author: Kuhn, J.

text:
    ALDERSON v. NEWAYGO CIRCUIT JUDGE.
    Appeal and Error — Equity—Settlemet of Record.
    Under Chancery Rule 37e the circuit judge will not be compelled by writ of mandamus to certify to a record which does not contain a true or complete transcript of the proceedings so as to fairly present the questions involved in the appeal, although the appellee does not propose amendments to the proposed case.
    Mandamus by John J. Alderson against Joseph Barton, circuit judge for the county of Newaygo, to compel respondent to settle and sign a record on appeal.
    Submitted January 14, 1913.
    (Calendar No. 25,377.)
    Writ denied February 18, 1913.

      Everett & Biblet, for relator.

      William J. Branstrom, for respondent.
   Kuhn, J.

An order was entered that the respondent show cause why he should not authenticate a proposed record on appeal in a certain cause pending before him wherein this relator is complainant and Daniel W. Hollister et al. are defendants.

The petitioner alleges that the record presented to the court consisted of a motion to vacate or amend the order or decree dismissing the bill of complaint filed in said cause, the notice of the hearing of said motion, the affidavits of John J. Alderson, Fred R. Everett, George W. Shepherd, and the letter to Anderson & Branstrom, all in support of the motion, together with the order of the circuit judge denying said motion, and claims that it is a complete record of all the proceedings had in said court on said motion. It is also claimed that one of the solicitors for defendants was present in court when said proposed case was presented to the court, and that he did not propose nor offer any written amendments or corrections to said record as presented.

The respondent, in his answer, sets up the following:

“ This respondent denies that there was no evidence taken on the hearing of the said cause, except the affidavits presented by the said complainant, and avers the truth to be that on the 4th day of March, 1912, when the said motion from which the said appeal was taken was presented to the court, there was also presented to the circuit court by the said defendants a motion to retax costs, which latter motion was entitled in the same cause and based and growing out of the same state of facts and circumstances as the former motion; that the former motion asked the court to dismiss, and, if not to dismiss, to vacate, that portion (in particular) of the decree entered dismissing the original bill of complaint, which provided for certain witness fees and the latter motion, viz., the motion to retax costs, asked for the retaxation of costs pertaining to the said witness fees; that the said motions were practically heard at the same time, i. e., the said complainants read certain affidavits, copies of which are part of relator’s petition, which was the evidence produced by the said complainant on both motions and the defendant produced certain witnesses that were sworn and testified in their behalf, which was the evidence produced by the said defendant on both the said motions; that after the production of said testimony by the said complainant and the said defendants on said motions, and after hearing arguments of counsel, and being fully advised in the premises, this respondent denied the motion of the said complainant (relator), and allowed the motion of the said defendants; that this respondent did not decide the said motion of the said complainant upon the affidavits merely as the said record would make it appear, but upon the testimony of witnesses sworn in open court.”

The respondent further says that while no amendments to the record were offered or suggested by the counsel who was present at the time the proposed record was presented to him, if mandamus should issue, it would compel him to certify a record that was not full, complete, nor correct, and it would be unfair and unjust to the parties litigant and would present said cause to this court in a false light.

Our attention is called to Chancery Rule 37, subd. “e” (158 Mich, xxx), which provides:

(e) In case of the failure of the adverse party to prepare and serve his amendments to the proposed case on appeal, together with the exhibits and other papers required by this rule to be served in connection therewith, the judge who heard said cause or proceeding, or in the event of his absence or disability, then any other judge authorized to act in any matter in connection with the settling of cases for review on appeal as provided by this rule, upon its being made to appear by affidavit, or otherwise, to his satisfaction, that due service of the papers required to be served by the party seeking the appeal was made upon the adverse party, or his solicitor of record, and that all steps required by this rule to be taken by the party so seeking to appeal have been so taken by him within the time required, and of the expiration of the time herein limited for the service of the proposed amendments by said adverse party, shall certify and settle the case in the manner and form as proposed by the party seeking to appeal as the case on appeal therein.”

No amendments having been presented, it is urged that it was obligatory upon respondent to certify and settle the case in the manner and form as proposed by the parties seeking to appeal. We cannot agree with this contention, as subdivision “a” of the same rule provides that the case made and settled shall set forth the substance of all the evidence taken or read at the hearing, and the language of the rule should be construed to mean that, if no such amendments are offered, the court shall certify the case, if he is satisfied that it presents a proper record of the proceedings had before him, and fairly presents the questions involved in the controversy to this court.

This proceeding being heard on petition and answer, the averments in the respondent’s answer must be taken as true. It would be manifestly improper to compel a circuit judge to authenticate a record which he considered incomplete, and which would not properly present to this court the evidence upon which he based his conclusions.

Relator’s petition is denied, with costs.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    O’HARA v. COLLIER.
    1. Municipal Corporations — -Licenses—Municipal Regulation —Peddlers.
    An ordinance of the city of St. Joseph, requiring a license fee of $4 for one day and $100 a year for the privilege of peddling flour and other cereal products, is not as a matter of law unreasonable or invalid as a police regulation, and does not amount to a tax. 1 Comp. Laws, §§ 3107-3110, 2 How. Stat. (2d Ed.) §§5629-5632.
    2. Same — Presumptions.
    Every presumption is indulged in favor of the reasonableness of such an ordinance; the oourts can only interfere in case of an abuse of the legislative discretion vested in the city council.
    Certiorari to Berrien; Coolidge, J.
    Submitted January 14, 1913.
    (Calendar No. 24,805.)
    Decided February 18, 1913.
    Mandamus by James O’Hara, city attorney of the city of St. Joseph, against Joseph R. Collier, Jr., one of the justices of the peace for said city, to compel respondent to issue a warrant applied for by relator. An order denying the writ is reviewed by relator on writ of certiorari.
    Reversed.

      James O'Hara (Chester P. O'Hara, of counsel), for appellant.
   Stone, J.

This case has been brought to this court on certiorari to review the action of the circuit court in refusing to grant a peremptory mandamus. The relator is the city attorney of the city of St. Joseph. The respondent, a justice of the peace, having refused to issue a warrant upon the complaint of the relator filed with him, charging one David J. Stewart with a violation of the peddler ordinance of the city of St. Joseph, the relator petitioned the circuit court for the county of Berrien for a peremptory writ of mandamus, compelling the respondent so to do. An order to show cause having been issued, the respondent made his answer and return thereto, and the circuit court denied the peremptory mandamus on the ground that the ordinance was void, because the license fee imposed was excessive, exorbitant, and unreasonable, and the case has been brought here.

The city of St. Joseph is a city of the fourth class. The authority for the making of the ordinance is supposed to be found in sections 3107 to 3110, 1 Comp. Laws (2 How. Stat. [2d Ed.] § 5629 et seq.), relating to cities of the fourth class. The first section named empowers the council to pass such ordinances in relation to licenses as it may deem proper. Subdivision 11 of said section empowers the council to license peddlers, etc., and to regulate, license, or prohibit the sale or peddling of goods, etc., by persons going about from place to place in the city for that purpose. By section 3108 the council is empowered to prescribe the terms and conditions upon which licenses may be granted, and may exact and require payment of such reasonable sum for any license as it may deem proper. It will thus be seen that the charter leaves the fixing of the sum to the discretion of the council, and, unless it clearly appears that the legislative discretion has been abused, the courts will not attempt to interfere.

Section 1 of the ordinance provides that no person shall engage in the business of hawking or peddling in the streets, or from door to door, without having obtained a license therefor. Section 6 provides that any person or persons who shall go about from house to house, or place to place, and sell, or offer to sell, any article of trade or commerce to be delivered then, or in the future, shall be deemed a hawker and peddler within the meaning of the ordinance. Another section provides that the provisions of the ordinance shall not apply to any farmer or gardener selling, or offering for sale, the produce of his own farm or garden. Section 4 of the ordinance fixes the license fee on some twenty odd articles of commerce and, among other fees, provides:

“ The amount to be paid for the license provided for in this ordinance shall be as follows, viz.: * * * For flour, bran, middlings, ground corn or oats, $4.00 for one day, and $100.00 for one year.”

It was the opinion of the circuit judge that this fee was excessive, exorbitant and unreasonable, and that therefore the ordinance is void. It is the claim of the relator that the man Stewart has, for a number of years, made a business of taking orders in the city for car load quantities of flour, and has sold and delivered a great number of car loads of flour every year to the citizens of St. Joseph ; that his method is to go around and take orders for sacks of flour from 100 pounds up, from various families, and, when he received sufficient orders to fill a car, to have the car shipped and consigned to him at St. Joseph, there being nothing upon the sacks indicating who they were respectively for, and that after the arrival of the car to take from it and deliver to the citizens as many sacks as the latter had ordered, and that his sales of flour have amounted to many thousands of dollars a year. It is the further contention that the fee of $100 a year is hardly sufficient to compensate the officials for time spent in seeing that the people purchasing receive wholesome goods and full weight.

Can we say as matter of law that an ordinance that compels a peddler of flour, etc., to pay a fee of $4 a day or $100 a year for the privilege of going about from place to place in the city and selling and offering for sale such commodities shows an abuse of legislative discretion vested in the council by charter or statute ?

