text:
    RAMONAS v. GRAND RAPIDS RAILWAY CO.
    1. Negligence — Theatres and Shows — Carriers—Duty to Trespasser.
    Where plaintiff was in the employ of the Pullman Car Company, and one of the two defendants operated an amusement concession, consisting of a miniature train and road, under a contract with the defendant railway ompany, which was the proprietor of an amusement park,, testimony showing that the train was not in regular operation at the time plaintiff boarded it, but he merely inquired of the engineer whether he was getting up steam,, receiving no invitation to board the train, was insufficient, to sustain the action on the theory that he was accepted as a passenger by the employees of the concessionaire and, though he claimed to have been ready to pay his fare,, he could not recover against either defendant under evidence that the ticket office was closed and the employees at lunch, and the train merely ran for the purpose of carrying some employees of the individual defendant, who operated the train, to their work, and of bringing back coal. e
    2. Same — Acceptance by Carrier — Contract.
    Since there must be something from which it may be implied that the passenger was accepted as such by the carrier, the latter cannot be held liable in the absence of proof of the purpose to accept and transport the passenger.
    Error to Superior Court of Grand Rapids; Dunham, J.
    Submitted October 16, 1916.
    (Docket No. 72.)
    Decided December 21, 1916.
    Case by Alexander Ramonas against the Grand Rapids Railway Company and Robert A. Best for personal injuries. A verdict was directed in favor of defendant railway company, and plaintiff had judgment against defendant Best. Plaintiff and defendant Best bring error.
    Affirmed as to defendant railway company and reversed as to defendant Best, and no new trial granted.

      Hall, Gillard & Temple, for appellant Best.

      E. A. Maher, for plaintiff and appellant.

      Kleinhans, Knappm & Uhl, for appellee.
   Kuhn, J.

This action was brought to recover for personal injuries alleged to have been received by the plaintiff on May 27, 1915. The trial in the court below resulted in a verdict and judgment for $350 against the defendant Robert A. Best; a verdict having been directed in favor of the defendant the Grand Rapids Railway Company. Both the plaintiff'and the defendant Best have brought the case here by writ of error; the plaintiff contending that the direction of the verdict in favor of the defendant railway company was erroneous, and the defendant Best contending that a verdict should have been directed in his favor, as well as in favor of the railway company.

The defendant railway company owns and operates an amusement park in East Grand Rapids, Kent county, known as “Ramona Park.” Among the. amusement concessions there operated was a miniature railway occupying an oval space 300 feet east and west by 100 feet north'and south. There was a station at the east end, and a miniature tunnel, with mountain and other scenic effects, at the west end. The railway gauge was about 14 or 15 inches, the rails were laid upon plank ties, and there was a natural slope to the ground from the station to the north, the direction in which the train started. The equipment consisted of a diminutive locomotive engine, tender, and three small, open cars, carrying three grown people each. This railway had been used intermittently from 1906 to 1914, at which time it was given to defendant Best and he operated it for a part of that year. On May 15, 1915, a» written contract was entered into between defendant Best and the railway company by which Best agreed to operate the railway on defendant’s grounds, and business for the season was commenced three days before the day of the accident.

The plaintiff, who is a Lithuanian by birth, has difficulty in speaking or understanding anything more than the common expressions of the English language. It is his claim that at the time of the accident he was employed by the Pullman Car Company, working nights. He had been out in the park before, and had seen pleasure seekers ride on the miniature railway, but had never seen the train operated in the morning. On the day of the accident he came to the park on his bicycle. From his testimony it does not appear at just exactly what hour he arrived there, but he did state that it was about 12 o’clock. From the testimony of the defendant’s engineer it appears that it was. about noon, and that the men were eating their dinner. It is not disputed that the ticket office was closed, and that no tickets were sold. It is plaintiff’s claim that he saw some men getting on the car near the ticket office, and that he took a seat in the rear car, and he then described the accident as follows :•

“When I see that little train in the station, and I see there was lots of fellows around the engine and lots of boys and some men, then I thought to myself, I go ride on that train, because I see lots of other fellows go on there and lots of men. I go to the engine man and ask him, I say, ‘You making steam so that it goes now?’ He says, ‘Right now.’ Then I talked to him some more, but the engine man didn’t talk with me; he working around his engine; he not talking with me at all. Then I look in the train, lots of young fellows go on the train, and some man 37 years old, and one old man of 65 or 70 years old sitting in the cars. I say, ‘If there is a lot of people going on that little train, I am going to take that around too; I am going to take a seat’; and I go and take the last seat. I take last seat, last car and last seat. Then that little train, stay in that station for about four minutes; everybody get in the cars, full cars, with young fellows, and other men. Man, 37 years old sit beside the old man 70 years old. Stand four minutes in the station. After four minutes that engine man he say, ‘Everybody all ready.’ Say,‘Yes.’ ‘All right.’ Then he opened steam and the little engine started around and the little engine run very fast, terrible run, just like shoot, like a gun; then he run fast. Where it turns about 200 feet, way where the shed, long shed, where that little train goes through the shed, he runs fast. Those cars jump very fast over the tracks, and in that corner is a post, that shed post, and my head it strike the ground and shoulder on the ground, and the left leg strike in the post. * * *”

It is his further claim that at the time he boarded the train he had a dime in his hand to pay the fare when it should be called for.

From the testimony of other witnesses produced, it appears that there were several workmen of the defendant Best employed on the so-called railway tunnel, who were sitting around eating their dinner, and that after they had finished these employees boarded the train to ride down to the end of the tunnel to their work, where the engineer was going after a load of coal. The engineer stated that, while he was busy oiling the engine, the plaintiff approached him and asked if he was getting up steam to go, and that he told him that when he was ready to take on passengers he would let him know.

The only testimony relied upon to prove 'negligence on the part of the defendant is as to the speed of the train. It is urged that the testimony in support of this alleged negligence is not sufficient to raise a question for submission to the jury; but, be that as it may, we are satisfied that a-verdict should have been directed in favor of the defendant, for the reason that, viewing the testimony in the light most favorable to plaintiff’s contention, he has not shown that he was a passenger on the railway train at the time of the accident. While it does appear that he was not very familiar with the English language, he was a man 36 years of age, and from his testimony it appears that he possessed the ordinary powers of observation. He had been to the park before, and had seen the amusement concessions operated. On the day in question he came at a time when they were not being operated ; he saw the men congregated about the miniature railway; he saw some of them eating their dinner, and must have known that they were employees, and not people looking for recreation and pleasure. Instead of consulting the engineer about the price of admission or fare, or asking him when he would be ready to take on passengers for the day’s business, according to his own testimony he simply asked him about making up steam. He saw the ticket office closed, he knew that no tickets were being offered for sale, and no effort made to collect fares. It does not appear that he was invited to board the train by anybody. It is true that the rule of law is that the acceptance of a passenger by a carrier need not be direct or express, but it must be something from which it can fairly be implied. 4 Elliott on Railroads (2d Ed.), p. 374. Under the record in this case we are of the opinion that there was nothing shown which warranted such an implication and the submission of this question to the jury. 2 Moore on Carriers, p. 955, and note, states the following:

“The acceptance of a passenger need not be direct or expressed, but there must be something from which it may be fairly implied [citing cases under note 51]. * * * The question is whether the person has presented himself in readiness to be carried under such circumstances in reference to time, place, manner, and condition that the carrier must be deemed to have accepted him as a passenger. * * * The test in determining who are passengers is whether the person desiring passage in good faith offered himself for the purpose of being carried as a passenger, and that he was as such accepted and received by the carrier, who undertook to transport him.”

As, in our opinion, it clearly appears that the plaintiff was a trespasser at the time of the occurrence of the accident, the learned trial judge was in error in submitting the case to the jury, and should have directed a verdict in favor of both defendants at the close of the plaintiff’s case.

We therefore affirm the judgment of the lower court in favor of the defendant, the Grand Rapids Railway Company, with costs to it, and reverse the judgment of the lower court as to the defendant Best, with costs to him, and no new trial granted.

