for divorce. Alimony is incident to the marriage relation, and, as a rule, contingent on divorce proceedings. The only divorce proceedings she has bad, or can have unless she marries again, were instituted and prosecuted by her to a final issue in another State, on her own choice of forum, 19 years ago.

It is the contention of her counsel that, under the comity of courts and the constitutional provision that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State, “she is entitled to have this bill sustained as supplemental to the Minnesota proceedings, just as if the divorce had been granted in this State.”

It has been repeatedly held that our circuit courts in chancery have no common-law jurisdiction in divorce proceedings, but are limited by the authority conferred by statute.

When, on granting to the wife a divorce, children are taken from parental control of the father and committed to her care and custody, the court granting the divorce may decree to her such part of her husband’s estate and such alimony as is deemed just, having regard, among other things, to the fact that she is given the additional burden, as well as privilege, of caring for and maintaining such children. It must be awarded to her, though for their benefit. No sum can be decreed to be paid to the children, even during their minority. Swiney v. Swiney, 107 Mich. 459 (65 N. W. 287); Maslen v. Anderson, 163 Mich. 477 (128 N. W. 723).

The statute gives no authority to base such award on a decree of divorce obtained in a foreign jurisdiction. Neither the Constitution nor law of comity authorize or require the chancery court of one State, limited in its jurisdiction by statute, to take over, by supplemental proceedings, a suit begun in the courts of another State where other statutes obtain.

We are constrained to regard this as an independent suit in this State, and, in the absence of appropriate legislation, alimony cannot be allowed, independent of divorce proceedings and existence of the marriage relation in courts of equity. Peltier v. Peltier, Har. Ch. (Mich.) 19; Perkins v. Perkins, 16 Mich. 167; Wright v. Wright, 24 Mich. 180; Eldred v. Eldred, 62 Neb. 613 (87 N. W. 840).

We are not unmindful of the provisions of section 8686', 3 Comp. Laws, conferring upon the chancery courts jurisdiction to compel husbands to support their wives under certain circumstances, though no divorce proceedings are pending; but a valid marriage and the relation of husband and wife are prerequisites to such proceeding. In this case no valid marriage exists, the parties are not husband and wife and never have been, within the State of Michigan.

According to the allegations in complainant’s bill, she slumbered on her rights, and took no legal steps to enforce them for 18 years after her right of action arose. Her daughter, then an infant, has since grown to young womanhood. Nineteen years ago, then divorced from her husband, she was residing in the same city and in communication with him. He had refused to contribute to the support of herself and child unless she would marry him again, and she refused to do so. If she ever had a right of action in this State, it then arose. Her excuse for the laches, imputable to so long delay before taking action, is that her attorneys in Minnesota advised her some provision for the maintenance of herself and child would be made by the court which granted her divorce, upon which she alleges she relied, and that defendant, who resided in Michigan, told her that he was under no legal obligations to support herself and their child, and would not do so unless again married, which statement she alleges she believed. Neither the promises or ádvice of her own counsel nor a belief in assertions of immunity by a prospective defendant are excuses for laches.

The decree of divorce, which she herself obtained in another State so promptly after her right of action arose, and which was acquiesced in for 18 years, cannot now be disturbed by another court, in another jurisdiction, for the purpose of reviewing the question of alimony. Roe v. Roe, 52 Kan. 724 (35 Pac. 808, 39 Am. St. Rep. 367); Eldred v. Eldred, supra; Nichols v. Nichols, 25 N. J. Eq. 60.

The action of the trial court in sustaining defendant’s demurrer and dismissing the bill of complaint is affirmed, with costs.

Moore, C. J., and McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Blair and Bird, JJ., did not sit.


source: Caselaw Access Project

author: Brooke, J. Ostrander, J.

license: Public Domain

text:
    NOBAN v. SHOUP.
    1. Competency — Deeds—Fraud—Undue Influence — Equity.
    It being made to appear that the grantor of property was old, infirm, and subject to the judgment or will of the grantee, his son, that the consideration was wholly inadequate, and a life estate reserved by the instrument was of little or no value, and that by it decedent excluded from her equal share in his estate an only daughter, the court properly decreed ■ that the deed of conveyance was invalid.
    2. Same — Presumptions.
    The presumption arising from such transaction is that the bargain was unjust, imposing on the grantee the burden of showing affirmatively that no advantage was taken and the arrangement was suitable and expedient, oonduoive to the interest of the grantor.
    3. Same — Evidence—Declarations.
    Where mental incapacity and undue influence were charged, declarations of decedent that the grantee had agreed to execute a contract to support the grantor were competent to show his mental condition at the time he executed the conveyance.

      Appeal from Barry; Smith, J.
    Submitted April 11, 1912.
    (Docket No. 16.)
    Decided July 11, 1912.
    Bill by Matilda Noban against Dell Shoup for the cancellation of a deed. From a- decree for complainant, defendant appeals.
    Affirmed.

      Golgrove & Potter, for complainant.

      Thomas Sullivan and Arthur E. Kidder, for defendant.
    Complainant and defendant are both children of Jeremiah Shoup, who died October 14, 1910. They are his sole heirs. On July 39, 1910, he deeded to the defendant his farm of 36 acres for a nominal consideration of $1. This farm constituted all the real estate he owned, and was worth about $1,300. As a further consideration defendant was to pay to complainant upon the death of the father the sum of $300. The father reserved a life estate in the land. The bill is filed to set aside this deed upon the ground that at the date of its execution Jeremiah Shoup was mentally incompetent to execute it, and that the same was procured by fraud and undue influence. The learned circuit judge before whom the case was tried filed a written opinion in which he says:
    “ I am of opinion from the proof that the deed in question was either obtained by misrepresentation, deception, and undue influence, or, if not that, that Jerry Shoup was not mentally competent to understand the nature of the act he did. * * * I am without doubt that this deed ought not to stand, and that complainant is entitled to the relief she seeks by her bill.”
    A decree was entered in accordance with this opinion, from which defendant appeals. •
   Brooke, J.

(after stating the facts). It would serve no good purpose to set out the testimony pro and con contained in this rather voluminous record. Many witnesses were sworn, and, while some were confident that at the time the deed was executed Jeremiah Shoup was not possessed of sufficient mental capacity to understand and appreciate the character of his act, others were equally certain that at the time his mind was unaffected.

After listening to all the testimony, the learned trial judge himself seems to have been somewhat in doubt as to how far advancing years and bodily ills had affected the mental capacity of the deceased. Certain facts, however, appear to be undisputed. He was about 75 years old. His habits were not of the best, and he was suffering from the inroads of disease. He lived only about two months after executing the deed in question. While upon the testimony in this record it would be difficult to say that Shoup was mentally incompetent at the time he executed the deed, there is, we think, little doubt that his mental condition was far from normal. In Jacox v. Jacox, 40 Mich. 473 (29 Am. Rep. 547), this court said:

“ The condition of unsoundness thus distinguished by common observers is recognized as adequate to justify equitable investigation. It is not required that it should come from medical experts that the person was insane, or from those not experts that in their view he was crazy.
“ In case it appears from the facts that there was mental disorder, but not of a high degree or far advanced, it then becomes material to inquire into the nature of the transaction and the influences leading to it. And if the circumstances disclose that the person under the infirmity, whether through choice, accident, or otherwise, was as matter of fact for the time being in the place of ward of the other party, or was by his own consent, however brought about, in a state of submission to the judgment or opinion of the other, a presumption will arise adverse to the justice and equity of the bargain, and the bargainee will be required to show that no advantage was taken, and that in itself the arrangement was not only suitable, fair, and conscientious, but one expedient under the circumstances and conducive to the interests of the other.”

This record discloses no reason why the father should have deeded to the defendant all the estate he had in the world (with the exception of a very small amount of personal property), to the practical exclusion of his only other child, the complainant. The value of the life estate reserved, regarded as a means of support for the old man in his last days, was practically nothing. The record is replete with testimony tending to show that Jeremiah Shoup regretted his act almost immediately after he made the deed. It seems to us immaterial whether he was induced to make the deed because mentally incompetent to understand its import, or for the reason, as he claimed, that defendant had agreed to give him an agreement to maintain him during the balance of his life. Neither view would help the position of the defendant. The situation of the father, his extreme age, and his condition, both mental and physical, were such as to impose upon the son the obligation to guard most carefully that father’s interests, and to abstain from driving any bargain of advantage to himself with him.

