author: Bird, J. Brooke, J.

text:
    BONER v. EASTERN MICHIGAN POWER CO.
    Master and Servant — Loose Rung in Ladder — Negligence—Personal Injuries — Licensee.
    Where an iron ladder used by a construction company in its work contained a loose rung which turned when pressure was applied, and of which, although defendant had notice, it neglected to notify plaintiff, an employee, who was injured by reason thereof while climbing to the top of the boiler to eat his dinner during a 30-minute intermission, a judgment for plaintiff, in an action thereon, on the theory that he was a licensee and entitled to notice, is affirmed by a divided court.
    Error to Jackson; Parkinson (James A.), J.
    Submitted January 9, 1920.
    (Docket No. 62.)
    Decided April 10, 1920.
    Rehearing denied June 17, 1920.
    Case by Edwin Boner against the Eastern Michigan Power Company for personal injuries. Judgment for •plaintiff. Defendant brings error.
    Affirmed, by a divided court.

      Bernard J. Onen (W. S. Cobb, of counsel), for appellant.

      Price & Whiting, for appellee.
   Bird, J.

Defendant, a construction company, employed plaintiff as a laborer while it was constructing a power house for the Au Sable Electric Company at Grand Rapids. The boilers, eight in number, were inclosed in masonry, and when finished the top thereof was about 20 feet from the floor. On the day in question several men, including plaintiff, were working on the header, the pipe which conveys the steam from the boiler to the engine. At the usual time, 11:30 a. m., the men laid aside their work 30 minutes for dinner. Plaintiff took his dinner pail and started up an iron ladder attached to the west wall of the building to reach the top of the boilers where it was the custom of the men to eat their dinner when the weather was cold. When near the top one of the rungs turned, thereby releasing his hold, and he fell to the cement floor, sustaining serious injuries.

On the first trial plaintiff’s case was tried on the theory that the relation of master and servant existed at the time, and that the master had failed to furnish plaintiff with a reasonably safe place to work. A recovery was had and afterwards the case came to this court and was reversed (193 Mich. 629). This court held that under the case made the relation of master and servant did not exist at the moment plaintiff was injured. In the course of that opinion it was said:

“In our opinion, this ease should have been submitted to the jury upon the theory that if there was any liability upon the part of either of these defendants to the plaintiff it was because of the duty owed to him as a licensee.”

Upon a retrial of the cause the question as to whether defendant had control of the premises was cleared up, some question having’ been raised upon the former trial in regard to it. And it was further shown that the only way the plaintiff could reach the place where he was working was to go up the ladder over the top of the boilers and through a hole in the outside wall on to a scaffold erected for the workmen. It appeared that he worked part of the time on the sca“old, part of the time on top of the boilers, and a part of his duties required him to go down the ladder with pipe to the work bench where the same was fitted and returned by the same route.

On the second trial plaintiff again tried his case on the theory that the relation of master and servant existed, and insisted that the additional testimony brought the case within that rule, but the trial court refused to submit the case upon that theory because of what this court said in reversing it. The trial court submitted it upon the theory that plaintiff was at the moment a licensee on the premises. Under that submission plaintiff recovered a judgment of $4,000.

Defendant has brought the case to this court and insists that no actionable negligence was shown on the part of defendant, and that the trial court was in error in submitting the case on the theory that plaintiff was a licensée. But that if it were proper to submit the case on that theory, then they further insist that the law on that theory was not properly stated to the jury. These are the important questions raised by appellant.

I agree with counsel that the case ought not to have been submitted on the theory that plaintiff was a licensee, not because no actionable negligence was shown, but because the record with the additional proofs on the second trial show a situation to which the rule of master and servant ought to have been applied. The proofs at the close of the second trial showed, in substance, that plaintiff was working for the defendant by the hour; that on the day in question he was working on top of the boilers, and on the scaffold outside of the building which could be reached only by going up the ladder and over the boilers. That he was obliged to go up and down the ladder to fit pipe which was being put in place; that he had 30 minutes in which to eat his lunch; that he chose to remain on the premises while doing so, under, at least, an implied permission by defendant that he might do so; that he started to go up on top of the boilers where it was warm to eat his lunch, and that before reaching there he fell by reason of a defective ladder, of which defendant had notice, and was injured. It should also be considered in this connection that there is a strong inference that in going up the ladder he was going up to commence work again, as well as to eat his lunch. With only 30 minutes for lunch there would be very little time left after he finished his lunch before he would be obliged to resume his work. This showing, in my opinion, brought the case within the general rule that the relation of master and servant is not suspended where the servant remains upon the premises during the noon hour by the express or implied permission of the master. This rule has been, approved by many courts including our own. A statement of the rule is that:

“A temporary stoppage of work by an employee for purposes which are the inevitable and necessary incidents of daily life, must, of necessity, be in the contemplation of the parties in every employment, and, hence, to create no suspension of the relation of employer and employee. Accordingly, the duties and liabilities incident to the relation are generally held to continue while employees are temporarily resting, procuring drinking water, or using the privy provided for their convenience. And the relation of employer and employee is not suspended, as a rule, during the noon hour, when the master expects, and expressly or by fair implication invites, the servant to remain upon the premises in the immediate vicinity of the work.” 18 R. C. L. p. 583.
“A servant is deemed in his master’s service when present to perform his duties and subject to orders, though at the given moment he may not be actually engaged in the performance of any given work. Thus, the relation exists during a noon hour where the master especially and expressly, or by fair implication, invites his servant to remain on the premises and lunch in the immediate vicinity of his work.” 8 Thompson on Negligence, § 3752.
“A workman is considered in the employment of his master during the intermission for the noon hour, if he remains upon the premises.” Baldwin on Personal Injuries (2d Ed.), § 374.

This rule is not a universal one. Several State courts are not in accord with it, but our own court, at an early.date, appears to have approved it. Broderick v. Union Depot Co., 56 Mich. 261 (56 Am. Rep. 382). In this case a servant who remained upon the premises during the noon hour was requested by another employee to open a ventilator in a boiler room. In doing so some portion of it fell and injured him. In a suit to recover damages therefor it was insisted that the relation of master and servant existed. In holding the relation existed it was said in part:

“True, the plaintiff in this case during the intermission given was at liberty to go where he pleased, and was not obliged to stay upon the premises. If he did stay, however, he could in no just sense be considered a loiterer or a trespasser upon the premises of another. Having been accustomed to bring his dinner, he was not obliged to go upon the street to eat it; but under the circumstances, there was an implied permission to remain upon the premises while at his repast. I cannot accede to the proposition that he owed no duty to his master until the time stated had elapsed for him to resume his employment, and that whatever he did during this time was voluntary on his part.”

This case upon the facts is much like the one under consideration, and the usual arguments urged in opposition to that view are answered by the opinion.

The case of Haller v. City of Lansing, 195 Mich. 753 (L. R. A. 1917E, 324), is a similar case on the facts involving the relation of master and servant during the noon hour. This is a workmen’s compensation case, but is in line with the holding of the Broderick Case. See valuable notes, 12 L. R. A. [N. S.] 861; 23 L. R. A. [N. S.] 954.

But it is urged by defendant’s counsel that even though the plaintiff did try his case on the theory of the relation of master and servant he can get no benefit therefrom because he has not assigned error. Plaintiff replies to this that even though he has not assigned error, if the case ought to have been submitted to the jury on the master and servant theory but instead was submitted on a theory less favorable to him, defendant cannot now complain because it is not shown that he was injured by the wrong submission.

We are inclined to the view that plaintiff is right in his contention if the trial court properly stated the law on the theory upon which it was submitted.

Defendant complains because the following request was refused by the court:

“The plaintiff cannot recover in this case, unless you find that he has proven by a preponderance • of all the evidence that after he began using the ladder for his own convenience, the defendant, by its active conduct made such a change in the ladder as would amount to the creation of a new danger, and that defendant’s conduct in making such change indicated a reckless and wanton disregard of the safety of the plaintiff.”

On this subject the court charged:

“How then did any duty arise and become imposed on the defendant for nonperformance of which plaintiff can complain? It did. not, unless you find from the evidence that the rung in the ladder was loose at the time it was erected and fastened to the wall, and was so found loose, and the assistant superintendent, Hottinger, was informed of it and knew it, and it was not thereafter, before the accident, fixed or fastened.”

