author: Brooke, J.

text:
    McLAWSON v. PARAGON REPINING CO.
    1. Negligence — Contributory Negligence — Explosives—Use of Kerosene for Starting Pires.
    The simple act of using kerosene for the starting of a new fire does not preclude the user thereof from recovering, in an action to recover damages for personal injuries resulting from negligent substitution by defendant of gasoline for kerosene, upon the ground that he was guilty of contributory negligence as a matter of law.
    2. Same.
    The pouring of kerosene directly from a can in relighting a dying fire or kindling a new one, without the party first assuring himself there is no fire in the stove, is negligence per se.

    3. Same — Evidence—Question for Jury.
    In an action to recover for death due to the alleged substitution by defendant of gasoline for kerosene used by deceased in starting a fire, where there were no eyewitnesses and only the exploded can and the character and location of thé burns upon the body of the decedent, it was a question for the jury whether deceased acted without first assuring himself there was no fire in the stove in which he was using the liquid.

      i. Same — Injury to Minor Son — Licensee.
    A minor who resides with his parents and is a member of their household, is entitled to use kerosene in starting a fire exactly the same as the parents, and is not a mere licensee.
    5. Same — Explosives—Substituting Gasoline for Kerosene— Liability for Injuries.
    One who delivers to another such an article or substance as gasoline for kerosene is liable for injuries resulting therefrom, even though he is ignorant of its noxious character, if, in the exercise of ordinary prudence, he or his servant should have possessed such knowledge.
    6. Explosives — Gasoline—Judicial Notice — Matters of Common Knowledge.
    Judicial notice is taken of the fact that gasoline, either alone or mixed with kerosene, constitutes a highly explosive agent and that extreme care should be used by vendors thereof to prevent their mixture.
    7. Negligence — Substituting Gasoline for Kerosene — Liability for Injury — Question for Jury.
    Whether defendant’s agent, in making investigation as to the nature of the contents of a can supposed to contain kerosene to be furnished to plaintiff’s decedent who was killed as a result of using same to start a fire, exercised that high degree of care imposed upon him by the fact that he was handling a dangerous and, under certain circumstances, a highly explosive substance, was a question for the jury
    Error to Ingham; Collingwood, J.
    Submitted June 14, 1917.
    (Docket No. 43.)
    Decided September 27, 1917.
    Case by Frank McLawson, administrator of the estate of Arthur I. McLawson, deceased, against the Paragon Refining Company for the negligent killing of plaintiff’s decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Elmer N. Peters and Harry H. Partlow, for appellant.

      Alfred J. Mills (Ira C. Taber, of counsel), for appellee.
    This action is brought to recover damages arising out of the death of Arthur I. McLawson. Plaintiff, administrator, was the father of said McLawson. Plaintiff’s decedent, a young man, past 19 years of age, who lived with his father and mother, met his death in the following manner: On the afternoon of October 7, 1915, between 2 and 8 o’clock, in the absence of both of his parents, he attempted to kindle a fire in the kitchen range, and in doing so used a quantity of -kerosene or kerosene mixed with gasoline. No one was present at the time he made the attempt to kindle the fire, but the can containing the combustible fluid, whatever it was, was found in close proximity to the stove, and gave evidence of having suffered from a violent explosion, the metal being rent asunder. A fire followed the explosion. The burning liquid was cast upon McLawson’s person and clothing, and resulted in his sustaining very serious burns to his hands, arms, shoulders, and his body from his waist downward to his ankles. The fire upon his person was soon extinguished, and he received medical treatment very promptly. He was conscious on the evening of his injury and on the day following and at intervals thereafter until he died on October 11th. His death unquestionably resulted from his injury.
    The record discloses that the defendant is engaged in the city of Lansing and surrounding territory in the sale of oil and gasoline; that on Saturday the 2d day of October it made two deliveries of its product to Taylor & Soper, a copartnership owning and operating a grocery in the city of Grand Ledge. On the first occasion 10 gallons of kerosene were delivered and poured into the receptacle provided by Taylor & Soper for that purpose. The clerk in charge of Taylor & Soper’s business requested defendant’s agent to leave a larger amount, but was advised that he had no more kerosene, but had two cans of gasoline which he was taking to another customer. A short time afterwards defendant’s agent returned to the business place of Taylor & Soper, and announced that the two cans of liquid which he had supposed to be gasoline had turned out to be kerosene, and these cans were then emptied into the large kerosene tank of Taylor & Soper.
    The evidence further discloses that plaintiff, decedent’s father, purchased from Taylor & Soper 2 gallons of this liquid under the impression that it was kerosene on Monday the 4th day of October, and that he transported the same to his home in Grand Ledge, placing it in the. woodshed, where it was habitually used as occasion required for the purpose of lighting fires. Plaintiff kept beside the can in the woodshed an old tomato can with an open top, into which was poured from time to time such small quantity as was necessary to kindle a fire, the can itself remaining in the woodshed.
    It further appears that on Tuesday, the 5th day of October, Taylor & Soper discovered that something was wrong with the oil in the kerosene tank through themselves trying to use a small quantity of it to light a fire. They immediately placed themselves in communication with an official of the defendant company, who proceeded to Grand Ledge, and, after making an examination and test of the liquid in the kerosene tank, he advised Taylor & Soper to empty the tank, destroy the contents, and to advise all customers who had purchased from the tank to destroy the oil so purchased. This Taylor & Soper undertook to do so far as possible, but failed to give any notice to the plaintiff of the dangerous character of the liquid.
    It further appears that on Wednesday, the 6th day of October, Mrs. Ida McLawson, mother of the decedent, used a small quantity of the liquid for the purpose of igniting a fire on the morning of that day. She testified that upon applying a match the fire puffed and burned very fiercely, but that she reported this to no one, being of the opinion that she had used a little too much of the oil.
    The testimony of several other witnesses was introduced, tending to show that the use of the oil in small quantities for the purpose of lighting fires was followed by more or less violent explosions.
    Upon conclusion of the plaintiff’s case a motion was made on behalf of the defendant for a directed verdict. This motion was granted, the court saying in part:
    “This court cannot take judicial notice of the fact that such a proceeding to light a fire is a safe way, neither can it take judicial notice of the fact that it is an unsafe way to light a fire. There is no one to tell us just what Arthur McLawson did. He is dead. But there are circumstances which speak as loud and as distinctly as any witness could. The testimony in this case is that the last time the mother handled the kerosene can it was in the woodshed, and on Wednesday morning she left it in the woodshed and kindled the fire from oil in the small receptacle. From that time until the fire, which resulted in the death of Arthur McLawson, there is no testimony in this case showing what had become of that oil can, but after the fire, and within half or three-quarters of an hour, the can was found in front of the stove evidently having exploded.
    “Now in the absence of testimony that any other member of the family took the can into the kitchen, it can be concluded that Arthur McLawson brought that can from the woodshed into the kitchen. If he did not bring it into the kitchen, he at least attempted to start that fire with oil from the can containing this fluid standing or being held by the side of the stove. Now, gentlemen, what was the approximate cause of the death of Arthur McLawson? His death occurred as the doctor testified from burns. How were those bums received? Is it reasonable to suppose that they could have been received from placing a cupful more or less of kerosene oil on top of cobs in a cold stove when the covers were removed from the stove and lighting them? There is testimony to show in this case that such a proceeding would make a flash up into the kitchen, but there is no testimony to show that it would hurt anybody. There were at least two witnesses, who testified that they used this same fluid in this way, and, while there was a flash and a shock to them possioly, there was no damage.
    “Now, the proximate cause of the burns which caused the death of Arthur McLawson was the fact that the fluid in this can took fire and burned him. If that can had been in the woodshed where Mrs. McLawson left it, and Arthur I. McLawson had taken a cupful of that fluid and poured on the cobs and lighted it, he could not have been injured by the fluid that was in that can. That is just as clear as can be. No reasonable man could dissent from that. Then, if Arthur McLawson had not lighted that combination of cobs and oil in the stove, with that can of fluid setting near the stove, there could have been no accident which would have caused his death. Then isn’t it clear to any reasonable man that in lighting that fire with the oil while a gallon can of the fluid was setting by the side of the stove or held in his hands he himself was guilty of negligence which contributed to the accident. It seems so to me that the presumption regarding reasonable prudent conduct which would arise in cases of this kind is brushed aside, and we are confronted with the fact that the can was there in front of the stove when he lighted the fire, and we are forced to the conclusion that because of that fact in some way the fluid in the can took fire, the can exploded, and Arthur McLawson was burned.
    “Now, gentlemen, in the absence of any other evidence as to the freedom from negligence of Arthur McLawson, it. becomes my duty to tell you that he was guilty of contributory negligence, and, being guilty of contributory negligence, he cannot recover, and so it becomes my duty to instruct you without leaving your seats to find the verdict for the defendant.”
   Brooke, J.

