text:
    SCHMIDT v. STEINBACH. SCHMIDT v. SCHENK.
    1. Fraudulent Conveyances — Contracts—Consideration—Trust.
    A contract to care for the mother of the grantor in a deed, undertaken and in part carried out hy the promisor, was sufficient to support a conveyance from one brother to another of the interest of the former in his deceased father’s estate, as against creditors of the transferror. It was not such an agreement as would create a trust or secret agreement ¿hat could be attacked by said creditors.
    2. Same — Bill to Quiet Title — Parties.
    And the grantee was not entitled, until he had completed his contract, to assert his rights hy the commencement of a suit to clear his title against creditors that had levied execution on the legal title of the debtor.
    3. Same — Vendor and Purchaser.
    In such a case the legal title remained in the grantor subject to the contract right of the brother and was liable to execution sale.
    4. Same — Notice oe Levy — Statutes.
    The levy is by statute given priority over all prior grantees, mortgagees and others of whose claims the judgment creditor shall not have actual or constructive notice. And occupancy sufficiently puts the levying creditor on such notice. Act No. 227, Pub. Acts 1889, 3 Comp. Laws 1915, § 12898.
    Appeal from Washtenaw; Kinne, J.
    Submitted October 9, 1916.
    (Docket Nos. 74, 75.)
    Decided December 21, 1916.
    Separate bills by George A. Schmidt against Jacob Steinbach and William P. Schenk to remove clouds upon the title to land. From a decree dismissing the bills, complainant appeals.
    Affirmed.

      A. F. Freeman (B. M. Thompson, of counsel), for complainant.

      Stivers •& Kalmbaeh (Roseoe O. Bonisteel, of counsel) , for defendant Steinbach.

      Otto E. Haab, for defendant Schenk.
   Stone, C. J.

These cases were heard and considered together, the evidence applying to both cases, in so far as applicable. The bills of complaint were filed to remove clouds upon the title of the plaintiff in and to the east half of the southeast quarter of section 16, in the township of Bridgewater, Washtenaw county.

It appears undisputed that, in 1876, George Schmidt, the father of the plaintiff, died intestate, owning the above-described premises, constituting his farm, and leaving a widow, a daughter, and his two sons, George A. Schmidt, who is the plaintiff in these cases, and his brother, Henry W. Schmidt, as his heirs at law. Administration was delayed for a time, and it was some 5 years after Mr. Schmidt’s death when it was had, and, in 1885, the estate was closed and the property decreed by the probate court to the said three children, subject to the dower interest of the widow. It is the claim of the plaintiff that in 1892, about the time he became 21 years of age (his brother, Henry, being some 7 years older) the children and mother all met together at the farm, and it was then and there verbally agreed between Henry and the plaintiff that Henry should surrender and grant to the plaintiff all of his interest as heir at law of their father in said farm, upon the terms and conditions that the plaintiff should enter upon the farm, put it in proper condition, work the same (it being the claim of the plaintiff that it was then considerably dilapidated and fun down), and take care of the mother and sister during their respective lives, and that he, the plaintiff, should have Henry’s interest in the farm. It is the further claim of the plaintiff that he agreed to this proposition, and entered into such agreement and upon the perform^ anee of the contract, and has ever since continued in possession of the farm and to care for his mother and sister, and that Henry has never since claimed any interest in the farm, but has practiced his profession of a physician at Chelsea, in said county, during all the years since 1892. The circuit judge, who heard and saw all of the witnesses in the cases (with the exception of one absent witness who made deposition), found that the parties named made an agreement such as is claimed by the plaintiff, and in the manner substantially as stated in the bills of complaint. It is undisputed that during all of the years that have intervened since 1892, the plaintiff has continued to possess, occupy, and operate the farm, and that he, with his mother and sister, have constituted the family; neither he nor his sister having ever married. The .evidence is also undisputed that at the time of this claimed arrangement and agreement Henry was not indebted to any persons, and no part of the indebtedness which is hereafter mentioned had at that time accrued. It does appear, however, that a short time prior to the levy of the executions, which we shall later refer to, a judgment was obtained against Henry by defendant William P. Schenk for $300 and costs, and execution issuing thereupon was levied upon the premises on the 30th day of June, 1914, upon “the said right, title and interest of said Henry W. Schmidt in and to said lands (describing them), being estimated as a one-third interest”; also the sheriff filed a certificate of levy under said execution in the office of the register of deeds of said county upon the same day. It also appears that a judgment was obtained by the defendant Jacob Steinbach against Henry for $479.92 and costs, and execution issuing thereupon was levied upon the same premises on the 15th day of July, 1914, the interest being described in the same manner, and a certificate of levy was duly filed with the register of deeds in that case. Upon learning that such levies had been made, the brother, Henry W., and his wife gave to the plaintiff a quitclaim deed of the premises, bearing date August 7, 1914, and the bills were filed in these cases August 15, 1914. The learned circuit judge, while he found that the parties named made an agreement such as is claimed by the plaintiff in the cases, was of the opinion that the cases were ruled and controlled by First National Bank v. Phillpotts, 155 Mich. 331 (119 N. W. 1), and he added:

“I am still of the opinion that the alleged surrender of the interest of the • brother to the complainant, whether intentional or otherwise, operated as a secret trust, and as to the creditors of Henry W. Schmidt was fraudulent”

—and dismissed the bills of complaint. The plaintiff has appealed.

We have examined the Phillpotts Case with a great deal of care, and are of the opinion that it is not controlling in these cases. No question of possession entered into the consideration of the Phillpotts Case. Here it is undisputed that the plaintiff has, at all times since 1892, been in possession of the premises, and has been proceeding to carry out the contract made with his brother, and we have no doubt that, when that contract is fully performed by him, if it ever is, it will be in the power of a court of chancery to compel the specific performance of said agreement, thus taking the cases out of the statute of frauds.

It is equally true that the legal title of the undivided one-third part of said premises, subject to the widow’s right of dower, is still in Henry, and that such legal title is subject to levy by execution. The plaintiff is at present in no condition to file a bill for specific performance of said contract with Henry, because he has not fully performed the same. There cannot be specific performance at the present time because the period for performance has not yet arrived. But, in our opinion, he is entitled to protection under his contract, and any sale of the premises under the executions must necessarily be subject to the contract rights of the plaintiff. The distinction between the levy of attachments and of executions should be borne in mind. Our present statute (4 How. Stat. [2d Ed.] § 11386, 3 Comp. Laws 1915, § 12898), relating to the levy of executions, provides for the filing of a notice of levy with the register of deeds, and further provides that upon said notice being filed, such levy shall be a lien thereon from the time that such notice shall be deposited, and—

““the lien thus obtained, shall, from the filing of said .notice, be valid against all prior grantees and [mortgagees] mortgages of whose claims the party interested shall not have actual nor constructive notice.”

The purpose of the amendment of our statute in 1889 (Pub. Acts 1889, Act No. 227) was to change the rule which had previously existed, and to give a levy under an execution the same priority accorded to a conveyance duly recorded. Campbell v. Keys, 130 Mich. 127 (89 N. W. 720); First National Bank v. State Savings Bank, 130 Mich. 332 (89 N. W. 941); Gardner v. Mason, 130 Mich. 436 (90 N. W. 28).