Wherever a contract is entered into with an aged and infirm person to be enforced after death, to the disinheriting of lawful heirs, such contract should be regarded with grave suspicion and close scrutiny, and should be permitted to stand only when established by the strongest evidence. Shakespeare v. Markham, 72 N. Y. 400.

It is contended by appellant that testimony of declarations made by Jeremiah Shoup to the effect that defendant had agreed to give him a contract providing for his support was improperly admitted — citing Van Fleet v. Van Fleet, 50 Mich. 1 (14 N. W. 671); Tolbert v. Burke, 89 Mich. 132 (50 N. W. 803); Coleman v. McGowan's Estate, 149 Mich. 624 (113 N. W. 17); and Bettinghouse v. Bettinghouse, 156 Mich. 169 (120 N. W. 617).

While it is not necessary to consider this testimony to reach the conclusion that the deed should be set aside, we are of opinion that, where mental incapacity and undue influence are charged, such testimony is admissible as tending #to show the mental state of the grantor at the time of the execution of the deed in question. Haines v. Hayden, 95 Mich. 332 (54 N. W. 911, 35 Am. St. Rep. 566); Bush v. Delano, 113 Mich. 321 (71 N. W. 628); 3 Wigmore on Evidence, § 1738.

The decree is affirmed.

Moore, C. J., and Steere, McAlvay, and Stone, JJ., concurred with Brooke, J.

Ostrander, J.

(concurring). I find testimony which satisfies me that the grantor was incompetent to make the disposition of property complained about.

Blair and Bird, JJ., did not sit.


author: Ostrander, J.

text:
      In re VAN DYKE’S ESTATE. QUILLAN v. VAN DYKE’S ESTATE.
    1. Estates op Decedents — Claims for Services — Contracts— Executors and Administrators.
    Evidence examined, and held, insufficient to submit to a jury-claimant’s claim for services rendered in caring for decedent upon an express contraot to pay claimant $1,000.
    2. Witnesses — Husband and Wife — Statutes—Estates of Decedents.
    By the statute excluding testimony of an agent of the moving party when the facts so stated are equally within the knowledge of deceased (3 Comp. Laws, § 10212; Act No. 30, Pub. Acts 1903), the testimony of claimant’s husband was barred where it tended to show that he represented his wife, in arranging with decedent to come and live with her; nor was the testimony admissible to corrobate other evidence of the arrangement made by them.
    Error to Kent; Cogger, J., presiding.
    Submitted April 11, 1912.
    (Docket No. 112.)
    Decided July 11, 1912.

      ' Agnes Quillan presented a claim against the estate of Ann Van Dyke, deceased, which was disallowed in part by the commissioners on claims. Claimant appealed to the circuit court; a judgment for defendant on a verdict directed by the court is reviewed by claimant on writ of error.
    Affirmed.

      J$. A. Maher, for appellant.

      Hatch, McAllister & Raymond, for appellee.
   Ostrander, J.

Claimant and appellant appealed from the decision of commissioners on claims in the matter of the estate of Ann Van Dyke, deceased, and in the circuit court a verdict in favor of the estate was directed by the court. Judgment was entered on the verdict. The claim presented is:

“For services in moving said Ann Van Dyke from Grand Rapids to Parnell; cleaning and moving the household effects of said Ann Van Dyke from Grand Rapids to Parnell;• boarding said Ann Van Dyke; providing her with provisions and fuel, and giving her personal care and attention July 15th, 1903, to January 1, 1904, $1,000.”

In the brief for claimant it is stated:

“ The claimant’s demand in this case is for the sum of $1,000 as an amount promised to her by the decedent, Ann Van Dyke, as consideration for claimant’s undertaking to care and provide for and caring and providing for decedent as long as she lived.”

In directing the verdict the trial judge said:

“ The claimant is not seeking to recover the value of the services rendered, but it is on an express contract. * * * I think there is a total failure of proof to show any express contract on the part of the deceased which was acted on by the claimant, and no evidence showing, or tending to show, that the mind of deceased and the mind of the claimant came together on that proposition.”

If there was testimony for claimant (none was offered on the part of the estate) tending to prove, on the one hand, an agreement to pay claimant $1,000 for the services to be rendered, and, on the other hand, an agreement on the part of claimant to perform the services for $1,000, then it was error to direct a verdict in favor of the estate.

The claimant is a niece of the deceased. She is living with her husband in Yergennes township, about three miles from Parnell, in Grattan township, in the same county. Ann Yan Dyke lived in the city of Grand Rapids, was more than 80 years old, a communicant in the Catholic Church, and had once lived in Parnell. The testimony tends to prove that she was somewhat infirm. She communicated her desire to return to Parnell to a niece, not the claimant, saying she wanted to go there, get a house, and be near the church. This niece communicated her desire to claimant, who arranged with her husband to see Mrs. Yan Dyke, and he did see her. Mrs. Yan Dyke moved, or was moved, in July or August, 1903, first to the home of claimant, where she remained about two weeks. She then occupied a room in a house in Parnell, where she lived alone, and where she died January 2, 1904. There is testimony tending to prove that claimant examined, cleaned, and repaired the belongings of the deceased, cleaned and arranged her room at Parnell, carried provisions to her there, visited her about once a week, doing her washing, which she took to her home. The husband of claimant hauled wood for her, splitting it and carrying it to her room. A daughter of claimant, 17 years old when the cause was tried at the circuit in May, 1911, testified that she heard deceased say to witness’1 grandmother, a few days after deceased left Grand Rapids—

“ That my mother was working hard and cleaning her things up for her to move them up to Parnell, and that she was going to give her $1,000 to pay for it. She said that she would give my mother $1,000 for taking care of her the rest of her life and for moving her to Parnell, and taking care of her the rest of her life, and providing for her. She said, if she ever became too feeble to take care of herself, she was coming back to live with my mother. ’*

On cross-examination she testified:

"Q. Did she tell your grandmother when she was going to leave that $1,000 to your mother ?
“A. When she got through with it herself.
“Q. When she died?
“A. Yes, sir.
“Q. That is, if she had enough money left when she died she was going to leave your mother $1,000?
“A. Yes, sir.
Q. Is not that what she said ?
“A. Yes, sir.
“Q. But she did not say how she was going to leave it, or whom she was going to leave it with ?
“A. Not while I was around.
“Q. And she thought your mother had been very kind to her?
“A. Yes, sir.
“Q. Did she say that ?
“A. Yes, sir.
“Q. For her kindness and feeling toward her that she was going to leave this $1,000 to her ?
“A. Yes; and for the work she had done.
liQ. And for the kindness ?
“A. And for the work that she was to do the rest of her life.
“Q. And for her kindness ?
“A. Yes, sir.
“ Q. And that when she died that she was going to leave her $1,000 ?
“A. Yes, sir.
“Q. But she; did not say whether she was going to leave it by will, or with Father Byrne, or how she was going to do with it ?
“A. Not in my hearing.
<eQ. Did she sayas to whom else she was going to leave any money to ?
“A. Yes, sir.
“Q. How?
ÍCA. Yes, sir.
“Q. Now, who else did she say she was going to leave any money to ?
“A. To the Little Sisters of the Poor.
“Q. How much did she say she was going to leave to the Little Sisters of the Poor ?
“A. About $200.
(fQ. And who else was she going to leave some to ?
“A. She was going to leave Father Byrne $500 to read masses.
“Q. Five hundred dollars to Father Byrne to read masses, and who else ?
“A. She was going to give her niece and nephew, James and Marie Manzer, some. She didn’t mention any amount.
Q. James and Mary Manzer ?
“A. Yes, sir.
“Q. She was going to leave them some ?
“A. Yes, sir.
“Q. Who else was she going to leave any to ?
“A. My mother.
“Q. And she was going to leave your mother how much?
“A. One thousand dollars.”

No other witness testified to the purpose or intention of deceased in the premises, excepting the husband of claimant. He testified that in going to Mrs. Van Dyke at Grand Rapids, and talking with her concerning her removal to Parnell, and in learning her wishes, he was representing his wife, was sent by her, and was her agent. In offering the husband’s testimony, counsel for claimant stated that it was not offered to establish a contract, but as corroborative of other evidence relative to the contract. I see no force in the distinction made by counsel. If, as agent of his wife, he had made a contract with Mrs. Van Dyke, the contract could not be proved by his testimony. 3 Comp. Laws, §. 10212, as amended by Act No. 30, Pub. Acts 1903.

