author: Moore, J. Brooke, J.

text:
    FILLINGHAM v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Railroads — Negligence—Speed op Train — Witnesses—Competency.
    Witnesses who had sufficient opportunity to see a train when it was running, and to observe where it stopped, after striking an automobile bn a highway crossing, held, competent to testify as to its speed in an aetipn for personal injuries alleging negligence of defendant for running- at an excessive rate of speed.
    2. Same — Negligence—Question for Jury.
    Conflict in the testimony as to whether a box car on the siding obstructed plaintiff’s view of the approaching train, as to the speed of the train, and as to whether the crossing signals were given, held,, to render them peculiarly questions for the jury.
    3. Same — New Trial — Weight of Evidence.

      Held, that the verdict in favor of plaintiff was not against the great weight of the evidence.
    4. Same — Contributory Negligence — Crossing Accident.
    Where plaintiff stopped, looked, and listened, but saw and heard nothing, when about 50 or 60 feet from the track, • if the view of the main track was so obstructed by a box car on the siding that after passing the obstruction there was no safety zone in which to stop, look and listen, the court below was not in error in not applying the rule requiring the driver of an automobile to do so before proceeding to cross the track.
    Steere, Brooke, and Fellows, JJ., dissenting.
    Error to Oakland; Rockwell, J.
    Submitted June 11, 1919;
    reargued November 5, 1919.
    (Docket No. 42.)
    Decided December 22, 1919.
    Case by Charles Fillingham against the Detroit, Grand Haven & Milwaukee Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Harrison Geer (H. R. Martin, of counsel), for appellant.

      Pelton & McGee, for appellee.
   Moore, J.

This suit is brought to recover for personal injuries received at the crossing of defendant’s railroad and Saginaw street at Holly. From a judgment in favor of the plaintiff the case is brought here by writ of error.

Saginaw street runs north and south and the railroad northwest and southeast, the street intersecting the railroad at an angle of 60 degrees, 37 minutes. The automobile was being driven south. The train came from the west on the main line. Saginaw street is. 85 feet wide on the north side of the railroad. There is a sidewalk north of the main track, crossing Saginaw street and running alongside Seeley’s coal shed, which is west of the street. The distance between the north rail of the main track and the south side of the coal shed is 18 feet and a fraction. From the north rail of the main track to the south rail of the sidetrack is 8.3 feet. The sidetrack is 4 feet 8 inches wide. From the north rail of the sidetrack to the south side of the coal shed is 5.8 feet. Besides the coal shed and office there are two telegraph poles, one 12 and the other 8 inches in diameter, and a safety gate, on the west side of Saginaw street.

The plaintiff’s version of what occurred is as follows :

“There was a coal office on my right side as I went south, as shown on this exhibit. There were freight cars there and a coal shed. My son drove the car from my home to Holly. It was around ten when we started to go home. My son backed, cranked up the car and got in, and I got in, and we backed off into the street. It is a left hand drive car. I was sitting on the right hand side of him. There was no one else in the car. When we backed out into the street we stopped. The car was headed towards the south then. We looked and listened before going across the track, and then went ahead. We started south towards the crossing and stopped and looked and listened, and I told my boy to go ahead, didn’t hear any sign of any train or anything, and he drove the car in low, had the car in low and going very slowly and when we approached the track, the crash came and that is all I remember. There were gates at that crossing, but they were up. When we got up to the track there were freight cars to the right of us. I know where the coal, shed is. With reference to the freight car, it was on the north side of the track, close to the sidewalk. I have reference to this sidewalk that runs along the west side of Saginaw street. There were cars on the east side, on the north track. The first thing I remember after I was struck I was in Mr. Clyde Hadley’s house, a gentleman living there in Holly. They had started to take me to the doctor, but he was sick so they carried me over to Mr. Hadley’s.”

On the cross-examination he testified:

“My son had to crank the automobile and as soon as that was done we got right into the car and backed out into the street to the middle of it. As soon as we had backed out a sufficient distance, we turned the car and headed to the south. * * * I didn’t discover this engine which collided with my car before it did collide. I saw no headlight and didn’t hear the car coming down from the west. I was very familiar with that crossing and had been for a good many years. I know that trains coming from the west have to cross over Saginaw street in order to get to the depot. I didn’t hear or see anything until I was struck by the engine. My car was nearly across the track. I know something struck my car in the rear. My car was thrown to the south and was struck right over the right rear wheel. If I had been a few feet further south the car would not have been torched. I don’t remember when I was picked up; I was not conscious, didn’t know anything for a long time.”

On the redirect-examination he testified:

“I said we were about fifty or sixty feet from the track when my son stopped the car and we listened and then proceeded toward the crossing, going south. As we approached the north side of the track my son was driving the car in low. I sat right side of him and was listening and watching to see if there was a train anywhere near. I heard and saw none. There was nothing to have prevented me from hearing the whistle if it had been given.”

The son’s version is as follows:

“I got in the car first and started it, and then my father got in. Then I backed out into the street. I recall the sewer grate there; my car was parked south •of that, towards the crossing. Then after I had backed out, we headed south. We stopped, looked each way, and listened, and proceeded very slowly and cautiously toward the tracks. I was driving the car and was on the left hand side of the seat. My father was on the right side. The top was up, but there were no side curtains on. From that point on we proceeded very cautiously towards the tracks, by running very slowly, and as we approached very near the tracks we nearly came to a complete stop, not quite, and still were looking in both directions, and then we went on and were struck. When we got up to the track, I observed a box car south and east of the coal sheds, on the north sidetrack, I believe. That obstructed the view to the west. From the front seat of a Ford car to the end of the radiator it is about six feet, I believe. We didn’t hear any bell ringing; we were listening all the time. We heard no signal, no whistle. The first knowledge I had of the train was when a bright light seemed to appear and the next second it hit us. After we were struck the first thing I realized was that I was on the ground there, trying to get up. I was somewhere south and east of that crossing. How far, I don’t know. It would be south of the gates, on the east side. Afterwards, when I saw the automobile, it was near the sidewalk somewhere by the gates. I should think it was probably sixty feet or so. I did not see my father just then, but did before he was taken to Mr. Hadley’s. He was somewhere in the garden, and some men were picking him up. I went along with him over to Mr. Hadley’s. * * * Dr. Keller looked after him.
“I saw the car after the accident. It was struck over the right hand wheels, towards the rear end. From the time I started to crank my car and start it home, I did not hear any signal from a train, whistle, bell, or anything else. There was nothing I know of to prevent my hearing it. As we proceeded south dowtn Saginaw street, I think we were about in the middle of the highway.”

On the cross-examination he testified:

“The south end of my car at the time I started to go south across the track was about 45 or 50 feet north of the track.
“Q. And at that time and before you started, did. you see this box car standing there at your right?
“A. No, sir.
“Q. How near the track did you get when you discovered that box car standing at your right?
“A. Pretty close to the track.
“Q. Is that right, the east end of the box car would be east of the east side of Seeley’s coal shed?
“A. I believe it was. I didn’t take any particular notice to see how far the box car projected east of the coal shed. I saw the box car; I knew it was there when I was about ready to cross the tracks. We drove up very slowly for about forty feet. My engine was running all the time after I cranked it up, up to the time of the collision. It made some noise. As we came up there just north of the box car, we went along very slowly, came almost to a stop. When we got by the box car we looked to the west.
“Q. When you got by the box car the box car hid the view, the bright light of the train was there; did you know that the box car would hide your view from an approaching train?
“A. I didn’t notice it at the time. We were just about on the sidetrack when I discovered the box car standing there west of Saginaw street. The east end of the box car was perhaps thirty feet or so west from us. It was just as we came up there, right on the track, that we discovered that flashlight from the head of the engine.
“Q. Well, how long do you think you had discovered that flashlight from the headlight of the engine before you attempted to cross over?
“A. Probably instantaneous. * * * I think that you can look west and see a train approaching from the west if there is nothing on the sidetracks, at least a mile and a half. On this occasion there were the coal sheds and Pox car to hide my view. You couldn’t look west for at least a mile and a half across that bend when you were on the south side of the coal sheds, if no box cars were standing there, unless you were in the middle of the track. Within eighteen feet of this track you cannot look west if there isn’t anything on the tracks, and see for at least a mile and a half. I have made tests several times recently. You would have to. be within six or seven feet of the track before you could look west a mile and a half, that is, if there were no box car there. That would be either on,foot or in the automobile. I did not observe this box car until we came up there on the track; did not observe it before.
“Q. Well, how near did you get to it when you'first discovered that it was there on west of Saginaw street?
“A. Probably within eight or ten feet.
“Q. Then, during the last ten feet, when you were driving, before you got to the box car, you knew it was there and that it would cut off your view from seeing a train approaching from the west, didn’t you?
“A. I knew it was there but I did not observe that it would cut off the view at the time. I didn’t think anything about the view at that time. I think I was between the sidetrack and perhaps the front end of the machine was on the main track when I discovered the light. I didn’t remember anything further about the light, it came so suddenly, the next thing was the collision. I didn’t have time to try to go faster after I discovered the headlight of the engine. I was going at a slow1 speed at the time, and had not changed it Up to the time of the accident. I understood the use of the brake. It depends on how hard you put on your brake how quickly you can stop a Ford going five or six miles an hour. You can stop it within two or three feet. My car was going at about three or four miles an hour, so that at any time I think I could have stopped it within three feet.”

On the redirect-examination he testified:

“My best judgment is that the automobile was on the main track when I saw the light. There was a very short time between when I saw the light and when I was. struck; it was practically instantaneous. To put the car into reverse you have to release, if you are driving slow, and put it into neutral and press on the reverse. You would, in driving in low speed have to stop and release your clutch and then back up. I did not have time to take those steps when I discovered that train.”