Much stress is laid by plaintiff’s counsel upon the fact that the plaintiff was in the actual possession of the lands in question at the time the levies of execution were made. Many cases are cited, including the following: McKee v. Wilcox, 11 Mich. 358 (83 Am. Dec. 743); Woodward v. Clark, 15 Mich. 104-112; Converse v. Blumrich, 14 Mich. 109-120 (90 Am. Dec. 230); Russell v. Sweezey, 22 Mich. 235-239; Dunks v. Fuller, 32 Mich. 242; Hommel v. Devinney, 39 Mich. 522; Seager v. Cooley, 44 Mich. 14 (5 N. W. 1058); Michie v. Ellair, 54 Mich. 518 (20 N. W. 564); Weisberger v. Wisner, 55 Mich. 246 (21 N. W. 331); Stevens v. Castel, 63 Mich. 111-120 (29 N. W. 828); Schweiss v. Woodruff, 73 Mich. 473-477 (41 N. W. 511); Moore v. Township of Kenockee, 75 Mich. 332-341 (42 N. W. 944, 4 L. R. A. 555); Lambert v. Weber, 83 Mich. 395-404 (47 N. W. 251); Corey v. Smalley, 106 Mich. 257-260 (64 N. W. 13, 58 Am. St. Rep. 474); Brady v. Sloman, 156 Mich. 423 (120 N. W. 795). Most of the above-cited cases, while stating the general doctrine, were not cases in which the party in possession was a tenant in common. The precise, question here is whether such possession by plaintiff, a tenant in common, was notice of any more than his record title, as shown by the proceedings in the probate court.

In the case of Weisberger v. Wisner, supra, the question involved the rights of a tenant in common. In that case Wisner, in addition to the deeds which made him legal owner of an undivided three-fourths of the premises involved, had a contract which was perfectly legal and binding, and under which he was to become entitled, when he made certain payments, to a deed of the other one-fourth. With the record in that condition, Chief Justice Cooley, in that case, said:

“If Wisner had held a deed of the remaining interest in the land which then appeared to stand in Muzzy, we see no reason why his possession should not have been constructive notice of it. It is true, as complainant says, that the possession was not apparently inconsistent with the record title; but this may be said in any ease. It is possible that any possession may be that of a licensee or otherwise subordinate to the record title; and if that were sufficient reason for holding that the possession is no notice of actual rights, the principle on which decisions have been made, giving protection to occupants, would have very limited application.
“If Wisner had held no deed of an interest in the land, but had been in possession under a contract of purchase, the possession would indisputably have been notice of his rights. Why it should be any less so when his title has been in part completed by conveyances is not apparent. The conveyances, one would think, ought to fortify and strengthen his equities, instead of weakening and putting them in danger. It seems to be unquestionable that Wisner occupied exclusively, and White would have learned this fact on inquiry. No reason is apparent why he should not have been held bound to inquire, as much in this case as in any other. See Hardy v. Summers, 10 Gill & J. (Md.) 316 (32 Am. Dec. 167), in which, upon similar facts, the possession was held to give notice.”

This case was cited in Corey v. Smalley, supra. See, also, 27 Cyc. p. 1189 and 38 Cyc. p. 74, where it is said:

“It has been held that the possession of a cotenant is ordinarily notice to a purchaser of the whole interest that such cotenant may . have in the estate,” citing English cases.

We think that the weight of authority is in favor of the proposition that the actual possession or occupancy of land by a tenant in common is sufficient to put another upon inquiry, and that such other is chargeable with a knowledge of all the facts which he might have learned by making such inquiry of the party in possession. However, the plaintiff is not entitled to relief under his bills of complaint in any view of the subject, because the legal title to this land stood, at the time of the levies, in Henry, and such title was liable to levy upon execution, subject to the rights of the plaintiff who was in possession, but any sale of Henry’s legal title must be held to be in subordination to the rights of the plaintiff under his contract in said land; and the rights of the plaintiff, so long as he continues to perform the contract, cannot be disturbed by the purchaser of the legal title standing in Henry’s name.

Notwithstanding the quitclaim deed of Henry and wife to the plaintiff, made after the levies, the position and standing of the plaintiff in these suits, relating to Henry’s interest in the farm, are no better than they were when the levies were made, and are the same as though Henry had deeded to the defendants at the time of the respective levies. Such deeds, had they been made, would have been subject to the plaintiff’s equities, whatever they were.

The bills of complaint must therefore be dismissed, but without prejudice to the rights of the plaintiff to protect his possession and occupancy of the premises until such time as his equitable interest or title shall entitle him to specific performance of the said contract. The bills of complaint will therefore be dismissed, and the decrees below affirmed, with costs to the defendants.

Kuhn, Ostrander, Moore, Steere, and Brooke, JJ., concurred. Bird and Person, JJ., did not sit.


source: Caselaw Access Project

author: Stone, C. J.

license: Public Domain

text:
    PATRONS’ MUTUAL FIRE INSURANCE CO. v. BUTLER.
    1. Insurance — Mutual Policy — Benefit Associations — Cancellation — Dues.
    Where defendant surrendered a certificate of fire insurance in a mutual benefit corporation, and the secretary-canceled her policy, she was liable for the amount of her pro rata share of the losses and expenses during the period from the last assessment to the time of cancellation, and, on the trial of an action for the alleged indebtedness, the insurer was entitled to a finding that the sum in question became payable immediately on the receipt of her request for cancellation, and “that it was not necessary for the company to make an assessment roll and place thereon the members of plaintiff company” before it could recover.

    2. Same.
    The member withdrawing is obligated to pay, not only all regular assessments outstanding against him, but also all other sums that might lawfully be made the subject of assessment at the time of surrender, and it is payable at once on ascertainment.
    3. Evidence — Conclusion—Amount Due — Proof.
    Testimony of the secretary that a sum named by him was due from defendant and that it was her ratable proportion of the assessment made a prima facie case.
    Error to Arenac; Sharpe, J.
    Submitted October 5, 1916.
    (Docket No. 45.)
    Decided December 21, 1916.
    Assumpsit in justice’s court by the Patrons’ Mutual Fire Insurance Company of Michigan, Limited, against Mrs. George Butler for assessments due on' a policy of insurance. From a default judgment for plaintiff, defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.
    Reversed.

      G. C. Leibmnd, for appellant.

      R. J. Crandell, for appellee.

      Authorities passing on the question of rescission or cancellation of contract by mutual fire insurance company, are collected in a note in 32 L. R. A. 492.

   Stone, C. J.

This action was brought to recover from defendant her pro rata, portion of losses and expenses of plaintiff from August 1, 1910, the date of the last assessment, to April 21, 1911, the date when her policy was canceled. Plaintiff is a domestic mutual farmers’ fire insurance corporation. On August 31, 1909, defendant made a written application for insurance in plaintiff company. On that application the company issued to the defendant a policy on September 17, 1909. The articles of association and bylaws of the company were printed on the policy, and were a part of the policy contract. On April 21, 1911, defendant sent her policy to the secretary of the plaintiff company, with a request for its cancellation, and it was canceled on that date. Defendant had paid all amounts due on her policy for the losses and expenses of the company to the date of the 1910 assessment roll, which was August 1, 1910. At the time defendant sent in her policy for cancellation the secretary of the company computed her share of the losses and expenses of the company from the date of the 1910 assessment roll, to the date when she sent in her policy for cancellation, and found it to be $10.22. This amount was ratable with all other members of the company covering the same period of time; and the secretary notified defendant of the amount due when she sent in her policy for cancellation. No assessment roll was made at that time. For this amount defendant’s name did not appear on the 1911 assessment roll, or on any other roll until her name appeared on the 1914 delinquent roll along with other persons who had ceased to be members, but who, it was claimed, were owing the company, and whose policies had been canceled between regular assessment periods. The casé was tried in the circuit court by the court without a jury, and, upon written request, findings of fact and law were made by the court. Upon the trial the application and policy were received in evidence.

E. A. Holden, the secretary and treasurer of the company, was sworn as a witness. He testified, in substance, that the policy in question was sent to his office by defendant for cancellation, and canceled on her request on the 21st day of April, 1911; that the 1910 assessment against defendant was paid by her, but that there was due the company from defendant, at the time of the cancellation, her share of the losses and expenses from the date of that assessment roll, August 1, 1910, to the date of cancellation, April 21, 1911, $10.22, and that that amount appeared on the assessment roll, known as the “delinquent assessment roll” of 1914, the amount there appearing being $10.22. He further testified as follows.:

“That is not a full year’s assessment, just up to the date of cancellation. The amount assessed against Mrs. Butler on that roll is ratable with all other members of the company covering the same period of time. The amount now due is $12.72.”