But whether he was or was not the agent of his wife, it is not apparent, and it is not explained how claimant could, out of her own resources, care and provide for Mrs. Yan Dyke as long as she lived. The husband testified that the work of moving Mrs. Yan Dyke and caring for her things, which he did, he did for. his wife; that nothing was said about paying him for what he did for wood and kindling, pork, etc., which he furnished. “ I told her I was doing them for my wife,” is his testimony. “My wife took bread and cake and pie, chickens, butter, eggs, and potatoes.” Who furnished them ? The record does not inform us. The facts distinguish the instant case and Weessies v. Van Dyke’s Estate, 159 Mich. 180 (123 N. W. 608), upon this point. The husband’s testimony, in so far as it related to or was corroborative of the contract asserted, should have been excluded upon the authority of Stackable v. Stackable’s Estate, 65 Mich. 515 (32 N. W. 808); Finn v. Sowders’ Estate, 139 Mich. 623 (103 N. W. 177). The testimony of the husband, however, amounts to this: That Mrs.,Van Dyke said she was going to pay claimant well for the work she was doing for her, and would leave the money with Father Byrne to pay her all in one lump sum after her death. And—

“She said, if she became too feeble to live there, she wanted Agnes to take her back to her own home — Mrs. Quillan’s. She said that she was becoming so feeble that she was not able to take care of herself where she was in the rooms at the corner on South Division street any more, and she said that, if Mrs. Quillan did not move her out from there, she would have to go to the Sisters, and there she would have to give all her money to them, and she would prefer to give it to Agnes if she would undertake this.”

With reference to another conversation he had with Mrs. Van Dyke, he testified:

“She said she would like to come up and live with Agnes and have her take care of her, as she was better pleased with her cooking and method of housekeeping and getting along, and that she would obtain better care than other places, at the Sisters of the Poor or any other place. Mrs. Van Dyke was a person of good appetite. She was short, quite chunked, corpulent. She asked me to have Agnes come down to see her, and they would make an arrangement to see what they would do. I told her I would do so, and would bring Agnes downtown. Agnes called there about three weeks afterwards. She didn’t go before that time, because Mrs. Van Dyke said she wanted to remain in Grand Rapids until after the dedication of the St. Andrew Cathedral; then she would go up. That was to be dedicated on the 4th of July, 1903. Agnes went there about two weeks after that. I accompanied her. I did not hear any conversation between Agnes and Mrs. Van Dyke relative to Mrs. Van Dyke going to live at Parnell.”

Claimant is not seeking to recover what her services were worth. I find no testimony tending to prove an agreement to care and provide for Ann Van Dyke, as long as she lived, for $1,000.

The judgment is therefore affirmed.

Moore, C. J., and Steers, McAlvay, Brooke, and Stone, JJ., concurred. Blair and Bird, JJ., did not sit.


text:
    LAMOREAUX v. EGGLESTON.
    1. Continuance — Equity—Inoompetenoy—Guardian.
    A suit in equity, having been continued several times on a showing that complainant had become incompetent, was properly heard on defendant’s request, without awaiting the appointment of a guardian, and against the objection of solicitors for complainant, who were unable to assure the court that any probability of complainant’s improving existed, and declined to name any person to act as guardian in the suit, since complainant could have received no benefit from the appointment of a guardian, and the available testimony in his favor could be presented as well without such appointment.

      2. Accounting — Equity—Landlord and Tenant.
    It was not erroneous to allow defendant, on accounting, certain items for money loaned complainant and certain claims on a mutual account, not strictly arising out of the lease between complainant and defendant, but arising out of their mutual dealings in relation to the tenancy.

      3. Pleading — Cross-Bill—Landlord and Tenant — Equity—Accounting.
    Without a cross-bill filed by defendant, the court was authorized, on the basis of the bill and answer, in adjudicating the mutual cross-claims arising out of a tenancy on shares.
    Appeal from Kent; McDonald, J.
    Submitted April 10, 1912.
    (Docket No. 101.)
    Decided July 11, 1912.
    Bill by Ambrose D. Lamoreaux against Melvin Eggleston for an accounting and other equitable relief. From a decree for defendant, complainant appeals.
    Affirmed.

      Adsit & Danhof, for complainant.

      Rodgers & Rodgers, for defendant.
   Ostrander, J.

The bill of complaint was filed September 28, 1908, was answered by defendant, and a replication to the answer was filed November 24, 1908. An amended answer asking for affirmative relief was filed October 21, 1909. The record does not make very clear what was therereafter done beyond this, that an injunction was granted, and was later, and on October 12, 1908, modified upon the motion of defendant to dissolve it.

At a session of the court held September 22, 1911, the cause came on for hearing in open court as in a suit at law, and thereupon counsel for complainant moved the court for a continuance. In support of the motion, the certificate and affidavit of a physician and the affidavit of one of the solicitors for complainant were presented. The court inquired if the complainant could be ready to proceed at the next term, and was answered that no one could tell whether he would or would not be prepared, but that it was the opinion of his counsel that he was mentally incompetent. From the colloquy which followed it appears that certain facts were accepted by court and counsel as true. The court stated, among other things, that the showing as to complainant's condition was sufficient to support the conclusion that he was not fit to come into court, but that the cause had gone over from term to term on complainant’s showing of a similar condition, and there was nothing to indicate an improved condition in the future. Upon the suggestion of complainant’s counsel that a guardian for complainant should be appointed, the court offered to make the appointment if a suitable person was named as guardian. Counsel declined to suggest the name of any person. Thereupon the cause proceeded. Counsel for complainant stated they had nothing to offer. Defendant produced testimony. A decree was entered dismissing the bill, and granting relief under the answer and cross-bill. The amount decreed to be due defendant from complainant was $79.12. Defendant was awarded costs. Complainant has appealed, and urges here that in proceeding to a hearing the court abused discretion, that time should have been allowed for the selection and appointment of a guardian, and that upon the merits the decree is not warranted by the pleadings and proofs.

There is no merit in the contention that a further continuance should have been ordered. It appears that complainant was competent to begin the suit. His infirmity came upon him on or before October 21, 1909, when he was suffering from paralysis, and after which time his condition became gradually worse. Assuming that he was wholly incompetent to do business, or to testify as a witness, and that he would never be in better health, the conclusion is that, in so far as his case depended upon his own testimony, it must inevitably fail. In so far as it depended upon the testimony of others, no good reason was given for not presenting the available testimony, with or without the intervention of a guardian. The defendant should not have been obliged, for an indefinite additional period, to hold himself in readiness to try an issue tendered by the complainant.

The litigation arose out of relations created by an oral agreement, stated in the bill as follows:

“Thesaid defendant should put in all the crops on said farm for the season of 1908; that defendant should have the use of one team of horses, the use of two cows, the use of the barn excepting such space as was reserved for the use of your orator, and the use of all the agricultural implements and tools in and upon said farm, and that he should also have the use of the house, excepting such rooms as were reserved to your orator; that said defendant should perform and pay for (if necessary) any and all the manual labor in sowing, cultivating, and harvesting the said crops, and to furnish one-half of the seed that was to be used for cropping the said land for the said season, and that the other half of said seed was to be furnished by your orator; that for and in consideration of the said work and labor of the said defendant in and upon the said farm, the said defendant and your orator were each to have one-half of all the crops raised on said farm during the said season, excepting the oat and hay crop, which your orator charges was to be divided as follows: One-third of said oat and hay crop to belong to said defendant, and two-thirds of said oat and hay crop to belong to your orator, that said defendant was to care for, keep, and provide at his own expense the necessary food for the said team and cows, and that the fruit raised on said farm was to be equally divided between said defendant and your orator, that your orator at the time of the making of said agreement was the owner of some bees and chickens on said farm premises, which were not covered by said agreement, but remained the exclusive property of your orator during the life of said agreement.”

Defendant entered into possession of the land and cropped it for the year 1908. The bill prays, among other things:

“ (5) That said defendant fully set forth a true and just account of all his acts and doings in respect to said agreement, and that an account may be taken under the direction of this honorable court of all and every of the said seed, materials, cash, and labor furnished by your orator at the request of the defendant.
“(c) That the several sums of money so found to be due to your orator by or from the said defendant, if any, be declared a lien upon the said standing corn and potatoes, and that the said corn and potatoes may be sold under the direction and order of this court, to satisfy the said lien, rendering the surplus, if any, to the said defendant.
(d) That the said agreement may be dissolved by the said court.
“(e) That the writ of injunction may be issued out of and under the seal of this honorable court, directed to the said defendant, and restraining him from in any way selling or disposing of the said corn and potatoes, and from interfering with and molesting the said complainant in the use and enjoyment of his said premises as hereinbefore set forth, and particularly from threatening and committing any injury or violence to the person of said complainant.”

