text:
    DAILEY v. SHAFFER.
    1. Physicians and Surgeons — Negligence—Malpractice.
    Where defendant was called to administer to decedent who was suffering from a gunshot wound in the leg, and defendant treated and bandaged the wound but did not examine the arteries which were severed, so that the patient died later from loss of blood, the question of the physician’s negligence in failing to inform himself of existing conditions was for the jury, upon expert testimony tending to show that he should have examined, discovered and remedied the bleeding.
    2. Same — Emergency Case.
    The defendant’s contention that he could not have discovered the severed arteries without endangering the life of the patient, plaintiff’s witnesses testifying in conflict with such claim, was properly left to the determination of the jury.
    3. Same — Due Care — Malpractice.
    The rule that in emergency cases a physician who acts on his best judgment as to treatment is not liable for negligence because he adopted one treatment rather than another, necessarily assumes that he has informed himself of existing conditions, without knowing which he would have no proper basis for the exercise of his discretion.

    4. Same — Inconsistent Positions,
    Where it was claimed by plaintiff that the attending physician should have ligated the arteries of decedent’s wounded leg, and at the trial, the medical witnesses agreed that gangrene would have resulted if the physician had so treated it and amputation would have been necessary, the court did not err in leaving the question of damages to the jury to be estimated on the basis of the probable earnings of deceased in his crippled condition: nor was the cause of action changed by reason of such charge.
    5. Same.
    It was also proper to submit to the jury the question whether the physician should have given the patient further attention, as claimed by the witnesses for plaintiff; and a new trial was correctly denied on the motion of defendant, based on the ground of the weight of evidence.
    Error to Gratiot; Searl, J.
    Submitted April 28, 1913.
    (Docket No. 77.)
    Decided March 26, 1914.
    Rehearing denied July 25, 1914.

      Case by Emma Dailey as administratrix of the estate of Albert Dailey, deceased, against John R. Shaffer for malpractice. Judgment for plaintiff, and defendant brings error.
    Affirmed.

      William A. BahlJce and O. G. Tuttle, for appellant.

      Dean W. Kelley and J. Earle Brown, for appellee.

       On the question of the care required of one in sudden emergency, see note in 37 L. R. A. (N. S.) 43.

   Bird, J.

The. defendant, Dr. Shaffer, has brought to this court for review a judgment rendered against him for malpractice while treating plaintiff’s husband for a gunshot wound. It appears that plaintiff’s intestate was a farmer, 47 years of age, in good health, living with his family on his farm a mile and a half from Elm Hall. On the morning of the 13th of December, 1908, while in a slashing several rods from his dwelling, he accidentally received a gunshot wound in the calf of his right leg. The charge, which was composed of No. 6 shot, tore its way clear through the thick part of the calf, leaving a hole large enough to insert two fingers. He was removed to his house, and the defendant arrived within a few minutes thereafter and took charge of the case. The wound was partially cleansed and some of the foreign matter removed, after which antiseptic gauze was inserted, and the leg was bandaged. Strychnine tablets were administered, as the patient was suffering from shock and loss of blood. After giving members of the family some instructions as to treatment during his absence, he left at about 11 o’clock in the' forenoon, after having been there an hour, and returned at 3 o’clock in the afternoon, to find the patient somewhat improved. At this time, he remained about 15 minutes. On the first visit, the doctor made some investigation to learn the extent of the injury, but did not go far enough with it to learn whether any of the arteries had been severed or punctured. On the second visit, he made no investigation in this respect. At 7 in the evening, it was thought the patient was bleeding too freely, and repeated attempts were made to reach the doctor over the phone, but without avail. At 4 o’clock the next morning his condition became alarming, and a neighbor was dispatched for the doctor, but before he reached there the patient was dead. A post mortem examination disclosed the facts that the posterior tibial artery was cut off and the popliteal artery was partially divided, and experts gave it as their opinion that he died from arterial hemorrhage.

The negligence with which the doctor was charged was: First, a failure to ligate the severed and injured arteries; second, in failing to visit and attend to the patient as often and as much as he should have done. The defense made to these charges was that the treatment was proper under the circumstances; that the patient was suffering from shock and loss of blood; and that had a thorough examination been made, as to the condition of the arteries, the patient would have died while the examination was being made. But it is insisted in his behalf that, in any event, the case comes within a class of cases known as “emergency cases,” wherein, if a physician exercises his best judgment as to the treatment, he is not liable for negligence for an error of judgment in following one treatment rather than another. The rule contended for is the one laid down in The Tom Lysle (D. C.), 48 Fed. 690, and approved by this court in Luka v. Lowrie, 171 Mich. 122 (136 N. W. 1106, 41 L. R. A. [N. S.] 290). It is there said:

“The distinction between an error of judgment and negligence is not easily determined. It would seem, however, that if one, assuming a responsibility as an expert, possesses a knowledge of the facts and circumstances connected with the duty he is about to perform, and, bringing to bear all his professional experience and skill, weighs those facts and circumstances, and decides upon a course of action which he faithfully attempts to carry out, then want of success, if due to such course of action, would be due to error of judgment, and not to negligence. But if he omits to inform himself as to the facts and circumstances or does not possess the knowledge, experience, or skill which he professes, then a failure,, if caused thereby, would be negligence. ‘No one can be charged with carelessness, when he does that which his judgment approves, or where he omits to do that of which he has no time to judge. Such act or omission, if faulty, may be called a mistake, but not carelessness’ ” — citing Brown v. French, 104 Pa. 604; Williams v. Le Bar, 141 Pa. 149 (21 Atl. 525).

In Staloch v. Holm, 100 Minn. 276 (111 N. W. 264, 9 L. R. A. [N. S.] 712), the writer of the opinion, in commenting upon this exception to the general rule, says:

“One reasonable justification for this exception * * * is the elementary principle that when a man acts according to his best judgment in an emergency, but fails to act judiciously, he is not chargeable with negligence. * * * Physicians in the nature of things are sought for and must act in emergencies, and if a surgeon waits too long before undertaking a necessary amputation, he must be held to have known the probable-consequences of such delay, and may be held liable for the resulting damage” —citing Du Bois v. Decker, 130 N. Y. 325 (29 N. E. 313, 14 L. R. A. 429, 27 Am. St. Rep. 529); Martin v. Courtney, 75 Minn. 255 (77 N. W. 813).

The difficulty we have in applying this rule to the case in hand is the claim of the plaintiff that the doctor failed to make such investigation as was necessary to determine what ought to be done. This exception to the ordinary rule of negligence is based upon the assumption that the physician has informed himself of the existing conditions. Without a knowledge of these, he has no proper basis upon which he can exercise his discretion. One of the complaints and the one most strenuously insisted upon by the plaintiff was the failure of the doctor to inform himself as to whether the arteries were cut off or punctured. The doctor admits he did not ascertain these things, and it was shown by expert witnesses that he should have done so; that he should have found the bleeding point and stopped it. After he determined what course to pursue without this information, he is in no position, as a matter of law, to invoke the protection of the rule in emergency cases.

But it is argued that this information could not have been obtained without endangering the life of the patient. This question was in dispute and was one of the points upon which there was a conflict of expert testimony. It was therefore properly submitted to the jury to determine whether he did what was necessary to bring his treatment within the rule in emergency cases.

The defendant’s third ground of complaint is—

“That the plaintiff in her declaration having declared specifically, that the defendant’s misconduct consisted in not having ligated the posterior tibial artery, and in nonattendance upon his patient, and the opening statement of counsel having amplified these grounds as her cause of action, and the case having been presented by plaintiff upon this theory to the close of Dr. Gale’s testimony, that the court should not have permitted the plaintiff to change the whole cause of action by permitting her to recover upon the theory that the defendant’s neglect consisted in not having amputated the patient’s right leg above the knee and in permitting a recovery for a sound, robust man with one leg, instead of the same kind of a man with two legs.”