On cross-examination he testified that the company notified the defendant how much was due at the time she sent the policy in for cancellation; and he further testified, in answer to the following question, as follows:

“Q. I asked you if you let the policies run after cancellation for two or three years before you make the assessment?
“A. Well, we notify them the amount due at the time of cancellation. We don’t levy the assessment roll. We make the computation at the time the best we can compute it at that time when they send it in. Then we dun them two or three times, and if they don’t pay—
“Q. Then you make a new assessment roll covering these items?
“A. We make the assessment roll.
“Q. Covering these items?
“A. Yes.”

Section 19 of the by-laws of the company reads as follows:

“Any policy of insurance written by this company may be canceled by the holder thereof by surrendering the same to the secretary of the company for cancellation and by payment of the assessments and obligations as provided in the constitution and by-laws of said company, to the time of such cancellation.”

In its finding of fact the court made no reference to the uncontradicted testimony of the secretary as above set forth, nor to the facts testified to by him, but did find that:

“To prove the amount due by her to the company the plaintiff put in evidence what was called the ‘delinquent roll,’ ” and described the contents of such roll.

In its conclusions of law, the trial court found that:

“Sufficient proof was not offered of a valid assessment on the delinquent roll to render defendant liable to pay the same. While I do not conclude that plaintiff’s books must be produced, I am of the opinion that the assessment roll must inform the members charged thereon of the total of the losses which have been sustained, and the expenses and liabilities included therein, which it is sought to make the defendant pay, in order that she may see that she has been ratably assessed.”

And the court directed a judgment for the defendant to be entered. The plaintiff duly excepted to the findings of fact and conclusions of law, and proposed the following amendment to the finding of facts, so that such finding should read as follows:

“On April 21, 1911, defendant surrendered her policy to the secretary of plaintiff company with request for cancellation. The officers of the company canceled her policy on that date. The secretary of the plaintiff company computed the amount due and owing by defendant for her share of the losses and expenses of the company from August 1, 1910 (to which date her last paid assessment extended), to April 21, 1911, the date of the cancellation of her policy, found the same to be $10.22, and notified Mrs. Butler of such indebtedness. The amount, never having been paid, was included in the delinquent assessment roll made December 24, 1914, at the same amount of $10.22. This principal, together with 5 per cent, per annum interest from the date of the cancellation of the policy, April 21,1911, to the date of the trial, March 13, 1916, amounts to $12.72 at the date of the trial.”

Plaintiff also proposed amendments to the conclusions of law, so that the same should read as follows:

“The undisputed testimony shows that defendant’s policy was canceled at her request upon being surrendered by her to the secretary of the company on April 21, 1911, and that there was due and payable at that time by the defendant for the losses and expenses of the company from August 1, 1910, to April 21, 1911 (the date of the cancellation of her policy) $10.22, of which she was notified by the secretary of plaintiff company.
“That the amount of $10.22 became immediately due and payable by the defendant to the plaintiff, upon the surrender of her policy, with her request for cancellation; that it was not necessary for the company to make an assessment roll and place thereon all the members of plaintiff company, together with defendant, before a liquidated indebtedness by the defendant to the plaintiff was established; that the computation of the defendant’s share of the losses and expenses of the company, from the time at which the last assessment (August 1, 1910) had satisfied the obligations of the company, to the cancellation of the policy (April 21, 1911) by the secretary of the plaintiff company is conclusive and binding on the defendant, in the absence of any objection by her that such computation was not correct. * * *
“I further find that the oral testimony of Mr. Holden, secretary of plaintiff company, as to the amount owing by the defendant at the date of the cancellation of her policy, was properly admitted, and is evidence of the indebtedness of the defendant to the plaintiff.”

A further conclusion of law was proposed by the plaintiff, to the effect that the plaintiff was entitled to recover the sum of $10.22, with interest at 5 per cent, from April 21, 1911, to the date of the trial.

The proposed amendments were all refused by the court, to which plaintiff duly excepted. A judgment having been entered for the defendant, the plaintiff has brought the case here by writ of error, and the assignments of error fairly raise the question whether the plaintiff made a prima facie case at the circuit. We agree with the trial court that the “delinquent assessment roll,” so called, did not, of itself, entitle the plaintiff to recover. Nor do we think that an assessment roll was essential to plaintiff’s recovery. It is manifest that upon surrender and cancellation of defendant’s policy, it became her duty to pay “the. assessments and obligations” as provided in the bylaw above set forth. The assessments had all been paid, but she was under obligation to pay her ratable share of losses and expenses incurred between the date of the last assessment and the cancellation of the policy. That amount had been computed, and the amount stated in the “delinquent roll.” It might have appeared in any other statement, or in none. The secretary had testified that:

“The amount assessed against Mrs. Butler on that roll is ratable with all other members of the company covering the same period of time. The amount now due is $12.72.”

If defendant was not satisfied with this testimony, she might well have cross-examined him upon that subject. It would seem that the basis of such statement must have been accessible to the secretary, and the manner of computation readily explained by him. With the records required to be kept, by the articles of association and the by-laws, the membership of the company and the amount of insurance carried at the date of cancellation must have been ascertainable; also the amount of losses and expenses incurred since the date of the last assessment. We are of opinion that defendant was legally liable to pay this obligation upon the cancellation of her policy, on demand.

We think that too much stress was laid upon the “delinquent roll,” and too little upon the testimony of the secretary by the trial court, and that the plaintiff made a prima facie case upon the trial.

We think that our decisions are to the effect that upon the surrender of a policy, by á withdrawing member, he must pay, not only all regular assessments outstanding against him, but also all other obligations that might lawfully be made the subject of assessment at the time of surrender, and that this amount is payable at once upon ascertainment. Ionia, etc., Ins. Co. v. Otto, 96 Mich. 558 (56 N. W. 88); Ionia, etc., Ins. Co. v. Ionia Circuit Judge, 100 Mich. 606-610 (59 N. W. 250, 32 L. R. A. 481); Peake v. Yule, 123 Mich. 675-680 (82 N. W. 514).

“The principle deducible is that a member cannot, by a surrender, escape liability for such obligations as might lawfully be made the subject of assessment at the time of his surrender.” Ionia, etc., Ins. Co. v. Otto, supra.

In our opinion- the plaintiff was entitled to the finding of fact proposed, as above indicated, as well as to the conclusion of law asked for, and that the trial court erred in entering judgment for the defendant, upon the record as made.

The judgment below will be reversed, and a new trial granted, with costs to appellant.

Kuhn, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


text:
    COLE v. COLE.
    1. Divorce — Extreme Cruelty — Profane or Obscene Language.
    Evidence in a suit for divorce held, to sustain a decree for plaintiff on the grounds of extreme cruelty and profanity in the presence of the wife and children.
    2. Same — Prosecuting Attorney — Appearance.
    Failure to serve a subpoena on the prosecuting attorney and his non-appearance in court did not affect the jurisdiction and were mere irregularities.
    3. Same — Amendment—Discretionary Power.
    A wide discretion is vested in courts of chancery to allow amendments to a bill to conform to the proofs taken.