In discussing this subject, Mr. Tiedeman, in his work on Municipal Corporations (section 123), says:

“Although it isa judicial question whether the sum exacted is a reasonable one, a wide latitude is given to the exercise of legislative discretion, in the determination of the amount of the license fee. The license may be required as a police regulation, for the purpose of insuring the proper police supervision, whenever the character of the trade or business is such that the absence of the police supervision would occasion injury to the public, dealing with those engaged therein, * * * because it furnishes abundant opportunities for the perpetration of frauds, which without police supervision will very likely prove successful. On these general grounds, it is competent for a municipality to require licenses, and subjection to police supervision of * * * peddlers and itinerant venders, and others, upon whose honesty and care the public have to depend, often without previous acquaintance with them, and usually without opportunities for investigation.”

The supreme court of Minnesota has held that a license fee of $3 a day for peddling is not excessive. Neither is a fee of $5 a day, $60 for six months, or $100 a year excessive. In re White, 43 Minn. 250 (45 N. W. 232); Duluth v. Krupp, 46 Minn. 435 (49 N. W. 235). In the first case above cited it was said:

“ What is a reasonable fee must depend largely upon the sound discretion of the city council, having reference to all the circumstances and necessities of the case; and unless the amount is manifestly unreasonable, in view of its purpose as a police regulation, the court will not adjudge it a tax.”

We understand the rule to be that every presumption is indulged in favor of the reasonableness of such an ordinance. The above Mihnesota cases are cited with approval by this court in People v. Baker, 115 Mich. 201 (73 N. W. 115). In City of Muskegon v. Zeeryp, 134 Mich. 181 (96 N. W. 502), this court held that a license fee of $10 a week and $50 a year, exacted for peddling spices, etc., was not excessive, unjust, oppressive, or in restraint of trade, and that the ordinance was not as a whole unreasonable. We held, in People v. Grant, 157 Mich. 24 (121 N. W. 300, 138 Am. St. Rep. 329), that the license fee of $2 per day, $10 per week, $25 per month, and $50 for three months, was not unreasonable. In City of St. Paul v. Colter, 12 Minn. 41 (Gil. 16) (90 Am. Dec. 278), where a license fee of $200 a year for keeping a butcher’s stall was held not be an abuse of legislative discretion, the supreme court of Minnesota said:

“ The very object of a charter is to empower them (the council) to provide for the well-being of the city, by such regulations and ordinances as their daily observation of what is going on around them will qualify them to enact more judiciously than a body, constituted as a State legislature ordinarily is, could be expected to do.”

In City of Grand Rapids v. Braudy, 105 Mich. 670 (64 N. W. 29, 32 L. R. A. 116, 55 Am. St. Rep. 472), the validity of an ordinance licensing and regulating pawnbrokers, junk dealers, and dealers in secondhand goods, was attacked on the ground that the license fee of $50 and a bond of $5,000 for pawnbrokers, and the fee of $25 and bond of $2,000 for junk and secondhand dealers, was so unreasonable that the ordinance should be declared void. This court, in an opinion by Justice Grant, said:

“The charter expressly confers upon the common council the power to license and regulate pawnbrokers, junk dealers, and dealers in secondhand goods. Courts cannot interfere with legislative discretion, and are slow to declare' ordinances invalid because unreasonable, when the power to legislate upon the subject has been conferred upon the common' council. The council’s discretion, and not the court’s, must control. In such matters the city authorities are usually better judges than the courts ” — citing many cases.

See also, City of Grand Rapids v. Norman, 110 Mich. 544 (68 N. W. 269); People v. Blom, 120 Mich. 45-48 (78 N. W. 1015).

We are o£ opinion that the council did not exceed its authority in passing this ordinance, and that we should not say that the license fees therein mentioned are unreasonable, excessive, or exorbitant.

This leads us to the conclusion that the order and judgment of the learned circuit judge denying the mandamus should be reversed.

Steerb, C. J., and Moore, Me Alva y, Brooke, Kuhn, Ostrander, and Bird, JJ., concurred.


text:
    PEOPLE v. SNYDER.
    1. Criminal Law — Trial—Cross-Examination—Witnesses.
    On the trial of a respondent charged with taking indecent liberties with a child, the prosecutor is not justified in asking a character witness, on cross-examination, as to opinions formed after learning about the accusation, or as to its effect on his opinion.
    2. Same — Charge—Opinion Expressed by Court.
    It is error for the court to indicate to the jury his opinion as to the guilt of the respondent in a criminal case; so that the court improperly stated to the jury in the course of his instructions, “The question is asked, why not bring all the people in the theater up here to prove that, words to that effect. Of course, the offense was not committed on the stage; it was not part of the performance that afternoon; and it is possible and very likely that he tried to commit it so nobody else would see him,” etc.
    Exceptions from the recorder’s court of Grand Rapids; Stuart, J.
    Submitted January 17, 1913.
    (Docket No. 117.)
    Decided February 18, 1913.

      Ray Snyder was convicted of taking indecent liberties with a minor female child.
    Reversed.

      Earl F. Phelps, Prosecuting Attorney, and Louis T. Herman, Assistant Prosecuting Attorney, for the people.

      Edward N. Barnard, for respondent.
   Kuhn, J.

The information in this case charges the respondent with taking indecent and improper liberties with a girl under the age of 14 years.

It is claimed that the offense occurred in the Idea Theater, a moving-picture showhouse, in the city of Grand Rapids. On the trial the respondent, in his defense, attempted to establish his previous good reputation, and produced Mr. Thomas Hefferan as a witness, who testified as follows:

“Direct examination by Mr. Barnard: I am president of the People’s Saving Bank; I am acquainted with Mr. Snyder; I have always considered his reputation as very good; I have known him for about 40 years or so, since the Civil War.
“Cross-examination by Mr. Herman: I have been in the courtroom and heard the story of the girl.
“Q. If the story of the girl is true, you would not consider a man’s reputation—
“Mr. Barnard: (interrupting): I object to that. Just a minute.
“Q. You would not consider a man like that of good repute, would you ?
“A. Not if it is true.
Mr. Barnard: I want to object to that.
The Court: Overruled.
“Mr. Barnard: An exception.
Mr. Herman: That is all.
“Redirect examination by Mr. Barnard:
“Q. Do you know what his reputation is as to his character in the community ?
Mr. Herman: Just a minute.
“Q. He resides in?
“A. How?
“Q. Is that good or bad ? Do you know what his general reputation for character is in the community in which he resides ?
The Court: Character in what regard ?
“A. I would consider his moral character good.
“Recross-examination by Mr. Herman: It is 22 years ago since I lived anywheres near him, when I was a resident of Eastmanville, Ottawa county; he lived at the Soldiers’ Home in the city here. I don’t know anything about him for the last 20 years, except as I have done business with him; I haven’t heard anything against him.
"Q. (Mr. Herman): You talked to a single person in the community in which he resides; that is, the Soldiers’ Home ?
“A. I don’t know as I ever talked with anybody.
“Q. (Mr. Barnard): Never heard anybody say anything against him ?
“A. No.
“Q- (Mr. Herman): And never heard anybody say anything for him ?
“Mr. Barnard: What is this, a dialogue ?
Q. (Mr. Herman): How far do you live from the Soldiers’ Home ?
“A. Probably six miles.
“Q. It is a pretty strong statement when you say you know his reputation and what people say about him— what his neighbors say of him ?
“A. I say only what I know of him.
“Q. What you know personally ?
“A. Yes.
“Q. That is not reputation. .
“A. What I know personally of his reputation.
“Q. You don’t know what his reputation is since he has been at the Soldiers’ Home ?
“A. Only what I know.
The Court: A man’s reputation is what people say about him.
“A. I never heard anything said about him wrong.”

It was improper for the prosecuting officer to cross-examine this witness with reference to opinions formed subsequent to the date of the crime with which respondent was charged; and, although we will not say that it would be reversible error in this case, nevertheless, it is contrary to the well-established rules of evidence. This matter is fully discussed by Mr. Justice Stone in the case of People v. Huff, post, 620 (139 N. W. 1033), handed down herewith.

In his charge to the jury the judge said:

"The question is asked, why not bring all the people in the theater up here to prove that ? words to that effect. Of course, the offense was not committed on the stage; it was not a part of the performance that afternoon; and it is possible and very likely that he tried to commit it so nobody else would see him, and very likely there may not have been other witnesses that saw it at all.”

The direct statement of the court, “It is possible and very likely that he tried to commit it so nobody else would see him,” it seems to us, is practically saying to the jury that respondent did try to commit the offense with which he was charged. The respondent having denied the charge, it was for the jury to determine that fact from all the evidence, and improper for the trial judge to give the jury his own opinion as to the guilt or innocence of the accused. This was error. People v. Lyons, 49 Mich. 78 (13 N. W. 365); People v. Murray, 52 Mich. 288 (17 N. W. 843); People v. Gastro, 75 Mich. 127 (42 N. W. 937); Cronkhite v. Dickerson, 51 Mich. 177 (16 N. W. 371); Letts v. Letts, 91 Mich. 596 (52 N. W. 54); Sterling v. Callahan, 94 Mich. 536 (54 N. W. 495); Valin v. McKerreghan, 104 Mich. 213 (62 N. W. 340); Preston Nat. Bank v. Insurance Co., 115 Mich. 511 (73 N. W. 815); Fors v. Fors, 159 Mich. 156 (123 N. W. 579).

