text:
    BISHOP v. BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN.
    1. Insurance — Beneficial Associations — Final Decision.
    A voluntary beneficial society may set up a tribunal to adjust the differences that arise between the association and its members, and make its decision final in the absence of bad faith or a refusal to act or to pay after an adjudication has taken place.

    2. Same — Rejection of Claim by Medical Examiner — Appeal.
    Although the constitution of a fraternal beneficial association provided that the medical examiner should be the sole judge as to whether a member was disabled, and that payment of disability claim should be made only when approved by him, where it also gave both the board of directors and the convention of the order full power to allow the claim in full or reject it, in case the claimant took the prescribed appeal, rejection of a claim by the medical examiner was not final and conclusive.
    3. Same — Limitation of Actions — final Rejection.
    An action begun within six months of the rejection of plaintiff’s claim by the convention of the order was within the time limit of the constitution providing that claims should be barred unless the action was commenced “within six months after final rejection of the same.”
    4. Same — Evidence—Sufficiency.
    Evidence examined, and held, sufficient to sustain the finding of the jury that plaintiff was permanently disabled.
    5. Same — Evidence—Permanent Disability.
    Where it was plaintiff’s claim that he was permanently disabled at the time of his application to the order for compensation, testimony as to his condition at the time of the trial was admissible, since his condition if permanent was necessarily continuing.
    Error to Saginaw; Kendrick, J.
    Submitted October 23, 1918.
    (Docket No. 5.)
    Decided April 3, 1919.
    Assumpsit by Joseph. A. Bishop against the Brotherhood of Locomotive Firemen & Enginemen for the amount of a benefit certificate. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Humphrey, Grant & Henry, for appellant.

      Naegely & Picará (Purcell & Travers, of counsel), for appellee.

       See notes in 49 L. R. A. 353; 2 L. R. A. (N. S.) 672; 8 L. R. A. (N. S.) 917.

   Steere, J.

Plaintiff brought this action to recover, on the ground of total incapacity to labor, the amount of a beneficiary certificate issued to him by defendant, which is a fraternal beneficiary society or association operating upon the assessment plan, having a central and grand lodge with numerous subordinate lodges. Plaintiff had been in the employ of the Pere Marquette Railroad Company for many years as fireman and engineer and a member of defendant association since August 4, 1908, with a beneficiary certificate in the amount of $1,500 issued to him as provided in the constitution of the Brotherhood and in force from the time he became a member until this case was tried. When the events took place which gave rise to this suit he was in the neighborhood of 50 years of age, a married man with a family, residing in Saginaw, Mich., where he had for the preceding 17 years been employed as engineman in the yards of the Pere Marquette Railroad Company. On December 12, 1918, while engaged in yard service at switching or making up trains with his engine he found its brakebeam down and got under the engine to fix it and was in a kneeling position leaning over the front axle of the tank to put a bolt in to hold the brakebeam off the rail. While in that position between the tank and engine, another engine came to couple on to his, shoving it ahead and wheeling him around upon his back, the brake-lever catching his clothing and dragging him a considerable distance with his back along the ties, severely injuring him. He was first taken to the hospital on a stretcher, attended by a Dr. Wilson, and at the expiration of about four weeks removed to his home on a stretcher where he remained confined to his bed for some time longer before he was able to sit up. He states his then and subsequent condition as follows:

“I could not handle my legs at all; I got hold of a chair and stood there holding onto it. I could not get up without holding my hands onto the chair. _ I guess I was out of bed three weeks before I tried to go down stairs and my brother-in-law tried to carry me down on account of my inability to walk. During this time Dr. J. M. Wilson treated me. I had both crutches for a while round the house and out on the porch, then I tried with a crutch and a cane and then I tried to walk without a crutch with a cane but I could not manage it. I walked with a crutch and a cane for a long time, but I tried a -little every day. My difficulty didn’t seem to improve. It just seemed I could move my limbs a little better but not much. I have had pain in the base of my spine and back of my neck, shooting pains from my neck to the base of my spine. I have the same pains up to the present time. I saw specialists, experts upon nervous troubles. I consulted a specialist in Detroit and also in Ann Arbor, Dr. Washburn of Ann Arbor and Dr. Inglis of Detroit. * * * I went to them on account of their learning. They referred me to Dr. McGregor of Saginaw. I have been examined by two Drs. Wilson, Dr. Sample and other physicians.”

On May 15, 1915, he made application to defendant through the proper channels to be paid the amount of his beneficiary certificate on account of permanent paralysis of the lower limbs under a provision in defendant’s constitution, in part as follows:

“(a) A beneficiary member in good standing upon the books of the grand lodge becoming (1) totally and permanently blind in one or both eyes * * * or who may become totally and permanently disabled or incapacitated from performing all manual labor on account of (2) Bright’s disease of the kidneys; (3) permanent paralysis of either extremity, etc., * * * shall be entitled to the amount of his beneficiary certificate.”

His application was in regular form, accompanied by the proper affidavits and certificates, etc., from his local lodge and when received was referred to the general medical examiner under a provision of defendant’s constitution that in such cases:

“(f) All papers in a claim shall be referred to the general medical examiner, who shall, as soon as convenient, go to the place where the applicant is located, or he may have the applicant come to a more convenient place for examination.”

Dr. W. B. Cory, defendant’s general medical examiner, notified plaintiff by telegram to meet him at Jackson, Mich., on June 26, 1915, for the purpose of such examination, pursuant to which plaintiff presented himself at the appointed time and place and an examination was had during which a very unbrotherly feeling developed between them. Plaintiff testified that he was harshly treated and insulted by Dr. Cory, who in his rough method of examination hurt him severely, at the same time swore at him, accused him of faking and being under the influence of intoxicating liquor, which plaintiff denied and resented. The examination evidently resulted in friction and hard feeling between the parties, as to the cause and details, of which their testimony is somewhat in conflict. Dr. Cory, who was the only medical witness called by defendant, testified that plaintiff had a “dramatic neurosis, something the gold cure will help,” admitted he swore on that occasion but claimed it was not at plaintiff, testifying on cross-examination in part as follows:

“Q. You told him that he was a faker?
“A. In my opinion. I told him that he was a simulator of an exaggerated type. During the course of the examination I swore, but not at him.
“Q. If you did not swear at him who did you swear at?
“A. If you' want the instance I will tell you; I didn’t swear at anybody.
“Q. Did you swear for pastime?
“A. I swore because I believed that Bishop was not acting fairly; I swore to get results; I was not getting results I was going after, and I swore and I got the results. I did not want to intimidate Bishop.
“Q. Do you think profanity helps the doctor in making an examination?
“A. It did in this, case, that is the reason I swore. I told him down at the depot, after he tried to start an altercation, after he threatened to take the case to-the local lodge, to the board of directors, to the president, and to the Convention, that I didn’t care a damn where he took it.”

He also testified that he had practiced medicine six years previous to becoming defendant’s general medical examiner, that he did all the examining for this order which had a membership of in the neighborhood of a hundred thousand and on the'day in question had a number of other examinations which he had assembled at Jackson which kept him busy from 7:30 in the morning until 5 o’clock when he went to the depot to take the train.

On June 28, 1915, he made his report to the defendant’s general secretary and treasurer at Peoria, 111., stating he had examined applicant at Jackson, Mich., on June 26, concluding:

“The physical examination discloses that Brother Joseph A. Bishop is not afflicted with paralysis as contemplated by our laws, and therefore, in accordance with the provisions of section 7 of article 5 of the constitution, I recommend the rejection of this claim.”

Section 7, article 5, of defendant’s constitution of 1914 provides in part as follows:

“(/) He (the medical examiner) shall be the sole judge as to whether or not a member is disabled in such manner as to be entitled to the amount of his certificate, in accordance with the constitution and bylaws, and payment of the disability claim will be made only when approved by the general medical examiner.”

Upon rejection of plaintiff’s claim by the general medical examiner and receipt of his report by the general secretary and treasurer, it was in due course of proceedings referred by the general secretary to defendant’s board of directors for consideration of that body as their constitution requires, and the records of the board of February 28, 1916, show the following:

“Claim No. 5585. Paralysis — J. A. Bishop — Lodge 286. Insurance — $1,500. Board voted that no allowance be made on this claim.”

The general secretary of the Brotherhood thereafter, on March 9, 1916, mailed a carbon copy of the action of the .board of directors, from Peoria, 111., to the secretary of plaintiff’s local lodge No. 286, at Saginaw, accompanied by a letter advising that the carbon copy was self-explanatory and directing that plaintiff be notified. Steps were then taken by plaintiff, or in his behalf, appealing the matter to the general convention of the order in accordance with its constitution and by-laws. The general convention of the order met in Denver, Colo., in June of that year. William C. Lash was sent as a delegate from plaintiff’s local lodge and represented him in the matter of his appeal, being authorized by his „ lodge to do so as evidenced by the following letter on the stationery of the Saginaw lodge, signed by its secretary:

“To the Convention—
“Mr. Wm. C. Lash—
“Saginaw, Mich., May 28, 1916.
“Dear Sir and Brother:
“By a motion Saginaw Valley Lodge No. 286 has instructed the delegate to appeal the claim of Brother Joseph A. Bishop for disability.
(Seal of Lodge)
“Yours fraternally,
“Louis Mikoleizik,
“R. S. No. 286.
“William C. Lash,
“Delegate 286.”