Stone, C. J., and Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    NEWCOMB v. MONTAGUE.
    1. Fraudulent Conveyances — Bill in Aid oe Execution — Conditions Precedent.
    Where plaintiff filed a creditors’ bill alleging that defendant debtor bad made a transfer of bis property in fraud of bis creditors, showing no levy on the interest of the judgment debtor therein, but attempting to secure a decree applying the property on the judgment, the bill would not lie as a creditors’ bill because the remedies at law were not exhausted; and defendant could not be sued for relief in aid of execution, because the execution must have been levied upon the assets conveyed before the judgment creditor could secure the aid of equity.
    2. Same — Fraud—Void Transfer — Execution.
    If, as averred by the plaintiff, the .conveyance was in defraud of creditors, it was null and void. 3 Comp. Laws 1915, § 12897. And, hence, a creditors’ bill, which can only reach equitable assets not subject to execution, would not be the appropriate remedy. On demurrer to the bill of complaint, the court was not warranted in holding that the bill set up facts sufficient to entitle plaintiff to the relief prayed.
    Appeal from Grand Traverse; Mayne, J.
    Submitted October 5, 1916.
    (Docket No. 38.)
    Decided December 21, 1916.
    Bill by David B. Newcomb against Eunice K. Montague and others to set aside a certain deed, for an accounting, and for other relief. From an order overruling the demurrer of above named defendant, she appeals.
    Reversed.

      Patchin & Duncan, for plaintiff.

      Covell & Cross, for defendant.
   Kuhn, J.

This is an appeal from an order overruling a demurrer filed March 31, 1915. The bill of' complaint alleges, in substance, that on the 6th day of October, 1914, the plaintiff recovered a judgment in the circuit court for the county of Grand Traverse against the defendant Herbert B. Montague in the sum of $764.10, and costs; that an execution was issued upon said judgment, placed in the hands of the sheriff, who returned that Herbert B. Montague did not have any property in his bailiwick. Fraudulent conveyances of property by the defendant Joseph A. Montague were alleged, but the only allegation connecting the defendant Eunice K. Montague with the transaction was that previous to the rendition of the judgment Herbert B. Montague was the owner of certain real estate, and that he made and executed a pretended deed of conveyance of said property to the defendant Eunice K. Montague, his wife, for the purpose of hindering and defrauding the complainant and creditors of the said Herbert B. Montague in the collection of their just claims and demands, and praying that the said deed be set aside, and that the lands described be decreed to be the property of the said Herbert B. Montague, subject to levy and sale for the satisfaction of the amount due the complainant on his judgment.

The demurrer filed alleges as a ground thereof the following:

“Because it appears from said bill of complaint that the only execution claimed to have been issued upon the judgment alleged to have been obtained by the said complainant against the said Herbert B. Montague has been returned unsatisfied, and it does not appear by said bill of complaint that any execution has been issued upon said judgment and levied upon the land alleged in said bill of complaint to have been conveyed by the said defendant Herbert B. Montague to this defendant, and which said conveyance is sought to be attacked by the said complainant as having been fraudulently executed and for the purpose of hindering, delaying, and defrauding the said complainant.”

The bill of complaint was evidently drawn with the intention of including therein the features of a judgment creditors’ bill and a bill in aid of execution. It is the contention of the appellant that, as far as the defendants other than herself are concerned, the bill is, no doubt, good as a judgment creditors’ bill, but as to her it is neither a judgment creditors’ bill nor a bill in aid of execution. It is the settled practice in this State that a bill may be filed for the double purpose of reaching equitable assets and estates and to-aid an execution at law. Section 11953, 4 How. Stat.. (2d Ed.), and cases cited in notes (1 Comp. Laws, § 436; 3 Comp. Laws 1915, § 12302, subd. 6). The distinction in these two forms of procedure is thus stated in Stace’s Michigan Chancery Practice, § 503:

“There are two classes of cases in which a judgment creditor may come into the court of chancery for relief : First. In aid of his execution at law, as to set aside an incumbrance or a transfer of property made to defraud creditors. Second. To have his judgment paid out of choses in action or other property of the debtor or held in trust for him not liable to execution. Eelief is given in these two classes of cases on different principles. In the first class on the ground of fraud; and in the other on the ground that the creditor has exhausted his remedy at law, and that it is inequitable and unjust for the debtor under such circumstances to refuse to apply any choses in action or other property belonging to him or held in trust for-him, not liable to execution, to the payment of the-, judgment.”

The bill of complaint alleges a transfer of real estate from the judgment debtor to the appellant with intent to defraud creditors. Under the statute (section 11321, 4 How. Stat. [2d Ed.] [3 Comp. Laws, § 9167; 3 Comp. Laws 1915, § 12897]) such a conveyance is void as to creditors, and the land is subject to execution. The judgment creditors’ bill, being a bill which will only reach equitable assets not subject to execution, is therefore not a proper proceeding in this case.

Neither can it be sustained on the theory that it is a bill in aid of execution, because before such remedy can be invoked the execution must have been issued and a levy made upon the property alleged to have been fraudulently conveyed, and the execution must still be in force. In this case it appears from the bill of complaint that no execution was levied upon the property alleged to have been fraudulently transferred to the appellant. In the recent case of Schelowski v. Pawlowski, 168 Mich. 664, 667 (134 N. W. 997, 998), it was said:

“No lien is acquired on real estate in Michigan under a judgment until actual levy of an execution. Before a bill in aid of execution can be entertained by a court of chancery to assist in enforcing an execution at law, not only must the execution be issued, but an actual levy made and lien acquired on the property sought. To establish a prima facie case, proof of levy is required. Act No. 99, Pub. Acts 1897; McKibben v. Barton, 1 Mich. 213; Blish v. Collins, 68 Mich. 542 (36 N. W. 731); Vanderpool v. Notley, 71 Mich. 429 (39 N. W. 574).
“ ‘Not only must a person become a judgment creditor in order to be in a position to take proceedings to set aside fraudulent conveyances, but this must be followed by tbe issue of an execution and tbe levy of it upon tbe property said to bave been so fraudulently conveyed.’ Eames v. Manley, 121 Mich. 300 (80 N. W. 15).’”

The demurrer of appealing defendant should have been- sustained, and the order overruling the demurrer is therefore reversed. The case is remanded, granting complainant 15 days in which to file an amended bill if he so desires, with costs, to the appellant.

Stone, C. J., and Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


text:
    PALMER v. PALMER.
    1. Mortgages — Redemption—Fraud—Equity.
    Where no fraud is shown which would warrant the court of equity in extending the time of redemption from a statutory foreclosure, and no inequitable conduct which would induce the owner to refrain from redeeming, in due time, the court erred in entering a decree permitting the owner to have an extension of time for that purpose.
    2. Same.
    And it must appear from the record that the property owner was induced by the fraud or misrepresentation to relax her efforts to redeem, in order to justify the decree.
    Appeal from Eaton; Clement Smith, J.
    Submitted October 6, 1916.
    (Docket No. 60.)
    Decided December 21, 1916.
    Bill by Malvina A. Palmer against Mark Palmer and Stanton E. Clark for a decree extending the time of redemption from foreclosure of a mortgage. Defendant Palmer died before the trial. From a decree for plaintiff, defendant Clark appeals.
    Reversed.

      H. H. Partlow (R. R. McPeek and E. N. Peters, of counsel), for complainant.

      Jason E. Nichols and Charles H. Hayden, for defendant.
   Kuhn, J.

The plaintiff and the defendant Mark Palmer owned a farm of 80 acres as tenants by the entireties and gave a mortgage on the premises. Default having occurred in the payment of this mortgage, a statutory foreclosure was started, and the premises were sold upon July 6, 1914, to the defendant Clark for $3,500, of which amount $2,767.63 was necessary to satisfy the claim of the mortgagee, leaving a surplus in the hands of the sheriff of $732.37.

The defendant Mark Palmer and the plaintiff, who are husband and wife, were living together at the time the mortgage was given, but later separated, and the plaintiff filed a bill for divorce, which was subsequently dismissed. She then filed another bill, and on July 22, 1915, she filed a supplemental bill alleging conspiracy and fraud to have been practiced upon her by her husband and the defendant Clark in preventing her from protecting her rights in the redemption of the premises covered by the mortgage. Later, and before the hearing in this cause, the defendant Mark Palmer died. The period of redemption expired July 5, 1915, but, it being a legal holiday, July 6th was treated by the parties as the last day upon which to redeem.

It is the claim of the plaintiff that she and her attorney, Mr. Partlow, carried on negotiations for safeguarding the interests of the Palmers with the defendant Palmer through the defendant Clark, and that their efforts to effect an adjustment or redemption continued up to the 6th day of July, 1915. It is her further contention that they relied upon the statements and assurances made by Mr. Clark as to Palmer’s attitude, and that matters ran along until the 1st of July, when, learning that the defendant was unable physically to join in any efforts to save the property before the expiration of the period of redemption, application was made to the circuit court by the plaintiff and an order secured authorizing the plaintiff to execute a mortgage to secure means for that purpose.