There is no merit in the other assignments of error. The conviction is reversed and a new trial granted.

Steere, C. J., and McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred. Moore, J., did not sit.


text:
    PEOPLE v. HUFF.
    1. Criminal Law — Evidence—Trial—Larceny.
    It was improper, upon the separate trial of one of two joint respondents charged with larceny, to permit the prosecuting attorney to cross-examine a witness who was produced to testify to the good character of respondent, relative to acts of the other respondent subsequent to the alleged crime, on an occasion when she was engaged in identifying property stolen at other times and from other persons than those mentioned in the information.

      2. Same — Opinions—Witnesses.
    Opinions of a witness as to respondent’s character, formed subsequent to the date of the alleged offense and after some of the facts had been made public, are not admissible to prove or disprove good character.
    8. Same — Character—Reputation.
    Witnesses called to attack or defend character can be asked on direct examination only as to the general character of the person in question, and will only be allowed to testify as to particular facts or instances upon cross-examination with a view to test the value of the testimony given: but cross-examination must be confined to acts occurring before the offense charged.

    4. Same — Trial—Witnesses—Conduct op Prosecutor.
    It was also error for the prosecuting attorney to attack one of respondent’s witnesses, accusing her, without proof, of having knowingly received stolen goods.
    6. Same.
    And it was equally improper for the prosecuting attorney to praise one of the people’s witnesses and to extol his skill and ability to detect wrongdoers.

      6. Same — Appeal and Error — Saying Questions for Review.
    Upon counsel for respondent oalling the attention of the court to such alleged misconduct, although the court merely granted him an exception, respondent was entitled to treat the matter as an adverse ruling.
    Exceptions before sentence from the superior court of Grand Rapids; Stuart, J.
    Submitted January 17, 1913.
    (Docket No. 114.)
    Decided February 18, 1913.
    Anna Huff was convicted of larceny.
    Reversed.

      Earl F. Phelps, Prosecuting Attorney, and Louis T. Herman, Assistant Prosecuting Attorney, for the people.

      Edward N. Barnard, for respondent.

       The authorities on the right of a witness to testify to character from personal knowledge are collated in a note in 22 L. R. A. (N. 5. ) 650.
      As to evidence of specific instances to prove character, see extensive note in 14 L. R. A. (N. S.) 689; and for the admissibility of particular acts or specific traits of defendant, generally, see note in 20 L. R. A. 614.

   Stone, J.

The respondent in this case was charged jointly with her daughter, Feronia Huff, with the larceny of a clock of the value of $1, in a store in the daytime. The evidence on the part of the people tended to show that the parties were detected, while in the act of the larceny, by a detective. The respondent was immediately arrested, and the clock, claimed to have been stolen, together with some other articles, was found in her possession. The respondent denied her guilt, but upon a separate trial was convicted, and the case is before us upon exceptions before sentence.

There are numerous assignments of error, many of them without merit, and we have referred specifically to such only as, in our judgment, present meritorious questions. The following matters are fairly raised upon the record:

Witness William Phillips had testified, on behalf of respondent, as to her reputation and good character for some years before. The daughter, Feronia Huff, was jointly informed against with respondent, but a separate trial of the latter was had. Upon cross-examination of the witness Phillips, the following occurred:

“Q. Speaking about her reputation, you were down to police headquarters at the time that the young lady, Feronia, was picking out the — sorting out — I ask that now to call your attention to it, when there was a large amount of dry goods store effects piled up there in a room, and Feronia was in there picking out the different things that had been stolen from different places, weren’t you ?”

This question being objected to, the prosecuting attorney said:

This witness has testified here as a good character witness, and I am asking the question in regard to that point, and I have asked this question of this witness, if he didn’t see that girl and hear her pick out the stuff there that had been brought from her mother’s own home.
The Court: The question is proper.
“Q. Didn’t you see it ?
Respondent's Attorney: I think the question is improper. I will ask for an exception.
_ “A. No, sir; I didn’t; for I wasn’t in the room at the time the lady was there, Miss Feronia Huff. * * *
“Q. You do know that a large quantity of stuff was taken out of the house immediately upon this disclosure and returned to the different stores in the city, do you not?
“A. No, sir; I don’t.
“Respondent's Attorney: I object to that; a way to state a lot of things that are not facts, for the purpose of getting them before the jury, which are not true; trying to place them into the witness’ mouth, and the witness keep saying ‘ No,’ and the jury hear the questions nevertheless. The questions are not material, any of them; they wouldn’t go to show one iota whether this man knew anything about this woman’s reputation for truth and veracity in a single instance. I don’t believe they are admissible; I object to them.
“The Court: If he knew all these things, it seems to me that it would shake his confidence a little in her character.
“Q. You did know that there was a good deal of stuff taken from her home, didn’t you ?
“A. Yes, sir; I saw it in the detective’s room. The papers claimed that it was stolen from some of the dry goods houses here in the city. I knew they claimed that; but I didn’t know that a good deal of that had been identified and returned to the dry goods houses. I didn’t talk with the Huffs about that. I didn’t know that any of it had been returned. I didn’t know that that was what Feronia was doing down there that day that you and I were there, I didn’t know she was picking out the things and telling which house it had been taken from.”

Not only was it improper to show the conduct of the co-respondent, Feronia Huff, relating to other goods which the people claimed had been stolen on other occasions (People v. Lyons, 49 Mich, 78-81 [13 N. W. 365]), but it was error to permit cross-examination as to individual opinions formed or expressed subsequent to the date of the claimed larceny, and after certain things had become known which may have cast suspicion upon respondent. People v. Pyckett, 99 Mich. 613 (58 N. W. 621).

Upon this subject Wigmore says:

“ Where the desired character is that of a party — for example, the defendant in a criminal charge, the prosecutrix in a rape charge, or the plaintiff in a statutory action for seduction, — it is obvious that after the charge has become a matter of public discussion, and partisan feeling on either side has had an opportunity to produce an effect, a false reputation is likely to be created — a reputation based perhaps in part upon rumors about the very act charged, or upon the interested utterances of either party. The safeguards of trustworthiness are here lacking.” 2 Wig-more on Evidence, § 1618, citing Brown v. State, 46 Ala. 175, 184; White v. State, 111 Ala. 92 (21 South. 330); White v. Commonwealth, 80 Ky. 485; People v. Brewer, 27 Mich. 133, 135; State v. Forshner, 43 N. H. 89, 90 (80 Am. Dec. 132); State v. Sprague, 64 N. J. Law, 419 (45 Atl. 788); State v. Laxton, 76 N. C. 216, 218; Wroe v. State, 20 Ohio St. 472; State v. Taylor, 57 S. C. 483 (35 S. E. 729, 76 Am. St. Rep. 575); State v. King, 9 S. D. 628 (70 N. W. 1046); Lea v. State, 94 Tenn. 495 (29 S. W. 900); Spurr v. United States, 31 C. C. A. 202, 87 Fed. 701; Carter v. Commonwealth, 2 Va. Cas. 169.

In White v. Commonwealth, supra, the court said :

“ The only reason for stopping the inquiry at either point [time of discovery or time of arrest] is that the probabilities of innocence arising from previous good character may not be destroyed or embarrassed by the fact that the offense under consideration has been committed. * * * After the discovery that an, offense has been committed, a previous good character may be destroyed and a bad one created by discussion of the circumstances connected with the offense, as well before as after the formal charge of legal proceedings is had.”

It is well settled that, when a witness is called to attack or defend character, he can only be asked, on his examination in chief, as to the general character of the person in question; and he will not be allowed to testify as to particular facts, either favorable or unfavorable to such person; but, upon cross-examination, he may then be asked, with a view to test the value of his testimony, as to particular facts. 1 Taylor on Evidence, § 352; 3 Rice on Criminal Evidence, § 375; State v. Merriman, 34 S. C. 16 (12 S. E. 619).

Evidence, however, of general good character previous to the date of the transaction charged cannot be rebutted by evidence of bad character after the act, and the cross-examination must be confined to acts prior in time to the act charged. People v. Laird, 102 Mich. 135 (60 N. W. 457), and note.

Ora May Sylvia, another daughter of respondent, was sworn as a witness in her behalf. On her direct examination she had testified that she was at respondent’s home, and saw the latter undo various articles and put them back into her pocketbook, and also saw respondent put certain wrapping paper into her pocketbook, which came off from the bundles, presents, bought before Christmas, and described how they were folded up and put back. The people had offered evidence tending to show that certain articles were found in the pocketbook, unwrapped, and that there was folded wrapping paper in the bag at the time of respondent’s arrest. This witness had also testified that respondent was intending to send some presents to a sister at Midland.