It is argued that the trial court was in error in refusing defendant’s request, and also in instructing the jury as he did. Plaintiff was employed on the premises and in remaining thereon to eat his lunch he did so with the implied permission of the defendant. While if is true that under the degree of care prescribed as to licensees, defendant owed plaintiff no duty as to the condition of the premises, it had no right to knowingly permit him to run upon a hidden peril, or to wantonly or wilfully injure him. 29 Cyc. p. 499; Beehler v. Daniels, 18 R. I. 563 (29 Atl. 6, 27 L. R. A. 512).

The testimony of one witness was to the effect that the rung had been loose ever since it was erected, and that defendant had been advised of it. If defendant had knowledge of the defect it became its duty to warn plaintiff thereof, since he was on the premises by the implied invitation of the defendant. The court’s charge was in accord with this view, and, therefore, without error. There was no occasion for any charge upon the question submitted by defendant’s request because there was no proof in the case that there had been any change made in the ladder since it had been erected.

Defendant requested the court to charge the jury that plaintiff was guilty of contributory negligence as a matter of law. There were a good many surrounding circumstances before the jury bearing upon this question. It was purely a question of fact and the jury would have been subject to no criticism had they decided the question either way.

We have examined the remaining assignments but do not find any reversible error in them. The judgment will, therefore, be affirmed.

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

Brooke, J.

In our former opinion in this case, 193 Mich. 629, it is said:

“In our opinion this case should have been submitted to the jury upon the theory that if there was any liability on the part of either of these defendants to the plaintiff, it was because of the duty owed to him as a licensee.”

I understood, and I think at least a majority of those concurring in that opinion understood, that the basic question of defendant’s negligence was left undetermined. I am unable to agree with the conclusions reached by my Brother Bird in his opinion. The mere fact that the rung of the ladder turns instead of being fixed so long as it remains in place in the ladder affords, in my opinion, no ground for submitting the question of defendant’s negligence to the jury. Thou-, sands of ladders are in daily use all over the State, and I venture the assertion that in a very large percentage of them rungs will be found here and there which, when pressure is applied, will turn. To predicate liability and permit a jury to find negligence under such facts, it seems to me, would be going farther than this court has ever gone and much farther than it should now go. Had Boner grasped the rung with his hand as climbers of ladders usually do, the fact that the rung would revolve. under pressure would have added not one whit to the danger of his ascent.

I am of the opinion that the judgment should be reversed and no new trial granted.

Fellows, Clark, and Sharpe, JJ., concurred with Brooke, J.


source: Caselaw Access Project

author: Fellows, J.

license: Public Domain

text:
    FERLE v. PARSONS.
    1. Municipal Corporations — Lansing Charter — Ordinances — Referendum.
    Sections 93, 94, 96, and. 131 of the home-rule charter of the city of Lansing construed, and held, to require the same safeguards as to signatures, verification, authenticity, inspection, and certification of a referendum petition on a city ordinance as are required in said charter for the initiative and recall.
    2. Same — Mandatory Provisions.
    The provision in said charter fixing the time for filing petitions for a referendum is mandatory.
    3. Same — Time for Piling Referendum Petition.
    Under said charter, after the expiration of ten days from the passage of &n ordinance, a referendum petition in reference thereto could not he amended, although the charter (section 91) provides that ordinances shall take effect 30 days after their final passage.
    On initiative and referendum as applied to municipalities, see notes in 50 L. R. A. (N. S.) 195 and L. R. A. 1917B, 17.
    Certiorari to Ingham; Wiest (Howard), J.
    Submitted April 6, 1920.
    (Calendar No. 29,181.)
    Decided April 22, 1920.
    Mandamus by Jacob Ferie, individually and as mayor of the city of Lansing, to compel Judson A. Parsons, clerk of the city of Lansing, and the .city council of the city of Lansing, to take the necessary steps to provide for a referendum vote on a city ordinance. From an order denying the writ, plaintiff brings certiorari.
    Affirmed.

      John McClellan (Clark C. Wood and Joseph H. Dunnebacke, of counsel), for plaintiff.

      Samuel H. Rhoads, City Attorney, and Carl H. Reynolds, Assistant City Attorney (D. G. F. Warner and Edmund C. Shields, of counsel), for defendants.
   Fellows, J.

On June 22, 1908, a franchise ordinance was passed by the common council of the city of Lansing granting to the Lansing Fuel & Gas Company permission to maintain and operate gas works in that city and authorizing the use of the city streets for that purpose. It was accepted by the gas company two days later. It contained a provision authorizing the council to repeal it after 30 days’ notice to the company for failure to perform its terms. On January 17, 1920, this franchise ordinance was by an ordinance adopted by the council of the city repealed, the gas company having admitted in writing its failure to perform the terms of the franchise ordinance and also waiving in writing the 30-day notice. The repealing ordinance was vetoed by the mayor of the city and passed over his veto January 19th. The entire vote cast for all candidates for mayor at the last preceding municipal election was 5,180. On January 27th there were filed with the defendant city clerk 68 separate petitions rolled together and tied around with a string containing in the aggregate 1,485 signatures asking for a referendum vote on the repealing ordinance. There was upon none of these petitions any affidavit showing the genuineness of the signatures or in fact any affidavit, nor was there indorsed thereon the names of three or any other number of persons designated as filing the same. The defendant clerk, acting upon the advice of the city attorney that such petitions were insufficient, declined to give his certificate of sufficiency although he did report to the council the filing of the petitions. Later further and similar petitions were filed and it was also sought to amend those already on file by attaching affidavits and indorsing the names of the persons filing the same; this request was likewise refused by defendant clerk on advice of the city attorney. This proceeding was then instituted by plaintiff as mayor and individually to compel defendants by mandamus to take the necessary steps looking to a referendum vote on the repealing ordinance. The trial judge denied the relief, and we allowed this writ of certiorari to review such action.

The city of Lansing is operating under a home-rule charter, so-called, and the discussion revolves around sections 93, 94, 96 and 131 thereof. We quote these sections:

“Sec. 93. Any proposed ordinance may be submitted to the city council by petition, signed by qualified electors in number to the percentage hereinafter required. The signatures, verification, authentication, inspection, certification, amendment and submission of said petition shall except as provided in this chapter, be the same as provided for petitions under the recall provisions as prescribed in chapter seven of this charter.
“Sec. 94. If the petition accompanying the proposed ordinance, be signed by electors equal in number to twenty-five per centum of the votes cast for all candidates for mayor, at the last preceding election, and contain á request that the said ordinance be submitted to a vote of the people, if not passed by the city council, such city council shall either, pass such ordinance without alteration, in accordance with the accompanying petition, or forthwith, after the clerk shall attach to the petition accompanying such ordinance, his certificate of sufficiency, the city council shall call a special election, not less than fifteen days nor more than thirty days thereafter, unless a general or municipal election is fixed within ninety days thereafter, and at such special, general or municipal election, if one is so fixed, such ordinance shall be submitted without alteration, to the vote of the elector’s of the city.”
“Sec. 96. No ordinance passed by the city council, except an ordinance for the immediate preservation of the public peace, health or safety, which contains a statement of its urgency, and is passed by unanimous vote of the council, shall go into effect before ten days from the time of its final passage; and if during said ten days, a petition signed by the electors of the city, equal in number to at least twenty-five per centum of the entire votes cast for all candidates for mayor, at the last preceding general municipal election, be presented to the city council, said ordinance shall thereupon be suspended from going into operation, and it shall be the duty of the city council to reconsider such ordinance; and if the same is not entirely repealed, the city council shall submit the ordinance as is provided in section ninety-four of this chapter, to the vote of the electors of the city, either at the general municipal election, or at the special municipal election to be called for that purpose, and such ordinance shall not go into effect or become operative, unless a majority of the electors voting on the same shall vote in favor thereof. Said petition shall in all respects, be in accordance with the provisions of section ninety-four of this chapter, and be examined and certified to by the clerk, in all respects as herein provided.”
“Sec. 131. Any registered elector may make and file with the city clerk, an affidavit containing the name of the officer sought to be removed, the office from which such removal is sought, and a specific statement of the grounds for such removal, together with a petition signed by registered electors, equal in number to at least thirty per centum of the votes cast for mayor, on the final ballot at the last preceding election in the district where said officer was elected. Such petition shall be signed only by registered electors who participated in the election at which the person sought to be removed, was elected, and to each signature shall be attached his place of residence, giving street and number. Such signatures need not be on one paper, but a registered elector of the city shall make affidavits, that each signature appended to the petition, is the signature of the person whose name it purports to be and that the poll lists show that he participated in the election, at which the party sought to be removed was elected. All such petitions for the recall of any officer, shall be fastened together and filed as one instrument, with the endorsements thereon, of the names and addresses of three persons designated as filing the same.”