Several witnesses testified the train was running 25 or 30 miles an hour and that they heard neither whistle nor bell though they were listening at the time.

It was the claim of the defendant that the train was running but 15 miles an hour, that a crossing whistle had been blown at the proper place, that the bell was rung continuously, and that there was no car, on the siding to obstruct the view to the west.

It is the claim of the appellant:

“1. The defendant was not guilty of any negligence.
“2. The plaintiff was guilty of contributory negligence.
“3. The verdict of the jury was contrary to the great weight of the evidence.
“4. There was error in the refusal to give certain instructions and in the charge as given.”

We quote from the brief:

“The only charges of negligence in this case as to which there may be room for argument is with respect to the speed of the train, and whether signals, by whistle and bell, were properly given. It is our contention that there is no testimony which rises to the dignity of evidence that the defendant was negligent in these particulars. * * *
“This court in a number of cases has had occasion to consider the question of the qualification of a witness to testify as to speed, but in this case we raise no question respecting the qualification of these witnesses. Our point is with respect to their opportunity for observation.”

Counsel cite Mott v. Railway Co., 120 Mich. 127; Canerdy v. Railway Co., 156 Mich. 211, and other cases. In both of these cases the court held the questions of negligence of defendant and the contributory negligence of the plaintiff were for the jury. In the instant case the witnesses had, sufficient opportunity to see the train when it was running and to observe where it stopped, to make it competent for them to testify. Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 104; Thomas v. Railway Co., 86 Mich. 496; Line v. Railway Co., 143 Mich. 163, and cases cited therein; Garran v. Railroad Co., 144 Mich. 26. We again quote from the brief:

“Second. As to the signals, by whistle and bell, given for the purpose of warning.
“On this point the testimony is apparently conflicting, but when it is examined it will be found that the testimony relied upon to show that the signals were not given is negative in character, while that to the effect that the signals were given is of a positive nature. In cases where testimony claimed to show failure to give signals is of a negative character, this court has held that such testimony is to be wholly disregarded as against the positive testimony that they were given. Stewart v. Railroad Co., 119 Mich, 91; Britton v. Railroad Co., 122 Mich. 359; Bond v. Railway Co., 128 Mich. 577.”

A number of witnesses testified that they were observing the train and listening for the signals for reasons which they gave in detail, and that they saw and heard no signals for this crossing. We think this made a question for the jury. Cotton v. Railway Co., 99 Minn. 366 (109 N. W. 835, 8 L. R. A. [N. S.] 643, 9 Ann. Cas. 935); Crane v. Railroad Co., 107 Mich. 511; Lonis v. Railway Co., 111 Mich. 458; Hinkley v. Railway Co., 162 Mich. 546; Tietz v. Railway, 166 Mich. 205; Nichols v. Railway Co., 203 Mich. 372.

We again quote from the brief:

“If there was any evidence to take the case to the jury on the question of negligence and contributory negligence — and we strenuously insist there was not —then we must urgently contend that the verdict is contrary to the great weight of the evidence. In arguing the questions of negligence and contributory negligence before the question of the weight of the evidence we do not wish to be understood as indicating in the slightest degree that we regard the strength of our position on the latter question as less than on the former. On the record in this case, if there was an assignment of error only with respect to the weight of the evidence, we should feel confident that the verdict must be reversed.” Citing In re McIntyre’s Estate, 160 Mich. 117, 120, 121; Brown v. Railroad Co., 183 Mich. 574, 585, 586; Barger v. Bissell, 188 Mich. 366; 204 Mich. 416; Malloy v. Railway Co., 192 Mich. 344, 352; Miller v. Railway, 200 Mich. 388.

It must be conceded the testimony is conflicting. As' to the car on the siding, nine witnesses, including the plaintiff and his son, testified to the presence of this car west of the sidewalk. On the contrary, defendant produced the baggageman at Holly who testified from the record kept by him that there was no car on this siding at the time of the accident, that the last car which had stood there prior to the accident was taken away three days before. Defendant also produced the conductor of the train which took away, three days before the accident, the car which had stood on this siding. Mr. Seeley, the owner of the coal sheds, testified that there was no car on this siding up to six o’clock on the evening of the accident, and none there Monday morning. Other witnesses testified that there was no box car there. Someone was mistaken or guilty of. falsifying. This conflict in the testimony as to the car on the siding, as to the speed of the train, and whether the signals were given, made them peculiarly questions for the jury.

We again quote from the brief:

“Defendant’s requests to charge, numbers 3 and 5, cover the point that an automobile driver is held to the same degree of care as a pedestrian; instead of that applying to the driver of an animal-drawn vehicle. This is the dpctrine laid down in Colborne v. Railway, 177 Mich. 139, 149, cited and quoted approvingly in Sanford v. Railway Co., 190 Mich. 390, 399. In the former case, Steere, C. J., said, respecting the duty to look and stop if necessary, just before entering upon the track:
“ 'This rule should be as strictly applied to an automobile as to a pedestrian.’
“The trial judge did not cover this point in his general charge, and hence the 7th and 8th assignments of error should be sustained.”

If the isolated sentence counsel quote is read in connection with what precedes and follows it will be apparent that the opinion did not justify the giving of the requests which were preferred. *

In the instant case plaintiff claimed, and his witnesses testified, that before he entered upon a field where his vision was obstructed he stopped, looked and listened and saw and heard nothing indicating an approaching train; that he proceeded cautiously. It is his further claim that the coal office, the coal sheds and the box car made it impossible to see an approaching train while he was still in the safety zone. The distance from the main track to the siding was less than nine feet, the overhang of the box car was a foot and a half and the overhang of the locomotive was more. From the driver’s seat to the front of the automobile was six feet, so that it is apparent that after passing the box car, if one was there, the occupants of the automobile did not have any safety zone in which to stop, look and listen. The testimony was conflicting as to whether there was a box car on the siding, as to the speed of the train, and the giving of the signals. The testimony offered on behalf of the plaintiffs, if believed, made a case for the jury. On the other hand, if the witnesses offered by the defendant were believed, they made a complete defense. The case was carefully tried by able counsel and was submitted properly to the jury. We find no reversible error.

Judgment is affirmed, with costs to the plaintiff.

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

Brooke, J.

(dissenting). The distance between the sidetrack and the main track was 8.3 feet. The box car standing on the main track, as claimed by plaintiff, was'nearly 60 feet distant, so that as.plaintiff approached the main track, his view to the west was constantly widening. The evidence to the effect that no box car stood there as claimed by the plaintiff, including as it does the written records of the movement of the car in question, kept by defendant in the regular course of business, is very persuasive.

The weight of the evidence upon the question of the sounding of the statutory signals is upon the side of defendant. Plaintiff’s automobile, according to his own testimony, was being propelled at a very low rate of speed and could have been stopped within three feet. A strong headlight was burning upon the engine with which he collided, projecting its rays from 800 to 1,000 feet ahead. Under the facts as disclosed by this record plaintiff was clearly guilty of contributory negligence under the authority of the following cases: Colborne v. Railway, 177 Mich. 139; Sanford v. Railway Co., 190 Mich. 390; Gillett v. Traction Co., 205 Mich. 410.

The judgment should be reversed and a new trial ordered.

Steere and Fellows, JJ., concurred with Brooke, J.


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    MARX v. SCHULTZ.
    1. Aepeal and Error — Assignments of Error — Sufficiency.
    An assignment that “the court erred in directing á verdict in favor of the defendants,” where defendants offered no testimony, and there could he no possible uncertainty as to what was meant by the assignment, helé, sufficiently specific.
    2. Negligence — Death—Poisons—Inference—Question for Jury.
    In an action by plaintiff for the wrongful death of his wife, claimed to have been caused by an overdose of arsenic due to the negligence of defendants, the owners of a drug store, in substituting the word “teaspoonful” in the label on the bottle, for the words “three drops” in the doctor’s prescription, the testimony of a reputable physician, in answer to a hypothetical question stating the facts and describing her symptoms thereafter, that such symptoms are caused by an excessive dóse of arsenic and probably would result in her death, helé, sufficient to warrant the drawing of an' inference favorable to plaintiff sufficient to warrant presenting the disputed question of fact as to the cause of her death to the jury.
    3. Appeal and Error — Weight of Evidence — Jury Question.
    The weight of the testimony is primarily for the jury.
    4. Trial — Examination of Witnesses — Discretion of Court.
    Where it was almost obligatory upon plaintiff to put the attending physician upon the stand in order to make his case, the court below should have been more liberal in allowing plaintiff to examine him as to certain incidents between them in order to show that the doctor had become adverse and unfriendly to plaintiff’s cause.
    Error to Wayne; Gage (William G.), J., presiding.
    Submitted October 9, 1919.
    (Docket No. 21.)
    Decided December 22, 1919.
    Case by Richard Marx against George M. Schultz and others, copartners as the Peninsular Drug Company, for the negligent killing of plaintiff’s wife. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Reversed.

      Thomas A. Conlon, for appellant.