Upon cross-examination this witness was interrogated as to the articles and wrapping paper, and the following occurred:

“Q. You got some Christmas presents up to your mother’s house that you gave over to the officers, who took them back to the stores, didn’t you ?
“A. Yes, sir.
Respondent’s Counsel: That is under the same objection and exception.
“Q. You found out afterwards that this tablecloth that your mother gave you for a Christmas present belonged to one of the stores overtown ?
“A. Well, I haven’t found out yet.
"Q. It has been returned, hasn’t it ?
“A. Not that I know of.
"Q. That is the way you understand it ?
“A. Well, I don’t know; I don’t understand anything about it.
“Q. You never made any claim for it, did you ?
“Respondent’s Counsel: The same exception.
“Q. When the officers came up and said, ‘We want that stuff that your mother gave you for Christmas,’ you just handed it right over and said nothing, didn’t you ?
“A. Well, supposing, if you had never been in trouble, a couple of large men would come up and say ‘Are you so and so ?’ tell them ‘Yes.’ Well, they come in; they come right in the house; they never waited for me to ask them in, or nothing; they come right in; they walk through the kitchen, through the dining room, into the front parlor, front room of the house; and they sit down. I didn’t ask them to sit down, and I didn’t know what they was going to do. I was alone with my baby, and they came in there, and they said they wanted the Christmas presents that my mother and sister had given me for Christmas. Well, of course, what would any one do but hand them over ? They had to. You would do the same if you never had been in trouble yourself. * * *
”Q. You handed the presents right over ?
“A. I told you that I gave them to him.
“ Q. You have made no claim to them since, have you ?
“A. No, sir.”

In the argument to the jury, the prosecuting attorney, against the objection and exception of respondent’s counsel, made the following argument and used the following language when referring to this witness:

“Under the testimony in this case, do you think that that girl got Christmas presents from her mother and couldn’t tell today what she got ? If you don’t believe that, then how did she get this stuff that she doesn’t remember what it was ? Why, that is dead easy; that is easy to me; under the testimony she got it as her mother got it, without regard to when or what it was. And when these men came up there to get it she recognized immediately the unlawful possession of it, and the unlawful right to have it given to her, and she just simply says, ‘take it, take it, take it,’ and they go in there and get whatever they want, and she doesn’t know what they took; and she didn’t know yesterday what these men had taken out of her house, goods of these storekeepers around town here that she says she got as a Christmas present; and the testimony doesn’t support her statement that it was a Christmas present, but it would rather support the theory that she had gotten them at the times, or about the times, when the mother had gotten them, and that she hadn’t paid any particular attention to it.”

The remarks of the prosecuting attorney, relating to this witness, were unwarranted by the evidence. Witnesses are entitled to respectful consideration; and it is the duty of the court to see that they are protected from the insinuations and attacks of counsel. There was nothing in the evidence to warrant the claim of the prosecutor that this witness was guilty of either larceny or receiving stolen goods, knowing them to have been stolen, and yet she was charged by him with both offenses. The case is fairly within the doctrine stated by us in People v. Lieska, 161 Mich. 630-638 (126 N. W. 636), and the cases there cited are applicable here.

The people’s principal witness in the case was Joseph U. Smith, chief of detectives of the police department of Grand Rapids. His testimony was vital to the people’s case, and there was a sharp conflict between his testimony and that of the respondent.

On the argument of the case, the prosecuting attorney went entirely outside of the evidence upon the subject, and used the following language relative to the witness Smith:

“And Mr. Smith, a man of years and years of skill and practice in his business, as he looks over that store, he sees these two women coming down along there, and skilled in the business, and he has mighty few equals, and we don’t know of any superiors, in that branch of the business, detecting people with their countenance and their conduct, and things of that kind.”

In our opinion, it was highly improper and reversible error for the prosecuting attorney, in the absence of testimony on the subject, to thus praise and extol the skill and standing of a witness for the people. Juries are apt to consider the prosecuting attorney as unprejudiced and impartial, and statements of fact made by him are apt to have great weight. This court has held that it is improper for the trial court to call attention to the high character of a witness in the charge.' Wisner v. Bardwell, 38 Mich. 278. It is equally improper for the prosecuting attorney to go outside the testimony and make such statements.

It is urged by the people that no ruling was made by the court upon the improper remarks of counsel. The record shows, however, that counsel for the respondent promptly objected to the remarks and called the court’s attention to the matter. The court declined to rule, and told respondent’s counsel to take an exception.

In People v. Sartori, 168 Mich., at page 318 (134 N. W. 204), this court said:

“Where, as in this instance, the attention of the court is called to the objection, a ruling requested, and no ruling made, we think the effect of the refusal or failure to rule should be held to be the same as an adverse ruling.”

For the errors pointed out, we are constrained to say that the respondent did not have that fair and impartial trial which the Constitution and laws of this State guarantee her. We find no other reversible error in the record.

The conviction is reversed and set aside, and a new trial granted.

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


author: Brooke, J.

text:
    PEOPLE v. TIBBETTS.
    Criminal Law — Trial—Jury—Exhibits—Taking Exhibits to Jury Room.
    On the trial of a criminal prosecution for keeping a house of ill-fame, it was not so erroneous as to constitute reversible error to permit the jury to take to the jury room an exhibit offered in evidence and examined by the jurors and consisting of a list of telephone numbers and names of subscribers whom the inmates of the house were accustomed to call up and invite in: although the practice is not commendable, the court will not reverse the conviction unless the respondent was prejudiced.
    Exceptions before sentence from the superior court of Grand Rapids; Stuart, J.
    Submitted January 21, 1913.
    (Docket No. 146.)
    Decided February 18, 1913.
    Effie Tibbetts was convicted of keeping a house of ill-fame. Affirmed.

      Louis T. Herman, Assistant Prosecuting Attorney, for the people.

      Dunham & Dunham, for respondent.
   Brooke, J.

The respondent was convicted of being the keeper of a house of ill-fame resorted to for the purposes of prostitution and lewdness.

Upon the trial there was introduced in evidence upon behalf of the people the following exhibit:

MEMORANDUM OF SUBSCRIBERS
Frequently Called for or Not Listed.
Call. Name. Call. Name.
Fire Department.In Case of Fire. Doctor.
Police Department.To secure Police or ambulance. Drugs.
Long Distance.To place a toll call. Grocer.
Information. To secure Nos. listed herein. Plumber.
Chief Operator. To report trouble or make criticisms.
Ethel. M 1750
John Slager. Citz. Comptrollers.
Aggie. M1863-
Cora. M 504
Ellen and Jessie. M 4509 R. M 3148
West Duncan. . M 4115 After Tuesday.
Mrs. Roberts. M 3148 Afternoons until 10 p. m.
Blanche. M 4740
Bertha Myers. M 4266 J.
Note': M. Main. S. South. B. Berlin. D. Dutton. G. Grand.

We presume, though the record does not so show, that the exhibit was taken from the respondent’s house. Evidence was given by at least one inmate of the house that, under the direction of respondent, she used said exhibit, that she called “Ethel” and “ Mrs. Roberts ” “because there was some man up there.” After the jury had retired the foreman called for the exhibit. At this time neither respondent nor her counsel were present. The court directed the exhibit to be delivered to the jury. This was done, and shortly thereafter a verdict of guilty was returned.

But one error is assigned, viz.:

“ The court erred in permitting the jury to have during its deliberation people’s Exhibit A.”

Respondent relies upon the case of People v. Dowdigan, 67 Mich. 92 (34 N. W. 411), where this court said:

“ We do not think the court was justified in sending the papers to the jury room. It is a dangerous practice even in civil cases, and one not often to be indulged in, and in criminal cases never.”

In the case there under consideration the papers sent to the jury consisted of the original complaint of the complaining witness, Mary Penasa, her evidence reduced to writing taken on her examination before the magistrate, together with the written evidence of another witness taken at the preliminary examination. These papers were sent to the jury room over the objection of counsel for respondent. The case now before us presents no such question as was involved in the Dowdigan Case. Here the exhibit in question was simply a card containing certain names and telephone numbers. Respondent, as well as the people, had offered testimony touching the use to which the exhibit had been put by respondent, and the exhibit itself had been passed around and examined by the jury during the trial. In Tubbs v. Insurance Co., 84 Mich. 646 (48 N. W. 296), after reviewing the cases upon this question, it is said:

“ The true rule seems to be that, where exhibits have been fully proven and admitted in evidence, and their authenticity is unquestioned, and there is no testimony to impeach their contents, it is within the discretion of the trial court to allow them to be taken to the jury room, although objection is made.”

See, also, Farrell v. Haze, 157 Mich. 374 (122 N. W. 197). It will be noted that this language was used in a civil suit. While the practice pursued in the case at bar is not to be commended, we are of opinion that it does not constitute reversible error, for the reason that the respondent could not have been prejudiced through the submission of the exhibit in question to the jury.

The conviction is affirmed.

