text:
    HARRISON v. GREEN.
    1. Trial — Practice—Excluding Witnesses from Room.
    In an action for negligent injuries, the exclusion of witnesses from the courtroom is held to be in the discretion of the trial court.
    2. Evidence — Photographs — Changes in Premises, or Conditions.
    Photographs of the machine and room in which plaintiff was injured are not rendered inadmissible because the witnesses for the defendant were grouped in them approximately as defendant claimed they were at the time of the injury.

    8. Same — Witnesses—Instructions to Jury.
    Where attorneys for both sides, in an action for personal injuries, submit a cause to the jury on the theory that the issue was the veracity of the respective witnesses, an instruction to the jury that there was no room for an honest mistake is open to criticism but does not warrant a reversal; the verdict being supported by a preponderance of the evidence.
    Error to Oakland; Smith, J.
    Submitted June 9, 1909.
    (Docket No. 13.)
    Decided July 15, 1909.
    Case by William Harrison, by next friend, against Geralds T. Green for personal injuries. A judgment for defendant is reviewed by plaintiff on writ of error.
    Affirmed. ■

      Devine & Snyder, for appellant.

      Patterson & Patterson, for appellee.
    Defendant is the owner of a packing house in the village of Oxford, in which there was installed a power meat chopping machine, driven by steam and operated by means of a belt running over loose and tight pulleys, governed by a hand lever, situated at or near the chopper. The power can also be turned off by means of a valve in the steam pipe situated quite handy to the machine. The chopper consists of a hopper, and attached thereto and standing at a right angle at one side is a cylinder in which is enclosed a steel auger, revolving at a speed of from 200 to 300 revolutions per minute when running, which drives the meat thrown into the hopper through holes in steel plates, attached to the front of the cylinder by means of a metal cap, against a revolving chopping knife. These steel plates have different-sized holes, and, in order to get satisfactory results, it becomes necessary to change the plates in the machine as the meat is desired chopped finer. After meat has been run through once, these plates are apt to get stuck tight, and it is impossible to get the plates out without loosening them from the inside. Plaintiff was working for defendant as a butcher, and one of his many duties was to operate this meat chopper whenever called upon by defendant to do so. The chopping machine stands in the center of the room with the cylinder part pointing toward the north. On February 22, 1908, defendant came to the packing house with a quantity of hamburger steak, and requested plaintiff to run it through the chopping machine. It was necessary to run the meat through twice. He had run it through once, and claims that, while he was fixing the machine preparatory to running the meat through the second time, the accident occurred.
    Plaintiff in his testimony described the situation and manner of the accident as follows:
    “The machine stands in the middle of the floor against a wall so that you cannot get around it. The belt runs behind the machine against the wall toward the ceiling. In order to get around the machine, one must pass in front of it. The lever is on the right-hand side of the machine looking at it from the front. When I chop meat, I stand on the left side of it; so does the tub having the meat* toward the back. I stand on the left-hand side in front of the tub and feed the machine with both hands. In order to turn the power off the machine, I reach my hand over to the left above the machine, and turn off the valve which comes through the wall. This valve turns off the steam. The belt keeps running after you have turned the steam off. The belt can be shoved from one pulley to another by the lever. The lever is on the right-hand side of the machine. In order to turn the lever off, I would have to walk around the machine to the front of it. I cannot turn off the lever in any other way. When I was chopping the hamburg steak, Mr. Green was outside somewhere. He came in as I stepped over to slow the machine down. I was going to slow it down with the valve. He walked up and pulled the lever for me. He didn’t touch the valve. He pulled the lever. That would throw the belt over on the other pulley. He was on the right-hand side of the machine. I walked over to the left-hand side to slow the machine. After the machine stopped, I had the cap off from the front of the machine, and I tried to pull the knives out, which would not come for the meat stuck around them, and I put my hand in the machine to loosen the knives up and shove that auger part out, and, when I put my hand in, Mr. Green pulled the lever. He and I were on the same side of the machine at that time. He was standing toward the wall, and I was in front of the machine. I was in front of the machine, then Green, and then the wall. I saw him turn the lever. * * * I took the cap off the front after I had this machine slowed down. Mr. Green had stopped the machine for me, and I took the cap off from the front and took the knives off, and I put my hand in the machine to loosen the knives, and he pulled the lever again. I saw him pull the lever. * * * While I was putting tny hand in, Mr. Green pulled the lever, and I was not aware of it. * * * He was standing by the lever when I put my hand in. He was alongside of me.”
    The claim on the part of the defendant is that plaintiff carelessly pushed his hand against the knives while pressing the meat into the chopper, and that defendant was not present when the accident happened. The evidence to sustain this claim is as follows: Defendant testified that he was outside the sausage room when the accident occurred ; that he had started towards the door leading into that room, and heard plaintiff “ holler;” that he ran to his assistance, grabbed the belt and lever, and stopped the machine with plaintiff’s hand fast in it; that Mr. Burkhardt came in, took the rim off with a wrench; that plaintiff and Burkhardt then turned the wheel backwards to loosen it and got his hand out; and that he (defendant) went to the telephone and called a physician. One Oyrel Oole, a boy 13 years old, testified that he was holding the rope that held the pulley; that he watched plaintiff feed the machine; that he was shoving the meat down with his hands; that he stuck his hand into the screw and “ hollered;” that defendant was standing in the door when he “hollered;” and that defendant ran up to the machine, grabbed the belt, and put the power off; and that Mr. Burkhardt ran up, got a wrench, unscrewed the rim, and took plaintiff’s fingers out. One Harold Williams, a boy 12 years of age, testified that he stood there watching plaintiff feed the meat into the machine; that plaintiff said nothing until he got his fingers caught in the machine, and that he “hollered;” that defendant was in the other room or next to the door, “ came running in almost immediately, pushing me aside, grabbed hold of the wheel and belt, and stopped the machine.” The physician, Dr. Mackinnon, testified that Mr. Green asked plaintiff how it happened, and plaintiff answered that his hand was caught while he was pressing the meat down into the machine. Defendant also testified to this conversation. Another witness also testified that plaintiff told him that he stuck his fingers in too far.
    The case was submitted to the jury, who found a verdict for the defendant.

       As to use of photographs in evidence, see note to Dederichs v. Railroad Co. (Utah), 35 L. R. A. 802.

   Grant, J.

{after stating the facts). Four errors are assigned:

(1) That the court erred in refusing to exclude all witnesses from the courtroom upon plaintiff’s motion.
(2) That the court erred in its rulings on admitting and excluding evidence.
(3) That the court erred in admitting a photograph.
(4) That the court erred in his instructions to the jury.

In civil cases the exclusion of witnesses from the courtroom during trial rests in the sound discretion of the trial court. Johnston v. Insurance Co., 106 Mich. 98 (64 N. W. 5); McIntosh v. McIntosh, 79 Mich. 198 (44 N. W. 592); 2 Shinn on Pleading and Practice, p. 39.

We find no error in the court’s rulings excluding and admitting evidence. We do not consider them of sufficient importance to require discussion.

The photograph, to the introduction of which objection was made, was taken with the two boys standing in the position in which they testified they stood at the time of the accident, and with the plaintiff standing at the machine, where the evidence on the part of the defendant placed him. It also shows the defendant standing at the door where he testified that he stood. Plaintiff on cross-examination was shown this photograph, and testi-' fied that it correctly represented the interior of the room and the situation of the machine. He then pointed out on the photograph where he stood and where the boys stood. It is claimed that the presence of these parties in the photograph rendered its admission incompetent, and that it naturally tended to prejudice the jury by placing before them in a vivid manner the claim of the defendant. I think it would be a reflection upon the intelligence of the jury to hold that they were liable to be misled or unduly influenced by an examination of the photograph. It represented the witnesses in the exact position which defendant claimed they occupied. It is conceded that the photograph would have been admissible without the presence of the persons in it. If such a photograph had been introduced and. the witnesses asked to mark in any manner the places where they stood, such evidence certainly would have been competent. The symbol or mark by which their location is indicated is wholly immaterial.

The authorities I have been able to find sustain the ruling of the court. Shaw v. State, 83 Ga. 92 (9 S. E. 768); Glazier v. Town of Hebron, 62 Hun (N. Y.), 137 (16 N. Y. Supp. 503); State v. O'Reilly, 126 Mo. 597 (29 S. W. 577); State v. Kelley, 46 S. C. 55 (24 S. E. 60).

In Shaw v. State the facts are substantially the same as in the present case. In that case persons were placed in the same positions said to have been occupied by the defendant and his accomplices. It was held not error to admit it; the court saying that they had examined the photograph, and did not see in what respect it was calculated to inflame the jury. The case was reversed on other grounds. It appeared that the evidence did not exactly locate the position of the defendant, and the court suggested that upon the new trial the State prove more certainly that the photograph represented the defendant’s position at the time of the homicide.

In Glazier v. Town of Hebron a photograph was taken of the place after a fence had been erected, and the photograph was held properly admitted.

In State v. O'Reilly three prearranged figures were grouped in the photograph to indicate the actors in a homicide. It was held admissible.

In State v. Kelley the prosecutor was shot through a window while on his bed. The charge was assault and battery with intent to kill. The photograph was taken the next day with the prosecutor sitting on the bed with his head bound in cloths in the position the State claimed he was in at the time of the shooting. The photograph was held admissible. See Dederichs v. Railroad Co., 14 Utah, 137 (46 Pac. 656, 35 L. R. A. 802, and note).

Counsel for plaintiff cite Fore v. State, 75 Miss. 727 (23 South. 710). In that case neither the statement nor the opinion of the court states what the photographs showed or the evidence explaining them upon which the ruling was made that they were inadmissible. The court in its opinion upon the point said:

" “ The pictures were not photographic representations of the scene of the lamentable tragedy. They were artistic reproductions of situations carefully planned by the State’s chief witness.”