      Thomas M. Cotter and William Wisner Taylor (E. Dean Alexander, of counsel), for appellees.
    This action was brought by Richard Marx for $25,-000 damages alleged to have been suffered by him on account of the death of his wife, Lydia Marx, caused, according to his claim, through the negligence of the above named defendants, or some of them. It appears that on November 30, 1915, Lydia Marx was being treated by Dr. Francis McNamara for a skin rash, his treatments having extended back to about the middle of that month, although he had been conversant with her condition for five years and had been one of several physicians in attendance on her from time to time during that period. It is disputed in the record as to the exact nature of the ailments that she had previously suffered, her husband having testified that her previous condition was “fair” and that with the exception of an operation for a “pus case in the ‘abdomen’ ” and a few minor ailments, her health had been that of an ordinary woman. This assertion is denied by Dr. McNamara, whose testimony is as follows:

      “Q. How long, then, if that is your answer, had this patient been suffering from Bright’s disease?

      “A. I think she was suffering for about four years. She had an infection about four years ago and had a very severe operation. I think — it is my opinion that the Bright’s disease dates from that time because Bright’s disease is simply an infection of the kidneys brought about by some bacterial poisoning.”
    Dr. McNamara was the only one of the doctors who had previously treated Mrs. Marx who was called by the plaintiff. His diagnosis corresponds to that of Dr. Brandt, the county physician, who stated in his testimony that the post mortem, examination of the organs of Mrs. Marx which he made soon after her death was the basis for his opinion that she had died of chronic Bright’s disease of from one to ten years standing. Other similar and relative evidence, indicative of the dispute over the condition of the health of the deceased prior to November 30, 1915, was introduced.
    On that date, however, a consultation was held in plaintiff’s presence between Dr. McNamara and Dr. Varney, a specialist on skin diseases, and the latter then told the plaintiff that his wife was suffering from an eruption of the nerves. It was decided, as a result of this consultation, to prescribe Fowler’s solution of arsenic, and Dr. McNamara thereupon wrote out a prescription directing the taking of three drops of this substance in water after meals, three times daily.
    This prescription was handed to the plaintiff, who sent it to a drug store at 563 Dix avenue, in Detroit, this establishment being the property of some of the defendants. There is some confusion in the record as to who were the actual owners of the drug store at the time the prescription was filled, but this question did not become material because of the directed verdict for the defendants. It is clear, however, that the prescription was filled at this drug store, and that it was delivered at the Marx home late that afternoon by one of the clerks. The bottle containing it bore a label similar to those pasted on ordinary druggist’s bottles but there was nothing to indicate the poisonous nature of the liquid. On the label appeared Dr. McNamara’s name, followed by the direction: "Teaspoonful in water after meals three times daily. 11-30-15.” Upon receipt of this medicine, Mrs. Marx was given a teaspoonful, in accordance with, directions. Immediately thereafter she appeared to be in great agony and threw herself from side to side of the bed, complained of pains in her stomach and tried to vomit. She soon became unable to speak distinctly. Plaintiff returned to his home about five o’clock, and at that time the face and body of Mrs. Marx were swollen and she could answer the plaintiff’s questions only indistinctly and with difficulty. Plaintiff immediately tried to get Dr. McNamara by telephone, but owing to the doctor’s absence, Was not able to get him until about 12 o’clock midnight, when the doctor went to plaintiff’s, home.
    The record shows that when the doctor arrived he was very much astonished to discover Mrs. Marx’s condition, but when shown the bottle, he immediately scratched out the word “teaspoonful” and substituted • “three drops” and administered an antidote for the overdose that she had taken. He thereupon left the house, stating in effect that he wished to go to the drug store to see his written prescription. In his testimony Dr. McNamara states that he found this just as he had written it — “three drops after every meal.” This is undisputed, which seems to indicate conclusively that the mistake in the directions on the label was due to the negligence of someone at the drug store. Thereafter, Dr. McNamara removed the bottle containing the arsenical solution, without saying any-, thing to the plaintiff about it. The latter missed it, and he called at the doctor’s office in regard to it. The • doctor admitted having it and offered it to the plaintiff, but plaintiff insisted that he return it, which he did. When it was returned, there was a label pasted over the original label, which stated in part: Directions, Poison. Fowler’s. Solution.
    .Lydia Marx suffered almost continuously from this time until the date of her death, February 7, 1916. Her condition is thus described by the nurse who took care of her:
    “I found her very sick and delirious part of the time — most of the time. Her mouth and throat were very sore, they was just a solid canker. She could not eat scarcely anything. She had no appetite. What we did give her was forced, of course; liquid, something very soft. And she was very nervous and had spells, she would jerk off the bed. They would go then, and then they would come on. I am not positive but I think in the evening she was worse that way. She seemed to be more delirious at night than she was during the day, and the bowels Were very bad. They were a slimy substance streaked with blood, the urine scant.”
    The above described condition seems to have continued until her death, whereupon the plaintiff brought this action, claiming that the overdose of Fowler’s solution had caused arsenical poisoning and Was the direct and proximate cause of her death.
    At the conclusion of the testimony for the plaintiff, counsel for defendant Schultz moved for a directed verdict, which motion was granted by the trial court, who, in addressing the jury, stated the following:
    “In this sort of cases it becomes necessary, in this and other cases like it, it becomes necessary for the plaintiff to prove by a preponderance of evidence, by the evidence of experts, those who know, what was the cause of the party’s death, that the party died from the administration of the medicine which it is alleged was administered to the deceased. * * *
    “I am satisfied, gentlemen of the jury, that the plaintiff has not shown by evidence which is necessary to establish his case, that this wife of the plaintiff in the case died from the effects of the overdose of this arsenical preparation which was administered to her out of this bottle in question and in my view it is not a case that should be submitted to the jury. * * * It is an interesting question as to who owned this drug store at that time, and that would have been a question which the judge would have felt it would be his duty to submit to you to determine on the evidence in the case as to who were the owners of this drug store and I would also have instructed you that whoever was the owner was responsible for any injury that occurred. But I direct you, gentlemen of the jury, to render a verdict of not guilty or no cause for action in this case.”
   Kuhn, J.

(after stating the facts). Fourteen assignments of error are relied upon by the plaintiff and the principal reason urged for reversal in this court is that the court erred in directing a verdict in favor of the defendants and in not submitting to the jury the question as to the cause of the death of plaintiff’s wife.

Preliminary to a discussion as to whether or not there was evidence in the record to warrant the submission of the case to the jury, it is necessary to consider a claim urged now by counsel for the defendants. It is urged that the general assignment of error that “the court erred in directing a verdict in favor of the defendants” is not specific enough, and that under Supreme Court Rule No. 11 judgment should not be reversed for that reason, relying upon the case of Jackson Bridge & Iron Co. v. Insurance Co., 122 Mich. 433. We are of the opinion, however, that the present situation falls within the rule announced in Conely v. Dudley, 111 Mich. 122, which is referred to in the Bridge & Iron Co. Case, supra, as an exceptional case. Here, as in that case, no testimony was offered by the defendants and there can have been no possible uncertainty as to what was meant by the assignment as made. It was. equivalent to saying that there were facts in the case upon which a jury might find plaintiff entitled to recover. No one could possibly have been misled. See, also, Wolfe v. Stack, 153 Mich. 445.

Was there any testimony in the case to warrant the submission of the controversy to the jury? The following hypothetical question was submitted to Dr. Swartz, a physician of 25 years’ practice and a graduate of the University of Michigan, who stated that he had made a study of the effect of arsenic on the human body:

“Q. The evidence in this case shows that on the morning of November 30, 1915, Dr. Francis W. McNamara, the physician in attendance, wrote out a prescription for Fowler’s solution of arsenic as a remedy for a skin rash, from which Lydia Marx was, complaining; that the prescription directed three drops of that solution after each meal as a dose, but by mistake the directions on the label of the bottle, when it came from defendants’ drug store, where the prescription was filled, read {One teaspoonful after meals.’ _ That one teaspoonful was given Lydia Marx, according to those directions, and immediately thereafter she appeared to be in great pain, suffered inward convulsions, threw herself from one side to the other of the bed, and continually tried to vomit. That her whole body became greatly swollen. Her mouth and tongue so increased in size that she could hardly talk. That after November 30, 1915, large ulcers came in her mouth and nose; her eyes were swollen and liquid appeared therein. Her appetite was poor and she complained at times of pains about her heart and an irritable condition of her bowels. That the movement of her bowels was frequent and the substance passed therefrom was bloody and yellow in color. That she was delirious off and on from the time she received the overdose of the solution of arsenic, and her general conditions heretofore named continued down to the time of her death, February 7, 1916. In your opinion, would such conditions be caused by the overdose of Fowler’s solution of arsenic which Lydia Marx received, and would the said overdose be the proximate cause of her death? * * *
“A. Those symptoms are caused by an excessive dose of arsenic and probably would result in her death.”

We are of the opinion that this testimony was sufficient to warrant the drawing of an inference favorable to the plaintiff sufficient to present the disputed question of fact — which should have been presented to the jury — as to the cause of the death of the plaintiff’s wife. As to whether the testimony of the defendants’ witnesses outweighed that of the plaintiff’s is a question for the jury to determine in the first instance.

Some question is also made by plaintiff’s counsel of the undue limitation by the trial court' of the examination of Dr. McNamara, whom plaintiff was required to call. An attempt was made to show certain incidents that occurred between the doctor and the plaintiff, in order to make it appear that Dr. McNamara had become adverse and unfriendly to the plaintiff’s cause. We are of the opinion that the judge should have been more liberal in allowing a showing of this character to be made, in view of the fact that Dr. McNamara, being the attending physician, it was almost obligatory upon the plaintiff’s counsel to put him on the stand in order to make his case.

Other questions are discussed by counsel for the defendants which might be properly before the court if judgment had been obtained against them, but as upon this record the only assignments of error are upon the part of the plaintiff, we do not consider that these questions become material in the discussion of the case at this time.