Steers, C. J., and Moore, McAlvat, Stone, Ostrander, and Bird, JJ., concurred. Kuhn, J., did not sit.


author: McAlvay, J.

text:
    HAYES v. CITY OF ST. CLAIR.
    I. Municipal Corporations — Notice op Claim — Personal Injuries.
    Where plaintiff’s notice to a city of the fourth class claiming damages by reason of personal injuries sustained in falling on a defective sidewalk contained a statement of her injuries as follows: “She was severely wrenched, strained, and bruised; her back and legs and the tendons and ligaments thereof were wrenched, bruised, and strained; she had, some two years prior to that time, undergone a surgical operation and that the attachments formed after suoh operation were torn loose and that she was severely and permanently injured internally, the extent of which is unknown to your petitioner at this time; that at the time of said accident she was in a family way and said fall caused her to have a miscarriage; that ever since said fall she has suffered great mental and physical pain, and has been incapacitated from doing any labor, and prevented from having any amusement, reoreation, and pleasure; that she is advised that her injuries are permanent and further developments may show other and different injuries than have so far beoome known,” it was a sufficient statement of the extent of injury to permit her to recover for injury to the pedicle of the left ovary and consequent hindrance to proper circulation, rupture of blood vessels, adhesion to the intestines and inflammation of the surrounding organs.

    3. Same.
    A liberal construction of statutes requiring such notice is favored so as to permit a recovery if a substantial statement of the injury is made.

    3. Same — -Declaration—Amendment op Pleadings.
    Plaintiff was not improperly permitted to amend her declaration after the trial had proceeded about eight days, the court granting to defendant an adjournment for two weeks, where the amendment changed the averment of the declaration that plaintiff had previously enjoyed good health and substituted for it allegations showing the operation, its effect on her health and described exactly and correctly the injuries sustained.
    4. Same — Evidence—Trial—Special Questions.
    And after admitting testimony that adhesions formed after plaintiff’s fall and that it might have torn them loose, the court’s charge that the evidence so admitted was incompetent, but submitting to the jury special questions based on the excluded testimony was misleading and prejudicial.'
    6. Same.
    It was also improper to admit testimony as to an operation performed on plaintiff which had nothing to do with the fall or injuries caused thereby.
    Error to St. Clair; Tappan, J.
    Submitted January 24, 1912.
    (Docket No. 120.)
    Decided February 18, 1913.
    Rehearing denied March 21, 1913.
    Case by Ida Hayes against the city of St. Clair for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Lincoln Avery and Thomas Sawyer, for appellant.

      Walsh & Walsh and Hart & Pepper, for appellee.

       As to sufficiency of description of injury in notice of claim, see note in 30 L. R. A. (N. S.) 804.

       As to validity of requirement of notice of injury as a condition of municipal liability, see note in 36 L. R. A. (N. S.) 1136.

   McAlvay, J.

This is an action brought by plaintiff against defendant to recover damages for personal injuries received by plaintiff by falling upon a sidewalk within the defendant city, claimed to have been caused on account of the negligence of the officers and agents of defendant in permitting the sidewalk to remain out of repair and in a condition not reasonably safe for public travel. The trial resulted in a verdict against defendant, upon which a judgment was entered, and from which the defendant has brought the case to this court for review upon writ of error.

This claimed injury occurred March 29, 1909, on one of the public streets of the defendant city, which is a municipal corporation, operating under the general charter for fourth-class cities, as provided by law. By a provision of the law under which defendant is organized, before bringing any suit by any individual' claiming damages, for injuries sustained by reason of any defective street or sidewalk within said city, a written notice must be given within 60 days after such injury shall have occurred, as follows (section 1 of chapter 22, Act No. 215, Pub. Acts 1895):

“No city subject to the provisions of this act shall be liable in damages sustained by any person in such city, either to his person or property, by reason of any defective street, sidewalk, crosswalk or public highway, or by reason of any obstruction, ice, snow or other incumbrance upon such street, sidewalk, crosswalk or public highway, situated in such city, unless such person shall serve, or cause to be served, within sixty days after such injury shall have occurred, a notice in writing upon the clerk or the deputy clerk of such city, which notice shall set forth substantially the time when and place where such injury took place, the manner in which it occurred and the extent of such injury as far as the same has become known, and that the person receiving such injury intends to hold such city liable for such damages as may have been sustained by him.”

A notice, duly verified, under the provisions of the above section, was duly filed and served by the plaintiff upon the city clerk May 26, 1909, within the limit of 60 days, which contained all the necessary requirements of such notices. The portion of this notice, which sets forth the extent of plaintiff’s injuries, is as follows:

“Your petitioner shows that by reason of said fall she was severely wrenched, strained, and bruised. Her back and legs, and the tendons and ligaments thereof, were wrenched, bruised, and strained. She had, some two years prior to that time, undergone a surgical operation, and that the attachments formed after such operation was torn loose, and that she was severely and permanently injured internally, the extent of which is unknown to your petitioner at this time; that at the time of said accident she was in a family way, and said fall caused her to have a miscarriage; that ever since said fall she has suffered great mental and physical pain, and has been incapacitated from doing any labor, and prevented from having any amusement, recreation, and pleasure; that she is advised that her injuries are permanent, and further developments may show other and different injuries than have so far become known.”

Plaintiff’s declaration, filed December 7,1909, in the averments, as. to the description of the injuries for which damages were claimed, followed substantially the description in the foregoing notice.

Upon the trial of the case, after eight days had been occupied in putting in plaintiff’s case, and when her main case was all in, counsel on her part made a motion to amend the declaration, which was objected to by counsel for defendant, who at once made a motion for a directed verdict in its behalf upon several grounds, one of which was that there was a total variance between the averments of the declaration and plaintiff’s proofs. During the discussion which occurred when the motion to amend was made, this situation was recognized by plaintiff’s counsel, who said:

“The situation is simply this: The amendment is one which either has to be granted or else we have to withdraw a juror and stop the case. The allegation in the declaration is just the entire opposite to our case.
The Court: It apparently alleges these conditions prior to the accident.
Counsel for plaintiff: Yes, which we claim to be the result of the accident. The amendment has to be granted, or we have to submit to a nonsuit or quit. In that amendment we will withdraw the statement that she was entirely in good health.”

After considerable colloquy and argument, the court requested the amendment to be submitted in writing. A recess was had, and later the following proposed amendments were presented:

“ (4) Plaintiff avers that prior to said injury she was accustomed and did perform the work of her household in and about her home; that she was free from pain, and her nervous condition was such that, without a severe shock, she was not troubled with or suffering from nervousness; that she had an operation performed about two years prior thereto consisting of the removal of a fallopian tube; that after such operation, for upward of a year prior to said injury, she had had no pain and trouble in and about her private parts, and her intestines and bowels were in a healthy condition. She had also prior to said injury a simple goiter.
“ (5) That by reason of the said several premises she (the said plaintiff) then and there became and was severely wrenched, bruised, and strained; the ligament known as the pedicle, joining the left ovary to the broad ligament, was twisted; the circulation of the ovary was impeded, and the ovary became diseased, weakened, and the blood vessels thereof were ruptured, causing a clot of blood to form therein; that an adhesion of the left ovary with the intestines formed; that inflammation of the ovaries and intestines was set up, and the ovaries and intestines were inflamed, bruised, and wounded and injured, and she was greatly bruised and injured internally; that a miscarriage was caused, and her entire nervous system has been permanently weakened and injured, all of which produced and caused a great amount of pain and suffering; that ever since said fall as aforesaid, and as a result thereof, plaintiff has suffered, and will continue to suffer as long as she lives, great mental and physical pain, and has been deprived of the use of her mental faculties a great portion of the time, and has been incapacitated from any labor, and prevented from having any amusement, recreation, or pleasure, and has been confined to her bed a large amount of the time; that all of said injuries are permanent, and that she will continue to suffer great pain, mental and physical, as long, as she lives, and will be incapacitated from performing any labor, and prevented from having any amusement, recreation, or pleasure as long as she may live, and will suffer in the future, as long as she lives, great bodily pain, great inconvenience, and annoyance.”

The objections of counsel for defendant were that the declaration, as amended, presented a new cause of action, different from the cause presented by the original declaration, and from the notice filed with the city clerk, under the statute, and that the declaration, as amended, would show on its face that no notice of the injuries claimed by such amendments was ever filed and served, as required by the statute.

The principal question, therefore, presented for consideration is whether, under the notice given to defendant, the extent of the injury, as far as the same had become known to plaintiff, was sufficiently stated and described to permit the introduction of the testimony upon the trial of the case, which, it is claimed by defendant, introduces and proves a distinct and different injury. The construction of this requirement of the statute has been several times before this court since its enactment in 1895. Defendant’s contention is that the internal injury proved and the one described in the notice are not the same injury, and that, in that respect, the case is similar to the case of Ridgeway v. City of Escanaba, 154 Mich. 68 (117 N. W. 550), where this court said:

“ This was not a notice that was defective upon its face, and the case must turn here, as it did in the trial court, upon the question of its containing a substantial statement of the extent of the injury, so far as it was known. It certainly misdescribes the injury. It states an injury that had not been suffered. There was no broken shoulder blade, nor was the shoulder dislocated, and there was no injury whatever to his right arm, shoulder, shoulder blade, or clavicle, the entire description of the injury must be discarded, and that would leave the notice wanting in any description of the injury actually suffered.”