If the facts upon which the court ruled were stated, it might appear that the ruling was correct.

The serious question in the case arises upon the charge of the court. It is urged that the trial judge clearly indicated his disbelief in the evidence of the plaintiff, and that it was impossible for the witnesses for the defendant to be mistaken, and that he impressed upon the jury his own opinion of the evidence. This allegation of error is based upon the following excerpts from the charge:

“ I feel obliged to be a little more pointed than counsel were in this. Speaking for myself, I am unable to see how all of these witnesses could be mistaken about it. ”

To this and as a part of the same sentence the court added:

“ And in my point of view it raises a square question of veracity between these witnesses, and the case has been tried upon that theory, gentlemen, by both sides.”

Previous to this excerpt, the court had stated the theory of both parties, and had stated that it raised a square question of veracity. Complaint is made to the following excerpt:

“ Speaking for myself, I do not see how there is any room for mere forgetfulness or mistake as to that.”

Just previous to this excerpt the court had stated:

“The defense, both in the opening statement of counsel and as presented by witnesses, is upon the theory that Mr. Green was not near the machine at all. Now, gentlemen, it belongs to you to determine which of these witnesses is stating the truth. Let me repeat.”

The judge then made the statement now complained of. The following excerpt is also complained of:

“Now, I go out of my way to say this to you, gentlemen, because the case calls for it: That where there are an equal number of witnesses on each side and they are of equal character, and their examination and cross-examination are apparently equal, that then you will find it impossible to tell who is telling the truth. But something like 30 years’ experience in court I have never found just such a case as that yet.”

Immediately following this the court said:

“So it becomes necessary for the jury to determine whether the testimony of one witness is to be believed as against that of several. Of course, if the testimony of several appears to be equally truthful, the witnesses are of equally good character, there is nothing about the case that will inform you or give you any clue as to whether the four are correct or the one. Then the four would naturally be believed by the jury, and the preponderance of testimony would be with the four. But sometimes it happens that the jurors are able to know or determine from the surroundings of the case or from some corroboration and from other parts of the testimony and from wit-, nesses, that the one is actually stating the truth and the three or four or half dozen or more are either mistaken or wilfully have stated an untruth. If from the surroundings of the case and from the testimony in the case the testimony of the one witness convinces you that he is telling the truth, you feel it and know it or there is a greater probability of his telling the truth, so much so that you have a belief that the other number are mistaken or have stated an untruth, then, of course, you do believe the testimony of one as against the testimony of several, and in such an event as that you are to receive the testimony of one and act upon it, and it will create a preponderance of the evidence. Why, because the term, preponderance, of itself does not depend upon the number, but it is a term used rather as denoting the character and weight of the testimony, and would be a preponderance of evidence because you believe it in your own minds as jurors, and disbelieve the testimony of the other witnesses that are opposed to it.”

Complaint is also made of the following excerpt:

“So in this case, gentlemen, if you can fairly and truthfully say that you believe the testimony of the one witness as against the larger number of the other side, then you may receive it and act upon it, and you will be warranted in saying that you find a verdict for the plaintiff based upon preponderance of evidence. But if, on the contrary, gentlemen, you do not believe the testimony of this young man as against all of these witnesses, then you cannot fairly say that he has proven his case by a fair preponderance of evidence, and he would not be entitled to any verdict at your hands, but if you do believe it, and do not believe the testimony of the witnesses opposing it, then, as I stated at the outset, he is entitled, not to a mere beggarly sum because the defendant may be able to pay, but he is entitled to a substantial, fair, and full compensation for the injury.”

Complaint is also made because the judge said to the jury that they might take into account the fact that the testimony of the plaintiff was not corroborated by any person, and stands alone. At the request of the plaintiff, the court instructed the jury that, if the testimony of the plaintiff was found to be true, he was entitled to recover, and the question of contributory negligence was not in the case. At the close of his charge, the court correctly stated the issue to the jury, saying, in substance, that, if the plaintiff had established his claim by a preponderance of the evidence, he was entitled to recover, but that, if they could not fairly and truthfully say that plaintiff had established his case by a fair preponderance of evidence, they must find for the defendant. Plaintiff’s case rested upon his own testimony alone. He was uncorroborated by a single witness or a single circumstance. His version that defendant stood by his side, and, knowing what he was doing and the danger that he was in if the machine were in operation, and deliberately turned on the power, is improbable. It appears from the instruction of the circuit judge that the case was submitted to the jury by the attorneys for both sides on the veracity of the witnesses. This statement by the court is unchallenged. The instruction must, therefore, be criticised in the light of this fact. There was no room for court or jury to find that either the plaintiff or the witnesses for the defense were mistaken. It is a clear case of deliberate falsehood on the one side or upon the other. Five witnesses, only one of whom had any interest in the result of the suit, directly and positively contradicted the uncorroborated statement of the plaintiff.

The charge of the court cannot be construed into the expression of a belief in the witnesses for the defendant. He was referring in that portion of the charge to the plaintiff’s witness upon one side and the defendant’s witnesses upon the other, and said to the jury, in substance, there is no room for an honest mistake. Either the plaintiff tells the truth and the defendant’s witnesses have falsified, or the plaintiff has falsified and the defendant’s witnesses have told the truth. That was the issue and the sole issue before the jury. Counsel had argued the case upon that theory, and the court submitted it to them upon the same theory. While the charge of the court may be subject to criticism, I do not think that it contains any prejudicial error under the circumstances, and that the judgment should be affirmed.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    PERE MARQUETTE RAILROAD CO. v. WEILNAU.
    1. Drain Law — Waters and Watercourses — Eminent Domain —Compensation.
    Drains may be constructed within the provisions of 2 Comp. Laws, §§ 4327, 4334, across the right of way of a railroad company, upon the award of reasonable compensation for the property taken and for damages sustained, including the cost of necessary bridges, pipes or culverts, to protect the roadbed of the railway.
    $. Same — Remedy—Injunction.
    An injunction will issue to restrain the attempted excavation of a drain, under a railway right of way, by the commissioner; without providing proper supports and protection for the tracks and roadbed of the railroad.

      3. Same.
    A railroad company, which proceeds to lay drain pipe under its right of way after the commencement of proceedings to construct a drain along a natural watercourse, may be required in equity by the drain commissioner to maintain the drain at its previous size and depth.
    Appeal from Monroe; Lockwood, J.
    Submitted June 9, 1909.
    (Docket No. 15.)
    Decided July 15, 1909.
    Bill by the Pere Marquette Railroad Company to restrain George A. Weilnau, drain commissioner, from constructing a drain. From a decree for complainant, defendant appeals.
    Modified and affirmed.

      McPherson, Bills & Streeter, for complainant.

      Willis Baldwin, for defendant.
   Montgomery, J.

Complainant’s right of way and track as originally laid out and built through Monroe county crossed a natural watercourse on section 19, in town 8 south, of range 8 east. Complainant’s predecessors in title constructed the roadbed with an open culvert where it crossed the natural watercourse. On January 29, 1907, an iron pipe was laid to take the place of the open culvert, and the culvert filled up. On January 10, 1907, the defendant, as drain commissioner, caused a survey to be made for the purpose of laying out and establishing a drain which would cross complainant’s right of way at the point of the culvert over the natural watercourse. Complainant had no knowledge of the proceedings to lay out the drain until after the iron pipe had been substituted for the open culvert. The drain as laid out by the defendant was more than two feet deeper than the natural watercourse where it crossed complainant’s right of way. Complainant offered to release a right of way, but refused to pay the cost of constructing a new culvert or of putting in iron pipes on the level of the bottom of the drain. Defendant proceeded to condemn a right of way for the drain across complainant’s right of way. The commissioners’ award reads as follows:

“To the Pere Marquette Railroad Company, owner of right of way through the east -J- of southwest fr. of section 19, T. 8 S., R. 8 E., from which right ,of way there is taken a strip of land lying three rods wide on each side of the center line of said drain, except where said drain crosses the track bed of said railroad company, where for a distance of thirty feet a strip of land lying five feet wide on each side of the center line of said drain is taken for excavating and to deposit excavations, according to the survey thereof; for excavating 2-100 acres, and to deposit excavations, 4-100 acres, seventy-five dollars.”

On November 8, 1907, defendant tendered complainant $75, and served upon complainant a notice in terms requiring the complainant to construct a culvert m its roadbed for a drain. Complainant refused to accept the $75, and refused to construct the culvert. Thereupon an application was made to the circuit court for the county of Monroe for a mandamus requiring complainant to construct a culvert in compliance with the order which defendant had served upon complainant. Upon hearing, the writ of mandamus was denied. The drain commissioner thereupon claimed the right to proceed to open this drain without making any provision for a culvert or bridge to sustain the complainant’s rails and ties, and commenced digging through complainant’s right of way at the point where the drain crossed complainant’s roadbed, and declared that, unless restrained by an injunction, he would continue to dig the drain through complainant’s roadbed, and would leave complainant to protect its track in such way as it might think best. Complainant thereupon filed this bill praying that defendant be permanently restrained from interfering with complainant’s roadbed without providing complainant with a suitable and safe bridge or culvert to enable complainant to continue the operation of its road without loss or damage on account of the construction of the drain. Upon hearing of the case, complainant was granted the relief prayed for, and the defendant appeals to this court.

The drain law (section 9 of chapter 8, being 2 Comp. Laws, § 4327) provides:

“ The said jury or special commissioners shall hear the proofs and allegations of the several parties in interest, and shall ascertain and determine the necessity for such drain, and for the taking of such private property for the use and benefit of the public for the purpose thereof, and the just compensation to be made therefore in each case, which compensation shall be determined without reference to any benefits that may accrue to the land in consequence of the construction of such proposed drain.”