Upon the record as here presented, we are of the opinion that the trial court erred in directing a verdict for the defendants, and the cause musttherefore be reversed and a new trial ordered, with costs to the appellant.

Bird, C. J., and Sharpe, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred.


author: Bird, C. J.

text:
    HOLMES v. CONNELL’S ESTATE.
    1. Wills — Construction—Intent.
    In the construction of a will the cardinal duty of the court is to find the intention of the testator.
    2. Same — Legacy as Compensation for Services.
    A clause in testator’s will providing a legacy for his housekeeper, with the statement therein that it “is given as a token of my regard and appreciation of her services,” held, to indicate his intention to place a just estimate on the value of her services and to compensate her therefor.
    3. Same — Acceptance—Claim Against Estate — Estoppel.
    Plaintiff, having accepted the legacy given her as compensation for her services as housekeeper for testator, is thereby precluded from thereafter maintaining a claim for the same against his estate.
    For authorities discussing the question of law governing construction of wills generally, see note in 2 L. R. A. (N. S.) 443.
    Error to Muskegon; Vanderwerp, J.
    Submitted October 30, 1919.
    (Docket No. 70.)
    Decided December 22, 1919.
    Julia M. Holmes presented a claim against the estate of Patrick J. Connell for services rendered. The claim was disallowed by the commissioners, and plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      Alex. Sutherland, for. appellant.

      R. J. Macdonald (D. A. Macdonald, of counsel), for appellee.
   Bird, C. J.

Julia M. Holmes, the plaintiff, presented a claim against the defendant estate for “time, labor and services for four years last past in caring for, nursing and housekeeping for Patrick J. Connell in his lifetime, at $15 per week, $3,120.” The commissioners disallowed the claim. On appeal, in the circuit court, she was awarded the full amount of her claim.

On behalf of the estate it is insisted that the trial court was in error in refusing to direct a verdict for the defendant. This contention is based upon the defense of payment. It appeared by the evidence that the testator made a will in November, 1916, a few months before his decease, in which he gave plaintiff a legacy amounting to $5,315. It is claimed that the language of the will is such that it clearly appears to have been the intention of the testator to thereby compensate plaintiff for her services. That after the will was probated plaintiff accepted this legacy and thereby precluded herself from maintaining a claim against the estate. The complaint of the defense is that the trial court should have charged the jury in accordance with this contention and so put an end to the case.

The record discloses that plaintiff’s mother married the deceased when plaintiff was a mere child. Plaintiff grew to womanhood in Patrick’s family and later married. Her husband lived only a few years and in 1909 she and her two children returned to the home of Patrick where they remained and she cared for the old people until the fall of 1913, when her mother died. Patrick "was then 77 years old and in feeble health. His physician advised him that if he would prolong his life he should remove to Arizona. He did so and induced plaintiff to accompany him and serve him as housekeeper and nurse. They lived there four years when Patrick died. Plaintiff then returned to Muskegon, her home city. The testimony shows many expressions of Patrick, indicating that he was very fond of plaintiff and greatly appreciated the splendid care which she had given him.

In November, 1916, he made a will disposing of an estate, as nearly as can be gathered from the record, of about $10,000. He gave plaintiff a legacy which was valued at $5,315 and the balance he gave to relatives and friends, save a small trust fund of $500, the income from which he directed should be devoted to maintaining his lot in the cemetery, and to religious purposes. The bequest to plaintiff was as follows:

“(2) I give, devise and bequeath to my daughter, Julia M. Holmes, my home near Tucson, Arizona, my automobile, and all my household goods and furniture; also 250 shares of the capital stock of the P. J. Connell Company, in addition to the insurance which has already been assigned to her. Mrs. Holmes has been my housekeeper and companion for years, and this bequest is given as a token of my regard and appreciation of her services.”

The cardinal duty of this court is to find the intention of the testator. This must be gathered from the face of the will, if the language will permit. If the provision is ambiguous, or is subject to a double construction, and, therefore, involved in doubt, the court will place itself in the situation of the testator as nearly as it can and view it from the angle from which he viewed it. Sondheim v. Fechenbach, 137 Mich. 384. A careful study of the language of the will convinces us that it was the intention of the testator to pay his debt to plaintiff with the provision which he made for her in his will. The words, “Mrs. Holmes has been my housekeeper and companion for years, and this bequest is given as a token of my regard and appreciation of her services,” used in connection with the language making the bequest, is persuasive that he had in mind the payment of his debt to plaintiff. As is pointed out by counsel, the word “appreciate” is defined as meaning to “estimate justly,” or to set a price or value on. Bouvier Law Dictionary, p. 217. The testator was very appreciative of plaintiff’s services. This he made clear by the will and by reason of this appreciation he undertook to place a just estimate on the value of her services by giving her what amounted to $5,315, a sum much in excess of plaintiff’s own estimate of her services. •

If we are to look beyond the face of the will to gather testator’s intention it becomes more apparent that this was his intention. The size of the estate would lend credence to this view. If testator intended to give her $5,315 without reference to the sum he owed her, and to this gift was to be added the amount due her for services, it would practically exhaust the estate and leave very little to satisfy other provisions of the will, and no one knew this better than he. Had the estate been a large one, plaintiff’s contention would be more plausible, and the same would be true had he made payments from time to time on account of her services. Should we construe the provision in accord with the contention of plaintiff there would be little or nothing left of the estate, and his bequests to other legatees would be defeated, or nearly so. While the testator manifested great appreciation of plaintiff’s services and kindness, we are not persuaded that he intended to give her practically his entire estate. In support of this construction, see Rubert v. Rubert, 126 Mich. 589; In re McNamara’s Estate, 155 Mich. 585.

In view of the fact that plaintiff had accepted the legacy we think there was no basis for her recovery in the present suit. The motion of defendant should have been granted. The judgment will be set aside without a retrial, with costs to appellant.

Sharpe, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    HARVEY v. GEORGE.
    1. Principal and Surety — Bond—Discharge of Surety — Injury to Surety.
    A surety on a building contractor’s bond is not released from liability because the owner did not withhold 10 per cent, until final payment, as provided in the contract, where the money was used to liquidate demands for which, if unliquidated, the owner would be liable.

      2. Same — Question for Jury — Verdict Non Obstante Veredicto,
    In an action by the administratrix of the owner against a building contractor and his surety on the bond, where, under the testimony, it was a question for the jury as to whether any payments were made by the owner other than for materials and labor which the contract obligated him to pay, the court below was in error in setting aside the verdict of the jury in favor of plaintiff and directing a verdict in favor of the surety because the owner had not withheld the 10 per cent, provided for in the contract.
    Error to Wayne; Sharpe (Nelson), J., presiding.
    Submitted October 24, 1919.
    (Docket No. 11.)
    Decided December 22, 1919.
    Rehearing, denied April 10, 1920.
    Assumpsit by Alice M. Harvey, administratrix of the estate of William M. Harvey, deceased, against Henry F. George, principal, and the Fidelity & Deposit Company of Maryland, surety, on a bond. Judgment for plaintiff against defendant George, and for defendant surety non obstante veredicto. Plaintiff brings error.
    Reversed as to defendant surety and judgment entered on the verdict.

      Wilkinson, Boutier & Binkley, for appellant.

      Warren, Cady, Ladd & Bill' (Horace W. Bigelow, of counsel), for defendant surety.
   Bird, C. J.

Defendant George, a building contractor, entered into a written contract on January 20, 1915, with Dr. Harvey, plaintiff’s intestate, to construct a residence for him in the village of Grosse Point, for the sum of $11,832.22. In order to secure the faithful performance of the contract the defendant surety company joined with George in a bond in the sum of $6,000, running to Dr. Harvey. When the residence was finally finished Dr. Harvey found he had paid out on account thereof $3,303 more than the contract price. On account of the disinclination of the principal and surety to make good their undertaking this suit was begun.

The surety company interposed several special defenses, namely: The failure of Dr. Harvey to observe the conditions contained in the bond and contract. At the conclusion of the evidence motions were made by both parties for a directed verdict, but these were overruled, the court being of the opinion that the jury should pass upon the question whether the conditions had been observed by Dr. Harvey, and if not, whether they had resulted prejudicially to the surety company. The questions were accordingly submitted to the jury and they returned a verdict for the plaintiff in the sum of $2,000.

Subsequently, upon motion of the surety company, the court directed a judgment for the surety company, notwithstanding the verdict of the jury, on the sole ground that the failure of Dr. Harvey to retain 10 per cent, of the contract price until the work was finished was, as a matter of law, prejudicial to the surety company, citing in support thereof the cases of Prairie State Bank v. United States, 164 U. S. 227 (17 Sup. Ct. Rep. 142); Fidelity & Deposit Co. v. Agnew, 152 Fed. 955 (82 C. C. A. 103); Justice v. Surety Co., 218 Fed. 802 (134 C. C. A. 490); Wells v. Surety Co., 222 Fed. 8 (137 C. C. A. 546); People v. Banhagel, 151 Mich. 43.