The modified injunction required defendant—

“To absolutely and entirely desist and refrain from selling, disposing, or using the share belonging to said complainant of the corn and potatoes raised and grown on the premises described in said bill of complaint during the year 1908, said share to be determined and said crop divided from time to time as the same shall be harvested, and from plowing and preparing said land and putting in crops for the season of 1909, and from interfering with or molesting the said complainant in the use of his said premises, and particularly from threatening to and committing any injury or violence to the person of said complainant until the further order of this court in the premises.”

In his answer, defendant stated the agreement of the parties as follows:

“That said defendant was to have possession of the farm hereinbefore described, and was to cultivate the same in a good workmanlike manner during the season of 1908; that each of the parties hereto was to furnish one-half of all seeds that were sown or planted upon said farm during said season, and that each of the parties hereto was to have one-half of all crops grown upon said farm during the season of 1908, including fruit grown thereon, with the exception of hay, two-thirds of which was to be delivered to said complainant and one-third was to be the property of this defendant, and by the terms of said agreement said complainant was to furnish to this defendant, free of charge, three horses, and all the necessary farming tools to properly cultivate said farm, and also furnish the use of two cows, free of charge. The said complainant also reserved a portion of the house which he occupies, and also a portion of the barn which he has occupied.”

He prays that an accounting may be had of all the acts and doings of the complainant with respect to said agreement and with respect to all crops, fruits, and produce grown upon the land under said agreement, and of all seed, materials, cash and labor furnished by defendant or by complainant in relation thereto, and that defendant have a decree against complainant for all moneys found to be equitably due him under or because of the said agreement and on account of the failure of the complainant to fulfill any part of the same.

A contention of complainant is that the court considered and gave defendant a decree for certain items not growing out of or appertaining to the said agreement. I am not satisfied that the court was in error. It is true that certain items, such as borrowed money and a mutual account of the parties, were considered. Certain sums were allowed to defendant for money expended by him on account of the alleged default of complainant in doing what he had agreed in the contract to do. The whole account grew out of the relations of the parties and their dealings with each other in view of and with reference to the original contract. The proofs, in the absence of cross-examination of the defendant, are somewhat informal. Complainant’s solicitors exercised their discretion in declining to take part in the proceeding and in reserving, their objections for the attention of this court. Whether defendant might have had the relief afforded by the decree without having filed a cross-bill, or an answer in the nature of a cross-bill, is, in respect to the question now considered, immaterial. The court was warranted by both bill and answer in treating the case as one for the settlement of the • dealings which the parties had with each other after the original agreement was entered into. The balance upon such settlement was determined and stated. It is immaterial, too, that the decree in form dismisses the bill of complaint. Complainant declined to dismiss the bill. The court declined, properly, I think, to dismiss it on motion of defendant, if it was proposed to hear defendant at all on the merits. As was said by this court in Wyatt v. Sweet, 48 Mich. 539, 548 (12 N. W. 693) :

tc The ease itself was a case of cross claims. The object of it was for each side to bring forward his demands and have them judicially liquidated and those on one side applied to compensate those on the other until a final balance should be obtained as due from defendant to complainant, or from complainant to defendant, no matter which, and for the court after ascertaining the true balance to proceed and close the controversy and do complete justice by ordering payment.”

I find no reason for disturbing the decree, and it is therefore affirmed, with costs of this appeal to defendant.

Moore, C. J., and Steere, McAlvay, Brooke, and Stone, JJ., concurred. Blair and Bird, JJ., did not sit.


text:
    REDFIELD v. ENGEL.
    1. Sales — Fraud—Warranty of Quality — Quantity.
    Instructions that if false representations as to quality and quantity of lumber purchased by defendant were made by the plaintiff and relied upon by the vendee, plaintiff could not recover the purchase price; but if defendant relied on his in- ■ speotion of the lumber he was liable for the purchase price, correctly submitted the issues of fact including defendant’s contention that his inspection was perfunctory because he believed plaintiff’s statements.

      2. Same — Concealment.
    But the court rightly refused to submit to the jury defendant’s claim that the lumber was piled so as to deceive defendant, whose testimony did not show improper piling.
    3. Same.
    Plaintiff having made statements relative to the quality of the lumber which defendant claimed he relied upon, his further claim that he supposed the lumber to be of a certain quality, and plaintiff knew his supposition and encouraged it, did not present an additional issue, in view of the statements made and relied upon, covering the same ground.
    Error to Kent; Perkins, J.
    Submitted April 12, 1912.
    (Docket No. 28.)
    Decided July 11, 1912.
    Assumpsit by James Redfield against George Engel for the purchase price of certain lumber. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Q. A. Wolf and Hatch, McAllister & Raymond, for appellant.

      Eastman & Eastman, for appellee.
   Ostrander, J.

Evidenced by a writing signed by each, made August 11, 1909, plaintiff sold and defendant bought “about 80,000 feet of lumber, which the party of the first part has in pile at his place, for the sum of ($700.00) seven hundred dollars.” Twenty-five dollars was paid upon the purchase price. Thereafter defendant began to draw the lumber away, and, having removed some 19,000 feet of it, refused to take more, and refused to pay the balance of the purchase money. Plaintiff brought this action to recover the unpaid price. The defendant with his plea gave notice that he would prove that the purchase was induced by a false representation and statements made by and for plaintiff respecting the quality of the lumber. The alleged representation is:

“The lumber was just as it came from the saw, meaning thereby that it was log run with the mill culls in and contained about 75 per cent, of good lumber better than mill culls.”

A further misrepresentation alleged is that the lumber was so piled that it could not be carefully examined, and so as to deceive. The cause coming on to be tried, the jury returned a verdict for plaintiff, and judgment was entered on the verdict.

Defendant presented 11 requests to charge, which were refused, exceptions were taken, and error is assigned thereon. No other error is suggested in the brief. I do not find testimony to support the charge that the lumber was improperly piled and piled so as to deceive. A representative of defendant inspected the lumber in the piles —looked at it — and was offered every opportunity to examine it. With respect to the other representation relied upon, a question of fact was made by the testimony.

The court instructed the jury upon the subject as follows :

“The defendant admits the making of the agreement, but insists in his defense that at the time the contract was entered into, and as a basis therefor, he relying thereon, the plaintiff represented and claimed that there was about 80,000 feet of lumber, and that it was mill run, so-called— that is that it was lumber just as it came from the saw— including mill culls and common and better; whereas, on attempting to remove the lumber, and on making an estimate of the quantity, it was found that there was only about 69,000 feet of the lumber, and that the entire lot was poor in quality, being mostly culls, and that it was not mill-run lumber, as represented, but, on the contrary, the better grades had been taken therefrom by the plaintiff and sold to others, leaving only the poorer grades; that on discovering such misrepresentation he repudiated the contract, refused to take the lumber or pay therefor, and demanded a return of the money paid thereon; and the other damages claimed by him to have been sustained consisting of expenses, etc., paid out before the discovery of such fraud. The plaintiff denies that he made any such representations as claimed, and insists that the defendant bought the lumber on his own responsibility and inspection, and agreed to pay the price named. These claims of the parties present the single question of fact for you to determine, viz., Were the representations as to quantity and quality made by the plaintiff, as claimed by the defendant, and did the defendant rely thereon as he now claims ? If the representations were made and the defendant relied thereon in making this contract, and you so find, the plaintiff cannot recover; but, on the contrary, the defendant will be entitled to recover against the plaintiff such damages as the evidence shows he has sustained growing out of this transaction.”

I do not see how the real contention could have been more clearly presented to the jury. It is said that it fails to present the contention that the fraud claimed by defendant—

"Did not consist so much in express misrepresentation as in the concealment by the plaintiff of the real quality of the lumber by piling it in such a way that the quality could not be discovered by inspection.”

I have already stated that the testimony does not support this criticism. Defendant either bought the lumber relying upon the representation alleged to have been made, or he did not so buy it.