The convention during its session adopted a recommendation of its committee on appeals that an allowance be made to plaintiff in the sum of $500 payable in monthly installments of $25 “on condition that he surrender his Class A certificate and accept a Class B certificate in lieu thereof.”

Plaintiff within six months thereafter, on December 6, 1916, commenced this action by filing his declaration in the circuit court of Saginaw county, to which defendant pleaded the general issue with notice of the special defenses' that under the constitution and by-laws of the Brotherhood the decision of its medical examiner was final and conclusive between the parties; and that the action was barred by plaintiff’s failure to commence the same within the time limit provided in the contract of insurance.

Upon trial before a jury plaintiff had verdict and judgment for the full amount of his policy, and defendant asks reversal under 20 assignments of error-involving in their scope the two propositions especially pleaded — that the decision of the general medical examiner was final, and the action was not begun within the time limited by contract between the parties, each of which demanded a directed verdict for defendant — and that certain errors were committed by the court in rulings upon testimony, etc., during the trial.

At the .time plaintiff was injured defendant was operating under a constitution adopted in 1911, but which at the time he made his application had been superseded by the constitution of 1914, from which we have quoted. By agreement of counsel both constitutions are in evidence for reference and argument so far as material. The constitution of 1911 does not make the general medical examiner “the sole judge” as does that of 1914. The method of making application, forms prescribed, etc., are similar under both constitutions and amongst other contentions it is urged for plaintiff that the constitution of 1911 was in force when he was injured, that his application was made under and with reference to it. Without reviewing the respective arguments and citations by counsel upon that proposition we have no doubt that under the law as settled by former decisions of this court plaintiff would as a general rule be bound by the stipulation in his policy, or certificate of insurance, that it—

“is issued upon the express conditions that the constitution of the said Brotherhood may be altered or amended at any time hereafter, * * * and that the constitution now in force, or as may be hereafter altered or amended, is and shall be a part of this contract in the same manner and to the same extent as if said constitution, or alterations or amendments thereto, were written herein.”

The general rule as to stipulated tribunal is concisely stated with citation of numerous Michigan decisions in Patrons’ Mut. Fire Ins. Co. v. Attorney General, 166 Mich. 438, as follows:

“The doctrine is well established in this State that members of a voluntary society may set up a tribunal to adjust the differences that arise between the association and its members, and make its decision final in the absence of bad faith or a refusal to act or to pay after an adjudication has taken place.”

We do not find, however, that this court has yet gone to the extent of recognizing as a proper tribunal for that purpose a single employee of an association, although chosen as its official medical examiner, whose functions are apparently directed to visiting or calling before him claimants, and looking them over and reporting his conclusions to the secretary. It certainly would carry the doctrine beyond yet determined limits to hold that the ipse dixit of an interested employee, no matter what his character or official position, may be made retroactively final and conclusive against the assured, beyond any right of review before some provided official body or tribunal of the order, where opportunity is given to present proofs and be heard in a proceeding having some resemblance to a judicial inquiry, or of resort to the courts. Neither do we think that, considering the constitution of 1914 in its entirety, the provision relied upon by defendant can De so construed.

How often or to what extent this association has changed its constitution and thereby the policies or benefit certificates of its members is not disclosed beyond the fact that plaintiff’s certificate, issued to him in 1908, has been subject to the provisions of at least three different constitutions, made at different times a part of his contract of insurance. His certificate as issued, and presumably the constitution then in force, recognized his right of resort to the courts by the concluding provision that—

“Any action under this certificate, either by the aforesaid member or the beneficiary designated herein, shall be absolutely barred unless such action shall be commenced in some court of competent jurisdiction, within six months from the final rejection of the claim.”

The constitution of 1911 contains a similar provision and section 17 of article 12 of the 1914 constitution provides:

“All right of action upon a beneficiary certificate or the amount thereof, shall be absolutely barred unless proof of death is made within six months from the time the beneficiary has acquired knowledge of the death of the beneficiary member, and such right of action shall also be barred at the expiration of six months from date of actual occurrence of any total or permanent disability; and it shall be likewise barred unless such action shall be commenced in some court of competent jurisdiction within six months after the final rejection of the same.”

If the provision' in article 5 making the Brotherhood’s examiner the “sole judge” should be construed as meaning that his adverse decision is conclusive and final against claimant to the exclusion of any right of action in a court of competent jurisdiction it cannot be reconciled with the provisions of article 12 above quoted, which is the last utterance and negatives or modifies the former.

Defendant’s constitution is a lengthy and cumbersome document containing numerous numbered articles divided into many numbered sections again often subdivided into alphabetically marked subsections or paragraphs, sometimes inharmonious and difficult to reconcile. Although subdivision (/) of section 7, article 5, makes the medical examiner the sole judge of whether a disabled claimant is entitled to the amount of his certificate in accordance with the constitution and by-laws of the Brotherhood, section 1 of article 13 provided that his rejected claims shall be referred by the general secretary to the board of directors and —

“If the board, after thorough investigation, believe the claim is worthy of charitable consideration of the organization, the payment of a sum not in excess of the full amount of beneficiary certificate may be authorized.”

And by subdivision (c) of said section—

“Any member whose claim has been rejected by the board of directors will have the right of appeal to the convention, or may appeal to the board from time to time when in session, upon condition that he present additional evidence.”

Plaintiff with the assistance of his local lodge pursued these prescribed remedies until they were exhausted, claiming, a legal right to the amount of his policy according to its terms, and within less than six months after final rejection of his claim commenced this action in a court of competent jurisdiction. Not only had the board of directors authority under their constitution to award plaintiff the full amount of his beneficiary certificate, after the medical examiner had refused to do so, but oh appeal the convention could do likewise, and the possibility of an amicable adjustment within the order was not reached as a finality until it had refused to do so.

Construed as defendant contends for, the proceedings provided in its constitution relative to claims of beneficiaries are palpably more arbitrary and unfair to a claimant than those pronounced “very arbitrary and unusual” in Rose v. Order of Patricians, 126 Mich. 577. It was there said to be incumbent upon the officers to strictly pursue the method provided for considering claims, and held that an authorized appeal to a designated body of that order, called its supreme court, meant that appellant was entitled to a hearing in the nature of a judicial proceeding by and before that body, not by a committee on appeals upon whose report it had acted; that by the course pursued plaintiff was “deprived of the hearing to which he was entitled, and therefore he may maintain his suit at law to enforce his claim.” In this case plaintiff, as authorized by the constitution, appealed to the convention of the order, which simply referred the matter to a committee and later adopted its report.

As to the limit of time within which action may be brought, defendant contends that it begins to run from the time of the medical examiner’s rejection of plaintiff’s claim which was a final adjudication within the order of all his legal rights, since the medical examiner was the “sole judge” of whether he was-entitled to compensation in accordance with the constitution, and that the various provisions for appeal to which we have referred gave plaintiff’s claim no legal standing before the order because they appear under the heading “benevolent department,” and his provided right of appeal should for that reason be construed as meaning, in substance, but permission for him to appeal to the benevolent sentiments of the Brotherhood as a suppliant asking charitable consideration of his case, founded on no legal claim of right by reason of his contract of insurance.

If such was the intended meaning of those portions of the constitution relating to appeal, that which could be concisely expressed in á few plain words is so obscured by detailed provisions and elaborate phraseology as to readily mislead and lure a claimant into following in good faith the prescribed proceedings for appeal within the order until his right of resort to the courts was unwittingly lost. A construction by doubtful inference in favor of those who prepared the contract of insurance is not to be given in abridgement of such right.

Considering defendant’s constitution in its entirety, we are well satisfied that it did not make the decision of the examining physician who rejected plaintiff’s claim final and conclusive against review. It gave both the board of directors and the convention of the order full power to allow in full or reject it in case he took the prescribed appeal, which he did. His claim as made suffered final rejection by the convention within six months of the time this action wds begun. The claimed inference from the heading “benevolent department” can have no application to section 17 which under the separate heading “limitation of action of beneficiaries” expressly provides, without any qualification as to why or how the rejection occurred, that claims for permanent or total disability shall be barred unless the action is commenced “within six months after final rejection of the same.” Plaintiff’s action was begun within the time limit provided in the contract between the parties.