It will be borne in mind that the initiative, the referendum and the recall together challenged the attention of the public. They were introduced into governmental affairs at the same time. They all proceed upon the same theory, i. e., that public officials may not be sufficiently responsive to the temporary will of the electorate, and to a supposed desire of the electorate for greater participation in governmental affairs. They came together, had a common origin, and so far as the time at our disposal has permitted examination of the legislation of our sister States which have adopted them, and of city charters which contain them, like provisions have been made for instituting proceedings under each of them. As these proceedings .may be, and usually are, instituted by a minority, safeguards have been thrown around each and all of them; and these safeguards have been of the same general character, applicable to all.

The crucial question involved in this case is whether, by the charter provisions here under consideration, the safeguards which are thrown around the initiative and recall provisions of the charter have been omitted from the, referendum provisions of that instrument. If so, we cannot by judicial legislation insert them. But if by a consideration of the entire charter, and all its provisions, we are convinced that the safeguards thrown around the initiative and the recall have been adopted, so far as applicable, to the referendum, although by reference only and in inapt language, it becomes our duty to so construe the language as to give effect to each and all of the provisions of the charter and every sentence found therein. Turning now to the provisions having reference to the referendum (section 96) we find the concluding sentence of that-section to be:

“Said petition shall in all respects be in accordance with the provisions of section ninety-four of this chapter, and be examined and certified to by the clerk, in all respects as herein provided.”

Considering this provision of section 96, the learned trial judge said: ,

“When we turn to section 94 we find that to give it sense we must of necessity look at section 93 because the petition mentioned in section 94 is the petition provided for in section 93. Section 94 therefore adopts of necessity the provisions of section 93 and section 93 adopts by reference the provisions of chapter 7 relative to the signatures, verification, authentication, inspection, and certification of the petition.”

With this conclusion we are in entire accord. The provisions of section 94 are incomplete in themselves and the petition mentioned in that section is the petition specifically described in section 93. Beyond this it is provided that it shall be certified to by the clerk (and as a necessary corollary that the basis of such certificate shall be) “in all respects as herein provided.” Examining section 96 we find that section contains no provision for certification or the basis for it. Manifestly the word “herein” does not refer to section 96. If we give it any effect, and it is our duty to do so, we must construe it as applying to some provision found “herein” but not in said section. The only logical conclusion we can teach is that the word “herein’ refers to the charter itself, and to thus adopt by reference any applicable provision found in the charter. This construction does no violence to, the language employed, and provides like safeguards for the initiative, the referendum, and the recall. It is inconceivable that the framers of this charter and the people who adopted it intended to require that the initiative and recall could only be set in motion by petitions having sponsors, with accompanying affidavits as to the genuineness of the signatures, but that such safeguards should not be applicable to petitions setting in motion the machinery for the referendum, or that it was intended that a minority might set the machinery of the referendum in motion, and thus block the enforcement of an ordinance adopted by the legislative body of the city chosen by the people, by filing a petition unsponsored and without any proof of the genuineness of the signatures. To hold as we are requested to do by the plaintiff would open wide the door to the grossest kind of fraud and leave the referendum unsurrounded by any safeguards.

Having reached the conclusion that these safeguards are, by a proper construction of the provisions of the charter, thrown around the referendum as well as the initiative and the recall, the language of this court in Thompson v. Secretary of State, 192 Mich. 512, where the referendum of a law passed by the legislature was involved, becomes significant. We there said:

“Where a, power so great as this is vested in a minority of the people, every safeguard provided by law against its irregular or fraudulent exercise should be carefully maintained.”

Considerable space is devoted in plaintiff’s brief to the claim that the trial judge held that the repealing ordinance took effect at the expiration of 10 days after it was passed over the mayor’s veto, and to the further claim that such holding conflicts with section 91 of the charter, a section we have not quoted but which in substance provides that ordinances shall take effect 80 days after their final passage unless the city council shall fix a later date. We do not regard this of controlling moment, nor do we regard the opinion of the trial judge as so holding. What the trial judge held, and all that he intended to hold, as we understand his opinion, was that the repealing ordinance became effective as against the referendum at the expiration of the 10-day limit. In so holding he but followed the language of this court above quoted. The provision fixing the time for filing petitions for a referendum is mandatory. See Ralls v. Wyand, 40 Okla. 323 (138 Pac. 158); Thompson v. Secretary of State, supra. Within the time limited in the charter there must be filed petitions which are in substantial compliance with the law, and if this is not done the ordinance becomes effective so far as the referendum is concerned.

What we have just said answers the contention of the plaintiff that these petitions might be amended after the 10 days had expired. The initiative and recall change no conditions and do not stop or retard legislation or the continuation of chosen officers in the performance of their duties, and the charter permits that such petitions may be amended after they are filed rather than to require all steps to be taken over again. But such provisions obviously are not applicable to referendum petitions which seek to stay the operation of an ordinance. Petitions to initiate legislation may be filed at any time, and to recall an officer at any time after he has been in office three months, but to stop the wheels of government, to prevent the taking effect of an ordinance adopted by the legislative body of the city, it is required that within 10 days valid and legal petitions must be filed. We do not hold that petitions which have been filed may not be amended during this 10-day period, what we do hold is that when the 10 days has expired invalid petitions may not be made valid by amendment and thus extend the charter period.

In the conclusion we have reached we are fortified by the decision of the supreme court of Minnesota in Aad Temple Building Ass’n v. City of Duluth, 135 Minn. 221 (160 N. W. 682), and the decision of the court of appeals of California in the case of Rushton v. Lelander, 15 Cal. App. 448 (115 Pac. 56), the only eases in point from other jurisdictions which the diligence of counsel has brought to our attention. The Minnesota case had under consideration the charter of Duluth and the California case the charter of Los Angeles. While the language of the Duluth and Los Angeles charters is not identical with that of the Lansing charter or with each other, there is no substantial difference. In both cases the validity of the proceedings to institute a referendum of an ordinance was involved, in both cases the question of the right to amend was considered, and in both cases-the same conclusions were arrived at that we have reached in this case.

The judgment of the circuit court is affirmed, but as the question is a public one no costs will be allowed.

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


author: Clark, J.

text:
    CITY OF BIG RAPIDS v. BIG RAPIDS FURNITURE MANFG. CO.
    1. Eminent Domain — Big Rapids Charter — Construction — Changing Street Grade.
    Where chapters 36 and 40 of the charter of the city of Big Rapids are practically identical with chapters 22 and 25 of Act No. 215, Pub. Acts 1895, and section 7, chap. 36, of the charter, referring to the changing of an established grade in a street, provides that compensation therefor shall be ascertained by a jury as provided in said charter, and chapter 40 provides the only jury method for having a jury ascertain such compensation, held, that chapter 40, which gives the right to proceed under the general condemnation laws of the State, is adopted by reference in its entirety, and the city cannot, in proceedings to determine the compensation to be paid to adjacent owners in changing the established grade of a street, select such of the provisions of that chapter as suit its convenience and reject others.
    2. Same — Statutory Proceedings — Petition—Jurisdiction.
    Such proceeding being statutory, the petition should show on its face all that is necessary to bring the case within the statute to confer jurisdiction.
    3. Same — Change of Street Grade — Legislative Powers — Necessity eor Change.
    The legislature may regulate by statute .the changing of the grade of a street and provide that, when adjacent property owners have made improvements in conformity with the established grade, such grade shall not be changed until a jury shall have determined the necessity for the improvement, the necessity for taking by change of grade property of adjacent owners, and compensation for damages.
    4. Same — Big Rapids Charter — Adoption of Statutory Provisions.