      4. Same — Evidence.
    And, held, that such discretion was not abused in refusing defendant’s request to open the ease for further proofs, on the showing made, under Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 12478.
    5. Same — Bill for Separate Maintenance — Absolute Divorce— Power of Court.
    Under Act No. 324, Pub. Acts 1907, the court did not err in granting a decree of absolute divorce, upon testimony which entitled plaintiff to the same, and that, though the prayer was for separate maintenance, no reference being made in the pleadings to 3 Comp. Laws 1915, § 11399. The subject is one for the discretion of the court below.
    Appeal from Wayne; Perkins, J., presiding.
    Submitted October 17, 1916.
    (Docket No. 132.)
    Decided December 21, 1916.
    Bill by Julia Cole against Charles W. Cole for separate maintenance and alimony. From a decree for complainant, defendant appeals.
    Modified and decree for absolute divorce entered.

      William Van Dyke, for complainant.

      Bennett & Miller, for defendant.
   Stone, C. J.

The original bill of complaint in this case was filed to obtain a decree for a “separate maintenance from the bed and board of the defendant,” for the custody of three minor children of the parties, for alimony, and that certain real estate of the parties be “set off and aside as the separate property” of the plaintiff, as part of the provision for her separate maintenance. The grounds for the decree, as stated in the original bill, were as follows:

“That said Charles W. Cole has become an habitual drunkard since the marriage herein set forth, and is so habitually addicted to the use of intoxicating liquors that he can no longer resist, and is drunk and under the influence nearly every day, and while in such condition is irresponsible and abusive; that said Charles W. Cole, being of sufficient ability so to do, now fails and neglects and refuses to provide any money for the support of your oratrix and said children.”

The answer, contained a specific denial of the grounds stated in the bill, charged the plaintiff with extreme cruelty, and prayed the benefit of a cross-bill, and that defendant be- granted an absolute divorce. Upon the hearing there was testimony of extreme cruelty on the part of defendant toward plaintiff, and defendant gave testimony tending to deny the same. At the close of the evidence, it was urged by defendant’s counsel that the bill of complaint did not charge extreme cruelty. Thereupon, the plaintiff was granted leave to file an amended bill of complaint, charging extreme cruelty to conform with the testimony upon that subject. An amended bill was filed and sworn to by plaintiff. It contained the following additional allegation:

“That said Charles W. Cole has used personal violence towards plaintiff; abuses, annoys, nags her, and is continually complaining without cause of the household affairs; is constantly quarrelsome and nagging; uses vile language, curses, and swears at plaintiff in the presence of their children — all of such treatment constituting extreme and repeated cruelty toward plaintiff.”

Thereupon the defendant answered the amended bill, and moved the court for an order opening the proofs and permitting additional testimony upon the subject of cruelty. The application did not state any proposed new testimony, and the court refused to open the case, holding that the subject, upon its merits, had been fully gone into upon the hearing.

A decree was entered in the court below, stating that the material averments in the bill of complaint were true, and particularly that the defendant had been guilty of extreme and repeated cruelty toward plaintiff, and that she was entitled to relief. It further ordered and decreed that the plaintiff was entitled to separate maintenance from the defendant, and that she be allowed, and defendant should pay to her, the sum of $16 per month for the support of herself and the younger children, to wit, Adeline Cole and Helen Cole, until the older of said children should attain the age of 21 years, die, be married, or become self-supporting, when said sum should be reduced to $8 for the support of the younger of said children, and until she should attain the age of 21 years, die, be married, or become self-supporting; and further providing that, if either of said children should die under age then the said sum should be reduced to $8, and if both should die no further payments should be made; and providing that said sum should be paid to the register in chancery on the first day of each and every month thereafter, the first payment to cover the month of February, 1916. The decree further gave the plaintiff the custody of the minor children of the parties. It further adjudged that the use, occupancy, and possession of the real estate of the parties as described in the bill of complaint, and known as 1429 Chene street in the city of Detroit, 28 Warsaw Place in the city of Detroit, and 1401 Harper avenue in the township of Hamtramck, “because of the extreme cruelty aforesaid and his neglect to support the said Julia Cole and the children aforesaid, be allotted, assigned, set apart and decreed to her as alimony for her support, and its possession and control to her awarded, such allotment order and setting aside being during the joint lives of the said parties, or until further order of this court”; providing that said plaintiff should maintain said properties and keep up payments, interest, taxes, and assessments upon the same, and keep the same reasonably insured against fire.

The cross-bill in defendant’s answer was dismissed without prejudice to the right of defendant, in the event of cause for divorce arising subsequent to the decree. The defendant has appealed from this decree. He makes objection to the proceedings as follows:

(1) There was no appearance by the prosecuting attorney to represent the people in this litigation, although there were two minor children of tender age.

(2) The petition contained no charge of extreme cruelty, merely abuses while under the influence of liquor.

(3) An amended petition averred extreme cruelty, was answered under oath by permission of the court, but permission to present proofs in support of this answer was denied the defendant.

(4) That the sole cause clearly set out in the original petition, namely, drunkenness, was not shown by any evidence upon the hearing.

The serious objection, however, that is urged by counsel for defendant, is that there should have been a decree of absolute divorce granted by the court below.

A careful perusal of the record shows that there was ample testimony on behalf of the plaintiff of extreme cruelty by the defendant, consisting not only of personal violence, destruction of furniture and household goods, but also of profane and obscene language in the presence of plaintiff and her children. We are of opinion that the evidence was such as to justify the court in finding that a cause for divorce had been established by the plaintiff’s testimony, and we are not disturbing the finding of the court upon that question.

There is abundant proof to show that these parties have become so estranged that it will be impossible for them to assume their relations as husband and wife. As was said by this court in Utley v. Utley, 155 Mich. 258 (118 N. W. 932):

“We agree with the learned circuit judge in finding that the charges of cruelty are sustained. These are charges of personal violence and of threats to do complainant personal injury, the effects of which are to make her nervous and constantly afraid. We are impressed that the parties should be relieved entirely of the relations entered upon with their marriage, and that a- disposition of the property should be made which will render personal relations of any kind unnecessary and unlikely to occur.”

Referring to the matters of practice complained of by defendant’s counsel, we are of the opinion that the failure to serve the subpoena on the prosecuting attorney, and his nonappearance in the case, did not affect the jurisdiction of the court, and were mere irregularities; and, it appearing that the interests of the children have been fully protected, the decree should not be disturbed for those reasons.

We have no doubt of the power of the court below to permit the filing of the amended bill of complaint. A wide discretion is vested in courts of chancery to allow amendments to a bill to conform to the proofs taken. Babcock v. Twist, 19 Mich. 516; Church v. Holcomb, 45 Mich. 29 (7 N. W. 167); Dodson v. McKelvey, 93 Mich. 263 (53 N. W. 517). See, also, chapter 16, § 1, judicature act, Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 12478). The record shows that the subject of extreme cruelty had been fully gone'into by both parties upon the hearing, and we think that there was no abuse of discretion on the part of the court in refusing to open the case for further proofs, upon the showing made.

An important question in the case is whether this court has the power to grant an absolute divorce herein, and that depends upon whether this bill can be said to have been filed under section 8686, 3 Comp. Laws, 3 Comp. Laws 1915, § 11479. That was an act passed in 1889, and was entitled:

“An act to provide wives with property and maintenance from their husbands’ estates when neglected or deserted by them, or when the husband has become an habitual drunkard or has practiced extreme cruelty towards his wife or committed any offense sufficient to entitle the wife to a decree of divorce or separation.” Act No. 243, Pub. Acts 1889.