The injury proved in that case was a dislocated and broken collar bone upon the left side.

In the instant case there is no question raised as to a variance between the declaration, as originally filed, and the notice of the injury given to the defendant under the statute. The requirement of the statute material to this discussion relates to the notice which must be given within 60 days, and provides that the notice “ shall set forth substantially * * * the extent of such injury, as far as the same has become known.”

The injury in question was internal, and the notice, after reciting a former operation, described the injury as follows:

“That the attachments formed after such operation were torn loose, and that she was severely and permanently injured internally, the extent of which is unknown to your petitioner at this time.”

This injury, as described in the amended declaration, after statement of the former operation, was as follows:

“ The ligament known as the pedicle, joining the left ovary to the broad ligament, was twisted. The circulation of the ovary was impeded, and the ovary became diseased and weakened, and the blood vessels thereof were ruptured, causing a clot of blood to form thereon; that an adhesion of the left ovary with the intestines was formed; that inflammation of the ovaries and intestines was set up, and the ovaries and intestines were inflamed, bruised, wounded, and injured.”

In the cases where this court has discussed this statute, the inclination has been not to strictly construe it, and the attitude of the court toward it is expressed in Ridgeway v. City of Escanaba, supra, as follows:

“We have been inclined to favor a liberal construction of statutes requiring notices of claims, and have not denied relief when by any reasonable interpretation the notice could be said to be in substantial compliance with the statute.”

In Tattan v. City of Detroit, 128 Mich. 650 (87 N. W. 894), the court said:

“ This statute [city charter] is one in derogation of common right. It should not be ^ construed with liberality against the right of an injured party to maintain an action against the city, but, on the other hand, should receive a reasonably strict construction ”—

Citing with approval Brown v. City of Owosso, 126 Mich. 91 (85 N. W. 256), wherein it is said:

“This notice is not a pleading, and the requirement should not receive so strict a construction as to make it difficult for the average citizen to draw a good notice, especially in view of the evident intention that a substantial statement should be sufficient.”

In the instant case, the notice described the nature of plaintiff’s injuries, and that the attachments formed after a certain surgical operation had been torn loose; that she was severely and permanently injured internally, the extent of which was unknown to her at the time; and further that such injuries were permanent, and “that further developments might show other and different injuries than have so far become known.” It is our opinion where, as in this case, the injury is internal and obscure, and its exact description could not be known at the time, the notice given was sufficient to permit the testimony claimed to be objectionable to be admitted, so far as it tended to prove this internal injury to be the cause of certain adhesions of the intestines and certain internal organs.

It cannot be disputed but that this injury is closely related in character to the injury set up in the notice, and it could not have been known, at the time of giving this notice, whether certain adhesions following a former operation had been torn asunder, or whether, by means of the claimed injury, adhesions had been caused in the same locality, all of which was disclosed by the operation subsequent to the injury. Upon the question of the construction of provisions in municipal charters and statutes requiring notices of injury to be given, reference is had to the case of Spear v. City of Westbrook, 104 Me. 496 (72 Atl. 311, 20 L. R. A. [N. S.] 804), and notes.

This brings us to the proposition whether, under the circumstances, the court erred in permitting the amendments to the declaration which were asked by plaintiff. It is urged by defendant that these amendments introduced a new cause of action, and were therefore not permissible. Having disposed of defendant’s contention that no statement of the injury was included in the statutory notice given, contrary to such contention, it follows that the amendments allowed did not introduce a new cause of action, and were permissible, under the general statute of amendments, in so far as they were within our construction of the notice given. The court, in granting these amendments to the declaration, recognized the fact that it might be a matter of surprise to defendant, and ordered a continuance for two weeks.

Error is assigned upon the refusal of the court to charge, as requested by defendant, that, from the undisputed facts in the case, plaintiff was guilty of contributory negligence. We think that the question of contributory negligence of plaintiff was a disputed question of fact to be determined by the jury.

After the close of defendant’s case, a physician was sworn in rebuttal on the part of plaintiff. He was examined at great length, both on direct and cross-examination; such examination covering many pages of the record. Part of this was over the objection and exception of defendant; but it was all admitted and allowed to stand. Briefly stated, it appears, from the examination of this witness, his testimony tended to show that there were former adhesions existing at the time of the injury elaitaed, and that the fall tore them apart. During the colloquy between counsel and the court, while this witness was testifying, the court said that he would finally rule upon the objections made by defendant in his charge to the jury, and at the time counsel for defendant said to the court:

“We want to know, by the ruling of the court, upon what theory the testimony is to be admitted, upon which branch.”

The court charged the jury that plaintiff, having made no claim for damages on account of the aggravation of the pre-existing conditions, said:

“Therefore, if you find from the proofs that the ovary and bowels were in fact diseased before the accident, and the accident itself augmented, aggravated, or made their diseased condition worse, then there can be no recovery on account of these injuries, even though you should find that they resulted from the fall on the defective sidewalk, as plaintiff claims”—

And further charged that if the jury found that plaintiff’s internal organs had recovered from the effects of prior disease and operation, and were in a normal condition, so far as disease or adhesions to the bowels were concerned, and found that the fall on the sidewalk was the cause of the diseased condition of the organs, as described, then this condition and all resulting pain are traceable to the accident itself. And the court further charged:

“You will also recall that Dr. Inches’ testimony to the effect that plaintiff’s fall on the sidewalk may have torn loose adhesions between the organs which had formed before the accident as a result of the Toledo operation. It is my conclusion that this evidence is not competent under the pleadings. The plaintiff’s theory of this ease is based upon the proposition that after the Toledo operation plaintiff’s ovary and bowels became normal, and whatever adhesions between the organs had formed were the direct result of the accident, and not in existence at the time of the accident. And you will confine your deliberations to the evidence that may tend to show this theory.”

Special questions were submitted to the jury, two of which were as follows: “Were the adhesions existing when plaintiff fell?” and “Were the adhesions torn loose by the fall ? ” Each was answered in the negative.

Upon the charge of the court to the jury, above quoted, error is assigned, based upon the contention that the above questions, whether adhesions existed at the time of the fall of plaintiff or were caused by the claimed injury, having been submitted by the court to the jury, the testimony of this physician was material; and striking it out and instructing the jury to consider only plaintiff’s theory was prejudicial error. In holding that the testimony of Dr. Inches was not admissible and should not be considered, and charging the jury that it should not be taken into consideration by them, practically all evidence on the part of defendant, which tended to show that adhesions existing before this injury were torn loose by the fall, was eliminated from the case, and the jury was charged to confine its deliberations to the evidence that might tend to prove plaintiff’s theory. This is certainly inconsistent, and cannot be reconciled with the submission of the two special questions above quoted, and with that portion of the charge to the jury that there could be no recovery on the ground of injuries which aggravated or augmented an existing condition. Such holding, on the part of the court, was erroneous. This evidence, which was taken by the court from the consideration of the jury, was incompetent as a basis for damages under the amended declaration, but was competent for the purposes we have indicated.

Two physicians (Dr. Burtless of Port Huron and Dr. Angus McLean of Detroit), witnesses on the part of plaintiff, were allowed to testify relative to an operation performed on plaintiff to remove a movable coccyx. All this testimony was admitted over the objection and exception of defendant that it was incompetent under the pleadings. Both witnesses testified that the condition was not caused by the fall on the sidewalk. It was given at great length, and described the suffering attending the condition and the operation in detail. This testimony was allowed to remain in the case during the whole trial, until the charge by the court to the jury, when a brief instruction was given not to consider this testimony relative to an injured coccyx, or the operation, as an element of damage, because it was incompetent. It is the contention of the defendant that the admission of this testimony was erroneous and prejudicial; that the jury was liable to be prejudiced against defendant and increase the damages. It must have been apparent to court and counsel for plaintiff, during the taking of this testimony, that it was inadmissible under the pleadings, and that, from the statement of both witnesses, the injury to the coccyx was not caused by the fall upon the sidewalk, and that defendant’s objection should have been sustained, and all this testimony excluded. We do not determine that this was reversible error; but, as the judgment must be reversed for other reasons, upon a new trial all testimony upon this subject must be excluded. Other errors assigned will not require discussion.

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

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


text:
    MENTLIKOWSKI v. WISNIEWSKI.
    1. Mistake — Lease—Specific Performance.
    Evidence tending to establish a mistake of defendants in executing a lease with option to purchase real property, examined, and held, insufficient to overcome the testimony of complainants that the option corresponded with the intent of the parties.
    2. Specific Performance — Option — Landlord and Tenant — Vendor and Purchaser.
    Upon exercising an option to purchase leased premises and notifying the landlord of their intention to take advantage of the proposal contained in the contract of letting, the tenants who continued in possession and paid rent were entitled to have the amount of such rental, subsequently paid, applied on the purchase price, in a suit for specific enforcement.
    3. Same — Equity—Improvements.
    As to permanent improvements put on the property after the tenants took possession, the landlord should receive the amount of his expenditures in addition to the purchase price; but should not be allowed for improvements necessary to put the premises in habitable condition.