      Belcl, that by adopting chapter 40 of the charter (chapter 25 of Act No. 215, Pub. Acts 1895) such proceeding was adopted as is provided in said act, requiring the determination by a jury of the necessity for said improvement as well -as the compensation therefor.
    5. Same — “Taking,” What Constitutes.
    There may be a “taking” of property without actual physical invasion, including cases where the value is destroyed, or serious injury is inflicted to the property itself, or the owner is excluded from its enjoyment, or from any of its appurtenances.
    6. Same — Construction of Charter — Damages—Compensation.
    That chapter 40 of said charter provides for compensation, while chapter 36, § 7, provides for damages, held, unimportant, since in both provisions the basic thought is compensation for the taking of property.
    7. Same — Conflict of Laws — Legislative Question.
    That by the construction herein given to said charter another provision wherein reference is made to chapter 40 will be rendered inoperative, if true, held, to be a legislative rather than a judicial question.
    8. Same — Void Proceedings — Miscarriage oe Justice.
    Where the whole proceeding is regarded by this court as a nullity, because the statutory proceeding was not followed, the case will not be disposed of under 3 Comp. Laws 1915, § 13763, providing that no judgment shall be set aside, etc., unless a miscarriage of justice has resulted, although the„jury found that defendants were entitled to no damages.
    Error to Mecosta; Mayne (Frederick W.), J., presiding.
    Submitted January 16, 1920.
    (Docket No. 76.)
    Decided April 10, 1920.
    Proceedings by the city of Big Rapids against the-Big Rapids Furniture Manufacturing Company and others to determine the damages resulting from a change of grade in a public street. From the judgment rendered, defendants appealed to the circuit court. Judgment for plaintiff. Defendants bring error.
    Reversed, and proceedings quashed.

      Broomfield & Worcester, for appellants.

      Arthur J. Butler (Charles E. Ward, of counsel), for appellee.
   Clark, J.

How may the plaintiff under its charter change the grade of one of its streets where defendants, owners of adjacent property, have made improvements in conformity to the established grade? This is the main question in the case. In 1915 the electors of the city of Big Rapids adopted a charter under the so-called “home-rule-act,” Act No. 279, of the Public Acts of 1909, as amended, being sections 3304 to 3341, 1 Comp. Laws 1915. By the charter the corporate powers of the city are vested in a city commission designated as the “commission,” consisting of a mayor and two commissioners. Sections 5 and 7 of chaptér 36 of the charter read as follows:

“Sec. 5. The commission shall have authority to determine and establish the grades of all streets, avenues, alleys and public grounds within the city, and to require improvements and buildings adjacent to or abutting upon such streets, alleys or grounds to be made and constructed in conformity with such grade and upon such lines as shall be prescribed by the commission and the commission may change or alter the grade of any street, alley or public ground, or of any part thereof, whenever in their opinion the public convenience will be promoted thereby. Whenever a grade shall be established or altered, a record and diagram thereof shall be made in the book of street records' in the office of the city clerk.”
“Sec. 7. Whenever the grade of any street or sidewalk shall have been heretofore, or shall hereafter, be established, and improvements shall thereafter be made by the owner or occupant of the adjacent property in conformity to such grade, such grade shall not be changed without compensation to the owner for all damages to such property resulting therefrom, to be ascertained by a jury as provided in this charter or said damages may be ascertained and agreed upon by and between the city and the owner or occupant of such premises. Whenever such damage shall be ascertained or agreed upon as heretofore provided, such damages, or such part thereof as. the commission shall deem equitable and just, shall be paid by the city, or the commission may cause such damages, or such part thereof as may be just and proper, to be assessed upon such real estate as may be benefited by reason of the change of such grade, and whenever the commission shall determine to assess such damages, or any part thereof, upon the property benefited, it shall determine and define a district in said city, which in its judgment is benefited by the improvement out of which said damages arise, and shall cause the same to be assessed upon such district, which said assessment shall be upon the owners or occupants of the taxable real estate in said district, in proportion as nearly as may be in the advantage or benefit each lot, parcel or subdivision is deemed to acquire by the improvement out of which such damages arise, but the property on account of which such damages were awarded shall not be included in said district. The assessment shall be made, and the amount levied and collected in the same manner as other assessments on a district deemed to be benefited in the grading and improvement of streets, as provided for in this charter, relative to special assessments and the collection thereof, shall apply thereto. Such damages, when collected as aforesaid, and when determined upon by the city, shall be paid to the person entitled thereto.”

These sections are taken almost word for word from the general'statutes of the State, being sections 5 and 7 of chapter 22 of Act No. 215 of the Public Acts of 1895, being sections 3091 and 3093, 1 Comp. Laws 1915. Section 7 of chapter 36 of the charter, which we have quoted, in speaking of compensation for damages, says that the same is: “to be ascertained by a jury as provided in this charter,” while section 7 of chapter 22 of Act No. 215 of the Public Acts of 1895, above mentioned, in speaking of compensation for damages, says that the same is: “to be ascertained by a jury as provided in chapter 25 of this act.” Except for changes in words made necessary by the commission form of government, chapter 40 of the city charter is identical in language and provisions with chapter 25 of the general law above mentioned. Chapter 40 of the charter provides the only charter method for having a jury ascertain compensation for the damages under section 7 of chapter 36 of the charter. Section 1 of chapter 40 of the charter is as follows:

“Sec. 1. Private property may be appropriated for public use in the city for the purpose of opening, widening, altering or extending streets, alleys and avenues; for the construction of bridges, for public buildings and for other public structures, for public grounds, parks, market places and spaces and for the improvement of water courses; for sewers, drains and ditches; for public hospitals, pest houses, quarantine grounds and public cemeteries, and for other lawful and necessary public uses.”

Section 2 provides that private property may be appropriated for the public use either in the manner provided by the general condemnation law of the State (sections 3376 to 3399, 1 Comp. Laws 1915) or under the charter provisioñs (sections 3136 to 3164, 1 Comp. Laws 1915).

Section 3 provides in substance that when the commission shall have declared that they deem it necessary to take private property for a designated public improvement they shall direct the city attorney by resolution to institute the necessary proceedings in probate court.

Section 4 required the city clerk to deliver a copy of the resolution to the city attorney who is required then to file a verified petition in probate court. The. section further provides:

“The petition shall state, among other things, that it is made and filed as commencement of judicial proceedings by the municipality in pursuance of this act to acquire the right to take private property for the use or benefit of the public, without consent of the owners, for a public improvement, designating it, for a just compensation to be made. A description of the property to be taken shall be given, and generally the nature and extent of the use thereof that will be required in making and maintaining the improvement shall be stated, and also the names of the owners and others interested in the property, so far as can be ascertained, including those in possession of the premises. The petition shall also state that the commission has declared such public improvement to be necessary and that they deem it necessary to take private property described in that behalf for such improvement for the use or benefit of the public. The petition shall ask that a jury be summoned and impaneled to ascertain and determine whether it is necessary to make such public improvement, whether it is necessary to take such, private property as it is proposed to take for the use or benefit of the public and to ascertain and determine the just compensation to be made therefor. The petition may state any other pertinent matter or things, and may pray for any other or further relief to which the municipality may be entitled, within the objects of this chapter.”

Section 5 provides for issuing a summons. Section 6 provides for service of the summons. Section 7 provides for the selecting and impaneling of a jury. Section 8 provides:

“The jurors so impaneled shall be sworn or shall affirm in substance as follows: ‘You do solemnly swear (or affirm) that you will well and truly ascertain and determine whether there is a public necessity for making the proposed improvement and for taking for the use or benefit of the public the private property which the petition describes and prays may be taken, and if you shall determine that it is necessary to make such improvement, and to take said property, that then you ascertain, determine and award the just compensation to be made therefor, and faithfully and impartially discharge all other duties as devolve upon you in this case, and unless discharged by the court, a true verdict give, according to the law and evidence, so help' you God (or under the pains and penalties of perjury). The jury shall hear the proofs and allegations of the parties, and shall go to the place of the intended improvement, in the charge of an officer, and upon or as near as practicable to the property proposed to be taken, and examine the premises. They shall be instructed as to their duties and the law of the case by the probate judge, and shall return under the charge of an officer and render their verdict in the same manner as on the trial of an ordinary civil case, but the same shall be in writing and be signed by all jurors.”

Section 9 provides:

“The jury shall determine in their verdict the necessity for the proposed improvement and for taking ;such private property for the use or benefit of the public for the proposed improvement, and in case they find such necessity exists, they shall separately award to the owners for such property and others interested therein such compensation therefor as they shall deem just. If any such private property shall be subject to a mortgage, lease, agreement or other lien, estate or interest, they shall apportion and award to the parties in interest such portion of the compensation as they shall deem just.”

Section 10 provides as to the consideration by the jury of their verdict and suggests a form of verdict in two parts •

“We find that it is-necessary to take the private property described in the petition in this cause, for the use and benefit of the public for the proposed public improvement,” and
“The just compensation to be paid for such private property we have ascertained and determined, and hereby award as follows:”

Section 11 provides as to amendments. Section 12 provides for the entry and confirmation of the judgment. Section 13 relates to procedure in case of disagreement of the jury. Section 14 relates to the death or disability of a juror. Section 15 gives the right to appeal to circuit court. Section 16 provides for making a return on appeal. Section 17 provides:

“Upon filing the return to the probate court, as mentioned in the preceding section, the circuit court shall have jurisdiction of the case. The parties may proceed to trial by jury without reference to any term of court upon the question as to the amount of damages to be awarded; but the finding of the jury before the probate court as to the necessity of taking the land shall be held to be conclusive. The appeal of one or more persons interested in any judgment of confirmation shall not in any way affect said judgment as to other persons interested therein who do not appeal.”