Discussion is had in the briefs of counsel as to the power of a court of equity to extend the time of redemption on a statutory foreclosure. The authorities seem to justify the conclusion that, where the owner has been induced to refrain from redeeming by fraudulent conduct and representations, equity will interpose and grant relief. See 27 Cyc. p. 1847; 2 Jones on Mortgages (7th Ed.), p. 649; Newman v. Locke, 66 Mich. 27 (36 N. W. 166). This is of that class of cases where it can be said that it is indeed regrettable that because of her failure to act the plaintiff has been deprived of property by reason of the statutory enactments with reference to such a foreclosure. It is elementary, however, that before a court of equity is justified in interfering equitable grounds must clearly appear, and fraud is not to be lightly presumed, but must be clearly proved.

A careful examination of this record is convincing that the plaintiff has failed in her proof to sustain her charge. It appears that negotiations had been carried on between Mrs. Palmer and defendant Clark, and that she insisted upon obtaining not less than $2,000 for her interest in the land. Mr. Clark offered and was willing to pay $1,500 for the equity in the property, but there is no evidence that Mrs. Palmer ever was willing to accept this or was willing to join in a deed to make effective an acceptance of Mr. Clark’s offer. Mrs. Palmer testified that she had talked to Mr. Palmer and wanted him to try and redeem the property, and that he said that he could not, as he did not know where he could get the money. The record does not disclose that any new mortgage or a deed was ever tendered to Mr. Palmer and a request made of him to join in the execution thereof in order to raise funds to redeem the property. The defendant Clark at no time refused to take the money which was due him, and we are not satisfied that the record establishes anything that would warrant the conclusion that he was in a conspiracy with defendant Palmer to deprive the plaintiff of her rights of redemption. Although it is her claim that representations were made to her to create in her a feeling of security, nevertheless she alleges in her bill of complaint that by reason thereof she did not in any way relax in her efforts to secure a redemption of the property before the redemption period expired.

Because of the failure of sufficient proof we are constrained to come to a different conclusion than that reached by the trial judge, and the decree by him made will be reversed, and one here entered dismissing the supplemental bill of complaint, with costs to the-appellant.

Stone, C. J., and Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


author: Kuhn, J. Ostrander, J.

text:
      In re AMERICAN AIR COMPRESSOR CO.
    Stocks and Stockholders — Setting Aside Contract — Corporations — Consideration.
    In proceedings to dissolve a manufacturing corporation, ■which agreed to issue its stock in consideration of an assignment to it of a patent to be obtained and already applied for, its agreement to issue stock for certain patents obtained in other countries, that were to be later exchanged for the American patent, but could not be used in its business, held, to be fraudulent, under evidence that the latter agreement was a mere makeshift to secure the issuance of the stock. Ostrander, J., dissenting.
    Appeal from Wayne; Hosmer, J.
    Submitted October 3, 1916.
    (Docket No. 1.)
    Decided December 21, 1916.
    A petition was filed by Henry W. Wolf and others, directors of the American Air Compressor Company, for the dissolution of the corporation. A subsequent petition for cancellation of a contract to issue stock of the company for certain patents to be transferred to the company was presented by B. J. Sturn, A. J. Wood, and D. H. Barnett. From a decree for petitioners, certain stockholders appeal.
    Affirmed.

      Emanuel T. Berger, for petitioners.

      Roy Herald, for appellants.
   Kuhn, J.

On the 15th of October, 1912, a corporation known as the M. G. M. Manufacturing Company of Detroit, Mich., executed its articles of association for the purpose of manufacturing and selling air compressors. The principal place of business was to be in the city of Detroit and the name of the company was afterwards changed to American Air Compressor Company. The total capital stock was $200,000, divided into 20,000 shares of $10 each and the articles of association were signed by Chas. A. Milne, Douglas McCracken, Beattie Graham, H. Roy Haberkorn, Alfred Johnson, and John S. Afield, the first three of whom subscribed for $84,500 of the $100,000 of stock subscribed for. The other subscriptions were made up by the transfer of real estate and a machine shop valued at $14,300. On the same day Messrs. Milne, McCracken, and Graham made a contract with this corporation, wherein it was agreed that they would assign to the said corporation the letters patent of the United States government covering a valuable device for compressing air if the same should thereafter be issued in accordance with the application pending in the United States Patent Office, and in consideration of such transfer and assignment of these letters patent, if issued, the corporation was to issue to the first parties stock as follows: To Milne, 2,334 shares; to McCracken, 2,333 shares; and to Graham, 2,333 shares; and 2,000 shares would also be issued jointly to Milne and Graham to pay promotion expenses. The application was. denied, and no letters patent from the United States government were ever issued for this air compressor. Letters patent had been issued to the three men before mentioned by the governments of Great Britain, Italy, France, Dominion of Canada, and Germany. In March, 1913, a second contract was entered into by the aforesaid men and the American Air Compressor Company, whereby they turned over to the company the letters, patent received from the foreign governments above mentioned in lieu of the United States patent, and the stock as above enumerated was issued to them upon the transfer of these foreign patents. This contract also contained an agreement that as soon as the letters patent of the United States government were issued upon the application then pending, or upon any other later application for improvements thereon, said parties would cause said letters patent so issued to be transferred to said company, and that they would have returned to them the foreign patents. This agreement was ratified by the board of directors. Milne, the inventor, continued to experiment with the device, but no perfect machine was ever produced for commercial purposes. In March, 1914, the five directors of the company filed a petition to dissolve the corporation, alleging that it had not been able to manufacture and sell the machine for which it had been organized, and that the business had been run at a loss. It was shown that the company was still solvent, and on October 30th a decree of dissolution was entered and an order made appointing the Union Trust Company statutory receiver. The receiver realized $30,000 from the sale of the physical assets of the company, and has now in its hands, after payment of all debts, the sum of $11,000 to cover the expenses of receivership and for distribution among the stockholders.

On July 28, 1914, a petition was filed by certain stockholders, praying for the cancellation and rescission of the last-mentioned contract entered into by Milne, McCracken, and Graham with the company. On October 26, 1914, a decree was entered, granting the relief prayed for, rescinding and canceling said contract and the shares of capital stock of said corporation owned by the appellants. This decree is appealed from, and it is urged that, in considering the action of the board of directors in purchasing the foreign patents in lieu of the United States patent, and issuing the stock of the company therefor, honesty and fair dealing must be presumed, and that in the absence of proof of actual fraud, bad faith, misrepresentation, or recklessness, the courts should not interfere.

Thus broadly stated as a general proposition it is unquestionably sound, but in the consideration of this case we must take the facts as we find them in the record. The whole question here turns upon the action of the promoters and the board of directors in substituting the foreign patents when the patent of the United States upon the article in question had been agreed upon. The agreement itself by its terms shows clearly that the transfer of the foreign patents was merely a makeshift in order to secure for Milne, Mc-Cracken, and Graham their stock, for which they were to pay by the transfer to the company of the United States patent. Indeed it is clear that there was no intention that the foreign patents were to be complete satisfaction for the purchase price of said stock. This appears from the resolution of the board of directors, which authorized the execution of the said contract. It is as follows:

“Thereupon a motion was made by George A. Sturges and seconded by Alfred Johnson, that the executive board be given power to act on the purchasing of the^ foreign patents until the United States patents were issued, at which time the said foreign patents should be returned to their previous owners and the American patents received in lieu thereof.”

The learned circuit judge who heard the proofs said, with reference to this transaction:

“Now, from what appears upon the record of the directors of this corporation it seems to be clear that the evident intent of the parties is set forth in this agreement itself, and I cannot think otherwise than as I said earlier in the hearing of this matter that this is but a device to beat the devil around the stump to permit the issuance of this corporate stock prior to the time of the delivery of the letters patent.”

The corporation was organized to do business in Detroit, Mich., to manufacture air compressors, and one of its objects was to acquire the United States patent when issued. For this the original agreement provided that $90,000 worth of stock was to be paid. This United States patent was never obtained, and the company was never commercially on its feet. It also appears conclusively from the record that no one seriously proposed to make use of the foreign patents at this stage of the development of the company. The-substitution of the foreign patents for the patent of the United States, so as to permit of the issuing of the stock operated, in our opinion, as a fraud upon the rest of the stockholders, and therefore the decree of the lower court in setting aside and canceling the contract permitting it is affirmed, with costs to the appellees.

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

Ostrander, J.

In my opinion the court should leave these stockholders and their contracts in this proceeding where they left themselves.