The verdict of the jury is well sustained by ample evidence. Plaintiff had worked as a railroad man for 28 years. For 17 years prior to this accident which terminated his service he was in the employ of - the Pere Marquette Railroad Co., in good health, working steadily, with no ailments requiring the service of a physician. As he recovered from the immediately severe injuries of his accident it was found that a paralytic condition had resulted, manifested by lack of control and inability to co-ordinate his lower limbs which so impaired his power of movement that he could walk but little and with difficulty, assisted by a cane, and was thereafter unable to resume his former calling or engage in any other physical employment. He was for a long time under the care of his local physician and at times consulted and was examined by other medical men of repute, amongst other things trying osteopathic treatment. Dr. J. M. Wilson, who was called to treat him at the time of the accident and visited him professionally every day for two months thereafter, having last examined him the evening before being called as a witness, gave the history of his case from personal knowledge, and testified to injuries at the base of the spine, resulting in his opinion in a disabling degree of paralysis of the legs which he regarded as permanent. Dr. H. R. Wilson, the local examining physician of defendant Brotherhood at Saginaw, who examined plaintiff shortly after the accident, stated he had knowledge of his condition from the time he was injured until the trial and testified that in his examinations he found a depression of plaintiff’s spinal cord resulting from displacement of the first lumbar vertebrge causing paralysis of the lower limbs with wasting of the-muscles; that between an examination made in May, 1915, arid one the day before testifying he discovered no material difference in the paralysis, which in his opinion would prove permanent. Dr. Inglis, a prominent specialist on mental and nervous diseases, and other physicians who had examined plaintiff, gave expert testimony to the same effect, describing plaintiff’s trouble as sensatory and motor paralysis of the lower extremities. Without further, details, it may be stated that there was ample testimony which, if believed, fully sustained plaintiff’s claim of total incapacity to perform manual labor, by reason of permanent paralysis of his lower extremities. The only professional witness called by defendant to the contrary was Dr. Cory, its. general medical examiner, who gave his conclusions from the one interview with plaintiff, and adhered to his then declared theory that he was “a simulator of an exaggerated type.”

It is contended under various objections which were interposed during the trial that much of plaintiff’s medical testimony was erroneously admitted, because the evidence should have been restricted to his condition at the time he was examined by the general medical examiner, on June 26, 1915. Plaintiff’s claim was that he had been stricken with disabling permanent paralysis at the time of his application to the order for compensation according to the terms of the policy, necessarily continuing if permanent, which defendant denied, until the time of the trial, including of course the day upon which he was examined by Dr. Cory and all intervening days. The court distinctly told the jury that the issue for their determination was “whether the plaintiff at the time he presented, his application was afflicted with, permanent paralysis of either extremity” and for him to recover the jury must find “that he was permanently paralyzed below the knee to such an extent that he will be permanently disabled and incapacitated from performing all manual labor on account thereof.” We think the issue was well guarded and fairly submitted to the jury, and, without deeming it important to discuss in detail the further assignments of error directed to admission of evidence and the charge of the court, conclude that no prejudicial or material error is shown which indicates a miscarriage of justice resulted.

The judgment is affirmed.

Bird, C. J., and Moore, Brooke, Fellows, Stone, and Kuhn, JJ,, concurred. Ostrander, J., did not sit.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    WARD v. TOWNSHIP OF ALPINE.
    1. Recoupment — Conversion—Contracts—Breach of Contract— Damages.
    In an action against a township by the assignee of a contractor for the conversion of certain steel for concrete reinforcement used by him in the construction of a bridge which was rejected by defendant, and torn down and the steel used by it in a new bridge built according to the original plans and specifications, the court below was in error in rejecting defendant’s claim of recoupment for damages in removing the defective bridge.
    2. Same — Assumpsit—Tort.
    In an action for conversion, the doctrine of recoupment is applicable whether the action is founded in tort or in contract; the right being the same.

      3. Same — Nature oe Claim: — When Applicable.
    Recoupment is not strictly limited to the exact provisions of the contract sued upon; it is sufficient that the counterclaims arise out of the same subject-matter, and that they are susceptible of adjustment in one action.
    4. Appeal and Error — Erroneous Assumption — Right Result Affirmed.
    Where the evidence supported the finding of the court below that the damage to defendant resulting from the nonperformance of a contract to build a bridge exceeded the value of certain steel converted by defendant, the judgment for defendant will be affirmed, although erroneously based upon the assumption that the steel imbedded in the concrete had no value.
    Error to Kent; Brown, J.
    Submitted October 16, 1918.
    (Docket No. 80.)
    Decided April 3, 1919.
    Assumpsit by M. Thomas Ward against the township of Alpine for the conversion of certain steel. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      M. Thomas Ward (Ellis & Ellis, of counsel), in pro. per.

      Earl F. Phelps, for appellee.
   Steere, J.

On December 10, 1915, M. Thomas Ward, plaintiff, by M. Thomas Ward, plaintiff’s attorney, commenced an action against defendant in the circuit court of Kent county by filing and serving a declaration charging defendant under the common counts in assumpsit with being indebted on the first day of November, 1915, to George LeVan in the sum of $200, which indebtedness was averred to have been assigned to plaintiff by said LeVan for a valuable consideration, on November 30, 1915, and defendant though often requested had not paid the same or any part thereof, to plaintiff’s damage one thousand dollars, and therefore he brought suit.

On request for a bill of particulars after entry of appearance by Earl F. Phelps, defendant’s attorney, plaintiff “in proper person” furnished the same, informing defendant that the action was brought to recover the following demand:

“1915, October, steel ............................. $170.00
1915, October, Cartage and unloading... ........... 6.00
1915, October, Hand Rail ................... m ...... 16.00
1915, October, Hauling Hand Rail.......... 2.00
$194.00”

After being thus advised, defendant pleaded the general issue, with a lengthy notice of special defense that the work, labor and material furnished for which plaintiff’s action was brought, if any, were done and furnished under a special contract in writing by which LeVan undertook to build a bridge for defendant, in which undertaking he failed miserably to defendant’s injury and damage in the sum of $300 for which it made claim by way of recoupment.

On the trial of the case before the court without a jury the testimony developed complications which led the court to offer the following reflection, with which we do not disagree:

“This entanglement involves a good many different-lines and ramifications. It probably would be difficult for a designing mind to get an entanglement with •more avenues of approach or more alleys of escape, if you were getting up a knotty question to see if you could not somewhere trip somebody who claimed to be untrippable.”

The court thereafter made a finding of facts with conclusions of law thereon holding that plaintiff could not recover. Proposed amendments by plaintiff to such findings were refused and defendant had judgment. Exceptions to the refusal to amend findings, conclusions, etc., were duly taken and the case removed to this court for review on 26 assignments of error.

Most of the facts out of which the litigation arose are not in dispute. The subject-matter of the litigation was a quantity of steel for concrete • reinforcement bought, but never paid for, by LeVan from the Concrete Steel Company óf New York to be used by him in performance of his contract to construct a small concrete bridge over Mill Creek in a highway of the defendant township of Alpine. The price of this steel as purchased by LeVan from the concrete company was $170 which did not include a steel hand rail procured by him from the same source for, as he testified, “in the neighborhood of $15, $18, $20, somewhere along there.” The plans and specifications for the proposed bridge were prepared and the contract let for its construction by a firm of civil engineers named Riser & Christ, representing the township in that ‘transaction, and LeVan secured the contract which was dated November 24, 1914, by which he was to furnish all necessary tools, labor and material and construct the bridge in. a good and workmanlike manner according to the plans and specifications, made a part of the contract, for $628 and complete the same before December 15, 1914. He thereafter entered upon the construction of the bridge and some time “during the winter of 1914-15” notified the township of its completion, just when is left to surmise. He testified that he built the bridge of cement, steel and gravel and said:

“I put this steel into the bridge and went on and finished up the bridge so that I thought it was finished. It could have a coat of whitewash in the spring; that is what it should have, is about all.”

The township by its officers and the engineers who designed the bridge then inspected it and determined that it had not been constructed in accordance with the plans and specifications, was of weak, unworkmanlike and faulty construction, hopelessly unsafe for public use and an obstruction in the highway which it was necessary to remove before a safe and proper bridge could be built, its greatest infirmity being in the quality of the cement, claimed to be weak, crumbling and interspersed with cracks. Acceptance was refused and LeVan so notified with demand that he comply with his contract by constructing a proper and safe bridge according to the plans and specifications. He took no steps to comply with the demand and after waiting until August 31, 1915, the township let a contract to one Eobertson by the terms of which he was to tear down and remove out of the way the bridge LeVan had built and construct another in its place according to the same plans and specifications in relation to which LeVan had contracted. His price for the new bridge was $600, he to use the old railing, allowing $20 therefor, and the old reinforcing steel, allowing lc per pound for the same, which LeVan had used in the rejected bridge he built. For tearing down and removing the LeVan bridge out of the way he was to receive $200 and of this work it was specified:

“4. In tearing down the present bridge span care must be taken to save as much as possible of the imbedded steel and the pipe railing, as it is the intention to use as much as possible of this material in the new bridge span.
“5. The concrete of the demolished span shall be broken up and deposited on the banks adjacent to the bridge as directed by the commissioner.
“6. The old steel must be thoroughly cleaned from all dirt and concrete, restraightened and if necessary rebent to the original shape.”

The abutments to this bridge were not put in by LeVan, but by the township, and in the opinion of the engineer explosives could not be used in removing the rejected bridge without affecting the abutments. In performance of his contract Robertson first entirely tore down the LeVan bridge in such manner as to not disturb the abutments, cleaning and straightening the old steel as he released it and laying it on the ground a short distance from the bridge “just out of the way.” After the old bridge was entirely torn down and removed out of the way he built the new one in compliance with the terms of* his contract, using 7,500 pounds of the old steel saved from .the LeVan bridge and the old railing, for which, as agreed in the contract, the township received a rebate of $95 on the contract price of $800 otherwise due him for tearing down the old bridge and constructing the new. It is found by the trial court, and not disputed, that LeVan was seasonably notified by defendant of the rejection of the bridge he built and twice requested to construct a bridge according to contract, the last demand being in writing with a time fixed in which to comply, to which he paid no attention; that the one he built was not in compliance with the plans and specifications of his contract but was an obstruction in the highway which it was necessary to remove before the Robertson bridge could be constructed, and that the price paid by the township for removing the same was reasonable. So far as the record discloses LeVan’s first activity in connection with this matter subsequent to notice that his bridge had been rejected and demand that he comply with his contract was to assign his rights in the old reinforcement steel to plaintiff after Robertson’s contract was completed and the steel had been securely imbedded in the concrete of the new bridge. Plaintiff then brought this action against the township for conversion of LeVan’s steel, waiving the tort, however, and suing in assumpsit, as is permissible.