The stipulations of the contract concerning payment are as follows:

“Article 3. The owner agrees to pay the contractor in current funds for the performance of the contract, eleven thousand eight hundred and thirty-two dollars and twenty-two cents ($11,832.22), subject to additions and deductions as" provided in the general conditions of the contract.
“Article 4. The owner agrees to make payments on account of this contract on the certificate of the architect, as follows:
“Less ten (10%) per cent, to be withheld until final payments shall be made on or about the first of each month. Before any payment is due, the contractor shall file with the said architects a correct schedule of the value of all materials actually built into the building and of all labor performed between payments and shall also file waivers of liens or sworn statements of all liabilities under this contract. '
“In no case, however, shall the contractor be entitled to a payment which, in the judgment of the architect, will leave the balance withheld insufficient to complete the work.
“Article 5. * * * It is further agreed between the parties hereto that the said owner shall, between the first and tenth of every month, pay all bills for materials furnished on the premises for masonry, cut stone, iron and carpentry under this contract, said bills being approved by said contractor. Also the said owner shall pay to the said contractor or to his subcontractors for materials and labor in the amounts due for payrolls as the work progresses and shall pay the sum of forty ($40.00) dollars per week to the contractor, beginning February seventh (7th), 1915, and to terminate May fifteenth (15th), 1915. Balance of money due the said contractor as per schedule, furnished before first payment is made and filed with architect, with exception of percentage withheld, to be paid as follows:
“On the mason, cut stone and iron work, when building is cleaned down and accepted by said owner and architects. On the carpenter work when interior woodwork is finished and accepted by said owner and architects. Percentage to be 'Withheld as otherwise provided in this contract.”

The record discloses that Dr. Harvey paid to the material men and to George for payrolls and $40 per week for himself, as provided in the contract, the sum. of $16,173.35. Adding to this sum certain items for grading, and deducting the contract price of $11,832.-22, leaves an overpaid balance of $4,638.96. Reducing this excess payment by the cost of “extras” leaves a net overpayment of $3,303. The contractor testified that Dr. Harvey kept records of all moneys paid and to whom it was paid, and that “there was never any 10 per cent, withheld.” That Dr. Harvey did not withhold the 10 per cent, in making payments must be conceded, but plaintiff’s counsel say the reason for the non-observance of the stipulation was due to the fact that the Doctor was under contract obligation to pay for labor and materials, and that when he did so the surety company was in no wise prejudiced; citing Doyle v. Faust, 187 Mich. 108; People v. Traves, 188 Mich. 415.

1. Counsel contend that the case of Doyle v. Faust, supra, laid down the rule that “where money is used to liquidate demands, for which, if unliquidated, the plaintiff would be liable, does not release the bonding company even though the 10 per cent, was not withheld.” If counsel are right in their interpretation of this opinion, and we think they are, a question of fact was raised under the proofs whether any payments were made by Dr. Harvey other than for materials and labor. The contract obligated him to pay these items and also the $40 per week to the contractor. Presumably the latter was for services. The testimony shows that Dr. Harvey paid to material men and to George for payrolls, the sum of $16,173.35. There is no testimony to show that he paid anything to the contractor as profits, and we discover no claim of counsel that there was such a showing. George did not testify that anything was paid him on account of profits. The jury had the canceled checks, bills and receipts for moneys- disbursed. They had the testimony of the contractor and others who were engaged upon the work. From all this testimony the jury could determine approximately what the actual cost of construction was. By comparing this cost with the sum actually paid by Dr. Harvey it could be ascertained with reasonable certainty whether anything was paid to the contractor as profits. A survey of the whole account is rather persuasive that there were no profits in the job for the contractor, and that his prospective profits were absorbed by the cost of material and the high price of labor. The testimony, at least, is open to that inference. The question was one for the jury and we are of the opinion that the first impression of the trial court was the right one.

In this view of the case it becomes unnecessary to determine whether a presumption of injury to the surety would arise upon mere proof that the stipulation had been violated by the owner.

The judgment for the defendant surety company must be vacated and a judgment entered in the trial court for plaintiff on the verdict of the jury. The plaintiff will recover his costs in both courts.

Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Sharpe, J., did not sit.


text:
    PHILLEY v. PHILLEY.
    Diyop.ce — Extreme Cruelty — Intention — Possibility of Reconciliation.
    In proceedings for a divorce by a husband on the ground of extreme cruelty, where the record sustains the finding of the court below that the acts of misconduct on the part of the wife were largely due to her run down physical condition and her highly nervous temperament, and that she had no intention of being cruel to plaintiff, and in view of the facts that in the meantime she has had treatment in a hospital with beneficial effect, and that her viewpoint has changed, the decree of the court below, who had the advantage of seeing and hearing the witnesses and of obtaining an impression as to whether the breach might not possibly be healed, dismissing the bill, will be affirmed.
    On relations between one spouse and relatives of other as affecting the question of desertion or cruelty, see notes in 13 L. R. A. (N. S.) 222, 34 L. R. A. (N. S.) 758, and L. R. A. 1915E, 161.
    Appeal from Allegan; Cross, J.
    Submitted October 15, 1919.
    (Docket No. 54.)
    Decided December 22, 1919.
    Bill by Frank M. Philley against Lunella Philley for a divorce. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Clare E. Hoffman, for plaintiff.

      Wilkes & Stone, for defendant.
   Kuhn, J.

This is an action for divorce. The plaintiff, 38 years of age, was married to the defendant, 33 years of age, on the 4th of August, 1914. They have two children: Marion, born December 3, 1916, and Eldon, born August 28, 1918. At the time of their marriage, the plaintiff, his mother, and two sisters were living upon the old homestead — a farm of 100 acres, near the city of Allegan. This farm had been devised by the father to the plaintiff, subject to the life estate of the mother, charged with the payment of a legacy of $2,000 to the sisters within three years after the mother’s death.

On the day of their marriage, the mother and the sisters moved their household goods from the farm to Allegan, where they took up their residence, and the son took the farm, paying a rental therefor to the mother. The plaintiff and his wife lived together until the 25th of November, 1918, when the plaintiff filed this bill for divorce, charging the defendant with extreme cruelty, setting forth as specific grounds of cruelty the fact that his wife had a violent temper and refused to permit him to hold social intercourse with his relatives; threatened to leave him, her home and their children, saying that she would never return; that she repeatedly threatened to kill herself; that she assaulted him on two occasions; that she threatened to kill the plaintiff and the children; accused him of not being loyal to her and indulged in fits of sulking and anger to such an extent that it became impossible for him to longer live with her as his wife. Some of these allegations are denied by the defendant.

After hearing the proof, the trial judge dismissed the plaintiff’s bill and made the following finding:

“The proofs fail to sustain the allegations of the bill of complaint. The acts of which the plaintiff complains are the result of a nervous condition of the defendant and not of any intention of being cruel to the plaintiff.”

A lengthy review of the testimony in this record will serve no good purpose. The record cannot be read without gaining the impression that, in view of the fact that the little children — whose interest should be carefully considered — are vitally concerned, it is exceedingly unfortunate that another effort was not made to effect a reconciliation. The disposition of the wife with reference to this is well shown by her testimony, a portion of which is quoted below:

“When I went to Ann Arbor, I must have weighed about 75 or 78 pounds; they told me I gained all of 15 pounds while there. When I left, I weighed 94%, and mentally, things have changed a great deal. My mental attitude is changed entirely. There isn’t the hopelessness about it because I realize that one had got to submit to circumstances, just accept whatever comes now and then, be contented with the. little or much one can do with your own- physical strength. I was putting too much nervous, tension into my work, but I know now there is such a thing as relaxation that I didn’t know then. Since my nerves and I got rested, I have not had any inclination to take my life; and I think Frank and I could work things out alone; that we could work things out very harmoniously, and I do realize that I have been at fault and that I can forgive. It would be easy to feel bitter about many things but I can forgive everything. I certainly cared for Frank, have the same tender, wifely regard and affection for him that I had when I married him, with more understanding, and the children are everything to me. I have suggested to Frank at various times relative to leaving the farm and trying it where it wasn’t two babies and 100 acres and a lumbago back and hay fever in August and malaria fever at the hospital and several other things that have been described, and it would be the joy of my life to try it out under those conditions. It would be the joy of my life if Frank could take the same attitude that I do and I think we owe it to our children and to each other. In my honest judgment, Frank can’t take the work himself and the burden that is connected with that 100-acre farm; it has been an awful load for Frank as well as me. I would like to forgive and forget and start fresh and I think Frank cares for me. I can’t tell but I know he is naturally so tender and so good and so true to me that I don’t believe — and naturally so not harboring any grudges nor anything like that when he is his best self, he is so fair and so true and so kind in every way that I have felt it more and more, gradually.
“Q. Whether or not you did notice marked changes in his feeling or his actions toward you after he had been together for a week and as against where he would be down with his people?
“A. Why, there always has been, perhaps it was partly my attitude, but I know it’s made a great difference, that there would be a coldness and a lack of sympathy with my viewpoint of things only after it had been discussed. There is a close family union between Frank and his mother and sisters and I would not injure that in any way.
“Q. Whether or not you felt you were ever taken into the inner circle of that holy of holies?
“A. I think possibly I was as much to blame for not being taken in closer because of many things, perhaps my oversensitiveness; I know I was oversensitive.
“Q. Now that you have got your nerves together, would you be oversensitive?
“A. Of course there is a natural tendency there; I know I would fight it a great deal harder than I ever have.”

It can be gleaned from this statement on the part of the defendant that many of the acts of conjugal unkindness of which she was guilty while living with her husband, during the time she was bearing his children, owing to the strain of the hard work which she endured, are now acknowledged by her to be things which she ought not to have done. Her interference with his effort to keep on friendly relations with his mother and her threats to take her own life and those of her children are subject to extreme criticism and can only be excused by the fact that her physical condition rendered her not responsible for such acts.