There is nothing in this statute authorizing the court to provide separate maintenance from bed and board of the defendant for life, or any term of years. The idea of a separate maintenance or a decree from bed and board is not within the purview of this statute. A perusal of both the original and amended bills of complaint in the instant case will show that no reference is made to this statute. As was held in Horning v. Horning, 162 Mich. 130 (127 N. W. 275), the bill of complaint is in form and substance in every particular a bill for divorce, except the prayer, which is for an allowance for separate maintenance from bed and board of defendant in accordance with the statutes of this State. The bill alleges the marriage of the parties, the names and ages of the children, and noncollusion and nonconniving clauses required in a bill for divorce, and the jurat thereto complies with the statute relating to divorces. It would seem that the decree below was for. the separate maintenance from bed and board for life, or until the further order of the court. Such a decree of separation was formerly called “a mensa et thoro,” and such a decree is recognized as a decree of divorce. Horning v. Horning, supra. We think the bill of complaint in this case was so similar to the bill of complaint in the Horning Case that the doctrine of that case should apply here. While not controlling, it is a significant fact that, upon the hearing of this case before the court, plaintiff’s counsel stated that it was a divorce case. We have examined in this connection the case of Lacey v. Lacey, 189 Mich. 271 (155 N. W. 489). In that case the bill was filed under the provisions of section 8686, 3 Comp. Laws. In it the plaintiff prayed neither for a divorce nor a separation, but her prayer was for financial aid and maintenance only. Justice Steeke, in the course of the opinion, used the following language:

“While, in suits for divorce either limited or absolute, the court to which application may be made is held vested with discretionary authority to grant an absolute divorce against the desires of the complaining spouse found to be in the right (although only a limited divorce with separate maintenance has been requested), we do not find that under this statute, where no separation of any kind is asked or desired by petitioner, a decree forcing an absolute divorce upon an innocent wife has been sustained.”

There is nothing in that opinion, in our judgment, inconsistent with holding that we have authority in the instant case, under our present statute, to grant an absolute divorce.

In Burlage v. Burlage, 65 Mich. 624 (32 N. W. 866), and in Sullivan v. Sullivan, 112 Mich. 674 (71 N. W. 487), it was held that the court might, in its discretion, grant an absolute divorce although the complainant asked for a decree of separation only. But by Act No. 135, Pub. Acts 1905, it was provided that no divorce from the bonds of matrimony for either of the causes mentioned in the statute should be entered in any case where the same was not asked for by the complainant in the bill of complaint filed therein, or by the defendant on a crossbill. However, by Act No. 324, Pub. Acts 1907, 3 Comp. Laws 1915, § 11399, the statute was again amended to read as follows:

“But no divorce from the bonds of matrimony for either of the causes mentioned in the preceding section shall be entered in any case where the same is not asked for by the complainant in the bill of complaint filed therein, or by the defendant on a cross-bill unless the court hearing the evidence shall deem it for the best interests of the parties to grant a divorce from the bonds of matrimony and in that event the court may grant such divorce.”

Under this provision of the statute, the subject was recommitted to the discretion of the court, and the cases of Horning v. Horning, supra, Coon v. Coon, 163 Mich. 644 (129 N. W. 12), and McCue v. McCue, 191 Mich. 1 (157 N. W. 369), have been followed. We have therefore no doubt of the right of this court to enter a decree of absolute divorce in favor of the plaintiff in this case; and in our judgment, that course should be taken, and the decree will so provide.

The evidence shows that the property of these parties, consisting of real estate, is held by them as tenants by the entirety under land contracts. We think there should be a division of this property between the parties. As we understand the record, the homestead, now occupied by the plaintiff and family, is the property known as 1401 Harper avenue in the township of Hamtramck. There is a considerable sum still unpaid upon this land contract. We understand that the property known as 1429 Chene street in the city of Detroit has been fully paid for. These two pieces of property should, in our opinion, be assigned and decreed to the plaintiff as her sole, separate, and absolute property in fee, subject to the land contracts, and the same will be so ordered and decreed. This provision is made in lieu of the dower of the wife in the real property of the defendant, and such provision shall be in full satisfaction of all dower and other claims that plaintiff may have in any property or real estate which the defendant will obtain by'this decree, or may hereafter own, or in which he may have any interest. The remaining piece of real estate, known as 28 Warsaw Place, city of Detroit, will be, by the decree, assigned and set over to the defendant as his sole, separate, and absolute property in fee, subject to the land contract, free and clear from dower or other claims or rights of. the plaintiff therein, except that plaintiff shall have a lien thereon for the payment of the alimony herein provided.

We are not disposed to disturb the decree of the court below in the provision for payment to the plaintiff by the defendant of $16 per month upon the terms and as provided for in the decree below, except in this: In the making of payment by the defendant to plaintiff of said $16 per month since the making of the decree below, there may be deducted from such payment any sum which the plaintiff has received as rent of 28 Warsaw Place over and above any expenditures which she has made thereon for taxes, insurance, repairs, or other improvements during that period.

The decree for costs below will stand affirmed, and an additional solicitor’s fee to the plaintiff in this court of $30 will be allowed. No other costs will be decreed in the case. A decree will be prepared in this court in accordance with this opinion.

Kuhn, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


text:
    OSBORN v. DETROIT KRAUT CO.
    1. Equity — Bill oe Complaint — Fraudulent Conveyances — Pleading — Mortgages—Setting Aside Instruments.
    Averments of complainant’s bill to follow corporate property and in tlie nature of a creditor’s suit that a mortgage from defendant corporation to one of its stockholders was void, justified the admission of evidence that the corporation was not indebted to the mortgagee.
    2. Assignment — Mortgages—Fraudulent Conveyances — Pledge.
    The assignee of a mortgage, which was executed by a corporation to a majority stockholder, and assigned as collateral security to another stockholder, who had notice or knowledge of the facts, did not stand in a better position than the mortgagee.

      3. Fraudulent Conveyances — Corporations—Consideration.
    That the mortgagee had executed a bond to guarantee an indebtedness of the corporation to a bank was a sufficient consideration for the transaction, as against a creditor.
    4. Same — Foreclosure—Mortgages.
    In a suit to cancel two mortgages of a corporation running to stockholders of the company, the court had no power to foreclose one of them, which it determined to be a valid obligation.
    5. Same — Cancellation oe Instruments.
    The board of directors has power to authorize the execution of a mortgage to secure corporation debts, which such action does not tend to increase.
    6. Same — Pledge—Assignment—Transfer on Books.
    One who held corporate stock as a pledge, without transferring the stock certificates on the books, merely entering a memorandum on the stubs in the certificate record, was not entitled to notice of a meeting of the stockholders.
    7. Same.
    The holder of corporate stock, belonging to a majority stockholder as collateral security for notes of the corporation, is a simple contract creditor, not entitled to an equitable lien in the nature of a mortgage on the property of the corporation, but is entitled to have the entire stock so held transferred in his name on the failure of the corporation to pay some of the notes.
    Appeal from Wayne; Hosmer, J.
    Submitted October 11, 1916.
    (Docket No. 130.)
    Decided December 21, 1916.
    Bill by Francis C. Osborn against the Detroit Kraut Company, Elbridge G. Newhall, and Cornelia Lyon to set aside certain mortgages given by defendant corporation, to establish a lien in the nature of a mortgage and to foreclose the same. Froni the decree rendered, complainant and defendant Lyon appeal.
    Reversed in part and decree entered.

      J. O. Murfin, for complainant.

      Henry B. Graves, for defendant Lyon.
   Stone, C. J.

The bill of complaint herein was filed to set aside two real estate mortgages given by the defendant corporation, the Detroit Kraut Company, one having been given to the defendant Elbridge G. Newhall and the other to the defendant Cornelia Lyon, and that plaintiff be decreed to have a lien in the nature of a mortgage upon- all the property and assets of said corporation, and to foreclose the same.

A brief statement of the facts is necessary to an understanding of the case. The Detroit Kraut Company was incorporated in May, 1909, with an authorized capital stock of 700 shares of $10 each, making the authorized capital stock $7,000. The organizers were defendant Newhall, as trustee, 350 shares, Charles E. Sweitzer, 25 shares, and Alva G. Pitts, 8 shares. The defendant Newhall became practically the sole person in control of the entire affairs of the corporation. In some way not clearly defined on- this record he became the owner of the unsubscribed treasury stock, and also of Mr. Sweitzer’s stock, so that out of a total of 700 shares of stock, aside from a few shares to enable parties to qualify as officers and directors, the defendant Newhall claimed to own all of the balance.