The trial court held defendant’s claim for recoupment could not be maintained because it did “not grow out of the contract under which plaintiff brings this suit.” Having found it admitted that defendant never accepted the LeVan bridge and after due notice and demand had caused the steel and cement of which it was constructed to be removed because an obstruction to the erection of a proper and safe bridge, and that it authorized Robertson to .use the steel placed by LeVan in the demolished bridge, the court expressed the view that “even though the bridge was not accepted by the township, the bridge and all its component parts became affixed to the land and a part of a highway, and plaintiff’s assignor had no interest or property right in said bridge” except as he might use any suitable portion of it in carrying out his contract according to its terms, and “must rely entirely upon the contract for his compensation to recover for building the bridge”; that after installing the same in the public highway he had no right, in case of dispute with the township authorities, “to go upon the public highway and remove therefrom the bridge,” which was “a public improvement,” erected under contract with the township. After further discussion of the case in that respect the court concluded that, “If the property belonged to the township as above indicated the plaintiff’s case must fail,” and proceeded to discuss the theory of conversion, qualifiedly adopting it as follows:

“Under the testimony in the case the court finds that the defendant, having removed the first bridge, which was composed of steel and cement, from the place where plaintiff’s assignor built it, the steel being extracted from cement and laid near the place where the second bridge was built, and being used in the construction of the second bridge with the consent of defendant, and it being the intent of defendant from the time of the beginning of the removal of the first bridge to the time the second bridge was constructed to use this steel in construction of the second bridge, that the conversion, if there was such conversion by defendant of the steel in question, was committed at the time defendant first handled the steel, which would be at the time defendant removed the steel from the cement bridge.”

Having so determined the time of conversion, if any, the court in conclusion held that not only had plaintiff failed to prove the market value of the steel at the time it was converted while yet imbedded in the cement of the LeVan bridge, but that it was shown by defendant’s evidence to be without value in its then condition; and on that theory entered judgment for defendant.

One of the “ramifications” in this “entanglement,” to which no reference appears in the court’s finding of facts and conclusions of law, is that soon after this action was brought and before issue was. joined defendant filed a bill of interpleader on the chancery side of the court giving at length its version of the history of this bridge matter up to and including the commencement of this action, alleging that LeVan himself, Gordon C. Dudley as his bondsman, M. Thomas Ward as his assignee, and the Concrete Steel Company, all of whom are made defendants, have each demanded from the township (“your orator”) pay for this steel, saying amongst other things.:

“Said steel that was put into the said bridge built by the said G. F. LeVan went into the second bridge constructed by the other contractor, and your orator received the benefit thereof, and your orator is ready and willing to pay to the proper person whatever sum said steel is reasonably worth, which steel your orator is informed and believes is worth at- a fair valuation the sum of one hundred and seventy-one ($171.00) dollars, and your orator is willing to pay this amount for said steel to whomsoever is entitled thereto.”

The bill contained the customary prayer for relief under its allegations, and asked a preliminary injunction restraining M. Thomas Ward from further prosecuting this action, which was granted. The bill was signed in behalf of the township and sworn to by Louis F. Cordes, its supervisor, who was by statute its agent for transaction of all legal business, and the party upon whom all process against it should be served (1 Comp. Laws 1915, § 2115).

M. Thomas Ward thereafter moved before the chancery court for dismissal of the bill and dissolution of the injunction against him, which motion was granted. The grounds of said motion and reasons of the court for dismissing the bill are not disclosed by this record, but the township took no appeal therefrom, and thereafter pleaded in this action as before stated.

Plaintiff filed proposed amendments to the findings of the court under Circuit Court Rule No. 45 embodying the salient facts as to defendant’s bill of inter-pleader and its contents, none of which were granted, exception was duly taken and error is assigned thereon. As those matters are of record and undisputed, plaintiff was entitled to his proposed findings to the extent any of them are material to the issue.

Plaintiff says of defendant’s rather peculiar and unsuccessful excursion info the field of interpleader that, “The township of Alpine had a right to file a plea with a notice of recoupment in this case or to file a bill of interpleader. But our contention is that he had no right to do both,” and it is argued that having by its attempted interpleader declared itself the innocent stakeholder of $171 for the value of this steel claimed by four different parties made defendants, of which plaintiff was one, it cannot thereafter file in this case a plea of denial and notice of recoupment, claiming that money and denying plaintiff’s right to it as assignor of the owner of the steel.

It seems self-evident that the theory upon both the facts and law by which the court disposed of the case is out of harmony with the allegations and theory of defendant’s sworn bill of interpleader filed as the commencement of a suit in equity; but plaintiff declined to plead issuably in that suit and successfully took steps to head off that attempted “alley of escape” by a technical motion presumably in the nature of a demurrer, obtaining an adjudication that defendant’s bill was not well founded, was insufficient in law to demand answer and should be dismissed — in effect that the bill of interpleader was a nullity and, as between these parties, could in no wise affect the orderly course of this action at law.

Thus relegated to its defense in this case it remained for defendant to plead herein as it might be advised. It had not before pleaded, issuably or otherwise, and, held to the issues tendered by plaintiff’s declaration in assumpsit under the common counts, it pleaded the general issue with notice of recoupment. Under the testimony in this case strengthened by the allegations in its dismissed bill of interpleader* which are competent evidence, it is not only manifest that defendant was not in a position to deny LeVan’s ownership of this steel, but that he had in fact bought and owned it at the time he put it into the rejected bridge he built for defendant. That his vendor had granted him credit and he had not yet paid for it was no legal concern of defendant so far as this record discloses.

Though adopting the conclusion that there was a conversion, qualified by the previously expressed view that LeVan had probably lost all rights in this steel by so building it into his bridge that it “became affixed to the land and a part of the highway,” and if so “plaintiff’s case must fail,” the trial court determined the conversion, if any, took place “at the time defendant removed the steel from the cement bridge,” which LeVan had constructed, and that it was without value at that time in its then condition. Against this plaintiff strenuously contends and argues that defendant converted the property when it took it from the side of the highway and put it into the new bridge, at which time it is shown to have been of substantially the value claimed.

To follow out the various arguments and theories as to when and how often this steel changed back and forth from personal property to real estate, or when and why or how. the conversion, if any, took place, as mooted by the contingent conclusions of the trial court might, as the court suggested, involve an “entanglement” of questions which, in the language of Imlac, have “long divided the wise and perplexed the good” and we see no reason to pursue them, for we think the court erroneously rejected defendant’s claim of recoupment and the exact time when defendant converted LeVan’s steel to its own use is of minor importance. He purchased this steel to use in the construction of a bridge for defendant over Mill Creek which he had contracted to build. He used it for that purpose. The township rejected the bridge he built because imperfect, unsafe and not according to contract, notifying him of the rejection and its reasons. After due demand that he perform and reasonable time therefor the township did what he under his contract should have done. It tore down the defective and unsafe bridge and built another of the same kind, according to the same plans and specifications as that he had agreed to build. In doing so it saved and used some of the old material which he had furnished for and used in the first bridge in part performance of his contract.

While plaintiff claims a tortious conversion he has waived the tort and sued in assumpsit founding his action upon a claim of quantum meruit, for the value of material furnished by his assignor under and used in an attempt to perform Ms contract with, defendant to build a specified bridge, for the construction of which defendant used the material after he had failed to fully perform and abandoned the work; but had plaintiff’s action sounded in tort for a conversion, recoupment could have been interposed with equal force.

“That term is expressive of a right of a defendant to deduct or abate from the plaintiff’s damages any-right of action which defendant may have, growing out of the same transaction, founded either in tort or in contract; but the right is the same, whether expressed by one term or another, or claimed by a plaintiff or defendant.” Bancroft v. Peters, 4 Mich. 619.

Recoupment is not strictly limited to the exact provisions of the contract involved, or sued upon, but is said in Waterman on Set-Off and Recoupment (2d Ed.), p. 480, to be contradistinguished from set-off in three essential particulars:

“1st. In being confined to matters arising out of, and connected with, the transaction or contract upon which the suit is brought; 2d. In having no’ regard to whether or not such matter be liquidated or unliquidated; and 3d. That the judgment is not the subject of statutory regulation, but controlled by the rules of the common law. * * * It is sufficient that the counter-claims arise out of the same subject-matter, and that they are susceptible of adjustment in one action.”

The scope of such defense was early recognized by this court in Ward v. Fellers, 3 Mich. 282, where recoupment is discussed at some length. The opinion, says of its application:

“It is sufficient that the counter-claims arise out of the same subject-matter, and that they are susceptible of adjustment in one action.”