The experts upon both sides of the case agreed, upon the trial, that had the arteries been ligated, as it was claimed by plaintiff they should have been, it would have resulted in gangrene, and amputation of the limb would have been necessary. In view of this, the court charged the jury on the question of damages in part as follows:

“The plaintiff in this case, if entitled to damages, can recover, as administratrix of Dailey’s estate, such an amount as would equal the present worth of what Dailey would have earned in his crippled condition, having but one leg, from the time of his recovery sufficiently to permit him to resume work, and during the probable duration of his life.”

When testimony developed that if the patient had had the treatment which plaintiff insists he should have had it would have resulted in amputation, we think the charge of the court was proper, and that there is no reasonable basis for claiming that the whole cause of action was changed by reason of such charge.

As to plaintiff’s ground of complaint that the arteries should have been found and ligated on either the first or second visit, the expert testimony was in conflict; therefore it presented a question of fact for the jury. The other ground of complaint, as to whether the defendant gave the patient the attention and care which the case demanded, was one upon which there was conflicting testimony, both lay and expert, and this question was likewise one for the jury. The testimony upon both of these questions was such that the jury would have been justified in finding either way. And we think that the trial court was justified in refusing to set the verdict aside as being against the weight of the evidence.

The other assignments have been examined but we find no reversible error in them.

The judgment of the trial court will be affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    SCOTT v. ROETHLISBERGER.
    1. Wnxs — Life Estate — Estates of Decedents.
    Where a will granted to the wife of testator a life estate, and at her decease, should she survive the testator, bequeathed the property to his several children, to a portion life estates and fractional shares to others, and where the wife died first, the intent of the instrument was to prefer part of the children over others, and the words “should she survive me” were not intended to create a condition precedent to the taking effect of the testament; decedent did not intend that he should be treated as intestate in such a contingency.
    2. Same — Ambiguity—Evidence.
    Testimony is not admissible to explain the meaning of unambiguous language employed in a will.
    3. Same — Conditions Subsequent on Precedent.
    There are no technical appropriate words which always determine whether a devise is upon a condition precedent or subsequent, and the question is always a question of intention. If the language of the particular clause, or of the whole will, shows that the act on which the estate depends must be performed before the estate can vest, the condition is, of course, precedent; and, unless it be performed, the devisee can take nothing. If, on the contrary, the act does not necessarily precede the vesting of the estate, but may accompany or follow it, if this is to be collected from the whole will, the condition is subsequent.
    Appeal from Hillsdale; Chester, J.
    Submitted January 9, 1914.
    (Docket No. 42.)
    Decided March 26, 1914. .
    Bill by Emma J. Scott against Fred A. Roethlisberger, as executor, and others, for the construction of the will of Jonathan Stafford, deceased. From a decree for defendants, complainant appeals.
    Affirmed.

      Lockerby & Bowen, for complainant.

      Paul W. Chase, for defendants.
   Bird, J.

The bill of complaint in this case was filed to obtain a construction of the will of Jonathan Stafford, deceased. The chancellor who heard the case in the trial court has placed a construction thereon which so nearly accords with our conclusions that we adopt his opinion therein. It follows:

“Jonathan Stafford made his will February 17, 1909. His wife, Rachael Stafford, died March 5, 1909, and he died May 20, 1912. The first clause of his will provides for the payment of his just debts and funeral expenses. The second clause provides that his wife, Rachael Stafford, shall have the use of all his property during her life, and at her death all the expenses of her last sickness and burial shall be paid. The third clause provides:
“ ‘At the death of my said wife, Rachael Stafford, should she survive me, I give, devise aud bequeath all that then remains of my said estate, after paying the expense of last illness and funeral as above stated, to my five children, as follows:
‘“(a) To Charlotte A. Beddow, daughter, one-fifth part thereof.
‘(i) To George M. Stafford, son, one-fifth part thereof.
‘(c) To P. Josephine Osgood, daughter, one-fifth part thereof.
“‘(d) To Emma Jane Scott, daughter, life use only of one-fifth part thereof, remainder to be divided between Charlotte A. Beddow, P. Josephine Osgood, George M. Stafford and the children of Ida May Cronk, they to take one-fourth of Emma’s estate. But if Emma leaves children, then the remainder to go to them.
“‘(e) To Ida May Cronk, daughter, life use only, remainder to her children [naming them].’
“The bill is filed by the two children who, by the terms of this instrument, get only a life.estate if Jonathan Stafford died with a will disposition oí his property.
“Complainants claim that the words ‘should she survive me,’ in the third clause, create a condition precedent and that the property does not pass by the •terms of this instrument, because Rachael did not survive him. The language of this instrument is not ambiguous; .so extraneous evidence of what the language means cannot be considered. The only question is: Can the court, with reasonable certainty, determine from the whole instrument what the intention of the testator is?
“ ‘At the death of my said wife, should she survive me, I give, devise and bequeath’ to my children, naming them in subdivision (a), (6), (c), and (d). Do the words ‘should she survive me’ create a condition, and did the testator intend that if his wife died before he did, that his children (who are his only heirs) should not take under the will, and that he should die intestate? The beneficiaries under this clause are. his only heirs, and the only persons who would take under the statutes of descent and distribution, and it is apparent that he wanted them, the natural objects of his bounty, after his wife was cared for, to have his property. It is also apparent that he did not intend that these complainants should have the same rights in and use of his property that his other children had. He intended to make a distinction between them, and he intended when he was gone that this will should express and carry out that intention. Has he defeated that intention by creating a condition in this will that destroys the very purpose of this instrument? I think not.
“Our court has in different cases quoted with approval from Finlay v. King’s Lessee, 3 Pet. 346, the following language:
“ ‘It is certainly well settled * * * that there are no technical appropriate words which always determine whether a devise be on a condition precedent or subsequent. The same words have been determined differently; and the question is always a question of intention. If the language of the particular clause, or of the whole will, shows that the act on which the estate depends must be performed before the estate can vest, -the condition is of course precedent; and unless it be performed, the devisee can take nothing. If, on the contrary, the act does not necessarily precede .the vesting of the estate, but may accompany or follow it, if this is to be collected from the whole will, the condition is subsequent.’
“See Markham v. Hufford, 123 Mich. 508 (82 N. W. 222, 48 L. R. A. 580, 81 Am. St. Rep. 222); De Conick v. De Conick, 154 Mich, at page 191 (117 N. W. 570, 22 L. R. A. [N. S.] 417).
“In Markham v. Hufford, 123 Mich. at page 509 (82 N. W. 225, 48 L. R. A. 580, 81 Am. St. Rep. 222), the court says:
" ‘It is in all cases a question of intention, and not of phrase ■ or form.’
“In Clark v. Mack, 161 Mich, at page 549 (126 N. W. 633), our court says:
“ ‘When a will fairly construed is susceptible of two constructions, one of which would render it inoperative, and the other give effect to it, the duty of the court is to adopt the latter construction’

—and cites approvingly the following language from Den ex dem. Micheau v. Crawford, 8 N. J. Law, 97:

“ ‘It is only when a reasonable construction and the discovery of the intent of the testator are utterly hopeless, that all effect should be denied to a will.’
“Mr. Stafford’s first desire, as expressed in this will, was to care for his wife, and his second desire was to divide what remained among his children, giving to some more than to others. And the distinction he makes between his children, and the fact that he gives all that remains,’ are important factors in persuading me that he did not intend to create a condition by the use of the words ‘should she survive me.’ Applying the rule that it is not ‘phrase or form’ of words, and also the principle enunciated in the Finlay Case, ‘the same words have been determined differently,’ also that it is a question of intention to be gleaned from the language of the whole will, we can well reach the conclusion that no condition was created here, and that testator did not die intestate.
“Counsel for complainants has earnestly urged, with much reasonableness, and not without some authority sustaining his contention, that the words ‘should she survive me’ create a conditional devise. The principal case cited is Gibson v. Seymour, 102 Ind. 485 (2 N. E. 305, 52 Am. Rep. 688).
“In the case just cited the will was made by the wife. She was the second wife, and by this marriage they had no children. Her husband had a daughter by his former wife. In the will she gave a life estate to her husband, and then provided that, ‘if my husband survive me, I desire at his death that all I may own * * * shall go to and become the property of my well beloved step-daughter, Harriet E. Gibson.’ It was there held that this was a conditional devise, and that the wife died intestate. A rehearing was had, and a more extended opinion written, citing authorities containing the principles which that court found sustained the judgment rendered. That court seemed to attach some importance to the fact that the step-daughter was not an heir of the deceased. At page 489 of 102 Ind. (2 N. E. page 306, 52 Am. Rep. 688), the court says:
“ ‘Mrs. Gibson, can only take as tbe will provides, and as tbe will makes tbe devise depend upon a contingency, sbe cannot take absolutely. She can claim only under the will, for she is not an heir, and can take only upon tbe condition expressly created by tbe will, and as that condition failed, so also did ber claim as sole devisee.’
“Again, at page 492 of 102 Ind. (2 N. E. p. 308, 52 Am. Rep. 688), the court says:
“ ‘Tbe presumption in sucb a case as tbis is in favor of tbe beirs, and where an estate is devised to a stranger upon a contingency, tbe contingency must happen, or tbe beirs will succeed to tbe estate of their ancestor. Tbe general rule upon tbis subject is thus stated: “It is a well-known maxim, that an heir at law can only be disinherited by express devise or necessary implication, and that implication has been defined to be sucb a strong probability that an intention to the contrary cannot be supposed.” 1 Jarman, Wills, 465, Rupp v. Eberly, 79 Pa. 141.’
“In the present case the testator wanted his estate to go to his heirs, but with limitations to certain ones of his children. This was his intention, as expressed in his will, and it was not his intention to create a conditional devise and die intestate should his wife not survive him.
“A decree may be entered in harmony with these findings.”

The decree of the trial court is affirmed, with costs of the court to the defendants.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


text:
    BERKY v. AMERICAN SEATING CO.
    1. Master and Servant — Warning and Instructing Servant— Knowledge — Notice—Evidence.
    Evidence that defendant had knowledge that the treadle of its press had caught underneath the lower part of a truck standing near the machine, on occasions previous to plaintiff’s injury, causing the press to repeat, presented a question for the jury on the trial of a personal injury action, whether the defendant should have warned plaintiff, an inexperienced minor servant, of the danger.
    2. Same — Assumed Risk — Contributory Negligence.
    Under conflicting proofs, the questions of the obvious nature of the risk and the sufficiency of instructions given to the plaintiff, were for the jury.
    3. Same — Similar Accidents — Evidence.
    Testimony that similar occurrences had taken place in the factory of defendant on other machines, was competent to establish notice to the defendant of the danger from placing wheel trucks too near the machines: the exclusion of such testimony was reversible error.
    Error to Kent; Perkins, J.
    Submitted January 19, 1914.
    (Docket No. 22.)
    Decided March 26, 1914.
    Case by George O. Berky, by next friend, against the American Seating Company for personal injuries. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Lombard, Hext & Washburn, for appellant.

      Carroll, Kirwin & Holhvay, for appellee.
   Bird, J.

This is a personal injury case in which the defendant had judgment by direction of the trial court. The plaintiff has assigned error.

The defendant operates a manufacturing plant in the city of Grand Rapids. In one of its departments it operates a large number of punch and other presses arranged in two rows on either side of the room and separated by an aisle. Down this aisle the materials are conveyed on low trucks to the several machines. These trucks are what is called a two-story truck, the lower, platform being about 6 inches from the floor, and the upper one, upon which the materials are carried, being about 18 inches above the lower floor. The operators sit on stools immediately in front of the machines. The power is conveyed from the main shaft to the several machines, and is controlled by means of a clutch operated by a treadle. When the metal plate is placed in position, the machine is started by placing the foot on the treadle and pressing downward. When the plate is fashioned, the operator removes his foot from the treadle, and the power is disengaged. All of the presses are operated in' the same general way. A short time before the injury, the plaintiff had wheeled a truck load of plates close to his machine, and located it at his right hand. After placing a metal plate in position, he started the machine in the usual way. When the plate was finished, he removed his foot from the treadle, and reached for it with his left hand to remove it. The press kept on repeating, with the result that the first three fingers of his left hand were crushed. Upon examination it was discovered that the treadle, which had a lateral movement of about three inches, had caught under the lower platform of the truck, which kept it from springing up and disengaging the power when plaintiff removed his foot.

The plaintiff was a boy 17 years of age, although it was agreed he had the appearance of being 20. He had worked for defendant only about two weeks when he received his injury, but had had some experience with and around machinery at other industrial plants. The negligence which he complains of was the failure of defendant to instruct him of the danger of wheeling his truck too close to the treadle on account of the lateral movement of the treadle. It was shown that, prior to this happening, the treadle on similar machines had caught in the same way, and that the superintendent had instructed the foreman to caution the men of the danger, and the foreman testified that he did caution plaintiff with reference to it. Plaintiff denied that he was so cautioned.

The defendant contends that the danger, if it were one, was one of the risks incident to the employment, and therefore was assumed by the plaintiff, and, further, that plaintiff was the victim of his own neglect.

Had this been the first happening of the kind which had occurred in defendant’s plant, it could have been urged with much propriety that it was a novel happening and one which could not have been reasonably foreseen nor anticipated by either master or servant. But, after one or more similar occurrences had taken place, knowledge of its dangerous character was brought home to the defendant, and thereafter it would be its duty to warn its servants of the danger.

If it had been called to the attention of the defendant, as the evidence tended to show, that such an occurrence was likely to happen, and the plaintiff, by reason of his youth or inexperience, did not know of it, and the danger was not an obvious one, it was the duty of the defendant to warn him. Coombs v. Cordage Co., 102 Mass. 572 (3 Am. Rep. 506); Swoboda v. Ward, 40 Mich. 420; Parkhurst v. Johnson, 50 Mich. 70 (15 N. W. 107, 45 Am. Rep. 28); Snow v. Power Co., 162 Mich. 579 (127 N. W. 677).

The questions as to whether the danger was an obvious one and, if not, whether plaintiff was properly instructed as to the danger, together with the question of plaintiff’s own neglect, were questions which we think should have been sent to the jury.

Testimony was offered and excluded that similar occurrences had taken place in defendant’s plant on machines of like kind. This testimony was competent, and should have been received for the purpose of establishing notice to the defendant that the practice of wheeling the trucks too close to the machines was a dangerous one, and one which might result in injury to the employees. 5 Cyc. p. 1114.

The judgment of the trial court is reversed, and a new trial granted.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


text:
    GALINSKI v. THOMAS
    1. Damages — Sales—Contracts—Market Price.
    The measure of damages for failur’e to deliver cattle pursuant to a contract of sale, was the difference between the contract price and the market price at the time and place of delivery, although the buyer had mentioned the fact that he intended to ship them to another market, not notifying the seller what purpose he intended them for or anything about the price be was to receive.
    2. Sales — Market—Evidence.
    Testimony that plaintiff bought other cattle at the point of delivery in place of those which defendant did not deliver, that the railroad maintained stockyards there, that one of the witnesses had conducted a meat market there and bought and sold beef cattle, had a tendency to establish the existence of a market at the point of delivery: the court erred in charging that the measure of damages depended on the difference between the contract price and the value at the point to which plaintiff intended to ship the cattle.
    Error to Leelanau; Mayne, J.
    Submitted April 17, 1913.
    (Docket No. 83.)
    Decided March 26, 1914.
    Assumpsit by Wolfe Galinski against Richard Thomas for breach of contract. Judgment for plaintiff. Defendant brings error.
    Reversed.