Remaining sections of chapter 40 of the charter relate to proceedings in circuit court upon appeal. The common council of the city of Big Rapids established the grade of Pere Marquette street of the city in 1888. In May, 1917, a resolution was adopted by the . city commission to the effect that in the opinion of the commission public convenience will be promoted by a change or alteration of grade of Pere Marquette street of the city. The resolution gave detailed specifications as to changes and adopted a profile and diagram respecting the change of grade. The resolution also recited that it appeared to the commission that the owners or occupants of property adjacent to Pere Marquette street may or do claim damages to the adjacent property by reason of the change of grade of the street. The resolution described the adjacent property and named the owners or occupants thereof who are defendants herein. The resolution directed the city attorney to institute proceedings in the probate court of Mecosta county or in another court pursuant to the charter provisions of the city to ascertain and fix the damage, if any, suffered by the owners or occupants of such adjacent property by reason of the change of grade of the street. Prior to the resolution plaintiff had attempted to change the physical grade of Pere Marquette street without a proceeding in court and at the instance of the Big Rapids Furniture Company had been enjoined by decree of the circuit court from making such change until it had carried to final determination a proceeding under chapter 40 of the charter. A part of the improvement attempted and desired in the street was the raising of a deck of a bridge and the building of approaches thereto. Pursuant to the resolution the city attorney on May 10, 1917, filed for the city in the probate court of Mecosta county a petition asking to have a jury impaneled to determine the damages. The petition recited that it was filed pursuant to chapter 40 and chapters relevant thereto of the charter of the city. The defendants were made parties on the ground that they were owners or occupants of property adjacent to the street and had claimed to have made certain improvements in conformity with the established grade of the street, being the grade established in 1888. The defendants moved to dismiss and quash the petition for reasons which we will discuss later. The motion was granted by Hon. Fred S. Lamb, circuit judge, sitting as the probate judge of Mecosta county. Thereupon the city removed said proceedings by certiorari to the circuit court where Hon. Peter F. Dodds, circuit judge, in November, 1917, reversed the decision of Judge Lamb and remanded the case to probate court. The defendants filed exceptions at length which repeated substantially the ground of the motion to dismiss and the defendants filed similar objections to further proceedings in probate court. The case was heard by a jury, Hon. John Vanderwerp, circuit judge, sitting as probate judge. Over defendants’ objections the only question submitted to the jury was the determination of the damages of the defendants as the owners or occupants of property adjacent to the street by reason of the change of grade. The verdict of the jury was that the defendants, Big Rapids Furniture Manufacturing Company, Hanchett Swage Works and Big Rapids Water Power Company, had made no improvements in conformity with the grade and that the defendant Grand Rapids & Indiana Railway Company had made such improvements and assessed its damages at $95. The Big Rapids Furniture Manufacturing Company and the Hanchett Swage Works appealed to circuit court. The other defendants did not appeal. Defendants in circuit court moved to quash the petition and to vacate and set aside the verdict of the jury in probate court, which was denied. The case came on for trial by jury in circuit court. The verdict of the jury was that the defendants Big Rapids Furniture Manufacturing Company and Hanchett Swage Works had made no improvements in conformity with the established grade of the street, and awarded them no damages, upon which verdict judgment was duly entered. Throughout these proceedings by numerous objections, motions and exceptions the defendants have saved their questions which they here raise by many assignments of error. The plaintiff claims that its commission, under section 5 of chapter 36 of the charter above quoted, may change or alter the grade of any street, including a street for which a grade had theretofore been established and in conformity to which grade adjacent property owners had made improvements, whenever, in the opinion of the commission, public convenience will be promoted by such change, and that under section 7 of chapter 36 of the charter, above quoted, it is necessary to submit to a jury the sole question of determining the compensation to the owners for all damages to such property resulting from such change of grade, and that in the proceeding to have such compensation for the damages ascertained plaintiff may use such sections and parts of sections of chapter 40 of the charter as are applicable to its purpose. The defendants by several assignments of error contend that the commission may change or alter the grade of any street whenever in their opinion public convenience will be promoted thereby except in cases where improvements have been made by the owners or occupants of adjacent property in conformity to the established grade, and in those cases the city must follow all of the provisions of chapter 40 of the charter and submit to the jury, not only the question of compensation for the damages, but the question of necessity as well; that the city in such proceeding may not “segregate and amputate the rights and procedure as defined in chapter 40 and submit to the jury only the question of damages”; that by the reference to chapter 40 contained in section 7 of chapter 36 of the charter the entire of the provisions of chapter 40 is adopted; that the filing of the petition in probate court is an admission by the plaintiff city that defendants had made improvements in conformity to the established grade of the street, otherwise there would be no need of any proceeding in probate court; that the finding of the jury that the defendant had made no improvements in conformity to grade is not judicial or binding because the defendants had a right to a determination by the jury upon the question of the necessity of the improvement, of the necessity of taking their particular property and of compensation for damage, and that this, being a statutory proceeding, the petition must show upon its face all that is necessary to bring the case within the statute to confer jurisdiction. The petition of the plaintiff filed in probate court does not comply with the provisions of chapter 40 of the charter in the following particulars:

(а) It does not state that it was filed as commencement of judicial proceedings to take private property for the use and benefit of the public without consent of the owners for a public improvement designating it for a just compensation to be made.

(б) It does not contain a description of the property to be taken and generally the nature and extent of the use thereof that will be required.

(c) It does not state that the commission had declared such public improvement to be necessary and that they deem it necessary to take private property in that behalf for the use and benefit of the public.

(d) It does not ask that a jury be summoned and impaneled to determine whether it is necessary to make such public improvement and to take such private property.

Defendants also point out that the oath to the jury required by section 8 of chapter 40 could not be taken and was not taken under the petition filed in the case and that the jury could not and did not make the determination in their verdict required by sections 9 and 10 of chapter 40 above quoted for the reason that in all three of these sections reference is made to the necessity for the proposed improvement and for the taking of private property for the use and benefit of the public.

Section 36 of the “home-rule act” above mentioned provides that no provision of any city charter shall conflict with or contravene the provisions of any general law of the State. With the exception of unimportant changes in certain words made necessary by their adoption into the charter we have seen that sections 5 and 7 of chapter 36 of the charter are sections 5 and 7 of chapter 22, Act No. 215, Public Acts of 1895, and that chapter 40 of the charter is chapter 25 of said general law. Section 7 of chapter 22 of said general law by the use of the words: “to be ascertained by a jury as provided in chapter 25 of this' act” adopts by reference chapter 25 of the general law. As chapter 40 of the charter provides the only charter method of ascertaining compensation for the damages mentioned in section 7 of chapter 36 of the charter, and as chapters 36 and 40 of the charter are taken verbatim, except as noted, from the general law, and because of the statute itself, we must hold that by the use of the words in section 7 of chapter 36 of the charter: “to be ascertained by a jury as provided in this charter,” chapter 40 of the charter is adopted by reference. Such adoption is entire. We quote from Deake v. Livingston Probate Judge, 206 Mich. 301, where Justice Ostrander, speaking for the court, said:

“The proceeding concerns a drain proposed to be laid out in the counties of Livingston, Ingham, and Washtenaw, involving the action of the county drain commissioners of each of said counties. Governing statute provisions are found in 1 Comp. Laws 1915, § 4932 et seq., as amended by Act No. 270, Pub. Acts 1917. Not all of the owners of land traversed by the drain released the necessary right of way and the damages to result from constructing the drain. Upon an application made to the probate court for Livingston county, a jury was ordered to determine the necessity for taking and the damages resulting from taking lands not released. It was objected that the landowners could not rightfully demand a jury and that the power of the court was limited to the appointment of special commissioners. Whether the objection is good is the question presented, to be answered as the statute shall be interpreted.
“An examination will disclose that the general statute, chapter No. 93, is subdivided into chapters, of which portions of subchapters III and VII are to be considered. In subchapter VII, entitled ‘Drains Traversing more than one County/ a jury is not mentioned, unless, as it is claimed, by reference to subchapter III. If it is mentioned by reference, it is in the words, found at the end of section 3 (1 Comp. Laws 1915, § 4934):
“‘All proceedings had in the appointment of special commissioners, under the provisions of this chapter, shall be similar to those provided in chapter three for the appointment of other special commissioners.’
“Section 7, chapter III (1 Comp. Laws 1915, § 4886), provides for the appointment of special commissioners. There are four provisos following the enacting part of the section, one of which is:
‘Provided% further, That any person whose premises are traversed by the proposed drain may in writing demand and have from such court at the time of hearing of said application a jury of twelve freeholders of said county * * * to ascertain and determine the necessity for taking or using such lands, and to appraise and determine the damages and compensation to be allowed therefor.’”