The marriage relation is not to be lightly entered upon and its great responsibilities are not to be easily thrown aside. That this plaintiff has suffered greatly is a fact of which the record is convincing, but a careful study of the case still leaves the conviction that the trial judge, who had the benefit of seeing and studying this frail woman as she testified on the witness stand, was justified in concluding, after a careful consideration of the facts in the case, that the acts of misconduct on her part were largely due to her rundown physical condition and her highly nervous temperament. In order to improve herself, she voluntarily went to the hospital at Ann Arbor and there, for the first time, seems to have come to a realization of the fact that she might, by an effort on her part, overcome her extreme sensitiveness and her nervous temperament. Coming back to the old homestead where her mother-in-law had taken her place and making an overture for reconciliation shows a disposition on her part which, at least, is to be highly commended.

Under these circumstances, we are not inclined to disturb the conclusion of the trial judge, who, as before said, had the great advantage of seeing and hearing the witnesses and of obtaining an impression as to whether the breach which occurred is one which might not possibly be healed.

The decree will be affirmed, with costs to the defendant.

Bird, C. J., and Sharpe, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred.


text:
    DRINAN v. CLOVER LEAF CASUALTY CO.
    1. Insurance — Accident Insurance — Failure to Issue Policy— Liability.
    Where plaintiff’s husband made application for accident insurance in defendant company, and paid the premium, which had not been returned or a policy issued at the time of his death, defendant’s liability would not be any greater than if the policy had been actually issued.
    2. Same — Restrictive Policies — Remedy—Courts.
    That many so-called accident policies are filled with such restrictions and limitations as to make it impossible to recover thereon in many cases is a condition to be remedied by the legislature and not the courts, whose duty it is to enforce the contracts as they are made by the parties thereto, if legal.
    3. Same — Construction oe Policy — Restricting Liability.
    Plaintiff’s contention that the proviso limiting defendant’s liability to such loss as occurred within 30 days from the date of the accident applied to the loss of members of the body only, and not to loss of life, held, at variance with the plain provisions of the policy.
    4. Same.
    Plaintiff’s husband having lived for more than two months after the accident, the conclusion of the court below that defendant was not liable, held, correct.
    Case-made from Muskegon; Vanderwerp, J.
    Submitted October 29, 1919.
    (Docket No. 95.)
    Decided December 22, 1919.
    Assumpsit by Sarah E. Drinan against the Clover Leaf Casualty Company on a policy of insurance. Judgment for defendant on a directed verdict. Plaintiff appeals.
    Affirmed.

      James E. Sullivan, for appellant.

      Cross, Foote & Sessions (if. P. Samuell, of counsel), for appellee.
   Kuhn, J.

The plaintiff’s husband, David Drinan, was a resident of the city of Muskegon, engaged in the flour and feed business. On May 31, 1918, he paid to Mr. Cotharin, who was the general agent of the defendant insurance company, $10, as a premium for accident insurance in said company, and received from him the following receipt:

“$10.00 May 31, 1918.
“Received of David Drinan...........ten dollars. Being payment due with application for $10.00 insurance in the Clover Leaf Casualty Company, Jacksonville, Illinois, which payment will be at once returned to the applicant if his application be not accepted. If accepted no further payment will be due until May 31st, 1919.
“Form No. 287.
“W. H. Cotharin, Detroit, Mich.”

No policy of insurance was issued on this receipt and on June 24, 1918, Mr. Drinan met with an accident, in falling off a high stool in his office, and received serious injuries. It is claimed that as a result of these injuries he died on the 29th of August, 1918.

The defendant company was notified of the accident by Mr. Drinan during his lifetime and some correspondence was had with the company with regard to the claim, it being asserted by the company that the application had never been received by it. A new application was sent to Mr. Drinan which he filled out and signed, but up to the time of his death, no policy •had been issued.

Suit was brought by the plaintiff, claiming that a contract existed between the defendant company and David Drinan, based upon the receipt that was issued, and that David Drinan was insured for one year from May 31,1918, agains* accident and injury which would entitle plaintiff to an indemnity of $5,000 against defendant by the said contract. To this the defendant pleaded the general issue and attached to the pleadings a notice of special defenses. It was claimed that the only form of policy which the defendant executed upon the application for $10 insurance was such a policy as was annexed to the notice and is known in the record as Exhibit “A.”

The trial judge, after hearing the proofs, came to the conclusion that the plaintiff had no standing in court because, in his opinion, the liability of the company would not be any greater in this case than if the policy had been actually issued and that the policy which is referred to in the application itself and in evidence in the case was a limited policy, restricting the liability to a certain kind of accidents. That it clearly appeared that the accident which is claimed to have resulted in the death of Mr. Drinan was not covered by the contract of insurance, except, possibly, in one clause of the policy where the limit of the liability was $100. He held further that there could be no liability under this latter provision of the policy because it clearly provided that, in order to hold the insurer liable for this amount, the loss of life of the insured must result within 30 days from the accident, it appearing that the plaintiff’s husband lived for more than two months after the date of the accident.

It is apparent that if the trial judge was correct in this conclusion it must necessarily effectually dispose of the various claims of the plaintiff in this litigation. It is unfortunately true that many so-called accident policies, filled with such restrictions and limitations as to make it impossible to recover thereon in many cases of accident, are allowed to be sold in this State. The remedy for this, however, lies with the legislature and not with the courts, whose duty it is to enforce the contracts as they are made’ by the parties thereto if the contracts are such as can be legally entered into.

Part 1 of the contract provides as follows:

“Part 1.
“Indemnity for Death, Dismemberment or Ldss of Sight.
“Payments shall not be made for more than one loss enumerated in above ‘Payments in One Sum.’
“(The loss of any member or members specified above shall mean the loss by actual and complete severance at or above the wrist or ankle; loss of eye or eyes shall mean the irrecoverable loss of the entire sight thereof.)
“Provided such loss shall result within thirty days from date of accident, from accidental bodily injuries, solely and independently of all other causes, and only if such injuries are sustained as follows:
“ (1) While actually riding as a passenger in a place regularly provided for the transportation of passengers within a steam, surface, underground or elevated railroad car, or steamboat, provided by a common carrier for passenger service only (aerial machines or conveyances excepted); or
“ (2) While riding as a passenger in any passenger elevator (elevator in mines excepted), in a place regularly provided for the sole use of passengers; * *

It is the contention of plaintiff’s counsel that the paragraph in parentheses should be read as if no parentheses were there and that the proviso immediately following should apply only to the explanatory and parenthetical sentence immediately preceding it. With this construction, however, we cannot agree, because the reading of this part of the policy clearly indicates that the proviso does not refer to the paragraph in parentheses but refers to that part of the policy immediately preceding the parenthetical sentence.

We see no escape from this conclusion that the trial judge was clearly right in construing the policy as he did and that the plaintiff, being bound by its terms, had no standing in court.

The judgment of the court below will therefore be affirmed.

Bird, C. J., and Sharpe, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred.


text:
    PRESTON v. PRESTON.
    1. Contracts — Parties in Interest — Right op Third Party to Maintain Suit — Applicability op Statute.
    On rehearing the case of Preston v. Preston, 205 Mich. 646, that part of the former opinion invoking the statute (3 Comp. Laws 1915, § 12361), providing that “in all equitable actions persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs,” is eliminated, and the applicability of said statute is undetermined.
    2. Same — General Rule — Exception.
    Where a blind daughter was present when an agreement between .her father and mother, whose duty it was to support her, was made for her benefit, she was not a stranger within the rule announced in Modern, Maccabees v. Sharp, 163 Mich. 449, but rather a party to the contract, thus coming within the exception announced in Palmer v. Bray, 136 Mich. 85, and therefore could enforce the contract in equitable proceedings.
    Appeal from Newaygo ; Barton, J.
    Submitted January 29, 1919.
    (Docket No. 48.)
    Decided May 29, 1919.
    Resubmitted November 5, 1919.
    Former opinion affirmed December 22, 1919.
    Bill by Nettie Preston against Shinar Preston and others for the reformation of a deed. From a decree for plaintiff, defendants appeal.
    Affirmed.

      William J. Branstrom and Charles B. Cross, for plaintiff.

      White & Reber, for defendants.
   On Rehearing.

Kuhn, J.

In the majority opinion (205 Mich. 646), the second contention advanced by the counsel for the defendants — that the agreement made between two persons for the benefit of a third, a stranger to the consideration, will not support an action by the latter either at law or in equity — is answered by calling attention to section 12361 of 3 Compiled Laws of 1915, a part of the judicature act, and which section is set up in the opinion.

A rehearing was granted by this court for the reason that it appeared that the question of whether this section was. applicable to the situation here presented was not argued in the briefs of counsel nor upon the oral argument, and briefs were invited and have been submitted with reference to this question. As there is a doubt in the minds of some of my associates as to the applicability of this statute, and as, for the purpose of this case, after mature consideration, the decision with reference to this point may be rested on other grounds, it becomes unnecessary to invoke the statute, and that part of the majority opinion with reference thereto need not be considered to have any deciding force or effect.

By the decision of this court in Knights of Modern Maccabees v. Sharp, 163 Mich. 449 (33 L. R. A. [N. S.] 780), the conclusion with reference to this rule is stated to be that a stranger to a contract for whose benefit the contract is made cannot enforce it and that no difference should be made in proceedings at law and in equity, although it appears from an earlier decision of the court — the case of Palmer v. Bray, 136 Mich. 85 — that the court said:

“It has been repeatedly held by this court that in a suit in equity a person for whose benefit a promise is made may enforce it in his own name. See Corning v. Burton, 102 Mich., at page 95 (62 N. W. 1040)

It was there further said:

“* * * That principle has no application to this case, for several reasons. In this case, though the consideration (which was entirely adequate) was furnished by Betsey Doolittle, the mortgagor’s promise to pay the principal was made to his children. They were not, therefore, strangers to the contract. On the contrary, they were parties to the contract. The cases relied on are not authority for the proposition that one may not enforce at law a promise made directly to himself on a consideration furnished by a third person, and it has been distinctly held that he may. See Clark v. Clark, 134 Mich. 602 (96 N. W. 924); Rorabacher v. Lee, 16 Mich. 169.”