Person, J., did not sit.


author: KUHN, J.

text:
    SNOWDEN v. DETROIT & MACKINAC RAILWAY CO.
    1. Master and Servant — Railroads—Statutes—Res . Judicata.
    In an action against a railroad corporation for the death of its servant in the pumping plant of defendant, Snowden v. Railway Co., 187 Mich. 140 (153 N. W. 682), which decided that the statute relied on in one count would not warrant a recovery, as the premises were not included in the language of the statute, did not preclude a new trial, on motion, under a common law count that was originally included in the declaration.
    2. Evidence — Method of Operation.
    Testimony showing how the decedent operated the machine, in the gearing of which he was caught and injured, In conjunction with other proofs that he regularly started the machine in the same manner, was properly admitted by the trial court.
    3. Same — Witnesses—Condition.
    Nor was it improper to permit a witness to testify to the condition of the machine in the afternoon, where there was evidence by another witness to show that it appeared that way in the morning immediately after the accident.
    4. Same — Witnesses—Cross-Examination.
    Testimony showing that numerous similar machines were in general use at the time of the accident, given by a witness for defendant, who attempted to establish that the machines were safe, etc., justified the trial court in permitting cross-examination to show that the other machines were differently guarded and otherwise had differences in construction.
    5. Trial — Charge—New Trial. .
    On the return of a jury to the court room because they were unable to reach an agreement, instructions of the court that the case had cost the county and the parties a lot of money and that the members of the jury ought to reach an agreement, without violating their consciences, and that there were other cases to try and the expense ought to stop, etc., while open to criticism as emphasizing too strongly the matter of expense, held, not to Raye caused a miscarriage of justice.
    • Error to Cheboygan; Shepherd, J.
    Submitted October 3, 1916.
    (Docket No. 26.)
    Decided December 21, 1916.
    Case by Ellen Snowden, as administratrix of the estate of John Snowden, deceased, against the Detroit & Mackinac Railway Company for the unlawful killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Henry & Henry (James McNamara, of counsel), for appellant.

      Victor D. Sprague and Homer H. Quay, for appellee.
   KUHN, J.

It was decided in Snowden v. Railway Co., 187 Mich. 140 (153 N. W. 682), by the majority of the court, that the judgment for the plaintiff obtained on the first trial of the case should be reversed and a new trial granted. The opinion written by Mr. Justice Bird for affirmance contains a statement of the facts sufficient for a proper understanding of the issues involved.

The plaintiff declared under the common law on the failure of the defendant to furnish the deceased with a place and machinery reasonably safe in which and with which to work, and also upon the statute for failure to guard gears as provided for by section 15, Act No. 285, Pub. Acts 1909 (2 Comp. Laws 1915, § 5336). On the first trial, the circuit judge submitted the case to the jury under the statutory count only and withdrew the common-law count, to which attorneys for the plaintiff took exception, and apparently no reason for this action of the court appears in the record. By the majority decision of this court it was held that the statute covering gearings did not apply, and, the judgment being based solely upon the statutory count, the case was reversed and a new trial granted. On the new trial the question of the common-law liability of the defendant was submitted to the jury and resulted in a verdict for the plaintiff in the sum of $1,400. It should also be stated that, after the decision of this court and before the new trial, a motion for a new trial on the common-law count was made, based, among other things, upon newly discovered evidence and was granted by the trial judge.

It is now urged that, no appeal having been taken from the action of the trial court in ruling that the plaintiff could not recover on the common-law count, it was a matter which was res adjudicatei, and that when the case was sent back by this court for a new trial there was nothing to be tried.

Irrespective of whether the decision of this court did or did not open the question, there is no doubt in our minds that a motion for a new trial on the common-law count, after the decision of this court, was a proper proceeding, and, having been granted by the trial court, the question clearly was an open one. See Minkkinon v. Mining Co., 172 Mich. 404 (137 N. W. 716).

Various assignments of error relate to the testimony of witnesses who described how plaintiff’s intestate operated the machine on which he was injured prior to the accident. It appeared from the testimony of the witness Parker that deceased started the machine the same way every time he saw him start it, and he then proceeded to describe the way in which he started it. We see no prejudicial error in allowing this testimony to stand.

Witness Le Graff was allowed to testify as to the condition of the machine in the afternoon after the accident, in that he found a portion of the deceased’s clothing in the clutch. It is urged that this is error, because it was not shown that the situation had remained unchanged from the time of the accident until the subsequent time referred to by the witness. This identical condition was testified to by other witnesses who saw it in the forenoon immediately after the accident, and we are of the opinion that this was sufficient proof to show that there was no change in the condition and warranted the admission of Le Graffs testimony.

The testimony of witness Taylor, a representative of the Fairbanks Morse Company, was taken in Chicago before the trial on behalf of the defendant. It was attempted by his testimony to show that the machine in question was in common and general use at the time of the accident, that the company by whom he was employed had sold this machine to the defendant on August 24, 1899, and that up to the 29th day of October, 1912, the day of the accident, approximately 2,200 machines had been placed upon the market. On cross-examination counsel for plaintiff brought out from the witness the fact that of these 2,200 machines a great number were of different construction; that is to say, they had an entirely different clutch and had guards. Error is assigned because the evidence concerning these other machines, showing that they had different guards than the machine in question, was admitted over objection; but we see no merit in this contention. The cross-examination was proper in view of defendant’s claims.

Another assignment of error which merits attention relates to the charge of the court. The learned trial judge charged the jury at about the noon hour on a Friday, and they remained out considering the verdict all the remainder of that day, Friday night, all day Saturday, and until a short time before midnight. At this time the jury announced that they were unable to agree, and the court thereupon reminded them of the cost of the trials to the county, and further said:

“Besides what it has cost the county, it has cost the parties to the case a lot of money. I have not kept you out lightly, gentlemen, nor without considering the matter; but I hope you will bear this in mind and see if you cannot reach some conclusion without violating your conscience. Just stop and ask yourself if you are not acting just a little bit arbitrary. Now, I do not know anything about how you stand — anything about it at all. See if you cannot conscientiously give up something to the other side and reach a conclusion. Law business has to be done. There are ■other cases to try, and this expense ought to stop some time. I dislike awfully to send you back, but under the circumstances of the case 4 am afraid I will have to do it. .1 will wait here a little while, gentlemen, in the hopes that you will agree. You may retire.”

It is insisted that these remarks may have wrongfully constrained some juryman to have changed his .judgment to the prejudice of the defendant. In a motion for a new trial based on this ground, the plaintiff, in opposition to the motion, produced the affidavits of the twelve jurymen in which they stated that the verdict that they arrived at was not from any understanding of a compulsion to do so, but that it was the individual and'collective judgment of each and every ■one of them, freely, voluntarily, and conscientiously given. We are of the opinion that the emphasizing of the charge of the court of the expenses of litigation is not a practice to be commended, because such expenses should not be a determining or influencing factor in the decision of the rights of the litigants. However, in view of the size of this verdict, even if it should be considered prejudicial error, we do not believe that it can be said that it was made to affirmatively appear that what was said in the charge resulted in miscarriage of justice. Section 28, chap. 50, of the judicature act; Act No. 314, Pub. Acts 1915 (3 Comp. Laws 1915, § 13763).

Other assignments of error not herein particularly-discussed have been found to be without merit.

The judgment is therefore affirmed.

Stone, C. J., and Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


text:
    FORRESTER v. LAWSON.
    Evidence — Work and Labor — Value of Materials — Building and-Construction Contracts.
    On. the trial of an action for the contract price of certain tile floors laid hy plaintiff, the testimony of an alleged expert, whose qualifications were not properly shown to testify to its value, that the cost of relaying the tile would he an amount named, and why the floor was not level, as it ought to be, was properly excluded as inadmissible, under proofs that did not show he had ever laid a floor of that kind of tile which was involved in the controversy.
    Error to Muskegon; Sullivan, J.
    Submitted October 10, 1916.
    (Docket No. 111.)
    Decided December 21, 1916.
    Assumpsit by George Forrester against Norman B. Lawson and another for work and labor done. Judgment for plaintiff on a directed verdict. Defendant Lawson brings error.
    Affirmed.

      Turner & Turner, for appellant.

      Richard L. Newnham, for appellee.
   Kuhn, J.

On November 18, 1912, the defendant entered into a contract with the plaintiff whereby the plaintiff, who was engaged in the business of laying tile flooring, was to install tile floors in a building -owned by the defendant and known as the Flatiron Building in the city of Muskegon. After the work was finished a bill for $864.38, the amount of the plaintiff’s claim, was presented to defendant, who did not dispute the correctness of it, and who paid $500 thereon in two different instalments. Subsequently he refused to pay the balance, and suit was commenced against him.

Defendant pleaded the general issue and gave notice of recoupment, alleging that the tile had not been laid in a workmanlike manner, and that the floors were uneven and not level, and as a result the defendant had suffered damage necessitating the doing over of the work. On the trial after the proofs were in the trial court directed a verdict on motion made by plaintiff’s attorney.