And it was held that:

“ ‘All proceedings had in the appointment of special commissioners, under the provisions of this chapter, shall be similar to those provided in chapter three for the appointment of other special commissioners.’
■ — means that the entire of the provisions _ of chapter three, relating to the appointment of special commissioners, including the said proviso, is adopted in chapter seven by reference, and that ‘proceedings’ was meant to include the provision found in the proviso above set out.”

As to the right of plaintiff to design this proceeding, including the petition therein, to suit its convenience and purpose from sections and parts of sections of chapter 40 of the charter, we think what was said in Clay v. Improvement Co., 34 Mich. 204, is controlling. An act of 1869 authorized the formation of corporations for the purpose of improving the navigation of rivers, and provided that property might be taken for the purpose by instituting certain proceedings in court to determine necessity and damage, but did not provide for the appointment of commissioners or point out their duties except by reference to sections 13 to 25, inclusive, of the act to provide for the formation of companies to construct plank roads. A petition was filed in court praying the appointment of commissioners to determine whether it was necessary to take certain lands owned by Clay and to determine the damages. It was held that the petition was defective in omitting material averments and that there was a fatal defect in the act as to the attempted adoption of the sections by reference, and this court said:

“While we do not question the right or power of the legislature to thus refer to the provisions of another statute, and render them applicable and binding as though incorporated and re-enacted in the act under consideration, yet such a method of incorporating certain sections of previous statutes in subsequent acts, must be confined to cases where the sections so referred to are germane to the latter act; where it will not be necessary that parties should either omit from or add important words or provisions to the sections referred to in order to render them applicable. When such changes become necessary, it is leaving to each party acting under the statute the power to change it to suit his convenience, and thus to legislate for himself. And when he has done so there is no certainty at all that the legislature had its attention been specially called thereto, would have made like changes, or if it had, that the act would have become a law by receiving the approval of the governor. * * *
“The sections referred to must be treated as though they had been re-enacted at length in this act, and without any changes having been made therein.”

The proceeding to be taken in cases of this character is statutory. Plaintiff did not have the right to legislate for itself and design from, parts of the sections of chapter 40 the proceeding attempted here. The legislature might have provided such a proceeding, but whether the one here attempted would have had its approval, had it been called to its attention, we cannot say. If the city may proceed under section 7 of chapter 36 of the charter the proceeding must follow the provisions of chapter 40 of the charter which as we have seen gives the right to proceed! under the general condemnation laws of the State (sections 3376-3399, 1 Comp. Laws 1915) as well as, under the charter provisions (sections 3136-3164, 1 Comp. Laws 1915). The petition should show on its face all that is necessary to bring the case within the statute to confer jurisdiction. Clay v. Improvement Co., supra; Hoyt v. City of East Saginaw, 19 Mich. 39 (cited in Bay City Traction, etc., Co. v. Bay City, 155 Mich. 393; Crawford v. City of Detroit, 169 Mich. 293).

“A rule often stated is that a remedial statute should be construed liberally for the advancement of the remedy; but neither this rule nor the one of strict construction is a warrant for disregarding the language of a statute, or for amending the law to conform to a judicial conception of what should have been the legislative conception in passing it.” City of Detroit v. Railway, 156 Mich. 111.

We think it is unquestioned that the legislative power of the State may regulate by statute the changing of the grade of a street and provide that when adjacent property owners have made improvements in conformity to the established grade such grade shall not be changed until in the proceeding provided a jury shall have determined the necessity for the improvement, the necessity for taking by change of grade property of adjacent owners and compensation for damages (Loomis v. Hartz, 165 Mich. 662), and we think that by adopting said chapter 25 of the general law (chapter 40 of the charter) by reference in said section 7, chapter 22 of the general law (section 7, chapter 36 of the charter) such a proceeding was provided. That there may be a taking of property without actual physical invasion of it has often been held. In Allen v. City of Detroit, 167 Mich. 473 (36 L. R. A. [N. S.] 890), Justice Steere, speaking for the court, said:

“Building restrictions are private property, an interest in real estate in the nature of an easement, go with the land, and are a property right of value, which cannot be taken for the public use without due process of law and compensation therefor. * * * The contention that the city, under its general police power, may ignore this building restriction, and erect its fire engine house within the restricted district, because it is necessary for the public good and to protect the lives and property of citizens in that locality, is not tenable. When such action deprives the individual of a vested right in property, it goes beyond regulation under police power and becomes an act of eminent domain governed by the appropriate condemnation laws.”

See, also, Schneider v. City of Detroit, 72 Mich. 240 (2 L. R. A. 54).

In Ranson v. City of Sault Ste. Marie, 143 Mich. 661 (15 L. R. A. [N. S.] 49), the city without physical invasion of plaintiff’s property built a bridge in the street and constructed approaches thereto, seriously interfering with plaintiff’s access to the street from the adjacent property and it was said by this court:

“Plaintiff’s damage flows from the construction of an embankment by the city which has the effect to destroy, to some extent, her property. Within repeated decisions of this court, there has been a ‘taking’ of plaintiff’s property, and, if we could consider the purpose of the taking a ‘public purpose,’ plaintiff was entitled, by the terms of defendant’s charter, to compensation. The city has taken, without proceedings to determine either necessity or resulting damage.
“The term ‘taking’ should not be used in an unreasonable or narrow sense. It should not be limited to the absolute conversion of property, and applied to land only, but should include cases where the value is destroyed by the action of the government, or serious injury is inflicted to the property itself, or the owner is excluded from its enjoyment, or.from any of its appurtenances.” Pearsall v. Board of Sup'rs of Eaton Co., 74 Mich. 558 (4 L. R. A. 148) ; (quoting from the syllabus).

It is argued that chapter 40 provides for compensation while section 7, chapter 36, provides for damages, and that therefore chapter 40 in the entire is not appropriate to the municipal purpose. Section 7, chapter 36, provides for compensation for damages. In both provisions a basic thought is compensation for the taking of property. It is also urged that by this holding another charter provision wherein reference is made to chapter 40 will be inoperative. We regret that, if true, but our duties are judicial and not legislative. We think that chapter 40 of the charter in its entirety provides an appropriate proceeding to accomplish the municipal purpose in this case.

It is with reluctance that we decline the suggestion of counsel for plaintiff to) dispose of this case under section 28, chapter 50, of the judicature act (3 Comp. Laws 1915, § 13763), on the ground that the jury in both courts having found that defendants made no improvements in conformity to the street grade and were entitled to no damages it does not affirmatively appear in the record that the errors complained of were prejudicial to them, but as we must regard this whole proceeding as a nullity the verdicts are not persuasive. It is unnecessary to discuss remaining questions raised.

The judgment is reversed and the proceedings are quashed. No costs will be awarded.

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


author: Fellows, J. Moore, C. J.

text:
    HAWTHORNE v. DUNN.
    1. Appeal and Error — Chancery Cases in Supreme Court Heard De Novo.
    The Supreme Court hears chancery cases de novo with a duty of reaching an independent conclusion, and, while aided by the conclusions of the trial judge, is not controlled by them.
    2. Deeds — Mental Competency of Grantor — Evidence — Sufficiency.
    While frequent changes in the disposition of property may tend to show instability of purpose, such changes, standing alone, do' not make a case of mental incapacity warranting the voiding of deeds or wills.
    3. Same — Cancellation of Instruments — Mental Competency.
    In a suit by the other heirs to set aside a deed of a farm to grantor's brother on the ground of mental incompetenoy, the record held, convincing that grantor was mentally competent when he executed the deed in question, that he fully understood its effect, that he deliberately executed it, that by it the property conveyed went as he wanted it to go, and that he had good reason to prefer grantee Over at least some of the plaintiffs.