On March 24, 1911, through the instrumentality of the defendant Newh’all, the defendant Kraut Company borrowed from the plaintiff $5,000, evidenced by a promissory note for that sum, due one year after date, with interest at 7 per cent., payable quarterly. This note was indorsed by defendant Newhall and his wife, who was the daughter of the defendant Cornelia Lyon. Mrs. Newhall died before the hearing of this case. The note was not paid at maturity.

After a conference with Mr. Newhall, he induced the plaintiff, on March 25, 1912, to surrender the original note and to accept in lieu thereof a series of ten notes of $500 each at the same rate of interest, the first falling due in one year, and $500 each sueceeding year, all indorsed by defendant Newhall, and each of these ten notes was secured by 66 shares of the capital stock of the Detroit Kraut Company representing shares issued to the defendant Newhall. The notes were duly made and delivered. Stock certificates indorsed in blank were delivered to plaintiff. The first note of said series was paid.- In April, 1914, plaintiff was the holder of nine of said notes, and he held certificates indorsed to him in blank for 594 shares, out of 700 shares of the capital stock of the defendant corporation. It is undisputed that defendant Newhall, upon the stub of the stock certificate book, noted the fact of the indorsement of the first certificate as follows: “Coll, to note $500. F. C. Osborn one yeai from date.” (The other stubs were the same; except that the words “one year” appear “two years,” “three years,” etc., respectively.) While matters stood in this condition, a meeting of the stockholders was held on April 9, 1914. At this meeting it was ordered as follows:

“That the directors have authority to execute a mortgage upon the real estate of the company to Elbridge G. Newhall to. secure him in the amount of $4,008.36, being a part of the indebtedness of the company to him, and a second mortgage to Cornelia Lyon to secure her in the amount of her bonds to the First National Bank.”

The plaintiff had no notice of this meeting, and did not attend it. As a result of this meeting a mortgage dated April 9,1914, was executed and delivered by the Detroit Kraut Company for $4,008.36 to defendant Newhall. On the same day and at the same time a mortgage was executed and delivered by said company for $2,000 to defendant Cornelia Lyon, which last-named mortgage contained the following provision:

“To secure the payment of the principal sum of two thousand dollars, or any less amount which said mortgagee may be called upon to pay on account of a bond for said amount executed by her to the First National Bank of Detroit, and interest thereon from date at the rate of 6 per cent, per annum, payable semi-annually until the full payment of said principal sum from the date of such payment by her according to the terms, of said bond, and will pay interest at the rate of 7 per cent, per annum semi-annually upon all overdue interest and principal from the time of its or their maturity.”

It appears undisputed that the defendant Lyon, jointly with her son-in-law, defendant Newhall, had given a bond to the First National Bank of Detroit in the sum of $2,000, by virtue of which they guaranteed payment at maturity of any notes of the Detroit Kraut Company. After she had received her mortgage she did pay to said bank $1,644.81, and she was liable to said bank at the time of the execution of the mortgage to her as aforesaid.

The said Newhall mortgage was on the day of its execution assigned to Mrs. Lyon, and the two mortgages and this assignment were forthwith recorded. The Newhall mortgage was assigned to defendant Lyon to secure her against loss because of two bonds which she had signed for the accommodation and benefit of Newhall & Co. Newhall & Co. was the business name under which Mr. Newhall conducted a commission business in Detroit. The bonds ran to the First National Bank and to the Detroit Savings Bank. Because- of these bonds Mrs. Lyon was thereafter compelled to pay to the respective banks a considerable sum of money. The plaintiff in his testimony stated that at the time he loaned the money as aforesaid he knew of the said indebtedness of the Kraut Company to the bank.

The bill of complaint was taken as confessed by the defendants Detroit Kraut Company and Elbridge G. Newhall. The' defendant Cornelia Lyon answered. The bill of complaint seems to have been filed upon the theory that the plaintiff was a stockholder of the defendant Kraut Company, and as such was entitled to notice of the stockholders’ meeting. It states the giving of the two mortgages, and claims that they were given in prosecution of a plan, combination, and agreement on the part of the defendants Newhall and Lyon to defraud plaintiff, and to deprive him of his rights under said promissory notes and certificates of stock, and the bill alleges that the mortgages are void and of no force and effect—

“not only because of the illegality of said fraudulent stockholders’ meeting, but because the same were made, executed, and delivered by said officers of said corporation for the mere purpose of defrauding your orator of his rights as such creditor as aforesaid of said corporation and a stockholder therein.”

The answer of the defendant Lyon denies all fraud and claims the validity of both of said mortgages, asks to have the bill of complaint dismissed, and prays for no affirmative relief.

The case was heard in the court below upon pleadings and evidence taken in open court. The court, in and by its decree, found that the said mortgage to the defendant Newhall was fraudulent and void, and of no force and effect, and ordered the same canceled, annulled, and held for naught. It found, as to the .other mortgage, that it was valid and effectual as against said plaintiff and said defendant the Detroit Kraut Company, and, it having appeared to the court that there was then due upon said last-named mortgage the sum of $1,644.81, together with interest thereon at the rate of 6 per cent, per annum from the 24th day of September, 1914, the decree proceeds to determine the amount due upon the mortgage at that date, and orders and directs a foreclosure of the same, and a sale of the lands, as in an ordinary foreclosure decree.

The court below also found the amount which was due plaintiff upon the promissory notes which had matured, and also the amount that was owing, but not yet due, upon the remaining notes; that the said plaintiff was entitled to an equitable lien in the nature of a mortgage upon all of the land and premises mentioned in the bill of complaint and described in the decree for the said several sums of money, and decreed a foreclosure of the plaintiff’s said lien, and provided for a sale and the execution of a deed. Both parties have appealed.

The defendant Cornelia Lyon has appealed because the court below set aside the Newhall mortgage, and she also complains that the decree provides for a foreclosure of her mortgage, although she prayed for no such thing in her answer, and asks to have the decree set aside in that regard. '

Plaintiff has appealed because the court held the mortgage of Mrs. Lyon to be valid, and decreed as due to her the sum which she had paid upon the bond at the said bank on account of the indebtedness of the Kraut Company to the bank.

It is the claim of counsel for defendant Lyon that the bill of complaint nowhere alleges that the Newhall mortgage was void because there was nothing due Newhall from the said Kraut Company. From the quotation which we have made above from the bill of complaint we think it was claimed by the plaintiff that the mortgage was void and in fraud of plaintiff’s rights, and that it was competent to show no indebtedness to Newhall. We have read this record with great care, and, while the circuit judge filed no reasons for his decree, we think that part of it which set aside the Newhall mortgage as void may well be sustained upon the ground that the evidence does not show that any such, sum of money, or gny specific amount, was due the defendant Newhall from the said Kraut Company. The annual reports of the corporation, duly filed, gave no evidence of the existence of any such debt. A number of the books of account were missing at the hearing, and in fact appear to have been destroyed, and the testimony of Newhall was far from satisfactory. The other officer of the company who was examined was not aware of any such indebtedness to the defendant Newhall. It is true that he said he supposed there might be something due him, but the record is barren of.any evidence of any probative force which shows that there was any just foundation for the mortgage to Newhall.

We think that part of the decree of the court below which set aside and held for naught said Newhall mortgage should be affirmed, on the ground that said mortgage was found to be fraudulent and void on the facts proven at the hearing. That mortgage being void, we do not think that the defendant Lyon stands in any better relation to it than did the defendant New-hall. He assigned it to her as collateral security because of her obligations to the bank to pay any indebtedness of Newhall & Co. We do not think that she stands in any better position, under the facts in this case, than did Newhall as to said mortgage.