Appellant’s assignments of error are practically based on the refusal of the court to admit the testimony of one Clinton Brown, a witness produced by the defendant, who testified that he was a building contractor and had some experience in laying tile floors. He was asked to state what it would cost to put the job in dispute, which he had examined, in a good and workmanlike condition, and also to state why, in his opinion, the floor was not level, which evidence was ruled out by the court. It is the claim of the plaintiff’s counsel that the rulings were correct because it appeared from the record that the witness had not examined the work until two years after it had been completed, and it did not appear that he ever knew the value of the materials used or the cost of these floors; nor was it shown that it was necessary to re-lay them.

We do not think that there was error in excluding this testimony because it appears that he stated that he had never laid the kind of a floor that was here in dispute, and that his sole experience in laying tile floors was in laying tile around fireplaces, which he admitted was a different kind of tile. It also appears that this tile floor was laid in a building that was entirely new, and that whatever unevenness occurred in the tile was caused by the natural shrinkage and expansion of the building. The plaintiff’s testimony further shows that he called attention to the effect that the expansion around the steam pipes would have on the tiling and suggested what to do. Defendant, however, refused to follow his suggestions.

A proper foundation was not laid for the testimony of the witness Brown, and, there being no material disputed question of fact, the verdict was properly directed, and the judgment is affirmed.

Stone, C. J., and Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


author: Ostrander, J.

text:
    KELLY v. KELLY.
    1. Divorce — Husband and Wipe — Compromise by Parties — Agreement for Support — Modification—Decree.
    Where husband and wife agreed upon the amounts to be paid as permanent alimony, and for the support of an infant, incorporated in the decree for divorce, the court was authorized to entertain a petition to modify the decree by reducing the provision for the child, notwithstanding a clause in the contract between the parties, that such allowance and alimony should in no way be changed by petition or otherwise by either party. 3 Comp. Laws 1915, § 11417.

      2. Same — Aiimony—Change oe Circumstances.
    But his remarriage after decree did not abate the husband’s obligation to carry out its provisions relating to alimony.
    3. Same — Decrease in Income.
    And where defendant husband had resigned from a position held by him and engaged in a business for himself, causing a diminution in his income, the court could rightly consider that fact and the remarriage in determining the question of changing the- decree, and whether or not the alteration in his circumstances warranted a change in the order.
    Appeal from Kent; Brown, J.
    Submitted October 3, 1916.
    (Docket No. 61.)
    Decided December 21, 1916.
    Bill by Frank R. Kelly against Flora T. Kelly for a divorce: On petition of complainant for a modification of the decree respecting alimony. From an order granting temporary relief without amending the decree, petitioner appeals.
    Affirmed.

      H. Monroe Dunham and John M. Dunham, for complainant.

      William F. McKnight, for defendant.
    In the circuit court for the county of Kent, in chancery, in the suit of Frank R. Kelly against Flora T. Kelly, defendant, for a divorce, on July 1, 1914, a decree was entered' which recited that the material facts charged in the bill were found to be true, and the defendant guilty of the several- acts of cruelty therein charged, and the marriage was dissolved, and the parties divorced. The custody of an infant son was awarded to the mother, the defendant, until he should attain the age of 14 years. It is further recited in the decree that defendant was entitled to an allowance as permanent alimony, that the parties had by a written agreement on file in the cause settled and adjusted the amount thereof, subject to the approval and ratification of the court, that the provision made in said agreement for defendant appeared to be suitable and proper, and it was decreed that it be in all respects ratified, approved, and confirmed, and declared binding upon the parties as though incorporated in the decree. It was further ordered, adjudged, and decreed, in accordance with the terms of the said agreement, that complainant pay to the register of the court for the defendant $150 each three months in advance, the first payment to be due on the date of signing the decree, as permanent alimony, and that said sum should be paid every three months so long as the defendant should live or until she should be married; that complainant should, each and every three months, pay to the register of the court in advance for defendant the sum of $75 as permanent alimony for the support, care, and maintenance of the infant child until he attained the age of 14 years. The date of filing does not appear in the record as the rule requires that it should do, but it is assumed from the date of the jurat attached thereto that in September, 1915, the complainant in said divorce suit filed a petition in said court praying for a modification of the said decree in three respects :

      “(a) That your petitioner may have the right to visit .his son, Robert Edward Kelly, when he is in the city of Grand Rapids, but not oftener than once a month, and that during said time he may have the right to take said child with him, away from the home of the said defendant, for a period not over one-half day.

      “(b) That your petitioner may be awarded the care and custody of said minor child during the months of July and August, when he will not be attending school, and for one week at Christmas time.

      “(c) That the amount of money payable to the said defendant for the support and maintenance of said minor child may be reduced to an amount reasonable and proper in consideration of your petitioner’s income, different conditions, and business earnings, and that during the months the said minor child is with your petitioner that no payment whatever be required of him.”
    The petition sets up that an agreement was made and executed between the parties, adjusting and settling all property matters and alimony matters, which provisions were embodied in the decree; that petitioner had about $2,000 worth of household furniture and fixtures, which he gave to defendant, in order that she might make a home for the infant child; that defendant represented to petitioner that she would not and did not expect to live with her mother, and wanted to make a home of her own, where she could devote her time and attention to the rearing and training of the said infant child, which representations were in accord with petitioner’s desire, and, relying upon the representations, he agreed to pay the sum of $75 a month to the defendant, one-third of which sum was for the support, care, and maintenance of the said minor child. He further sets up that he was in the furniture business when the agreement was made, drawing a salary of $3,000 a year, and sometimes earning money other ways, so that he thought at the time he could afford to pay $75 a month out of his salary in order that his child might have a suitable and proper home; that shortly after the decree was rendered defendant made her home with her mother and began to work for the Grand Rapids Insurance Company, upon information and belief that she had been earning for a year $65 a month, which, with the $75 paid by petitioner, made her income about $140 a month; that in the spring of 1915 petitioner’s employment ceased, that he went to the city of Detroit to engage in the real estate business, which was to him a new business, and took about all tbe capital he had; and that since the 15th of May, 1915, his total earnings had been three commissions, the total of which was $450, out of which he had to pay office expenses and other expenses, and did not know how long it would be before he would earn or receive any more commissions, expecting, however, in the future to build up a business; that he has been paying $225 quarterly in advance since the agreement was signed out of capital and out of money he had borrowed; that he had no money in the bank, no real estate, no fixed salary, and no earnings upon which he could depend, and could not make the payment due October 1st next after the filing of the petition; that it became necessary for him to purchase an automobile to use in his business, which he was able to do only through the kindness of friends; and that the deferred payments upon that and his other indebtedness exceeded the sum of $1,800. Lastly, petitioner further sets up that during the winter of 1915 he was married to a lady of refinement and culture, has a pleasant home in the city of Detroit, is well able to make a home for his child during his vacations, and that in his home the child will receive the best of care, attention, and training.
    This petition the defendant answered, setting up, among other things, that the household furniture referred to by petitioner in fact cost only $840, and that it was not turned over to her for any such specific purpose as that stated in the petition. She denies that she represented that she would not and did not expect to live with her mother, or that she wanted to make a home of her own, where she could devote her attention to the rearing and training of the said infant child. She admits that she began working for the Grand Rapids Insurance Company some time in the fall of 1914, from which she has been receiving a part of the time $55 a month, and later $60 per month. She says that, relying upon the agreement and the decree, she rented a house where she lives, paying $25 per month rent, and that, after paying the rent and other necessary expenses for clothing for herself and her child, she found she was. unable to support herself and the child on the $75 a month received from the petitioner and was compelled to work. To do this, she employed her mother at a salary of $6 a week to give all her time and attention to the child when the defendant was engaged and employed as aforesaid. She sets up her expenses as follows: Rent, $25; housekeeper, $25; gas, $2; ice, $2^75; electricity, $2; milk, $4; street car fare, $5; noon lunches down town, $6; groceries, meats, and provisions, $40; water tax, $1; an average of between $7 and $8 for coal; fire insurance, $1 — a total of about $122, exclusive of clothing for herself and child and other such incidentals as are not above mentioned. She says that she carries a 20-year endowment policy'upon the life of her child, upon which she pays a premium of $44 yearly, and that out of what she earns and reqeives from complainant she is merely able to support herself and child. She denies that the petitioner was refused the privilege of visiting the child, says she never refused him the privilege of taking the child for an automobile ride at any time, but learned that upon one occasion, when he applied at the house to take the child for a ride, her mother referred him to her, telling him to call her to the phone, which he declined to do. She alleges that he voluntarily resigned his position with his furniture employer, and denies knowledge of his present earnings and present capital. She sets up various matters with respect to his former earnings and holdings of property, want of knowledge of his present income, and says that, if he has incurred any obligations since the decree was granted, thef have been voluntarily incurred, and if his circumstances have changed in any particular since the making of their agreement and the entering of the decree it has been voluntary on his part. Defendant admits, upon information and belief, the alleged second marriage of petitioner, asserting in that connection that complainant was carrying on a flirtation and correspondence with her, and was meeting her from time to time, before the said divorce was granted, says that the complainant never had cause for divorce, and knew that if she contested the granting of one he never could have procured one.
    There was a hearing, at which considerable testimony was taken, and the court, February 11, 1916, found that petitioner was temporarily unable to pay all of the alimony specified in the decree, that the provisions requiring the payment of $50 per month alimony be suspended as to $25 per month from October 1, 1915, to June 1, 1916, said suspended payments to be made as soon as petitioner’s financial condition enabled him to do so, and that after June 1, 1916, the contract made by the parties and the decree based thereon be and continue in effect as if said temporary postponement of payments had not been granted. It was further ordered that petitioner pay forthwith to defendant $200 alimony and for the support of said minor child, “being the sums so due according to said decree for the months of October, November, and December, 1915, and January, 1916, over and above the sums the payment of which is suspended as above provided.”
    The complainant, appealing, presents two points: First, whether the court has authority to modify a decree consented to by the parties and based upon their agreement; second, whether there has been such a change of complainant’s circumstances since the decree was granted as warrants a modification, in this way stating appellee’s contentions. The agreement of the parties as to alimony is not in the printed record. By stipulation it is printed in the brief for appellee. The making of the stipulation, is admitted by appellant, with the statement, however, that it has no proper place in the record, because supplanted and merged in the decree. The agreement contains the following:
    “It is further stipulated and agreed that, if a decree of divorce shall be granted between the above named parties, then the foregoing and several provisions of this agreement, if approved and ratified by the court, shall be entered in the decree of divorce in said cause; but it is distinctly understood that by reason of said decree approving said contract said decree shall not in any way abridge the terms hereof, nor shall any right or rights under said decree be given to said Flora T. Kelly by petition or otherwise changing the amount of permanent alimony for herself as hereby agreed upon, nor shall any right or rights under said decree be given to said Frank R. Kelly by petition or otherwise^ changing the amount of permanent alimony which he is to pay to said Flora T. Kelly as permanent alimony^ for her support, and in event the decree of divorce is granted between said parties, the said decree shall provide that said allowance and alimony to Flora T. Kelly for her own support shall in no way be changed by either party.”
   Ostrander, J.