      Appeal from Wayne; Donovan, J.
    Submitted January 30, 1913.
    (Docket No. 82.)
    Decided February 18, 1913.
    Bill by Joseph Mentlikowski and others against Jacob Wisniewski and another for specific performance of an option to purchase real property. From a decree for complainants, defendants appeal.
    Modified and affirmed.

      August Oyrowski, for complainants.

      Edmund Atkinson {Frank W. Atkinson, of counsel), for defendants.
   Stone, J.

The bill of complaint in this cause was filed to obtain the specific performance of a contract for the conveyance of certain premises owned by the defendants by the entirety. On February 1, 1910, the defendants and appellants were the owners of the premises in question, situated at 745 Harper avenue, in the city of Detroit, and fully described in the bill of complaint. The property consists of two lots and a two-story frame house thereon, which house is used for grocery, saloon, and dwelling purposes. On the day above named, the defendants leased the premises to the complainants by a written lease at a rental of $30 per month, payable in advance, for the period of three years, from and after the 1st day of May, 1910. The lease, among other things, contains the following paragraph:

“ It is also agreed that said Joseph Mentlikowski and Michilina Mentlikowski, his wife, have the privilege of purchasing said premises during the first year of this lease for the sum of forty-two hufidred and fifty ($4,250-.00) dollars, and after the first year, during the term of this lease, they have the privilege of purchasing the premises for the sum of forty-three hundred and fifty ($4,350.00) dollars.”

On or about the 28th day of April, 1911, complainants demanded of defendants a deed of said premises, and offered to perform their part of the agreement. The defendants absolutely refused to convey said premises to complainants, and thereupon the bill of complaint in this cause was filed, praying for specific performance of the above agreement. The defendants answered, claiming that there was a mutual mistake in said lease and agreement, and alleging that defendants intended by such agreement only to give complainants the first chance to buy said premises in case defendants might desire to sell the same, and, claiming the benefit of a cross-bill, prayed that the agreement be reformed in accordance with the intention of the parties. The cause was heard before the trial court upon the testimony of witnesses taken in open court as in a suit at law.

The principal controversy upon the hearing was as to whether there was any mistake in the making of the lease and agreement, and there was some conflict in the testimony upon this subject. The parties are all Polish people, and are not very familiar with the English language. It is uncontroverted that the agreement was written by a countryman and acquaintance of the parties, Basila Lemkie, who wrote the instrument at the request of both parties. This witness testified fully that the parties told him in the Polish language everything which they wanted in the lease, and that he prepared it with care, and read it over and translated it to them. He used this language:

“ They told me what they wanted in Polish, and I read it over and translated it back again. In important matters I generally do this.”

He testified fully to the effect that the parties both understood the conditions of the lease, and that he not only explained it at their request, but also prepared the instrument in duplicate, giving one draft to the complainants and one to the defendants. An examination of the testimony of the parties shows that some parts of their testimony are inconsistent with their respective claims. We think this is due to the fact of their inability to express themselves in the English language. While there are some inconsistencies on both sides in the testimony of the witnesses, yet in view of the facts that the contract is very clear and explicit in its terms upon its face, and that it appears to have been drawn by Mr. Lemkie, and fully explained to the parties, we think by a clear preponderance of the evidence there was no mutual mistake, and that the contract should be permitted to stand, and that there should be a substantial specific performance of the same. It appears that the defendants had mortgaged said premises, and that at the time of the hearing there was due for principal and interest upon said mortgage the sum of $2,956.39.

The complainants having elected within the first year to take said premises at the price named, the court decreed specific performance of the contract upon payment to appellants of the sum of $4,250, less the amount of the mortgage. The trial court, applied the rent paid subsequently to the commencement of this suit, being for eight months at $30 per month, amounting to $240, on the purchase price. In this we think the trial court committed no error. In their brief defendants seem to misapprehend the facts upon this point, and claim that the court applied on the purchase price the money paid as rent before the time of the exercise of the privilege to purchase. In this we think the defendants are wrong. The decree is explicit in stating that this $240 was paid after the commencement of the suit, and such from the testimony would seem to be the fact.

It is further claimed by the defendants that they have expended upon the property altogether, after complainants went into possession, in repairs and improvements, the sum of $244.66, and they ask to be allowed this sum. An examination shows, however, that $37.25 of this amount was spent in repairs, upon the house and sewer, to render the premises tenantable or habitable, and we think this latter amount should be deducted from the $244.66, leaving the sum of $207.41, which should be allowed to defendants for permanent improvements upon the property by way of pavement and cement sidewalk. We have frequently held that a party is not entitled as a matter of right to specific performance of a contract, and, where the same is prayed for, that complainants should do equity. If the complainants are to obtain these premises, it is only equitable under the circumstances, as shown in this record, that defendants should be recompensed for this outlay of $207.41 for permanent improvement of the premises, and this amount will be decreed to be allowed to said defendants. By the terms of the contract the complainants were to pay in cash the price of $4,250. They should be permitted to have deducted from this sum the amount necessary to release the mortgage upon the premises. We think it equitable that complainants should obtain and tender to the defendants a release of this mortgage and of all liability of the defendants thereunder. We understood at the hearing that complainants were prepared and willing to do this, and we think the decree should so provide.

The decree below will be modified as above indicated, and in all other respects affirmed. The complainants should recover of defendants their costs in the court below to be taxed, but the defendants should be allowed their taxable costs in this court.

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


author: Steere, C. J.

text:
    SCHADT v. BRILL.
    1. Deeds — Restrictions—Notice—Vendor and Purchaser.
    The record of a deed from persons platting a subdivision containing restrictions as to the size and kind of buildings to be ' erected on the lots, is notice to a subsequent purchaser through an instrument of conveyance having no restrictions.
    2. Same — Waiver.
    That another house, in violation of the building restrictions, had been, constructed over a quarter of a mile away and across a 60-foot street, in a part of the subdivision not so exclusively residential, and that no one objected, did not operate as a waiver of complainant’s rights.
    3. Same.
    A person owning property in restricted territory does not waive or lose his right to enforce restrictions when violation of them becomes especially injurious to him on the ground that he has previously omitted to protest against other violations or to insist on the observance of restrictive covenants in other portions of territory not particularly affecting him.
    4. Same.
    Under a restriction against the construction of stores, factories, or other buildings than a dwelling house with usual appurtenances, costing at least $5,000 and of not less than two and a half stories, the owner of a lot is prohibited from erecting a double house, with a single entry way, intended for the use of two families.
    5. Same — Words and Phrases.
    A dwelling house is the house in which a man lives with his family; a residence; the apartment or building or group of buildings occupied by a family as a place of residence; it is not two homes under one roof or a double house.
    Appeal from Wayne; Hosmer, J.
    Submitted January 29,1913.
    (Docket No. 123.)
    Decided February 18, 1913.
    Bill by Mary Sehadfc against Daniel Brill and another for an injunction against the violation of building restrictions. From a decree for complainant, defendants appeal.
    Affirmed.

      Louis C. Wurzer and Harry B. Keidan, for complainant.

      George B. Greening, for defendants.
   Steere, C. J.

In this case defendants have appealed from a decree of the circuit court of the county of Wayne, in chancery, enjoining them from erecting any double house, flat, or dwelling house building, intended, or suitable, for the separate occupancy of more than one family, upon lot 5, of the Whitney subdivision of part of private claim 678, fronting on the west side of Grand Boulevard East, in the city of Detroit. Said subdivision consists of 77 lots, 32 of which front on the west side of Grand Boulevard East, and 45 on the east side of Helen avenue, the next parallel street to the west. All deeds and land contracts given by the platters of said subdivision for any of said lots contained the following restrictions:

“ This conveyance is made upon the express condition that no store, factory or building, other than a dwelling house with the usual appurtenances thereto, shall be erected upon the above-described premises, and that said premises shall be used for residence purposes only, and that no dwelling shall be erected thereon at a cost of less than $5,000, exclusive of the value of outbuildings and appurtenances thereto, and that such dwelling house shall not be less than two and one-half stories high, and shall have a brick or stone cellar under the whole thereof, and shall not be erected within twenty feet of the front or street line of said premises, and shall front or face the boulevard.”

The testimony shows that the platters intended and advertised to make the Whitney subdivision an exclusive, high-grade, residential section of the city, to be occupied by attractive, private homes. The restrictions were generally, though not universally, understood, and interpreted in practical application, as permitting upon each lot nothing but a dwelling to accommodate a single family. Certain owners testify that was the controlling inducement in selecting this location for a home. All the lots in said subdivision have been sold to individuals, and these restrictions, construed to mean a single dwelling on each lot, have been strictly observed by the purchasers, with one exception. The exception is a double dwelling erected at the northerly end of said subdivision on lot 29, near Mack avenue, approaching the business district, close to the car line and near a schoolhouse. It is over 1,400 feet from complainant’s home, in another block; a street 60 feet wide separating the two blocks. There are no double houses, or other violations of the restrictions, in the block where complainant resides at the extreme northerly end of the subdivision on lot 1, and in which Brill is proposing to erect the structure in question.