In Allen v. McKibbin, 5 Mich. 449, which holds recovery might be had on quantum meruit for part performance of a non-apportionable contract, the basis of recovery being a new implied agreement dedueible from delivery and acceptance of some valuable service or thing, the court said in discussing the defense that no question could be raised as to the right to recoupment “as the damages, if any, arose out of the same transaction.”

As assignee, plaintiff is entitled to recovery only and just as LeVan, his assignor, might had no assignment been made. Howell v. Medler, 41 Mich. 641.

The trial court found, with abundant supporting evidence, that the reasonable cost and expense to defendant in removing the defective LeVan bridge out of the way, and cleaning and straightening the steel found imbedded in it, was the sum of $200. This was distinctly an item of damages resulting to defendant from LeVan’s nonperformance of his contract, and exceeded the amount claimed in plaintiff’s bill of particulars, or any proven value of the steel used by defendant and for which it was holden. Clearly the counter claims of these parties arose out of the same subject-matter, or transaction, and were susceptible of adjustment in one action.

Though by different avenues of approach, which is immaterial, the right result was reached by the trial court and its judgment is affirmed.

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


author: Fellows, J.

text:
    PRATT v. DUNCAN.
    1. Trial — Directed Verdict — Instructions—Bills and Notes— Fraud — Bona Fides — Holder in Due Course.
    Plaintiff, in an action on certain promissory notes, was not prejudiced by the court’s submitting to the jury whether the contract was procured by fraud and if so whether plaintiff was a bona fide holder, where he should have instructed them that the contract was contrary to public policy and void as between the original parties and plaintiff must fail unless he established his bona fides.

    2. Appeal and Error — Directed Verdict.
    The evidence, together with its legitimate inferences most favorable to the other party, must be accepted on a motion to direot a verdict.
    3. Bills and Notes — Bona Fides — Holder in Due Course — Question por Jury.
    Evidence that plaintiff, a bank officer, received collateral for collection, and, when collected, credited the proceeds to an account called the “collateral account,” and, if not collected, turned it over to an attorney employed by the original holder for collection, considered together with his knowledge of the contract to which the notes were originally attached and. made a part, etc., presented a question for the jury as to whether plaintiff was a bona fide holder.
    See note in 31 L. R. A. (N. S.) 287.
    Error to Berrien; Bridgman, J.
    Submitted October 22, 1918.
    (Docket No. 100.)
    Decided April 8, 1919.
    Assumpsit by W. I. Pratt against John F. Duncan on certain promissory notes. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Cady & Andrews, for appellant.

      Stratton & Evans, for appellee.
   Fellows, J.

Plaintiff claims to be the bona fide holder of certain promissory notes executed by defendant. These notes were detachable and were detached from a contract for the putting on of a gift enterprise devised in Iowa City, Iowa, of similar purport to the ones before this court in Boston Piano & Music Co. v. Seckinger, 198 Mich. 312; Harrison v. Grier, 198 Mich. 672; Boston Piano & Music Co. v. Clothing Co., 199 Mich. 141; and Stevens v. Venema, 202 Mich. 232, and with the same company involved in Loveland v. Bump, 198 Mich. 564. A reference to these cases will disclose the detail.

The instant case was tried before any of the above cited cases was decided. Defendant’s notice under the plea of the general issue was broad enough to admit of the defense that the contract was against public policy, and the trial judge was inclined to dispose of the case on that ground, but was dissuaded and submitted to the jury the question of whether the contract was procured by fraud, and if so whether plaintiff was a bona fide holder of the note. The claimed fraudulent representations were of the same character as those involved in the Clothing Company Case, promissory in their nature, and under the holding in that case should not have been submitted to the jury. But under the authority of the cases above cited, the contract was contrary to public policy, and the court should have instructed the jury that it was void as between the original parties, and plaintiff must fail unless he established his bona fides. Such being the case, plaintiff was not prejudiced by the submission of a branch of the case to the jury which should have been disposed of adversely to him by a peremptory instruction.

The question of plaintiff’s bona fides being involved, considerable latitude of cross-examination into the relations of the parties and their business transactions should be indulged. We are not persuaded that the trial court permitted the cross-examination of plaintiff to extend too far.

The plaintiff asked for a directed verdict, which was refused. As we have already stated the only question involved was the bona fides of the plaintiff. We are not satisfied that such bona fides is established by the uncontradicted evidence in the case. We have frequently held that the evidence, together with its legitimate inferences most favorable to the other party, must be accepted on a motion to direct a verdict. The plaintiff claims to have taken these notes as collateral to a loan to the Brenard Manufacturing Company, which was a copartnership made up of Mr. Loveland and Mr. Records, who had formerly done business under the name of the Equitable Manufacturing Company. He knew the purport of these contracts, and had had at least one law suit growing out of one of them. He claims to have loaned the company considerable money. The manner of handling the money collected on the collateral is described by him substantially as follows: He was an officer of the Iowa City State Bank. The collateral was turned over to the bank for collection. When collected the proceeds were credited to an account called the “collateral account.” If not collected the collateral was turned over to an attorney, employed by the Brenard‘Manufacturing Company, for collection. Checks were drawn by plaintiff on this “collateral account” in favor of the Brenard Manufacturing Company as the collateral was paid (in only one instance has he drawn a check in favor of himself), and he claims new collateral was put up. We cannot say as matter of law that this manner of handling the business is not open to the inference that plaintiff was used as a collection agency to collect these notes given to the Brenard Manufacturing Company in this void transaction. Ordinarily, a creditor who collects collateral deposited with him applies it on the indebtedness instead of turning it over to his debtor. We do not hold as matter of law that plaintiff is not a bona fide holder of these notes. What we do say is that, considering the relation of the parties as disclosed by this record, plaintiff’s knowledge of the contract to which these notes were originally attached and made a part, the litigation over the contract, the manner of doing the business, and all the circumstances disclosed by this record, that the question was one for the jury and not for the court.

We are not satisfied that there .was prejudicial error in the conduct of defendant’s counsel, although some of it we do not commend.

Finding no reversible error on the record, the judgment is affirmed.

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


author: Bird, C. J.

text:
    CITY OF DETROIT v. HARTWICK.
    1. Eminent Domain — Condemnation Proceedings — Evidence — Amendment — Parties.
    Where defendant in condemnation proceedings had purchased the premises in question upon contract which he was using as collateral at a certain bank, the contract was properly received in evidence, and the court below was not in error in allowing an amendment making the bank a party.
    2. Same — Parties—Objections—Appeal and Error.
    While an objection that the bank, although made a party, was given no opportunity to be heard, might have some force if made by the bank, it was without merit when urged in behalf of defendant.
    3. Same — Necessity—Evidence—Sufficiency.
    Evidence on the question of necessity,. held, sufficient to justify the finding of the jury.
    4. Same — Witnesses—Qualifications.
    The testimony of a lay witness as to the value of a piece of land he had never inspected was inadmissible.
    5. Same — Appeal and Error — Harmless Error.
    Errors assigned in condemnation cases should not work a reversal unless it is made apparent that the verdict was materially affected by them.
    Error to recorder’s court of Detroit; Connolly, J.
    Submitted October 16, 1918.
    (Docket No. 64.)
    Decided April 3, 1919.
    Condemnation proceedings by the city of Detroit against Edward E. Hartwick and others for an alley. From an order confirming an award of the jury, defendants appeal.
    Affirmed.

      Van De Mark & Sward (F. B. Brown, of counsel), for appellants.

      Thomas P. Penniman (Allan H. Frazer, of counsel), for appellee.
   Bird, C. J.

The city of Detroit filed its petition in the recorder’s court to condemn a strip of land, sixteen feet in width, for an alley in the rear of lots facing Guilloz street, between Euclid and Clay avenues. The jury found the strip was necessary for alley purposes and awarded the owners of the fee the sum of $3,678.22. These findings were later confirmed by the court, from which the defendants appeal.

Assignments 6, 9 and 10. It appeared upon the inquisition that defendant Hartwick purchased the premises in question from Julius Stroh and others and that Hartwick was then using the contract as collateral security to certain of his loans at the People’s State Bank. When this developed counsel for the city asked that the People’s State Bank be made a party to the proceeding and it was so ordered despite defendant’s objection. It was important for the city to know who were interested in the property proposed to be taken, and when ascertained, it was proper that they should be made parties. We see no impropriety in receiving the contract in evidence for the reason that it was disclosed other parties were interested in the premises, nor do we think it was error to allow the amendment making the bank a party. Counsel assert that the bank was made a party but given no opportunity to be heard. This objection might have some force, if made by the bank, but we think it has no merit when urged in behalf of defendant Hartwick.

Assignment 20. Counsel contend that the evidence bearing on the question of necessity was insufficient to justify the jury in making the finding which they did. The record shows that these lots are only about 40 feet in depth and that many of the houses built thereon are built up to the rear lot line. There is an open field in the rear which is being rapidly utilized for manufacturing plants. It was shown by the health officer that if the industrial plants were built up to the lot line it would contaminate the air and lessen the sunlight in the vicinity. The necessity also appeared in the disposal of the garbage. At the present time the garbage is not collected but is thrown out upon the field, whereas, if an alley were created it would come within the ordinance and be stored and collected as it is elsewhere in the city. There was considerable uncontradicted testimony taken bearing on the question of necessity and we think it was ample to justify the finding made by the jury.