(after stating the facts). The statute (8 Comp. Laws, § 8641, 3 Comp. Laws 1915, § 11417) provides that after a decree for alimony or other allowance for the wife and child, or either of them, the court may from time to time on the petition of either of the parties revise and alter such decree respecting the amount of such alimony or allowance and the payment thereof, and may make any decree respecting any of the said matters which such court might have made in the original suit. The modification of the decree which is asked for would affect only the provision made for the support of the infant. Jurisdiction of the court to revise it is affirmed in Camp v. Camp, 158 Mich. 221 (122 N. W. 521), and in Aldrich v. Aldrich, 166 Mich. 248 (131 N. W. 542), in each of which cases an agreement of the parties with respect to alimony was approved by the court and embraced in the decree.

The testimony does not convince me that' the award of alimony originally madeo is excessive in amount, or that the defendant has violated or has intended to violate any provision of the decree, or of the agreement which was approved by the decree. The question then is: Have new facts arisen since the decree was made justifying its modification? Defendant’s requirements have not diminished. She works, and it is fairly inferable that she intended, when she made the agreement with her husband, and when the decree was made, to work as her needs required. The facts which are presented as new and as having arisen since the decree was made are in the condition of the complainant husband, the petitioner here. He remarried, a voluntary act, but not one which he is permitted to say itself warrants a modification of the decree in his favor. Smith v. Smith, 139 Mich. 133 (102 N. W. 631).

The financial condition of petitioner has changed materially since the decree was made; the result, it appears, of resigning a position in which he earned a considerable salary and embarking in a new business. He expects, he says, that his income will increase in time. That a man is under obligation to pay alimony is a fact which does not, necessarily, preclude him from changing his employment or engaging in new business adventures; but the obligation is one to be considered, along with others, before making such a change. Wisely, I think, the court gave petitioner, in view of his present financial condition, some immediate relief without amending the decree, and the order made is affirmed, with costs to appellee.

Stone, C. J., and Kuhn, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


text:
    PURCHASE v. GRAND RAPIDS REFRIGERATOR CO.
    ¡Master and Servant — Personal Injuries — Workmen's Compensation Law.
    A laborer who received aD. accidental injury, in the course of Ms employment, to an eye wMch he had to have removed, was entitled to the weekly payments provided by the statute-during 100 weeks, not merely for the period of his disability, although by an accident he had seriously impaired the sight of his eye previously so that he could only partly distinguish objects.
    Certiorari to Industrial Accident Board.
    Submitted October 9, 1916.
    (Docket No. 84.)
    Decided December 21, 1916.
    Clarence C. Purchase presented a claim against the Grand Rapids Refrigerator Company for partial incapacity resulting from the loss of an eye. From an order awarding compensation, respondent brings certiorari.
    Affirmed.

      Francis D. Campan, for appellant.

      Hatch, McAllister & Raymond, for appellee.
    As the result of an accidental injury to claimant’s right eye, it was removed. Compensation was- allowed as for the loss of an eye. The eye had previously been injured. Claimant testified:
    “The only trouble I ever had with my eye, when I was a little better than four and a half years old, about four years and nine months, I got a fork run through this right eye, a fork tine, rather, and - Dr. Gamber, at Stanton, treated the eye and took care of it, and otherwise the eye has never given me any trouble at all from that time on, after it was healed up. I didn’t go to school until I was seven years old on account of the injury to the eye. The doctor said it was best on account of the strain to the eyesight.

      “Q. How much of your vision was left in that eye?

      “A. Just enough to distinguish daylight from dark, or tell an approaching object.”
    The medical testimony upon the subject received by the arbitration committee is. in form a certificate, reading:
    “On March 17, 1915, Mr. C. C. Purchase, an employee of the Grand Rapids Refrigerator Company, consulted me in reference to his right eye. The history of the case is as follows: On February 2Í, 1915, while at work he got hot sand in his. eye, which resulted in an inflammation which was followed by traumatic glaucoma. He also reported that when a child he was severely injured in the same eye. On inspection I found the remains of a wound extending through the ciliary body with the iris grown down and adhered to the latter. Mr. Purchase was suffering a great deal, and there was a great deal of bulging of the eye. I advised him to go at once to the hospital, and, with the co-operation of the Grand Rapids Refrigerator Company, he went to the hospital on the same date that he first visited me. I instituted treatment at once, but was unable to relieve his suffering. On March 24, 1915, I done an Elliot Trephine with no results whatever. The suffering continued. The latter part of March I advised him to have the eye removed, for the reason that it might endanger the other eye, and that the vision was greatly reduced from the accident that he had when a child, so that he did not have much to lose and everything to gain. On April 1, 1915, I removed the eye, since which time he has been under my observation and has made a good recovery. On May 14, 1915, I examined his left eye, and found it in good condition, except for a slight degree of hyperopia, which I have corrected with glasses.”
    Apparently claimant can do the work he did and earn the wage he received before his eye was removed. He was 29 years old when he received the second injury to the eye.

      It is the contention of plaintiff in certiorari that, while claimant was injured, and in consequence was for a period unable to work, he did not lose an eye, and the period of actual disability resulting from the injury is the measure of weekly compensation to which he is entitled. The argument in support of this contention is based principally upon the premises that the injured eye did not contribute to claimant’s earning capacity, and its loss has not diminished it.
   Ostrander, J.

(after stating the facts). In Hirschkorn v. Fiege Desk Co., 184 Mich. 239 (150 N. W. 851), claimant’s eye was injured, vision being impaired nearly one-half. In Cline v. Studebaker Corporation, 189 Mich. 514 (155 N. W. 519), claimant’s eye was injured; vision, if eyeglasses were used, being impaired one-half. Decision in these cases was not rested upon reasoning which can be made to apply to a case where •claimant has lost an eye in which vision was impaired before .the injury. In Weaver v. Maxwell Motor Co., 186 Mich. 588 (152 N. W. 993, L. R. A. 1916B, 1276), claimant’s left eye was destroyed — the vision lost— by the injury. Due to a previous injury, he could not see with his right eye, and after the last injury vision was limited in both eyes to a perception of light. It was held that total disability was not the result of the injury to the left eye, and that compensation should be limited to the amount fixed in the statute for the loss of one eye, because claimant lost only one eye in the particular employment.

