text:
    VAN DYKE v. DOUGHTY.
    1. Certiorari — Depositions—Letters Rogatory — Witnesses. As the reversal of an order, or proceedings by writ of certiorari,
    ends the whole case, it is not the proper remedy to review an order of the oircuit court determining that a witness should answer interrogations asked under letters rogatory from the court of a sister State, or be punished for contempt of court; the point is not one that oan be reviewed as a question of law in appellate proceedings.
    2. Depositions — Enforcement of Duty to Answer.
    Upon the refusal of witnesses to answer questions asked of them before a notary public, acting under lawful authority of a foreign court, the notary was authorized to present in his own name a petition to the circuit court under 3 Comp. Laws, §§ 10138, 10153 (5 How. Stat. [2d Ed.] §§ 12782, 12798), to compel the witness to make answer.
    3. Same.
    If it can be seen that answers to any questions propounded may be admissible as affecting any issue involved in the suit in which they are to be introduced as evidence, the interrogatories should be answered; the witness should be required to answer only such questions, and to determine the point it is proper to inquire into the merits of the controversy and determine whether the testimony is pertinent. Questions that may become relevant on the trial of the case should not be suppressed.

      Certiorari to Wayne; Hally, J.
    Submitted January 13, 1913.
    (Docket No. 65.)
    Decided March 20, 1913.
    Petition by William Van Dyke to secure an order compelling certain witnesses, Alfred J. Doughty and others, to give testimony under letters rogatory issued by the district court of Polk county, Iowa. An order requiring the witnesses to answer is reviewed by them on writ of certiorari.
    Affirmed, with leave to obtain a modification of the order in the lower court.

      William Van Dyke and Eugene H. Garnett, for relator.

      H. E. Spalding, for respondents.
   Ostrander, J.

In the district court of the county of Polk, State of Iowa, Oomptograph Company, as plaintiff, began a suit at law against Burroughs Adding Machine Company, defendant. Out of and under the seal of that court, letters rogatory were issued'to William Van Dyke, a notary public for the county of Wayne, State of Michigan, to examine on their corporeal oath or affirmation Al-van Macauley, Joseph Boyer, and Alfred J. Doughty upon interrogatories accompanying the said letters and to certify, seal up, and forward the same to the clerk of said county. The statute of this State (3 Comp. Laws, § 10138, 5 How. Stat. [2d Ed.] § 12782) provides that courts of record in this State shall have the power to compel the attendance of witnesses and the giving of their testimony, and the production of books, papers, and other evidences before commissioners or persons authorized to take testimony, and also under commissions or letters rogatory issued out of any court of any other State or of the United States or of any foreign government or country. In such cases the method of compelling the attendance of witnesses is provided by statute, and is by subpoena or summons. Sections 10148 and 10150 (5 How. Stat. [2d Ed.] §§ 12793, 12795). It is further provided (section 10153):

“If any witness attending before any judge, officer or commissioner, pursuant to a summons, or brought before them, or either of them, shall, without reasonable cause, refuse to be examined, or to answer any legal and pertinent question, * * * the officer issuing such summons shall, by warrant, commit such witness to the common jail of the county in which he resides, there to remain until he submits to be examined, or to answer, or to subscribe his deposition, as the case may be, or until he be discharged according to law.”

Mr. Van Dyke filed his petition in the Wayne circuit court, setting up the issuance of the commission, and praying for process against the witnesses named therein. Process issued and was served. The witnesses appeared before the commissioner, answered certain of the interrogatories, and declined to answer others, setting forth their reasons for so declining to answer. The Burroughs Adding Machine Company also filed objections to the said interrogatories, and they are substantially the objections given by the witnesses themselves. The commissioner reported the matter to the circuit court for the county of Wayne, and set up by way of his amended petition the proceedings had before him, a copy of the pleadings in the Iowa court filed by the Burroughs Adding Machine Company, a copy of the objections to interrogatories as well as the interrogatories themselves, and prayed for an order requiring the witnesses, respectively, to appear and answer the petition, that said witnesses be ordered to make answer under oath to all of the interrogatories ‘propounded by petitioner to them, respectively, which they had theretofore declined to answer, and that each be ordered to answer fairly, fully, and without evasion the last and general interrogatory propounded to them, and, in default, that they or either of them continuing to decline or refuse to answer said interrogatories be punished for contempt and be committed to the common jail of the county, etc. The petition was answered, a hearing was had thereon, and the circuit court for the county of Wayne thereafter made its order in the premises, determining that certain interrogatories propounded to each of said witnesses were not legal or pertinent and need not be answered; that certain other interrogatories were legal and pertinent, and should be answered.

To review the proceedings so had in the circuit court for the county of Wayne and the order and determination aforesaid, the Burroughs Adding Machine Company and the witnesses hereinbefore named jointly sued out of this court the writ of certiorari, contending that:

es (1) Proceedings to compel the giving of testimony by deposition cannot be instituted on the relation of the commissioner by whom the deposition is to be taken, and a proceeding so instituted does not confer jurisdiction upon the court.
“ (2) The court cannot, in this proceeding, compel an answer to any interrogatory, unless it finds that such interrogatory is material and relevant to the issues shown by the pleadings.
“ (3) The party proposing the testimony has the burden of showing its materiality and relevancy, and no such showing is here made.”

We are confronted at the outset with the question, not raised by counsel, whether there should be a review of the proceeding upon certiorari. It cannot be supposed that every proceeding of this nature may be interrupted, and the order made therein in the court below be reviewed and set aside or affirmed, as the case may be. On certiorari questions of law only are reviewable, and it is the general rule that, when an order or judgment is reversed in certiorari proceedings, the whole case falls. It is an end to the case. It is true the proceeding is not after the course of the common law. It is special and statutory, and in one view of it an order requiring a witness to answer interrogatories is final. But the questions involved in such a proceeding are addressed to the court issuing the summons or subpoena. The tendency of testimony to prove a fact — its relevancy — is not determined by fixed rules, but by a process of reasoning. The scope of an issue of fact is also usually determined, not by rules, but by tbe exercise of judgment involving a process of reasoning. It is true this court reviews on error rulings admitted or excluding testimony as relevant or irrelevant, treating the questions presented as questions of law, and in such cases they are questions of law as distinguished from questions of fact, affecting directly therights of parties litigant. In a proceeding such as we are considering here, the rights particularly and immediately involved are the rights of witnesses; the rights of parties litigant depending finally upon the judgment and determination of a foreign court. The conclusion that a witness should or should not answer a particular interrogatory, that testimony will or will not probably be relevant, does not in this proceeding, as it does upon the trial of the case, become a question of law reviewable by an appellate court, and, although the question might finally come to us in the exercise of original jurisdiction in habeas corpus proceedings precisely as it comes in the first instance to the court below, this furnishes no reason for a general review of the judgment of that court in deciding that interrogatories shall or shall not be answered.

It may be said, however, that the question of the jurisdiction of the court below is raised. It was not raised in that court, and, assuming that notwithstanding that fact it may be raised in the appellate court, the contention is without merit. The proceeding was instituted, so far as the jurisdiction of the court is concerned, when, upon proper application, process was ordered to be issued. The power of the court issuing process to control recalcitrant witnesses is not denied. It exercised that power when it made the order complained about. If the better practice is for the commissioner to report the proceedings had before him to the court, leaving the court and the party in whose behalf the testimony is desired to take further proceedings, a point not decided, jurisdiction of the court does not depend upon the fact that the commissioner pro forma, and not the party, brings upon the record the matters which ought to be considered. It may be said that in determining the questions presented to it the court below adopted and applied a faulty rule, and that whether it did or did not is a question of law reviewable in this proceeding. If a faulty rule was adopted and applied, it is nevertheless certain that this court may not in the exercise of its appellate jurisdiction examine the evidence which was presented de novo, apply the proper rule, and make the proper order. We have concluded, the questions having been briefed and argued, to give, so far as it is important, our construction of the statute which is involved, with a statement of the true rule to be applied in such cases, and, without vacating or setting aside the order of the circuit court for the county of Wayne, to give the plaintiffs in certiorari leave to move that court to revise its order if such revision, in view of the rule announced, is thought to be proper.

The court may require a witness to answer any legal and pertinent question. The limiting words, legal and pertinent, are not found in section 10138 or in section 10139. Undoubtedly, the sections must be read together. The judge who made the order was of opinion that it was not his duty to inquire with detail into the merits of the controversy, and determine that the testimony proposed to be taken could not be material to the issue, but that the true rule to be followed in such cases is—

“That unless the matter of the interrogatories cannot possibly enter into the merits of the case, the question should be answered, and the objection disposed of on the trial.”

In support of this he refers, in his written opinion, to Covey v. Campbell, 52 Ind. 157; In re Merkle, 40 Kan. 27 (19 Fac. 401); Wilcox v. Dodge, 53 Hun (N. Y.), 565 (6 N. Y. Supp. 368); Fry v. Trust Co., 2 Misc. Rep. 520, 22 N. Y. Supp. 386; Matter of Randall, 90 App. Div. (N. Y.) 192 (85 N. Y. Supp. 1089). It is not objected that any of the questions proposed are not legal if they are pertinent. The question debated is whether within the meaning of the statute they are pertinent. The words “ legal ” and “ pertinent ” employed in this statute mean the tests which the courts use in determining whether testimony is or is not admissible. Testimony which is relevant is not necessarily admissible, because some more or less arbitrary rule of the law of evidence, some privilege of the witness, constitutional or other, some rule of public policy, may require its exclusion. Testimony may be relevant, and be admissible, and yet have slight probative value. The court in ruling that certain testimony is admissible says, in effect, that it tends to prove the fact to which it is directed, is fit to be considered by the jury for that purpose, and is not excluded by any rule of the law of evidence or by any other governing rule.