Assignment 16. One W. S. Crowl was offered as a witness by defendants on the question of value. He testified, in substance, that he was general agent for the Michigan Central Railroad Co., in charge of its industrial matters, and as such he was familiar with factory sites, their location and value; that he knew where the tract in question lay but admitted that he had never examined this particular one. It further appeared from his testimony that he had recently negotiated with others for a factory site, six or seven miles distant. The trial court refused to take his opinion of the value for the reason that he had not shown himself qualified to speak on that question. Upon this showing it would hardly be contended he had a right to testify as an expert, but counsel say, and rightly so, that one does not have to be an expert to testify on the question of the value of land. But, ordinarily, before a lay witness is permitted to testify to the value of land he must show that he has seen the land and has some knowledge of the value of other lands in the immediate vicinity. Lawson on Expert Evidence, p. 475; Mewes v. Pipe Line Co., 170 Pa. 367 (32 Atl. 1082); Stone v. Covell, 29 Mich. 359. The witness, Crowl, must be regarded as a lay witness, and in view of his testimony that he had never inspected the premises about whose value he was to testify, we think it was not reversible error to exclude his testimony.

Some other assignments are touched upon in the brief but it will suffice to say that we do not think the errors complained of, if they were errors, so materially affected the jury’s conclusions that they should work a reversal of the award. Under the practice, errors assigned in condemnation cases should not work a reversal of the finding of the jury unless it is made apparent that the verdict was materially affected by them. Grand Rapids, etc., R. Co. v. Chesebro, 74 Mich. 466. The observations of Mr. Justice Campbell in the case cited are applicable here. In part it was there said:

“But the proceedings before the jury appear to have been conducted in a peculiar method, not within the proper rules governing such cases, and appear to have led to conclusions that cannot be maintained. The probate judge acted throughout as if he had been a nisi prius judge, presiding over a common-law jury, and assumed the whole responsibility of directing what testimony should go before them, and on what theories of damage. * * * Then, as under our present statutes, the jury was a jury of inquest, specially created, and not a trial jury. We held in Toledo, etc., R. Co. v. Dunlap, 47 Mich. 456, where the jury was impaneled in a circuit court, that the only functions of the court were to, set the proceedings in motion by organizing a jury or appointing commissioners, and affirming or vacating the award; and we held, further, that the jury were judges of law and fact, and not subject to interference by the judge, should he undertake to accompany them.”

It was said in the recent case of Chicago, etc., R. Co. v. Simons, 200 Mich. 76, that,—

“while the statute confers upon this court appellate jurisdiction to review awards in condemnation cases, it has always been very loth to reverse them on technical grounds or because the damages were apparently excessive or inadequate, if they were within the range of the testimony.”

Applying this rule we find nothing in the present case which calls for a reversal of the conclusions reached by the jury.

The award is affirmed. Costs will be granted in this court to plaintiff.

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


text:
    GERMAINE v. GERMAINE.
    Divorce — Extreme Cruelty — Personal Violence.
    On a bill by the wife for divorce on tbe ground of extreme cruelty, where tbe finding of tbe court below that defendant was guilty of personal violence is supported by tbe evidence, tbe decree for plaintiff will be affirmed, although tbe evidence also shows that both parties were somewhat responsible for the situation in which they found themselves.
    Appeal from Grand Traverse; Mayne, J.
    Submitted October 18, 1918.
    (Docket No. 89.)
    Decided April 3, 1919.
    Bill by W. Ola Germaine against William D. C. Germaine for a divorce. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Patchin & Duncan, for plaintiff.

      William H. Umlor (J. J. Tweddle, of counsel), for defendant.
   Bird, C. J.

These parties are husband and wife. After living together for 20 years they separated in August, 1915. Soon thereafter plaintiff filed her bill in the Grand Traverse circuit court, charging defendant with extreme cruelty and adultery. Defendant answered, denying both charges. Before the case came to a hearing the charge of adultery was eliminated. At the hearing the parties and several of their respective friends and relatives testified. The chancellor appears to have been persuaded, upon the whole record, that plaintiff’s charge of extreme cruelty had been established, and, accordingly, a decree was made divorcing the parties. An order for alimony was made in accordance with the agreement of the parties. Defendant being displeased with this result has appealed to this court.

We are impressed by the testimony that several causes have contributed to the failure of this marriage compact. The more prominent ones are:

(a) We infer from the record that in 1895, .when defendant married plaintiff, his means were quite limited while she was taken from a well-to-do family, where she had been supplied with about everything she desired. When the burden shifted to defendant to give her a home in keeping with the one from which she had been taken, he could not carry it as it had been theretofore carried. The father-in-law was willing to, and did, contribute to such an extent that it made plaintiff very independent and left defendant less assertive than he would otherwise have been.

. (5) They became overly friendly with near and congenial neighbors. This eventually led to trouble, as it nearly always does. They were much in each other’s company. They dined together frequently and on some of these occasions indulged in too much wine. They motored, danced, sang, played cards, and occupied a cottage .at a nearby lake together. After a time defendant discovered a growing fondness for his wife on the part of his neighbor. He then came to himself and withdrew from the combination, and now charges all of his troubles to these neighbors.

(c) The frequent indulgence by both of the parties in intoxicating liquors added materially to their increasing troubles.

(d) Defendant’s growing suspicion of his neighbor intensified his jealousy and thereby gave rise to personal assaults on his wife. These attacks, made her afraid of him and widened still further the breach between them.

Causes a, b and c, one party seems to be as much responsible for as the other, and neither is entitled to much consideration for troubles growing out of them. The acts of personal violence are denied, or plausibly explained by defendant, but we think the testimony fairly establishes the fact that on several occasions he assaulted her in a vicious manner. If there is any such thing as mitigating circumstances in using personal violence on a wife, save in self defense, it is quite likely that defense is open to him.

Defendant’s counsel urges that the record presents a case in which both parties are to blame for the situation in which they find themselves, and, therefore, no relief should be given to either. We feel there is much force to this argument, and were it not for the acts of personal violence shown we would probably agree with him. As to these acts there is little that can be said in defense of them. We are inclined to the opinion that the conclusion' reached by the chancellor is the proper one, that the charge of extreme cruelty was established.'

The decree of the trial court will be affirmed, with costs of this court to the plaintiff.

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


text:
    PEARSON v. WALLACE.
    1. Replevin — Sales—Fraud—Remedy of Seiler.
    Replevin is the proper remedy of the seller to recover goods obtained by the buyer by fraud or misrepresentation.
    2. Frauds, Statute of — Oral Testimony — Fraud — .Evidence — Principal and Agent — Question for Jury.
    Oral testimony to prove fraud being inadmissible under the statute of frauds (3 Comp. Laws 1915, § 11983), if defendant was acting as agent for another, as claimed by him, but which was disputed by plaintiff, the court below properly instructed the jury that if defendant was acting for another no recovery could be had upon his statements.
    Error to Livingston; Miner, J.
    Submitted October 11, 1918.
    (Docket No. 36.)
    Decided April 3, 1919.
    Replevin by George J. Pearson against Henry M. Wallace and another for the possession of certain livestock. Judgment for plaintiff. Defendant Wallace brings error.
    Affirmed.

      James H. Pound, for appellant.

      Louis E. Howlett and W. P. Van-Winkle, for.appellee.
   Bird, C. J.

Plaintiff brought replevin to tecover the possession of certain farm livestock which he had theretofore parted with in exchange for two Iron Mountain Light & Fuel Company bonds of $500 each. It was his claim that he had been defrauded in the transaction and, therefore, the title to the livestock never passed to the defendant. Plaintiff waived return of the property and the jury fixed the value thereof at $955.98. Judgment was rendered against defendant Wallace for that amount. A judgment of “not guilty” was directed by the trial court in behalf of the defendant, Lake View Farms Company. Defendant Wallace brings error.

1. The first point made by defendant’s counsel is that replevin will not lie to recover personal property under the circumstances of this case. It is plaintiff’s contention that the defendant Wallace made false and fraudulent representations to him concerning the value of the bonds which he took in exchange for the livestock; that when he discovered the fraud he tendered the bonds to defendant and demanded the livestock, and that upon defendant’s refusal to comply therewith he brought this suit in replevin. Under these claims we think plaintiff made no mistake in the remedy which he chose. The general rule in this State, as well as elsewhere, is that fraud or misrepresentation on the part of the buyer will entitle the seller to reclaim the goods from the buyer, and replevin has been recognized as the proper remedy in this State to recover them. 35 Cyc. p. 508; Ross v. Miller, 67 Mich. 410; Pangborn v. Ruemenapp, 74 Mich. 572; Koch v. Lyon, 82 Mich. 513; Reeder v. Moore, 95 Mich. 594.

2. It is contended that as the representations were made by Wallace in behalf of another, oral testimony was not admissible by reason of the statute of frauds. 3 Comp. Laws 1915, § 11983. This section provides that:

“No action.shall be brought to charge any person, upon or by reason of any favorable representation or assurance, made concerning the character, conduct,, credit, ability, trade or dealings of any other person, unless such representation or assurance be made in writing, and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized.”