Section 16 (§ 4334) provides:

“Whenever it is necessary to run a drain across the right of way or roadbed of any railroad, the same proceedings shall be had throughout in all respects as in cases provided in this act for obtaining private lands for the construction of drains, except as hereinafter provided. It shall be the duty of the railroad company, when notified by the county drain commissioner so to do, to make and maintain the necessary opening through said roadbed, and. to build and maintain a suitable culvert. Notice in writing to make such opening, and to construct such culvert, shall be served upon such company by leaving a copy thereof with the ticket or freight agent, or general officer of such railroad company, at least thirty days before such railroad company shall become liable.”

This section was before the court for consideration in the case of Chicago, etc., R. Co. v. Chappell, 124 Mich. 72 (82 N. W. 800). It was there held that this section manifested a legislative intent to require the company to make such improvement without compensation, and it was determined that under the Constitution the legislature had not the power to do this. The defendant contends that, although the legislature under this decision could not impose the burden upon the railroad company to construct its culvert at its own expense, the statute should be construed as imposing upon the company the duty of constructing and maintaining a culvert, and that the expense thereof is to be considered as a part of the award, and it must be inferred was included in the award.

We do not think this construction is open. The duty which is imposed by section 16 (§ 4334) upon the railroad company is the duty to make and maintain the necessary opening through said roadbed and to build and maintain a suitable culvert. The duty of constructing the ditch itself is therefore as imperatively asserted as that of maintaining the culvert. In our view, these two sections, when read together, authorize the construction of a drain across a railway right of way, but, from the very necessity of the case, the construction of such drain must include provision for the track of the railway, and this includes the construction of a culvert or bridge. This should be included in the estimate for the drain, and is a part of the necessary expense of constructing the drain.

In the present case, it is clear that the award did not intend to include the expense of constructing a bridge. In fact, it excludes it. If the concluding clause of the award, namely, “for excavating 2-100 acres, and to deposit excavations, 4-100 acres, seventy-five dollars,” is meant to include the award to the company for the service of excavating, this excludes any award for the construction of a culvert. If these words of the award are intended to designate the area of land taken, which is more probable, it likewise excludes the idea that an award for services by the railroad company was intended. It follows that the defendant was in the wrong in attempting to construct this drain without making provision for constructing a culvert and protecting the property of the complainant.

It is suggested in defendant’s brief that in any event the complainant should be enjoined from obstructing this watercourse, on the ground that the 30-inch iron pipe was not sufficient to carry the water of the drain even before it was deepened. On the other hand, it is asserted by the complainant that any obstruction of this watercourse cannot be made the subject of complaint by the county drain commissioner. We do not agree with this view. The drain law (chapter 106, § 2 [2 Comp. Laws, § 4309]) provides :

“ The word ‘drain ’ whenever used in this act shall be deemed to include any watercourse or ditch, opened or proposed to be opened and improved for the purpose of drainage, and any artificial ditch or drain, levee, dyke or barrier, or tile drain proposed or constructed for such purpose.”

And by section 3 of chapter 2 (section 4312) it is provided :

“The county drain commissioner shall have jurisdiction over all drains within his county. * * * ”

We think, therefore, that the drain commissioner has such an interest in this matter as to authorize him to invoke the aid of the court. At the time this iron pipe was put in, it was a drain under process of construction, legal proceedings for the enlargement of the watercourse having already been instituted. The complainant should be required to provide an opening equivalent to that, and of the depth of that, which existed before the construction of this drain. If the defendant, however, finds it necessary to lower the drain beyond the depth which it had before the institution of the proceedings, the complainant will be entitled to have the drain constructed at the expense of the county, and this roadway maintained by a suitable culvert.

No costs will be awarded to either party.

Grant, Ostrander, Hooker, and Moore, JJ., concurred.


text:
      In re FISCHER’S ESTATE. APPEAL OF FISCHER.
    1. Estates oe Decedents — Executors and Administrators — Compensation.
    A trial by jury of the administrator’s right to extra compensation is not contemplated by 3 Comp. Laws, § 9438.
    2. Same — Amount—Review.
    Except in a case of abuse of discretion, the amount of an allowance for extraordinary services, not required of an executor or administrator in the common course of his duty, is for the trial court.
    Error to Wayne; Mandell, J.
    Submitted June 8, 1909.
    (Docket No. 5.)
    Decided July 15, 1909.
    Alexander T. Eischer presented his final account as administrator of the estate of Emma Fischer, deceased. From the allowance of the probate court, he appealed to the circuit court. A judgment disallowing certain fees for extraordinary services is reviewed by said administrator on writ of error.
    Affirmed.

      William Look, for appellant.

      Russel, Campbell, Bulkley & Ledyard, for appellee.
   Montgomery, J.

This is an appeal from an order allowing the final account of the administrator. The probate court allowed the administrator his statutory commission of $108.77, and for extra compensation, $74.11. The claim of appeal states the ground of appeal to be that the probate court disallowed the sum of $300 for extra compensation to which he was justly entitled. The circuit court on appeal increased this extra compensation to $150; but, it appearing that the administrator had used the funds of the estate in his own business, as a condition of such allowance charged him interest at the rate" of 5 per cent.

Some errors are assigned upon rulings relating to the admission of testimony; but no reason is pointed out in the brief of counsel why these rulings were erroneous, and none occurs to us. It is entirely proper for the circuit judge to possess himself of all the information obtainable as to the manner of the administration of the estate as bearing upon the question of the administrator’s right to additional compensation.

But two points are really pressed upon the argument. The first is that. the court was in error not to permit a trial of the question on this appeal by a jury. As before stated, the appeal presented the single question of the sufficiency of the allowance for extra compensation. This question is peculiarly a question depending upon the discretion and judgment of the trial court; the statute (3 Comp. Laws, § 9438) providing that in all cases such further allowances may be made as the judge of probate may deem just and reasonable, for any extraordinary services, not required of an executor or administrator in the common course of his duty. The question is not new in this State. As was said in Mower’s Appeal, 48 Mich. 441 (12 N. W. 646), referring to this statute, it was never contemplated that when the case reaches the circuit court the judgment of a jury might be substituted for the discretion of the judge in respect to such allowances. This case is followed in Loomis v. Armstrong, 63 Mich. 355 (29 N. W. 867); Wisner v. Mabley’s Estate, 70 Mich. 271 (38 N. W. 262); and In re Brewster’s Estate, 113 Mich. 561 (71 N. W. 1085).

It is urged that upon this record the allowance is inadequate. This question was likewise a question for the trial court, except in case of abuse of discretion. See Motver’s Appeal, supra; Bacon v. Kent Probate Judge, 100 Mich. 183 (58 N. W. 835); In re Brewster’s Estate, supra. We unhesitatingly say that this is not a case of abuse of discretion on the part of the trial court, but, on the contrary, that the allowance was liberal under the circumstances presented by this case.

The judgment is affirmed, with costs.

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


author: Ostrander, J.

text:
    LUND v. SARGENT MANUFACTURING CO.
    1. Master and Servant — Contributory Negligence op Minor.
    An infant of fourteen years is not guilty of negligence •per se in attempting to remove a small block from a point near the knives of defendant’s planer for the purpose of preventing its interference with the machinery, where he had not been warned that the dust collector exerted sufficient force to draw his hand into the knives.
    3. Same — Trial—Instructions—Slight Negligence.
    No error was committed by the trial court in refusing to charge the jury that slight negligence on plaintiff’s part would bar his recovery, and instructing the jury that if he was guilty of negligence within the definition of the court, he could not recover.
    3. New Trial — Review—Appeal and Error.
    The denial of a new trial is not reversible on the ground that the verdict is against the weight of evidence, where experiments with the machinery, not shown in the record, were conducted in the presence of the jury.

      Error to Muskegon; Sessions, J.
    Submitted June 11, 1909.
    (Docket No. 63.)
    Decided July 15, 1909.
    Case by Sofus Lund, by next friend, against the Sargent Manufacturing Company for personal injuries. A judgment of $2,947.60 for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Fred L. Vandeveer, for appellant. .

      Stephen H. Clink, for appellee.
   Ostrander, J.

At tbe time the plaintiff was injured he was 14 years and 10 months old, and was employed in the factory of defendant to “ tail ” a pony planer. In the revolving knives of the planer the knuckles of his right hand were cut in such manner that the large finger was amputated, the third finger is crooked and interferes with normal use of the hand, the first and fourth fingers were cut, but not permanently disabled. He had been in the employ of defendant about three weeks, some of the time tailing the large planer. His duties were simple. As boards, one — the upper — side of which was planed in the operation, came through the machine, he took them, and laid them upon a truck placed behind him. The negligence of defendant which is alleged is the employment of plaintiff in contravention of Act No. 113, Pub. Acts 1901, §3. A motion to direct a verdict for defendant was made when plaintiff rested his case, and a similar motion was made at the conclusion of the proofs. Both were denied. A motion for a new trial was made, and was denied. Proper exceptions were taken to rulings, and the errors assigned and relied upon present, and counsel have argued:

(1) That plaintiff, as matter of law, was guilty of contributory negligence.

(2) That defendant’s seventh request to charge should have been given.

(3) That a new trial should have been ordered because (a) the verdict was against the weight of evidence; (6) excessive damages were awarded.

These matters will receive attention in the order stated.

It is the claim of the plaintiff, and his testimony tends to prove, that he was injured while attempting to remove a small piece of wood which had lodged between a roller and the bed of the machine. He supposed, he says, that its presence would, or might, interfere with proper operation of the machine, that although charged with no duty in that regard, he ought, in the interest of his employer, to remove it, and that he supposed he could remove it without danger to himself. He appreciated the danger of approaching his hand too closely to the revolving knives of the planer, but did not appreciate — was ignorant of — the force exerted by a certain apparatus connected with a hood placed over the knives, which sucked or drew into a pipe, and carried away, the dust and shavings made by the planer. In describing how he was injured, and he is the sole witness for plaintiff upon this subject, he says that as he approached his hand to the piece of wood, which he describes as a knot or block not quite the size of a silver dollar in circumference, and a little over an inch in thickness, which lay some five inches from the nearest point reached by the knives, and somewhat below them, his hand was suddenly drawn against the knives by the force exerted by the dust-collecting apparatus. He knew there was some force there, because he saw it in operation, and had before that time, when the knives were not revolving, held or tossed shavings sufficiently near it to have them drawn into the pipe. He had been advised of no danger except the obvious danger of coming in contact with the moving machinery, and, with or without warning, he appreciated the necessity of keeping his hands away from the revolving knives.