Defendants are husband and wife. Defendant Daniel Brill purchased lot 5 from one August Peters, who had purchased it from the platters under a conveyance containing the restrictions above stated, but the deed from Peters to Brill omitted the restrictive covenant. The testimony shows, however, that Brill had knowledge of the same, both from an abstract of the title of his lot and from other sources, before he determined to erect the double house in controversy. It is undisputed that prior to the commencement of this suit Brill had procured plans for, and commenced building upon, lot 5 a double house (not intended for his own home) which was to be under one roof, with a single front entrance to a hall, from which entrances were to be provided to the separate establishments ; otherwise to be separated in two distinct parts by a solid division wall from the basement up, each part planned for the convenient accommodation of a single family. The testimony of various witnesses, supported by properly proven photographs of the location, shows that, while there are yet lots unimproved, the section is being developed into a handsome, attractive, and desirable home residence district, the houses so far built being a fine class of single private dwellings costing from $5,000 to $14,000; that relatively high prices were paid for lots in the subdivision and due attention has been paid to ornamentation of environment, modern improvements, and conveniences; that these improvements, made in compliance with the restrictions imposed, have enhanced values, and permitting double houses to be erected there would change the character of the neighborhood, militate against the scheme of development, render the location less desirable and depreciate the same. This is denied by defendants, who claim the double house it is proposed to build will be more costly and attractive in appearance than some of the houses already constructed there.

While there is conflicting testimony on that subject, and also as to Brill’s knowledge of existing conditions and restrictions, and of the circumstances under which he bought said lot 5, it being claimed and denied that he induced Peters to sell it under representations that he wished to secure it for the erection of a fine home thereon for himself in a residence district where only single dwellings were permitted, we regard those issues of minor importance, inasmuch as it is clearly manifest that he knew of such restrictions before he had perfected his plans and commenced building, and the record of Peters’ deed from the platters, containing restrictive covenants running with the land, is notice of the same to all subsequent purchasers. Bowen v. Smith, 76 N. J. Eq. 456 (74 Atl. 675); King v. Trust Co., 226 Mo. 351 (126 S. W. 415). The two controlling questions which the pleadings and proofs in this case present are:

(1) Does the previous construction of a double house on lot 29 in said district, without protest or interference by complainant, constitute a waiver of restrictions as to double houses, if such restrictions are imposed?

(2) Does the restrictive clause in the conveyances given by the platters of the property prohibit the erection of double houses ?

It appears undisputed that the double house on lot 29 is the only one in the entire subdivision, that it is in another neighborhood, over a quarter of a mile distant from complainant’s home, in a different block, with a street 60 feet wide separating the blocks. Witnesses residing in the same block with complainant testified that said double house was so far away that its erection in no way affected or changed the general character of their block or neighborhood and it was of no interest to them. A witness named Bollinger, who resides in the same block as complainant, within a hundred feet of said lot 5, and who built a house upon the lot he purchased costing $13,000, testified:

“ I certainly would not have built my dwelling there if I had understood there was going to be double houses there, and I bought with that understanding and idea. * * * It will certainly depreciate the value of my property if these double houses are permitted to be put up. Without question it would spoil the whole block. * * * There is only one double house that I know of in the entire subdivision, except the one being built by Mr. Brill, and that is surrounding vacant property up near Mack, across from the high school, and I should judge that it is about a couple of hundred or 300 feet from the next house, just guessing at it, the next dwelling. The double house that is going up there has not changed the character of the locality — of the block in which I live. I would not be interested up there. Mack avenue, where this house is, is a business district and right close to the car and across from the high school, and it is not so exclusive as down where I am. I don’t think that down there would hurt us a particle unless Mr. Brill would put his up, and that would change the character of the district. Our block still ¡retains its distinctive character as a private residence district.”

Upon this subject, as applied to this case, we can well adopt the language of the court in Bowen v. Smith, supra, wherein it is said:

“A violation of a restrictive covenant at a point on the tract distant from the lot of an individual lot owner may be of no interest whatever to such an owner, and cannot appropriately call for affirmative action on his part. It seems to me clear that any claim of bar asserted against the rights of an owner of a single lot by reason of acquiescence in the violation of restrictive covenants of this nature must be measured in its force by the relation of the asserted violation to the individual lot. I am unable to discern any duty, the failure of performance of which should operate as an equitable bar, upon the part of an owner of a single lot on a tract of land similar to the one now in question, to apply to the courts for the enforcement of restrictive covenants, the violation of which in no appreciable manner affect such owner. * * * The violations are manifestly all far from the lot of complainant, and in no way affect the desirability of complainant’s lot.”

In that case there had been over 50 violations in different parts of the restricted district.

We find the law well settled to the effect that a person owning property in restricted territory does not waive or lose his right to enforce the restrictions where their violation becomes especially and personally offensive and injurious to him and his property, by reason of his previous omission to take notice of violations, and insist on observance of the covenants, in cases not affecting him or his interests, or the locality in which his property is situated. Brigham v. H. G. Mulock Co., 74 N. J. Eq. 287 (70 Atl. 185); McGuire v. Caskey, 62 Ohio St. 419 (57 N. E. 53); Stewart v. Finkelstone, 206 Mass. 28 (92 N. E. 37, 28 L. R. A. [N. S.] 634, 138 Am. St. Rep. 370); German v. Chapman, L. R. 7 Ch. Div. 271; Lattimer v. Livermore, 72 N. Y. 174; Landell v. Hamilton, 175 Pa. 327 (34 Atl. 663, 34 L. R. A. 227); Spahr v. Cape, 143 Mo. App. 114 (122 S. W. 379); McDougall v. Schneider, 134 App. Div. (N. Y.) 208 (118 N. Y. Supp. 861); Rowland v. Miller, 139 N. Y. 93 (34 N. E. 765, 22 L. R. A. 182).

The remaining question to be considered is whether a proper construction of the restrictions in the deed prohibits the erection of double houses. Brill himself testifies: “I figure putting up a nice double house with one entrance.” If we regard the strict definition of the term he uses, he figures on building two houses in a set together— a pair — a house multiplied by two, composed of two equivalent or corresponding parts, containing the same portion of measure as to size, strength, etc., repeated. The fact that the proposed double house is to have one entrance, or be so designed externally as to resemble a single dwelling house, or more expensive, or of better architecture, is not of controlling significance. Buildings erected for apartment houses and flats often have a single front entrance, are generally more expensive than surrounding private residences, and, frequently, are of imposing and pleasing architecture. A double house is one step from the private home dwelling towards the latter class of places of abode, sometimes designated “ community houses.” The structure defendants propose to erect, standing alone, might not be in a sense unworthy of the neighborhood, but that is not the test in construing this restriction. If one can build a double house in that subdivision, all may do so. If permitted, it also opens the door to economize as to space and expenditure, thus by indirection evading the purpose of the minimum cost requirement. The restrictions in his deed prohibit the purchaser from erecting upon his lot any building “ other than the dwelling house with the usual appurtenances,” and no dwelling is to be erected thereon to cost less than $5,000. If “a dwelling house ” means also a double house, the latter may be built for $5,000, with the result that each family in the restricted district is, in effect, permitted to reside in a $2,500 house on a half lot. And we see no reason for stopping there if defendant’s contention is correct. If “ a dwelling house,” in the connection it is used, does not mean a house designed and constructed for the dwelling of a single family on each lot, a triple or quadruple house on each lot, designed for three or four families, if under one roof and with a single entrance, would be a departure from a single dwelling only in the degree of physical difference, and not in violation of any legal restriction. Furthermore, if the restrictions do not prohibit a double house, what legal purpose is served in feigning the external appearance of a single house by a single entrance and the style of architecture adopted ? Either this restriction means one dwelling for a single family on each lot, or there is no restriction except one house on each lot, designed to be a dwelling for as many families or persons as the owner sees fit, to cost not less than $5,000. A “ dwelling house ” is—

“The house in which a man lives with his family; a residence; the apartment or building, or group of buildings, occupied by a family as a place of residence.” Black’s Law Dictionary.

Literally taken, this would seem to make each apartment in an apartment house “a dwelling house.” Taking the restriction in its common, ordinary, and popular sense, applying the legal definition of “a dwelling house,” and construing it in the light of the surrounding conditions and circumstances as proven, we conclude it was the intention to restrict buildings on each lot to a single dwelling, with its appurtenances.

We think this construction is in harmony with the principles announced in Brigham v. H. G. Mulock Co., supra, wherein it is said:

“The covenant forbidding more than one building to be erected upon each lot for dwelling house purposes is, in my judgment, broken by the erection of what is commonly known as a double house — that is, two houses under one roof. Such a structure is as much two buildings for dwelling house purposes as as though separate roofs existed.”

Also the following cases decided by this court: Harris v. Roraback, 137 Mich. 292 (100 N. W. 391, 109 Am. St. Rep. 681); Bagnall v. Young, 151 Mich. 69 (114 N. W. 674). In the latter case, which in principle is very similar to this, the following language is used:

“We decide that ‘ a two-story dwelling house ’ means, in this restriction, ‘ one two-story dwelling house ’ designed and used for a single dwelling, upon each lot.”

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

Moore, McAlvay, Brooke, Stone, and Bird, JJ., concurred.