While it is true that defendant testified he was acting for a man in Lansing, it was plaintiff’s claim that defendant was acting for himself and making representations as to the value of his own property. The trial court took the view that the application of the statute depended upon a question of fact and, therefore, left this fact to the jury to find, with the instruction that if they found that defendant Wallace was acting for another, no recovery could be had upon his statements. If the statute has any application at all to the facts of this case, this charge was as favorable to defendant Wallace as he had a right to demand.

3. The representations concerning the bonds and their value, which plaintiff claims induced him to exchange his livestock for bonds, were the same, in substance, as those made -to induce him to exchange his farm for similar bonds a year previous. Litigation between these parties followed the farm trade and found its way to this court and is reported in 203 Mich. 622. Both cases were argued at the same term in this court. Many of the material questions raised on this record are the same as those raised and decided in that case and, therefore, need not be again considered.

In addition to the questions which are common to both records .there are some assignments of error aside from those we have considered, which we have examined, but find nothing therein which merits a- reversal of the case.

The judgment of the trial court should be, and is hereby, affirmed.

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


text:
    LOWE v. RADECKE.
    1. Landlord and Tenant — Contracts—Breach—Noxious Weeds —Agreement to Cut — Statutes.
    Where a lease of a farm contained a provision that the lessee “agrees to cut and keep down all noxious weeds and thistles,” but fixed no time for the performance of the same, section 4603, 1 Comp. Laws 1915, providing that thistles and noxious weeds should be cut “at least twice in each year, once before the first day of July and again before the first day of September,” became a part of the contract, and the court below, on appeal from summary proceedings before the circuit court commissioner to oust defendant for noncompliance with the terms of the lease, was in error in allowing the jury to' fix another and different time than that prescribed in the statute as the reasonable time for the performance of the act. Bird, C. J., dissenting.
    2. Same — Subletting—Question for Jury.
    It was a question for the jury whether the provision in the lease against subletting without the consent of the lessor was violated by lessee’s absence and the work being done by his father, where there was testimony that after the lease was signed the lessor was informed that the father would do the work in the lessee’s absence, and he consented to the arrangement.
    See note in 43 L. R. A. (N. S.) 1090.
    Error to Muskegon; Cross, J., presiding.
    Submitted October 11, 1918.
    (Docket No. 49.)
    Decided April 3, 1919.
    Summary proceedings by Jesse G. Lowe against Ed. A. Radecke for the possession of leased premises. There was judgment for defendant before the commissioner, and plaintiff appealed to the circuit court. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Cross, Foote & Sessions, for appellant.

      Willard J. Turner, for appellee.
   Bird, C. J.

Plaintiff leased his farm of 160 acres in Muskegon county on the 2d day of November, 1916, to defendant for a term of three years with two additional years at the option of defendant. The leasing was on shares. The lease was in writing and was in the usual form of such leases. The only provisions which it will be necessary to quote are the following:

“(a) The said party of the second part agrees to cut and keep down all noxious weeds and thistles.
“(b) And that he will farm the said land and premises in a good husbandlike manner and for the best interests of the parties hereto.
“(c) And the said party of the second part agrees that he will not sublet the said premises, or any portion thereof, nor assign, nor transfer this lease to any person whomsoever without the written consent of the said party of the first part, his heirs, executors, administrators or assigns, endorsed on this lease.
(d) And should the said party of the second part fail in any of the foregoing promises, conditions and obligations contained in this indenture, on his part to be faithfully kept and performed, then this lease shall become null and void, and the said party of the first part, his heirs, executors, administrators or assigns may peaceably re-enter and take possession of the premises and property hereby rented without any formal proceedings either at law or in equity.”

Defendant took possession of the farm and remained thereon until October, 1917, when plaintiff instituted summary proceedings before a circuit court commissioner to oust defendant on the theory that he had failed to comply with the terms of the lease. The matter was heard by a jury and resulted in a verdict for defendant, with a like result on appeal in the circuit court. Plaintiff assigns error on the proceedings in the trial court, as follows :

(1) In refusing to receive in evidence section 4603 of the Compiled Laws of 1915.

(2) In refusing to grant the motion of counsel for the plaintiff that the court instruct the jury to render a verdict for plaintiff on the ground that under the undisputed evidence in the case the defendant had been guilty of such a violation of the terms of his lease as warranted the plaintiff in declaring the lease forfeited and that the forfeiture had occurred, and that plaintiff is entitled to possession.

(3) In submitting to the jury the question as to whether defendant had substantially performed his part of the lease, the evidence being overwhelming, undisputed and conclusive that he had not.

(4) In refusing to grant plaintiff’s motion for a new trial.

1. It was the contention of plaintiff that defendant had failed to cut the Canada thistles growing on the farm in accordance with the terms of the lease. It will be noted that the provision of the lease requiring noxious weeds and thistles to be cut does not state when they shall be cut. For the purpose of fixing the time when defendant should have cut them, counsel for plaintiff offered the statute referred to, which requires noxious weeds to be cut on or before the first of July and again on or before the first of September. The court refused to receive the statute in evidence, but upon this phase of the case charged the jury that:

“The lease requires the noxious weeds to be cut by the defendant. Under this provision the defendant would be required to reasonably cut the noxious weeds and Canada thistles before they went to seed and so they would not injure the crops and farm. It would not require the defendant to cut every noxious weed and Canada thistle but would require the defendant to substantially cut all the noxious weeds and Canada thistles as a reasonably prudent farmer would do, and not allow them to go to seed and allow them to injure the crops and the farm.”

This, we think, satisfied the plaintiff’s contention as to the time when the weeds should be cut. But if it did not, it was the right of counsel to state to the jury what he understood the law to be on that question (Fosdick v. Van Arsdale, 74 Mich. 302; Prentis v. Bates, 93 Mich. 234 [17 L. R. A. 494]; Edwards v. Common Council of Three Rivers, 96 Mich. 625; People v. Smith, 177 Mich. 358) and make what he could out of it, by way of argument, even though the statute was not in evidence, or he could have argued to them, as the court subsequently stated, that it could be implied from the lease that the weeds were to be cut before they went to seed and before they became injurious to the crops and the farm. We see no occasion to reverse the case on this ground.

2. Plaintiff contends that he should have had a directed verdict because the uncontradicted evidence showed that defendant had breached the lease in several particulars. Chief among these.was the claim that the contract was personal and that defendant could not assign or sublet the farm to his father. We think there is no testimony that he did assign or sublet it to the father. The proofs do show that the father carried on the work on the farm while defendant was working at industrial plants in Grand Rapids and elsewhere. It is shown by the testimony of both, father and son, that after the lease was executed plaintiff inquired of defendant, who was unmarried, who was going to keep house for him and he replied that his father and mother were going to move onto the farm with him. The father testified that he advised plaintiff that he was going to work with his son. The son testified that the father advised plaintiff in that conversation that he was going to do the work in his absence, and that plaintiff stated “that would be agreeable to him.” With reference to this contention the court charged the jury that:

“If you find, by a preponderance of the evidence, that after this lease was signed that it was agreed between the parties that the father of the defendant should do the work on the farm, then it would not be necessary for the defendant to personally superintend the work on the farm, but in that case, it would be the duty of the father to substantially perform the work in a good farmerlike manner, and if he failed so to do in the particulars specified, then the defendant’s rights under the lease would be forfeited. The burden of proving that the written lease was changed after it was signed is upon the defendant.”

If the jury believed the conversation took place, which they evidently did, then plaintiff had no right to complain because defendant did not give his personal attention to the work on the farm.

It was further contended that the uncontradicted testimony showed that the Canada thistles had not been cut in accordance with the terms of the lease. It will suffice to say that.the testimony on this question was in conflict and, therefore, it was proper to submit the question to the jury. We think the question as to whether the lease was violated in these particulars, as well as in other particulars, which were pointed out on the trial, were purely questions of fact and that the court was in no error in submitting them to the jury. The conflict in the testimony was such that we cannot say that the weight- of the evidence is so overwhelmingly in plaintiff’s, favor that the verdict should be disturbed.

The judgment' of the lower court should be affirmed.

Fellows, J. The lease between the parties contains the following provision:

“The said party of the second part agrees to cut and keep down all noxious weeds and thistles.”

Section 4603, 1 Comp. Laws 1915, provides so far as important here as follows:

“It shall be the duty of every owner, possessor or occupier of land or of every person or persons, firm or corporation having charge of any lands in this State to cut or cause to be cut down and destroyed all Canada thistles, milkweed (asclepias cornutus), wild carrots, oxeye daisies, or other noxious weeds growing thereon, or on any highway passing by or through such land, at least twice in each year, once before the first day of July and again before the first day of September.” * * *

A penalty is provided for nonobservance of this provision. I am impressed that when these parties contracted upon' the subject of noxious weeds and their destruction they contracted in contemplation of this act, and that the law of the land as found in this statute became and was a part of the contract. In other words, that when defendant contracted to cut the noxious weeds and thistles he contracted to cut them when the law required them to be cut. If there was no statute on the subject no doubt the instruction of the trial judge would have been correct upon the theory that no time having been fixed by the contract for the cutting of the noxious weeds, a reasonable time would be implied. But where the legislature has fixed the time for cutting noxious weeds I do not think a jury should be permitted to fix another and different time as the reasonable time for the performance of that act. Nor am I persuaded that plaintiff’s counsel would have been justified in arguing to the jury that the statutory time for cutting weeds should prevail when the court had denied the applicability of the statute and refused to consider it.