“The judicial tests of relevancy have this peculiar quality, in contrast with that of proof or evidence in general, or in any other department of investigation: (1) The required probative value is somewhat higher than it need otherwise have been, because the purpose is to select only such material as is worth laying before the jury; (2) the required probative value, on the other hand, is far shorter than full proof, because the judge merely puts upon the material its ticket of admission as relevant, and leaves the weight, or final persuasive effect, for the jury to determine.” 1 Wigmore on Evidence, § 29.

“ Pertinent ” has been defined:

“Belonging or related to the subject or matter in hand; fit or appropriate in any way; adapted to the end proposed; apposite; material; relevant.” Webster’s International Dictionary.

Under the head of “General rules as to relevancy,” Mr. Greenleaf (Law of Evidence [15th Ed.], vol. 1, § 50) says:

“ The production of evidence to the jury is governed by certain principles. * * * The first of these is, that the evidence must correspond with the allegations, and be confined to the point in issue.”
“ It is not necessary, however,” he says (section 51a), “that the evidence should bear directly upon the issue. It is admissible if it tends to prove the issue, or constitutes a link in the chain of proof, although, alone, it might not justify a verdict in accordance with it.”

The following definition of “relevancy” is taken from 2 Bouvier’s Law Dictionary (Rawle’s Revision), p. 866:

“Applicability to the issue joined. That quality of evidence which renders it properly applicable in determining the truth and falsity of the matters in issue between the parties to a suit. See 1 Greenl. Ev. § 49. Two facts are said to be relevant to each other when so related ‘ that according to the common course of events, one either taken by itself or in connection with other facts, proves or renders probable the past, present, or future existence or nonexistence of the other.’ Steph. Dig. Ev. art. 1. This is relevancy in a logical sense. Legal relevancy requires a higher standard of evidentiary force. It includes logical relevancy, and demands a close connection between the fact to be proved and the fact offered to prove it. The fact, however, that it is logically relevant does not insure admissibility; it must also be legally relevant. [United States v. Ross] 92 U. S. 281; it is, however, the tendency of modern jurisprudence to admit most evidence logically relevant. Chamb. Best Ev. 251, note.”

The difficulty in most cases will be not so much in applying the test here indicated when the issues are understood, but in ascertaining what the issues are, or may be, in chief, and in rebuttal, and whether it is likely that collateral issues may arise. If it can be seen that the testimony offered may be admissible as affecting any issue involved in the suit in which it is offered, the question calling for it should be answered. This is a workable rule which in its application preserves the rights of witnesses. It imposes, it is true, a considerable burden upon the court called upon to enforce it to become informed respecting the issues involved, or likely to become involved, in a suit prosecuted in a foreign tribunal, so that it may determine whether testimony which is offered is legal and pertinent; but our statute is in conformity with a general rule of State comity. The consequences of the refusal of a witness to answer interrogatories, when ordered to do so by the court, are considerable and ought not to be visited upon the witness for anything less than a refusal to do what the statute requires him to do. As to the parties to the litigation, they can be affected by the testimony only if the trial court admits it.

The rule indicated differs somewhat from the one stated and applied by the court below, requiring more care in its application — a positive rather than a negative determination. The opinions and expressions of other courts upon the subject are not harmonious. Of those referred to in the opinion filed below, the one in the Matter of Randall, 90 App. Div. (N. Y.) 192 (85 N. Y. Supp. 1089), is fairly indicated by the following words taken from the majority opinion of the court:

“It is enough for us now to say that the testimony sought to be elicited and the identification of evidence, which may be used, may be competent and may be received upon the trial; beyond reaching this conclusion, we are not required to go.”

In Wilcox v. Dodge, 53 Hun (N. Y), 565 (6 N. Y. Supp. 368), the objection made upon the settlement of interrogatories was that certain of them should not be asked under section 829 of the Code, and they were stricken out. What the statute provision referred to is does not appear. It is to be inferred that it creates a privilege of the witness. In ordering the interrogatories restored, the Supreme Court said:

‘ ‘ The witness is a competent witness and his evidence can be excluded only upon objection taken that the case comes within the purview of section 829. And there are circumstances where during the progress of the trial the party seeking to avail himself of section 829 may be precluded from the benefit of the protection granted by this section because of the introduction of evidence upon his own part. Now it is impossible for the court to say whether during the progress of the trial such circumstances may not arise as will authorize the defendant to introduce this evidence. Such being the fact, although it may appear that such evidence cannot be admitted if the objection is taken under section 829, yet it is not absolutely certain but that it may become competent in consequence of something that takes place upon the trial. Under these circumstances, therefore, there seems to be no reason for anticipating that which may or may not happen upon the trial. No harm can possibly be done by allowing the defendant to put these interrogatories, and if the proper objections are raised upon the trial, the judge presiding can afford ample protection to the plaintiffs. We think, therefore, that the interrogatories should be allowed subject to legal objections to be taken at the trial.”

The headnote to the Indiana case is:

“ A question in a deposition, which may in the course of the trial become relevant, should not, before the trial, be suppressed for alleged irrelevancy.”

In Fry v. Trust Co., reported, also, in 2 Misc. Rep. 520,. 22 N. Y. Supp. 386, the opinion contains the following:

“ If, as it is reasonable to believe from the statements of the learned counsel for the appellant, there is a conflict of testimony, and the credibility of witness is involved, the plaintiff is bound to prepare for that emergency, and to endeavor to show that the greater weight is with the plaintiff. It is in view of these considerations, and of others, that in settling interrogatories the courts have used the word ‘ pertinent.’ There may be combinations of circumstances which convince one that now or hereafter a question is not, and will not be, pertinent. But the general object is not merely to ask, Does the question seem pertinent in the present ? but also how it would seem upon the trial. Such is the result of the decision in Uline v. Railroad Co., 79 N. Y. 175 [53 Am. Rep. 123, note].”

The Kansas decision does not seem to be in point. As sustaining generally the rule announced are many decisions of Federal courts where the proceeding was at law; and see, also, Brown v. Clark, 14 Pa. 469; Interstate Commerce Commission v. Baird, 194 U. S. 25 (24 Sup. Ct. 563); Ex parte Peck, 3 Blatchf. (U. S.) 113 (Fed. Cas. No. 10,885); In re Judson, 3 Blatchf. (U. S.) 148 (Fed. Cas. No. 7,563); United States v. Railroad Ass’n, (C. C.) 154 Fed. 268. While the precise question was not raised nor discussed by counsel in that case, the decision in St. John v. Wayne Circuit Judge, 161 Mich. 299 (126 N. W. 218), is in accord with the views herein expressed.

The order of the court below is affirmed, without costs, with leave to plaintiffs in certiorari to apply to the court below for a revision of its order.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    PEOPLE v. SINGER.
    1. Criminal Law — Appeal and Error — Saving Questions for Review — Trial.
    Unless a ruling is asked or made, exceptions to argument of the prosecuting attorney in an assault case are not reviewable.
    2. Same — 1Trial—Instructions.
    Where respondent’s counsel discussed the term of imprisonment that might be imposed on the respondent, it was not erroneous for the prosecutor to reply to the argument or for the court to advise the jury that the matter of punishment should not concern them.
    Exceptions before sentence from the superior court of Grand Rapids; Stuart, J.
    Submitted January 17, 1913.
    (Docket No. 115.)
    Decided March 20, 1913.
    Harry Singer was convicted of assault.
    Affirmed.

      Eoger I. Wykes, Attorney General, Earl E. Phelps, Prosecuting Attorney, and L. T. Herman, Assistant Prosecuting Attorney, for the people.

      Edward N. Barnard, for respondent.