      C. L. Dayton, for appellant.

      John O. Duncan, for appellee.
   Bird, J.

Plaintiff instituted this suit to recover damages for the failure of defendant to deliver to him at Northport certain beef cattle which he had purchased of him and made a partial paymént thereon. The parties are agreed as to the stipulations in the contract, save in one particular, and that was as to the time of day the cattle were to be delivered at Northport. Plaintiff’s understanding was that they should be delivered on Saturday, while defendant’s memory was that they should be delivered Saturday forenoon. Defendant delivered them Saturday forenoon, but plaintiff was not at Northport to receive, weigh, and pay for them, so defendant started for home with them, but sold them to another before he reached there. This question of fact between them was decided by the jury in favor of the plaintiff. The defendant assigns error, and the important question presented is whether the trial court gave to the jury the proper rule of damages. The jury were instructed that, if they found for the plaintiff, the measure of damages would be the difference between the contract price and the price of dressed beef at Petoskey, less the cost of transportation from North-port to Petoskey.. The defendant insists that this was not the proper rule, but that the general rule should have been given, namely, the difference between the contract price and the market price at the time and place of delivery.

The defendant is right in his contention, unless there was evidence of facts and circumstances which took it out of the general rule. The declaration averred that plaintiff’s business was that of buying cattle, shipping them to Petoskey, and slaughtering and selling them to certain customers. Plaintiff was permitted, over defendant’s objection, to support these averments by proof. These averments and proofs would have no force and would be immaterial unless the facts were communicated to defendant at the time the contract was made. 2 Mechem on Sales, §§ 1761, 1762; 30 Am. & Eng. Enc. Law (2d Ed.), p. 216; Clark v. Moore, 3 Mich. 55.

Both plaintiff and defendant agree that the only statement made by plaintiff when he contracted for them was that he was going to ship them to Petoskey. He said nothing about slaughtering them, nothing about selling them to camps, and nothing about receiving any particular price, and defendant testified that he did not know plaintiff at that time, and did not know that he was engaged in such business. The statement that he was going to ship them to Petoskey appears to have been made incidental to his statement that he was going to ship them on Monday, and therefore wanted them at Northport on Saturday. In view of this, we think there was nothing communicated to defendant at the time the contract was made which would enlarge the rule of damages or take it out of the general rule. Clark v. Moore, supra; Cuddy v. Major, 12 Mich. 368; Henry v. Hobbs. 165 Mich. 183 (130 N. W. 616).

But it is argued that there was no market price at Northport. Had this been satisfactorily shown, it would have been proper to have shown what the market price was for such cattle at Petoskay, and then deducted the cost of transportation. The statement that there was no market price at Northport is based upon the plaintiff’s evidence that he did not know what the market price was, although he admitted upon cross-examination that, after he knew that the cattle in question were not going to be delivered, he bought other cattle. It was also in evidence that the railway company maintained stockyards at Northport, and that they were used by plaintiff on this occasion. And, further, it was shown by the witness Selig that he was running a meat market in Northport and had been in the business for 25 years, and during that time had bought, slaughtered, and sold beef cattle. We think the record fairly shows that there was a market nrice for such cattle at Northport.

There are some other assignments of error; but, as they are closely allied to the one we have discussed, we think it will be unnecessary to consider them. The judgment must be reversed, and a new trial granted.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


text:
    DIEDRICH v. SWIFT.
    1. Husband and Wife — Auenation of Affections — Evidence.
    Upon the trial of an action for the alienation of the affections of plaintiff’s husband, the admission of the defendant, his mother, claimed to have been made to plaintiff, that she had sent the husband away because she did not want him to associate with the wife, that she did not consider her son legally married to plaintiff, supported by defendant’s testimony on the stand that she opposed the marriage and considered the plaintiff unfit for her family, raised an issue of fact for the jury, and the court properly denied a motion to direct a verdict for the defendant.
    2. Same — Damages.
    Three thousand dollars for loss of support to the plaintiff and her infarJ- was not unreasonable or excessive damages in a suit for alienation of the affections of her husband.
    Error to Iron; Flannigan, J.
    Submitted November 4, 1913.
    (Docket No. 65.)
    Decided March 26, 1914.
    Case by Mabel Diedrich against Rosa Swift for alienation of the affections of plaintiff’s husband. Judgment for plaintiff. Defendant brings- error.
    Affirmed.

      Cook & Pelham, for appellant.

      Michael J. Doyle, for appellee.
   Bird, J.

The plaintiff sued the defendant, her mother-in-law, for the alienation of her husband’s affections, and recovered a verdict of $3,000, and defendant has brought the case to this court for review. The errors relied upon are:

(1) The refusal of the court to direct a verdict;
(2) the verdict is against the weight of the evidence;
(3) the verdict is excessive.

Plaintiff was married to defendant’s son Nicholas Diedrich on January 28, 1911. The marriage was consummated by them, and they were much in each other’s company until February 8th following, when Nicholas disappeared. At the time of the marriage plaintiff was in a delicate condition, and in the month of March following she gave birth to a child. There seems to be little or no question but that Nicholas was the father of it. Plaintiff had been employed as a domestic for several years, and after the marriage she continued in such employment, and her husband continued to live with his mother until he went away. It is agreed by counsel that the question as to whether a verdict should have been directed for the defendant must turn upon the construction to be placed upon the following testimony of the parties:

The plaintiff testified:

“I asked her where my husband was. She said nothing; she had sent him out on a homestead, she said, because she didn’t want him around town hanging around with me because we were not legally married. * * * She said my. child belonged to Escanaba; that I should go there. She said I wasn’t decent; that is about everything she said. She said she had sent him out on the homestead; if I wanted to go I could go. * * * She said she would give us a home and $500 to start with had we been married decent, but as it was she would not do anything. She said we were not legally married. She said he was drunk when he married me.”

The defendant, who was called for cross-examination, under the statute, testified:

“I was not willing he should marry that girl. I opposed the marriage before it took place. I did not oppose it after. I violently opposed it before it took place. I did not want him to marry her, and told him so repeatedly. I thought she was not fit for my family. I did oppose their marriage because I thought she was not fit for my family.”

If the jury believed this testimony, they might reasonably conclude therefrom that defendant questioned, not only the legality of the marriage, but the< propriety of it, and, further, that she was responsible for his going away. The testimony as a whole was also open to the’ inference of an improper motive upon her part in sending him away. Defendant admits that she was violently opposed to the marriage taking place. The testimony of plaintiff, as well as her own, indicates that she had not wholly recovered from that feeling at the time Nicholas went away. While the testimony was somewhat meager, we think it raised a question of fact which was within the province of the jury to decide.

We do not think it can be said that the verdict was against the weight of the evidence. If the plaintiff’s version of what the defendant said to her was believed by the jury and considered by them in connection with defendant’s testimony, there was room for such a finding as they made.

It is further argued that the verdict was excessive. If, by the wrongful act of defendant, the plaintiff was deprived of her husband, and therefore of his society and support and the support of her child, the sum fixed by the jury as compensation for this wrong is not so out of proportion to her obvious loss as to justify this court in declaring the verdict excessive.