(after stating the facts). There are four assignments of error which may be considered together. They all relate to the action of the court in directing a verdict for the defendant solely upon the ground that plaintiff’s decedent was guilty of such contributory negligence as to preclude recovery as a matter of law. Upon this point counsel for plaintiff assert that a person is not to be held guilty of contributory negligence as a matter of law unless all reasonable minds would reach the same conclusion under the undisputed facts. Beach v. City of St. Joseph, 192 Mich. 296 (158 N. W. 1045).

They assert that, while it has been held (Riggs v. Standard Oil Co., 130 Fed. 199; Dubois v. Luthmers, 147 Iowa, 315 [126 N. W. 147] ; Morrison v. Lee, 13 N. D. 591 [102 N. W. 223]) that to pour kerosene upon a fire for the purpose of replenishing it is an act of negligence per se, the use of kerosene for the purpose of starting a new fire is not to be held negligence as a matter of law, citing Peterson v. Standard Oil Co., 55 Or. 511 (106 Pac. 337, Am. & Eng. Ann. Cas. 1912A, 625, and notes) ; Ellis v. Republic Oil Co., 133 Iowa, 11 (110 N. W. 20); Waters-Pierce Oil Co. v. Deselms, 18 Okl. 107 (89 Pac. 212), affirmed in 212 U. S. 159 (29 Sup. Ct. 270) ; Ives v. Welden, 114 Iowa, 476 (87 N. W. 408, 54 L. R. A. 854, 89 Am. St. Rep. 379); Chapman v. Pfarr, 145 Iowa, 196 (123 N. W. 992); Price v. Insurance Co., 92 Minn. 238 (99 N. W. 887).

They further assert that under the law in this State, where there is no eyewitness to the accident, which results in death and the circumstances shown justify legitimate inferences, which bring the defendant’s liability within the realm of' probability, rather than leaving it one for mere conjecture, the case is one for the jury, citing, inter■ alia, Lincoln v. Railway Co., 179 Mich. 206 (146 N. W. 405, 51 L. R. A. [N. S.] 710); Teachout v. Railway Co., 179 Mich. 398 (146 N. W. 241).

The claim is made by counsel for appellant that, there being no eyewitnesses to the accident, the plaintiff is entitled to the presumption that his decedent exercised due care. In reply to the propositions advanced, counsel for defendant assert that the presumption of due care is not applicable to this case, because this court has held (Mynning v. Railroad Co., 67 Mich. 677 [35 N. W. 811]), that such presumption vanishes where the - testimony of an eyewitness or witnesses may be produced, and in this connection it is pointed out that plaintiff’s decedent lived for four days after the accident, much of the time in full possession of his mental faculties, and his testimony as to what actually occurred at the time of the accident could easily have been secured and preserved. They urge that slight evidence is sufficient to overcome the presumption, and that such evidence may be furnished circumstantially even though no eyewitnesses are present at the moment of the occurrence of the accident. Reference is here made to the fact that the two gallon can containing the explosive fluid was found in a shattered condition immediately in front of the stove in which plaintiff’s decedent was attempting to kindle a fire and to the further fact that the burns upon the person of decedent were such as to indicate beyond peradventure that the oil can was in his hands at the time of the explosion. They contend that the undisputed evidence, considered most favorably for plaintiff, renders it at least as probable that the accident did not result from the negligence imputed to the defendant as that it did result therefrom. Powers v. Railroad Co., 143 Mich. 379 (106 N. W. 1117).

They set out the following facts as bearing upon the question of the negligence of decedent:

“The fact that he poured the oil directly from the can itself is further evidence of his negligence. The fact that he did not use the open cup or receptacle which was in common use by his father and mother, when lighting a fire in their stove, is further evidence of his negligence. The fact that he did not assure himself that there were no live coals or ashes in the stove is further evidence of his negligence. The fact that the fire must have followed into the oil can and caused it to explode is further evidence of his negligence. The fact that the can was found directly in front of the stove and that his hands received the most severe burns from the explosion is further evidence of his negligence. The fact that no evidence was given or the res gestee of the accident, though within the reach of plaintiff, is further evidence that he was negligent”

—and assert that from a consideration of those facts it cannot be said that decedent was free from contributory negligence, and that reasonable minds cannot draw different conclusions from the facts which stand undisputed upon the record. Reference is made to the case of Molin v. Lumber Co., 177 Mich. 524 (143 N. W. 624, 48 L. R. A. [N. S.] 878), where this court said:

“The plaintiff has not averred a custom or practice in the locality or generally of starting fires in stoves with oil by reason of which defendant ought reasonably to have anticipated that his licensees would search for his oil and use it to start a fire. We know of no general custom or practice to make such use of kerosene oil.”

While this court has never held that the use of kerosene for lighting fires is not negligence per se, it is equally true that it never has held the contrary. The examination of the jurors who sat in this case and the testimony of several witnesses tends to show that this practice, whether extra-hazardous or not, is one which is extremely common, if not well-nigh universal in the vicinity where the accident occurred. We are inclined to the view that it should not be held that the simple act of using kerosene for the starting of a new fire should preclude the user thereof from recovering upon the ground that he was guilty of contributory negligence as a matter of law. A different question, however, is presented when the evidential facts are considered. If plaintiff’s decedent attempted to relight a dying fire or to kindle a new one without first assuring himself there was no fire in the stove, by pouring kerosene directly from the can, this act, in our opinion, would plainly be negligence per se. The silent witnesses, the exploded can, and the character and location of the bums upon the body of the decedent very strongly point to the conclusion that this is what actually was done, nevertheless we have reached the conclusion that it is not the province of the court to so determine, but the question is one of fact for the jury under proper instructions.

On behalf of the defendant it is urged that if the verdict was properly directed upon any ground the decision should not be disturbed, and in this connection it is said that plaintiff’s decedent was a mere licensee in his father’s house, and as such is precluded from recovery under the decision in Molin v. Lumber Co., supra. With this contention we are unable to agree. Plaintiff’s decedent was a minor residing with his parents, a member of the household, and as such was entitled to use the kerosene exactly the same as were his parents. It is next contended that, inasmuch as it appears beyond dispute in the record that defendant’s agent, Brown, was a careful and competent employee, and that he made a careful personal inspection of the contents of the cans before emptying them into the kerosene holder upon the premises of Taylor & Soper, if a mistake was made by Brown, such mistaken act, as shown by this record, was not within the scope of his employment, nor an act for which the defendant should be held responsible. We agree with defendant’s counsel that there was no conscious adulteration of the kerosene either by the defendant or its servant. It is clear that Brown who delivered the oil believed that the contents of the two cans last delivered was kerosene, and that he came to that conclusion after a personal inspection of such contents, but, these facts being conceded, it does not necessarily follow that defendant may escape liability. In the case of Wellington v. Kerosene Oil Co., 104 Mass. 64, it is said:

“It is well settled that a man who delivers an article, which he knows to be dangerous or noxious, to another person, without notice of its nature and qualities, is liable for any injury which may reasonably be contemplated as likely to result, and which does in fact result, therefrom, to that person or any other, who is not himself in fault” (citing cases).

We think it is equally true that one who delivers such an article or substance is liable even though he was ignorant of its noxious character, if in the exercise of ordinary prudence he or; his servant should have possessed such knowledge. We take judicial cognizance of the fact that gasoline, either alone or mixed with kerosene, constitutes a highly explosive agent, and that extreme care should be taken by the vendors thereof to prevent their mixture. The record does not disclose whether the last two cans delivered to Taylor & Soper were painted red or white, but it does disclose with sufficient certainty the fact that through the agency of the defendant or its agent some gasoline found its way into the kerosene holder of Taylor & Soper and that a part of this mixture was purchased by plaintiff, and was used by plaintiff’s decedent at the time of his injury.

Under the circumstances of this case, and considering the baleful consequences which are likely to result to the user of a mixture of kerosene and gasoline when such use is made under the belief that the substance used is kerosene, we are of opinion that the question whether defendant’s agent, in making such investigation as he made, exercised that high degree of care imposed upon him by the fact that he was handling a dangerous, and under certain circumstances a highly explosive, substance, is for the jury.

It is urged by counsel for defendant that, even though it is assumed that the defendant was guilty of negligence through the mistake of its driver, Brown, yet it should not be held liáble therefor because that negligence was not the proximate cause of the death of plaintiff’s decedent. This contention is based upon the claim that between such negligence and the death of said decedent there intervened the negligence of said decedent. This contention may be answered by saying that if the jury determine under proper instructions that plaintiff’s decedent was guilty of contributory negligence, that determination ends the case.