Otherwise I agree with Chief Justice Bird. I think . for this erroneous view of the trial judge as to the applicability of the statute the .case should be reversed.

Plaintiff will recover costs of this court. A new trial will Be granted.

Ostrander, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred with Fellows, J.


author: Moore, J.

text:
    TERRILL v. MICHIGAN UNITED TRACTION CO.
    1. Carriers — Street Railways — Personal Injuries — Negligence.
    In the case of street car companies having regular stations at which the cars are in the habit of stopping for persons to get on and off, the same rule applies as in the case of railroad trains, and a passenger, while not absolved from the duty of exercising care for his safety, has the right to assume that tracks intervening between the place where he alights and the station will be kept safe while he is crossing, and the mere fact that he fails to look and listen before attempting to cross such tracks does not, as a matter of law, constitute contributory negligence.
    2. Same — Trial—Instructions.
    Where plaintiff was struck and injured by defendant’s eastbound street car when she attempted to cross the south track to reach its station, maintained in the middle of the block, after alighting from a west-bound car, the court below was in error in his instructions to the jury in limiting the question of defendant’s negligence to whether proper warning signals of the approach of the car had been given.
    See notes in 13 L. R. A. (N. S.) 620; 15 L. R. A. (N. S.) 254; 23 L. R. A. (N. S.) 1224; 27 L. R. A. (N. S.) 128; 31 L. R. A. (N. S.) 338.
    Error to Ingham; Wiest, J.
    Submitted February 4, 1919.
    (Docket No. 8.)
    Decided April 3, 1919.
    Rehearing denied June 13, 1919.
    Case by Lenora Terrill against the Michigan United Traction Company for personal injuries. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Warner & Raudabaugh and Kelley, Brown & Boice, for appellant.

      Sanford W. Ladd (Warren, Cady, Ladd & Hill, of counsel), for appellee.
   Moore, J.

We quote sufficiently from the charge of the lower court to indicate what this litigation is about:

“The plaintiff in this case is a married woman and in June, 1915, she resided with her husband in the city of East Lansing; and she claims that on the evening of that day she had occasion to visit the city of Lansing, together with her daughter and husband; that in order to get to Lansing she boarded one of the defendant’s street cars to be carried to Lansing, together with her daughter and her husband, and it was arranged between them, that is, between the plaintiff and her daughter and the husband that they should get off at the interurban station on Michigan avenue east, and there the husband should later join them, that is, join the plaintiff and her daughter. She claims that when the car reached the interurban station in the city of Lansing, it came to a stop and that together with her daughter she alighted from the car upon the street, that another car pulled up and stopped within four or five feet of the rear of the car from which she alighted. That she then started to go between the two cars and across the south track of the defendant railway company to get to the interurban station, and that while she was passing between the two cars an employee of the defendant company upon the car that had stopped just back of the car from which she alighted, suddenly called to her, ‘look out,’ that it startled her and apprehending some danger from the position she then occupied, she stepped hurriedly to the south, and was then struck by another car of the defendant company proceeding east along the south track. * * *
“It may be well at this point to briefly state to you the right of the plaintiff to be upon the public street, and also the right of the defendant to operate its cars over the public street.
“When the plaintiff was carried by the defendant company to the interurban station or opposite the station where the cars stopped in the street, immediately upon her alighting from the car, she ceased to be a passenger of the defendant company. And from that moment, that is, from the time she alighted from the car it was her duty to have in mind the matter of her own safety and to bring to bear upon that matter such degree of care and caution as an ordinarily prudent person would bring under the same circumstances.
“Now having alighted from the car it was her duty to observe the conditions surrounding her, to make observation of what she ought to do with reference to her own safety. There was no obligation resting upon the defendant to save her from her own want of care. * * * Now what was the right and duty and obligation of the defendant in the premises? The defendant company had a right to maintain its tracks and operate its cars over the same upon the street in question. It had a right to maintain two tracks upon one of which eárs might run to the west, and upon the other'to the east, but in operating its cars, it should have in mind and it was its duty to have in mind the other uses made as well of the public highway. It had a right to maintain its passenger station in the middle of the block, and to stop, its cars in the middle of the block so that passengers might alight and go to the station if they cared. But in stopping its cars and permitting passengers to alight and go to the station if they saw fit and to operate their cars along the other track while passengers were alighting from the north track, it was the duty of the defendant to have the user of the street by such passengers alighting in mind, and to operate their cars with a reasonable degree of care. The defendant company had a right to operate the open cars, and the mere width of the cars has nothing to do with the issue in this case so far as negligence is. concerned.
“Now having in mind the rights of the plaintiff and of the defendant the plaintiff claims the defendant did not observe its obligation towards her in the use it made of the street. In other words, that it was guilty of negligence. * * *
“So in this case the negligence alleged and for your consideration is. that of whether the defendant company operated its east bound car over the south track at the time the plaintiff was passing between the two cars on the north track, whether it operated its east bound car down to the point where parties might pass between such cars and go to the interurban station without sounding a warning of the approach of such car.
“I say to you now, it was the duty of the defendant to give warning by sounding a gong or bell of the approach of the car upon the south bound track at the point in question.
“Now the plaintiff alleges that such warning was not given, that is the allegation. She also claims the car was not operated with the proper degree of care upon approaching the point in question. That is such an indefinite allegation of negligence that I have considered it as not necessary to be submitted to you.
“So we then come to the one question of negligence alleged, that is that the car came east on the south track without giving warning of its approach to the point in question.
“Now upon that the burden rests upon the plaintiff to satisfy you by a preponderance of the evidence that no warning was given. You have heard her evidence, her testimony, she says she heard no warning. It was not necessary that the defendant give a warning that she should hear. Do not misunderstand this issue — it is not that she must have heard the warning —that is not the issue. The issue is, Was a warning given by the ringing of the bell or the sounding of a gong? * * *"
“Now let me make that plain to you. You will first take up the issue of whether there was a warning given of the approach of the car on the south track. If the testimony is left so you cannot say whether there was a warning given or not, then of course you cannot find affirmatively that there was no warning given. Therefore you could not find that the defendant was negligent. If you find there was a warning given, then you have reached a finding the defendant was not negligent. If having in mind all of the evidence you find that no warning was given, then there was want of due care' on the part of the defendant company, and you would come to the consideration "of other issues.”

The jury after being out for a time came in for further instructions which were given them, and later returned a verdict in favor of the defendant. The case is brought here by writ of error.

Counsel say the court was wrong in limiting the jury as he did upon the question of the negligence of defendant, and call attention to the following among other allegations of negligence in their declaration:

“(c) That it was negligent in running one of its cars past another car that was standing at its waiting room for the purpose of discharging passengers, without having that car under such control that it could stop it upon the appearance of danger.
“(d) That it was negligent in so running its cars past another car that was standing for the purpose of discharging passengers, as aforesaid, without giving signals of its approach, such as ringing a gong or bell or other signal such as. are usually given to protect travelers. * * *
“(g) That said defendant was negligent in not protecting plaintiff, one of its passengers, who had been discharged from one of its cars, from danger and injury of other cars of said defendant while plaintiff was going from said car to the waiting room or depot of said defendant.”

It is claimed all these averments of negligence except those contained in subdivision (d) were taken from the jury and that the charge to the jury in relation to that subdivision was erroneous.

The relative duties, of passengers alighting from street cars at street crossings, and the railway are pretty well understood in this State, but we cannot recall that any case has been before this court involving such a situation as that presented in the instant case. The authorities cited by counsel in their briefs are not controlling in this case and it is not likely the trial court had his attention called to any authority on all fours with the case before us.

The case is unlike Clark v. Railway, 168 Mich. 457, and Davis v. Railway Co., 191 Mich. 131. In each of those cases the passenger alighted at a street corner where the cars did not stop except when signalled by a person desiring to leave the car, or to get upon it. In the case before us the passenger alighted at a regular station of the company in the middle of the block where all cars were bound to stop, and where a number of persons were leaving the cars and going to the station, as was the plaintiff, and others were going from the station to the cars for the purpose of entering therein. It is evident that the duties of an .interurban railway toward passengers alighting in the middle of a block in a congested street at one of its permanent stations is quite different from its duty to a passenger alighting at an ordinary street crossing.

In volume 4, Ruling Case Law, p. 1253, it is said:

“When a railroad company stops a passenger train where other tracks are between it and the depot platform, the rights of people having business with such train and the duty of the company toward them are the same as if all the intervening space between the depot and the train constituted the platform, and it is negligence on its part to allow another train to run between the passenger train and the station at which the passengers are being taken on or discharged. * * *
“In the case of the street car companies having regular stations at which the cars are in the habit of stopping for persons to get on and off, the same rule applies as in the case of railroad trains, and a passenger, while not absolved from the duty of exercising care for his safety, has the right to assume that tracks intervening between the place where he alights and the station will be kept safe while he is crossing, and the mere fact that he fails to look and listen before attempting to cross such tracks does not, as a matter of law, constitute contributory negligence.”

We think this a correct statement of the law.

The ease is reversed and a new trial ordered, with costs to the plaintiff.

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