The judgment is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


author: Bird, J. Ostrander, J.

text:
    PINEL v. PINEL.
    Remainders — Taxes, Duty of Life Tenant to Pay — Judgment
    —Decree—Equity—Life Estates.
    In a proceeding to enjoin waste by life tenants in which a decree was entered in favor of the complainants who had title to the remainder, requiring the life tenants to pay taxes due and interest ón a mortgage upon the property, also providing that in case of failure to carry out the requirements of the decree complainants might apply to the court for any further order that might be necessary to protect their interests, the circuit court in chancery erred at the hearing of a petition to enforce the decree in refusing to receive or consider testimony of the defendant offered for the purpose of controverting the conclusions of the final order, which had been entered a number of years previously: defendant was entitled to attack the justice of the decree and to show any changes in circumstances that would make it inequitable to enforce it. 'Ostrander, J., dissenting in part.
    Appeal from Macomb; Tucker, J.
    Submitted January 9, 1913.
    (Docket No. 46.)
    Decided March 26, 1914.
    Petition by Thomas Pinel and Edgar O. Pinel against Rachel Pinel, Rachel Campsell and Charles W. Pinel to enforce the final decree in a suit between the same parties to enjoin waste by defendants. From a decree for complainants, defendant Rachel Pinel appeals.
    Reversed and remanded.

      Lynn M. Johnson, for complainants.

      Devine & Snyder, for defendant Rachel Pinel
   Bird, J.

Charles T. Pinel, of Macomb county, died testate in the year 1885, leaving to his widow, Rachel Pinel, who is now 83 years old, a life use of his farm, upon which there was an incumbrance of $5,000. This mortgage was subsequently reduced to $2,500. The sons Thomas and Edgar, complainants herein, are remaindermen. They had possession of and managed the farm until 1899, when the mother took possession. In 1901 the complainants filed a bill in chancery, making the defendants parties, charging the mother and her son Charles with waste, and with a failure to pay the interest and taxes, and praying for a decree forfeiting the life estate of their mother. A decree followed in January, 1902, in which defendants were ordered to pay all taxes due and to become due, and also to pay the interest which had accrued on the mortgage, and, In addition thereto, the decree gave certain directions with reference to operating said farm in conformity with the rules of good husbandry. It further provided:

“And it is further ordered, adjudged, and decreed that, in the case the said Charles W. Pinel and Rachel Pinel fail to comply with the terms and conditions of this decree, then said complainants are hereby authorized and permitted to apply to this court in this cause for such other and further orders and .decrees as may be necessary to fully protect and preserve their remainder interest in said premises.”

Nothing further appears to have been done until this petition was filed in August, 1911. The petition, after reciting the filing of the original bill, and the decree which followed, charges—

“That the installment of interest which fell due February 9, 1902, of $150, according to the terms of said mortgage and note, has not been paid, and also the installment of interest which fell due February 9, 1910, of $150, is past due and unpaid, and the said Charles W. Pinel and Rachel Pinel refused to pay either installment of interest so due and unpaid.”

It is further alleged that the complainants, Thomas and Edgar Pinel, purchased said mortgage in August, 1910, and that they are now the owners of it. The petition concludes with the prayer:

(a) “That the life estate of said defendants Charles W. Pinel and Rachel Pinel may, for the reasons and acts hereinbefore set forth, be declared forfeited, and your petitioners entitled to a present estate in possession thereof, as if said Rachel L. Pinel had not been devised a life estate therein.”
_ (b) “Or that said court may order said Charles W. Pinel and "Rachel Pinel, or either of them, who hold said life estate, to forthwith pay said interest so due and unpaid as aforesaid, and, if they neglect so to do, then such life estate, or so much thereof as may be necessary, be sold under the order and decree of this honorable court, and the moneys obtained thereby .be decreed to be used in the payment of said interest unpaid by said life tenant.”
(c) “That said premises be kept up and worked and cared for in a husbandlike manner.”
(d) “That your petitioner may have ' such other and further order and relief in the premises as equity and justice may require, and your - petitioners will ever pray.”

A disclaimer was filed by Charles W. Pinel, and an answer by Rachel Pinel was filed, denying that complainants were entitled to the relief prayed, and assigning nine objections to the validity and justice of the decree and proceedings thereon. These objections were overruled, and oral testimony was taken on behalf of the petitioners in support of the allegations contained in the petition. At the conclusion of the hearing, the chancellor made a decree that the defendants pay the sum of $250, the same being the delinquent interest on the mortgage for the years 1909 and 1910, within four months from service on her of a copy of the decree; and it further provided that, if Rachel Pinel shall default therein, her interest should be sold by the sheriff in the same manner, as near as may be, as real estate is sold upon execution.

Upon cross-examination of Thomas Pinel, one of the petitioners, Mr. Snyder, counsel for the mother, attempted to go back into and controvert matters involved in the original decree. He was denied this right by the trial court, and such denial furnishes the basis for one of his complaints in this court.

Counsel’s position is—

“That the (present proceedings), by virtue of their own force, opened the whole original cause, notwithstanding the (old) decree, and as a matter of right entitled her. to bring forward and assert any defense which she might have made (to the original bill, or which might have arisen since), and that the original decree is as nothing, except as the court may feel persuaded by it to decide again in the same way under the opinion of this court in the case of Terry v. McClintock, 41 Mich. 492 [2 N. W. 787].”

The case cited by counsel is one wherein a bill was filed to enforce a decree of foreclosure which had been assigned to the complainant. The rights of a defendant and the power of the court in such cases are considered at some length by Mr. Justice Graves. In conclusion he says:

“The bill is considered as in affirmance and furtherance of the principle of the decree, and the decree is neither undone nor displaced by it, and generally the court will do nothing more than carry it out. The complainant in such a bill cannot impeach the decree, because that would be in direct contradiction of the theory of his proceeding. But he may sometimes have an omission or mistake corrected where that is necessary to maintain and effectuate the principle; of the decree. The defendant, however, is not so restricted. His attitude in connection with the proceeding is not that of one urging the correctness of the principle of the decree, and his position does not hinder him from making it a question whether the court will enforce its judgment upon him. He has an abstract right to go back and controvert the decree; but he may ask that the entertainment of the application shall be subject to the condition that the justice of the decree as against him shall be considered.
“In fine it seems to have become settled that the court, acting on the maxim that he who asks equity ought to do it, will meet the call made by the complainant on its justice to execute its previous decree by an application of its equitable discretion to the circumstances to see whether the decree is one which it would be just to enforce, and if not, then to change it to meet the requirements of equity or refuse assistance altogether. But the court will not change the decree or withhold assistance under such a bill except in very unusual cases. Adams’ Eq., supra, Lord Mansfield as reported by Buller, J., in Galbraith v. Neville, supra.”

Under this holding the defendant had the right to introduce testimony bearing upon the issues in the original hearing, and also to show any changes in conditions during the intervening years which would make it inequitable to enforce the decree.

The case might now properly be disposed of in this court were it not that defendant was prevented from getting her testimony on the record. For this reason, the case will be remanded for the purpose of taking such further testimony as the parties may desire. Defendant Rachel Pinel will recover her costs of this appeal; also her costs in the trial court.

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

Ostrander, J.