      Respondent, for a reversal of his conviction, relies, in this court, upon:
    (1) A statement made by the prosecuting attorney in his opening to the jury that it was expected to be proven that his intent in making the assault was “to do great bodily harm, and he is charged in a charitable way less than the crime of murder,” a statement not objected to, concerning which no ruling was made nor exception taken.
    (2) A designation of the respondent by the prosecuting attorney in the argument as, “Here is a man a large percentage animal,” to which objection was made but no ruling and no exception entered.
    (3 ) A statement in the argument of the prosecuting attorney to the following effect:
    “You heard what one of your fellow men said this morning, that he got out of there just as quick as he could when he saw what was going on.”
    To this, counsel for respondent said:
    “Put down an exception to that remark. The juror that was excused stated he got out of there just as quick as he could. An objection and exception.”
    No ruling was asked for or made. It is said in argument that a juror called and examined in the case on his voir dire, and excused, had made such a remark in answer to. interrogatories put to him.
    (4) The argument of the prosecuting attorney, apparently in answer to that made by respondent’s counsel, to the effect that a verdict of guilty did not necessarily mean a prison sentence or one for a long term, that the matter of the punishment was in the hands of the court “and absolutely beside the case,” an argument objected to, and to which an exception was entered, but concerning which no ruling was asked or made.
    (5) The following statement in the argument of the prosecuting attorney, objected to and excepted to, but not ruled upon and no ruling requested:
    “ I want to say to you, when counsel says to you that if you convict him you send him to State’s prison for a term of years, that that is not true, and that that is absolutely beside this case, getting back to this case. Right now there is a demand for an exceedingly careful administration of this kind of business, hundreds of men out of employment, at no time could a case demand your careful consideration in this kind of transactions like it does right now. If you say by your verdict this is all right, this careless conduct is all right, we will wink at it, keep her going boys, whack away at these officers from behind or in front, and if two or three fellows are around in front, slip up behind with a stone and tunk them just as you see fit.”
    (6) The following statement:
    ‘And I say, gentlemen of the jury, that the officers, the public, are entitled at this time to the most careful consideration of this case at your hands. You can’t do any more than to put the case up to his honor and say, Judge, whatever law and justice require in this case and in your wisdom and judgment you do it; a conviction can do no more than that. An acquittal can simply say with reckless disregard to the lives of people, and the property of our best citizens, keep banging away, and pay no attention ”
    —which was, apparently, a concluding portion of the argument of the prosecuting attorney, to which counsel for respondent interposed, “Just make an exception to the whole argument.”
    (7, 8, 9, 10, 11) Upon the following from the instructions given to the jury by the court:
    “ It is claimed on the part of the respondent that, while he was there, he went simply to look on, and that he did not join in the attack on Brockmeyer at all; did not assault him or attack him in any way or strike him, and that when these officers drove up he was standing there peaceably looking on, his hands in his pockets, and that this officer or these officers jumped out and attacked him with these police clubs, struck him, and mauled him in the way that he was struck, without his having resisted arrest or thrown any stone or done anything as a reason why they should arrest him. He denies that he threw the stone at a policeman or struck at him or did anything at all; that he simply wantonly got out of the automobile and picked him out, an innocent bystander, and pounded him in this way and put him in the automobile and took him down. * * * You have, on the other hand, the testimony of himself as to what he was doing, that he had no stone in his hand at all, that he was standing there peaceably looking on; as to whether the officers would get out and pick up a person that was peaceable and maul him in the way he has represented is for you to consider. The respondent has also produced the testimony of several witnesses to the effect that they didn’t see him throw the stone or strike or do anything toward the officer, but that they did see the officer striking him. Now testimony of that kind is what is considered and called usually in law ‘negative’ testimony. It is not testimony that is considered very convincing except under peculiar circumstances. I suppose there could be in a crowd of that kind 1,000 or 1,500 people that could be called that did not see this affair at all, did not see this controversy between these officers and this man at all. That is no evidence that it did not take place, and testimony of that kind is only of value as it is shown that the person giving it would have seen — was so situated that they would have seen —any occurrence of that kind if it had been likely to have taken place, and whether these occurrences — of course, such an occasion like that would take place very rapidly — a diversion for a moment might take away the opportunity of seeing this stone thrown, or whether if any person should testify that they were with the respondent continually from the time that the thing began until he was arrested and knew that he threw no stone or something of that kind, it would be testimony that could be considered as strong testimony. * * * Of course, if a person does this or throws the stone or strikes the blow or strikes at the person, he must have the intent that this statute implies. * * * I treat jurymen as intelligent men, and I believe, when I instruct them it is their duty to find simply from the evidence whether the party is guilty or not guilty, that they will follow those instructions, and leave it to the court to do his duty and part of the matter, after the jury has passed upon the guilt or innocence. Under the sentences as courts now have to render them, while the laws are all just the same as they used to be in regard to penalties, the penalty for larceny is five years, not exceeding five years, and for manslaughter not exceeding 15 years, and for burglary 5 years, or something like that; yet a judge now cannot sentence any person to the full limit of the law. Under what is called the indeterminate sentence, they pronounce the sentence that they shall not serve more than the 15 years or five years or the 10 years, whatever the limit is, nor less than some minimum sum which the court always must fix, and that minimum is six months to half the time. The judge cannot make the minimum more than half the extreme sentence. If the extreme penalty is 10 years, he cannot make it more than 5, and at the end of that time the party is liable to parole, to get out, but the judge is not obliged to even pass a State’s prison offense upon any person that is convicted here, except for murder and for some offenses of that kind. Most cases can either impose a fine or put them on probation or take such course as seems best under all the circumstances, and I assure you that I try to give to my part of the duty a careful consideration and try to do what is right under all the circumstances.”
    (12) The claim that the verdict was contrary to the law and evidence of the case.
    It appears there was a riot, or something resembling one, during a strike of workmen in Grand Rapids, and, according to the theory of the prosecution, respondent assaulted an officer, one of several hurriedly sent to the scene, using a stone for a weapon. Respondent claimed that he was an inoffensive and unoffending looker-on, who was himself assaulted by the officer. The argument addressed to the alleged erroneous instructions given to the jury is, in substance and effect, that the court belittled the respondent and the defense he was undertaking to make, gave expression to an opinion on the part of the presiding judge that the respondent was guilty and that the statements with respect to the sentence which might be imposed if respondent was convicted were calculated to induce — did solicit — the jury to convict respondent. The court premised what was said about sentences by the statement:
    “Something has been said about the punishment for these offenses. Of course, as I instructed some of you yesterday, or told some of you, the question of punishment, what the person may get, or whether it is a jail offense or a State’s prison offense, is something that the jury should not concern themselves about or discuss or pay any attention to whatever. In fact, some judges absolutely refuse to give juries the punishment for any crime. I have never particularly declined to do that. I treat jurymen as intelligent men,” etc.
   Ostrander, J.

(after stating the facts). We have read the record and are impressed that respondent had a fair trial. We do not commend the prosecuting attorney for the statements used by him indicated in the first, second, and third paragraphs of the foregoing statement of facts. But we are not satisfied that any prejudice to respondent resulted.

As to the other exceptions to the argument of the prosecuting attorney, they are based upon no rulings requested, or made, and need not be considered.

In so far as the prosecuting attorney talked to the jury about the possible sentence if there was a conviction, what he said appears to have been in reply to the argument of respondent’s counsel.

The court seems to have been of opinion that the discussion of the matter by counsel warranted, if it did not require, some statement from the court. We find in the statement which was made no evidence of solicitation or invitation to the jury, but an accurate statement of the law and of the duty of the court; the whole statement being in support of the general proposition that the jury should not be concerned with the matter of punishment at all. The charge, read as a whole, is a correct and a fair statement of applicable law. »

The conviction is affirmed.

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


author: Kuhn, J.

text:
    SMITH v. KISTLER.
    1. Justices op the Peace — Judgment —Docket Entries —Adjournments — Continuance.
    Under 1 Comp. Laws, § 957 (5 How. Stat. [2d Ed.] § 12403), the omission of a justice of the peace to state in his docket on whose motion an adjournment was ordered does not avoid the judgment: the provision of the statute so directing is not mandatory.
    2. Same — Time—Stipulation.
    But an adjournment to a date more than three months from the return day, without the written stipulation required by 1 Comp. Laws, § 791 (5 How. Stat. [2d Ed.] § 12244), was unauthorized and rendered the judgment void, although both parties consented to the continuance of the case.
    Error to Saginaw; Gage, J.
    Submitted January 27, 1913.
    (Docket No. 53.)
    Decided March 20, 1913.
    Replevin by Levi O. Smith and another, copartners as L. O. Smith & Company, against Henry Kistler, for a quantity of coal taken under an execution by defendant acting as constable. Judgment for defendant. Plaintiffs bring error.
    Reversed.

      Gallup, JRogner & Gallup, for appellants.

      Weadock & Weadock, for appellee.
   Kuhn, J.

The plaintiffs are copartners in the coal busi-' ness, doing business under the firm name of L. C. Smith & Co. They owned a certain quantity of coal, some of which was levied upon by the defendant, a constable, under and by virtue of a certain execution issued out of the justice’s court for the city of Saginaw. Replevin was brought by plaintiffs, and on the trial the execution was offered in evidence by the defendant and admitted, over objections that it was incompetent, irrelevant, and immaterial, for the reason that the judgment upon which the execution was issued is invalid and void. Defendant waived a return of the property, and the court directed a verdict for defendant for the sum of $104 and costs. Judgment being entered, the case is brought here by writ of error.

The docket of the justice of the peace before whom the case was tried, which resulted in the execution in question being issued, shows that a summons was issued February 19, 1910, returnable March 1, 1910; and that on the return day the parties appeared in court by attorneys, and the case was adjourned, by various adjournments which are not questioned, until February 14, 1911, when, the parties being in court, oral pleadings were had. They proceeded to trial, and witnesses were produced and sworn for the plaintiff and also for the defendants. The case was then adjourned, by agreement of the parties, to February 17, 1911, and again to February 21, 1911, and on that day, by stipulation in writing, to May 19, 1911. The following entry appears on the docket with reference to the proceedings had on that day:

“ Cause called May 19th, 1911, at nine o’clock a. m., at my office in Saginaw, and adjourned to July 1, 1911, at nine o’clock a. m., at my office in Saginaw.”

On July 1st judgment was rendered in plaintiff’s favor in the sum of $100, and costs were taxed at the sum of $4.

Counsel for plaintiffs, in the case before us, contend that the judgment is void for two reasons:

First. Because the docket does not show on whose motion adjournment of the case from May 19, 1911, to July 1, 1911, was had.

Second. Because, more than three months from the return day having elapsed, the justice of the peace lost jurisdiction by the adjournment of May 19, 1911; there being no written consent.

Section 957, 1 Comp. Laws (5 How. Stat. [2d Ed.] § 12403), provides that:

“ Every justice of the peace shall keep a docket, in which he shall enter: 1. The title of all causes commenced before him; * * * 5. Every adjournment, stating on whose motion, and to what time and place; * * * 12. The time of issuing execution, and the name of the officer to whom delivered.”