If he bought it upon inspection only, the representation was immaterial, and the inspection was not prevented or interfered with. If he bought because of the representation, supported by such inspection as was made, and the inspection was perfunctory because the representation was relied upon, still the charge was all that defendant was entitled to, because the jury was told that if the representation was made, and was relied upon, plaintiff should not, and defendant should, recover. ’

It is urged that the eighth request to charge should have been given. It was:

“ If you find that Mr. Latta supposed this lumber was mill run and just as it came from the saw, and Mr. Red-field knew of this belief, and that Mr. Redfield encouraged Mr. Latta in the same, and did not disclose to him that the lumber was not mill run, but that a considerable quantity of the good lumber had been taken out by Red-field, then this would constitute á legal fraud, and entitle Mr. Engel to rescind the contract if such circumstances were reported to him by Mr. Latta and he believed and relied thereon.”

The testimony is clear that plaintiff refused to sell the lumber by grade; that statements were made by and for him concerning quantity and quality; that defendant sent an agent to inspect the lumber. Having heard the statement of, plaintiff, the agent must be presumed to have relied upon that if upon anything except his inspection, and plaintiff was excused, it would seem, from exercising his imagination upon the subject of what the agent supposed beyond or in addition to what the statement and inspection supported. In every respect, in my opinion, the arguments advanced by counsel for appellant are answered by the record and by the charge which was given.

No error being made out, the judgment is affirmed.

Moore, C. J., and Steers, McAlvay, BrGoke, and Stone, JJ., concurred. Blair and Bird, JJ., did not sit.


text:
    HEWITT v. PERE MARQUETTE RAILROAD CO.
    1. Pleading — Time—Variance—Videlicet.
    Generally, allegations of time, place, quantity, quality, and value, when not descriptive of the subject of the action, need • not be proved strictly as alleged: whether they are so descriptive is to be determined by the judge in the case before him, and no precise rules can be laid down according to which it can be in all cases determined.

      2. Railroads — Fires—Negligence in Setting Fires — Statutes —Cinder Guards — Variance.
    Under 2 Comp. Laws, § 6295, it is necessary to aver and prove as alleged the date when plaintiff claims defendant’s locomotive set fire to plaintiff’s property, in order that defendant may be advised what locomotive was claimed to be out of order; a fatal variance occurred in an action based on the statute where plaintiff’s declaration alleged that the fire occurred on, to wit, the 15th day of July, 1906, but no witness was able to fix the date further than to say that the fire occurred during July.

    3. Same.
    Evidence that a fire which destroyed plaintiff’s property originated on defendant’s right of way, that the wind was blowing from the railway towards plaintiff’s premises, that fires had sometimes been set by defendant’s locomotives, without any testimony tending to prove that it was set by any specified engine, or that a train passed shortly before the fire was discovered, or that the right of way was in condition to cause a fire, besides the fact that the grass was dry, was not sufficient to raise an issue for the jury.
    Error to Kalkaska; Lamb, J.
    Submitted April 12, 1912.
    (Docket No. 23.)
    Decided July 11, 1912.
    Case by William C. Hewitt against the Pere Marquette Railroad Company for negligent destruction of plaintiff’s property by fire. Judgment for plaintiff, defendant brings error.
    Reversed.

      Bills, Streeter, Partner & Shields (Seward L. Merriam and Govell & Gross, of counsel), for appellant.

      Wayne Simmons (Ernest G. Smith, of counsel), for appellee.

       Liability of railroad for setting fires which spread to the property of others, see note in 21 L. R. A. 262.
      Constitutionality of statute imposing absolute liability, see note in 25 L. R. A. 161.

   Ostrander, J.

The action is trespass on the case. The case made by the declaration, which was filed April 26,1911, is that defendant, a common carrier railroad company, negligently set a fire on, to wit, July 15, 1906, and on, to wit, July 8, 1909, on its right of way, which fires spread to the premises of plaintiff and destroyed his properly. The declaration is inartificial, appears to have been intended to contain two counts, and in its conclusion is grounded upon 2 Comp. Laws, § 6295. Defendant pleaded the general issue, produced no testimony at the trial, preferred a request that the court direct a verdict in its favor and because of the refusal to give the said direction; and because of various other rulings of the court, and alleged improper conduct of counsel for plaintiff, seeks to reverse a judgment for plaintiff entered upon the verdict returned by the jury. The record contains the substance of all the testimony given upon the trial. As developed at the trial, it is plaintiff’s theory that both fires were set by defendant’s locomotives upon the right of way, escaping therefrom to the adjoining land of the plaintiff. The date of the fire in 1909 is fixed by a witness as July 8th. The fire of 1906 occurred some time in the month of July; no witness being able to more certainly fix the date.

The point was made upon the trial and is the subject of the first assignment of error relied upon in the brief, that the time of the fire is material and must be strictly proved, even though it is alleged under a videlicet. Generally allegations of time, place, quantity, quality, and value, when not descriptive of the identity of the subject of the action, will be found immaterial and need not be proved strictly as alleged. Whether they are descriptive is to be determined by the judge in the case before him, and no precise rules can be laid down according to which it can be in all cases determined. Much depends upon particular circumstances, the nature of the averment itself, and the subject to which it is applied. 1 Greenleaf on Evidence (15th Ed.),§ 56 et seq.

In the case at bar, it is alleged in the declaration that it was the duty of the defendant to use due and proper care to provide safe engines, with safe and proper machinery, smokestacks, fire boxes, and spark arresters, so that fire should not be communicated from the engine and smokestack to plaintiff’s property, to at all times see that the engines and machinery were in good condition, and that they were properly managed, and that all reasonable precautions should be taken at all times to prevent the escape therefrom of any sparks, to keep its right of way clean and free from dry grass and other combustible material. It is alleged that defendant was negligent in the performance of these duties, and, at the times and places mentioned, utterly failed in the performance of these duties. A circumstance to be considered is that any locomotive is liable to set a fire (Dolph v. Railway Co., 149 Mich. 283 [112 N. W. 981]), and that this fact is recognized in the statute which provides that the company shall not be liable in such cases if it proves to the satisfaction of the court and jury that such fire originated from fire by engines whose machinery, smokestack, or fire boxes were in good order and properly managed. It requires no argument to show that in such a case as the one at bar, if the date of the fire can be alleged under a videlicet and proved to have occurred before the beginning of suit and at any time within the period of the statute of limitations, the defendant will be denied the knowledge necessary to enable it to prepare its defense and the benefit of the statute. If we may not take judicial notice of the fact that the defendant, in the operation of its road at the place in question, employs many agents and locomotives, the declaration and the testimony supply the necessary data. One of several locomotives, operated by one of several enginemen upon one of the many occasions when the train passed over the road, set the particular fire, if it was set by the defendant. I am of opinion that the time of the negligent action asserted is so far material and descriptive of the negligence relied upon by plaintiff that it should be proved as alleged. Eastman v. Bodfish, Fed. Cas. No. 4,255. As to the fire of 1906, there was therefore a variance of proof from allegation which prevented a recovery.

It is contended that the origin of the fire of 1909 was not proven. The point was raised by objection to proof of damages until the origin of the fire was fixed, and by the motion to direct a verdict for defendant. There is testimony tending to prove that the fire originated in the right of way, spreading to the land of plaintiff; that the wind was in a proper direction to carry fire from the right of way to the land of plaintiff. There is testimony tending to prove that the grass was dry on the right of way. Beyond this there is no testimony concerning the condition of the right of way, and no proof that a train passed over the road shortly before the fire was discovered, which was about noon on July 8th. It appears from the argument made to the jury by the attorney for the plaintiff, a portion of which is contained in the record, that he asserted that both fires were caused by the 11 o’clock passenger train going up the grade passing the plaintiff’s farm. There is no testimony tending to prove that in 1909 there was such a train running. The testimony falls far short of that presented in Jones v. Railroad Co., 59 Mich. 437 (26 N. W. 662), and in Clark v. Railway Co., 149 Mich. 400 (112 N. W. 1121, 12 Am. & Eng. Ann. Cas. 559), where it was held that the trial court properly left the question of the origin of the fire to the jury. That the fire might have been set by a locomotive is undoubtedly true. But if the testimony tends to prove no more, it is not sufficient. Clark v. Railway Co., supra. It might have been set in various ways. In the language of the statute, defendant is liable for damages caused by fire originating from such railroad, either from engines passing over said road, fires set by the company employés by order of the officers of the road, or otherwise, originating in the constructing or operating of the road.