      The question of capacity to make contract as affected by mental condition is discussed in a note in 3 L. R. A. (N. S.) 174.
    On effect of delivery of deed to grantee, subject to future extrinsic condition, see note in 16 L. R. A. (N. S.) 941.

      4. Same — Possession by Grantor of Conveyed Land — Effect.
    That grantee allowed grantor to continue to rent the farm and collect the rent as though it were his own, would not render the deed void.
    5. Same — Delivery to Grantee — Intent Not to be Inquired Into —Escrows.
    Where the evidence failed to establish mental incapacity of grantor, and no trust relations were involved, the intent of the parties, where the deed was delivered to the grantees, cannot be inquired into; a delivery in escrow to the grantee not being permitted. •
    Appeal from Oakland; Rockwell (Kleber P.), J.
    Submitted January 20, 1920.
    (Docket No. 60.)
    Decided April 28, 1920.
    Bill by Catherine Hawthorne and others against William Dunn and another to set aside a deed. From a decree for plaintiffs, defendants appeal.
    Reversed, and bill dismissed.

      Dondero, Royston & Howwrth (A. L. Moore, of counsel), for plaintiffs.

      Lungerhausen, Weeks & Lungerhwusen (James H. Lynch, of counsel), for defendants.
    John Dunn, a resident of Macomb county, died May 15, 1915, leaving as his next of kin plaintiff Catherine Hawthorne, a sister, plaintiffs Frank Dunn and Terrence Dunn, brothers, plaintiff Francis Dunn, a nephew, and defendant William Dunn, a brother. He had for a great many years owned a farm in Oakland county said to be worth from $12,000 to $18,000. On August 6, 1912, decedent conveyed by warranty deed the premises to defendants William Dunn and Ellen Dunn, his wife. This bill is filed to set aside this deed.
    Decedent was a single man, 74 years old at the time of his death. He had been a soldier in the war of the rebellion and had always lived in Oakland and Macomb counties. In the later years of his life he had spent some time in the Soldiers’ Home at Grand Rapids. He was addicted to the use of intoxicating liquors and at times drank to excess. There is evidence that some 14 or 15 years before his death he had delirium tremens; that he took the gold cure, but resumed his former habits. He acquired the premises April 27, 1874. On October 18, 1876, he conveyed the premises to his brother Francis, and on December 14th of the same year his brother reconveyed them to him. July 27, 1907, he conveyed them to his brother William who reconveyed them to him on August 5th of the same year. On October 15,1909, he conveyed them to his sister, Catherine, who reconveyed them to bim September 25, 1911. March 12, 1912, he conveyed them to his brother William and his sister Catherine; on August 6, 1912, both executed quitclaim deeds to him. On this date the deed in question was also executed.
    The ground of relief is mental incapacity of deceased. The learned trial judge did not specifically find that deceased was mentally incompetent at the time the deed in question was executed, but did conclude from the making of the prior deeds above set forth that decedent did not have a “sane or rational conception of the meaning of a warranty deed,” and entered a decree for the plaintiffs, from which the defendants appeal. In this court it is urged that the trial judge saw the witnesses, was better able to judge their credibility than are we from an examination of the printed record, and that the decree should be affirmed because—
    “The trial court found:

      “First. That John Dunn was a drinking man;

      “Second. That he had delirium tremens;

      “Third. That he had taken the gold cure;

      “Fourth. That he had conveyed his property first to one and then to another; and

      “Fifth. That John Dunn appeared to possess no sane or rational conception of the meaning of a warranty deed;

      “Sixth. That he believed that he must dispossess himself of his property in order to gain admission to the Soldiers’ Home;

      “Seventh. That he did not believe the deceased expected the deed in question to have any more binding effect upon himself than the many other deeds he had frequently executed which by inference the court finds were all void deeds.”
   Fellows, J.

(after stating the facts). We realize full well the advantage possessed by the trial judge, due to the fact that he sees the witnesses and is able to better judge their credibility than can we by an examination of the printed record. But we hear chancery cases de novo with a duty of reaching an independent conclusion aided as we must be by the conclusions of the trial judge but not controlled by them. There is no evidence in this case in the slightest degree tending to show that any fraud or undue influence was practiced on the deceased, nor is there any claim that fraud or undue influence is established. The decree must rest and solely rest upon the ground that John Dunn was mentally incompetent to transact the business in hand when he executed the deed in question. The learned chancellor nowhere in his opinion directly states that he found deceased was incompetent to transact business. He was led to make the decree appealed from because the deceased in the latter years of Ms life made four different deeds of Ms property. From tMs fact and from tMs fact alone he concluded, not that deceased was a mental incompetent, but that he did not have a “sane or rational conception of the meaning of a warranty deed.” Not only is this the basis of this decree, but it is the only basis upon which a decree could be entered. There is in this case no proof of a single irrational act of the deceased when he was sober in his entire life of 74 years. If we were considering a will contest and the proof showed that the testator had drank liquor, even excessively, and some 14 or 15 years ago had had delirium tremens, had taken treatment for the habit, but returned to it, and during the last 7 or 8 years of his life had made 4 different wills, and the last one was made when he was perfectly sober, and upon such testimony it was asked to have the will set aside, would this court hesitate for a moment in saying that there was no testimony to take the case to the jury and that a verdict should be directed? We think not. While frequent changes in the disposition of property may tend to show instability of purpose, and, where undue influence is proved or fraud is established, or there is independent proof of mental incapacity, may be considered ; such changes in the disposition of one’s property standing alone do not make a case of mental incapacity warranting the voiding of deeds or wills..

We are convinced by the testimony in this record, by that of the plaintiffs, as well as that of the defendants, that the deceased was mentally competent when he executed the deed in question, that he fully understood its effect, that he deliberately executed it, that by it the property went as he wanted it to go, and that deceased had good reason to prefer Ms brother William over at least some of these plaintiffs. We shall briefly consider some of the testimony which impels this conclusion.

That John Dunn, called by his immediate friends Jack Dunn, was a drinking man and became intoxicated on occasions, this record establishes. That such occasions were as frequent as claimed by one side or as infrequent as claimed by the other, I very much doubt. There is testimony, largely from interested witnesses, that he had delirium, tremens, but that was 14 or 15 years before the transaction in question. That he was fully aware of his own frailty this record discloses. He knew better than any one else his condition when under the influence of liquor, and on occasions expressed apprehension that he might, when intoxicated, sign some papers that would deprive him of his property, and it is possible that we might infer that on some of the occasions when deeds were made by him his purpose was to place the title to his real estate in others to insure against such a happening. Doubtless John Dunn was not familiar with our statute of uses and trusts (3 Comp. Laws 1915, § 11565, et seq.). He stated to one witness that he had deeded his property before and had always gotten it back and that he could do so after the last deed. But the fear expressed by him to several witnesses that when he was under the influence of liquor he might sign some papers causing him to lose his property is quite convincing that he knew the meaning of a deed.

Deceased in his lifetime executed “five deeds conveying these premises to members of his family. If we include the whole number they covered a period of 36 years, the first one being in 1876. The last four deeds cover a period of 5 years, from 1907 to 1912. In 3 of these 4 deeds defendant William was a grantee. It is a significant fact that on the very day John Dunn executed the deed in question the plaintiff Catherine Hawthorne had executed a deed of the property to him. If her brother was then a mental incompetent, if he was so enfeebled mentally as to be incapable of handling and managing his property and could not be trusted with it because of his mental condition, the question at once arises, Why did this sister put the title to that property back in him?

Upon the argument considerable was made of the fact that deceased thought he had to deed his property away in order' to become an inmate of the Soldiers’ Home. If the deceased did entertain that idea it was not a delusion. The act creating the Michigan Soldiers’ Home makes it a home for those “who have no adequate means of support” (1 Comp. Laws 1915, § 1674), and whatever we may think of the public policy of permitting one to divest himself of his property in order to obtain a home and support at the expense of the State, it is not evidence of a diseased mind, on the contrary, as applied to this case, it shows that Mr. Dunn knew the effect of a deed. Deceased was not an inmate of the Soldiers’ Home at the time of his death, as stated by the trial judge; for 14 months he had lived with and been cared for by the defendants until 8 days before his death when he was taken, to Harper’s. Hospital in Detroit where he died.

The record does not clearly and satisfactorily disclose the relations between deceased and his brother Frank, one of the plaintiffs here. It does show the relations between him and his brother Terrence, another one of the plaintiffs, were unfriendly and had been so for a great many years. Delisle Hawthorne, a son of plaintiff Catherine Hawthorne and one of the plaintiffs’ witnesses, testifies:

“My uncle Terry and John had not been on good terms for quite a number of years — 30 years, something like that. They hadn’t spoken. They had some trouble a number of years ago.”