The judgment is reversed, with costs, and a new trial is ordered.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Fellows, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    TOWNSHIP OF SANDSTONE v. MICHIGAN RAILWAY CO.
    1. Street Railways — Franchises—Forfeiture—Municipal Corporations.
    A municipality may not extrajudicially forfeit a street railroad franchise where the company has constructed its road after the time prescribed by the ordinance has expired, and such construction is carried on without interference by the municipality, and especially where the company entered upon the construction of the road in good faith, relying upon the grant.
    2. Same.
    Municipalities, in the performance of legislative functions involving discretion and judgment, can so act only at authorized meetings duly held, and the members of a township board granting a franchise to a street railroad cannot make a valid determination of forfeiture binding upon the municipality by their assents separately or individually expressed.
    3. Same — Franchises—Construction.
    Yihere an interurban railroad franchise granted by a township relating to the charge to be made was clear and unambiguous and provided for a rate of 1% cents per mile from any point within the township to any point within a city, and from any point within the city to any point within the township, with a minimum charge of 5 cents, and this construction of the franchise had been adopted by the various operating and owning companies during a period of 12 years, held, that the operating company was operating the interurban railroad under such franchise and that it was immaterial that the grantee of the franchise constructed the road only to a particular point in the city, and not to the interurban station,. and did not warrant the collection of a city 5 cent fare for the ride between such point and the interurban station over tracks of a street railroad under a city franchise, to the rights under which the operating company as lessee had succeeded.
    Certiorari to Jackson; Parkinson, J.
    Submitted April 17, 1917.
    (Calendar No. 27,516.)
    Decided September 27, 1917.

      Mandamus by the township of Sandstone to compel the Michigan Railway Company to observe the terms of a franchise. From an order granting the writ, defendant brings certiorari.
    Affirmed.

      James J. Noon and Lyman B. Trumbull, for plaintiff.

      Sanford W. Ladd (Charles E. Lewis and Warren, Cady, Ladd & Hill, of counsel), for defendant.
    This is certiorari to mandamus.
    Relator, the township of Sandstone, sought by the use of the writ to compel the Michigan Railway Company to observe the terms of a certain franchise granted by said township to one Foote with relation to the rate of fare to be charged by said railway company within said township and within the city of Jackson. This franchise is dated July 10, 1901, and has been duly assigned to the lessor of the respondent, which is the operating company. Sections 6, 8, and 11 of said franchise are as follows:
    (1) Section 6: “The rates of fare for each passenger shall not exceed one and a half cents, per mile and from any point within said township to any point within the city of Jackson, and from any point within the said city of Jackson to any point within said township of Sandstone, except in cases where the amount shall be less than five cents, when five cents may be charged, and a fraction of a cent may be counted and charged as one cent. Children under five years of age shall be carried free when accompanied by parent or guardian.”
    (2) Section 8: “If said grantee, his successors or assigns, shall at any time refuse or neglect to comply with the provisions of this franchise after due notice in writing by the town clerk or other person under the direction of the township board, the authority, powers and privileges herein granted shall henceforth cease and be forfeited.”
    Section 11: “Said grantee shall commence the construction of said railway within three months from the passage hereof, and shall complete said construction within the ensuing nine months. In default thereof, the privileges hereby granted shall be forfeited.”
    In its answer to the original petition for mandamus respondent admitted:

      “Fourth. Answering paragraph 4, this respondent admits that it is a corporation organized and doing business under the laws of the State of Michigan, but denies that it owns any street railway as described in said paragraph, but admits that it maintains and operates the lines of street railway that are owned by the Michigan United Railways Company, a Michigan corporation, including both street railways and interurban street railways in the cities of Jackson and Kalamazoo, and the interurban street railway between said cities, and further alleges the fact to be that the lines of interurban street railway built and constructed by the Jackson & Battle Creek Traction Company, to which company said Exhibit A, the franchise in question, was assigned, was sold by the Jackson & Battle Creek Traction Company to the Michigan United Traction Company, and that the tracks of said Jackson & Battle Creek Traction Company only extended along West Main street within the city of Jackson to where First street intersects said West Main street, and that the said lines within the city of Jackson, 'so-called, were sold by the Jackson Consolidated Traction Company to the Michigan United Railways Company, and that said Jackson- Consolidated Traction Company secured its rights in and to said Jackson City Lines from the Jackson-Suburban Traction Company by deed and bill of sale, and that the said contracts and franchise under which said Jackson-Suburban Traction Company and its successor, Jackson Consolidated Traction Company, operated, were separate and distinct from the contracts and franchise under which said Jackson & Battle Creek Traction Company operated, and that the contracts and franchises granted by the city of Jackson under which said Jackson-Suburban Traction Company and its successor, Jackson Consolidated Traction Company, were operated, were binding agreements between said traction companies and the city of Jackson prior to the granting of the franchise by said township of Sandstone to William A. Foote, and by William A. Foote assigned to the Jackson & Battle Creek Traction Company, an interurban street railway company as distinguished from a street railway company operating the city lines, and that under the terms of the franchise granted by the city of Jackson to the Jackson & Battle Creek Traction Company they operated over the tracks on West Main street laid and built by the Jackson & Battle Creek Traction Company from the city limits to where First street intersects West Main street, said Jackson & Battle Creek Traction Company was. expressly bound by the terms of the franchise under which said Jackson & Suburban Traction Company was operating the city lines within said city of Jackson, and that said franchise granted to the Jackson & Battle Creek Traction Company by the city of Jackson was an agreement, of which Exhibit 1 attached hereto and made a part hereof is a true copy. And respondent further alleges that the franchise under which said Jackson-Suburban Traction Company was operating in the city of Jackson at the time said Jackson & Battle Creek Traction Company began its operations was an agreement between Jackson-Suburban Traction Company and said city of Jackson, and that Exhibit 2 hereto attached and made a part hereof is a true copy of said agreement and franchise.
    “Further answering, this respondent admits that the Michigan United Railways Company, the owner of said interurban street railway through relator’s township, has succeeded to certain rights under Exhibit A and that respondent herein in operating said interurban street railway is bound by said Exhibit A in so far as said Exhibit A applies to the line of street railway owned and built by said Jackson & Battle Creek Traction Company, and that said Exhibit A is not controlling, and that respondent is not bound to operate over all the tracks within said city of Jackson as claimed by relator, but that said Exhibit 2 attached hereto controls the operations of respondent within said city of Jackson, and as to all the other allegations contained in said paragraph 4 this respondent denies the same.”

      Exhibit 2, referred to in the foregoing excerpt from respondent’s answer and attached thereto, is a franchise from the city of Jackson to the Jackson-Suburban Traction Company, and defines the rights and obliga* tions of the respondent’s grantors as owners of a traction line within the city of Jackson. By section 28 if is provided that:
    “Said grantee and its assigns shall make no greater charge than five cents for one continuous ride upon said railway from any point in the city to any other point in the city limits.”
    By the issue as originally framed it will be seen that the only point in question was whether the respondent company was obliged to carry passengers from the township of Sandstone to its interurban depot, a point in said city east of the intersection of First and Main streets, at the franchise rate, or whether, having reached that point within the city of Jackson, it was entitled to charge a 5-cent fare under the franchise from the city of Jackson which was dated November 19, 1900, and therefore antedated the franchise from the township of Sandstone to Foote. Later an amended petition was filed by relator, which, however, sought the same relief as the original petition. To the amended petition respondent filed an answer. In this' answer it shows that on July 1, 1902, a representative of its grantor or of Mr. Foote, applied to the township board of the township of Sandstone for an extension of the Foote franchise, and that said extension was refused, as shown by the following entry in the township records:
    “Mr. Warner, in behalf of the electric railroad company, asks for renewal of their franchise in this township. The motion to renew the franchise was voted down.”
    It further shows that on July 17, 1902, a notice of forfeiture was served'upon it in the following terms:
    “To the Jackson & Albion Electric Railway Company, the Railway Companies General, Their Agents, Servants, Employees:
    “You will please take notice that under the provisions of section 8 of the franchise granted by the township board of Sandstone on the 10th day of July, 1901, to William A. Foote, of the city of Jackson, and accepted by the said William A. Foote on the 18th day of July, 1901, we do hereby declare that all of the authority, powers, and privileges granted by said franchise have become forfeited and are hereby forfeited, for the reason that the construction of the railway provided in said franchise has not been completed within twelve months from the passage of said franchise in accordance with the true intent and meaning of section 11 of said franchise resolution. And you are therefore notified to wholly desist from and abandon the further construction or operation of said railroad. And you are further notified that in case you desire an extension of the time for the completion of the construction of said railroad in accordance with said resolution, that the same will be granted by the township board of Sandstone upon your agreeing as a condition thereof not to construct and install or put into operation the third rail system through the township of Sandstone, but to construct, install, and put into operation the usual overhead trolley system.
    “Dated July 17, 1902.”
    In said amended answer respondent further asserts:
    “Further answering, this respondent denies that the Michigan United Railways Company, the owner of said interurban street railway through relator’s township, has succeeded to any right under Exhibit A (the Foote franchise), as said franchise was forfeited by the relator herein as shown by Exhibit 1, and respondent further denies that in operating said interurban street railway it is bound by said Exhibit A attached to relator’s petition, and alleges the fact to be that Exhibit A is not controlling, and that respondent is not bound to operate over any of the street railway tracks, whether the same were'formerly owned by the Jackson & Battle Creek Traction company or owned by the Jackson & Suburban Traction Company within said city of Jackson as claimed by relator, and further alleges that, in so far as the lines of street railway formerly owned by the Jackson & Suburban Traction Company within said city of Jackson, that said Exhibit 2 attached hereto and made part hereof controls the operation of respondent within said city of Jackson, and as to all other allegations contained in said paragraph 4, this respondent denies the same.

      “Fifth. Answering paragraph 5, this respondent admits that section 6 in Exhibit A set up in said paragraph is a correct copy of section 6 of said original franchise and agreement, but now forfeited, and respondent denies that section 6 is binding upon respondent in any way whatsoever, and even if said section 6 of Exhibit A were in effect, that said section 6 would not be controlling in any way whatsoever at any point within the city of Jackson beyond where First street intersects West Main street, being the terminus of said interurban street railway built by said Jackson & Battle Créek Traction Company within said city of Jackson, and as to the other allegations contained in said paragraph 5 this respondent denies the same; * * * and further answering, respondent alleges the fact to be that respondent is operating within said township of Sandstone under the terms of a franchise granted July 13, 1900, to Frederick N. Rowley, and accepted, a copy of which is attached hereto and made part hereof, and marked Exhibit 3.”
    The so-called Rowley franchise mentioned as Exhibit 3 in defendant’s amended answer provides (section 6) as follows:
    “The rates of fare for each passenger shall not exceed one and one-half cents per mile, except in case where the amount shall be less than five cents, when five cents may be charged and a fraction of a cent may be counted and charged as one cent. Children under five years of age shall be carried free of charge when accompanied by parent or guardian.”
    It will be noted that this provision as to the rate of fare is the same as that in the Foote franchise so far as the rate per mile is concerned, but that it is silent as to the rate to be charged within the city of Jackson. By the amended answer another question is raised, namely, whether the so-called Foote franchise, under which relator claims was : (1) Terminated by its own terms; or (2) terminated by the notice served by the relator township.
    Upon the hearing in the court below evidence was given on behalf of the relator tending to show that the notice of forfeiture was signed by the various members of the board at their several homes, and was not pursuant to any resolution adopted at a meeting of the township board, and that no such resolution appears of record in the proceedings of said board. It was conceded, that Rowley was an associate of Foote, and it appears that at the time the application for the Foote franchise was made nothing had been done under the Rowley franchise, and it was understood upon all sides that the same had been abandoned. There was further testimony tending to show that before July 1, 1902, at which time an extension of the Foote franchise was requested and refused, the road had been partially constructed through the township of Sandstone. The notice of forfeiture above set forth likewise indicates this fact, as it recites:
    “And you are therefore notified to wholly desist from and abandon the .further construction or operation of said railroad.”
    Evidence was further introduced tending to show that the road through said township and into the city of Jackson was completed some time within the year 1903, and operation was immediately undertaken, and continued from that timé down to the time when the respondent filed with the Michigan railway commission its amended schedule (effective May 3, 1915), which provided for rates of fare in excess of those set out in the Foote franchise. Prior to that date the various operating companies had carried passengers through said township and into the city of Jackson to its interurban depot, located at a point east of the intersection of First street and West Main street at the rate of fare provided in the Foote franchise, to wit, 11/2 cents per mile. This practice on the part of the various operating companies was uniform and continuous for a period of about 12 years, with one exception, when for a period of about 4 weeks the company then operating said line inaugurated what was known as the “zone” system of charges, under which the charges made to residents of the township of Sandstone were slightly in excess of those provided for in the Foote franchise. A protest having been made by the officers of the relator township to Mr. Bramlette, the general manager of the then operating company, the company abandoned its so-called “zone” system, and returned to its earlier rate of fare, and so far as relator township was concerned, continued to operate thereunder up to the time it filed the tariff which is the subject of this litigation. It is in testimony that at the time the company receded from its position touching the “zone” system of charges the original Foote franchise was submitted to Mr. Bramlette, the company’s then general manager, and the claim was then made that the rates of fare provided by said Foote franchise controlled, and this claim was apparently conceded by the responsible officer of the company then operating.
    Issues of fact were framed as follows:
    “(1) Is the street railway in question commonly called the interurban railway now being operated by the Michigan Railway Company? If so, how long has it operated said street railway?
    “(2) Has said Michigan Railway Company succeeded to all the rights and obligations of the Michigan United Traction Company?

      “(3) Has the Michigan. Railway Company by lease, assignment, or otherwise succeeded .to all the rights and obligations of W. A. Foote under franchise granted to him on the 10th day of July, 1901, by the township of Sandstone?
    “ (4) Is said Michigan Railway Company now operating under said franchise?
    “(5) Did the Michigan United Traction Company and its predecessors carry passengers generally going either way on its local interurban cars between all points within said township of Sandstone and the city of Jackson along the said interurban railway and up to or from its terminal or depot in said city of Jackson at a rate of fare not exceeding 1% cents per mile for each passenger, except in cases where a minimum fare of 5 cents might be charged or fraction of a cent counted as a cent in accordance with section 6 of franchise dated July 10, 1901? If so, for how long a period?
    “(6) Is said franchise still in force?
    “(7) Have the respondents, Michigan United Traction Company and the Michigan Railway Company, commencing about the month of May, 1915, charged, requested and exacted a rate of fare either way along their local interurban line between points in the township of Sandstone and their waiting room or terminal on Francis street in the city of Jackson, Mich., exceeding 1% cents per mile, allowance being made for minimum fares and fractions of a cent as provided in said section 6? If so, over what portion of their said line have they charged such excess?
    “(8) Do the conductors, motormen, and other employees of respondent Michigan Railway Company having charge of its local interurban cars through the township of Sandstone as a general rule remain on and operate said cars up to and including the waiting room in the city of Jackson, situated on Francis street, and from the said waiting room in the city of Jackson through the township of Sandstone?
    “(9) Did the Michigan United Traction Company or its predecessors’ exact or attempt to exact at any time a rate of fare in excess of a cent and one-half a mile between points in Sandstone and the city of Jackson up to and including the waiting room, except where minimum fares were permissive, due allowance being made for a fraction of a cent?
    “ (10) Is the interurban street railway which is now being operated by the Michigan Railway Company between Jackson and Battle Creek located and operated upon any of the streets and highways of the township of Sandstone? If so, how long has it been so located and operated and upon what highway or highways?
    “Approved for the journal.”
    The learned circuit judge who heard the case ordered the issuance of a mandamus in accordance with the prayer of the relator’s petition, and made findings of fact answering the framed issues as follows:
    “(1) The street railway in question is now being operated by the Michigan Railway Company, and it has been so operated since the 1st day of January, last.
    “(2) As the operating company, the said Michigan Railway Company has succeeded to the rights and obligations of the Michigan United Traction Company.
    “(3) I answer ‘Yes.’
    “(4) To this question my answer is ‘Yes.’
    “(5) My answer is ‘Yes.’
    “(6) My answer is ‘Yes.’
    “(7) My answer is ‘Yes.’
    “(8) To this question my answer is ‘Yes.’
    “(9) This interrogatory I answeb ‘Ño,’ unless such increase of fares for the brief period heretofore stated and the change made on or about June 1, 1915, should be excepted.
    “(10) My answer is ‘Yes.’ The highway upon which it has been so operated in part is the one known generally as the Territorial road. This becomes a street in that part of the village of Parma located in the township of Sandstone. Such railway has been so located and operated upon said highway and street ever since its construction.
    “Dated May 31, 1916.”
    It is this order which respondent reviews by certiorari.
   Brooke, J.

(after stating the facts). The first position taken by the appellant is that the provisions of the so-called Foote franchise are not now in force or binding upon the respondent:

(a) Because said franchise terminated by its self-executing provisions.
“(b) Because formal notice was waived by the traction company’s representative at the board meeting on July 1, 1902. The notice of forfeiture, Exhibit 1, as provided for in section 8 of the Foote franchise, was a ministerial act properly delegated to the township clerk and members of the board, and fully authorized by the original franchise resolution. No further formal action by the board was required for the purpose of declaring a forfeiture or authorizing the notice. Were such action necessary, it was furnished by the resolution of July 1, 1902.”

(a) It seems to be well settled that a forfeiture clause which would be self-executing and would dispense with judicial proceedings or the intervention of the attorney general must be plain and unmistakable in its terms (New York, etc., Bridge Co. v. Smith, 148 N. Y. 540 [42 N. E. 1088]), and it has been held that, where franchises are granted by the legislature to construct a street railway within a certain time with a provision that, if the provisions of the act are not complied with, the franchise should be forfeited, the failure, without legal excuse, to lay the track within the time limited, does not work a forfeiture of the right to construct without a judgment at the suit of the State declaring the forfeiture (Application of Brooklyn Elevated R. Co., 125 N. Y. 434 [26 N. E. 474]; Booth on Street Railways [2d Ed.], § 46; Union Street B. Co. v. Saginaw Circuit Judge, 113 Mich. 694 [71 N. W. 1073]), and a municipality may not forfeit a grant where a company has constructed its road after the time prescribed by the ordinance has expired, where, as in the case under consideration, such construction is carried on without interference from the municipality. It is particularly true that an effective forfeiture may not be extra judicially declared where the railroad company has entered upon the construction of the road in good faith, relying upon the grant. Knickerbocker Trust Co. v. City of Kalamazoo, 182 Fed. 871; Iron Mountain R. Co. v. City of Memphis, 96 Fed. 123 (37 C. C. A. 410); City of Detroit v. Plank Road, Co., 43 Mich. 144 (5 N. W. 275).

(5) With reference to the service of the -notice of forfeiture upon the person or company then holding the franchise and constructing the. road thereunder, it clearly appears that, though the notice was signed by every officer of the municipality, it was not so signed at any regular or special meeting of the board, and no resolution of forfeiture was ever passed by the township board. Municipalities in the performance of legislative acts or acts involving discretion and judgment can so act only at authorized meetings duly held, and the members of said board cannot make a valid determination binding upon the municipality by their assents separately or individually expressed. 2 Dillon on Municipal Corporations (5th Ed.), § 501, and cases cited in notes 4 and 5.

It is next asserted on behalf of appellant that the rate of fare given to the respondent by the franchise from the city of Jackson to the Jackson & Suburban Traction Company is controlling as to the transportation of all passengers east of First street in the city of Jackson. In support of this claim it is pointed out on behalf of respondent that the respondent, which is the operating company under a lease from the Michigan United Railway Company, which is. the assignee of the franchise granted by the city of Jackson to the Jackson Suburban Traction Company, operates its lines within the city of Jackson under the city of Jackson franchise which was granted a year or more before the so-called Foote franchise was granted through the township of Sandstone. It is clear from the record that through some sort of a traffic arrangement made as early as 1903 the operating company transported its cars through the township of Sandstone and over the tracks of the Jackson Suburban Traction Company within the city of Jackson to its interurban station, this station being located some distance east of First street. Later, on July 25, 1908, the Michigan United Railways Company, through mesne conveyances, became possessed of the franchise rights of the Jackson Suburban Traction Company. Thereafter the various operating companies then being the owners of all the franchise rights both in the city of Jackson and the township of Sandstone for a period of more than seven years carried passengers through the township of Sandstone to the interurban station within the city of Jackson east of First street at the Foote franchise rate of li/á cents per mile until 1915, when the new tariff was filed under which respondent asserted its right to exact a city fare from interurban passengers upon reaching the intersection of First and Main streets in the city of Jackson. The language of the Foote franchise is not obscure or ambiguous. It provides for a fare rate of 1% cents per mile “from any point within said township of Sandstone to any point within the city of Jackson and from any point within said city of Jackson to any point within said township of Sandstone.”

That Foote and his associates to whom said .franchise was given constructed that particular road only to the intersection of First and Main streets, within the city of Jackson, it seems to us is of no particular significance. They evidently intended to make traffic arrangements with the urban lines of Jackson by means of which the interurban cars could reach the center of the city, and this they were able to do until they, or the various companies succeeding to their rights, were able to acquire the entire system urban, as well as interurban. The construction given these contracts by the various operating and owning companies' during a period of 12 years, while perhaps not absolutely controlling, is most pursuasive (Rice v. Railway, 122 Mich. 677 [81 N. W. 927, 48 L. R. A. 84] ; Township of Ross v. Railways Co., 165 Mich. 28 [130 N. W. 358]), inasmuch as it has not been, observed that public service corporations habitually charge less than the tariff permitted by their franchise contracts. We conclude, then, that the road through the township- of Sandstone was built under the Foote franchise, and was and is operated under it, and that section 6 of said franchise is binding upon the respondent in this case, and under the terms thereof respondent must carry passengers from any point within relator’s township to its interurban depot within the city of Jackson at the franchise rate of 1% cents per mile.

Finally it is asserted on behalf of respondent that to enforce the terms of the ■ so-called Foote franchise would amount to a violation of the respondent’s constitutional rights. If we are correct in our conclusions hereinbefore announced, this claim requires no discussion.

The judgment is affirmed.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Fellows, JJ., concurred.


author: Brooke, J. Fellows, J.

text:
      In re REHFELD’S ESTATE. BLOSS v. SCHREITER.
    Banks and Banking — Joint Deposits — Statutes—Survivorship —Joint Tenancy in Personalty.
    Under Act No. 248, Pub. Acts 1909, § 3 (2 Comp. Laws 1915, § 8040), providing that when a deposit shall be made in a bank by any person in the name of the depositor or any other person, and in form, to be paid to either or the survivor of them, such deposit shall be the property of such persons as joint tenants, and may be paid to either during the lifetime of both, or to the survivor, the ownership of the fund is actually fixed, and the fund, in the absence of competent evidence to the contrary, when deposited, becomes the property of such persons as joint tenants, with the attendant right of survivorship. Fellows and Moore, JJ., dissenting.
    Error to Wayne; Codd, J.
    Submitted June 8, 1917.
    (Docket No. 17.)
    Decided September 27, 1917.
    George Bloss presented his final account as executor of the will of Charles Rehfeld, deceased. The account was disallowed in part by the probate court, and the executor appealed to the circuit court. Judgment allowing the account in full on a directed verdict. Arthur E. Schreiter, a residuary legatee, brings error.
    Affirmed.

      Munroe & Powell and Arthur E. Schreiter, for appellant.

      Dohany & Hersch, for appellee.
   Brooke, J.

In this case the deceased, Charles Rehfeld, on August 5, 1913, deposited in the Mt. Clemens Savings Bank the sum of $2,000 to the credit of “Charles Rehfeld or George Bloss or either or the survivor.” On February 27, 1915, the deceased made a last will and testament by the terms of which, after a number of specific bequests, he devised and bequeathed the residue of his estate to George Bloss and Arthur E. Schreiter, two-thirds to Bloss, and one-third to Schreiter. Shortly thereafter Rehfeld died. Bloss, who was named executor in the will, took possession of the estate and the evidences thereof and went to Mt. Clemens for the purpose of having the deposit in the Mt. Clemens Sawings. Bank transferred to himself as executor. There for the first time he learned of the terms under which the deposit had been made. He thereupon signed the signature card and withdrew the fund, claiming it to be his own. His account in the probate court was charged with said deposit, it being there held that the same constituted a part of the Rehfeld estate. Upon appeal to the circuit court this ruling was reversed, and the fund was held to belong to Bloss personally. From this decision Arthur E. Schreiter appeals; it being his contention that said fund is a portion of Rehfeld’s estate, and that he is entitled to one-third thereof as devisee of that proportion of the residue.

Appellee relies upon the provisions of Act No. 248, Pub. Acts 1909, section 3 (2 Comp. Laws 1915, § 8040) of which provides:

“When a deposit shall be made in any bank or trust company by any person in the name of such depositor or any other person, and in form to be paid to either or the survivor of them, such deposits thereupon and any additions thereto, made by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants, and the same, together with all interest thereon, shall be held for the exclusive use of the persons so named and may be paid to either during the lifetime of both, or to the survivor after the death of one of them, and such payment and the receipt or acquittance of the same to whom such payment is made shall be a valid and sufficient release and discharge to said bank for all payments made on account of such deposits prior to the receipt by said bank of notice in writing not to pay such deposit in accordance with the terms thereof.”

The State of New York has a statutory provision (section 144 of the Banking Law [1 Consol. Laws, chap. 2; Laws of 1909, chap. 10]) practically identical with the Michigan statute.

In March, 1913, in the case of Clary v. Fitzgerald, 155 App. Div. 659 (140 N. Y. Supp. 536), the identical question here at issue was considered. The court there said:

“It may be conceded that, had this provision not been added to the banking law, the charge of the trial court would * * * have been correct. * * * The effect of this added provision has not been directly at issue in any reported decision to which our attention has been called. In the case of Bonnette v. Molloy, 153 App. Div. 73 (138 N. Y. Supp. 67), in discussing the effect of a deposit similar in form to that before us in the present case, Laughlin, J., incidentally refers to the added provisions and says:
“ ‘If the moneys bad been deposited after tbe enactment of this statutory provision there could be no question but that the defendant [the survivor] would be entitled to the fund.’
“The effect of this same provision of the law is thus stated in Brady on Bank Deposits, p. 46:
“ ‘It must be added that, under a New York statute, a deposit of this character would to-day create an estate in joint tenancy, even without the delivery of the passbook. But, under that statute, once the deposit is opened, and the estate in joint tenancy created, the depositor cannot revoke the gift or take it back. If he draws the money and uses it, he is accountable to the donee as any other joint tenant of personal property would be.’ (It may be observed that equivalent statutory provisions were in 1909 adopted in California * * * and Michigan. * * *)
“The fact that this deposit was entered in form to the credit of intestate ‘or’ defendant by name, instead of to the credit of intestate ‘and’ defendant, does not change the effect of the deposit as one being in the names of both. Matter of Meehan, 59 App. Div. 156 (69 N. Y. Supp. 9) ; McElroy v. Savings Bank, 8 App. Div. 46 (40 N. Y. Supp. 422). The deposit, was one within the classification of the statute, made by the intestate in the names of herself ‘and another person and in form to be paid to either or the survivor of them.’ It would seem, therefore, if any effect is to be given to the direct and explicit language of the statute, this deposit, as the statute provides, thereupon, presumptively at least, became the property of the designated depositors ‘as joint tenants,’ i. e., as joint owners. * * *
“We think, therefore, that the necessary effect of this provision of the statute is that the single fact, unexplained by other competent evidence, that a deposit in a savings bank in the form in which this deposit was made fixes the respective rights of the depositors named as joint owners of the property with all the incidents attaching to such ownership. * * *
“We conclude, therefore, that the deposit in the bank of the fund in the form in which it was made was sufficient, in the first instance, to establish in this action a joint ownership in the fund with the attendant right of survivorship therein.”

This decision was affirmed in the court of appeals, 213 N. Y. 696 (107 N. E. 1075), without opinion.

In Anson v. Savings Bank, 155 App. Div. 939 (140 N. Y. Supp. 1017), it was held that, where a deposit was made to the credit of either of two persons, either or the survivor to draw, evidence of declarations and oral statements by them, made after the deposit, was admissible to show that it was not intended that they should own the deposit as joint tenants. See, also, In re Reynolds’ Estate, 163 N. Y. Supp. 803, where the deposit under consideration was held to be governed by section 144 of the banking law of New York, and that the use of the word “or” instead of the word “and” was of no consequence.

We ¿re of opinion that in. enacting' the legislation in question it was the legislative intent not only to protect banks in the payment of deposits made in the manner indicated by the statute, but, in the first instance and in the absence of competent evidence to the contrary, to actually fix the ownership of the fund in the persons named as joint tenants with the attendant right of survivorship therein.

But, aside from the statute, we think this case is controlled by our decision in Negaunee National Bank v. Le Beau, 195 Mich. 502 (161 N. W. 974), where it was held that the writing governing the deposit itself indicated on the part of the depositor “the intention to create in his daughter, Sophia Charles, a present estate in the fund * * * in case of his death.”

The judgment is affirmed.

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

Fellows, J.

(dissenting). It is not and cannot be claimed that, independent of the statute in question, joint tenancy in personal property, with the rights of survivorship', obtains in this State. It is undoubtedly true, as stated by some of the New York courts, and as claimed by appellee, that in many instances deposits in the joint names of husband and wife are made by the husband in such a manner as that money may be drawn by either. Eliminating from consideration the statute, the money in such cases is the property of the husband, the wife having no beneficial interest therein, but upon the theory of agency has authority to withdraw the same. This agency, as in other cases, terminates with his death, and the money then goes to his estate. It is undoubtedly true that prior to the passage of the act of 1909 thousands of dollars of deposits had been made in this manner under the then state of the law. The question here is: Was it the legislative intent to change the title to these thousands of dollars of deposits so held, and if such was the legislative intent could it be made effective under an act, the title to which reads:

“An act in relation to the payment of deposits of money in banks and trust companies by minors, trust deposits, and deposits, in the names of more than one person.”

The first section of this act deals with deposits of minors and the payment of the same; the second section deals with trust deposits and their payment; the third section is set out in the opinion of Mr. Justice Brooke, and deals with joint deposits. The concluding portion of section 3 is, to say the least, peculiar if the act has already absolutely fixed the title of such deposits. It is as follows:

“* * * And the receipt or acquittance of the same to whom such payment is made shall be a valid and sufficient release and discharge to said bank for all payments made on account of such deposits prior to the receipt by said bank of notice in writing not to pay such deposit in accordance with the terms thereof.”

Before this provision- the section in -terms makes such deposits “the property of such persons, as joint tenants.”

Outside of the provisions of section 3 here involved, the act shows a legislative intent to protect banks and trust companies in the payment of deposits of the character enumerated and is consistent with its title. Section 21, art. 5, of the Constitution provides in part:

“No law shall embrace more than one object, which shall be expressed in its title.”

The purpose of this constitutional provision is well known to the profession. It is that not only members of the legislature, but the public generally, shall have notice by the title of the act the purpose of the legislation, the subject involved. It was said by Mr. Justice Morse, speaking for the court in Brooks v. Hydorn, 76 Mich. 273 (42 N. W. 1122) :

“This purpose of the constitutional direction, which has been disregarded in this act, is that the intent of the bill — its object — shall be clearly shown by its title, for the benefit, not only of the members of the legislature who are to vote upon it, but also for the benefit of the people of the State outside of the legislature, who are interested and have a right to be, in all legislation, whether the same be general or special.”

See, also, Blades v. Water Com’rs of Detroit, 122 Mich. 366 (81 N. W. 271); Grosvenor v. Duffy, 121 Mich. 220 (80 N. W. 19); McDonald v. Township of Springwells, 152 Mich. 28 (115 N. W. 1066) ; Village of Fairview v. City of Detroit, 150 Mich. 1 (113 N. W. 368) ; Vernor v. Secretary of State, 179 Mich. 157 (146 N. W. 338, Am. & Eng. Ann. Cas. 1915D, 128); Shepherd v. Judge of Recorder’s Court, 175 Mich. 193 (141 N. W. 556).

Is the title to this act notice to the legislators, and the public generally, who are interested in the subjects of -legislation, that the long-established rule that joint tenancy in personal property in this State did not exist, was to be changed in part? Was this notice that the character of the title to thousands of dollars in property was to be changed by legislative mandate? I think not. Clearly one subject was expressed in the title, viz., the payment of deposits in banks and trust companies, not the character of the title, of such deposits. To make so radical a change in the law of the State, to my mind, requires some notice by the title that the subject of such change is being considered by the legislature. In so far as this act protects banks and trust companies in their payment of deposits of the character enumerated, I think the act is valid. In so far as it fixes the character and title of such deposits, I think it offends the constitutional provision above quoted.

Nor do I think the facts in the instant case bring it within the case of Negaunee National Bank v. Le Beau, 195 Mich. 502 (161 N. W. 974). Here the evidence, at most, only shows an intent to make a gift; there the evidence not only showed an intent, but its execution, so that a gift inter vivos was consummated.

For these reasons I dissent from the opinion of Mr. Justice Brooke. I think the case should be reversed.

Moore, J., concurred with Fellows, J. Ostrander, J., did not sit.


text:
    ANDRE v. DONOVAN.
    1. Deeds — Covenants—Building Restrictions — Abandonment.
    There was no abandonment of mutual covenants in a deed of one-half of all the portion of a block fronting ori a certain street restricting the use of the premises conveyed “only for residence purposes” by subsequent deeds of each of the owners of a portion of the land of each, the two strips sold adjoining, where, although the covenants were not in all respects similar, they were essentially similar, it being asserted in each deed that the property conveyed was to be used “only for residence purposes.”
    2. Same.
    A covenant against the use of premises for other than residential purposes is not broken by the use of a barn located on a corner of the premises as a garage and of a house formerly standing on the premises as a rooming house, where no objections were offered by other property owners or by their predecessors in title.

      3. Same.
    Where the entire portion of a block fronting on a certain street was subject to restrictive covenants against 'Use for other than residence purposes, there is no changé in the character of the neighborhood through the encroachment of business rendering enforcement of the covenants inequitable, where both sides of the street up to and including the property in question are residential in character, some of the residences being very costly, and to permit the erection of store buildings would be an injury to residence owners, although the part of the block not subject to the restrictions has become business in character.

    Appeal from Wayne; Van Zile, J.
    Submitted June 22, 1917.
    (Docket No. 142.)
    Decided September 27, 1917.
    Bill by Anthony J. Andre and others against Timothy R. Donovan to restrain the erection of a building in violation of certain building restrictions. From a decree for plaintiffs, defendant appeals.
    Affirmed.

      Ward N. Choate, for plaintiffs.

      Williams C. Harris and Seth J. Wicker, for defendant.
    In this case plaintiffs, who are the owners of three residences on the north side of Palmer avenue between Cass avenue and Woodward avenue, sought and obtained in the court below a permanent injunction preventing the defendant, who is the owner of a lot 60 feet by 150 feet on the northeast corner of Palmer and Cass avenues, from erecting thereon a block of stores covering the entire lot in violation of certain building restrictions. The history of the property in question shows that the block bounded by Woodward avenue on the east, Cass avenue on the west, Antoinette street on the north, and Palmer avenue on the south, originally consisted of nine or ten lots numbered from 13 to 22. Although, so far as said lots were occupied at an early date, they were occupied for residence purposes, the record does not show that the block generally was restricted to residence purposes. Prior to 1883, however, one Alfred F. Wilcox became the owner of a strip of ground 301 feet in frontage on Palmer avenue and about 150 feet on Cass avenue, being the northeast corner of Cass and Palmer avenues. While said Wilcox was the owner of said corner, and on June 14, 1883, he executed a deed of the easterly one-half thereof to one J. C. Hough, which deed contained mutual covenants of the parties in the following terms:
    “The parties hereto covenant and agree each with the other (with reference to his one-half of said parcel above described) as follows: (1) The said property shall be used only for residence purposes and no residence shall be erected thereon of a less value than four thousand dollars. (2) Said property shall not be divided into lots or parcels of less than fifty feet in width, and there shall be only one residence erected upon each lot or parcel. (3) The front of such residences, when erected, shall be not less than the following distances from the northerly side of said Holden avenue, viz.: Upon the lot nearest Woodward avenue,, forty feet; upon the second lot from Woodward avenue, forty-five feet; and upon all the other lots fifty. And no residence or other building shall be nearer than fifty feet from said Holden avenue, except the two residences above excepted. (4) No residence shall be erected so that any part thereof will be nearer than fifteen feet from the dividing line between the easterly and westerly half of said parcels as above determined. (5) Said Wilcox (Alfred F.) covenants and agrees that when a bam is erected upon the lot on the northwest corner of Woodward avenue and said Holden avenue, the north part thereof shall be at least seventy-three feet from said Holden avenue. All these covenants are intended to be binding upon the heirs and executors of the parties hereto, and upon their grantees of said premises.
    “Said A. F. Wilcox further agrees to erect upon the westerly half of said parcel a residence as above provided within eighteen months from the date hereof.”
    ■ Thereafter residences were built which occupied all of said 301-foot strip, which residences have been occupied to the present time, with the exception of that which had been erected on the comer lot, now owned by the defendant. That one has been demolished, and defendant has now made an excavation covering the entire lot with the intention of building thereon a business block consisting of six or eight stores. It is said that the houses owned by two of the three plaintiffs are operated as rooming houses. There is ho claim, however, on the part of the defendant that any business in its proper sense has been conducted upon any portion of the .301 feet covered by the restriction, with the possible exception that an old bam facing Cass avenue on the northerly corner of defendant’s lot was for a time operated as a garage. The record discloses that the balance of the block bounded as above shown has gradually changed from a residential to a business block, and that on Cass avenue business places have been erected in said block up to the northerly line of defendant’s property.
    On June 20, 1884, Wilcox sold to one Adeline L. Sprague 90 feet frontage of the land retained by himself, and Hough likewise on said date sold to the said Adeline L. Sprague 30 feet of the frontage acquired by him. These deeds severally contained the following restrictive covenants:
    Deed, Wilcox to Sprague:
    “Said first parties further agree that the adjoining lot of sixty and one-half feet front still owned by them shall be used only for residence purposes; that only one residence which shall be of brick shall be erected thereon the cost value of which shall not be less than four thousand dollars; the front thereof shall be not less than forty feet back from the northerly line of the street and the easterly walls of which shall be at least ten feet from the easterly line of said lot, and that the barn to be erected on the lot on the northwest corner of Woodward avenue and the Holden road shall be located as described in said deed from the first parties to Joseph C.' Hough.
    “Said second parties agree that no more than two residences shall be placed upon the one hundred and twenty feet front included in this deed and the deed this day made by J. C. Hough and wife to said second parties. That said residences shall be of brick, two stories high; the fronts thereof shall be at least forty feet back from the northerly line of the street and no part of either shall be nearer than ten feet from the westerly line of the parcel hereby conveyed and said property shall be used only for residence purposes and that two single two-story brick residences of the cost value of at least four thousand dollars each shall be erected upon said one hundred and twenty feet within one year from the date hereof.”
    Deed, Hough to Sprague:
    “Said second party agrees that the property hereby conveyed shall be used only for residence purposes and that within one year from the date hereof she will cause to be erected upon this parcel and that this day conveyed by A. F. Wilcox and wife to said second party two (2) two-story single brick' residences of the cost value of not less than four thousand dollars each. That no more than two residences shall be erected upon said two parcels without the written consent of said first parties, the fronts of which shall be at least forty (40) feet back from the northerly line of the street.
    “Said first parties agree that upon the adjoining one hundred and twenty and one-half, (120%) feet front still owned by them there shall be erected not more than two single residences, and that said property shall be used for residence purposes only, and that said residences shall be built of brick, and that the front of buildings placed thereon shall be at least forty (40) feet back from the northerly line of the street, and that the cost value of such residences shall be not less than four thousand dollars each.”
    From the decree awarding an injunction, defendant appeals.

       For cases discussing the question of multiple residence structures as a violation of restrictive covenants, see note in 45 L. R. A. (N. S.) 726.

   Brooke, J.

(after stating the facts). The first contention urged by defendant is that the two deeds from Hough and Wilcox to Sprague, dated June 20, 1884, operated as an abandonment of the restrictive covenants contained in the deed from Wilcox to Hough, dated June 14, 1883. Touching these deeds, it is said in argument:

“It is a singular and significant circumstance that, after making their mutual restrictive covenants in definite words, Wilcox and Hough should have omitted to affirm those covenants in making their later deeds to Mrs. Sprague; for it would have been the natural thing to mention them if they intended to perpetuate the covenants. Conversely it was perfectly competent for Wilcox and Hough, by appropriate language in their later deeds, to change or abrogate their former covenants, for they were still the only parties interested in the whole 301-foot strip, and the later deeds are of equal force with the first one.” I

We have examined the restrictive covenants contained in these two deeds with care, and find that in all essentials they agree with those contained in the earlier deed; at all events it is asserted in each deed that the property conveyed “shall be used only for residence purposes.”

It is next urged by defendant that the restrictive covenants, if not abandoned, have been broken by permitting the use of the premises now owned by the defendant for a garage and repair shop and the house formerly standing thereon for a rooming house, no objection having been offered by the plaintiffs nor their predecessors in title. Upon this point defendant cites several cases from foreign jurisdictions. The question has so frequently been passed upon by our own court contrary to the contention of the appellant that we find it unnecessary to go outside this State for authority. Moore v. Curry, 176 Mich. 456 (142 N. W. 839) ; Schadt v. Brill, 173 Mich. 647 (139 N. W. 878, 45 L. R. A. [N. S.] 726) ; Misch v. Lehman, 178 Mich. 225 (144 N. W. 556); Stewart v. Stark, 181 Mich. 408 (148 N. W. 393); Casterton v. Plotkin, 188 Mich. 333 (154 N. W. 151); Sherrard v. Murphy, 193 Mich. 352 (159 N. W. 524).

The contention of the appellant that the character of the neighborhood has so changed through the encroachment of business as to render enforcement of the restrictive covenants at this time inéquitable will be found treated in several of the cases above cited. Both sides of Cass avenge up to and including the property in question are residential in character; the residences in the immediate neighborhood in many instances being very tostly.

We have no hesitation in reaching a conclusion that to permit the erection of the structure contemplated by the defendant would very seriously injure not only plaintiffs, but others residing near by.

The decree is affirmed, with costs.

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


text:
    GAGUSH v. HOEFT.
    1. Trial — Conduct of Plaintiff — Discretion of Court.
    The fact that the plaintiff in an action of breach of marriage promise, aggravated by seduction, becomes hysterical during a recess, is not reversible error where the court cautions the jury with reference thereto.
    2. Breach of Marriage Promise — Seduction — Requests to Charge.
    In an action for breach of marriage promise, aggravated by seduction, a requested instruction that if the jury found that the only consideration for the promise, if any promise was made, of marriage, was a promise that, if plaintiff would submit herself to have sexual intercourse with, defendant, he would marry her in case she became pregnant, and that was the only consideration, the contract rested upon an immoral consideration and was void, was improperly refused.
    3. Same — Immoral Consideration — Validity.
    If a woman submits herself to the sexual embraces of a man solely in consideration of his promise to marry her if she becomes pregnant, such consideration is immoral and a promise based thereon is void.
    Error to Wayne; Mandell, J.
    Submitted June 21, 1917.
    (Docket No. 99.)
    Decided September 27, 1917.
    Case by Anna Gagush against William Hoeft for breach of promise of marriage accompanied by seduction. Judgment for plaintiff. Defendant brings error.
    Reversed.

      McHugh & Lee, for appellant.

      Silas E. Champe (Harold McIntyre, of counsel), for appellee.
    This is an action of breach of promise aggravated by seduction resulting in the court below in a judgment in favor of the plaintiff for $2,000. The plaintiff is a woman 35 years of age, a widow, and the mother of five children, the eldest being 17 years of age. Her husband had died in August, 1913. Defendant is 37 years of age, a widower, and the father of four children. Plaintiff claims to have met the defendant first in November, 1913, when a casual conversation lasting but a few moments occurred. It is her claim that upon the next occasion she met him, July 12, 1914, the meeting occurred in Woodmere Cemetery, where she had gone with one of her daughters to take care of her husband’s grave. She testified that on that occasion he walked up to her and said, “How do you do?” inquired of her where her husband’s grave was, how old her children were, and told her the ages of his own; that he inquired how much she paid for her husband’s headstone, and told her how much he had paid for that of his wife. Plaintiff then testified in part as follows:
    “Q. What other subject did you and Mr. Hoeft talk about besides the headstone and your children?