In the case at bar, as in Osborne v. Railway Co., 111 Mich. 15 (69 N. W. 86), some of the jury seem to have been troubled concerning the proof of the origin of the fire. This inference is drawn from the question asked by one of the jurors when they returned into court for further instructions, after they had been instructed that, if they could not say from the testimony in the case that the fire was set by the defendant company, then it would be their duty to return a verdict for defendant. Unless the mere fact that fire originating upon the right of way of the railroad company, coupled with the fact that fires had sometimes been set by locomotive engines, is evidence that it was set by engines of the company, there was no evidence of the origin of the fire of 1909. The jury should have been told that the testimony upon the subject was insufficient. Other alleged errors are not considered.

The judgment is reversed, and a new trial granted.

Moore, O. J., and Steere, McAlvay, Brooke, and Stone, JJ., concurred. Blair and Bird, JJ., did not sit.


author: Brooke, J.

text:
    PUTT v. GRAND RAPIDS & INDIANA RAILWAY CO.
    1. Railroads — Crossings—Negligence—Contributory Negligence.
    Plaintiff, who was very deaf, was guilty of contributory negligence in standing on defendant’s tracks at a street crossing, his attention being engaged by an occurrence in the street, until •he was struck by a locomotive approaching with the bell ringing, plaintiff’s back being towards the train.

      2. Same — Gross Negligence — Last Clear Chance.
    Nor was defendant’s engineer chargeable with gross negligence where he backed his engine over the crossing, keeping a lookout, and having his locomotive under control, running about six miles an hour, but being prevented by his tender from seeing plaintiff who stood at one side of the track.

      3. Words and Phrases — Gross Negligence — Definition.
    Gross negligence means the intentional failure to perform a manifest duty, in reckless disregard of the consequences, as affecting the life or property of another. It also implies thoughtless disregard of consequences, without the exercise of any effort to avoid them.
    Error to Kent; McDonald, J.
    Submitted April 15, 1912.
    (Docket No. 145.)
    Decided July 11, 1912.
    Rehearing denied October 7, 1912.
    Case by Charles W. Putt against the Grand Rapids & Indiana Railway Company, for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed and no new trial ordered.

      James H. Campbell, for appellant.

      Geo. E. & M. A. Nichols and Dunham & Phelps, for appellee.
    Second avenue is a street running east and west in the city of Grand Rapids. It is crossed by five railway tracks. The two easterly tracks are Michigan Central side tracks, the next one is the Michigan Central main track, next west of that is defendant’s main track, and west of that again is the Michigan Central transfer track. A flagman is stationed at this crossing. His shanty is located just west of all tracks and north of the northerly sidewalk on Second avenue.
    On the morning of plaintiff’s injury, an engine left the roundhouse at Ninth avenue at about 9:30 a. m. It moved north to the main track which it entered 229 feet south of Second avenue, thence north on defendant’s track across Second avenue and First avenue, to a point north of the signal bridge, north of First avenue. It was necessary for the engine to go to a point north of this bridge to get through the interlocker. There it came to a stop and received the signal, and then backed south along the main track across First avenue and Second avenue on its way to the south yards, where it was to take out a freight train to Muskegon.
    The plaintiff, a man of mature years, approached this crossing from the west on the northerly sidewalk, intending to cross the tracks to a planing mill just east of the tracks. When near the westerly track, plaintiff noticed defendant’s engine going north. After it had passed, he stepped upon defendant’s main track. As he did so, his attention was attracted to a man who was having trouble with a load of lumber; the load having tilted up. Plaintiff stood on the track watching this man for a short time, he says 15 or 20 seconds, when he was struck by the engine which was. returning south. Just before he was struck, he turned his head and saw the engine upon him. He attempted to jump to the west, being near the west rail, but was struck by the southwest corner of the tender. Plaintiff suffered a compound fracture of both bones of the left leg. At the time of the trial, the bones had failed to unite, and it was the opinion of the surgeon that amputation of the foot would be ultimately necessary. Plaintiff was very deaf, so deaf as to be unable to hear the approaching engine, although it was equipped with a bell 16 by 14 inches, weighing 98 pounds, which was constantly ringing as it approached and crossed Second avenue.
    The crossing in question is a busy one, many trains passing and repassing each day. Plaintiff was familiar with the crossing, having passed over it the evening before his injury. He testifies that, as he approached the crossing on the morning, he saw no watchman though he looked for him.
    It appears from the record that at or very near the time the engine in question was backing south across Second avenue, a Michigan Central train, bound north on the Michigan Central main track, that being the next track east of defendant’s main track, reached the same point. The engineer in charge of the engine testified, in part, as follows:

      “The rule as to the rate of speed through that inter-locker district was at that time 6 miles an hour. When I got the signal from the towerman, I went south down the main track, went back south. I ran south on the main track to the B. O. tower, or south yards. Going south from First to Second and Third avenues, the engine was running at not to exceed 6 miles an hour at any place. I was then inside of the interlocker district. The fireman (Stevens) was in the engine with me, nobody else.

      “Q. What were you doing and where were you on the engine as you ran south ?

      “A. Looking toward the way we were going.

      tlQ. Where were you, in the cab ?

      “A. In the cab.

      “Q. On which side of the cab?
    “A. I was on the— It would be on the east side of the tracks, backing up.

      “Q. As you were backing the engine down there across First avenue, and on across Second avenue, state what you were doing, whether you were keeping any outlook in the direction you were going ?
    “A. I was looking out of the cab in the direction I was going.

      “Q. Where did you look out of the cab there; did you have your head out of the window ?

      “A. Yes, sir.

      “Q. You were looking out of the east window of the cab far enough to look ahead ?
    “A. Yes.

      “Q. Did you see any person on or near the track between First or Second avenue, as you went south ?

      “A. I did not.

      t(Q. Did you see anything of this accident ?
    “A. No, sir.

      “Q. Did you see the man when he was struck?

      “A. No, sir.

      teQ. When did you first know you struck him ?
    “A. When I arrived at the B. O. tower.
    “Q. I think the testimony shows that he was on the westerly side of the main track, and state whether or not you could see that point, the southwest corner of the tender ?
    “A. It takes, I should judge, 200 or 300 feet to see across when the engine is backing up, with this kind of a hacking, that I had loaded with coal; it is quite a distance that you go the other side of the track.

      5 ‘Q. As you moved on from the signal bridge from First avenue, could you see Second avenue and the main track at that point ?

      “A. I think you could.
    “Q. And you could see it for some distance going on south, until you got so near that the tender was between you and the westerly side of the track, is that right ?
    “A. Yes, it takes at least 200 or 300 feet, if I am not mistaken, to see across from the tender onto the other side of the track. The fireman was putting in the fire, shoveling coal into the fire box, and his attention was on that. It was a necessary part of the work. It'was a steam locomotive, and the fuel used was coal. There was a bell on that engine. I do not know the size or weight of it. I heard Mr. Habercorn’s testimony; that was a correct description of the bell in my judgment. That bell was rung as the engine moved south. It was ringing from the time we left the roundhouse until we arrived at the B. O. tower, and was ringing when I crossed First avenue and Second avenue. It rang automatically, by air. That engine was No. 50. I left the roundhouse about 9:35. I would not say exact, but about that. I was to take the train at 10 o’clock.”
    On cross-examination, he testified:

      “Q. Now, as you started back south, did you notice a Michigan Central train up by the signal bridge, or beyond that ?
    “A. Yes, sir.
    Were you watching that train ?
    “A. I was.
    “Q. So your attention was— From the time you started from that interlocker looking north, you had your eye on the Michigan Central train ?
    “A. Well, and on the track.

      “Q. But you had your eye on the train ?

      “A. I saw the train.

      “Q. And you were watching it, were you not ?

      “A. Yes, sir.
    “Q. Now you depend considerably upon your watchman at this crossing, for he will see that there is no one in the way ?
    "A. That is what he is there for, I suppose.

      iCQ. And when you start back it is customary that on these crossings that you know a flagman is regularly stationed for you to rely on that flagman to do his duty, and, if there is anything in the way, to give warning to the parties, to give warning to you ?

      “A. Yes, sir. * * *

      “Q. Here is the window of that cab; does your tender extend any beyond that, or is it just even with it ?

      ((A. It is a little inside.

      “Q. About how much ?

      “A. About 4 inches.

      i(Q. About 4 inches inside of the cab window.?

      “A. Yes, sir.

      “Q. And you were looking out of the east window of your locomotive ?

      “A. Yes, sir.
    “Q. And if you— To get a full view of this crossing •or of any crossing as you back up where the line is perfectly straight — that is, where the road is straight, the rails running straight — you say you cánnotsee the track; your vision is cut off from the track some 200 or 300 feet ?
    “A. I should judge it was that far; I never measured it. It stands to reason you could not see.