Nature has generously furnished some organs of the body in pairs. A man can get along pretty well with one of them, as with one good eye, or ear, or lung, or kidney, and it is probable that most men, in most vocations, could and would earn quite as much with one of either of these organs removed. If a man with one good eye is able to earn as much as he would if possessed of two eyes, and loses, by accident, the remaining eye, it is actually that injury which wholly disables him from pursuing his previous vocation, since the previous loss of the other eye did not so disable him. This view, in the case last above cited, would have permitted claimant to receive compensation as for permanent total disability but for the fact that in all these cases the industrial accident board administers a law by the terms of which the board and the court are bound. The legislature has declared that the loss of both eyes (by the particular injury) shall constitute total and permanent disability, and that for the loss (by the particular injury) of one eye the compensation shall be 50 per cent, of the average weekly wages during 100 weeks. It will be perceived that a man with two eyes might lose one of them without affecting his capacity to earn wages except for a few days or weeks, and another, with but one good eye, might be by its loss totally disabled to earn anything in his usual vocation. In either case his compensation, under the law, would be the same. If such a result is regarded as unjust, in determining which the rights of the employer must be considered, the remedy must be administered by the legislature.

The legislature has not attempted a definition, or made a declaration, applicable to the case at bar, except in terms of the loss of an eye. It has not specified a normal eye, although it may be concluded that the law refers to an eye which performs in some degree the functions of a normal eye. A mere sightless organ might perhaps be considered no eye at all. Claimant has lost an eye, although an infirm one. It was not wholly useless as an eye. On the contrary, the testimony is that he could with it distinguish light and s,ee approaching objects. As a result of the injury, there was disability, and the disability is “deemed to continue for the period specified, and the compensation so paid for such injury shall be as specified. * * *” 2 Comp. Laws 1915, § 5440.

The conclusion of the board will not be disturbed. Defendant in certiorari will recover costs of this court.

Stone, C. J., and Kuhn, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


text:
    RABIOR v. KELLEY.
    1. Evidence — Privilege—Complaint as Evidence — Malice.
    As evidence of malice, proof that defendant caused the arrest of plaintiff, who brought an action for slander, prior to which the arrest had occurred, was not erroneous or harmful, and the trial court did not err in the slander case in admitting the complaint, warrant and testimony of the justice of the peace who issued them; nor was it erroneous to receive proof of another cause involving a charge of illegal sales of liquor brought by defendant, where the attorneys stipulated that during argument of counsel the court ruled that the complaints were not to be considered as evidence of malice and that counsel should not again refer to them.
    2. Appeal and Error — Amendment of Record — Instructions.
    The record on appeal, being duly certified by the trial ' court and by the clerk, cannot be amended by the stipulation of counsel, and, if attempted, will not be treated by the court as corrected.
    3. Evidence — Damages—Loss of Reputation.
    Where plaintiff’s wife appeared as a witness for him and, on cross-examination, after testifying that she had never seen her husband drunk, was asked whether he had been an. habitual drunkard two years previously, the court did not improperly refuse to admit the answer.
    4. Same.
    Evidence of prior dealings of the parties, their acts, statements in regard, to each other and, generally, evidence showing the state of their feelings, is admissible as tending to prove motive in making the defamatory or slanderous statements.
    5. Same — Tbial—Instruction.
    Where it was alleged that defendant had said plaintiff committed the offense of arson, an instruction which restricted the jury to considering whether defendant uttered the language in good faith, with reason to believe it was true, was a correct basis and sufficiently covered the question of malice without other explanation.
    6. Same — Knowledge—Motive.
    And it was proper to allow defendant to be cross-examined as to whether he knew that a man he had brought to defendant’s place had complained against the latter for violation of the liquor law, as evidence of prior dealings has a tendency to show motive in uttering a slander.
    7. Same — Charge—Slander.
    The court was not in error, also, in instructing the jury that if they found defendant guilty of slander they must award plaintiff his actual damages, that malice might increase the actual damages recoverable, and if at the time he filed notice of justification defendant had no reasonable hope or expectation of proving its truth, they might consider it as evidence tending to show malice; but it might be considered in connection with other facts established. See 3 Comp. Laws 1915, § 12755. And it was not the same as telling the jury they might consider the notice as evidence of malice.
    8. Same — Damages—Malice.

      Held, also, that a verdict of $400 for damages for injured feelings and an added sum of $100,for malice should be decreased by the latter sum, the evidence being insufficient to prove actual malice in uttering the slanderous words , or in pleading justification, and that it should be correspondingly reduced.
    Error to Bay; Collins, J.
    Submitted October 5, 1916.
    (Docket No. 41.)
    Decided December 21, 1916.
    Case by John Rabior against Charles A. Kelley for slander. Judgment for plaintiff. Defendant brings error.
    Reversed, conditionally.

      Gilbert W. Hand and Lee E. Joslyn, for appellant.

      William A. Collins, for appellee.
    The alleged slanderous words and innuendoes are:
    “Rabior (meaning the plaintiff) burned my cottage up (meaning that the plaintiff had set fire to the cottage of the said defendant and said Elizabeth Kelley and had committed the crime of arson in so doing).”
    The consequences of the slander alleged are injury to plaintiff’s good name, fame and credit, public scandal, infamy, and disgrace among neighbors and citizens. Defendant with his plea gave notice that if he spoke the words he would prove that plaintiff had been guilty of the facts and acts charged and imputed to him by them. Upon the trial the jury returned the following verdict, which was, over objection, accepted:
    “We find for the plaintiff as follows: For injured feelings, $400; for malice, $100.”
    A judgment for $500 was entered. A new trial was asked for and refused.
    That the slanderous words were uttered by defendant, concerning plaintiff, is not denied. The significance of errors assigned and relied upon can be understood only after some relation of what the testimony tended to prove. It tended to prove that during the evening of February 25, 1915, two cottages known as the Kelley cottages and another cottage were destroyed by fire. They were summer cottages at Aplin Beach, a resort near Bay City, closed for the winter. Plaintiff conducted a store, hotel, and saloon at Aplin Beach for several years; the burned cottages being about 1,000 feet from the hotel. There was ill feeling between plaintiff and defendant. Three times plaintiff had pleaded guilty to charges of violating the liquor law, made by defendant, and had each time been punished, and upon such a plea entered to such a complaint January 5, 1915, plaintiff had been sentenced January 12, 1915, to serve, and did serve, 21 days in the Bay county jail.
    An investigation followed the burning of the cottages, in which an assistant State fire marshal took some part, a complaint was made charging plaintiff with having burned them, which complaint was made by defendant, upon the request, or advice, of the examining officers. After some further investigation, the proceeding was dismissed. Other testimony tended to prove that defendant had threatened to put plaintiff out of business, and that plaintiff, a few days before the fire occurred and after his release from jail, sought aid to do some injury to defendant or his property.
    1. Plaintiff offered in evidence the complaint and warrant in the arson case, the justice of the peace before whom the proceeding was instituted being the witness. JVo objections were entered, one that defendant was not the cause of the complaint being made and was not responsible for it, the other that there was an absolute privilege in making it. The reply to these objections was that the documents were offered to prove malice. The ruling was that the examination of the witness be concluded, the documents left in court, and the question brought up later. The record does not show that the documents were received in evidence beyond this that without further objection the complaint was later on read to the jury. Defendant requested the court to charge (thirteenth request) that the jury could not consider, in considering whether malice had been proven, the complaints made by defendant against plaintiff for violating the liquor law (which, over objection and exception, had been received in evidence) or the complaint made by him in charging arson, and in the motion for a new trial complained that the jury had not so been instructed. To the several rulings exceptions were taken.
    2. Plaintiff’s wife was a witness in his behalf. On cross-examination she testified that she had never seen her husband drunk. She was asked: “Wasn’t he two years ago an habitual drunkard?” and the answer was, on objection of plaintiff, excluded. The jury having been excused, defendant’s attorney offered to prove that in May, 1913, the witness filed her bill for a divorce from her husband, the plaintiff, in which bill she portrayed her husband as addicted to the excessive use of liquor and, inferentially, to other bad habits, and with conduct indicating a debased man, the argument made being that his feelings were not likely to suffer, materially, if he was unjustly charged with having fired the house of another. The testimony was excluded.
    3. In cross-examining defendant, it appeared that he took a man connected with a league to enforce the liquor laws to plaintiff’s, place of business in December, 1914. The question objected to was:
    “You know that Mr. Rutledge, because of what he found there in the store building that day, made three complaints in violation of the liquor law against Rabior and John Danks?” (Danks was bartender.)
    The answer was:
    “I knew he made complaints; I didn’t know how many or anything about it.”
    It appeared that defendant had quietly advised another saloon keeper of the presence of Rutledge in the vicinity.
    4. Defendant’s twelfth request to charge was:
    “I charge you as a matter of law that malice means the doing of an act or the secreting of some facts or circumstances which ought to be disclosed, and from which it can be reasonably determined that the acts and conduct were not in good faith.”
    It is assigned as error that neither this nor any other proper definition of malice was given to the jury. The thirteenth request has already been referred to.
    5. The court instructed the jury:
    “If the jury believe from the evidence and from the facts and circumstances proved on the trial that when the plaintiff filed his plea of justification he had no reasonable hope or expectation of proving the truth of it — and by a plea of justification is that plea in which he plead that the plaintiff was guilty of the burning of the cottages — then if the jury believes from the evidence that the defendant is guilty of slander, in the declaration, they may, in fixing the amount of plaintiff’s damages, regard the filing of the plea as evidence tending to show malice, and as evidence of such malice as justifies them in increasing the damages, if any, they allow the plaintiff, limiting the damages at all times however to the actual damages.”
    This is assigned as error.
    6. It is said the verdict ought not to have been received and that, in any event, the judgment ought to be reduced $100.
    7. Error is assigned upon the refusal to grant a new trial, it being contended that the verdict is against the great weight of evidence. These are the allegations of error to be considered.
   Ostrander, J.