The mortgage directly to Mrs. Lyon stands upon a different footing. She was at the time of its execution liable by reason of her bond to the bank guaranteeing indebtedness of the defendant Kraut Company, which was then owing. That part of the decree which found the'amount due to her should be affirmed.

We do not think that under the pleadings in the case the court below had any power or authority to order a foreclosure of that mortgage; and, as the defendant Lyon asks that that part of the decree be vacated, and as this cannot injure the plaintiff, but will give the company more time to redeem, that part of the decree which orders a foreclosure of that mortgage will be reversed. •

The power of the directors, under the circumstances, to execute a mortgage to Mrs. Lyon to secure its liability and indebtedness to her, finds support in our own decisions. Bank of Montreal v. Lumber Co., 90 Mich. 345 (51 N. W. 512); O. W. Shipman Co. v. Railway, 140 Mich. 589 (104 N. W. 24); Haight v. Smith, 178 Mich. 392 (144 N. W. 830). Nor do we think that the plaintiff was a stockholder in said company in the sense that he was entitled to any notice of the stockholders’ meeting. The certificates of stock had been assigned to him in blank as collateral security to said notes, but the stock had never been transferred to him upon the books of the company. He was therefore not in the proper sense such a stockholder of the company as entitled him to a notice of the stockholders’ meeting. The stock, in so far as the books of the company showed, stood in the-name of the defendant Newhall, notwithstanding the memoranda which had been entered upon the stubs in the certificate of stock book. In fact, we are of the opinion that it was not necessary to hold a stockholders’ meeting to authorize the mortgage .to the defendant Lyon. We think that the directors had power to authorize the execution of this mortgage to secure corporate debts. Such mortgage did not increase the indebtedness of the company. 3 Cook on Corporations (7th Ed.), § 808, and cases cited: Turney v. Brick Co., 184 Mich. 439 (151 N. W. 590).

We are unable to agree with the plaintiff and the court below that the plaintiff has any equitable lien in the nature of a mortgage upon the property of the defendant Kraut Company. He is simply a contract creditor, his only security being certificates of stock in the corporation issued to defendant Newhall and indorsed by him in blank and delivered to plaintiff as collateral security in the ordinary way. In so far as this record shows, the plaintiff can have this stock transferred to him on application any day. It is sufficient in amount to be controlling. This will give him the right, subject to the mortgage of defendant Lyon, to control the destinies of the defendant Kraut Company, whatever they may be. While it is true that some of his notes have not yet matured, he has the right to have the entire stock transferred to him.

That part of the decree which gave to plaintiff a mortgage lien and foreclosed the same will be reversed.

Neither party having herein accomplished all that it has attempted to do, we are impressed with the fact that neither party is entitled to costs. The plaintiff and defendant Lyon will by the decree equally share and pay the expenses of procuring transcript of the evidence and printing the record. No other costs will be awarded. A decree will be entered in this court in accordance with this opinion.

Kuhn, Osteandee, Bied, Mooee, Steeee, and Beooke, JJ., concurred. Peeson, J., did not sit.


text:
    STORNELLI v. DULUTH, SOUTH SHORE & ATLANTIC RAILWAY CO.
    ' 1. Master and Servant — Personal Injuries — Scope oe Employment — Course oe Employment.
    Where plaintiff was hired by a railroad company, about a year before he was injured, to work as a hostler’s helper, and the evidence showed he was to work in and around the roundhouse and assist the hostler in the discharge of his duties, which did not require him jo go out on the main line or ride upon the engines, he could not recover for injuries that he sustained in jumping from a moving train and catching his foot in a frog. He was not injured in the course of his employment, although the engineer may have invited plaintiff to ride. Nor did he alight under orders because he saw the engineer motion to him to get off. The invitation was outside of the scope of the engineer’s authority.

    2. Same — Invitation to Ride — Scope of Authority.
    Where it was not within the scope of authority of the engineer to invite him to ride, and, where there was no evidence that plaintiff was ordered to jump from the moving train, and only a scintilla of evidence that he was invited to ride on it, the defendant railway corporation could not be held responsible, in a case for negligent injuries against a company that did not come under the compensation act.'
    3. Same — Negligence—Burden of Proof.
    The burden rested upon the plaintiff, in order to recover, to show negligence, although the workmen’s compensation act deprives the employer of other defenses. 2 Comp. Laws 1915, § 5423 et seq.

    Error to Chippewa; O’Brien, J., presiding.
    Submitted October 19, 1916.
    (Docket No. 77.)
    Decided December 21, 1916.

      Case by Antonio Stornelli against the Duluth, South Shore & Atlantic Railway Company for personal injuries. Judgment for defendant, non obstante veredicto. Plaintiff brings error.
    Affirmed.

      McDonald & Kaltz, for appellant.

      Warner & Sullivan (A. E. Miller, of counsel), for appellee.

      As to application and effect of the workmen’s compensation act generally, see note in L. R. A. 1916A, 23.

   Stone, C. J.

Action on the case to recover damages for personal injury of plaintiff. The plaintiff, a hostler’s helper in defendant’s roundhouse at Sault Ste. Marie, on September 30, 1914, at about 2 p. m., left his usual place of work at the roundhouse, climbed on the rear end of the tender of an engine hauling an excursion train to the Chippewa county fair as it passed the roundhouse, rode between the tender and the mail car out to the fair, where the train remained a few minutes, then got into the cab with the engineer and fireman, and on the return trip, while the train was slowing down, opposite the roundhouse, he jumped fromi the engine to the ground, caught his foot in a switch stand lever, and thus sustained the injury complained of. The plaintiff* had been working for the defendant about á year. His duties were to work in and around the roundhouse, and to help the hostler generally. There was no evidence that he had ever been called upon to perform any duty on engines while on the main line, or to get on or off moving trains. On the trip in question he was not asked to, and did not perform any duty or service while on the engine. It was, and is, the claim of the plaintiff that he boarded the engine in response to what he thought was a request, by a motion of the hand, and by word of mouth from the engineer, supposing there was something the engineer wanted him to do; that on the return trip the engineer promised to “let Mm off” at the roundhouse, and while slowing down motioned Mm to get off, which he attempted to do while the train was moving at about 10 miles an hour; and that he had never had any instructions as to' the proper way of getting off a moving train or engine. A careful reading of the record satisfies us that the claim and testimony of the plaintiff, not only find no support in the testimony of the other witnesses in the case, but are contradicted by the other witnesses. It clearly appears that, just before leaving the roundhouse, plaintiff said he was going to “take a look at the fair.”

At the close of the testimony the defendant moved the court to direct a verdict for the defendant on the grounds:

(1) That no actionable negligence of the defendant liad been shown.

(2) Because it appeared from the testimony that the plaintiff was injured while taking a trip for his own pleasure, or business, outside of the line of his employment, that he was not injured in the course of his employment, and that his own negligence in jumping from a moving engine contributed to his injury, or was the direct cause of it, and that his own contributory negligence barred his recovery.

This motion was argued and taken under advisement, and the trial court submitted the case to the jury, reserving its decision upon defendant’s said motion, and the jury rendered a verdict for the plaintiff for $2,500. Later, and after further argument of defendant’s motion to direct a verdict, the court granted the motion, and directed a judgment to be entered for the defendant notwithstanding the verdict of the jury, which was done accordingly. The plaintiff has brought error.