(dissenting). In my opinion no offer to attack the first decree, which the court should have recognized, was made.


text:
    DUSBIBER v. MELVILLE.
    1. Wills — Restraint op Marriage — Legality—Public Policy.
    Provisions of testator’s will bequeathing the sum of $2,000 to a married woman who lived apart from her husband at the time of the death of testator, divorce proceedings having been commenced, as he knew, did not violate public policy where the will recited that the beneficiary had been compelled by the cruelty of her husband to leave her home and could not live with her husband, and also directed that if she should be compelled to live apart from him and to support herself, the said sum be paid to her by the executor as soon as the executor should be convinced that it was impossible for her to live with the husband; the bequest was not void, as a condition in restraint of marriage.
    2. Same.
    Conditions, precedent annexed to a bequest of personal property prohibiting marriage unreasonably or absolutely, are void, and the gift becomes absolute as if no conditions attached, but if only partial and reasonable restraint is imposed upon the marriage of the legatee, the condition is valid.
    Appeal from Saginaw; Gage, J.
    Submitted April 18, 1913.
    (Docket No. 92.)
    Decided March 26, 1914.
    Bill by Hattie N. B. Dusbiber against Florence A. Melville and others for the construction of a will. From a decree for defendant Melville, complainant appeals.
    Affirmed.

      W. F. Denfield, for complainant.

      J. A. Harris, for defendant Melville.

      L. E. Bradt, in pro. per.

   Bird, J.

After the death of Thomas E. Briggs of Saginaw, his last will and testament was found to be in the following form;

“I, Thomas E. Briggs, of the city of Saginaw, Michigan, being of sound and disposing mind and memory, do make, publish and declare this as and for my last will and testament, hereby revoking all former wills by me at any time heretofore made.
“My will is that all my just debts and funeral expenses shall be paid out of my estate as soon after my decease as shall by my executor hereinafter named be found convenient.
“I understand that Florence A. Melville, of Saginaw, Mich., has been compelled by the extreme cruelty of her husband, to leave her home and that she cannot live (with him because of his cruelty toward her. Now, my will is, that in case she shall be compelled to live apart from her said husband, Frederick Melville, and shall have to support herself, that I give, devise and bequeath to her, the said Florence A. Melville, the sum of two thousand dollars, to be paid to her by my executor, out of my estate, as soon as my executor shall be convinced that it is impossible for the said Florence A. Melville to live, with her husband, Frederick Melville; said payment of said two thousand dollars shall be in lawful money of the United States of America.
“I give, devise and bequeath to my sister Hattie Nora Bell Dusbiber, of Hamilton, Ohio, all of the rest and residue of my estate, real, personal and mixed, of which I shall die seised and possessed, or’to which I shall be entitled at my decease, to have and to hold the same forever.
“And lastly, I do nominate and appoint Lincoln E. Bradt to be the executor of this my last will and testament.”

The parties in interest cannot agree as to the construction which should be given to the clause in the will defining the conditional legacy to Florence A. Melville. To secure a judicial construction of that clause, this bill was filed. The testator was a bachelor, and he left an estate of the value of $6,000. It appears that he and Mrs. Melville were very friendly, and were in each other’s company a great deal during the last two or three years of his life. The interest which they manifested in each other, without doubt, led to the trouble between Mrs. Melville and her husband, and later to divorce proceedings, which were pending at the time of testator’s death. The will was executed only a few days prior to his death.

It is contended by complainant, the sister of testator, that the condition annexed to the gift is void on the ground of public policy, because it offers an inducement to Mrs. Melville to live separate and apart from her husband. The position of the defendant is that the condition is a reasonable one, and therefore valid, but that, in the event the condition is found to be void, Mrs. Melville would then take the legacy free and clear of the condition. The chancellor who heard the case came to the conclusion that the condition was a reasonable one, and upheld the validity of the provision.

The legacy with which we have to deal does not vest under the terms of the will until the executor determines that the legatee cannot live with her husband; it is therefore a condition precedent. It appears to be pretty well settled by the authorities that, where a condition precedent is annexed to a gift of personal property which prohibits marriage absolutely or unreasonably, the condition is void, and the legacy becomes absolute in like manner as if no condition were attached. 1 Story’s Equity Jurisprudence, § 280; 2 Pomeroy’s Equity Jurisprudence, § 933.

It will be noted thaMhis rule is unlike the one which applies to devises of real estate which impose conditions precedent. Conant v. Stone, 176 Mich. 654 (143 N. W. 39).

It also appears to be settled by the more recent authorities that, where a condition precedent is annexed to a bequest of personal property, and imposes only a partial and reasonable restraint upon the marriage of the legatee, and there is no bequest over, the condition is valid. 2 Pomeroy’s Equity Jurisprudence, § 933; 1 Story’s Equity Jurisprudence, § 280; Phillips v. Ferguson, 85 Va. 509 (8 S. E. 241, 1 L. R. A. 837, 17 Am. St. Rep. 78); Ransdell v. Boston, 172 Ill. 439 (50 N. E. 111, 43 L. R. A. 589); Born v. Horstmann, 80 Cal. 452 (22 Pac. 169, 338, 5 L. R. A. 577).

The question is therefore presented as to whether the condition imposed on the legacy to Mrs. Melville is a reasonable one. The testator knowing that the inevitable was near, made this provision for Mrs. Melville only eight days before he passed away. At the time he made the will he was cognizant of the fact she was living separate from her husband, and that she had begun divorce proceedings against him. It is not unreasonable to suppose that he felt that he owed her some duty to provide for her if she could not live with her husband after he was gone. If she could and did live with him again, she would be provided for, and would be in no need of his bounty. If she could not, she would then need the legacy which he gave to her. Considered from this viewpoint, I am impressed that the condition is not an unreasonable one, especially in view of fact that she is not to be the judge as to whether she can live with her husband, but that determination lies with the executor. She might decide that she could not; but that would not entitle her to the legacy. The executor might conclude otherwise, and, if he did, she could not get it, even though she actually lived away from her husband. Had she been made the judge instead of the executor, it would present a somewhat different ease. This view of the condition is supported by the cases of Ransdell v. Boston, supra; Born v. Horstmann, supra.

I am of the opinion that the chancellor reached the right conclusion, and the decree will be affirmed. Defendants will recover their costs in this court.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


text:
    PHILBRICK v. DUST.
    1. Municipal Corporations — Detroit Civil Service Commission —Ordinances—Public Officers — Discharge.
    Under the civil service ordinance of the city of Detroit providing that the civil service commission shall, on the request of a discharged employee made within ten days after his discharge, investigate the same and, if it finds that the order was made for political or other reasons than the good of the service, shall so report and the subordinate shall be reinstated, no authority is conferred upon the commission to restore a city forester to his position because no reasons were assigned for his discharge by the commissioner of parks and boulevards who removed him without giving him a copy of the order and reasons therefor, pursuant to further requirements of the ordinance.
    2. Same — Removal—Mandamus.
    While the discharged forester should have applied to the court rather than to the commission on the ground set up, the fact that he afterwards applied to the circuit court which considered and approved the order of the commission, warrants this court in treating it as if relator had applied to the court in the first instance.
    3. Same — Ordinances—Time of Taking Effect.
    Although the members of the civil service commission appointed under the ordinance did not qualify until a later date, the ordinance was in force on June 3d and protected the relator from summary discharge.
    4. Same.
    Relator being entitled to receive notice of the reasons at the time of his discharge, and not having received them until two weeks later, the court properly ordered his reinstatement in mandamus proceedings.
    Certiorari to Wayne; Hally, J.
    Submitted January-13, 1914.
    (Calendar No. 25,896.)
    Decided March 26, 1914.

      ' Mandamus by Edwin D. Philbrick against William T. Dust, commissioner of parks and boulevards of the city of Detroit, to compel respondent to reinstate the relator as city forester. An order granting the writ is reviewed by respondent on certiorari.
    Affirmed.

      Allan H. Frazer, for appellant.

      Guy A. Miller, for appellee.
   Bird, J.

The relator, who had been for upwards of a year the city forester of the city of Detroit, was removed from office on June 8, 1913, by his superior, the respondent. Within ten days after his removal the relator appealed to the civil service commission for reinstatement, claiming in his petition that no reasons were assigned by respondent for his removal, and charging that he was removed for political reasons and not for the good of the service. A hearing was later had before the commission, at which time respondent filed his reasons for removing relator, and the questions were fully considered by the commission. The hearing resulted in an order heing made reinstating the relator, and it was rested on the failure of respondent to comply with the following provisions of the civil service ordinance, which provides that:

“In all cases of discharge, or reduction, or suspension for more than thirty days, the appointing officer shall furnish the subordinate discharged, reduced or suspended, and also the commission, with a copy of the order of removal, and his reasons for the same.”

The respondent refused to comply with the order of the commission, and relator then made an application to the circuit court for a writ of mandamus to compel the enforcement of the order of the eommis•sion. After the matter was heard in that court, an order was made granting the writ. The respondent then removed the proceedings to this court by writ of certiorari.

The first question raised by respondent is—

“That the civil service commission had no right, jurisdiction, or authority to order the reinstatement of relator for the reasons assigned in their opinion and order, and that consequently there was error in the ruling of the circuit court in holding that the commission had such right.”

Section 12 of the civil service ordinance defines the jurisdiction of the commission in such cases as follows:

“The commission may, and upon the written request of said subordinate made within ten days, shall investigate, and if it shall find as the result of such investigation that the discharge, reduction or suspension to have been made for political or for other reasons than the good of the service, it shall so report to the appointing officer, and the party so discharged, reduced or suspended, shall thereupon be entitled to resume his position and to receive compensation for the time lost.”

It is argued from this that while the commission is empowered by this section to. reinstate an employee, who upon investigation is found to have been removed for “political or for other reasons than the good of the service,” it has no power to reinstate a discharged employee because the reasons were not assigned for his discharge at the time of his discharge. We are of the opinion that this point is well taken. The civil service commission has only such powers as the ordinance confers upon it. The ordinance clearly defines what power it shall possess, and the power to reinstate for a failure to assign the reasons for removal at the time of removal is not among them.

Had the relator intended to rely for reinstatement upon the fact that no reasons were assigned for his removal, he should have applied to the court rather than to the commission. ° The order of the commission was without force, and we should feel obliged to set it aside were it not for the fact that it was afterwards considered in the proper forum and approved. In view of this we will treat it as though the application had been made in the first instance to the court.

The point is made that the civil service ordinance was not in full force and effect on the date when relator was discharged, and therefore his removal was lawful. That the act went into effect on May 3, 1913, is not seriously controverted; but the fact most relied upon is that, while the commission was named by the mayor on June 3d, they did not qualify until several days later. In other words, that there was no commission in existence on the day the relator was discharged. The relator was protected by the provisions of the ordinance as soon as it took effect on May 3d, and, if he were discharged after that date, he was entitled under the ordinance to have the reasons therefor accompany his discharge. The fact that there was no tribunal yet in existence to which he could appeal from the decision of his superior did not withhold from him the protection of the ordinance, neither did it prevent the ordinance from taking effect.

A reading of section 12 of the ordinance leaves no doubt in our minds that it was intended that the discharged employee should be entitled to be informed at the time of the discharge of the reasons for his discharge. The record of this case shows that relator was not so informed for more than two weeks after his discharge.

We are therefore of the opinion that the order made by the circuit court was a proper one, and it will be affirmed. No costs will be allowed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


text:
    HART v. STATE FIRE MARSHAL.
    Appeal and Error — Consent Order — Judgment.
    An order reversing the determination of the State fire marshal condemning a house and barn and requiring them to be demolished, on appeal to the circuit court, is not reviewable on certiorari where the appellant requested that the court enter the order not on the merits but on the unconstitutionality of the law. Act No. 213, Pub. Acts 1913.
    Certiorari to Manistee; Withey, J., presiding.
    Submitted January 29, 1914.
    (Docket No. 147.)
    Decided March 26, 1914.
    George Hart and others presented their petition to the circuit court for the county of Manistee appealing from an order of the State fire marshal in and by which petitioners were required to demolish certain buildings. From an order annulling or reversing the finding and determination of the State fire marshal, he brings certiorari.
    Dismissed.

      Grant Fellows, Attorney General, and Samuel D. Pepper, Assistant Attorney General, for appellant.

      Charles N. Belcher (Dovel & Dovel, of counsel), for appellees.
   Bird, J.

Proceedings were instituted under Act No. 79 of the Public Acts of 1911,.as amended by Act No. 213 of the Public Acts of 1913, by one of the deputy fire marshals to condemn a certain house and barn situate in the city of Manistee. As a result of the proceedings the State fire marshal made two orders, one relating to the house, and one to the barn, ordering their demolition. These orders were served on the owners, and they filed an appeal in each case in the circuit court. When the cases came on for hearing in the circuit court, the one relating to the barn was first called. Proofs were introduced, and, at the conclusion thereof, the trial court made the following order therein:

“I reverse this order. I reverse it first because I believe the law is void, as attempting to do something that is unconstitutional, in violation of all the principles of our Constitution and the protection of private property. But I reverse it second because I believe it is not well founded on the facts.”

From this order there has been no appeal. Following this case, the one relating to the house was taken up, and the following proceedings were had:

“Mr. Pepper: The next case, if your honor please, is somewhat similar to this case, and we do not care to go into the merits of the case, owing to the position that your honor takes with respect to the constitutionality of the law.
“The Court: Well, I don’t think there is any policy in it, because I would not enforce that law as it stands. In the first place, I cannot tell what it means in some of its salient features.
“Mr. Pepper: If your honor please, without going into the facts of the case, a formal order may be made dismissing the case.
“The Court: Well, whoever is interested in it may take an order reversing the order of the State fire marshal.
“Mr. Pepper: The order based not on the facts, but on the constitutionality of the law.
“The Court: Well I will put it that way in that case, so that it may be tested, if there is any way to test it. I don’t know whether you have any appeal or not. It don’t provide for it. But, in order that you may try and get an appeal, you may so frame that order in regard to the house, and I will base it on the unconstitutionality of the act entirely, and not on the merits of the case.”

While it cannot be said that this was not a real controversy in the circuit court, we think it can be said that it is not a real controversy in this court. Had the case been heard and determined upon its merits in the trial court, this court would then have had appellate jurisdiction to review such final order for errors of law. But the merits of the case were neither heard nor passed upon by the trial court. Until that is done, and a final order made affecting some personal or property right, there is nothing for this court to review. If we should now take jurisdiction of the case, with the record in its present state, it would be tantamount to taking original jurisdiction of thé matter, and that we are not empowered to do That jurisdiction is one which must be exercised by the circuit court (Act No. 213, § 8, Pub. Acts 1913). The most that can be said of the order made is that it is a consent order. To avoid an order of dismissal, the appellant requested the court to make the order which was' made. It having been made at his suggestion, he is not in a position to complain of it. Chapin v. Perrin, 46 Mich. 130 (8 N. W. 721); Brick v. Brick, 65 Mich. 230 (31 N. W. 907, 33 N. W. 761); Owen v Yale, 75 Mich. 256 (42 N. W. 817); Weber v. Costigan, 139 Mich. 146 (102 N. W. 666); Cameron v. Smith, 171 Mich. 333 (137 N. W. 265).