      (lQ. Have you any recollection whatever that morning of taking any particular notice of the conditions up there at Second avenue as you started back ?

      “A. No.
    “Q. And, as you were depending upon the watchman, the man might have been there and you not noticed him a way down there at the signal bridge standing on the sidewalk?

      “A. He might have been there.”
    Upon redirect examination, this witness further testified:
    “The Michigan Central train, when I first saw it, was about Fifth avenue,- and it was going north. I had nothing to do with that train; it was running on another track. I was running on the Grand Rapids & Indiana main track, and that is the track that I was watching. I passed the rear of the Michigan Central train at Third avenue. Just before meeting the Michigan Central train, I slowed down, even slower than I was running. The reason for doing that, most always when a train passes on a parallel track like that, some one is apt to come in behind it, and you are apt to catch them going in the opposite direction. That is, the possibility of some one on the east side of the Michigan Central track going west, waiting until the Michigan Central train passed north, and then going right on to the Grand Rapids & Indiana track. I was looking out for that. I pulled the speed down almost to a stop; that is where people get hurt most and worst. I did not see Mr. Putt at all.”
    The watchman at the crossing testified in part as follows :
    “ Q. Where were you standing at the time he was struck?

      ‘‘A. I was standing right in the center of the street.
    “ Q. On which side of the Grand Rapids & Indiana main track ?
    “A. On the west side.
    “ Q. And how near to the main track ?

      “A. About seven feet where I stood.
    “ Q. And in the center of the street ?

      “A. Yes, sir.
    “ Q. Did you see the passenger train coming from the south at that time ?

      “A. Yes, sir.
    “ Q. Were there any people on either side of the tracks about to cross the tracks in either direction ?

      “A. No, sir.

      “ Q. Did you look west ?

      “A. Yes, I looked west; I looked, I started and I looked up first west and there was nothing there, and I turned around and looked east, and then turned around and looked on the north side, and that fellow got struck at the same time.
    “Q. Let me see if I understand you. You saw this train coming, the passenger train was coming from the south ?

      “A. Yes, sir.

      “Q. And the engine was coming down from the north at the same time — the Grand Rapids & Indiana engine ?

      (‘A. The Grand Rapids & Indiana went first.
    “Q. But, when you looked there, they were both coming to the crossing ?

      “A. Yes.

      (‘Q. The engine from the north and the passenger train from the south ?

      “A. Yes, sir.
    “ Q. Now, you say you looked around ?

      “A. I came up from my shed, from my watchhouse, and I looked around there if something were there.
    “ Q. You looked west ?

      “A. Yes.
    “ Q. Did you see anybody on the street or sidewalk ?
    “A. No, not so far as I could see.
    “ Q. Then did you look east on the street ?

      “A. Then I turned around and the Michigan Central freight comes, and I turned around and looked, and the engine, at the same time that fellow there, he comes across.
    “ Q. He was struck just as you looked around ?

      “A. Yes, at the same time.
    “ Q. Had you seen him before that anywhere ?

      “A. No, not that day.
    “ Q. That morning ?
    “A. No, sir.”
    Charles Sleeman, a witness for plaintiff, was close to the crossing at the time of the accident. He testified that he saw the engine pass, and just when it passed he saw the plaintiff; that he went right over and helped pick him up; that there was some one else there, the flagman at the crossing. The court charged the jury that plaintiff was guilty of contributory negligence, as a matter of law, and that there could be no recovery unless his injuries were occasioned by the gross negligence of the defendant.
    Upon the question of gross negligence the court charged:
    “ In order that you may be able to determine whether the defendant, through its enginemen or crossing tender or either or any of them, was grossly negligent, I will give you the legal definition of gross negligence, which has been said by our court to be:
    '“It means the intentional failure to perform a manifest duty, in reckless disregard of the consequences, as affecting the life or property of another. It also implies a thoughtless disregard of consequences, without the exertion of any effort to avoid them.’
    “Prom this definition you will see that gross negligence will consist either in the intentional failure to perform a manifest duty in reckless disregard of consequences, or it may imply a thoughtless disregard of consequences without the exertion of any effort to avoid them. * * *

      “ ‘If the employes of the railroad company saw the plaintiff in danger, or if they did not actually see him, but by exercising ordinary care in the discharge of their duties, they would have seen him and should have discovered the danger that he was in in time to avert the injury, and either failed after discovering it to take steps to avert it, or failed to discover the danger at all, the fact that the plaintiff’s danger arose in the first place through his own negligence in standing upon the track will not prevent his recovering for the injury sustained in this case.’
    “So that, if you find that the engineer backed his engine over the crossing without looking to see whether any one was upon the crossing; if you find that he saw or could have seen the plaintiff standing upon the sidewalk of the crossing and did not check the speed of the train or in any other way use ordinary care to prevent striking him, he was guilty of gross negligence, and the plaintiff can recover, notwithstanding that he had previously negligently placed himself in such position of danger. A railroad company is guilty of gross negligence if it backs a train over a public crossing, especially in a populous place, unless ordinary care is used for the protection of travelers. This is one of the questions for you to determine : Did the defendant, through its employés, discover the danger in which the plaintiff had placed himself, or by the exercise of ordinary care should have discovered it, and did they use ordinary care to prevent injury to the plaintiff? You will determine this from all the evidence in the case, and that is really the only question that you have to determine; it is the main question that you have to determine in this case. * * *
    “I charge you that it was the duty of the crossing tender to use all reasonable efforts to be in such a position or place upon said crossing that he would be able to stop pedestrians or travelers upon Second avenue coming from either direction when a train was about to pass, and, if he failed to do this, he neglected his duty, and if you find that the crossing tender, at the time plaintiff was standing upon the crosswalk (if you find that he stood there ) was not in such position that he could have warned the plaintiff, or by the use of ordinary care he might have known and discovered plaintiff’s position, then the defendant is guilty of gross negligence, and the plaintiff is entitled to recover.”
   Brooke, J.

(after stating the facts). It is the position of defendant that, under the testimony in this record, a verdict should have been directed for the defendant. It is not disputed that the speed of the engine was not greater than six miles per hour, nor that the bell upon the engine was constantly ringing as it approached the crossing where plaintiff received his injury. There is no dispute as to the actions of the engineer or fireman immediately before the accident. The engineer testified that, from his proper position upon the easterly side of the engine, he kept such lookout as was .possible from his point of view, while the fireman was engaged with his particular work— that of shoveling coal. As the engine approached Second avenue from the north, the engineer’s line of vision would gradually be cut off by the tender, so that, when 200 or 300 feet from Second avenue, he would be unable to see a man standing nearer the westerly rail of the track than the easterly rail, the position which plaintiff asserts he occupied while standing upon the track. He testifies that he never saw the plaintiff, and did not know that his engine had injured any one until he reached the B. O. tower, some distance south of Second avenue.

But, assuming that the engineer saw plaintiff standing upon the track 200 to 300 feet away, at the rate of speed at which he was traveling it would take at least 30 seconds to travel this distance, while the plaintiff could step off the track and reach a place of safety in the fractional part of a single second. With the bell sounding a constant warning, with no notice of plaintiff’s infirmity, and considering his rate of travel, we are of opinion that the engineer would have had a right to presume that the plaintiff would step off the track before the engine reached him, and that the engineer would not have been guilty of even ordinary negligence in continuing upon his course upon that assumption.