(after stating the facts). The complaints in the criminal cases as evidence of malice. The court did not refer to them in the charge. As has been pointed out, defendant preferred a request to charge upon the subject, and he has argued at length the question of their prejudicial effect as evidence. But it also appears that the attorneys for the respective parties filed in this court a stipulation to the effect that certain matter has been inadvertently omitted from the bill of exceptions, reciting the matter so omitted. From this recital it appears that during-the argument of counsel to the jury the court said:

“Gentlemen of the jury, in respect to those three complaints for the prosecutions under the liquor law, the_ three complaints that Mr. Kelley made and to which the defendant pleaded guilty, as to those complaints I hold that the fact that Mr. Kelley prosecuted those three suits is not to be considered as evidence of malice on Mr. Kelley’s part, and it won’t be necessary to refer to it again, and counsel will be governed by what I say.”

Later the court again, in substance and effect, restated this ruling.

It has been repeatedly held that the record on appeal to this court is the matter duly certified, and that’ it cannot be amended by stipulation of counsel. This rule is adhered to. But here the complaint which appellant makes to this court is fairly answered by the admission of his counsel in the stipulation filed in this court. He admits that the jury was instructed as he contends they should have been instructed, not, it is true, in the course of the general charge, but before the general charge was delivered and in the course of an argument in which the effect of the complaints as evidence of malice was being presented by counsel to the jury.

The admission of counsel may be considered as answering the argument he makes and as accounting for the refusal, or failure, of the court to charge the jury as requested — to repeat an instruction already given and at a time when it was likely to be best understood by the jury. This does not, however, precisely answer the objection that the complaint for arson, made by defendant, was in the case and had been read to the jury and was offered for the purpose of proving malice. Standing alone, the fact that defendant signed and verified that complaint, under the circumstances attending the making of it, in view of the official investigation which preceded it, was not evidence of defendant’s malice. But this act of defendant does not stand alone. It is one of a series of acts, all of which, as well as all relations of the parties disclosed by the evidence, the jury had the right to consider.. It was not reversible error to refuse the request to charge as it was drawn nor to refuse to instruct that the jury should not consider the intent of defendant in the criminal prosecution for arson.

It was not error to refuse the answer to the question asked of plaintiff’s wife nor to refuse the offer of proof made by defendant’s counsel, especially in view of the fact that the jury.found no damages for loss of, or injury to, the plaintiff’s reputation. The testimony was offered as affecting the credibility of the witness who had been produced by plaintiff and had testified in substance that in the year 1913 she had heard defendant and her husband in a wordy quarrel in which defendant said he would put her husband out of business in a year; that after the fire her husband heard what defendant was saying about him, “didn’t act very good, never talked very much, and didn’t want to go anywhere any more; didn’t want to talk much.”

It will not be assumed because the wife of plaintiff two years before the trial regarded her husband as a drunkard and a bad man generally in his domestic relations that his feelings might not be affected by the untruthful charge that he was guilty of arson. The court offered to counsel permission to introduce evidence to meet that of the witness — to show that his feelings were not affected, as she had testified they were — and to show plaintiff’s general-reputation and character. The whole subject was one to be controlled by the exercise of a sound judicial discretion, and I think it was not abused.

There was some testimony tending to prove that defendant had a private, personal, ill feeling towards the plaintiff, and that upon the occasion when Rutledge was at the Beach was not actuated entirely by a desire to have the law enforced. Evidence of prior dealings of the parties, their acts and statements in regard to each other, and, generally, evidence showing the state of their feelings, is admissible as tending to prove motive in making a defamatory statement. This is the general rule, and answers the objection made by defendant.

Rather favorable to defendant were the statements made by the court upon the subject of malice. This court has used with approval the definition:

“Malice, in a legal sense, means a wrongful act done intentionally, and without just cause or excuse.” Zimmerman v. Whiteley, 134 Mich. 39, 45 (95 N. W. 989, 991).

See, also, Bell v. Fernald, 71 Mich. 267 (38 N. W. 910); Highway Com’rs of Eagle Township v. Ely, 54 Mich. 173 (19 N. W. 940); Long v. Tribune Printing Co., 107 Mich. 207 (65 N. W. 108).

The Century Dictionary defines malice as:

“The evil intention, either actual or implied, with - which one deliberately and without justification or excuse does a wrongful act which is injurious to others.”

In the case at bar, the court restricted the jury to the consideration of the proposition whether defend- . ant uttered the words in good faith with good reason to believe them to be true at the time he uttered them. It was not in form a definition, but was the statement of the test to be applied by the jury, and it was a statement of a fair test in the particular case.

It is said the instruction complained of is substantially identical with one condemned in Jastrzembski v. Marxhausen, 120 Mich. 677, 682 (79 N. W. 935). A comparison will show that the instructions are radically different. Notice of justification, though not maintained by the evidence, is not, of itself, proof of the malice charged in the declaration. 3 Comp. Laws, § 10415 (3 Comp. Laws 1915, § 12755). This statute—

“did not take away the right of the jury to consider whether an unsustained notice of justification might not be evidence tending to show malice, when taken in connection with the other facts established.” Jastrzembski v. Marxhausen, supra.

In the instant case the court advised the jury that if they found defendant guilty of slander they must award plaintiff his actual damages, that malice of defendant might increase, augment, the actual damages recoverable, that if when he filed the notice of justification defendant had no reasonable hope or expectation of proving the truth of it they might consider that as evidence tending to show malice. Clearly this was not telling the jury that they might consider the unsustained notice as evidence of malice. And what reasonable excuse can be given for thus reiterating a charge of crime with no reasonable hope or expectation of proving the truth of the charge? Mere belief no more excuses the reiteration than it does the original uttering of the slanderous words.

Actual damages for injury to feelings includes, of course, and under the instructions given in this case included, damages augmented, or not augmented, as the case might be, by the malice of the slanderer. The jury was instructed to report, separately, damages given for injury to reputation and those for injury to feelings. The jury found no injury to plaintiff’s reputation, for injured feelings they assessed the damages at $400, for malice they added $100. The trial court was of opinion that this was a verdict for $500 for injured feelings, and therefore added the sums reported by the jury and entered judgment accordingly. There can be no doubt that where the intention of the jury is ascertainable the court may amend the verdict, correcting manifest errors of form, and sometimes matters of substance, to make it conform to the intention of the jury. Is the intention of the jury ascertainable? In my opinion it is. The jury found the actual damages, mot augmented by malice, to be $400, and they found they should have been augmented on account of defendant’s malice in the sum of $100. Assuming there was sufficient evidence of malice, it was proper to treat the verdict as assessing plaintiff’s damages at the sum of $500.

I am not convinced that the verdict for damages not augmented by malice ought to have been set aside as opposed to the weight of evidence. But the evidence is insufficient to prove any actual malice of defendant in uttering the slanderous words or in pleading justification. The testimony need not be here repeated. It cannot be read without inducing the belief that defendant had cause for much more than mere .suspicion that plaintiff destroyed his property or caused it to be destroyed, and that a jury required to find the fact by a preponderance of evidence might so determine. It depended largely upon which of the witnesses the jury believed. Believing one set of witnesses, the inference justifying defendant is very strong.

The judgment will be reversed, unless plaintiff elects to remit $100, with costs to appellant. The said sum being remitted, it will be affirmed, without costs to either party.

Stone, C. J., and Kuhn, Bird, Moore, Steere, and .Brooke, JJ., concurred. Person, J., did not sit.