The writ of certiorari must be dismissed, but without costs.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


author: Ostrander, J.

text:
    CONTINENTAL & COMMERCIAL NATIONAL BANK v. EMERY.
    Corporations — Liability for Failure to Make Annual Report.
    For failure of a corporation to file its annual report, as required by Act No. 137, Pub. Acts 1907 (4 How. Stat. [2d Ed.] § 9543), tbe directors are liable for debts contracted subsequent to tbe filing of tbe last preceding report and prior to tbe time of default, but tbe directors are not liable for indebtedness incurred during the period following the default, in view of provisions suspending tbe corporate power after ten days from tbe end of February, and of tbe limitation of two years from such default in which to bring action. Act No. 232, Pub. Acts 1903.
    Certiorari to Muskegon; Sullivan, J.
    Submitted November 17, 1913.
    (Docket No. 119.)
    Decided March 26, 1914.
    Assumpsit by the Continental & Commercial National Bank against John G. Emery, Jr., George A. Hume, and others, to enforce the statutory liability of the directors of the American Electric Fuse Company. From an order overruling a demurrer to the declaration, defendant Hume brings certiorari.
    Reversed.

      Cross, Vanderwerp, Foote & Ross (Norris, McPherson & Harrington, of counsel), for appellant.

      Colin P. Campbell and Earl R. Stewart (Thomas Paul Hardy, of counsel), for appellee.
   Ostrander, J.

It is alleged in the declaration that between April 20, 1911, and June 29, 1911, the American Electric Fuse Company, a domestic corporation, contracted an indebtedness to plaintiff; that on June 29, 1911, the corporation was adjudged to be bankrupt; that, when the said indebtedness was contracted, defendants were directors and officers of the said corporation, whose duty it was to join in making during the month of January or February, 1911, duplicate annual reports of the corporation, which duty they neglected and refused to perform. One of the defendants demurred to the declaration; the ground of demurrer asserted in this court being that the demand sued upon arose — the debt was contracted —subsequent to the default of the directors and subsequent to the time when the powers of the corporation were suspended under the act. The demurrer was overruled.

Section 12 of Act No. 137, Public Acts of 1907 (4 How. Stat. [2d Ed.] § 9543), so far as it is necessary to set it out, reads:

“Sec, 12. Every corporation subject to this act * * * shall annually, in the month of January or February, make duplicate reports showing the condition of such corporation on the thirty-first day of December next preceding, on suitable blanks to be furnished by the secretary of State, as hereinafter provided: * * * Such reports shall be signed by a majority of the board of directors and verified by the oath of the secretary of the corporation, and deposited in the office of the secretary of State within the said month of January or February, * * * accompanied by a filing fee of fifty cents. * * * If any corporation neglect or refuse to make and file the reports required by this section within the time herein specified, and shall continue in default for ten days thereafter, its corporate powers shall be suspended thereafter until it shall file such report, and it shall not maintain an action in any court of this State upon any contract entered into during the time of such default; and any director of such corporation so in default, who has neglected or refused to join in the making of such report, shall be liable for all the debts of such corporation contracted since the filing of the last report of such corporation, and shall also be liable to such corporation for any damages sustained by it by reason of such refusal or neglect. * * * 99

At various periods since 1853 the statute has provided that directors who default in making corporate reports shall be liable for debts of the corporation. In 1903, for the first time, they were made liable for debts contracted since the filing of the last annual or special report. In 1905 (Act No. 194, Pub. Acts 1905), for the first time, it was provided that during the period of default corporate powers should be suspended and no action maintained by the corporation upon contracts entered into during such period. Act No. 232, Public Acts of 1903, provided that all actions and suits based on the neglect or refusal of the officers or directors to make and file the said reports should be commenced within two years next after such neglect or refusal has occurred and not after-wards. This provision is omitted in the law of 1905 and of 1907.

Plaintiff in certiorari, defendant in the court below, states his contention thus:

“Defendant contends that the provision making the director liable for debts contracted since the filing of the last report, construed in connection with the provision in the 1903 act requiring the creditor’s action to be commenced within two years after the neglect or refusal to join in making the report, and in connection with the provisions of the 1905 and 1907 acts suspending the corporate powers during the default and making the directors liable to the corporation for damages, covers and includes only debts contracted between the filing of the last report and the default, and does not cover debts contracted after the default, when under the provisions of the act the corporate powers were suspended. The statute is highly penal and must be strictly construed.”

The defendant in certiorari contends that the language, “contracted since the filing of the last report,” means, in view of the purpose of the law, “contracted subsequent to the filing of the last report,” and cites Bank of Saginaw v. Pierson, 112 Mich. 410 (70 N. W. 901). In that case, the debt was contracted in July, 1895, and became due in October of the same year, and liability of the directors was predicated upon their failure to file a report for the year 1894. The statute read:

“If any of said directors of any such corporation shall wilfully neglect or refuse to make the report required by this section, they shall each be liable for all the debts of such corporation. * * * ”

It was the contention of defendant that the indebtedness was not contracted during the year 1894, and that the statute was not intended to create a liability as to indebtedness contracted after the date of the default and before a second default had occurred. This , contention was overruled. In a similar case we should follow Bank of Saginaw v. Pierson. See M. I. Wilcox Cordage & Supply Co. v. Mosher, 114 Mich. 64 (72 N. W. 117). But the cases are not similar. We must assume that the legislature had some good reason for enacting the various and varying provisions upon the subject of the liability of directors for corporate debts, and as good a reason for enacting the last as for enacting any earlier provision. In its present form, the statute fixes a date when the consequences of corporate default attach. It is March 11th. The consequences to the corporation are suspension of corporate powers until it shall file a report, and a denial of right to maintain an action in court upon any contract entered into during the period of the default. The consequence to directors is liability for all debts of the corporation contracted since the filing of the last report and liability to the corporation for any damage it sustains by reason of such neglect or refusal. The consequences are incurred, by corporation and by directors, at the same moment of time. They are not uncertain, but certain. They are fixed and determined on March 11th, not, indeed, as to the amount of liability and damage, but as to the extent of the liability itself; that of directors being for all debts contracted since the filing of the last report — that is, during a fixed elapsed period— and for damages to the corporation occasioned by the refusal, or neglect, to file the report. The question whether if, during the period of default, the corporation contracts debts, it may urge suspension of its corporate powers in an action against it to recover them, is not one for decision; is not at all involved. What is involved is the construction which should be given to the provision for directors’ liability in view of the provision for suspension of corporate powers and the denial of the aid of the courts to the corporation during a period which begins on March 11th. And this is not the question which was involved in Bank of Saginaw v. Pierson, or in Deloria v. Atkins, 158 Mich. 232 (122 N. W. 559).

Attention has been directed to the fact that Act No. 232, Public Acts of 1903, makes directors liable for all debts of such corporation contracted since the filing of the last annual or special report and provides that all actions and suits based upon the neglect or refusal to make and file reports shall be commenced within two years next after such neglect or refusal has occurred and not afterwards. It is clear that this language contemplates a liability of directors for debts contracted prior to the default and does not contemplate a liability for debts made after default. Otherwise, there would be no uniform limitation of the right of creditors to sue defaulting directors. This provision was not carried into the acts of 1905 and 1907; but we are of opinion that it was intended, in adopting the provision suspending corporate powers, refusing the aid of the court in respect to actions begun upon contracts made during the period of default and making directors liable for damages suffered by the corporation on account of the default, to limit the liability of directors to debts incurred after the filing of the last report and before the default in filing the subsequent or current report. Default having occurred, and the liability of directors having therefore attached on March 11th, the indebtedness for which the directors are liable' is such as was created since the last report was filed.

It is said this construction will defeat, in part at least, the very purpose of the legislation. The purpose of the act is, undoubtedly, to secure, annually, for the benefit of all persons concerned, a public record of the financial affairs of corporations. Every one is presumed to know when reports ought to be made, and every one may know whether there is a default in making them. If after a default has occurred, and the directors have become liable for all existing debts of the corporation contracted during the year, a person chooses to deal with the corporation and become its creditor, his case presents no moving reason for enlarging what seem otherwise to have been the limits of a statutory liability of directors.

The judgment of the circuit court overruling the demurrer ás reversed, and a judgment will be entered in this court sustaining the demurrer.

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