It is contended that the case is ruled by Beghold v. Auto Body Co., 149 Mich. 15 (112 N. W. 691, 14 L. R. A. [N. S.] 609). If plaintiff knew, or ought to have known, that the dust collector exerted a force which would pull or suck his hand into the knives, we think the contention should be allowed. Assuming his ignorance of this danger, it cannot be said, as was said of the plaintiff in that case, “he was needlessly, inexcusably careless.” What he did was a natural thing for any employe to do, especially was it the natural act of a bright boy less than 16 years old, who was interested in his employer’s affairs, and who supposed he could, without any risk, accomplish what he sough't to do. If he had been acquainted with the dangerous character of the act, it may be supposed he would not have attempted it. The question of plaintiff’s negligence was for the jury.

Defendant’s seventh request was:

“ If you find that the injury which plaintiff received was caused as a result: of the negligence of the defendant in hiring him when under the age of 16, and setting him at work dangerous to life and limb, still you cannot return a verdict in his favor if you find that he was guilty of any negligence, even though slight, which contributed to his injury, as the doctrine of comparative negligence is not recognized in this State.”

The court gave the instruction, modified by the omission of the words “ even though slight.” The criticism made is that the jury might have concluded that they were permitted to compare the negligence of plaintiff with that of defendant. In the same connection the court said to the jury:

“Was the plaintiff himself guilty of negligence which contributed to his injury ? If he was, he cannot recover, and your verdict will be for the defendant in this case.”

The court had previously instructed them that:

“ Negligence is the commission or omission of some act which a reasonably prudent person would or would not have done under like and similar circumstances.”

If plaintiff was negligent, it was because he attempted, as he did, to pick up or dislodge the knot. If his story is believed, this was not an imprudent act, unless he knew, or had good reason to believe, that the suction created by the fans in the dust collector made it imprudent. He denies such knowledge, and denies that he was informed upon the subject. On the other hand, the defendant’s negligence was established if the jury found that the plaintiff was employed at work dangerous to life or limb. Upon the whole, in view of the age of plaintiff, which the jury had the right to take into account, we think the charge given was a better statement of the applicable law than if the omitted words had been used. In any event, reversible error is not made out.

If our judgment were to be formed from the testimony of the witnesses, we should regard the correctness of the ruling refusing a new trial as most doubtful. The weight of evidence, so far as the record discloses it, appears to be strongly against the theory that the force exerted by the dust collector sucked or drew plaintiff’s hand to the knives. But it appears that at the request of counsel for both parties the jury visited the defendant’s mill, and there saw the planer in operation, and conducted various experiments. We do not, and cannot, know how these experiments affected the judgment of the jurors. It is a portion of the testimony submitted to them which we cannot weigh.

The damages awarded are not so clearly excessive as to require a reversal of the judgment and a new trial.

The judgment is affirmed.

Grant, Montgomery, Hooker, and Moore, JJ., concurred.


author: Grant, J.

text:
    GARNSLEY v. BOYCE.
    1. Master and Servant — Amendments—Pleading.
    A declaration which charges that a guard on a mangle had been removed, may be amended by adding a new count which ■ alleges that the guard had become defective and out of repair, whereby plaintiff was injured.
    2. Same — Defective Machinery — Warning and Instructing-Servant — Assumption of Risk.
    The risk of a loose and insufficient guard is not assumed by a servant who is set to work on the defective mangle without any warning of the danger, which the evidence tended to. show was not obvious.
    Error to Calhoun; North, J.
    Submitted June 11, 1909.
    (Docket No. 68.)
    Decided July 15, 1909.
    Case by Mina E. Garnsley against Esther L. Boyce for' personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Arthur B. Williams and Howard Green, for appellant.

      Stewart & Jacobs and F. A. Kulp, for appellee.
    Defendant owned and carried on a laundry. Plaintiff, a woman 28 years of age, was her employé. On June 12, 1905, plaintiff was feeding a mangle, i. e., was running butchers’ aprons throngh it, heavily saturated with starch. Her hand in some way got between the rollers, and was so badly lacerated that amputation of a large part of it became necessary. She instituted this suit to recover damages, alleging negligence on the part of the defendant.
    The declaration contains two counts. The first alleges the duty of the defendant to give plaintiff instructions as to the use of the machine and failure to so do, and negligence in removing the guard or protector from said machine. In the second count she alleges that said machine was built or constructed with a guard, that it had been removed, and that she had no warning of the danger of its unsafe condition because of the absence or displacement of said guard. It appeared from her own testimony upon the trial there was a guard, but that it was in an unsafe and defective condition.
    After plaintiff had rested her case, defendant’s counsel moved the court to direct a verdict for the defendant on the ground of a fatal variance between the declaration and the proofs. This motion was denied. The defendant then introduced her proofs, and, when both parties had rested, counsel for defendant again moved the court to direct a verdict for the same reason, and also for the reason that plaintiff assumed the risk; the danger being obvious. This motion was denied, and the case submitted to the jury, who rendered a substantial verdict for the plaintiff.
    After the jury had retired, plaintiff’s counsel asked leave to amend the declaration by inserting a third count as follows:
    “ Plaintiff further alleges that said machine had, at the time of the injury complained of, become defective in that the adjustment of said guard had become worn and defective and loosened and misplaced, thereby exposing the operator of said machine to great danger and injury because of said defect.”
    The amendment was allowed.
   Grant, J.

(after stating the facts). The statute of amendments (3 Comp. Laws, § 10268) is very broad, and in the furtherance of justice has been liberally construed by this court. See Croze v. Land Co., 153 Mich. 363 (117 N. W. 81). How the pleader in this case should have committed the mistake in alleging that there was no guard when in fact there was one it is difficult to understand. The case was tried throughout upon the theory of a defective and unsafe guard. Defendant makes no claim to have been taken by surprise. There was no request to recall the jury and ask for further time. Under the circumstances, we think the amendment was permissible.

It is strenuously urged on behalf of the defendant that the danger in feeding clothes into this mangle was obvious, that plaintiff had worked in this and other laundries, and that she therefore assumed the risk. It appears from her testimony that she had once, some time before, worked for a few weeks in another laundry upon a mangle different from that of the defendant, upon which there was scarcely a possibility of the hands of the feeder getting into the rollers. That machine, she testified, had an apron which carried the clothes into the rollers and a guard, and she could not get her hands within about a foot of the rollers.- In this case the rollers were only an inch and a half or two inches from the guard. She testified that the starch was sticky, that the aprons were heavy with it, and that as she gave the apron (the fourth one which she fed to the machine) a shove, as is customary, her hands stuck to the apron, went under the guard, and info the rollers. She also testified that this was the first occasion in which she had been called upon to feed the mangle in defendant’s laundry ; that no instructions were given her or information of any latent danger, or that the guard was defective or out of repair.

One Frank Dunham, who was at the time defendant’s foreman, described this machine and the defect as follows:

“ There was a guard in front of the first padded roll, probably about two or three inches in front of it, fastened to the frame of the machine by little brackets with a slide, and could be raised and lowered, and the guard was fastened to those brackets with screws. That guard was for two purposes — one to keep their hands from between the rolls, and the other was to guide the strings along. We had to put strings along the padded rolls in order to keep the goods from following them along, and there were little eye screws in the guard that the strings ran through. If the guard was in the position it ought to be, it would not be more than one-half to five-eighths of an inch over the feeding board. It was kept in that position by screws that fastened it in the slides in the end of the machine to brackets.

“Q. On this day in question what was the position of this guard and its condition ?

“A. Well, the mangle was in poor condition all the way through. It was an old mangle. If the guard was left to drop down, as it naturally would, with nobody touching it, it would be pretty near in its right place, but we had trouble with if, and could not keep it in place. We would have to stand there with a screw-driver all the time to keep these screws tightened up, and you could shove it up by shoving your hand under it. The screws were at either end of the mangle in those little brackets that fastened it to the frame. It was not possible on the day in question to screw them so they would stay permanently tight — not with what we had to do with. It could have been made to stay there if they had took the proper method. It could have been bolted there so that it would have stayed. This guard I know was loose most of the time. It was loose when I went there. It might have been tight once in a while right after we tightened it up, but it would come loose again right away. I went there in February previous to the accident. I couldn’t tell how often I tightened that up while I was there. My duties were such that I didn’t have time to keep watch of the mangle all the time. I had other work to do.”

Similar testimony was given by another employe, Mrs. Finch. She testified that the guard frequently became loose, that they did not then use it until it was tightened, and that, when it became loose, they notified the superintendent, Mr. Boyce. It is manifest, according to the evidence on the part of the plaintiff, that, if this guard had been set at the proper height from the mangle board, plaintiff’s fingers could not have reached the rollers. Had plaintiff worked for some time as had the plaintiff in the recent case of Butler v. Frazee, 211 U. S. 459 (29 Sup. Ct. 136 ), she undoubtedly should be held to have assumed the risk. But she had no information or knowledge of the defective condition of the guard. Her experience in another laundry with another machine had taught her that she could not get her hands past the guard and into the rollers. If the jury believed the testimony of plaintiff’s witnesses, this guard was seriously defective and dangerous, and neither the defect nor the danger was obvious to one placed to work upon the machine for the first time. No complaint is made of the instruction of the court, provided there was a case for the consideration of the jury, neither could there be, for it was exceedingly clear as to the circumstances under which it was the duty of defendant to instruct the plain.tiff how to guard against dangers not obviously apparent, under what circumstances plaintiff assumed the risk, and when she would not, and as to the negligence of defendant and the contributory negligence of the plaintiff. All the questions of fact were properly submitted to the jury.

The judgment is affirmed.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


text:
    LIGHTNER v. PRENTIS.
    Appeal and Error — Parties Entitled to Appeal — Judgments —CONOLUSIVENESS AS TO PRIVIES.
    In proceedings for a writ of assistance to obtain possession of real property sold under a decree in chancery, a claimant of title not a party to the suit must show that his title was derived from a different source than the parties to this suit or that it was obtained prior to the filing of the lis pendens, in order to appeal under Act No. 340, Pub. Acts 1907.
    Appeal from Wayne; Murphy, J.
    Submitted June 10, 1909.
    (Docket No. 35.)
    Decided July 15, 1909.
    Petition .by Clarence A. Lightner against John F. Prentis, James T. Keena, trustee, and Lawrence Richard for a writ of assistance. From an order granting the writ, Browse T. Prentis, claiming ownership, appeals.
    Affirmed.

      Keena, Lightner & Oxtoby, for complainant.

      Browse T. Prentis, in pro. per.

   Grant, J.

After the decision in this case by this court (Chapoton v. Prentis, 144 Mich. 283 [107 N. W. 879]), the case was remanded to the court below for further proceedings in accordance with that opinion. The defendant John F. Prentis did not comply with that decree, and the case proceeded to a decree of sale thereunder, and Clarence A. Lightner became the purchaser at said sale. The sale was duly reported to the court, was confirmed, and a commissioner’s deed duly executed and delivered to Mr. Lightner on March 5, 1908, and duly recorded. On May 8, 1908, Mr. Lightner caused a demand for the possession of said premises to be made upon one Lawrence Richard, who was then in possession of the premises. Mr. Richard refused to surrender possession, nlaiming that he was a tenant of Browse T. Prentis. Thereupon Mr. Lightner filed a petition for the writ of assistance against Mr. Richard, and, on October 26, 1908, the circuit court in chancery entered an order that the writ of assistance issue. From that order Browse T. Prentis, who now claims to own the premises, claims to have appealed. The record does not show any claim of appeal, or bond upon appeal, or any proceeding looking to an appeal. The record contains: The petition of Mr. Lightner setting forth the transactions since the former decree of this court; the affidavit of one Brown who made the demand upon Mr. Richard in behalf of Mr. Lightner; an affidavit of Browse T. Prentis that he is the present owner of the land, and that Mr. Richard is his tenant, and that he has filed a bill in the circuit court in chancery attacking the validity of Mr. Lightner’s title and asserting his own; the affidavit of Mr. Richard that he is the tenant of Mr. Prentis, and claims no other rights therein, and denying that Mr. Brown exhibited to him a deed of the premises or an order of the court, and that he did not demand possession; a transcript of the case, signed by Judge Murphy, reciting that the petition for the writ of assistance came on to be heard October 26, 1908, that Browse T. Prentis appeared for Mr. Richard for the purpose of making an objection, and that Prentis further stated that if he had the right to appear for anyone else he did so appear, that certain affidavits were read and order made, and a copy of said order. But the record shows no appeal to this court. Mr. Lightner, however, has treated the case as though an appeal were duly taken.

When the original suit was commenced by Mr. Chapoton, a Us pendens was recorded in the office of the register of deeds on March 81, 1902. The connection of Mr. Browse T. Prentis, the present alleged owner and appellant, with the case, fully appears in the opinion in 144 Mich. 283 (107 N. W. 879). It appears by that suit that ■when it was begun the title was in John F. Prentis, the brother of the appellant. That decree, the sale, and the deed thereunder are binding upon the then owner and all those who subsequently obtained an interest in the property. Mr. Prentis does not claim that he obtained any title or interest in the property prior to the institution of that suit. He was not in possession. If as a party interested he was entitled to take an appeal, though not a party to the suit, under Act No. 340, Pub. Acts 1901', it was his duty to show that his title was not acquired after this litigation began, or that he had a title independent from that of the parties to the litigation. Otherwise a party desiring to prolong litigation might obtain a title or interest from a party to the suit and then claim an appeal.

The decree and sale were binding upon the parties and their privies. Mr. Prentis should have shown that he was not a privy. Not having done so, he is clearly not entitled to appeal from the order allowing a writ of assistance.

The order is affirmed, with costs.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


author: Blair, C. J.

text:
    ROBERGE v. De LISLE. De LISLE v. WAYNE CIRCUIT JUDGE.

      1. Appeal and Error — Bill op Review — Extension of Time to Appeal — Contents of Record.
    Stenographer’s minutes of the testimony cannot be considered on a petition for leave to file a bill of review, or on a petition for mandamus to obtain an extension of time for appealing unless the minutes are made a part of the petitions.

      2. Bill of Review — Leave to File — Appeal and Error.
    A refusal of leave to file a bill of review in a suit in chancery will only be reversed for an abuse of discretion.
    3. Same.
    Use of a bill of review as a substitute for an appeal, after the time for taking an appeal has expired, is not permissible.
    4. Mandamus — Extension of Time to Appeal — Praotioe.
    An application for an extension of time in which to perfect an appeal is in the discretion of the trial court which will not be overruled on mandamus except in case of abuse.
    5. Same.
    It is not an abuse of the discretion of the circuit court to refuse an extension of time to perfect an appeal which had been lost because of alleged neglect on the part of solicitors for a defendant in a cause which was fairly tried, where the equities were found to be with the complainant, and it was further found that justice did not require a revision.
    Appeal from Wayne; Donovan, J.
    Submitted June 15, 1909.
    (Docket No. 104.)
    Decided July 15, 1909.
    Bill by Josephine Roberge, administratrix of the estate of Rose Bousquet, deceased, against Rose D. De Lisle and another for an accounting: On petition of defendant Rose to file a bill of review. From an order denying the petition, petitioner appeals.
    Affirmed.
    Mandamus by Rose D. De Lisle to compel Joseph W. Donovan, circuit judge of Wayne county, to vacate an order denying an extension of time to perfect an appeal.
    Writ denied.

      James F. Hill (Ward N. Choate, of counsel), for appellants.

      Dwyer & Dwyer (Hunt & Altland, of counsel), for appellee.
   Blair, C. J.

This case involves, first, an appeal from the order of the Wayne circuit court, in chancery, denying defendants’ application for leave to file a bill of review ; second, a petition for the writ of mandamus to require the circuit judge to vacate his order denying the petition of defendant Rose De Lisle for an extension of the time in which to settle the testimony and complete her appeal.

The bill of complaint sets up that, by the fraud and undue influence of defendants, their mother, Rose Bousquet, was induced to sell her real property for $2,600, deposit the same in bank in the name of defendant Rose D. De Lisle, and that the said Rose, without the knowledge or consent of her mother, withdrew the money from the bank, and invested it in real estate, the title to which she took in her own name. The bill prays, among other things, for an accounting, and that the defendants be decreed to pay to complainant whatever may be found due to be distributed among the heirs of Rose Bousquet. The case was heard upon pleadings and proofs in open court and decree was entered in favor of compláinant, September 16, 1908. Defendants wei*e represented by other solicitors until the present solicitors were substitued in February, 1909. On December 10,1908, a prcecipe for enrollment of the decree was filed, and on December 11, 1908, the decree was enrolled, a prcecipe for fieri facias was filed, and execution issued.

The first petition for an extension of time was filed February 23, 1909, and alleges as follows:

“Petitioner further shows that, since the trial of this cause, her counsel have led petitioner to believe that petitioner had a meritorious cause, and that the same should be appealed to the Supreme Court, and that they were working upon the appeal, and that there was still plenty of time in which to complete said appeal; that in pursuance with such advice she has gone to great expense towards making such an appeal, obtaining, and paying for the 300-page transcript of the stenographer’s notes, besides other various expenses thereto. Petitioner further shows that, on becoming dissatisfied with her counsel, she, on the 1st day of February, 1909, paid them in full for their services, obtaining a substitution of solicitors; that they, at this time, still claimed that there was yet time in which to appeal. Petitioner further shows that, on immediately taking the case to her present counsel, she is by him informed that the time for appeal expired on the 26th day of October, 1908. Petitioner further shows that she is also informed by her present counsel that she has a just and meritorious cause that should be appealed. It is further shown that the decree in this cause is a lien upon certain real estate, so that no harm can befall the complainant while the appeal. is being-taken. Your petitioner, believing that this honorable court will not permit a litigant to be unjustly deprived of a right to appeal through the fault of her counsel, therefore prays that she be granted a reasonable time in which to perfect her appeal in this matter.”

Affidavits were filed in support of and against the petition. The petition was denied. On March 18, 1909, “to eliminate any possible question ” as to the filing of a certain affidavit of February 23d, which was objected to by complainant’s solicitors, defendant Rose De Lisle filed a second petition for an extension of time, and on the same day the petition for leave to file the bill of review was filed. The petition for leave to file the bill of review was denied for the following, among other, reasons:

“(4) That the original cause was carefully and ably tried and fully presented by counsel for petitioner upon the hearing of the same.

“ (5) That the opinion, decision, and the decree based thereon were in accordance with the testimony produced at the hearing.

“ (6) That it does not appear to the court herein that justice requires a revision of the case.

“ (7) That there is no error of law appearing on the face of the decree for which a bill of review should be allowed to be filed.

“ (8) That the alleged new facts, claimed to have been discovered since the decree was entered in this cause, are not sufficiently material to invoke the discretion of this court to reopen the case and permit the filing of a bill of review therein.

“ (9) That it does not appear to the court that it was impossible for the said petitioner to produce the alleged new facts at the time the decree was rendered in this cause.

“ (10) That the alleged newly-discovered evidence was, or might have been by reasonable diligence, known to petitioner and her counsel at the time of the hearing of the original bill.

“ (11) That the petition for leave to file a bill of review is being used as a substitute for an appeal in this cause.”

The second petition for extension of time was denied for the reasons, among others, following:

“ (4) That the original cause was carefully and ably tried and fully presented by counsel for petitioner upon the hearing of the cause.

“ (5) That the opinion, decision, and the decree based thereon were in accordance with the testimony produced at the hearing.

“(6) That the showing made by petitioner in the application herein is insufficient in matter and form to warrant this court in granting the order asked for.

“ (7) That it does not appear to the court herein that justice required a revision of the case.

“ (8) That the equities in the matter herein are with the complainant, and not with the defendant petitioner herein, and that the discretion of this court in the matter of this application, under all thé facts and circumstances herein, ought to be exercised in favor of the complainant and against the defendant.”

Counsel for appellant and relator presented for our examination upon the oral argument, and comment in their briefs upon, testimony and rulings of the court as shown by the stenographer’s transcript. The petitions were not based upon such transcript, and we, therefore, cannot consider it. The power of the court in granting or denying an application for leave to file a bill of review is largely discretionary, and his determination ought only to be overruled where such discretion has been abused. Stockley v. Stockley, 93 Mich. 307 (53 N. W. 523).

The substantial basis for the application for leave to file the bill of review is newly-discovered evidence, and we are satisfied from the affidavits with the correctness of the court’s determination that the alleged newly-discovered evidence might have been discovered by the use of reasonable diligence. We also agree with the finding “that the petition for leave to file a bill of review is being -- used as a substitute for an appeal in this cause.”

It was said in Simmons v. Conklin, 129 Mich. 190 (88 N. W. 625):

“ It is unfortunate that a party should lose his opportunity to appeal without his own fault, but we cannot relieve, in such a case as this, without practically nullifying the statute. While, as shown in Barnes v. Kent Circuit Judge, 97 Mich. 212 (56 N. W. 599), this petition was seasonably made, it is apparent that it is being used as a substitute for an appeal, and it cannot be granted upon such a ground. The court will be slow to grant a petition for leave to file a bill of review in a case where the time for taking an appeal has been allowed to pass before filing it.”

We think there was no abuse of discretion in this matter.

The principal ground for the petition for an extension of time to appeal is the negligence or default of defendants’ solicitors in not taking the appeal. While we might not have been disposed to question the exercise of his discretion if the circuit judge had granted this petition on the ground that defendant had been deprived of her appeal because of the default of her solicitors, and without fault on her part (see Merriman v. Jackson Circuit Judge, 96 Mich. 603 [55 N. W. 1021]), it does not follow that the court abused its discretion in denying the appli-

cation. Defendant has had her day in court. The circuit judge finds that the case “ was carefully and ably tried and fully presented by counsel for petitioner,” that justice does not require a revision of the case, and that the equities are with the complainant, and not with the defendants. Mrs. Bousquet left, besides Mrs. Roberge and Mrs. De Lisle, four other adult children, who, under the decree, will share alike in the small estate, which is likely to be dissipated if this litigation continues. The application for an extension of time is addressed to the sound discretion of the court, and we are unable to find any abuse of such discretion. Lake Shore, etc., R. Co. v. Branch Circuit Judge, 116 Mich. 399 (74 N. W. 529); Carrier v. Emmet Circuit Judge, 155 Mich. 344 (119 N. W. 575).

The orders of the circuit court are affirmed.

Grant, Montgomery, McAlvay, and Brooke, JJ., concurred.


text:
      In re POPPLETON’S ESTATE. APPEAL OF POPPLETON.
    1. New Trial — Weight op Evidence.
    The verdict sustaining the Validity of a last will and testament of an aged woman of 92 years is held not to be against the weight of the evidence.
    2. Wills —Validity—Motive —Unreasonable Disposition op Estate.
    A will which disinherits a daughter who had received from the testator and other sources an equal amount with her brothers, is not an unnatural or unreasonable disposition of the estate.

      3. Same — Motive—Undue Influence — Inoompetenoy.
    It is not error prejudicial to the contestant to instruct the jury that they might find a motive for excluding a daughter from a share in the property of her mother in the fact that the daughter removed property from her mother’s home without permission, or in the fact that she used unkind language in an interview with the mother; no motive being necessary to warrant the testatrix in disposing of her property as she might see fit.
    4. Trial — Wills—Undue Influence.
    Argumentative statements by the trial court to the jury that proponent has no such interest in the will as his brother, who was a beneficiary, accompanied by statements to the effect that proponent had on certain occasions, not shown by the testimony, conducted himself laudably, were prejudicial error upon an issue of undue influence and mental incompetency, where the proponent had been his testator’s confidential adviser and had failed to take the stand to rebut the presumption of undue influence.
    Error to Oakland; Smith, J.
    Submitted June 17, 1909.
    (Docket No. 12.)
    Decided July 15, 1909.
    Herbert A. Poppleton presented for probate the last will and testament of Sarah Poppleton, deceased. The will was allowed in the probate court, and Ella Poppleton appealed to the circuit court. A judgment for proponent is reviewed by contestant on writ of error.
    Reversed.

      Robert M. Brownson, for appellant.

      John H. Patterson and Beaumont, Smith & Harris, for appellees.
   Blair, C. J.

Sarah Poppleton died at her home in the village of Birmingham, Oakland county, on June 3, 1907, at the age of 92 years. She left a will, executed March 4, 1891, to which had been added three codicils. By the will testatrix gave one-fourth of her estate to her son, Edgar Poppleton, in trust, to pay the net income thereof to the contestant, her daughter Ella, during her lifetime; the principal, after Ella’s death, to go to Edgar ■and his brother, Herbert. The remaining three-fourths of her estate she willed to Edgar and Herbert equally.

The first codicil, executed February 5, 1895, reads as follows:

“ Up to this date I have given my son Edgar C. that •portion of my estate which I wish him to have. What is left he will report faithfully, and that part I wish divided according to the full terms of this will among the other two children. But this is not intended to deprive said son Edgar C. from heirship right, in case of the death of Herbert or Ella.”

The second codicil, executed December 26, 1896, provided, in substance, that if Ella or Herbert should contest the will or codicils, or if Ella should attempt to remove the trustee named therein, their share or shares thereunder should be revoked and go to others. December 1, 1904, testatrix executed a third codicil containing the following provisions:

“First. I hereby revoke such provisions of my said last will and testament as gives to my daughter, Ella, any share or portion of my property and I hereby leave her nothing by my last will and testament.

“Second. All the property which my daughter, Ella, would have been entitled to at my death under the provisions made for her in my said last will and testament, if the same were not hereby revoked, I give and bequeath to my sons, Edgar C. Poppleton and Herbert A. Poppleton, in equal shares.

“Third. I have already delivered my securities to Edgar C. Poppleton with instructions to make such a division between himself and my son Herbert A. Poppleton.

“Fourth. I request that my said sons pay to my said daughter, Ella, such a sum of money annually as each may deem best, on or about the first of January of each year during her life, but this is a request merely and it is not obligatory upon my said sons nor a condition of this instrument.”

At the time of her death testatrix’s estate amounted to about $80,000, and was handled, and had been for many years, by Edgar as her confidential adviser and business agent. Many years before contestant had received, under the will of her aunt, $18,000, which, under her father’s management, had increased to $42,000, and after the death of her father was handled for her by her brother Edgar. In September, 1893, Mrs. Poppleton transferred to contestant $5,000 in mortgages, about the character of which transfer a disagreement later arose between Ella and the other members of the family. The facts with reference to this matter will be found sufficiently stated in our opinion in the case of Poppleton v. Poppleton, 143 Mich. 208 (106 N. W. 703), where we held that the evidence established a gift of the securities themselves as claimed by Ella, and not merely of the interest, as claimed by the other members of the family.

The will and codicils were contested in the probate and circuit courts, on the grounds of mental incompetency of the testatrix, and fraud and undue influence practiced upon her by her son Edgar. The papers were admitted to probate in both courts, and to reverse the judgment of the circuit court contestant prosecutes her writ of error in this court.

The greater portion of contestant’s brief is devoted to the discussion of the errors assigned upon the refusal of the trial judge to grant her motion for a new trial, for the reasons: First, that the verdict was against the clear weight of the evidence; second, that in view of Edgar’s confidential relations with testatrix the burden rested upon proponents to show that there was no undue influence exerted, and proponents failed to show, by a preponderance of the evidence, that the codicils were not the result of undue influence.

Our examination of the record has satisfied us that the trial judge did not err in refusing a new trial upon the grounds urged. It would serve no useful purpose, and unduly extend this opinion, to enter upon a discussion of the voluminous testimony. A sufficient motive for the third codicil might well be found in contestant’s treatment of her mother, and the methods she adopted to secure evidence for future use. There was testimony also to the effect that she thought Ella had enough. Mrs. Dane Poppleton testified:

“ She frequently spoke to me about her property, and about the way in which she wished it to be divided. She said that what she had left she wished Edgar and Herbert to have. She considered Ella had had enough.”

It was not necessary, however, that testatrix should have any motive for making her will as she thought fit, apart from her own desire. The record indicates that if the last codicil stands, contestant will have had about as much as her brothers. Under such circumstances, there was nothing unnatural, or even unreasonable, about her final disposition of her property.

The principal witness as to facts implying undue influence was the contestant herself, whose testimony the jury might have considered seriously impeached by the disappearance from her diary of sentences which she had read therefrom in probate court, and by the appearance of passages therein which did not appear in her testimony in the probate court. She also contradicted herself in important particulars. The preponderance of the evidence is strongly in favor of the mental competency of the testatrix at the time she executed the third codicil; that she was a woman of strong will, and insisted upon having her way, and her changed attitude towards contestant can be reasonably explained by the methods adopted by contestant in endeavoring to secure her property.

The 17th assignment of error challenges the correctness, of the following portion of the charge:

“If you believe from the testimony in this case further that Sarah Poppleton was influenced to make, the codicil December 1, 1904, by reason of the actions or conduct of her daughter with reference to having' the trusteeship removed from her father’s estate, or by her actions with reference to obtaining the $5,000 fund, claimed by Sarah Poppleton to have been created for Ella to have the use and interest thereon during her life, or by reason of Ella Poppleton removing things from her mother’s house, or taking the silver away, without her knowledge, or of talking to her mother in such a manner as no daughter should talk to a parent, and leaving her mother agitated and in tears after at least one interview with her, then you may find that these things, or any of them, might be sufficient motive for the making of such a codicil.”

Properly interpreted, wefind no prejudicial error in this portion of the charge. There is abundant evidence in the wills themselves of both parents, as well as .in extraneous testimony, that they regarded the trust provisions thereof as essential, and the efforts of contestant to secure a discharge of the trust provisions might properly be considered by the jury on the question of motive. We do not understand the reference to the $5,000 fund to mean that the bringing of suit by contestant to enforce her just rights would furnish a sufficient reason for disinheriting her, but that the course pursued by contestant in preparing for the bringing of suit might furnish such reason. This is made evident by a preceding portion of the charge, in which the court said :

I further charge you that this contestant had the right to make such demand upon her brother for the return to her of this property; and, if you find as a matter of fact from the evidence in the case, that at the time of the execution of this last codicil, on December 1, 1904, Edgar C. Poppleton did make use of this demand of the contestant for the return of her property to poison the mind of his mother against her, and that the testatrix came to believe that the claim of the contestant so made was an unjust and unwarrantable claim, and that she acted upon that belief, and that it was the cause of her disinheriting her daughter, then I charge you that was such a mental delusion as would avoid this codicil, and your verdict should be for the contestant as to this codicil.”

Counsel for contestant seems to confine the reference to removing things from her mother’s house to the furniture removed some months after the making of the third codicil. There was other property taken before that date, which the court may have referred to.

There was testimony to sustain the portion of the charge covered by the 25th assignment of error, and it was for the jury to find where the preponderance of the evidence was.

The '26th and 27th assignments of error relate to the following portions of the charge:

“ Now, I think you will find it impossible, gentlemen, to satisfactorily get at the proofs of these contentions, except by a review of the history of this family. In May, 1887, although it has not been spoken of directly, but still I think nobody will dispute it, that in May, 1887, either Orrin Poppleton, or one of the boys, or all of them, had a store at Birmingham. Finding a burglar in the store at 1 or 2 o’clock in the morning in May, 1887, Edgar Poppleton proceeded to try to capture the burglar. He went to the rear entrance of the store where the.burglar had entered, with his revolver in hand, and calied to him to come out, and he came out. Instantly on approaching the door he fired at Edgar, without hitting him. Edgar immediately fired and killed the burglar, but the excitement and shock of the encounter resulted in what counsel on both sides say is his total deafness. * * * On February 5, 1895, when the first codicil was made Mrs. Poppleton uses this language — I quote from the codicil verbatim — ‘Up to this date I have given my son Edgar C. that portion of my estate which I wish him to have.’ The language is very brief, you will notice, gentlemen, so that Edgar’s share is not now entirely dependent upon this will, but the allowance of the will may strengthen his title to his share, but according to this codicil he has already received it, and received it back prior to 1895. So that he now has no such interest in this will as his brother Herbert, yet counsel denounces him as bringing about the making of this will. The petition for the probating of this will, if I recall correctly, was not made by Edgar, but by Herbert. Edgar as her executor contends for the allowance of the will, and he may have some other interest in the estate, I know not how much, but from appearances, gentlemen, of these papers apparently he has no such interest in their allowance as his brother Herbert.”

Of these assignments counsel for proponents say in their brief:

“It is respectfully submitted that the charges covered by these assignments were entirely proper. But whether so or not, the error, if any, was so immaterial and trivial that it could not possibly have influenced the verdict.”

We are unable to take the view expressed by counsel. Standing alone, the statement of the court as to the cause of Edgar’s deafness, though nowhere mentioned in the testimony, might be of no importance, but when read in connection with the other portion of the charge quoted, its effect might be considerable. The heroic conduct of Edgar as described by the court would naturally inspire sympathy and admiration in the minds of the jurymen, which would not attach to deafness alone occasioned by a more prosaic cause. Considering this in connection with the statement of Edgar’s minor interest compared with that of Herbert’s “ yet counsel denounces him as bringing about the making of this will,” we cannot say that the description could have had no prejudicial effect.

In another place the court said:

“By the original will of Sarah Poppleton she [Ella] was given .in trust during her lifetime the use of one quarter of the mother’s estate; later the use during life of $5,000 in securities, being the $5,000 spoken of here. This she has, as I have stated, succeeded in securing absolutely.”

If these passages in the charge were not designed to create prejudice against contestant, who submitted herself as a witness, and a friendly regard for Edgar, who did not, nor did Herbert, take the witness stand, they were certainly admirably calculated to create such an impression.

The court charged the jury upon the subject of undue influence — which, in reality, was the important issue before the jury—

“ It appears from the testimony in this case that Edgar C. Poppleton, since the death of Orrin Poppleton in March, 1893, had had complete charge of the property and securities of his mother, and that since that time he has acted as her confidential adviser and business agent, and that by the terms of the instruments here presented as the last will and testament of the testatrix, he and his brother, Herbert, are named as the chief beneficiaries. I, therefore, charge you that in this case the burden of the proof is upon the proponent and his brother, Edgar, to show that there was no undue influence exercised in the execution of each one of the codicils to this will, and also to show full deliberation and freedom to act on the part of the testatrix, and good faith upon the part of Edgar C. Poppleton.”

As stated by counsel for proponents in their brief, there is no testimony “ indicating any attempted undue influence on the part of Herbert Poppleton.” There was testimony tending to show a bitter feeling between contestant and Edgar and that he was the dominating influence in the family. The codicil of 1895 gave to him written evidence of a completed gift, which, if actually made, without such evidence it might have been difficult for him as his mother’s confidential agent to establish. The codicil also left it to Edgar to designate the portion of the estate which she had given him, and to report faithfully what was left. The codicil was a part of the will and confirmed Edgar’s title to his portion of the estate beyond recall by his mother, while his brother and sister had to take their chances of being subsequently cut off. No excuse is furnished by this record for the failure of Edgar Poppleton to take the stand to repel the presumption which the court told the jury existed, and to show his own good faith. We think it was prejudicial error for the trial judge to argue to the jury that, because of the alleged small interest of Edgar under the codicil of 1895, it was unjust to charge him with exercising undue influence. An impartial jury might believe that the codicil of 1895 was one of the links in the chain of evidence establishing undue influence in the making of the last codicil.

For the errors referred to, the judgment is reversed, and a new trial granted.

Grant, Montgomery, McAlvay, and Brooke, JJ\, 'concurred.


text:
    PEOPLE v. BANKERS’ SURETY CO. PEOPLE v. FEDERAL UNION SURETY CO. PEOPLE v. UNITED STATES FIDELITY & GUARANTY CO.
    1. Principal and Surety — Pleading—Indemnity Bonds-^-Public Oeiciers.
    A declaration which, alleges the execution of a bond to the State to secure deposits to be made by its treasurer in a bank, pursuant to an agreement set up in the pleading, and further states that subsequently deposits were made by the treasurer pursuant to the provisions of the agreement, that the amounts deposited had not been repaid, and that demand therefor had been made, sufficiently states a cause of action for funds deposited during the first term of the treasurer, in which the instrument was executed.
    2. Same — Demurrer—Illegal Deposits or Treasurer.
    An unlawful agreement of the State treasurer to make deposits in a bank of which he was president does not prevent a recovery for the amount of deposits secured by defendants’ bonds.
    Certiorari to Ingham; Wiest, J.
    Submitted June 17, 1909.
    (Docket Nos. 80, 81, 78.)
    Decided July 15, 1909.
    Assumpsit by the people of the State of Michigan against the Bankers’ Surety Company, th© Federal Union Surety Company, and the United States Fidelity 8c Guaranty Company upon certain statutory bonds. Orders overruling separate demurrers to the declarations are reviewed by defendants on writs of certiorari.
    Affirmed.

      Shaw, Warren, Cady & Oakes (Carson, Thompson & Bowden, of counsel), for appellants Bankers’ Surety Co. and Federal Union Surety Co.

      Moore & Moore, for appellant United States Fidelity & Guaranty Co.

      John E. Bird, Attorney General, and George S. Law, . Assistant Attorney General, for the people.
   Blair, C. J.

Proceedings by writs of certiorari to review the orders entered in the above-entitled canses, overruling the respective demurrers to plaintiff’s declarations filed therein. The demurrers in the several causes raising substantially the same questions, the records were consolidated into one.

Mr. Glazier’s first term'as State treasurer commenced January 1, 1905. He was elected to a second term at the general November election in 1906. The declaration, filed pursuant to section 10050, 3 Comp. Laws, is in assumpsit upon an express contract, and sets up the following facts:

“For that whereas, heretofore, to wit, on the 96th day of January, A. D. 1905, Frank P. Glazier, as treasurer of the State of Michigan, and the Chelsea Savings Bank, of Chelsea, Mich., a corporation organized and existing under and pursuant fto the laws of the State of Michigan, entered into a certain agreement in writing and under seal, and to the court now here shown, in words and figures following:

“‘This agreement, made this 26th day of January, A. D. one thousand nine hundred five, by and between Frank P. Glazier, as treasurer of the State of Michigan, party of the first part, and Chelsea Savings Bank, Chelsea, Michigan, party of the second part, witnesseth as follows: First, the party of the first part agrees to make Chelsea Savings Bank, Chelsea, Mich., aforesaid, a depository of a part of the surplus funds belonging to the State of Michigan, aforesaid, as authorized by law; second, the said Chelsea Savings Bank agrees to receive and safely keep all such surplus funds of said State of Michigan, as may be offered or deposited by said State treasurer, and to reimburse and pay the same to said State treasurer, or his successor in office, or whoever may be lawfully entitled to receive the same, whenever called for; and to pay interest on such suplus funds so deposited with said Chelsea Savings Bank at such rate as shall from time to time be designated by the State treasurer, not to exceed three percent, per annum; to be computed on daily balances, and paid on the twenty-fifth day of each month, or at any other time when the account may be closed; third, it is mutually agreed by and between the respective parties hereto that the said Chelsea Savings Bank shall at all times keep a true and just account of all moneys and funds deposited by the said Frank P. Glazier, as treasurer, as aforesaid, and render to him monthly statements thereof; and that the said Chelsea Savings Bank shall at all times honor and pay all drafts and checks of the said Frank P. Glazier, as treasurer, as aforesaid, to the amount of the funds so deposited by him as aforesaid.’