All of the assignments of error relate to the ruling. of the trial court in granting defendant’s motion for a directed verdict, after the jury had returned a verdiet for the plaintiff, and the real issue presented is: Did the trial court err in ordering judgment entered for defendant, contrary to the verdict of the jury? In the discussion of the issue, counsel for plaintiff does not attempt to reconcile the conflict of testimony, but bases his case upon plaintiff’s testimony, viewed in its most favorable aspect, and invokes the rule ordinarily applied. On the other hand, it was urged by counsel for defendant upon the argument of the motion, and is urged here, that the purpose of Act No. 217, Pub. Acts 1915, 3 Comp. Laws 1915, § 14568, being to prevent the necessity of the retrial of cases, and to avoid needless litigation, it would be absurd to hold that the court could not grant this motion, based upon lack of sufficient evidence to sustain a verdict, when upon a motion for a new trial upon the same ground the trial court would feel obliged to set aside a verdict. Counsel for defendant say:

“In the orderly course of procedure under the Empson act, if the circuit judge grants defendant’s motion after verdict (as in this case), there would seem to be no time or place for a consideration of the evidence, and its weight and effect, either by the trial or appellate court, and a party must be deprived of the right to a review of the evidence as upon a motion for a new trial, unless such review and determination are permissible under the Empson act.”

The learned circuit judge appears to have sustained this view of the practice. In the course of his opinion on the motion to direct a verdict he said:

“The plaintiff was hired by defendant about a year before his injuries to work as a ‘hostler’s’ helper. The evidence in regard to his duties showed that he was to work in and around the roundhouse and assist the hostler in the discharge of his duties. He was not required to go out on the main line, or to go upon or ride upon the engines. While it is true that the evidence showed that on one occasion the plaintiff walked along the main line to the station on some errand or another, there is no evidence, there is absolutely no evidence, that he was ever called upon to perform any duty on any engine while on the main line. There is no evidence that his duties ever required him to get on or off moving trains. On the 30th of September, 1914, the plaintiff, having finished some work he was doing inside the roundhouse, was standing in the front doorway of the roundhouse, and according to the plaintiff’s claim the engineer operating the so-called ‘Fair’ train, running from the defendant’s station in the city of Sault Ste. Marie to the fair grounds in that city, called and motioned to plaintiff to get on the engine, and that in pursuance of that invitation he boarded the train and rode out to the fair ground; that he then came down into the cab of the engine and had some conversation with the engineer about the fair, and was then asked by the engineer whether he (plaintiff) wanted to get off the engine at the station or at the roundhouse; that plaintiff replied that he wanted to get off at the roundhouse, and the engineer said he would ‘let’ him off at the roundhouse. Plaintiff rode back in the cab until the engine reached a point opposite to the. roundhouse, when the engineer motioned him to get off, and at the same time set the brakes and the train slowed up. Plaintiff then got down onto the gangway of the engine, and without waiting for the train to stop got off the moving engine, and was seriously injured. Plaintiff claims that the circumstances under which he was motioned by the engineer to get off the engine fairly indicated to him that the engineer did not intend to stop the train, and that plaintiff was expected to get off the engine while it was still in motion, or, at least, that the subject was a question for the jury, and that the jury had a right to find that the actions and conduct of the engineer amounted to negligence, for which the defendant is responsible. Plaintiff claims he was rightly on the engine in the course of his employment, and that he was expected or required to get off the moving engine, and as the safe or proper method of getting off a moving' engine was not known to him, and would not be apparent to a person of his knowledge and experience, that he was therefore entitled to warning of the dangers thereof, and to an instruction as to the safe or proper method of getting off a moving engine. Now, the defendant claims that the plaintiff went upon the engine on the day in question to take a ride out to the fair grounds for his own pleasure and convenience. Defendant claims that the hostler told him not to go, but he persisted in going against the orders of his superior. The evidence of defendant’s witnesses was to the effect that the engineer, who was on the offside of the engine from the roundhouse, did not invite and could not have invited the plaintiff to get on the engine. The fireman testified that, when the engine was passing the roundhouse, he gave the plaintiff the so-called ‘high ball’ sign, not as an invitation to board the engine, but simply as a mere salutation. While it may have been a question for the jury as to whether the plaintiff was on the engine in the course of his employment, as he claims, or for his own pleasure and convenience, as defendant claims, I am inclined to think that the finding by the jury in favor of the plaintiff on the proposition is supported only by a mere scintilla of the evidence. When we consider the hostler’s testimony, the improbability, if not the impossibility, of the engineer having signaled the plaintiff from the other side of the engine, the fact that the engineer denied giving any such signal or invitation to plaintiff, the fireman’s testimony as to the ‘high ball’ signal intended only as a friendly salute, the fact that plaintiff did not get on the engine, the fact that the engineer did not stop for him to get on, the fact that plaintiff was not asked to and did not perform any duty or service while on the engine, all of these facts and other circumstances uphold the theory of the defendant that the plaintiff boarded the train for the purpose of taking a look at the fair grounds, and not to perform any services in the course of his employment. A verdict to the contrary is not merely against the overwhelming weight of the evidence, but can scarcely be said to be supported by any substantial evidence. Nor do I think that there is any evidence to show that plaintiff was ever required or expected, under the duties or scope of his employment, to get on or off moving engines. I am inclined to agree with counsel for plaintiff that if the evidence, fairly considered, tended in any way to show that plaintiff, as a 'hostler’s helper,’ was ever required or-expected to get on or off a moving engine, there would be a duty to warn and instruct, and in reaching that conclusion I am not overlooking the evidence of defendant that no such instruction as to how to get off moving engines in safety was ever given to any of its employees. But in this case the evidence is conclusive that the duties of plaintiff’s employment did not require the plaintiff to get on or off a moving engine, and the defendant was not bound reasonably to anticipate that he would attempt to do so. Nor is there any evidence of any negligence on the part of the engineer. He told plaintiff that he would let him off at the roundhouse, and plaintiff could have waited, if he saw fit to do so, until the engine stopped. The circumstances do not show that the engineer peremptorily ordered him to get off the engine while it was in motion. True, the motion to get off was made by the engineer while the engine was in motion, but the plaintiff decided for himself when and where he would jump from the engine. The injury to plaintiff was therefore the result of a pure accident, for whom no one is responsible, or resulted from his own voluntary act in jumping from the engine while it was in motion. Taking the case as a whole, I am convinced that under the undisputed evidence the plaintiff is not entitled to recover. No negligence on the part of the defendant has been established. Therefore the motion to direct a verdict in favor of the defendant should have been granted. Judgment is therefore ordered in accordance with this decision, in favor of the defendant, notwithstanding the verdict.”

In our opinion, by the undisputed evidence, the plaintiff was not injured in the course of his employment. The cases cited by plaintiff are readily distinguished. Neither was there any evidence of negligence on the part of defendant. There was no evidence that plaintiff was ordered to get off the moving engine. That any invitation was given by the engineer to get on the engine was negatived by the great weight of the evidence. But, if any such invitation was given, such invitation was outside the scope of the engineer’s authority. Keating v. Railroad Co., 97 Mich. 154 (56 N. W. 346, 37 Am. St. Rep. 328); Schulwitz v. Lumber Co., 126 Mich. 559 (85 N. W. 1075); Mahler v. Stott, 129 Mich. 614 (89 N. W. 340).

The defendant had not at the time of the injury come under the workmen’s compensation law, and therefore the defense that plaintiff was negligent (unless such negligence was wilful) is not available to defendant. Freeman v. Railroad Co., 191 Mich. 529 (158 N. W. 204). In Lydman v. De Haas, 185 Mich. 128 (151 N. W. 718), we held that, while Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5423 et seq.), deprives the employer who has not elected to be governed by the provisions of the law, of the defenses of contributory negligence (unless wilful), assumption of risk, and that the injury was caused by the negligence of a fellow employee, yet, in order that a plaintiff may recover, it is necessary to show that the defendant was chargeable with negligence.

This burden was not sustained by the plaintiff in the instant case, and for that reason, and because the verdict of the jury was against the great weight of the evidence, we are of opinion that the trial court did not err in its disposition of the case, and the judgment below is affirmed.

Kuhn, Ostrander, Bn®, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.