It is said by the plaintiff that the watchman was not there. It is clear from the testimony of plaintiff’s witness Sleeman that the watchman was there just as the engine passed. But, even if the watchman was not at his post at the moment plaintiff stepped upon the track of defendant and remained standing there, that fact cannot aid plaintiff, for, according to his own testimony, he knew the watchman was not there, and therefore could not have relied upon his protection. He testified:

Q. When you looked for the crossing tender, you did not find him; did you think he was there, or did you think he was not there ?
“A. I knew nothing about that, but I think he was not there at his place to watch the crossing; I didn’t know where he was, but he was not there.
“Q. Then, when you looked up for him and did not find him there, why did you stand on the track with your back to the north, depending on the crossing tender doing his duty to warn you ?
“A. Because I was not expecting any danger. There was nobody there to warn me if there was anything coming, and the time was only of a few seconds’ duration that I stopped.
“Q. You knew it was more dangerous for you to stand on the railroad track than for a man that could hear ?
“A. Yes, sir.
“Q. And you did not hear anything until this engine was right on you ?
“A. Sir?
“Q. You did not hear anything until this engine was right on you ?
“A. I did not hear the engine at all. when I saw it.
“Q. The only thing that warned you that it was going was you turning around and' seeing it ?
“A. Sir?
“Q. You had no warning it was coming until you turned and saw it ?
. “A. I had no warning at all, in no way, either by the watchman or by sound.
“Q. And then you said it was within about six feet of you?
“A. I should judge it was that close to me when I first saw it.
“Q. Did you have time to examine the end of the tender to see what was on it ?
(CA. I did not nave any more time than just to glance over the back of the engine and to try to get out of the road.
“Q. And you made a jump, you said, backward ?
“A. Sir ?
“Q. You jumped backward, you said?
“A. I jumped backward to get off the track.
“Q. In other words, you jumped toward the west?
“A. I jumped toward the west, yes.”

This court has held that; where plaintiff’s negligence contributed to his injury, he cannot recover “without intentional wrong ” on the part of the defendant. Williams v. Railroad Co., 2 Mich. 259 (55 Am. Dec. 59). “Without wanton or intentional wrong.” Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274. “Unless the defendant was guilty of such reckless and wanton negligence ” as would acquit the plaintiff. Freeman v. Railway Co., 74 Mich. 86 (41 N. W. 872, 3 L. R. A. 594). “Gross negligence” means “the intentional failure to perform a manifest duty, in reckless disregard of the consequences, as affecting the life or property of another. It also implies a thoughtless disregard óf consequences, without the exercise of any effort to avoid them.” Schindler v. Railway Co., 87 Mich. 400 (49 N. W. 670). See, also, Richter v. Harper, 95 Mich. 221 (54 N. W. 768); La-barge v. Railroad Co., 134 Mich. 139 (95 N. W. 1073); Buxton v. Ainsworth, 138 Mich. 532 (101 N. W. 817, 5 Am. & Eng. Ann. Cas. 146); Knickerbocker v. Railway Co., 167 Mich. 596 (133 N. W. 504); 29 Cyc. p. 507.

Applying the definitions and principles laid down in the foregoing cases to the facts in the case at bar, we are of opinion that there was no evidence in the case which warranted its submission to the jury upon the question of defendant’s gross negligence.

The judgment is reversed, and no new trial is granted.

Moore, C. J., and Steers, McAlvay, Stone, and Ostrander, JJ., concurred. Blair and Bird, JJ., did not sit.


text:
    QUINLAN v. HEYBOER.
    1. Trial — Justice’s Court — Appeal.
    It was not a violation of the rule that the result in justice’s court should not be brought to the attention of the jury on trial of an appeal, where the attorneys for plaintiff referred to the result below, indirectly, in argument to the court upon a point of law, without, however, making clear to the jury what the judgment of the justice determined.
    2. New Trial — Compromise and Settlement.

      Held, that the verdict of the jury finding against a claimed compromise was not contrary to the weight of the evidence.
    Error to Kent; McDonald, J.
    Submitted April 15, 1912.
    (Docket No. 113.)
    Decided July 11, 1912.
    Assumpsit in justice’s court by Thomas Quinlan against Adrian Heyboer for services rendered. From a judgment for plaintiff, the cause was appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Colin P. Campbell, for appellant.

      Charles A. Watt, for appellee.
   Ostrander, J.

Plaintiff recovered a judgment in justice’s court, and, on appeal, a much larger judgment in the circuit court. Rather than submit to a new trial, plaintiff remitted $105 of the judgment. A second motion for a new trial was overruled. In this court, the defendant (appellant) presents the contentions, first, that it was error for plaintiff’s counsel to make a certain argument to the court in the presence of the jury; second, that the verdict was against the weight of the evidence.

It is said that the effect of the statement of counsel objected to was to acquaint the jury with the result of the trial in justice’s court, a practice disapproved by appellate courts. See Corning v. Woodin, 46 Mich. 44 (8 N. W. 572); Battishill v. Humphreys, 64 Mich. 514 (88 N. W. 581); Adams v. Fisher, 83 Neb. 686 (120 N. W. 194).

The colloquy, in the course of which the statement was made, arose during the cross-examination of the plaintiff, who was interrogated with regard to having accepted a certain check from defendant in settlement of his demand. The plea of defendant was the general issue, with notice of set-off. The court excluded the testimony, and defendant asked and was given leave to amend his plea so as to give notice of accord and satisfaction. In the course of the argument, counsel for both parties made various statements concerning what took place upon the trial in justice’s court. Continuing his cross-examination after the amendment of the plea, counsel for defendant sought, unsuccessfully, to prove by the witness that he had accepted the check in settlement of his demand, with the understanding that defendant should pay a certain note.

The record shows the following:

Mr. Watt: If your honor please, I desire to have the same objection to all this testimony, even under their amended plea, because the bill of particulars in this case does not cover the payment of any note. They never have pleaded in this case that they paid that note; they never set that up as a part of their defense that they had ever paid the note. At the time of the trial before, they had not paid the note, and so testified, and they did not claim for it, and do not now, that it was paid.
“Mr. Campbell: Suit was started before the note was due in this case.
“Mr. Watt: But it was not tried until long after it was due.
Mr. Campbell: Mr. Quinlan’s own testimony on this point is that Mr. Heyboer was to pay that note. Now, Mr. Heyboer, as between him and Mr. Quinlan, is liable for the amount of that note under any circumstances whatever. Mr. Quinlan has not yet paid the note—
“Mr. Watt: That is none of your business.
“Mr. Campbell: —and the note still remains unpaid; but, as between Mr. Quinlan and Mr. Heyboer, Mr. Heyboer is liable under Mr. Quinlan’s own testimony.
Mr. Watt: That would be an utter impossibility, if your honor pleases, because it is simply a verbal promise to pay the debt of another, and, as between Heyboer and Quinlan, there is nothing to it. If this was a settlement, and had been treated as a settlement, that would have been a different thing; but under the circumstances, when they went into this case, in the first place, they calculated that they would get out of paying that note, and now, when they find out the chances are they won’t be able to get out of paying that note and considerable more, they make this shift in hopes that by some hocus-pocus with Thomas, who is their personal friend, they can get that note into their possession and call that a settlement, and get out of it at'about $20 higher than the learned justice down in the court below saw fit to give them.
"Mr. Campbell: I take an exception to the remarks of counsel.
“Mr. Watt: You can. Down there they did not try it—
“The Court: Is the note included in the bill of particulars ?
“Mr. Watt: It was included in our bill, but when we found out on the trial that it had not been paid, and that they repudiated the settlement they now claim, we struck it out and amended our bill of particulars to that effect down there. The situation is here, if their contention was correct now, by adding it to the bill of particulars it would have wiped out the claim that the justice found for us down there, and $20 more.
Mr. Campbell: I except to that remark.
The Court: Well, it is not necessary to make any statement in regard to the amount found by the justice. The jury will pass on the facts of this case independent of any verdict in the other court. You may have an objection and exception to all that testimony.
“ Mr. Watt: An exception.”

The record does not contain the particulars of the demand of either party. What was said by counsel does not disclose to me, and I assume it did not disclose to the jury, the result of the trial in justice’s court. And, if it conveyed more information upon the subject than it does, I am not prepared to hold that it was error to make the statement. Whatever facts are disclosed are in support of an argument addressed to the court, and appear to have been based upon the record. Furthermore, it is not evident how the disclosure could have prejudiced the defendant.

Under his second contention, appellant insists that his testimony showed an accord and satisfaction conclusively, or so clearly that an opposed verdict should be set aside. It is at least questionable whether the defendant should have been permitted to amend his plea. Aside from this, there was a dispute of the fact that the check was tendered or was taken in settlement, and the court submitted the question to the jury, instructing them, as requested to do by defendant, that—

“If you find from the evidence that the defendant did on the 18th day of May last, or on some other day prior to the commencement of this action, give the plaintiff a check for a certain sum therein stated, then telling him it was in full settlement, and that the plaintiff cashed such check and used the money, your verdict will be for the defendant, no cause of action.”

This was favorable to defendant, and the determination of the jury is not so clearly against the weight of the evidence as to justify the court in disturbing the verdict.

The judgment is affirmed.

Moore, C. J., and Steere, MoAlvay, Brooke, and Stone, JJ., concurred. Blair and Bird, JJ., did not sit.