“That on January 36, 1906, the said bank, as principal, executed and delivered to said Glazier, as treasurer, bonds executed by said defendants, respectively, as sureties, with the following conditions:

‘The condition of the above obligation is such that, whereas, the above-named bank, principal herein, has been designated by the said Frank P. Glazier, as treasurer of the State of Michigan, as one of the depositories of the surplus funds belonging to the State of Michigan; and whereas, the said Frank P. Glazier, as said treasurer, has entered into a certain contract with said bank, principal herein, with reference to the said surplus funds so to be deposited with it, a copy of which is hereto attached, and made a part hereof: Now therefore, if the above-bounden bank as principal shall, in accordance with the said contract, safely keep and reimburse and pay over upon demand, all moneys belonging to-the said State of Michigan, and deposited with it by the said State treasurer in accordance with the said contract, to the said State treasurer, his successor or successors in office, or to any other person lawfully entitled to receive the same, and shall in all things perform the conditions of said contract, then this obligation to be void, otherwise to remain in full force and effect. It is mutually understood and agreed between the parties hereto that if the said surety shall so elect, its liability for future actions or omissions of said principal may be terminated by giving thirty (30) days’ notice in writing to the said Frank P. Glazier, as treasurer as aforesaid, or his successor or successors in office, and a like notice to the secretary of State and auditor general of said State; and the liability of said surety for the future actions or omissions of said principal shall cease at the expiration of said thirty (30) days, the said surety remaining liable for all or any acts of commission or omission covered by this bond or said contract, up to and including the date of expiration of said thirty (30) days’ notice. The said surety, shall, upon the termination of this bond, and its release from all liability hereunder, upon request, refund the premium paid, less a prorata part thereof for the time this bond shall have been in force. It is mutually understood and agreed that the said surety shall be liable hereunder for only such proportion of the total loss sustained by the said Frank P. Glazier, as treasurer of the State of Michigan, or his successor or successors in office, as the penalty of this bon d shall bear to the total penalties of all bonds furnished by said Chelsea Savings Bank as principal, in favor of said State treasurer, and in no event shall the surety hereon be liable hereunder for any sum in excess of the penalty of this bond.’ * * *

“ That after the said agreement was made and entered into as hereinbefore set forth, the said Prank P. Glazier, as treasurer of the State of Michigan, from time to time deposited with the said Chelsea Savings Bank surplus funds of the State of Michigan, and that on, to wit, the 18th day of December, A. D. 1807, and while the said agreement and the said writing obligatory hereinbefore set forth were in full force and effect, there became and was due to the State of Michigan from the said Chelsea Savings Bank the sum of six hundred eighty-five thousand five hundred and eighty-seven dollars and seventy-nine cents ($685,587.79), the same being surplus funds of the State of Michigan deposited with the said Chelsea Savings Bank by the said Prank P. Glazier, as treasurer of the State of Michigan, pursuant to the terms and conditions of said agreement. That on, to wit, the said 18th day of December, A. D. 1907, and while the said agreement and the said writing obligatory hereinbefore set forth were in full force and effect, payment of the said sum of six hundred eighty-five thousand five hundred eighty-seven dollars and seventy-nine cents ($685,587.79) so due the State of Michigan from the said Chelsea Savings Bank, as aforesaid, was demanded of and from the said Chelsea Savings Bank, by the said Prank P. Glazier, as treasurer of the State of Michigan, and payment thereof refused, and that the said Chelsea Savings Bank has not paid the said sum of six hundred eighty-five thousand five hundred eighty-seven dollars and seventy-nine cents ($685,587.79) or any part thereof, to the said Frank P. Glazier, treasurer of the State of Michigan, or to his successor in office, or to any other person lawfully entitled to receive the^same, but has hitherto wholly neglected and refused and still neglects and refuses so to do.”

The grounds of demurrer relied upon are: First, because the bond set up in the declaration, if valid, would only cover deposits made during the first term of office of Prank P. Glazier as State treasurer, and since the declaration contains no allegation that any such funds were deposited within such time, no cause of action against the defendants is set up in the declaration; second, because the contract sued upon is an illegal contract, and cannot be made the basis of a suit. ■

First. Accepting as correct, for the purposes of these cases, defendants’ construction of the State treasurer’s agreement with the bank, that agreement related to, and the bond covered, only such deposits as were made by him during his first term of office, beginning January 1,1905, and terminating December 31, 1906. Under this construction the agreement and bond are to be treated precisely the same as though Mr. Glazier had served but the one term, and another person had held the office for the term beginning January 1, 1907. The declaration sets out the agreement and bond in extenso. It alleges, in effect, •that after the making of the agreement of January 26, 1905, the said Glazier deposited with said bank, as State treasurer, from time to time, “pursuant to the terms and conditions of said agreement,” surplus funds of the State; that on the 18th day of December, 1907, the bank was indebted to the State for surplus funds so deposited pursuant to, and then covered by the agreement and bond in the amount of $685,587.79; that payment was demanded of the bank on said 18th day of December by said Glazier as State treasurer (of whose election to succeed himself this court will take judicial notice), and such demand was refused. We are of the opinion that the declaration, construing the agreement in accordance with defendants’ contention, alleged, in effect, that the funds sought to be recovered were deposited from time to time during his term of office covered by the agreement. We see no good reason for reading into the declaration a claim to recover funds deposited by another treasurer succeeding Mr. Glazier. Whether under this declaration the plaintiff may recover for funds deposited during Mr. Glazier’s second term is a serious question, which we do not find it necessary to determine.

Second. Assuming that the agreement was executed by Mr. Glazier as State treasurer, in behalf of the State and in behalf of the bank, as president thereof, such illegality would not affect the State’s cause of action. The case in this aspect falls directly within the reasoning of, and is ruled by, the case of Buhrer v. Baldwin, 137 Mich. 263 (100 N. W. 468).

The order of the circuit judge is affirmed, and the record remanded for further proceedings.

Grant, Hooker, McAlyay, and Brooke, JJ., concurred.


text:
    PEOPLE v. TITLE GUARANTY & SURETY CO.
    Principal and Surety — Indemnity Bonds —Public Officers — Pleadings.
    A declaration on a bond securing moneys deposited by the State treasurer alleging that the instrument contained a provision for apportioning the liability with other bonds in relation to the total loss sustained, is sufficient on demurrer if it shows the total loss, the amount of other bonds, which, with the amount of the bond declared upon, was less than the total, and claims the entire penalty of the bond.
    Certiorari to Ingham; Wiest, J.
    Submitted June 17, 1909.
    (Docket No. 79.)
    Decided July 15, 1909.
    Assumpsit by the people of the State of Michigan against the Title Guaranty & Surety Company of Scranton, Pennsylvania, upon a statutory bond. A judgment overruling a demurrer to the declaration is reviewed by defendant on writ of certiorari.
    Affirmed.

      Luman W. Goodenough (Alexis G. Angelí, of counsel), for appellant.

      John E. Bird, Attorney General, and George 8. Law, Assistant Attorney General, for the people.
   Grant, J.

This is a companion suit to People v. Bankers’ Surety Co., People v. Federal Union Surety Co., and People v. United States Fidelity & Guaranty Co., ante, 30 (122 N. W. 353), in which an opinion has been written by Chief Justice Blair and is handed down herewith. The sole ground of demurrer in this case, not disposed of in the opinion in those cases, is:

“That it appears in the bond declared upon that the liability of the defendant is limited to such proportionate share of the total loss sustained by Frank P. Glazier, as treasurer of the State of Michigan, or his successor or successors in office, as the penalty of this bond shall bear to the total penalties of all bonds furnished by the said Chelsea Savings Bank as principal in favor of the said State treasurer, and the amount of the total loss sustained by the said Frank P. Glazier, as treasurer of the State of Michigan, or his successor or successors in office, is not alleged in the declaration.”

The clause of defendant’s contract on which the question arises is stated in full in the declaration, and reads as follows:

“It is mutually understood and agreed that the said surety shall be liable hereunder for only such proportion of the total loss sustained by the said Frank P. Glazier, as treasurer of the State of Michigan, or his successor or successors in office, as the penalty of this bond shall bear to the total penalties of all bonds furnished by said Chelsea Savings Bank as principal, in favor of said State treasurer, and in no event shall the surety hereon be liable hereunder for any sum in excess of the penalty of this bond.”

The declaration alleges the deposit of surplus funds of the State in the bank; that on December 18, 1907, there was due from the bank to the State the sum of $885,-587.79; that on that date demand of payment was made and refused; that the total penalties of all the bonds given to secure the State is $200,000. The declaration, therefore, alleges liability for the total penalty of the defendant’s bond, to wit, $25,000, and claims that amount in full. If the defendant is entitled to any deductions, or can sustain any defense to the entire or any portion of the amount claimed, these questions are open to it upon the trial, provided that the State gives evidence of the case set forth in its declaration.

The judgment is affirmed.

Blair, C. J., and Hooker, MoAlvay, and Brooke, JJ., concurred.