And Mary Dunn, wife of Terrence and one of plaintiffs’ witnesses, says:

“Have always lived in Troy township. Our home is right across the home of William Dunn. Knew John Dunn in his lifetime. Saw him around there the last year before he died. I have known him ever since I was. married. Never spoke to him much. The last year he was here several times at my house. He did not call at our house very often unless Bill sent him over. Brought over some liver and one day some meat. He never came unless Bill sent him.”

There is much other testimony which corroborates that of these two witnesses as to the want of harmony between these two brothers.

The record discloses that the nephew, Francis Dunn, one of the plaintiffs, acquired his farm either by will or descent from his parents or one of them. The record does not disclose as clearly as might be desired the detail, but it does disclose that there was litigation —a will contest — and that deceased (John Dunn) hired the late Col. John Atkinson for his nephew Francis and otherwise assisted him in obtaining the farm. The record also discloses that the nephew Francis wa's not thrifty and had not kept the property. The deceased was not pleased with this. One of plaintiffs’ witnesses, a tenant of deceased, testified:

“He explained about his nephew Frank when he was boarding With me in.the summer of 1912. He said something about he had been helped — he gave bim a good start and he' didn’t know enough to keep it.”

We are satisfied that there was trouble between deceased' and the'Hawthorne family and that it grew out of the fact that a neighbor named Brace while in trouble deeded'by voluntary conveyance his property to Robert Hawthorne, the husband of Catherine Hawthorne, One-of the plaintiffs. After the storm was over Hawthorne-declined to settle with Brace but sold the property and pocketed the proceeds. That John Dunn disapproved of this manner of getting on in the world appears from the testimony of both plaintiffs’ and defendants’ witnesses. I am satisfied this caused trouble, and while Hawthorne denies that he ordered deceased from his home after a row over this matter, he does testify with -reference to the transaction with Brace and his dealings with Brace and his property as follows:

“Going back to the. transaction with Tom Brace and Sara Brace, I got a deed of 95 acres from Sara Brace, Tom’s wife. I paid no money for it. Tom got into trouble with a girl and she took judgment against him, and to cover up the property, it was deeded, to me. I held this property for some time, and Tom Brace left the country for a while and he came back. I deeded that property to Isaac Brace for $65 an acre. Ninety-five acres at $65 would bring $9,000, but there were mortgages that had to be paid, three or four mortgages. There was a mortgage for $850, one for $880, and one for $1,600. aggregating $3,000. I don’t think I ever paid Tom Brace any money.”

Martin Blunt, who had known deceased for better than 60 years, testified to a conversation he had with deceased. He says:

“He started the conversation. He says, T was just going down to your place,’ and I says, 'You can keep right on going,’ and he says, ‘No, it won’t be necessary for me to go now.’ He says, T want you to give me Tom Brace’s address,’ and I says, ‘Yes,’ and he says, ‘What is it?’ and I says, ‘It is Salt Lake City, Utah. What do you want of Tom?’ and he says, T want to write to him, you know about that property deal with Hawthorne and Tom,’ and I says I heard-of it. ‘Well,’ he says; ‘that Tom has been back here and settled up that and tried to settle up with Robert,’ and I says, ‘Yes, Tom told me that he had been and he told me if he got what was coming to him that he would see I got what was coming to me, but I judged from that he didn’t get it for I never saw what was coming to. me,’ and he says he and Mr. Hawthorne got into an argument over that — Jack and Hawthorne, and Jack ordered him off the place, or Hawthorne ordered Jack off the place because Mr. Dunn said that he might just as well put his hand into Mr. Brace’s pocket and stolen the money as to have taken it the way he did, and his sister then ordered him out of the house and he got up and left. Mrs. Hawthorne ordered him out of the house, and he said he had deeded his property to William and was going to live with William and William was going to give him a home for the rest of his days.”

That his feeling towards his brother William, the defendant, was very different than towards the Hawthornes is clearly evidenced by the remark he made to a witness: “I deeded my farm to brother William. X can trust Will.” Mrs. Mary Renshaw, at whose home deceased had boarded from 1905 to 1907 and who saw him and talked with him after the deed in question was executed, testified on direct-examination:

“He told me about having made deeds the last time he came from the Soldiers’ Home, that was about a year before he died. That was the only time he ever told me about having made those deeds that X remember of. He said he gave his property to his brother Will, as he depended on him to look after him, after he got sick. He said he intended to live at his brother Will’s and depended on him if he got sick, and couldn’t take care of himself. This was after he came from the Soldiers’ Home the last time. He didn’t say anything as to how he had done it, but he said he thought it was so arranged so it would go where he see fit. I think his mind was all right. He spoke about the Hawthornes with reference to the Tom Brace matter.”

On cross-examination the witness said: .

“Well, -he said he was, he had a sick spell at the home, at’the Soldiers’ Home. And the last time the doctor said he was apt to have a stroke and he might go sudden, and for him not to be alone, that he might go sudden some time and he thought he would fix his property so it would go where he saw fit. He thought he had it fixed.”

Another witness testified:

"He told me the year before he died when he come along he was going up to my brother’s and he says — ■ we got talking about something — and I says, ‘Where are you living,’ and he says, T am living down to my brother Billie’s,’ and he says, T deeded him property/ and he says, ‘and I have got a home to go to,’ that is all he said about it.”

The scrivener who drew the deed, a man 81 years old when he gave his testimony, had known Mr. Dunn from a boy, testified to his mental capacity; a doctor who had known him for 24 or 25 years and had treated him professionally, and neighbors and acquaintances express the view that he was mentally competent during all the years they had known him. That he drank to a greater or lesser -degree, all admit. That he became intoxicated at times, no one questions. But that he was competent to manage and handle property, and had accumulated this 123 acres of land claimed by the plaintiffs to be now worth from $100 to $150 per acre notwithstanding his habits is, I think, clear.

I have referred to the feeling deceased had against some of his relatives, plaintiffs here. I think his feelings toward his brother William, or “Billy” as he sometimes called him was of a different sort. He never, so far as this record discloses, spoke an ill word of either of these defendants. When this deed was executed he was past 70 years old; he had been advised by his doctor that he was liable to an attack at any time, that he was liable to go. He needed a home. He needed care. The defendants gave him both. To compensate them and because of his preference for William over the others equally of kin he executed this deed. After the title by the deed in question was placed in William and his wife, the deceased continued to collect the rent and rented the farm as though it were his own. I do not think it should militate against William that he did not as soon as the title was placed in him and his wife, insist that the rent should be paid to him and oust his brother from any management of the farm he had owned many years. If William Dunn is the man I think this record discloses him to be I should not expect him to do differently than he did.

We do not think the facts of this case justify a decree setting aside this deed. See Williams v. Williams, 133 Mich. 21; Pierce v. Pierce, 38 Mich. 412; Wright v. Fisher, 65 Mich. 275; Rice v. Rice, 50 Mich. 448; Behrns v. Qualman, 147 Mich. 635; Corby v. Moran, 119 Mich. 272; Russell v. Carpenter, 153 Mich. 170; Griffith v. Fuller, 181 Mich. 553; Case v. Bogart, 188 Mich. 297; Hayman v. Wakeham, 133 Mich. 363; Blackman v. Andrews, 150 Mich. 322; Hibbard v. Baker, 141 Mich. 124; Noble v. Hunter, 195 Mich. 713.

Plaintiffs having failed to establish mental incapacity of decedent, and there being no claim of fraud or undue influence, and no trust relations being involved, we cannot inquire into the intent of the parties when the deed was delivered, a delivery in escrow to the grantee not being permitted. Dyer v. Skadan, 128 Mich. 348; Wipfler v. Wipfler, 153 Mich. 18 (16 L. R. A. [N. S.] 941).

In the deed from Catherine Hawthorne there was a mistake in the description of the premises. By the decree of the court below this mistake was corrected. Mrs. Hawthorne has not appealed so that this portion of the decree should be affirmed. As to the balance of the decree I think it should be reversed and one entered here dismissing the bill with costs of both courts to the defendants.

Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred with Fellows, J.

Moore, C. J.

I think the instant case is controlled by Dyer v. Skadan, 128 Mich. 348, and Wipfler v. Wipfler, 153 Mich. 18 (16 L. R. A. [N. S.] 941). For that reason I concur in the result reached by Justice Fellows.