With reference to the general statement of the rule, see 30 Cyc. p. 34.

In announcing the rule in the Maccabee Case, supra, the late Justice Osteandee, in writing the opinion, had exceptions in mind for he said:

“* * * To what extent and under what circumstances an exception to the rule should be recognized in favor of the enforcement by children of contracts (other than those creating trusts), made for their direct or indirect benefit, by persons nearly related to them or by those sustaining the duty to provide for them, is a subject which needs to be considered no further than this, that the mutual promises of a father and mother, who each hold the certificate of a beneficial association in which the other is named beneficiary, never to change the beneficiaries so named, create no legal or equitable interest of the children in the fund derived on the death of the surviving parent, although, if no such change had been made, they would have been the legal beneficiaries, and although the mutual promises of the parents contemplated that in such case they should be the legal'beneficiaries.”

Let us examine the situation before us. Here we have a girl, deprived of her eyesight, who claims to have been present when the alleged agreement was made. The duty to support her clearly rested upon the father and mother. Her story as to how the agreement was consummated is set forth in the record as follows:

“Next morning, it was soon after breakfast, I went into the front room and sat down in the chair on the west side of the room, and I could hear father near his desk on the east side of the room, and pretty soon I heard mother walking into the room and father spoke to her about going down town to sign the deed, and she says, ‘Well, I haven’t found out yet what I am to have,’ and she says, T didn’t intend to sign a deed unless a provision is made so that Nettie and I will have a plenty to depend on for our home and support,’ and she says, T have decided that I will sign the deed if you will agree to give me $1,000, give Nettie a thousand dollars, you and I have a joint deed on the house and lot; and have it fixed in the deed so that when we are through with the home the house and lot and the contents will belong to Nettie and Nettie will have a home with us as long as we live, and you provide what we need for the home.’ After waiting a little bit, father says, ‘Well, I will agree to that.’ ” * * *

It thus appears that when the agreement was made the party for whose benefit it was made was present and that it was in her hearing and within the confines of a small room. She was unable to see, but she clearly heard her father say in her presence that he would agree to the proposition as stated by the mother. Can it be said that under these circumstances the plaintiff was not privy to the contract? And was not, in effect, in the situation thus created, the promise made by the father directly to the blind girl?

We are of the opinion that the plaintiff was, under these circumstances, a party to the contract and that the situation comes under the exception to the rule referred to in the Maccabee Case, supra, and announced by this court in the case of Palmer v. Bray, supra. For a recent discussion of the New York rule, with reference to exceptions of this kind, see Seaver v. Ransom, 224 N. Y. 233 (120 N. E. 639).

As the above opinion reaches the same conclusion that the majority of the court reached before, the opinion heretofore announced is hereby affirmed.

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

The late Justice Ostrander took no part in this decision.


text:
    PEOPLE v. MOORE.
    New Trial — Newly-Discovered Evidence — Affidavit—Criminal Law.
    Where it appeared from an affidavit offered in support of a motion for a new trial, that affiant was in the court room, without being subpoenaed, waiting to testify as a witness for defendant who was charged with, assault with intent to commit the crime of rape, when he was informed by a former deputy sheriff that he would not be allowed to testify because he had been in the court room, and that, believing this, he left at once without being sworn; that he had no opportunity to tell defendant’s attorneys what he could testify to in detail; and it appearing that his testimony would have contradicted the complaining witness, and, if believed by the jury, would have strongly supported defendant’s story and the theory of the defense, held, under all the circumstances of the case, that the trial court was in error in not granting the motion.
    Exceptions before judgment from Allegan; Cross, J.
    Submitted October 16, 1919.
    (Docket No. 110.)
    Decided December 22, 1919.
    Horace Moore was convicted of an assault with intent to commit the crime of rape.
    Reversed.

      Charles Thew and Clare E. Hoffman, for appellant.
   Kuhn, J.

The claims of the people and of the respondent with reference to the offense charged in the information in this case are thus stated with clearness and conciseness in the charge of the court:

“In the information filed in this case, the people charge this respondent with the offense of assault with intent to commit the crime of rape.
“It is the claim of the people that on the 2d day of September, 1918, in the township of Leighton in this county, the respondent, Horace Moore, feloniously assaulted one Matilda Joldersma with the intent then and there to commit the crime of rape.
“It is the claim of the people that on the date alleged that Matilda Joldersma was in the field near her home picking elderberries when the respondent, Horace Moore, came where she was and proposed to her to go over in the cornfield, that she refused, and that he then by force and against her will took hold of her and threw her upon the ground, placed his hand over her mouth so she could not scream, and pulled her skirts up over her hips and placed his knee between her legs and tried to separate them, when Fred Ryder and John Joldersma came and prevented him from accomplishing his purpose.
“The people claim that the respondent is thereby guilty of the offense here charged against him.
“The respondent claims that he was in the field on the day in question and that he saw Matilda Joldersma and she called for him to come over in the field where she was, and that he went over where she was and she sat down on the ground and he sat down on the ground beside her, that she moved up near him and that Fred Ryder and John Joldersma came over where they were and took him by the arms and led him away and afterwards brought him to Allegan.
“He claims he is not guilty of the offense here charged against him.”

The trial resulted in a verdict of guilty and the case is here on exceptions before sentence.

Attorneys for the respondent rely on 38 assignments of error, many of them being discussed and argued in their brief. We have, at the timé of writing this opinion, not been favored with a brief on the part of the people, although 15 days was allowed from the date that the case was submitted for the filing of such a brief, which time has long since expired.

The case was tried in one day and it is the claim of the counsel for the respondent that the trial was unduly hurried to such an extent that it unreasonably deprived counsel for the respondent of his right to make a proper defense, as no opportunity was given to submit the necessary requests to charge and that the argument was limited so as not to allow time to properly argue the case. A motion for new trial was made, asking that a new trial be granted on the ground of newly-discovered evidence, misconduct of the jury, and because the verdict was against the clear weight of the evidence.

It appeared from the affidavit of Charles Smith, offered in support of the motion for new trial, that he came to the court to testify as a witness for the respondent Without being subpoenaed, and that while standing in the court house, waiting to be called, he was told by one James C. Halloran, who was formerly deputy sheriff, that he would not be permitted to testify because he had been in the court room and that he could not be used as a witness, and, believing this statement, he left at once and was not sworn as a witness. He had no opportunity to tell nor did he tell either of the attorneys for Moore what he could testify to in detail, and that he was reluctant to do so as he did not want to be drawn into the case because he was on friendly terms with those interested. He further states that he lives on a farm adjoining the Moore farm on the north and was at home on Labor Day, the 2d of September, 1918 — the date of the alleged offense — and that he saw the respondent cutting corn southwest of where he was at that time, working on the farm, and that he also saw the complaining witness, Matilda Joldersma, standing near the Ryder-Moore line fence, facing the respondent and waving her hand, it appearing to him that she was waving it to the respondent.

The theory of the defense was that the entire situation presented at the time of the alleged offense was one planned in advance by Fred Ryder and John Joldersma, who were watching the respondent on the day in question and who were hiding within a few rods of the place where the crime was alleged to have been committed. It is also claimed that the complaining witness was a party to the plan. Without reviewing the testimony, we are convinced that there are a great many facts in the record that support this theory of the respondent and in view of this claim, in our opinion, the evidence of Charles Smith as to the conduct of the complaining witness was of very vital importance, not only in that it contradicted the complaining witness, but sustained the claim of the respondent that she was a party to a “put-up job” and aided in inducing the respondent to commit the crime. If his testimony were believed by the jury, it would have strongly supported the defendant’s story and might have led to his acquittal of the charge made. It seems to us, in view of the seriousness of the charge against this boy, who, the record shows, wlas of a deficient mental development, that the trial judge erred in not granting a new trial so that this evidence might properly be brought before the jury for their consideration.

Those other errors which, upon examination, might be considered serious, are of such a character that in all probability they would not occur again upon a new trial. It would not, therefore, be profitable to discuss them.

We think, however, for the reason above stated, that the verdict should be set aside and a new trial granted.

Bird, C. J., and Sharpe, Mooré, Steere, Brooke, Fellows, and Stone, JJ., concurred.


text:
    BACKUS v. BACKUS.
    1. Pleading — Equity—Trusts—Remedy.
    Averments in a bill of complaint, among others, that plaintiff advanced to defendant a sum of money for the purpose of purchasing certain shares of bank stock, that defendant accepted the money with the understanding that he was to use it for said purchase for the account of plaintiff, and agreed to deliver said stock to plaintiff, and that while defendant has held said stock in his own name he really held it in trust for plaintiff, held, to sustain plaintiff’s contention that an express trust is pleaded and that relief should be granted upon the theory of a trusteeship.
    2. Equity — Trusts—Parties—Third Party — Defenses.
    That plaintiff did not deliver certain bank stock, owned by him, to the receiver appointed in judgment creditor’s proceedings against him as he should have done, cannot be taken advantage of by defendant, who was a stranger to said litigation, in equitable proceedings to recover from him said stock which he holds as a trustee and wrongfully refuses to return or account for.
    3. Laches.
    Mere lapse of time is insufficient to constitute laches.
    Appeal from Wayne; Collingwood, J., presiding.
    Submitted October 17, 1919.
    (Docket No. 73.)
    Decided December 22, 1919.
    Bill by Henry N. Backus against Newton D. Backus for the specific performance of an express trust. From a decree dismissing the bill, plaintiff appeals.
    Reversed, and decree entered for plaintiff.