      “A. Well, about marrying me. He asked me how I would like to have him for my man, and I said, ‘Why, Mr. Hoeft, you don’t want me; I am poor, and your family would not like to have me marry you.’ He said, T don’t want any one else; I just want you.’ * * * When he asked me if I would like him for my man, I said, ‘Why, Mr. Hoeft, you don’t know me, and you ask me that the first,’ and he said, T have known you a long time and been watching you many times, been watching many times for you,’ and I said, ‘I am so homely and poor, and you can find some one you like better,’ and he said, T don’t want any one else; you look like a girl;’ and he said, ‘Will you marry me?’ And he looked right in my eyes, and I said, T will.’ ”
    With reference to the seduction she testified as follows:
    “There was a small path he led me, and I said, ‘Mr. Hoeft, I don’t want to walk here; I believe there are snakes.’ He said, ‘Nothing can harm you as long as I am with, you.’ He got the place and put his coat on the grass like this and put his arms out and said, ‘Kiss me, you are mine/ pulled me in and got me to sit on the ground by pulling and hugging and insisting, and forced me to submit to him. He did this after he made the promise to marry , me. He talked about marriage, and he said not to worry one bit, he would keep his word; he was a man; had sense; no one could part him from me. He seemed awfully good to me. He took out his handkerchief and wiped my forehead and told me not to worry one bit, for he knew that if I got into the family from that time he would stay home to-morrow and go down and get a marriage license, and I was not to worry, and he would marry me as soon as he could.”
    Upon cross-examination with reference to the. seduction and the alleged promises to marry she testified :
    “He did tear my underwear. He tore it all to pieces; not the top clothes, but the underwear. He forced me to submit to him. I would not have permitted him if he had not forced me. He also told me that if I would submit to him, that he would take care of me if I got in the family way. I would not have submitted to him if he had not made that promise. He promised to marry me first; when I got in the family way he would marry me. If I got in the family way or not, he promised to marry me. He promised me first before going to the back of the cemetery,. right by the grave. When he forced me to submit to him by strength, he made the promise that he would marry me if I got in the family way, and he promised to marry me over at the grave again. I relied upon that promise. I let him proceed. I would not have submitted under any consideration if he did not make that promise. On the 13th he promised even if I did not be in the family way he promised to marry me. There was a promise of marriage if I got in the family way on the 13th. I would not have submitted then if it was not for that promise; I don’t think I would in such a place as that. That state of affairs took place on the 12th of July and on the 12th and 26th. They were* all alike promises of marriage of marrying me if I got in the family way on each time, and I would not have submitted If he did not promise to marry me. When he forced me to submit to him I would not have submitted if that promise had not been given. He overpowered me. His. strength and his promise is what niade me submit.”
    Defendant categorically denied every assertion made by the plaintiff except that he had a casual acquaintance with her and had spoken with her on-a very limited number of occasions. No witness aside from the parties themselves was present or testified to the promise of marriage except the 12-year-old daughter of plaintiff. Considerable testimony was introduced with reference to alleged conversations between the parties to the action and others subsequent to the alleged breach of the contract tending, if believed, to cast discredit upon the claims of both parties.
   Brooke, J.

(after stating the facts). The first 16 assignments of error are based upon alleged errors in the refusal of the court to charge as requested by defendant and to the charge as given. These assignments will be discussed later.

Assignments 17, 18, 19, 20, and 22 are based upon alleged errors in receiving or excluding testimony. With reference to these assignments it is sufficient to say that we find them without merit.

Assignment 21 is based upon the ruling of the court in refusing to declare a mistrial on account of the action of the plaintiff, who during a recess appears to have become hysterical. This matter was one addressing itself to the sound discretion of the trial court, who cautioned the jury with reference thereto in such manner as to fully meet the requirements of the situation.

The 24th assignment of error is based upon alleged errors committed by counsel for plaintiff in his final argument to the jury. It is unnecessary to hold that the language used by counsel constitutes, reversible error, for the reason that the case must go down for a new trial upon another ground, but it may be said that thé language used was open to criticism, and should be'avoided upon another trial.

The 7th assignment of error is based upon the refusal of the court to give defendant’s 11th request to charge, which is as follows:

“I charge you that, if you find in this case that the only consideration for the promise, if there is any promise in the case, of marriage, was a promise that, if she would submit herself to have sexual intercourse with him, he would marry her in case she became pregnant, if you find that was the only consideration, the only arrangement or contract, then I instruct you that that is a contract resting upon an immoral consideration and is void, and the plaintiff could not recover.”

The court upon this point charged the jury:

“Now, gentlemen of the jury, there is one thing that I know I have omitted, and that is this, the plaintiff claims' that the seduction that she claims occurred in this case followed the promise to marry, and that without the promise to marry she would not have submitted herself to the defendant. The defendant claims that there is evidence in the case that the seduction was based upon a promise to marry in case of the seduction resulting in the birth of a child.
' “Now, gentlemen of the jury, if you should find from a consideration of the evidence that the seduction was brought about by reason of promise of marriage in case, and only in case, the plaintiff should become in the family way by reason of this seduction, then, gentlemen of the jury, no damages can be awarded because of the seduction, and your consideration must be given only to the charge of the promise to marry. I state that because the plaintiff’s claim is that the seduction was based solely and alone upon the promise to marry. Now, putting that in another way, I will say this the plaintiff is entitled to recover damages for both the breach of promise to marry, in case you find that there was a promise, and the seduction only in case you should find the seduction was based solely and alone upon the general promise to marry and upon no other promise. In case you should find that the seduction was based upon the promise to marry in case the plaintiff became in the family way, then, gentlemen of the jury, this action resolved itself into a question whether or not the plaintiff is entitled to recover damages by reason of the breach of promise to marry, and that alone.”

This identical question was raised in the case of Jaskolski v. Morawski, 178 Mich. 325 (144 N. W. 865). There plaintiff had secured a judgment for breach of promise of marriage accompanied by seduction. There the claim was made on behalf of appellant that the promise of marriage was void because the consideration was immoral. We there said:

“Counsel cite authorities which he claims sustain his contention. We have examined them, but we do not deem it necessary to decide whether he is right in his contention for the trial judge held with him, and instructed the jury.”

Then follows the charge of the court to the jury upon this question, in the course of which the trial judge said:

“Now, should you find the fact to be that the defendant promised plaintiff solely upon the consideration that she should permit him to have sexual intercourse with her, or solely on consideration that she should have sexual intercourse with him, and if she became pregnant and had a child he would marry her, and that there was no other consideration or promise, then and in such case I instruct you that the promise to marry rests upon an immoral consideration and is void, and your verdict should be for the defendant.”

We sent that case back for a new trial upon other grounds, but this portion of the charge was not disapproved by this court. While it may be said that it was not distinctly approved and a citation from the case of Spellings v. Parks, 104 Tenn. 351 (58 S. W. 126), might be construed as indicating the contrary, we are of opinion that the instruction is sound and should have been given without qualifications in the case at bar.

If the plaintiff submitted herself to the sexual embraces of the defendant solely in consideration of his promise to marry her if she became pregnant, such consideration would clearly be immoral, and defendant’s promise based thereon would be void. The following cases are authority upon this point: Davie v. Padgett, 117 Ark. 544 (176 S. W. 333); Boigneres v. Boulon, 54 Cal. 146; Hanks v. Naglee, 54 Cal. 51 (35 Am. Rep. 67); Judy v. Sterrett, 153 Ill. 94 (38 N. E. 633); Eve v. Rogers, 12 Ind. App. 623 (40 N. E. 25); Saxon v. Wood, 4 Ind. App. 242 (30 N. E. 797) ; Sramek v. Sklenar, 73 Kan. 450 (85 Pac. 566) ; Donallen v. Lennox, 6 Dana (Ky.), 89; Edmonds v. Hughes, 115 Ky. 561 (74 S. W. 283); State v. Howard, 264 Mo. 386 (175 S. W. 58); Button v. Hibbard, 82 Hun (N. Y.), 289 (31 N. Y. Supp. 483) ; Steinfeld v. Levy, 16 Abb. Prac. (N. S.) 26; Baldy v. Stratton, 11 Pa. 316; Spellings v. Parks, 104 Tenn. 351 (58 S. W. 126); Burke v. Shaver, 92 Va. 345 (23 S. E. 749); Connolly v. Bollinger, 67 W. Va. 30 (67 S. E. 71, 20 Am. & Eng. Ann. Cas. 1350); Beaumont v. Reeve, 8 Q. B. (Eng.) 483. See, also, 5 Cyc. p. 1000, note 12.

We are not unmindful of the fact that plaintiff gave testimony which would tend to support the theory that a promise to marry was given before and quite independent of the alleged seduction. Her testimony upon cross-examination, however, was such as to warrant, we think, the submission of the question to the jury under the request proposed by defendant’s counsel.

The judgment is reversed, with costs, and a new trial ordered.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Fellows, JJ., concurred.