Was it fatal to the judgment because it does not appear on whose motion the adjournment was had ? This court has held that it was fatal if the docket does not show to what place the adjournment is had; but it is essential to examine the reasons for this holding when given. In the case of Mitts v. Harvey, 125 Mich. 354, 356 (84 N. W. 288, 289), the court said:

“A justice of the peace may hold court at any place in his township. It is essential to his jurisdiction that a writ issued by him should show the place where it is returnable. It is just as important that his docket should show the place to which a cause commenced before him is adjourned, so that the parties may not be misled by a failure of recollection or a difference of recollection, or other reason, and thereby be deprived of an opportunity to be heard in court.”

It certainly cannot be said that the fact that it does not appear on whose motion the adjournment was had is as material as the provision requiring notice of the place of adjournment. The failure of this to appear could not deprive any person of an opportunity to be heard, and no harm can result. In the instant case the parties had their day in court, testimony was heard on both sides, and arguments made. This provision should be construed to be directory rather than mandatory. This court, in the case of Grand Rapids Chair Co. v. Runnels, 11 Mich. 104 (43 N. W. 1006), held that a failure to comply with the twelfth provision, requiring the time of issuing execution and the name of the officer to whom delivered to appear on the docket, did not vitiate an execution properly issued. In Merrick v. Mayhue, 40 Mich. 196, it was held not to be fatal to the validity of the judgment because error was made in entering the title of the cause upon the docket.

Section 3140 of the Code of Civil Procedure of the State of New York provides that:

“ A justice of the peace must keep a docket-book, in which he must enter * * * 5. Each adjournment; stating upon whose application, and to what time and place it was made. * * * ”

In the case of Humphrey v. Persons, 23 Barb. (N. Y.) 313, 318, the court said:

“Again, the statute prescribing what entries justices of the peace shall make in their dockets is directory; and a literal compliance therewith is not necessary, when the entries show the justice had jurisdiction of the parties and the subject-matter of the action, and also show the kind and amount of the judgment given, and that it was rendered at a proper time.”

See, also, Carshore v. Huyck, 6 Barb. (N. Y.) 583; Baker v. Brintnall, 52 Barb. (N. Y.) 188; Ostrander v. Walter, 2 Hill (N. Y.), 329.

Section 791, 1 Comp. Laws (5 How. Stat. [2d Ed.] § 12244), provides:

“If either party to the suit shall make it appear to the satisfaction of the justice, by his own oath, or the oath of any other person, that he cannot safely proceed to trial for the want of some material testimony or witness, the justice shall postpone the trial for such reasonable time, and so often as he shall deem it proper, not exceeding in all three months, unless by consent of the parties to such suit, a longer time shall be stipulated therefor in writing, to be signed by the parties or their attorneys and filed with the justice: Provided, that a party claiming an adjournment after a former adjournment has been had shall further make it appear to the satisfaction of the justice that he has used reasonable diligence to procure such testimony or witness since the last preceding adjournment.”

While the docket shows that the adjournment to May 19, 1911, was by stipulation, no written stipulation was entered into on that day adjourning the case to July 1, 1911. The justice had no authority to adjourn the case on his own motion; and more than three months having elapsed since the return day of the summons, from which time the three months began to run (see Hatch v. Christmas, 68 Mich. 84 [35 N. W. 833]), the justice lost jurisdiction of the cause. The language of this statute is explicit and plain. While, under our decisions ( Gilmore v. Lichtenberg, 129 Mich. 275 [88 N. W. 629]), a voluntary-appearance on July 1st would have given the justice jurisdiction to render the judgment, it not appearing that defendants did appear, the judgment entered on that day is void. The court erred in admitting the execution in evidence.

Judgment of the lower court is reversed, and no new trial granted.

Steere, C. J., and Moore, Mo Alva y, Brooke, Stone, Ostrander, and Bird, JJ., concurred.


author: Stone, J.

text:
    DAUGHERTY v. THOMAS.
    1. Automobiles — Motor Vehicle Law — Owner — Words and Phrases — Negligence.
    The phrase “owner of a motor vehicle ” as employed in subd. 8, § 10, Act No. 818, Pub. Acts 1909 (3 How. Stat. [3d Ed.] § 3496, subd. 3), creating a liability in favor of persons injured by negligent operation of the machine, refers to the proprietor rather than the person in charge or control thereof, and creates a liability broader than the common law affords.
    2. Same — Laroeny of Automobile — Liability.
    In providing that the owner should not be held liable in case the vehicle shall have been stolen, the legislature did not exclude from the operation of the statute an owner whose car had been taken without intent to steal it, as defined by Act No. 83, Pub. Acts 1909, and it was the intent of the legislature that the owner should remain liable if his car was taken without his authority and without any intent to steal it.

      3. Constitutional Law — Dub Process —Motor Vehicle Law.
    It was beyond the constitutional authority of the legislature to
    render the owner of an automobile liable for negligent operation of the car by any person who obtains possession of it without his consent and without fault on his part, such as mere trespassers; and subd. 3, § 10, Act No. 318, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 2496, subd. 3), is accordingly unconstitutional and invalid, as depriving such owner of his property without due process of law.
    4. Same.
    The term property is used in a broad sense in the constitutional . guaranty forbidding the deprivation of property without due process of law, and has received a liberal construction analagous in spirit to that applied to ‘ ‘ life and liberty. ” All rights to the use, title, and possession of property are held subject to the right of the legislature to control them according to the established principles of our jurisprudence so far as may be necessary for the public welfare; the only limitations upon the legislative power being found in specific and applicable constitutional restrictions.
    Case-made from the superior court of Grand Rapids; Stuart, J.
    Submitted January 28, 1913.
    (Docket No. 45.)
    Decided March 20, 1913.
    Case by Nina L. Daugherty against William S. Thomas, Claude H. Gress, Albert G. Williams, James E. Austin, and Walter S. Austin, for personal injuries. Judgment for plaintiff. Defendant Thomas brings error.
    Reversed. New trial denied.

      Colin P. Campbell, for appellant Thomas.

      Smedley, Linsey & Lillie, for appellee.
   Stone, J.

This is an action on the case to recover damages against the appellant and other defendants for injuries sustained by the plaintiff, who was struck and injured, on one of the streets of Grand Rapids, by an automobile, the property of the defendant William S. Thomas, It appears undisputed that prior to the 4th day of August, 1910, the defendant William S. Thomas was the owner of an automobile; and tbe defendants James E. Austin and Walter S. Austin were the proprietors and owners of an automobile factory. The automobile in question had been, by the defendant William S. Thomas, left in the shop of the Austins for repairs. The defendants Claude H. Gress and Albert G. Williams worked in this shop for the defendants Austin.

It appears that on the 4th day of August, 1910, defendant Gress took the machine out of the shop in order to test it and see whether or not it had been properly and sufficiently repaired. Defendant Williams accompanied defendant Gress. After they had gone several blocks, defendant Williams took the steering gear and the two defendants proceeded south on Lafayette street. On the "south side of State street was a crossing or crosswalk across Lafayette street, on which crosswalk was the plaintiff. The machine, in passing across State street, got from under the control of defendants Gress and Williams. Both scrambled to get hold of the steering gear, forgot to release the transmission so as to stop the car, and so struck and injured the plaintiff.

There was no question in the case that defendants Gress and Williams were not employés of defendant Thomas, and there was no claim that said defendants Gress and Williams were employés of defendant Thomas. There was no question that the machine had been left in Austins’ factory for repairs, and that the taking of it out for testing was entirely without defendant Thomas’ knowledge or direction or consent, and that defendant ■ Thomas was made a party to this suit solely because of section 10, subd. 3, Act No. 318, of the Public Acts of 1909. Verdict and judgment were for plaintiff against all of the defendants. Defendant Thomas has appealed.

The only question raised in the case is as to defendant Thomas’ liability under that statute; and this question is raised by exceptions to the refusal of the court to direct a verdict in favor of defendant Thomas, and in the court’s refusal to charge the jury that defendant Thomas was not liable, upon which exceptions error is duly assigned. The points discussed by counsel were: (1) As to the construction of said subdivision 3; and (2) if said subdivision is so construed as to include defendant Thomas, then as to its validity under the Constitution of Michigan, art. 2, § 16, and the fourteenth amendment to the Federal Constitution. These provisions, although familiar, are inserted here. The portion of section 16, art. 2, of the Michigan Constitution here invoked, reads as follows:

“No person shall * * * be deprived of life, liberty or property, without due process of law.”

That portion of the fourteenth amendment to the Federal Constitution here invoked reads as follows:

“Nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

Subdivision 3 of section 10, Act No. 318 of the Public Acts of 1909, is as follows:

“ Liability of Owners. — The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation by any person of such motor vehicle, whether such negligence consists in violations of the provision of a statute of this State or in the failure to observe such ordinary care in such operation as the rules of the common law require; but such owner shall not be so liable in case such motor vehicle shall have been stolen.”

1. It is the claim of the appellant Thomas that the act in question does not intend by the term “owner” the proprietor of the vehicle only, but intends by the term ‘ ‘ owner ” the person who is mediately or immediately in charge thereof. In passing upon this question, it is necessary for us to examine the other parts of this act. Section 1 defines the term “owner” as follows:

“ The term ' owner ’ shall also include any person, firm, association or corporation renting a motor vehicle or having the exclusive use thereof, under a lease or otherwise, for a period greater than thirty days.”

Subdivision 1, § 2, of the act provides that every owner of a motor vehicle which shall be operated or driven upon the public highways of this State shall cause to be filed in the office of the secretary of State a brief description of the motor vehicle to be registered, etc., and the name, residence, and business ¿ddress of the owner of such motor vehicle, and the name of the county in which he resides. Subdivision 3, § 2, provides for the issue of a number plate to the owner, and that, in the event of the loss of the number plate, the owner of the registered motor vehicle may obtain a duplicate. Section 5 provides that the act shall not apply to a motor vehicle owned by a nonresident of the State, provided the owner thereof shall have complied with the provisions of the law of the State of his residence, etc.

We cannot agree with appellant that the legislature meant by the word “owner” to include a person who might be merely either mediately or immediately in possession of the vehicle. It was not the intent of the legislature that any other than the real owner of the automobile should have the same registered as required by law, excepting any person, firm, etc., renting a motor vehicle, or having exclusive use thereof under a lease or otherwise for a period greater than 30 days.

Before the passage of this act, a person who caused an injury to another by negligent operation of an automobile upon a public highway became liable to the person so injured. If the word “owner"only means the person mediately or immediately in control of the automobile, then no new rule of law was created by this statute, and the Common-law rule would not be changed, and the injured person would under the act have no greater remedy than before. We hardly need quote authorities to the effect that the owner of property is one who has dominion over it, and who has the right to enjoy and do with it as he pleases, unless he be prevented by some contract or law which restrains his right. We are of the opinion that the term owner,” as used in the statute, means, as applied in this case, the defendant William 3. Thomas.

2. This brings us to the consideration of the important question in this case, whether subdivision 3 of section 10 of the act under consideration is void as being a deprivation of property without due process of law, and of the equal protection of the laws within the fourteenth amendment to the Federal Constitution, and the provisions of article 2, § 16, of the Constitution of this State. We are met at the threshold of this question with the claim of the plaintiff that the validity of this portion of the act in question has been sustained by this court in the case of Johnson v. Sergeant, 168 Mich. 444 (134 N. W. 468). That case was before this court upon demurrer to the declaration. In that suit there were two defendants Louis Sergeant; the owner, and George Sergeant, the person in charge of and driving and operating the motor vehicle. The declaration contained the allegation that the said George Sergeant had not stolen said motor vehicle, nor had any other person stolen it. It is true that each of the four counts of the declaration in that case asserted the liability of the defendant Louis Sergeant under the provisions of the statute above quoted. It is, however, alleged in the fourth count of the declaration that the owner, Louis Sergeant,—

“ Did on the day aforesaid permit, allow, and place into the hands of said George Sergeant, and allowed said George Sergeant to run and operate, said motor vehicle along the public streets,” etc.

From aught that appeared in the declaration in that case, the machine was being operated at least by the permission, if not under the direction, of the owner. The precise question presented in this case was not there before the court, for it is developed and appears in the instant case, and is not disputed, that the machine was being used by the servants of defendants Austin, and without the permission, knowledge, or consent of the defendant Thomas.

In Johnson v. Sergeant, supra, the main discussion is confined to the question whether the title of the act is sufficiently broad to cover the provision in question; and it was held that, as the word “regulate” was used in the title, it was broad enough to embrace this provision. It is true this court did use the following language:

“ The legislature has gone a long way in this statute in fixing the liability of the owner, even though he may not be in fault. We do not think, however, it can be said to have exceeded its authority under the police power.”

Before the act of 1909 went into effect this court had passed upon the duty of the owners or drivers of automobiles in a number of cases.

In Hartley v. Miller, 165 Mich. 115 (130 N. W. 336, 33 L. R. A. [N. S.] 81), the general proposition as to the responsibility at common law for a tort was stated in the language of Andrews, J., in King v. Railroad Co., 66 N. Y. 184 (23 Am. Rep. 37), as follows:

“Where one person has sustained an injury from the negligence of another, he must, in general, proceed against him by whose negligence the injury was occasioned. If, however, the negligence which caused the injury was that of a servant while engaged in his master’s business, the person sustaining the injury may disregard the immediate author of the mischief and hold the master responsible for the damages sustained.”

Referring to Wyllie v. Palmer, 137 N. Y. 248 (33 N. E. 381, 19 L. R. A. 285), we said that the doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged for the result of some neglect or wrong at the time, and in respect to the very transaction out of which the injury arose.

It is important to note that the last clause of subdivision 3 of section 10, above quoted, is as follows:

“But such owner shall not be so liable in case such motor vehicle shall have been stolen.”

There is no claim in this case that the automobile in question had been stolen by the defendants having it in charge. The word “ stolen ” can have but one meaning when used in connection with personal property, as in this case. To steal is to commit larceny. The word “steal ” has a uniform signification when used in connection with personal property, and in common, as well as in legal, parlance means, the felonious taking and carrying away of the personal goods of another. See the numerous cases cited in volume 7 of Words and Phrases, at, page 6652 et seq.

It is significant that, at the same session of the legislature in which the act in question was passed, there was also enacted Act No. 33, entitled:

“An act to prohibit the unauthorized taking or using of automobiles or other motor vehicles by drivers or caretakers thereof, or by any other person or persons, without intent to steal the same, and to provide a penalty therefor.”

The act provides as follows:

“Every person who takes or uses without authority an automobile or other motor vehicle without intent to steal the same, or who shall be a party to such unauthorized taking or using, shall, upon conviction thereof, be punished by imprisonment in the State prison for not more than two years, or by a fine of not more than five hundred dollars. * * * Provided further, that the provisions of this act shall be construed to apply to any person or persons employed by the owner of said automobile or other motor vehicle or anyone else, who, by the nature of his employment, shall have the charge of, or the authority to drive said automobile or other motor vehicle if said automobile or other motor vehicle is driven or used without the owner’s knowledge or consent.”

It cannot be held that the word “stolen,” as used in Act No. 318, means to include machines taken in violation of Act No. 33, which makes it a felony to take or use them without authority, “without intent to steal the same.” Certainly the word “stolen” cannot be construed to mean “without intent to steal.”

We have presented in this case the anomalous condition of the claimed liability of the owner of an automobile, where the same has been taken without intent to steal it, but without the knowledge or consent of the owner, and therefore without any fault or negligence on his part, while the act of the person who took and used the same is made a felony. We have not here the question of the responsibility, be it moral or otherwise, of the owner of an automobile who has placed it in the hands of an irresponsible person to use.

Our attention has been called by appellant to the case of Camp v. Rogers, 44 Conn. 291. In that case the defendant Rogers was the owner and keeper of a livery stable, and he let a horse and carriage to one Dart for a few hours for pleasure driving, for the use of which Dart was to pay a reasonable compensation. Dart was not in the employ or the agent of Rogers, but hired the horse and carriage in the usual way. While Dart was driving he met the plaintiff’s son, who was driving a horse and wagon of the plaintiff and going in an opposite direction. By the carelessness of Dart, who was driving upon the wrong side of the street, one of the shafts of the carriage in which Dart was riding was driven into the breast of the horse driven by the plaintiff’s son, in consequence of which the horse died and suit was brought under a statute which provided that:

“ Every driver of any vehicle who shall, by neglecting to conform to the preceding section (requiring him to turn to the right on meeting any other vehicle upon the public highway), drive against another vehicle and injure its owner or any other person in it, or the property of any person, * * * shall pay to the party injured treble damages and costs; and shall, if the injury be done designedly, forfeit to the State not more than one hundred dollars. And the owner of such vehicle shall, if the driver is unable to do so, pay the damages provided in this and the preceding section, to be recovered by writ of scire facias.”

The suit was brought against Rogers under the provisions of the above statute, and the plaintiff claimed the act to be valid and constitutional. In that case Justice Loomis, speaking for the court, said:

“If the construction which the plaintiff contends should be given to the statute upon which her right to recover must depend, then there can be no case in which the owner of a vehicle would not be liable, not only for the actual damage caused by a violation of the statute on the part of any person driving it, but for the threefold and punitive damages given by the statute against the driver. If the owner of a vehicle should leave it, with his horse attached to it, at a post by the side of the street, and in his absence a thief or trespasser should take it, and by reckless driving damage a horse or carriage that he happened to meet, the owner would be liable. So if one lends his vehicle to a friend, and he again lends it to a stranger, the owner would be liable, not only for any damage done by the stranger in driving it, but even by the servant of the stranger. Indeed, we should have this strange anomaly that, if my neighbor borrows my carriage and is riding in it with his servant, and the latter wilfully neglects to turn to the right and injures a team that he meets, while my neighbor would not be liable as master, because the act of his servant was wilful, I should yet be liable as owner, and that, too, with no right to indemnity from the master. Such a result is in itself so absurd as to show either that the statute ought not to be so construed as to produce it, or that, if this be a correct construction, it is so far void, either as manifestly against natural justice, or as violating that article of the Constitution which forbids the taking away of any person’s property ‘without due process of law.’ If such a law, so construed, were to beheld valid, then a law that should by a merely arbitrary rule make one man liable for the debts of another would be valid. Indeed, there is no limit that could be put to the most arbitrary acts of the legislature in making one man liable for the acts of another.
“ As to the meaning of the expression ‘ due process of law,’as used in many of the constitutions of the States of the Union, Cooley, in his Constitutional Limitations, p. 355, says: ‘ We have met in no judicial decision a statement that embodies more tersely and accurately the correct view of tb.9 principle we are considering than the following from an opinion of Mr. Justice Johnson of the Supreme Court of the United States: “The good sense of mankind has at length settled down to this: That these words were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.”’ Again he says (page 358), speaking of the cases where courts of equity order the property of one man to become vested in another: ‘ In these cases the courts proceed in accordance with “the law of the land,” and the right of the one man is divested by way of enforcing a higher and better right in another.’ Again he says (page 175): ‘ The bills of rights in the American Constitutions forbid that parties shall be deprived of property, except by the law of the land; but if the prohibition had been omitted, a legislative enactment to pass one man’s property over to another would nevertheless be void.’ In People v. Morris, 13 Wend. [N. Y.] 338, it is said that, ‘Vested rights of the citizen are sacred and inviolable against the plenitude of power in the legislative department.’ In Ham v. McClaws, 1 Bay (S. C.), 93, it is laid down that, ‘ Statutes passed against the plain and obvious principles of common right and common reason are null and void, so far as calculated to operate against those principles;’ and in Morrison v. Barksdale, Harp. [S. C.] 101, that, ‘If absurd consequences, or those manifestly against common reason, arise collaterally out of a statute, it is void pro tanto. And see Welch v. Wadsworth, 30 Conn. 150 [79 Am. Dec. 339].”

In that case, however, the court was able to say that by the term “owner” the legislature intended, not the literal or technical owner, but th9 person in possession or control, mediately or immediately, of the vehicle, a conclusion which we are not able to reach in the instant case.

Counsel for appellant has also cited the much criticised case of Ives v. Railway Co., 201 N. Y. 271 (94 N. E. 431, 34 L. R. A. [N. S.] 163, Ann. Cas. 1912B, 156), and quotes the language of Mr. Justice Werner, beginning with the words:

“ When our Constitutions were adopted, it was the law of the land that no man who was without fault or negligence could be held liable in damages for injuries sustained by another.”

In that case the constitutional limitations upon the police power are discussed at great length. The instant case is a much stronger case for the defendant than was the Ives Case, for in the instant case the relation of master and servant-, or employer and employé, is not involved, but the bald proposition is presented that the owner of property can be made liable for the negligence of one not a servant, or occupying a similar relation.

In 28 Cyc. p. 37, it is said:

“ Liability for injury by a motor vehicle must be predicated upon some negligent act or omission on the part of the person to be held, or his agent or servant.”

In 8 Cyc., at page 1099, in the discussion of constitutional law, it is said:

“But the owner of property, the ordinary use of which is beneficial to the public, cannot be made liable for the negligence of one not a servant, or occupying a similar relation ” — citing Camp v. Rogers, supra.

At page 1094, discussing the question of deprivation of property, it is said:

“The term ‘property’ is used in a broad sense in the constitutional guaranty forbidding the deprivation of property without due process of law, and has received a liberal construction analogous in spirit to that applied to ‘life’ and ‘liberty.’ All rights to the use, title, and possession of private property are held subject to the right of the legislature to control them, according to the established principles of our jurisprudence, so far as may be necessary for the public welfare; the only limitations upon the legislative power being found in specific and applicable constitutional restrictions” — citing numerous State and Federal cases.

In Ohio, etc., R. Co. v. Lackey, 78 Ill. 55 (20 Am. Rep. 259), it was held that the act of Illinois making railroad companies liable for all expenses of the coroner and his inquest, and the burial of persons who might be killed by collision, or other accident occurring on such cars, or otherwise, was unconstitutional and void, so far as it attempted to make such companies liable in cases where they had violated no law, or had been guilty of no negligence on their part. The court said:

“ An examination of the section will show that no default, or negligence of any kind, need be established against the railroad company; but they are mulcted in heavy charges if, notwithstanding all their care and caution, a death should occur on one of their cars, no matter how caused, even if by the party’s own hand. Running of trains by these corporations is lawful and of great public benefit. It is not claimed that the liability attaches for any violation of law, the omission of any duty, or the want of proper care and skill in running their trains. The penalty is not aimed at anything of this kind. We say penalty, for it is in the nature of a penalty, and there is a constitutional inhibition against imposing penalties where no law has been violated or duty neglected. Neither is pretended in this case; nor are they in the contemplation of the statute. • A passenger on the train dies from sickness. He is a man of wealth. Why should his burial expenses be charged to the railroad? There is neither reason nor justice in it.”

In Burrows v. Transportation Co., 106 Mich. 588, at page 603 (64 N. W. 508, 89 L. R. A. 468), this court said:

“ The courts cannot, however, declare a statute unconstitutional and void solely on the ground of unjust and oppressive provisions, or because it is supposed to violate the natural, social, or political rights of the citizen, unless it can be shown that such injustice is prohibited or such rights guaranteed or protected by the Constitution. Cooley, Const. Lim. (6th Ed.) p. 197. The learned author says further, at page 800: * The rule of law upon this subject appears to be that, except where the Constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the State, except as those rights are secured by some constitutional provision which comes within the judicial cognizance.’ ”

In Volume 1 of Tiedemanon State and Federal Control of Persons and Property, beginning at page 8, and concluding with page 19, that author discusses the legal limitations upon police power. It is there stated that, whenever an act of the legislature contravenes a constitutional provision, it is void, and it is the duty of the courts so to declare it and refuse to enforce it. The author then discusses the question of the power of the judiciary to declare an act of the legislature void because it violates some abstract rule of justice when there is no constitutional prohibition. With that question we are not concerned farther than to remark that the author holds that in such a case the regulation to be sustained must fall within the enforcement of the legal maxim, “Use your own property in such a manner as not to injure that of another.” The author says:

“Powers which can only be justified on this specific ground (that they are police regulations), and which would otherwise be clearly prohibited by the Constitution, can be such only as are so clearly necessary to the safety, comfort, and well-being of society, or so imperatively required by the public necessity, as to lead to the rational and satisfactory conclusion that the framers of the Constitution could not, as men of ordinary prudence and foresight, have intended to prohibit their exercise in the particular case, notwithstanding the language of the prohibition would otherwise include it ” — citing Christiancy, J., in People v. Plank Road Co., 9 Mich. 285. “ And in all such cases it is the duty of the courts to determine whether the regulation is a reasonable exercise of a power which is generally prohibited by the Constitution. ‘ It is the province of the lawmaking power to determine when the exigency exists for calling into exercise the police power of the State; but what are the subjects of its exercise is clearly a judicial question.’” Lake View v. Cemetery, 70 Ill. 192 (22 Am. Rep. 71).

“ Chief Justice Marshall said in Marbury v. Madison, 1 Cranch (U. S.), 137: ‘ The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed they are under a solemn duty — to look at the substance of things whenever they enter upon the inquiry whether the legislature had transcended the Hm« its of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relations to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the court to so adjudge, and thereby give effect to the Constitution.’ The principal constitutional limitations, which are designed to protect private rights, against the arbitrary exercise of governmental power, and which therefore operate to limit and restrain the exercise of police power, are the following: * * * (8) No person shall be * * * deprived of life, liberty, or property, without due process of law. * * * (12) Nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

For an able discussion of the limitations of the police power, in which quotations are made from Cooley’s Constitutional Limitations, and other text-writers, and many decisions, see State v. Kreutzberg, 114 Wis. 530 (90 N. W. 1098, 58 L. R. A. 748, 91 Am. St. Rep. 934; State v. Froehlich, 115 Wis. 32 (91 N. W. 115, 58 L. R. A. 757, 95 Am. St. Rep. 894). In the case last cited the court says:

“ Concede the State government has the police power, and that such works fall within it; nevertheless the State is prohibited from exercising that power by means of works of internal improvements. The police power has been wittily defined as the power to pass unconstitutional laws, and some utterances of courts have seemed to justify such conception. It is nevertheless erroneous. An act which the Constitution clearly prohibits is beyond the power of the legislature, however proper it might be as a police regulation but for such prohibition ” — citing cases.

See, also, State v. Redmon, 134 Wis. 89 (114 N. W. 137, 14 L. R. A. [N. S.] 229, 120 Am. St. Rep. 1003, 15 Am. & Eng. Ann. Cas. 408). In the last cited case Justice Marshall, speaking for the court, said:

“Again this court said, by way of approval of expressions of standard authors and opinions in leading cases, the police power includes ‘ all laws for the protection of life, limb, and health, for the quiet of the person, and for the security of property.’ ‘All persons and property are subjected to all necessary restraints and burdens to secure the general comfort, health, and prosperity of the State.’ ‘ It is co-extensive with self-protection and is not inaptly termed the ‘‘law of necessity.” It is that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort and welfare of society.’ State v. Burdge, 95 Wis. 390, 398 (70 N. W. 347, 349, 37 L. R. A. 157, 60 Am. St. Rep. 123). These and many other similar phrasings, meaning the same thing, are far from being entirely satisfactory. They are misleading to one who reads them without having in mind the idea that all legislative regulations of human affairs interfering with personal liberty or other private rights, to be legitimate, tested by constitutional limitations, must be reasonably for the public benefit.
“ It were better to always say that the police power extends to and permits legislation regulating reasonably matters appertaining to the public welfare, since anything beyond that must necessarily fall at the threshold of some constitutional defense. It is a great power, having more to do with the well-being of society than any other, ,yet one which, if exercised autocratically, would supersede some of the most cherished principles of constitutional freedom. It may be extended disastrously or restrained and administered beneficially, according as the judiciary shall perform its constitutional functions. Confined within its legitimate field of reasonable regulation, it is essential, as we have heretofore indicated, to the full accomplishment of the purposes of civil government.”

The learned judge then proceeds to discuss the question under consideration: First, as to whether it was a police regulation; and, second, if it be such a regulation, whether it was outside the field of reasonable interference with private rights. After quoting the language of Chief Justice Marshall in Marbury v. Madison, supra, he then quotes the language of the court in Re Jacobs, 98 N. Y. 98 (50 Am. Rep. 636), as follows:

‘‘It matters not that the legislature may in the title to the act, or in its body, declare that it is intended for the improvement of the public health. Such a declaration does not conclude the courts, and they must yet determine the fact declared and enforce the supreme law.”

We refrain for want of space from further quotation from this able opinion. In this connection, it is well for us to refer to our own decisions.

In People v. Smith, 108 Mich. 527 (66 N. W. 382, 32 L. R. A. 853, 62 Am. St. Rep. 715), referring to certain regulations for the protection of employés, it was said that, if it was a necessary regulation, the law should be sustained ; but if an unjust law, it should be annulled. And on page 534 of 108 Mich. (66 N. W. 384, 32 L. R. A. 853, 62 Am. St. Rep. 715), the late Justice Hooker used the following language:

“ If the courts find the plain provisions of the Constitution violated, or if it can be said that the act is not within the rule of necessity, in view of the facts of which judicial notice may be taken, then the act must fall; otherwise it should stand.”

It may be laid down as a general proposition that absolute liability, without fault on his part, cannot ordinarily be imposed upon a citizen. It has been held in numerous cases that a statute making a railroad company liable for stock killed, whether the company was negligent or not, and fixing the damages according to a schedule, was to deprive the company of property without due process of law. A similar statute in Alabama was declared not a sustainable exercise of the police power. Zeigler v. Railroad Co., 58 Ala. 594; Birmingham Mineral R. Co. v. Parsons, 100 Ala. 662 (13 South. 602, 27 L. R. A. 263, 46 Am. St. Rep. 92); Wadsworth v. Railway Co., 18 Colo. 600 (33 Pac. 515, 23 L. R. A. 812, 36 Am. St. Rep. 309); Sehenck v. Railway Co., 5 Wyo. 430 (40 Pac. 840); Jensen v. Railway Co., 6 Utah, 253 (21 Pac. 994, 4 L. R. A. 724); Denver, etc., R. Co. v. Outcalt, 2 Colo. App. 395 (31 Pac. 177); Oregon R. Co. v. Smalley, 1 Wash. 206 (23 Pac. 1008, 22 Am. St. Rep. 143); Atchi son, etc., R. Co. v. Baty, 6 Neb. 37 (29 Am. Rep. 356); Williams v. Railroad Co., 2Mich. 259 (55 Am. Dec. 59).

In the case last cited this court held that the railroad company was not bound by its charter or principles of the common law to fence its road for the protection of other persons’ domestic animals. It is true that the general railroad act introduced a new rule and imposed the duty of erecting and maintaining fences, and made companies absolutely liable for injuries which might result from the neglect of duty. But that is another question. See, also, Parson v. Russell, 11 Mich. 113 (83 Am. Dec. 728).

In Lawton v. Steele, 152 U. S. 137 (14 Sup. Ct. 501), Justice Brown, after defining in general language the term “police power of the State,” said:

“ Tó justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual or unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of police powers is not final or conclusive, but is subject to the supervision of the courts. Thus an act requiring the master of a vessel arriving from a foreign port to report the name, birthplace, and occupation of every passenger, and the owner of such vessel to give a bond for every passenger so reported, conditioned to indemnify the State against any expense for the support of the persons named for four years thereafter, was held by this court to be indefensible as an exercise of the police power, and to be void as interfering with the right of Congress to regulate commerce with foreign nations. Henderson v. New York, 92 U. S. 259. * * * In Rockwell v. Nearing, 35 N. Y. 302, an act of the legislature of New York, which authorized the seizure and sale without judicial process of all animals found trespassing within private inclosures was held to be obnoxious to the constitutional provision that no person should be deprived of his property without due process of law. See, also, Austin v. Murray, 16 Pick. [Mass.] 121; Watertown v. Mayo, 109 Mass. 315 [12 Am. Rep. 694]; Slaughter-House Cases, 16 Wall. (U. S.) 36; In re Cheesebrough, 78 N. Y. 232; Brown v. Perkins, 12 Gray (Mass.), 89. In all these cases the acts were held to be invalid as involving an unnecessary invasion of the rights of property, and a practical inhibition of certain occupations harmless in themselves, and which might be carried on without detriment to the public interests.”

He then proceeds to show that the preservation of game and fish has always been treated as within the proper domain of the police power. See, also, Commonwealth v. Bearse, 132 Mass. 542 (42 Am. Rep. 450).

In the last cited case Justice Devens, after defining the police power and quoting the language of Chief Justice Shaw in Commonwealth v. Alger, 7 Cush. (Mass.) 53, 85, said:

“ The legislature is largely the judge of its own powers in reference to these matters. If it can be seen, indeed, that the rights of property are invaded under the pretence of a police regulation, it would be our duty to interfere to protect them.”

The instant suit is an action on the case sounding in tort. The wrongful injury constitutes the foundation of the plaintiff’s right of action; and yet the facts submitted for the purpose of sustaining it show not the least degree . of negligence on the part of defendant Thomas. The evidence shows neither a malfeasance, a misfeasance, nor a nonfeasance upon his part. The injury to plaintiff does not warrant the imposition of damages upon one who is not shown to have been blamable in the premises. It has been held, both by this and other courts, that there can be no question of the right of the legislature, in the exercise of the police power, to regulate the driving of automobiles and motor cycles on the public highways of the State; that such machines are capable of being driven, and are apt to be driven at such high rates of speed, and when not properly driven are so dangerous as to make some regulation necessary for the safety of other persons on the public ways. And the statutes requiring registration and the registered number to be displayed and the rate of speed have been held constitutional as a reasonable exercise of police power. People v. Dow, 155 Mich. 115 (118 N. W. 745); Commonwealth v. Boyd, 188 Mass. 79 (74 N. E. 255, 108 Am. St. Rep. 464); State v. Unwin, 75 N. J. Law, 500 (68 Atl. 110); People v. MacWilliams, 91 App. Div. (N. Y.) 176 (86 N. Y. Supp. 357).

To hold subdivision 3 of section 10 constitutional is to hold a party absolutely liable for the negligent conduct of another, a mere stranger or a wilful trespasser, no matter how careful or free from negligence he himself has been. We think that the result of such holding would be to take the property of defendant Thomas to pay for the wrongful and negligent act of another person not sustaining to him the relation of servant, agent, or employé. Such a doctrine seems unnatural and repugnant to the provisions of the Constitution here invoked. We are forced to the conclusion that the provisions of this subdivision are not a necessary regulation in the exercise of the police power; that in and by its terms the plain provisions of the Constitution are violated; and the subdivision must be held unconstitutional, and the statutory liability therein asserted, done away with.

And in so far as what we have held conflicts with Johnson v. Sergeant, the latter case must be overruled. Had this provision of the statute been followed by language indicating that the owner should not be liable in case the automobile or other motor vehicle was taken or used in violation of Act No. 33 of the Public Acts of 1909, the infirmity would have been cured. The remainder of the act seems unobjectionable. It is evident that the general legislative purpose contained in the act may be accomplished with this objectionable provision stricken out, leaving the act "complete in itself and capable of being executed wholly independent of that which is rejected.” Cooley’s Oonstitutional Limitations (7th Ed.), pp. 246, 247; People v. Eberle, 167 Mich. 477, 487 (133 N. W. 519).

It follows, as a necessary conclusion, that the judgment of the superior court as to the defendant William S. Thomas must be reversed, and no new trial granted.

Steers, C. J., and Moore, McAlvay, Brooke, Kuhn, Ostrander, and Bird, JJ., concurred.


text:
    FREDA v. TISHBEIN.
    1. Witnesses — Estates of Decedents —Evidencie— Matters Equally within Knowledge of Decedent.
    In a replevin case instituted by the administratrix of the estate of a decedent, for a stock of merchandise claimed to have belonged to the deoeased, the plaintiff was properly allowed to testify to matters equally within the knowledge of decedent, i. e., as to the fact of his possession and related matters, since it is only the witnesses of the opposite party whose testimony is excluded by 3 Comp. Laws, § 10212, as amended (5 How. Stat. [2d Ed.] § 12856).
    2. Evidence — Declarations—Res Gestíe.
    Declarations of a decedent, not contrary to his then interest, tending to prove that he was the owner of personal property involved in a replevin case, not made in the presence of defendants, were improperly admitted in evidence as against his son and widow who claimed the right of possession and proprietorship: the statements were not a part of the res gestae, so connected with decedent’s possession as to make them competent.
    Error to Wayne; Murphy, J.
    Submitted January 29, 1913.
    (Docket No. 131.)
    Decided March 20, 1913.

      Replevin by Pauline Freda, special administratrix of the estate of August Tishbein, deceased, against Sophie Tishbein and August Tishbein, Jr., for a stock of merchandise. Judgment for plaintiff. Defendants bring error.
    Reversed.

      Frank O. Moriarty and Lehman, Riggs & Lehman, for appellants.

      Felix A. Doetsch, for appellee.
   Stone, J.

This is an action of replevin brought by the plaintiff, as special administratrix of the estate of August Tishbein, Sr., deceased, against the widow and son of said deceased. August Tishbein, Sr., died intestate on or about the 3d day of October, 1910. No petition for administration was filed by his heirs, but after due time a petition was filed by the plaintiff as a creditor of said estate, and special administration was granted to her. It was claimed that the estate of said deceased consisted of a stock in trade at 357 Gratiot avenue, in the city of Detroit, and plaintiff, as special administratrix, brought an action of replevin to obtain possession of the stock from the widow and son, who were in possession when demand was made for the same. The record would indicate that the defendant August Tishbein, Jr., claimed to be the owner of the property when suit was commenced. The trial resulted in a verdict and judgment for the plaintiff, and the defendants have brought the case here for review.

The only errors upon which they rely relate to the action of the trial judge in admitting certain testimony of the plaintiff and her witnesses.

(1) It is the claim of the defendants that certain testimony of the plaintiff was incompetent under section 10212 3 Comp. Laws, as amended, relating to matters equally within the knowledge of the deceased.

(2) That the court erred in permitting the various witnesses of the plaintiff to testify as to statements made by decedent during his lifetime while in possession concerning the title to the'stock of goods in question.

There is no evidence that any such statements were made in the presence of the defendants, or either of them, and it is the claim of the defendants that such testimony was clearly hearsay, selfserving, and prejudicial.

1. Considering the matters in the order above stated, we will consider first whether the testimony of the plaintiff was within the terms of the statute prohibiting the opposite party, in a suit prosecuted or defended by personal representatives of the deceased person, from testifying to matters which, if true, must have been equally within the knowledge of the deceased. It should be borne in mind that the plaintiff represents the estate of the decedent. We do not think that this statute renders the personal representative incompetent to testify in behalf of the estate as to matters within the decedent’s knowledge. Unless objectionable upon other grounds than the one here urged, it was competent for the plaintiff to testify to matters equally within the knowledge of decedent. The present case is not one in which a claim is presented against an estate. This is simply a suit to determine who had the right to the possession of these goods a few weeks after the death of decedent, whether the administratrix or the defendants, and we think it was competent for the plaintiff to testify to any fact in connection with the possession of decedent. In other words, the estate is in no sense an opposite party, and the plaintiff represents the estate. Moore v. Machen, 124 Mich. 216 (82 N. W. 892). The above case holds that this statute does not render the personal representative incompetent to testify in behalf of the estate as to matters within the decedent’s knowledge.

2. The other question is one of more difficulty. Numerous witnesses, including the plaintiff, were permitted to testify to conversations with the decedent while he was in possession of the stock of goods, and not in the presence of either of the defendants, as to decedent’s ownership of the stock. It is the claim of the plaintiff, and seems to have been the holding of the trial court, that such evidence was admissible as part of the res gestae and as verbal acts characterizing and explaining the nature of the possession. Under this ruling of the court certain testimony was admitted tending to show that the decedent said that he owned the stock. On the other hand, it is the claim of the defendants that the testimony was hearsay, self-serving, and prejudicial, and thus inadmissible, and that the rule in this State is to the effect that declarations of the decedent cannot be shown if they are in favor of the party who made them, and adverse to the other party, and many cases are cited by counsel on both sides.

Before discussing the Michigan authorities, which ought to be decisive of this case, we refer to 24 Am. & Eng. Enc. Law (2d Ed.), at page 689, where the following language is used:

In some jurisdictions it is held that, where the title to personal property is involved, the declarations of a person in possession, indicating the character of the possession, are admissible in evidence on the issue of ownership, though the declarations operate in the declarant’s own favor. The doctrine is generally based on the ground that the mere fact of possession is prima facie evidence of the title, and hence, the act of possession being proved, the declarations of a person while in possession are admissible as explanatory of the act. But this is not recognized in other jurisdictions ” — citing many cases, including Michigan Paneling, etc., Co. v. Parsell, 38 Mich. 475.

The case of Stone v. O’Brien, 7 Colo. 460 (4 Pac. 794), is also cited. That court said:

“ ‘ Declarations of the party in possession, explanatory of the possession, or explanatory of the title he is claiming’ may be given in evidence by himself or those holding under him, where either of these matters is properly in issue. But they are ‘ proof only that such was the character of the possession, or such was the title claimed; * they are no evidence of the title actually held; and where the issue is, not what was the nature of the possession, nor what was the title claimed, but which party, plaintiff or defendant, was the actual owner, such declarations are not admissible.”

Referring to Michigan Paneling, etc., Co. v Parsell, supra, this court said:

“In general such declarations can only be received in disparagement of the party’s title; not in support of it; they may be shown to characterize a possession and thus make out an adverse holding, because for this purpose they would be a part of the res gestae; but they are never received as evidence of title in favor of the party making them.”

See, also, Cook v. Knowles, 38 Mich. 316; Wilson v. Wilson, 6 Mich. 9-15. In that case it was sought to show the declaration of one Henry Wilson, deceased. This court held that, while the complainants were entitled to prove his admissions, the rule would not allow his declarations to be introduced on behalf of his representatives any more than of himself if he were living. Jones v. Tyler, 6 Mich. 364; Ward v. Ward, 37 Mich. 253; Hogsett v. Ellis, 17 Mich. 351. In that case, for the purpose of showing defendant’s claim of title, he was asked how he claimed to occupy the premises, to which he replied: “ I considered it mine.” Held, that this was error; that it was the mere opinion of the witness, or at most a declaration in his own favor, not evidence from which the jury could determine the fact. Bower v. Earl, 18 Mich. 367. Where certain statements were shown claimed to have been made by the prior grantor while in possession of certain premises, in disparagement of his title concerning the extent of his holding and the place of the dividing line between him and his neighbor, in a trial of title where a subsequent grantee was a party, it was held that, while such statements could not prove the actual title, they were competent to explain the nature and extent of said grant- or’s possession, as being part of the res gestae. The court used this language:

“ These statements were objected to as attempts to create title by parol. They certainly could not be any proof of title. But they were introduced for no such purpose. They were properly received to explain the nature of Mundy’s possession, and were receivable on the same principle which allows statements as part of res gestee. They create no right, but simply explain a fact, which is not of itself conclusive of anything, and which derives its legal character from its intent and circumstances. Yoorhees’ claim while in possession was in disparagement of his own title to the strip in the suit; but we agree with Mr. Greenleaf that such statements and claims to explain possession are admissible for what they are worth, whether in disparagement of title or not. 1 Greenleaf on Evidence, § 109.”

Sparrow v. Hovey, 44 Mich. 63 (6 N. W. 93); Van Fleet v. Van Fleet, 50 Mich. 1 (14 N W. 671). This case involved a claim .against the estate of Hugh H. Yan Fleet, and Justice Cooley, speaking for the court, said:

“ As a part of his case the claimant proved declarations of the intestate tending to show that he expected to pay for the claimant’s services. The defense then offered to show declarations of the intestate of a different character, made near the same time; but the offer was overruled. In support of the offer cases were referred to which have held declarations of a party that he had made his will, or that he had destroyed his will, admissible under some circumstances. But those were cases in which the declarations when made were not adverse to the interests of any one. Those which were offered in this case were declarations in favor of the party making them, and adverse to the interest of another. No plausible argument can be made in support of the offer to prove them.”

The case of Jacob v. Callaghan, 57 Mich. 11 (23 N. W. 454), is cited by plaintiff’s counsel. In that case Justice Campbell said:

It is said by Mr. Greenleaf that there is no reason why every declaration accompanying the act of possession, whether in disparagement of the claimant’s title or otherwise qualifying his possession, if made in good faith, should not be received as part of the res gestee, leaving its effect to be governed by other rules of evidence. 1 Greenl. Ev. § 110, and cases there cited. * * * The question of the nature of the possession stands on the same footing as showing what would be inconsistent with contract relations between those persons, for what may be proved may be disproved. It is a familiar and necessary practice to show adverse possession, and its character, by the claims and assertions of tenants; and if made in the ordinary course of possession, and not under a dispute or litigation, such statements are admissible as explanatory, and for what they are worth.”

See reference to last above case by Justice Montgomery in Coldwater Nat. Bank v. Buggie, 117 Mich. 416 (75 N. W. 1057).

In Coleman v. McGowan’s Estate, 149 Mich. 624 (113 N. W. 17), it was held that declarations of the decedent tending to disprove a claim against his estate, not made in the presence of the claimant, could not be shown on the trial of the claim. Bettinghouse v. Bettinghouse, 156 Mich. 169 (120 N. W. 617); Tolbert v. Burke, 89 Mich. 132 (50 N W. 803); Drake Coal Co. v. Croze, 165 Mich. 120 (130 N. W. 355).

More cases might be cited, but we have cited a sufficient number to show the trend of the authorities and the rule which has been adhered to in this State. In other jurisdictions there is to be found a great conflict in the cases, and there is much confusion in the authorities. 3 Wigmore on Evidence, § 1778 et seq.

It will be noted that in this case the evidence was offered and received as though there were some question qualifying or explanatory of the possession of the decedent. An examination of the evidence received shows that there was no question as to the nature of the possession, nor what was the title claimed by decedent. This evidence was offered to show who was the actual owner of this property. It was material upon this point, if material at all. It seems to us that such declarations were not admissible; that decedent was in possession of the stock of goods was the real question in issue. No question was raised as to the nature of his possession, and nothing was offered explanatory of, or qualifying, such possession, and we think the true rule is that where the issue , is, not what was the nature of the possession, nor what was the title claimed, but which party was the actual owner, such declarations are not admissible. The danger of admitting such testimony as tending to show who was the actual owner is apparent. It does not seem to us that mere possession may be termed an act, so as to justify the application of this branch of the doctrine of res gestee.

The instances, when the declarations should be received, are when the character of the possession, or nature of the claim made, becomes material with a view to the determination of some ulterior question; as, for instance, cases in which a right rests upon the statute of limitations, and it is necessary to show that the possession was adverse. To say that, in a case where the only issue is actual ownership, a party may support his title by proof of his own declarations to third persons on sundry occasions, not in the presence of the claimant, is to declare that one may manufacture evidence for himself. Declarations by a party in possession, against interest or in disparagement of title, are admissible under a different rule from that we are here considering. We think the evidence should not have been received, and that it was prejudicial error to allow it to be submitted to and considered by the jury.

For this error we are constrained to reverse the case and grant a new trial.

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