      Lodge & Brown, for plaintiff.

      Anderson, Wilcox, Lacy & Lawscn, for defendant.
   Kuhn, J.

The parties to this litigation are brothers, who, together with their father, Absalom Backus, organized a corporation in 1885 known as “A. Backus, Jr., & Sons,” after they had been together in business since 1873. The father died before this cause of action arose and practically all of the stock of the corporation is owned by the plaintiff and defendant.

On July 3, 1911, the defendant owned 50 shares of the capital stock of the Dime Savings Bank, which he had purchased in February, 1909. The bank decided to increase its capital stock from $500,000 to $1,000,-000, which it did by declaring a stock dividend of 20 per cent., and giving its stockholders the right to purchase 80 per cent, of their holding at $160 per share. By this right being conferred upon him, the defendant had the option to purchase 40 shares of the bank stock at $160 per share.

It is the claim of the plaintiff that on or about July 3, 1911, the defendant agreed with him to purchase the said 40 shares of the stock in the bank for the plaintiff and that thereupon the defendant, who was the secretary and treasurer of the corporation, in charge of its finances, made out the corporation’s check, payable to his own order, for $6,400 and deposited it in his own private bank account and drew his personal check for a like sum of $6,400 in payment of the 40 shares of stock, which were issued to him. It is further claimed that the $6,400 disbursement out of the company’s funds was charged to the plaintiff on the books of the corporation.

While the check was issued to the defendant, N. D. Backus, the stub of • the check book was made out to appear that the check was payable to the order of H. N. Backus. It also appears that four dividends of $90 each were turned over by the defendant to the plaintiff.

The trial judge allowed a large amount of testimony to be introduced as to the affairs of the corporation which had no relevancy to the issue here involved but would be proper to be considered in an accounting between the two brothers. The testimony conclusively showed, however, that there was considerable ill feeling between the two brothers which, to say the least, is most unfortunate. It was further made to appear that 14 years before July 3, 1911, for the purpose of evading the collection of a certain note given by the plaintiff to the First National Bank of Bay City, which he claimed had been improperly obtained from him, that he transferred to the defendant upon the books of the corporation all of his capital stock in the corporation excepting two shares; that thereafter suit was brought against the plaintiff on the note in question and a judgment obtained in November, 1897, against him for $5,608.28; that a judgment creditor’s proceeding was instituted and a receiver appointed on March 10, 1899. This judgment was paid by the plaintiff on August 3,1913, and on August 25, 1913, a stipulation was filed, discontinuing the judgment creditor’s proceeding.

The bill herein was filed on February 26, 1916. In the first serious contention that presents itself for our consideration, as to what the real character of this bill is and what the relief asked for is, it is the contention of the counsel for the defendant and appellee that the bill is one for the enforcement of specific performance of the contract and that if this is found to be true, that no relief could be given to the plaintiff because of the statute of frauds; and further because the relief asked for is impossible because of the hypothecation of this stock to the Wayne County and Home Savings Bank before knowledge of the commencement of this suit was brought to the defendant and that the bank is not a party herein.

The plaintiff contends that while the bill of complaint is, perhaps, inartificially drawn, that it clearly appears from the averments therein that an express trust is pleaded and that in its entirety it is framed upon the theory of a trusteeship and that relief should be granted to the plaintiff upon that theory.

While the trial judge, in his findings, states that the proceeding is one asking for a specific performance of the contract, nevertheless we are of the opinion that a study of this bill sustains the contentions of the counsel for the plaintiff. Following are some allegations from the bill:

“3. Because he was not desirous of availing himself of his aforesaid rights of purchase, he transferred the same to the complainant, and complainant, to wit, on or about the 3d day of July, 1911, advanced to defendant the sum of sixty-four hundred ($6,400) dollars, for the purpose of purchasing forty (40) shares of the capital stock of said Dime Savings Bank at the price at which it was offered to said stockholders, viz., one hundred and sixty ($160) dollars per share; and said defendant then and there accepted said money, with the understanding that he was to use the same for said purchase, for the account of complainant, and then and there agreed' to deliver the same to complainant, and said money was advanced by complainant to said defendant in trust for said purpose.
“4. Upon information and belief, complainant says that said money was used by said defendant for said purpose, and forty (40) shares of said capital stock were issued to said defendant, but in his name; and that from the time of the issue of said stock to said defendant, as aforesaid — while the defendant has held the same in his own name, he has really held the same in trust for complainant”

While the bill itself prays that the defendant may be decreed and ordered by this court to assign and transfer this stock to the plaintiff, it also has a prayer for general relief. The trial judge, after hearing the evidence, made the following finding of fact:

«* * * after hearing all the testimony, the court is convinced that some time in July, 1911, there was an arrangement by which Newton D. Backus was to buy the bank stock for Henry N. Backus, that he did so buy it, and that the money was charged to Henry N. Backus, and that Henry Backus, to all intents and purposes, had paid for this stock.”

Without going into detail as to the testimony to support this finding, we are convinced that the trial judge was right in this conclusion as to the facts as the record abundantly sustains this finding. But the judge was of the opinion, notwithstanding this conclusion as to the facts, that if the stock was owned by the plaintiff, Henry N. Backus, at the time of the agreement, the stock should have been delivered1 to the receiver who was appointed on March 10, 1899, and who had never been discharged, and that the plaintiff could not in equity now enforce the agreement of July 3, 1911. With reference to this legal conclusion of the trial judge it must be borne in mind that in the case presented before us, neither the judgment plaintiff — the First National Bank of Bay City — nor the receiver, nor the corporation, whose money was used to buy the stock, is complaining. Here, an outsider seeks to shield himself under this technical defense from the penalty of his own wrongdoing. He was a stranger to the entire litigation and should not be allowed in a court of equity to invoke .the defenses which an intervening creditor or the receiver might claim.

It is contended that the doctrine of laches should be made to apply to this case and that the delay between July 3, 1911, and February 26, 1916, when this bill of complaint was filed, does not show diligence on the part of the plaintiff in bringing his suit. It is a fundamental doctrine which has been approved by this court many times that the mere lapse of time is not sufficient to constitute laches. The situation here presented is a peculiar one. We have two brothers, engaged in the same business, whose business affairs were closely intermingled, and there would be a natural hesitation on the part of one of the brothers to enforce a claim of this kind in the courts against the other. One would naturally be reluctant to air such a family dispute and it sufficiently appears in the record — at least according to the claims of the plaintiff —that the defendant faithfully promised him to transfer the Dime Bank stock to him from time to time during said period. Attempts at reconciliation were made and these culminated, in 1914, in the following letter being written by the plaintiff to the defendant:

“Detroit, Michigan, December 26th, 1914.
“Mr. N. D. Backus.
“My dear brother: I have already spoken to you in person, but as you asked me to write you, I hereby offer you my apology for any wrong or wrongs that you claim I have ever done you.
“I am writing this, relying on your promise that my affairs be straightened up on the books of the corporation of A. Backus, Jr., & Sons, not later than Tuesday noon, December 29th, 1914, and that you will also deliver to me by the same date, Dime Bank stock which you bought for me, with the accrued dividends to date, and also give my account credit for money advanced for Cadwell patent, for the benefit of the corporation, and credit me the money due me, which was transferred to S. E. Backus’ account, and perpetuate the brotherly love for each other as it existed in years gone by.
“Yours, with best wishes,
“H. N. BACKUS.”
To this, the following reply was received:
“Detroit, Mich.,
“December 28, 1914.
“Mr. H. N. Backus,
“Detroit, Michigan.
“My dear brother:
“Replying to your letter of December 26th, will say you have evidently failed to grasp my idea. I told you I desire an acknowledgment of the many cowardly, sneaking methods employed by you to force results, which more gentlemanly upright methods would have accomplished.
“Regarding the affairs of the corporation, I will refer you to my attorneys, Messrs. Anderson & Wilcox, in the Moffat building.
“As to the brotherly love which you mention, I am unable to understand how you could imagine me dense enough to think you have any brotherly feeling for me after the way you have mistreated me.
“Yours respectfully,
“N. D. Backus.”

These exhibits are set forth to show the state of mind that the parties were in in the last effort to effect an amicable settlement of this matter.

We are satisfied that this is not a case where the doctrine of laches can be properly invoked. See the following Michigan cases: Wright v. Wright, 37 Mich. 55; Wykoff v. Sewing Machine Co., 43 Mich. 309; Gamble v. Folsom, 49 Mich. 141; Seymour v. Rolling Mills, 56 Mich. 117; Chase v. Boughton, 93 Mich. 285; Metropolitan Lumber Co. v. Iron Co., 101 Mich. 577; Fred Macey Co. v. Macey, 143 Mich. 138 (5 L. R. A. [N. S.] 1036).

We are satisfied, after careful consideration of this case, that the equity court, under the theory of a trusteeship, can give full and adequate relief to the plaintiff. In our opinion, the defendant should be ordered to transfer to the plaintiff the stock which he bought for him and the unpaid accrued dividends thereon, which he received. If, on account of having the stock hypothecated, he is unable to do this, a decree may be entered against him for the value of the stock and if counsel are unable to agree as to the present value thereof, the case may be remanded to the circuit court, with instructions to take testimony as to the value of this stock.

The decree of the lower court will be reversed and a decree here entered, in accordance with this opinion, with costs to the plaintiff and appellant.

Bird, C. J., and Sharpe, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred.