author: Steere, J.

text:
    VAN GALLOW v. BRANDT.
    1. Equity — Demurrer—Waiver—Hearing.
    Unless a defendant, who demurs to a bill of complaint, presents the points raised to the court by argument or objection, the demurrer is waived by going to a hearing on the merits.
    2. Evidence — Wills—Parol Testimony to Explain Terms.
    Parol evidence is incompetent to vary or contradict the plain terms of a valid will.
    8. Same — Surrounding Circumstances of Testator.
    But the court may, in interpreting the language and construing the will in case the provisions are contradictory, or the terms ambiguous, consider the circumstances surrounding the testator when he made the will, and to that end may hear oral evidence as to the amount and nature of his property, his personal characteristics, his relations with and disposition towards those designated as objects of his bounty, and similar evidence as to his situation.
    4. Wills — Perpetuities—Parol Evidence Rule.

      Held, that the terms of a will devising property to testator’s sister, if she survived her husband, and in case of her death during the husband’s life, to her children, and if any of them died under age and without issue the share of deceased to go to the remaining ohildren, and providing that it was testator’s will to exclude such husband from participation in the estate, were not so ambiguous as to require the aid of parol evidence, and did not violate the statute prohibiting perpetuities. (3 Comp. Laws, § 8797).
    5. Same — Contingent Remainders — Vested Estates.
    The law favors the construction of a will, if possible, so as to create vested estates.
    6. Same-^-Per Capita Distribution — Devise.
    As a general rule claimants take per stirpes only when they stand in unequal degrees of relationship to testator, and are of different classes, but when they are of equal degree of relationship and of the same class they take per capita.

    7. Same — Class.
    A direction for division of certain specified property between members of a group, share and share alike, is construed as a direction to distribute per capita.

    8. Same — Distribution—Partition.
    Under a bill of complaint to construe a will, praying for a partition of decedent’s estate, which contained both real and personal property, the court in chancery properly decreed that the probate court should make the distribution and partition in assigning the residue of the estate.
    Appeal from Wayne; Hosmer, J.
    Submitted December 12,1911.
    (Docket No. 71.)
    Decided March 12, 1912.
    Bill by Charles Yan Gallow and Joseph Yan Gallow against Mary Theresa Brandt and others for the construction of a will. From a decree for defendants, complainants appeal.
    Affirmed.

      May & Dingeman, for complainants.

      Jay Fuller, for defendants.
   Steere, J.

The purpose of complainants’ bill is primarily to obtain a construction of the last will and testament of Francis Devroe, who died at Detroit, Mich., on March 14, 1909. Partition of the realty belonging to said estate is also sought. The two complainants are children of a deceased sister of testator, Natalie Van Gallow by name, who had been dead 26 years when the will in question was made. It bears date August 9, 1902. Defendant Mary Theresa Brandt is testator’s only living sister; the other defendants being her eight children, all over 21 years of age, and O. J. Termote, executor of said estate. Devroe had never married and was well advanced in years at the time of his death. When this suit was instituted, his will had been admitted to probate in Wayne county, and the executor had filed his final account; but owing to the pendency of this litigation the estate has not been distributed. It consists of realty valued at $4,500 and cash on hand, $3,155.70 after deducting all disbursements and expenses. Those portions of the will which give rise to this controversy and have a bearing on this issue before us are as follows:

“Third. Upon the death of said Caroline Ramsay I do hereby forever give, bequeath and devise said lot numbered fifty, described in paragraph 2 hereof, to Charles Van Gallow and to the children of my sister Mary Therese Brandt, in equal shares, share and share alike.
“Fourth. To Charles Van Gallow, Joseph Van Gallow and the children of my sister Mary Therese Brandt, I do hereby forever give, bequeath and devise, in equal shares, share and share alike, the west lot No. 65 upon which cottage No. 727 north side of Monroe avenue, between Chene street and Joseph Campau avenue, in said city of Detroit, is located, with all improvements thereon.
“Fijth. To my sister Mary Therese Brandt (if she survive her husband William Brandt), I hereby forever give, bequeath and devise the east lot No. 64 upon which cottage No. 729, north side of Monroe avenue, between Chene street and Joseph Campau avenue, in said city of Detroit, is located with all improvements thereon. In case my said sister (Mary Therese Brandt) should die before her husband, I hereby give, bequeath and devise forever the premises described in this paragraph five to the children of my said sister (Mary Therese Brandt), in equal shares, share and share alike, intending thereby that my brother-in-law (William Brandt), husband of my said sister (Mary Therese Brandt), shall not in any manner whatever participate in my estate; neither as heir of his wife or any of his children, and to that end I do hereby ordain, and it is my will and intent, that in case any one or more of the children of my sister die under age and without issue, that his or her surviving brothers and sisters shall inherit such respective share of any deceased child to the absolute and complete exclusion of its or their father (William Brandt).”
“Seventh. The rest, residue and remainder of my estate real, personal and mixed, I do hereby forever give, bequeath and devise in equal shares, share and share alike, to Charles Van Gallow, Joseph Van Gallow and to the children of my sister, Mary-Therese Brandt (being my nephews and nieces). The devise and bequests to the Brandt children to be strictly governed and construed by the language, terms and intent as expressed in paragraph five of this my will relating to the absolute exclusion of their father (William Brandt) as if the same were in this paragraph fully repeated.”

The record discloses that defendant Mary Theresa Brandt, by her counsel, demurred to complainants’ bill—

“ Because it appears by said bill that the same is exhibited against this defendant and the several other persons therein named as defendants thereto, for divers distinct matters and causes, in several whereof, as appears by the said bill, this defendant is not in any manner interested or concerned.”

But she went to a hearing with the other defendants on the merits without urging or arguing the demurrer, and must be deemed to have waived the same. Payne v. Avery, 21 Mich. 524; Snook v. Pearsall, 95 Mich. 534 (55 N. W. 459); Burnham v. Dillon, 100 Mich. 352 (59 N. W. 176).

Upon the hearing numerous witnesses were sworn by both sides, who testified at length, not only as to surrounding conditions, and the relations of testator with his beneficiaries at the time of executing his will, but also detailing various statements and declarations made by him from time to time as to what disposition he intended to make of his property, and what provisions he had made, and proposed to make, for his relatives. The announced object of this testimony was to illuminate ambiguities in the will and disclose the true intent of the testator. Objections were interposed at intervals by counsel on both sides, on the ground that the will is not ambiguous and speaks for itself.” We labor under the same uncertainty touching the attitude of counsel in making such objections as seem to have embarrassed the trial judge, who at one stage of the proceedings remarked, “If you are agreed upon that, I will strike out all the testimony;” but there is no record of any testimony having been stricken.

It is elementary that parol testimony is not admissible to contradict, subtract from, add to, or vary the plain terms of a valid will, yet, where the language is obscure or contradictory and the intent of the testator doubtful, the court may, in interpreting the language and construing such instrument, consider the circumstances surrounding the testator when he made his will, and to that end may hear oral evidence as to the amount and nature of his property, his personal characteristics, his relations with and disposition towards those designated as objects of his bounty, and any other extraneous facts of like nature which might tend to disclose the actual situation at the time, to thereby better discover his true intent in the distribution of his property. Tuxbury v. French, 41 Mich. 7 (1 N. W. 904). While some of the testimony introduced would be admissible for such purpose, we think the will under consideration, read as a whole, furnishes few difficulties and quite clearly discloses the true intent of the testator, free from most, if not all, the ambiguities insisted on by the complainants.

It is complainants’ contention that the “ fifth ” clause of the will is void because it violates the provisions of our statute as to perpetuities, which in part reads as follows:

“The absolute power of alienation shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance of two lives in being at the creation of the estate.” Section 8797,3 Comp. Laws.

For which reason it is claimed that the property described in said “fifth” clause belongs to the residuary devisees under the “seventh” clause in said will. After reciting and emphasizing the provisions of said fifth clause, counsel for complainants say in their brief:

“Both Mr. and Mrs Brandt are still alive. No conveyance of the fee can be made by Mary Theresa Brandt during the lifetime of her husband; no conveyance of the fee can be made by her children during the lifetime of the father and mother because of the possibility of other children. Assuming that Mrs. Brandt may have another child, the right of Mrs. Brandt to dispose of the fee of the property in question is suspended during the lifetime of William Brandt, and the right of alienation by the children is suspended during the lifetime of their mother, two lives in being, and the minority of such minor child.”

Although Mrs. Brandt was 68 years of age at the time of the death of the testator, and all her children past their majority, counsel urge that, for the purpose of determining questions of remoteness, “ a possibility of issue is always supposed to exist in law * * * even though the donees be each of them 100 years old,’’citing Blacbstone’s Commentaries, p. 125; Gray on Perpetuities, § 215; List v. Rodney, 83 Pa. 483, and other authorities. Assuming that this mythical, but supposable, offspring of Mrs. Brandt’s declining years, may materialize, we cannot conclude that in either contingency specified in the clause under consideration there is outlined a perpetuity in violation of our statute. If there is anything in the will made perfectly clear and placed beyond any possibility of mistake, it is the intent that the brother-in-law, William Brandt, shall not participate in the estate. The peculiarities of the will are the result of a special effort, to make that clear. The only beneficiaries under the fifth clause in the will are testator’s sister and her children. The children’s estate in expectancy, if it goes to them at all, passes upon the death of their mother, not their father. After the mother’s death the father might live forever and it would not matter. Should he die before his wife, her title in fee simple becomes absolute at once, and the expectancy of the children becomes a nullity. In either event the termination of one life in being frees the estate of all limitations except the possibility of further children being borne by Mrs. Brandt and in that remote event the limitation would not violate the statute. We see no reason why this mother and children, all being of age, acting in conjunction, could not, at any time, convey the whole fee in possession, subject only to the rights of future offspring of Mrs. Brandt.

We think that Mrs. Brandt took an estate in fee simple at the death of the testator subject to defeasance by her death before her husband. It was the manifest intent and first thought of the testator to give this property to his sister, with immediate possession and enjoyment of the same. It had been her home for many years, and he evidently desired to give it to her absolutely, without restrictions or conditions, and would have done so were it not for the husband. To exclude him testator attached certain conditions and limitations which made the devise somewhat indefinite.

“ The fee simple is also held to pass by an indefinite devise, where it is succeeded by a gift over in the event of the devisee dying under the age of 21 years; such devise over being considered to denote that the prior devisee is to have the inheritance in the alternative event of his attaining the age in question, since, in any other supposition, the making the ulterior devise dependent on the contingency of the devisee dying under the prescribed age, is very capricious if not absurd.” 8 Jarman on Wills, p. 26.

In the case at bar the contingent event is the wife dying before her husband, instead of dying “under the age of 21 years,” and instead of it being considered to denote the fact, as in that case, it is positively provided in the case at bar that the prior devisee is to have the inheritance in the alternative event of surviving her husband. The law in this State particularly favors vested estates where possible to so construe them. Toms v. Williams, 41 Mich. 552 (2 N. W. 814); Rood v. Hovey, 50 Mich. 395 (15 N. W. 525); Union Mutual Ass’n v. Montgomery, 70 Mich. 587 (38 N. W. 588, 14 Am. St. Rep. 519).

It is further contended by complainants that a proper construction of the fourth and seventh clauses of the will gives to each of them one-third and to the children of Mrs. Brandt, collectively, one-third; or that, taking by representation, they together as children of the one sister (Natalie Van Callow) are entitled to one-half, the other half to be divided among the eight children of the other sister (Mary Theresa Brandt), the will empowering and requiring a division per stirpes and not per capita. It is the claim of defendants, and the trial court held, that the import of the instrument is for a division per capita between complainants and the eight Brandt children, each taking one-tenth.

While the two complainants are named and the other beneficiaries are described as “the children of my sister Mary Therese Brandt,” they are all collectively designated as “my nephews and nieces,” and the property is bequeathed and devised to them “in equal shares, share and share alike.” If extraneous evidence is to be considered, the deceased seems to have been on equally friendly terms with all his nieces and nephews when he made his will; no reason is disclosed why he should particularly favor the complainants. The repeated use of the expression “in equal shares, share and share alike,” is significant, especially in view of the fact that all these beneficiaries were nephews and nieces and in the same class. As a general rule claimants take per stirpes only when they stand in unequal degrees to the testator and are of a different class, but when in equal degrees of relationship and of the same class they take per capita. Pearce v. Richard, 18 R. I. 142 (26 Atl. 38, 19 L. R. A. 472, 49 Am. St. Rep. 755); Hodges v. Phelps, 65 Vt. 303 (26 Atl. 625). The language of the will points to equal distribution and emphasizes that construction.

“A direction for the division of certain specified property between the members of a group, ‘ share and share alike,’ is construed as a direction to distribute per capita.” Page on Wills, p. 645, and cases there cited.

The circuit court correctly held that under the fourth and seventh clauses of said will each of the nephews and nieces took an undivided one-tenth interest, and that the fifth clause of said will was not in violation of the statute urged against it.

In their bill complainants pray for a partition of the estate according to the respective rights and interests of the beneficiaries and the appointment of commissioners to make a division and partition of the real estate among the parties; also, for a receiver to take charge of the property, with power to collect rents, make repairs, and otherwise manage the estate. In his opinion the circuit judge said:

‘ * So far as the balance of the matters which are involved in this bill are concerned, I think the entire matter must wait until the action of the probate court in assigning the residue.”

The formal decree concludes as follows:

“It is further ordered, adjudged, and decreed that a certified copy of this decree shall be filed with the probate court for Wayne county in the estate of Francis Devroe, deceased, forthwith, and that a division of said estate shall be made in accordance with this decree.”

Personal property is involved and to be distributed as well as real estate, and we think that under the proofs a proper disposition was made of these questions by the trial court. Should difficulties arise as to a division of the real estate, it can again be brought before the court by supplemental proceedings, when proper action may be taken on the conditions then shown.

The decree is affirmed, with costs in favor of defendants.

Moore, C. J., and Brooke, Stone, and Ostrander, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    BUMAN v. MICHIGAN CENTRAL RAILROAD CO.
    1. Carriers — Passengers—Railroads.
    The relation of passenger and carrier did not exist between a railroad company and one who, intending to purchase a ticket, alighted from an interurban car of another corporation, proceeded several blocks towards defendant’s station where he paused outside, gave money to an employé of defendant, not the ticket agent, and requested him to purchase a ticket, when the intending passenger was arrested for being drunk and disorderly, and engaged in a quarrel with the police officer.

    2. Arrest — Resisting Officer — Evidence.
    Upon undisputed testimony that plaintiff used foul language to and assaulted an officer, that the officer in the course of the affray repeatedly stated he was trying to arrest the man and called for help, that he told plaintiff several times he wanted to arrest him, told him to come on, and that he requested others to assist in arresting plaintiff, the court should have charged, as a matter of law, that plaintiff was under arrest, and the question should not have been submitted to the jury.
    3. Master and Servant — Personal Injuries — Railroads.
    Defendant, a railroad corporation, was not liable to plaintiff for an alleged assault made upon him by an employé of defendant who was also a police officer and who went to the assistance of a policeman that requested aid in arresting plaintiff for disorderly conduct and drunkenness.

    4. Same.
    When a police officer arrests a disorderly person it is presumed that he is acting in his official capacity and not as agent for his employer.
    Error to Cass; Des Yoignes, J.
    Submitted December 14,1911.
    (Docket No. 130.)
    Decided March 12, 1912.

      Case by Charles O. Buman against the Michigan Central Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial granted.

      Gore & Harvey, for appellant,

      Charles H. Sweet and Wilbur N. Burns, for appellee.

       As to when person who has started for a train becomes a passenger, see note in 24 L. R. A. 521.

       Liability of carrier for wrongful arrest of passenger by servant, see note in 7 L. R. A. (N. S.) 162.

   Steere, J.

This action was brought to recover damages for personal injuries alleged to have been inflicted upon plaintiff on the night of August 4, 1910, by John Bachman, an officer and night watchman in the employ of defendant at its station in the city of Niles, Mich.

Bachman was a duly elected constable of the city of Niles and police officer, but without pay from the city. As such officer he had authority to make arrests. He was 40 years of age, and had been in the employ of the defendant for several years. On the evening of August 4, 1910, plaintiff arrived in the city of Niles at about 11:30 on an interurban car from South Bend, Ind. He testifies that he was changing his location from Mishawaka, Ind., where he had been working, to Dowagiac, Mich., where employment was awaiting him, and it was his intention to take the east-bound Michigan Central train, scheduled to pass Niles soon after his arrival on the interurban. The time of the train’s passing was 12:26 a. m. From where he left the interurban car to the Michigan Central station is about half a mile, and he proceeded to walk the distance, carrying two suit cases; one containing tools and the other his clothing. The route included a viaduct crossing over the Michigan Central tracks in the vicinity of its station. He stopped on the viaduct to rest, as he testified. William Metcalf, a police officer of the city of Niles, being on duty and in uniform, passed down the street to go over the viaduct to the station, making the rounds on his beat, timing himself to be there when the train arrived. Approaching the viaduct, he saw plaintiff standing on the bridge, and, turning his light upon him, discovered, as Metcalf testified, that plaintiff was committing a nuisance on the walk. Both parties testified that the officer called to the plaintiff and asked him what he was doing, and was told that it was none of his business. The officer testified that words were exchanged, and plaintiff soon picked up his grips and started for the station; that after being gone a short time he returned without his grips and proceeded to upbraid the officer for making him lose his cigar, using abusive languageand threatening to throw him over the railing; that words followed, and, plaintiff persisting in his abuse and threats, the officer told him he would lock him up, and took hold of him; that plaintiff resisted and fought, and was proving too much for the officer, who was lame and a man 62 years of age, when two men from the station, whose attention was attracted by the loud words, came up and assisted. Plaintiff then jerked away and went towards the station; the officer and two men also going towards the station behind him.

Plaintiff’s version of what occurred on the viaduct and at the station is as follows:

“I came to the depot side of the city viaduct and set my suit cases down for a rest. I was accosted from the back by some man that put a light on me and wanted to know where I was going.
“Q. Could you see the man ?
“A. I could not.
“Q. What did you tell him ?
“A. I told him I was on my way to Dowagiac.
“Q. What did he say then ?
“A. I don’t remember definitely; but I think he wanted to know what I was doing there. * * * I told him I didn’t think that was any of his business, and he wanted— He says, ‘If you are going to Dowagiac,’he said, ‘you better be moving on.’ I told him I didn’t think I had to; but I hadn’t said that much yet until he struck me, knocked me down.
“Q. Where did that blow hit you, do you remember ?
“A. I don’t just exactly remember whereabouts; but it was some place on the head. * * * As soon as I was knocked down, I got to my feet as soon as I could, picked my suit cases up, and started for the depot, when it came to me who that fellow might be. * * * I walked back on to the viaduct.
Q. Left your suit cases down there ?
“A. Yes, sir. * * * There I saw some fellow on top of the viaduct; but I didn’t know it was the same man. I accosted him with a question, if I recollect rightly, as to what time that train left for Dowagiac, and the language that he answered me in I took it for granted it was the same man that had accosted me before, * * * from the way he answered me; we had words there. He undertook to strike me again, and I resisted and foiled his first attempt; but when he struck the second time he struck me, dazed me, staggered me. * * * From the way it felt, it was a club. * * * As soon as I got my balance again, got my feet, I noticed, I think, three other fellows coming up from the depot side; I started on for the depot. I walked down to my suit cases, and these fellows followed me up. I reached my suit cases and picked them up and started for the depot. As I reached the depot, there was some parties standing on the outside; I didn’t know who they were. I went up to those parties and told them where I was going and when-1 wanted to go, and gave them some money.”

It appears from other testimony that at the station he handed a piece of silver money to the baggageman and told him to get him a ticket for Dowagiac, and then turned on the policeman and men who were with him. He testified:

“I turned to say something to these fellows that nad been following me, but don’t recollect what it was, and don’t know as I said it, and one of them knocked me down, and struck me such a blow on the head as to fall me, and as soon as I hit the walk one of those parties jumped on my head and sat there and told me something; but what he told me I don’t know. Finally he got off my head, and I got - to my feet, and I thought I was going to my suit cases again; but when I would rub my head and come to, I was out in the middle of the street.”

All the other witnesses testified .that plaintiff assaulted the policeman, using the vilest epithets towards him. The evidence is undisputed that the officer attempted to arrest him; that he resisted arrest most vigorously and for a time successfully. Metcalf, the officer, directed somebody to get Bachman, the watchman, who was inside fixing an electric light and knew nothing of all this trouble up to that time. Backman responded to the call, and at Metcalf’s request proceeded to assist him in making the arrest, which was yet being actively resisted. In the struggle, plaintiff got inside of the station and clung to the railing for a time, from which he was detached with difficulty. He was finally overcome, hand-cuffed, and taken to the lockup, where he was delivered to the turnkey. That officer testified that he made no complaint of being injured, and went to sleep on the bunk in his cell, sleeping soundly.

The next morning he was taken by the city marshal before a magistrate, where he was charged, on complaint made by Policeman Metcalf, with resisting an officer, using obscene language, and drunkenness. The city marshal testified that when asked what his name was he said it was Charles Dooling, in which name the complaint was made against him, and that he pleaded guilty. Plaintiff testifies:

“ He had three charges against me.
“Q. Do you know what they were ?
“A. Being drunk, I think they were, and resisting an officer, and using indecent language.
“Q. What did you tell him about it ?
“A. He wanted to know if I was guilty or not guilty. I told him I would not say; I could tell him better how it happened.
“Q. Did you tell him then what happened ?
“ü. I related to him as near as I could what had happened on the night before.
“Q. What did he say ?
“A. He found me guilty and imposed a fine of one dollar and costs, and gave me 15 days to go on to Dowagiac and earn the money and make remittance to him.”

It is denied by plaintiff that he was intoxicated on that evening. He testified that he had taken possibly three, or four glasses of beer during the evening up until 11 o’clock, but that he was sober. A witness who was on the car from South Bend with him corroborates his claim. The officers and other witnesses testify that he was intoxicated. Two of the witnesses to the trouble which occurred at the station after Bachman was called testified that Bachman struck the plaintiff on the head with his club twice or more. Six witnesses to that transaction testified that he did not do so.

Whether plaintiff was intoxicated or not, whether more violence was used by the officers than was reasonably necessary to subdue plaintiff and effect his arrest, whether he was injured by them, and, if so, to what extent, are all facts in dispute, which, if defendant railway company was liable for the conduct of Bachman, would be issues of fact for a jury. But back of those issues we have the vital question of whether or not there are any facts in this case which might make defendant liable for Bach-man’s conduct.

In charging the jury, the court correctly stated this rule of law:

“An officer in the discharge of his duty may call others to his assistance, if deemed necessary by him to do so. So in this case, if you find that Officer Metcalf had placed the plaintiff under arrest, and sent for John Bachman afterwards to assist him in detaining the plaintiff and taking him to the lockup, then Bachman acted in his capacity as a peace officer of the State, and the defendant is entitled to your verdict of no cause of action.”

It is the claim of the defense that there is no issue of fact upon that proposition, and it should have been disposed of by the court as a question of law. It is the claim of the plaintiff that the testimony is in conflict in that particular, and it was for the jury to determine. An examination of the record shows that all witnesses to the trouble which occurred outside the station, prior to the time Bachman was called, testify positively, or in substance, that the police officer, Metcalf, was then trying to arrest plaintiff, who was fighting with and resisting him. Plaintiff nowhere in his testimony denied this, though he claimed the officer first assaulted him.

Plaintiff’s counsel rely on the testimony of the witness Whetstone as raising an issue of fact upon that question. Whetstone’s testimony shows that he did not arrive on the scene until Bachman was called. According to the testimony of all the witnesses on both sides, who were then present at the time Metcalf sent for Bachman to aid him, plaintiff was resisting and fighting the officer. The witness Whetstone testifies:

“ The man [plaintiff] just got up just as I got there. When I saw him, he was just getting up. I suppose he was lying down; I supposed he was. When he got up, there was a number of fellows right near him. Metcalf was one. I could not tell you whether Metcalf had hold of him; but I know he had hold of him when I turned round. When Bachman got hold of him, they both got hold of him. Mr. Bachman appeared there just as I appeared ; I didn’t know where he came from. * * * There was a good deal of talk going on there. * * * The officers took hold of this man, * * * one on one side and one on the other. * * * It appeared to me that these two men were trying to take him down town. I testify to that fact, because it so appeared to me at the time. * * * The plaintiff here was trying to go into the depot, using his strength to go that way. The plaintiff pulled them both into the station, * * * and the officers were trying to hold him, Mr. Metcalf and Mr. Bachman. * * * I think the officers were saying to him, ‘Come on now.’ * * * He was not coming on; he was going the other way. * * * ”

This witness manifestly cannot testify to anything which occurred before he and Bachman arrived on the scene. All witnesses agree that plaintiff resisted and fought Metcalf, an officer in uniform and wearing his star. There could be no mistake at the station as to the official character of the man with whom plaintiff was having the trouble.

Error is alleged on the refusal of the court to give defendant’s request No. 4, which is as follows:

“ I charge you that the plaintiff was not a passenger to whom the defendant, as carrier, owed any duty. To constitute the relation of carrier and passenger, the individual must present’himself or herself to the carrier in a proper manner, at a proper place, and in a proper condition, and the relation of carrier and passenger will not attach until the carrier has accepted such individual as a passenger by selling them a ticket, or conducting them to a train, or permitting them to board a train, or do some act or acts which indicate an acceptance by the carrier of such individual as a passenger.”

The relation of carrier and passenger did not exist between plaintiff and defendant. Undoubtedly plaintiff intended to become a passenger of defendant, and would have done so, were it not for the trouble he had with the policeman, Metcalf, on the viaduct and outside of the station. When he arrived outside the station, and without entering it, he set down his suit cases, handed 50 cents to the night baggageman, and, turned upon the officer with whom he had previously had trouble. Plaintiff testifies:

“As I reached the depot, there was some parties standing on the outside; I didn’t know who they were. I went up to these parties and told them where I was going and when I wanted to go, and gave them some money.”

There is also testimony to the effect that while he was having trouble with the officer he called for a ticket, saying that he had given his money to the ticket agent, and rushed, with the officers holding ontó him, into the station, grabbing hold of the brasswork in front of the ticket office. He was not sold a ticket nor accepted as a passenger.

At the conclusion of the testimony, defendant’s counsel requested the court to direct a verdict, and presented, among others, the following request:

“It is uncontradicted that Officer Metcalf, having placed the plaintiff under arrest, sent for John Bachman, called Humpy,’ to assist him in detaining the plaintiff and taking him to the lockup. This being so, I instruct you, as a matter of law, that John Bachman thereafter acted in his capacity as a peace officer of the State, and the defendant is not liable for his conduct as such officer. For such conduct, he is liable to the State alone. The undisputed evidence is that Bachman first rendered assistance to Police Officer Metcalf outside of the station building, and there assisted Officer Metcalf in detaining the plaintiff; that plaintiff resisted both of the officers and escaped from Officer Metcalf, and pulled Officer .Bachman into the station with him;' that in holding onto the plaintiff and doing what Officer Bachman did to subdue him and make him submit to authority, he did in his official capacity as a peace officer, and for such conduct the defendant railroad company is not liable.”

This request was refused, and the case submitted to the jury. A verdict was rendered against the defendant for $5,000.

In his reasons for denying a motion for a new trial, the court said:

“Again, I am compelled to say that the claimed arrest was disputed by plaintiff, the witness Whetstone, and the testimony of the young boys, leaving the matter one of conflict. Certainly the court could not, under the circumstances, say that on this issue it was undisputed, and it became a question for the jury. Our Supreme Court have been quite particular in holding that if there is a scintilla of evidence upon the question it must be left for the jury. * * * The crux of the case, in my opinion, is,.‘Was plaintiff under arrest by Officer Metcalf when Bachman was called ?’ Upon that issue, there was conflict in the testimony; it may be said to be slight, but for that the court would have directed a verdict, * * * and to that end the court clearly and positively instructed the jury that plaintiff could not recover if Buman was under arrest by Officer Metcalf at the time Bachman was called to assist, and if they so found, under the evidence, they need consider the case no further, but return a verdict for the defendant.”

From a careful examination of the printed record, we are unable to discover that there was any evidence to go to the jury upon the question of Metcalf having placed plaintiff under arrest at the time Bachman was called. We have already discussed the testimony of witness Whetstone. Plaintiff, whose testimony is confusing and peculiar, does not deny being arrested at the time in question. Aside from the plaintiff and the policeman, who testified positively that he had made the arrest, there were four witnesses to what occurred outside the station before Whetstone and Bachman arrived — Stebbins, Fowler, Beckwith, and Curtiss. Stebbins, after testifying to the foul language used and assault made by plaintiff, says:

“Mr. Metcalf wanted to put him under arrest; he called for help, because the man was resisting him. * * * Mr. Metcalf says, ‘I am trying to put this man under arrest.’ * * * I could not say how many times Met-calf told him he was under arrest — all of a dozen.”

Fowler testifies:

“ Buman backed away from him [Metcalf] a little, and then started at him again. Mr. Metcalf says: ‘ Hold him there. Hold him.’ * * * Mr. Metcalf says:‘Let him up. I want to arrest him.’ We let him up, and he started for Metcalf again.”

On cross-examination, witness, after repeating that Metcalf said, “Hold him,” testifies, in the meantime, Metcalf tried to arrest him. Beckwith, the man who was sent after Bachman, tells of the assault and foul language used by plaintiff, of the others interfering to assist the officer and throwing plaintiff down, and testifies:

“* * * Then he [Metcalf] says: ‘Let him up. I will take care of him.’ And he got up * * * and came back at Metcalf as hard as he could for the start he had, and Metcalf says, ‘Get Humpy.’ So I went into the station. Mr. Metcalf, to my knowledge, stayed out with Stebbins, holding the man.”

Witness Curtiss testifies, among other things:

“ Mr. Metcalf says: ‘ Let him up. I want to arrest him.’ ”

It should not have been left to the jury to decide, as an issue of fact, whether Metcalf was arresting plaintiff at the time he sent for Bachman.

It is the undisputed testimony (except plaintiff’s statement that he doesn’t think so) that when plaintiff arrived outside the station he set down his grips, and, turning on the policeman, made use of most profane, vile, and obscene language. The court very properly charged the jury that the language it was claimed plaintiff used was of such a type and of such character that an officer would he justified in making the arrest of any person using such language in a public place.”

That the policman, Metcalf, as a public officer, while having trouble with and trying to arrest plaintiff, sent for Bachman to help him to do so, is clearly shown. Bach-man only went in respoiise to such call. He knew nothing of any trouble before. His action was initiated entirely by a call from the policeman to help him. It was not in obedience to the directions of an officer of the defendant or any call of duty, as its watchman, to protect the property or passengers of his employer. Had Bachman gone at the call of an official of the company, or on his own initiative in the line of his duties as watchman, a different question would arise.

It is urged by counsel for plaintiff that the question of whether Bachman was acting as a servant of the defendant in the line of his employment, or as a public officer, is a question for the jury, although the facts be undisputed; and in support of that contention many cases are cited; the principal ones upon which counsel rely being Sharp v. Railroad Co., 184 N. Y. 100 (76 N. E. 923, 6 Am. & Eng. Ann. Cas. 250); Deck v. Railroad Co., 100 Md. 168 (59 Atl. 650, 108 Am. St. Rep. 399); Illinois Steel Co. v. Novak, 184 Ill. 501 (56 N. E. 966); Duggan v. Railroad Co., 159 Pa. 248 (28 Atl. 182, 186, 39 Am. St. Rep. 672); Layne v. Railway Co., 66 W. Va. 607 (67 S. E. 1103); Rand v. Railway Co., 40 Mont. 398 (107 Pac. 87).

These cases and many more are authority for the rule that on a certain class of undisputed facts, from which different men might reasonably draw different inferences, the jury shall determine in which capacity a given act was performed. But in all such cases the alleged offender, while exercising the functions of public officer and private employé, committed the violence complained of, not at the instigation of a third party, as in the case at bar, but by the direction of his employer or some one representing him, or on his own initiative in the belief that he was protecting his employer’s interests and furthering his welfare.

The present cause is in marked distinction in that particular, and involves a different principle. The act of Bachman did not grow out of any authority conferred on him by defendant, because the plaintiff was not, to Bach-man’s knowledge at the time he was called, invading or offending against the railroad company’s rights in any particular. The occurrences between Metcalf and plaintiff were as much an outside matter as if they had occurred away from the railroad company’s grounds, in the fact that Bachman was called to leave the duties of his employer, in which he was at the time engaged, to respond as a peace officer to a call for help from an outsider. The master is not liable for the acts of his servant in assisting a third person. Olive v. Whitney Marble Co., 103 N. Y. 292 (8 N. E. 552); Murphey v. Caralli, 3 Hurl. & Colt. 462; Stone v. Hills, 45 Conn. 44.

In Foster v. Railway Co., 140 Mich. 689 (104 N. W. 380), it was said of men in private employ who also were appointed or elected police officers:

“ When acting purely in their capacity as police officers, the defendant is not responsible for their acts. Only when the defendant, through its authorized agent, has employed or directed such police officers to act for it, does it become responsible. * * * If this police officer acted, in his alleged attack upon the plaintiff, solely in his capacity as an officer, and not by and under the direction of the conductor of the car, the defendant is not responsible for his act.
“ When a disorderly person is arrested by a police officer, the presumption is that the officer is acting in an official capacity, and not as an agent for the party who by law is required to pay him. Jardine v. Cornell, 50 N. J. Law, 485 (14 Atl. 590).”

And to like effect are Tucker v. Railway Co., 69 N. J. Law, 19 (54 Atl. 557); Healey v. Lathrop, 171 Mass. 263 (50 N. E. 540); Cordner v. Railroad, 72 N. H. 413 (57 Atl. 234); Tyson v. Bauland Co., 186 N. Y. 397 (79 N. E, 3, 9 L. R. A. [N. S.] 267).

This affray, in which it is alleged plaintiff sustained actionable injuries, was primarily Metcalf’s, not defendant’s. Metcalf, in the line of his official duty, effected the arrest of plaintiff, locked him up overnight, and made complaint against him the nest morning for an offense of which he was convicted. At the time of the arrest, Metcalf was on duty, in the service of the city, as a peace officer patrolling his beat. Defendant was not concerned with, and cannot be held responsible for, any injuries inflicted on plaintiff by such city policeman or those summoned by him to his aid, even though one of them, being a peace officer, happened to be in defendant’s employ as a watchman. The rule of respondeat superior does not apply where the servant is only responding to a call for assistance by a third party.

The judgment is reversed, and no new trial granted.

Moore, C. J., and Brooke, Stone, and Ostrander, JJ., concurred.


author: Steerb, J.

text:
    SCHELOWSKI v. PAWLOWSKI.
    1. Creditor’s Suit — Bill in Aid or Execution — Issuance and Levy as Prerequisite.
    The levy of execution upon specific property is a prerequisite to the jurisdiction of equity upon a bill in aid of execution.
    2. Same.
    An averment of the bill that an alias writ of fieri facias was issued, delivered to the sheriff, and duly served by him, followed by a paragraph stating that the sheriff attempted to levy said execution upon real estate described, when he discovered that the property had been fraudulently transferred, etc., is insufficient to support the jurisdiction of the court of equity.
    Appeal from Wayne; Murfin, J.
    Submitted January 9, 1912.
    (Docket No. 66.)
    Decided March 12, 1912.
    Bill by Veronica Schelowski against Frank Pawlowski and others in aid of an execution. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      McIntyre & Wheeler, for complainant.

      August Oyrowski, for defendants.
   Steerb, J.

Complainant filed a bill in aid of execution, in which she prays that a certain deed, dated October 21, 1909, executed by defendant Frank Pawlowski, conveying to the other defendants, who are his children, certain real estate in the city of Detroit, be set aside, a receiver be appointed, an injunction be granted, restraining defendants from transferring or encumbering the property, and that complainant be authorized, through the sheriff, to levy upon said property and sell the same to satisfy a judgment for $500 previously obtained by her against said Frank Pawlowski on the 5th day of July, 1910, for breach of promise of marriage.

It appears, undisputed, that the defendant Frank Pawlowski, some time prior to Easter, 1909, made a valid contract of marriage with the complainant, under which everything proceeded harmoniously until about the middle of October, 1909, when he served a written notice upon her, implying a disinclination to carry out his part of said contract, and intimating she might consider the engagement broken. Prior to this, and as a step leading towards a consummation of said matrimonial contract, defendant agreed that on October 14, 1909, he would come over to complainant’s place and go with her before the priest of the local church and have the engagement publicly announced; but for some reason not fully disclosed by the record, he experienced a change of heart, and, instead of observing that agreement, sent her the following emotional communication :

“Detroit, October 14, 1909.
“ I am sitting down to a table to write to your heart. Praise be the Lord Jesus Christ, and I suppose that you will answer me in eternity. Amen. Dear Woman: It is pretty hard for me to move to you. I have too much troubles because I am sick of all that — of all this trouble and mortification. It is hard, but I wish all luck and God’s blessing and the Blessed Mother. Remain with God.
“Frank Pawlowski.”

The record shows the following stipulation:

“It is further admitted that complainant did, on or about the 16th day of February, 1910, start suit in the circuit court for the county of Wayne for the alleged breach of the aforesaid contract of marriage; and, further, that complainant did prosecute her said action for breach of promise of marriage to trial in the said court on the 5th day of July, 1910, and after trial by jury of said cause of action a verdict was rendered in favor of said complainant in the sum of $500, and subsequently judgment was duly entered thereupon and costs taxed in the sum of $47.20; that said judgment remains in full force and effect, and had never been appealed from, and that an execution was rendered upon said judgment, as will more fully appear in the bill of complaint and amended bill of complaint thereto filed in said cause and made a part of this record. And it is further admitted that defendant has property whatsoever, other than this in question, out of which this judgment might be satisfied, and that no claim of homestead exemption is raised by said defendant, and that this bill is filed in aid of said execution.”

The trial court dismissed complainant’s bill, stating the following reason:

“The record shows that counsel for complainant admitted in two or three places that the property sought to be reached in this proceeding was transferred by this man to his children, eight of whom were minors, solely and entirely to obtain their consent to his proposed marriage to this complainant. The testimony of complainant' herself indicates that, instead of this property being transferred after the breach of promise of marriage, it was transferred in contemplation of marriage, to the end that his children would have it, rather than his prospective wife.”

The printed record in this court does not disclose the facts on which the foregoing conclusions are based. We find no admission of counsel, or testimony, to the effect that the transfer was made in contemplation of marriage, or to obtain the consent of the grantees to such marriage. On the contrary, the record shows that the engagement and estrangement preceded the conveyance.

It is urged that this bill should be dismissed, because no levy was made upon the property sought to be reached. The stipulation just quoted declares “that this bill is filed in aid of execution.” If there was any question as to the nature of the bill of complaint under consideration, it is put at rest by this stipulation. It is not a judgment creditor’s bill, filed to reach general equitable interests, or to discover sequestered assets of the debtor, but a bill in aid of execution, the function of which is to help in the enforcement of an acquired lien on designated property, a sale of which, on execution, is embarrassed by some fraudulent or inequitable obstruction. The rules which obtain in judgment creditors’ bills and in bills in aid of execution are not the same. Hodge v. Gray, 110 Mich. 654 (68 N. W. 979).

The evidence does not disclose that any levy has been made on the property described. Keferring to the bill, which is made a part of the record, we find no allegation of that fact. Amended paragraph 3 of said bill states that an alias writ of fieri facias was issued, “ and on the same day delivered to said sheriff, to be by him executed in due form of law; ” and paragraph 4 of said bill states:

“ That the said sheriff did make'an attempt and was "about to levy said execution upon the said above-described real estate, when he discovered that the same had been fraudulently transferred by the said defendant Frank Pawlowski, as will more fully hereafter appear.”

From this it is evidenced that no levy has been made; the nearest the sheriff came to it he “ was about to levy ” upon the land sought to be held for the judgment, when his discovery of this conveyance diverted him from it.

No lien is acquired on real estate in Michigan under a judgment until actual levy of an execution. Before a bill in aid of execution can be entertained by a court of chancery to assist in enforcing an execution at law, not only must the execution be issued, but an actual levy made and lien acquired, on the property sought. To establish a prima facie case, proof of levy is required. Act No. 99, Pub. Acts 1897; McKibben v. Barton, 1 Mich. 213; Blish v. Collins, 68 Mich. 542 (36 N. W. 731); Vanderpool v. Notley, 71 Mich. 429 (39 N. W. 574).

“Not only must a person become a judgment creditor in order to be in a position to take proceedings to set aside fraudulent conveyances, but this must be followed by the issue of an execution and the levy of it upon the property said to have been so fraudulently conveyed.” Eames v. Manley, 121 Mich. 300 (80 N. W. 15).

The decree of the trial court, dismissing the complainant’s bill, is affirmed, with costs.

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


author: Brooke, J,

text:
    DETROIT & MACKINAC RAILWAY CO. v. SIOUX CITY SEED & NURSERY CO.
    1. Injunction — Eminent Domain — Equity — Highways and Streets — Vacating by Municipal Corporations.
    In a suit by a railroad corporation to restrain defendant from interfering with complainant’s occupancy of a street legally vacated by the city, and the construction of a depot on the property, the court was warranted in finding, on a cross-bill by defendant, that the inconvenience suffered by defendant was insufficient to authorize the court in restraining a necessary improvement beneficial to the public. .
    2. Same — Damages — Jurisdiction of Chancery — Adequate Remedy at Law — Taking Private Property.
    If defendant suffered pecuniary damage by virtue of the closing of the street and rendering access to defendant’s premises difficult or circuitous, it has a remedy at law for the damages which are readily ascertainable.
    3. Same — Statutes.
    2 Comp. Laws, § 6234, par. 5, requiring railroad corporations before constructing their railways on streets, etc., to pay compensation to adjacent owners that are injured, does not have application to the erection of a station.
    4. Same — Injunction.
    Defendant was not entitled to an order for an injunction to be issued in six months unless the railway company should institute proceedings to condemn defendant’s rights, as such course would preserve to defendant no rights which it could not protect in an action against complainant.
    Appeal from Alpena; Emerick, J.
    Submitted January 8, 1912.
    (Docket No. 10.)
    Decided March 12, 1912.
    Bill by the Detroit & Mackinac Railway Company against the Sioux City Seed & Nursery Company for an injunction. Defendant filed a cross-bill praying for an injunction against complainant. From a decree for complainant, defendant appeals.
    Affirmed.

      Henry, Henry & Henry (James McNamara, of counsel), for complainant.

      Joseph H. Cobb, for defendant.
    In the year IBS’?, the complainant railway extended its road through the city of Alpena. Its main line ran along Tenth street through said city. By reason of the growth of the city, which now has between 13,000 and 14,000 inhabitants, it lately became necessary for complainant to build a new and more commodious passenger depot. To this end complainant acquired certain lands on Tenth street from Fair avenue on the west to Lockwood street on the east. These lands covered five blocks from east to west and were in width about one block from north to south. While most of the land so acquired is located on the south side of Tenth street, a considerable portion thereof abuts on the north side of said street. To facilitate the erection of said depot and properly handle the traffic incident to its new location, application was made to the common council of the city for the closing of certain streets and alleys running through the depot grounds, among which was Tenth street, from Fair avenue to Lockwood street. The proceedings to close said streets and alleys were regular and resulted in the passage by the council, by unanimous vote, of a resolution vacating Tenth street for a distance of five blocks, except at the intersection of cross-streets, also Saginaw street for the distance of one-half of the block south of Tenth street. This resolution was passed March 21, 1910.
    Defendant is the owner of a grain and produce warehouse located upon the northeasterly corner of Saginaw and Tenth streets, but its property extends from Saginaw street to Tawas street, an entire block along Tenth street. Between March and September, 1910, negotiations were had between, complainant and defendant, looking to an adjustment of the damages claimed by defendant, by reason of complainant’s acts. These negotiations proved abortive, and on September 8th complainant filed its bill setting out the facts and averring that it was defendant’s purpose to interfere with complainant in its contemplated use of said vacated streets and alleys. Complainant prayed that the defendant be enjoined from interfering with it in the prosecution of its project and its occupation of said vacated streets and alleys. Upon the filing of the bill, a temporary injunction was issued pursuant to the prayer therein contained. No motion to dissolve was made by defendant.
    To the bill defendant filed an answer denying that it had any intention of interfering with complainant by the use of physical force, and by way of cross-bill averred that the acts of the city authorities' in vacating said streets and alleys were illegal and void, as to said defendant’s rights. It prayed that complainant be enjoined from taking possession of the vacated streets and alleys and from placing any buildings or obstructions thereon. The temporary injunction against defendant was, continued until the cause was heard upon the merits. That hearing was had in April, 1911, and resulted in a decree dismissing both the bill and the cross-bill, but without prejudice to the maintenance by the defendant of a suit at law for the recovery of any and all damages sustained by it by reason of the operations of complainant. From this decree defendant appeals.
   Brooke, J,

(after stating the facts). During the pendency of the cause, complainant proceeded with the erection of its new passenger depot, and the same has now been completed and stands squarely across Saginaw street where said street was closed by the action of the city authorities. Complainant has expended in the purchase of land and in the erection of this building upwards of $75,000. Thelearned circuit judge who heard the case held:

“That the closing of Tenth and Saginaw streets and the alley in block 7 will work no such serious loss or injury to defendant as to justify the interference of a court of equity to restrain the completion of a great and much needed public improvement.”

With this conclusion we quite agree. It is apparent that defendant now has ingress and egress to its property by means of two streets — on the west, Saginaw street north of Tenth street, and on the east, Tawas street. It is urged by defendant that access to its property by way of Saginaw street is impossible by reason of the occupancy of a portion of that street by the Michigan Veneer Company. That occupancy, however, is not shown to be by virtue of any action of the city authorities in closing said street, and it would seem (in the absence of such action) that defendant would have a right to the use thereof as a public street. The most that can be said of the case made by defendant is that its customers approaching it from certain directions will be obliged to adopt a somewhat circuitous route, instead of going from Ninth street directly up Saginaw street to defendant’s premises, as heretofore they have been able to do.

If defendant has suffered damage by reason of the acts of the complainant in the premises, that damage is readily ascertainable and is recoverable in a suit at law. Buhl v. Union Depot Co., 98 Mich. 596 (57 N. W. 829, 23 L. R. A. 392), and cases there cited; Baudistel v. Railroad Co., 113 Mich. 687 (71 N. W. 1114); Beutel v. Sugar Co., 132 Mich. 587 (94 N. W. 202).

It is urged by appellant that before proceeding with the erection of its depot which occupies a portion of Saginaw street, south of Tenth street, it was the duty of the complainant to proceed to condemn defendant’s interest therein and to pay such damages and compensation to defendant as might be awarded. It is contended that this duty is imposed by 2 Comp. Laws, § 6234, par. 5, which reads as follows:

“And in case of the construction of such railway upon any public street, lane, alley, or highway, the same shall be on such terms and conditions as shall be agreed upon between the railroad company and the common council of any city, or the village board of any village, or the commissioners of highway of any township in which the same may be; but such railway shall not be constructed upon any public street, lane, alley, highway or private way until damages and compensation be made by the railroad company therefor to the owner or owners of property adjoining such street, lane, alley, highway, or private way, and opposite where such railroad is to be constructed either by agreement between the railroad company and each owner or owners, or ascertain as herein prescribed for obtaining property or franchises for the purpose of its incorporation to be paid to the owner thereof, or deposited as hereinafter directed.”

We think it is clear that the paragraph quoted and relied upon relates solely to the construction of the railway, and has no bearing upon the right of the railroad company to occupy a portion of a legally vacated street with its depot. Highway Com’r of Ecorse Township v. Railroad, 148. Mich. 436 (111 N. W. 1090). Our attention is not directed to any statute under which the complainant could have proceeded in the manner suggested.

The cross-bill prays for injunctive relief only. Upon the argument it was suggested by counsel for appellant that this court should not presently enjoin complainant from using the depot it has constructed, in part upon the vacated street, but that it should make an order that such injunction issue unless within six months complainant should institute proceedings against defendant to condemn. This course, if authorized and followed, would preserve no right to defendant not already possessed by it under the present decree. It would simply be defendant in a proceeding instead of plaintiff. Its measure of damages would be the same in either case.

The decree is affirmed, with costs.

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


author: Blair, J.

text:
    CARSON, PIRIE, SCOTT & CO. v. JOZWIAK.
    Sales — Contracts—Construction—Guaranty.
    Defendant sold his dry goods business, .taking a chattel mortgage from the purchaser to secure part of the purchase price. It was stipulated in the mortgage that if defendant should become guarantor for any goods ordered by the purchaser of the stook of merchandise the amount guaranteed should be added to and secured by the chattel mortgage. Plaintiff secured an order from the purchaser and wrote to defendant to guarantee the account. Defendant replied to send the goods and bill in his name. Plaintiff shipped the goods to the purchaser who gave the order, and charged defendant with the shipment. Held, that in the light of the surrounding circumstances, defendant was liable as the principal and that plaintiff was not required to ship the goods directly to him.
    Error to Bay; Collins, J.
    Submitted January 4, 1912.
    (Docket No. 68.)
    Decided March 12, 1912.
    Assumpsit by Samuel C. Pirie and others, doing business as Carson, Pirie, Scott & Company, a copartnership, against John F. Jozwiak for goods sold and delivered. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      John E. Kinnane, for appellant.

      Lee E. Joslyn, for appellee.
   Blair, J.

For a number of years prior to March, 1908, the defendant, John F. Jozwiak, was engaged in the retail dry goods business in Bay City, and had been dealing with plaintiffs to a considerable extent during the time that he was so engaged. In March, 1908, Jozwiak sold out his store and business to Frank M. Rosengard, receiving part of the purchase price in cash, and taking a chattel mortgage for the balance which remained unpaid. The chattel mortgage contained a clause to the effect that it was contemplated that Jozwiak might become guarantor for the purchase of goods by Rosengard, and that in such case the amount or amounts so guaranteed would be added to the amount secured by said chattel mortgage, in case Jozwiak was subjected to liability upon such guaranty. Rosengard had been running the store and business for about a year and a half after said purchase before the transaction involved in this case occurred.

In September, 1909, A. E. Jameson, plaintiffs’ traveling salesman, called at the Rosengard store, and listed, in the form of an order, a quantity of goods which Rosengard needed, and then sought to have Mr. Jozwiak guarantee payment for the goods so listed in said order. Mr. Jameson sent in the order to his house, and then he wrote to his house as follows:

“ J. P. Jozwiak, Bay City, Mich., former owner of P. M. Rosengard store, has been guaranteeing the acc’t with .other firms. I saw Jozwiak (who used to be a good customer of ours) about this bill and he told me he may have to take back the stock. Will know in a couple of days. He also knows they have got to buy to assort up. You write Mr. Jozwiak before filling the order.”

Upon receipt of this letter plaintiffs wrote the defendant as follows:

“ Chicago, Sept. 16, 1909.
“Mr. J. P. Jozwiak,
“ Bay City, Mich.
“Dear Sir:
“ Our Mr. Jameson has taken an order to be shipped to P. M. Rosengard, and requests that we write you for a guaranty to cover this order before we make shipment.
“We are therefore enclosing one of our blanks and will appreciate it if you will sign and return at your early convenience.”

Upon receipt of that letter and the blank form for a general guaranty inclosed, Mr. Jozwiak wrote the plaintiffs as follows:

“Bay City, Mich., Sept. 16, 1909.
“Carson, Pirie, Scott & Co.,
“Chicago, 111.
Gents:
“Please send at once, Mr. F. M. Rosengard’s order, this time, the goods and hill on my name.
“ Respectfully,
“ J. P. Jozwiak.”

Mr. Jozwiak testified that there was an error in dating the above letter written by him to plaintiffs, and that the date should be September 17th or 18th, instead of September 16th, and that it was in fact written after he received the above letter from the plaintiffs, inclosing their blank for guaranty. About 10 days after the receipt of the said letter from Jozwiak, plaintiffs shipped the goods specified in the Rosengard order to Prank M. Rosengard, at Bay City, and mailed an invoice thereof to defendant.

Mr. Jozwiak testified that after taking the order Jamesbn saw him and told him that it would not amount to $300. The court held and charged, as a matter of law, that the defendant was liable to the plaintiffs, and that the amount of said liability was not less than $300; and the only question that the court submitted to the jury was whether defendant’s liability was limited to $300 or the full amount of the order, agreed upon as $551.90. The jury rendered a verdict in favor of the plaintiffs for $551.90.

The principal question in the ease concerns the interpretation of defendant’s letter, dated September 16, 1909. Defendant contends that the letter should be construed to mean that the goods ordered by Rosengard should be shipped directly to defendant, Jozwiak. Plaintiffs insist that the letter contemplated that the goods should be shipped to Rosengard on defendant’s credit. Considering this letter in the light of the surrounding circumstances, we think it should be construed to require shipment of the goods to Rosengard, and that the same should be charged to defendant. In view of this holding, the other questions raised by defendant become immaterial.

The judgment is affirmed.

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


author: Hooker, J. Bird, J.

text:
    NISSLY v. DETROIT, JACKSON & CHICAGO RAILWAY CO.
    1. Street Railroads — Negligence — Operation of Cars — Animals.
    That a motorman of an interurban railroad failed to ring his gong, and instead, tried to stop the oar in order to avoid killing a colt on the track, was not negligence merely because the event proves the way he selected was not the best to meet the exigency.

    2. Same.-
    And it was error to charge the jury that it was his duty to use all means at his command to avoid the accident, that if he failed to employ all reasonable means within his power to avoid the accident, or if he was careless, reckless, or indifferent, he would be guilty of negligence, and that under ordinary circumstances it would have been his duty to. ring his gong, and failure to do so would be evidence of negligence.
    3. Same — Rate of Speed — Excessive Speed.
    Whether a rate of speed of forty miles an hour was reasonable, along a public highway, was for the jury.
    4. Same — Animals in Highway.
    While the motorman owed no duty to reduce his speed below a rate that would otherwise be reasonable, not being bound to anticipate that plaintiff’s horse was at large, if he was running the car so rapidly that he could not have stopped it within such distance as the colt could have been seen upon a straight track, the question of negligence was for the jury.
    5. Same — Contributory Negligence.
    The owner of a colt who permits it to run at large in a highway over which an electric road is operated, or who carelessly permits it to escape, is guilty of contributory negligence.
    ON REHEARING.
    Appeal and Error — Saving Questions por Review —Assignments op Error — Charge.
    Plaintiff’s motion for a rehearing having been granted and the case reargued, his judgment is affirmed on the ground that the error in the court’s charge on which the judgment was reversed by the original opinion in this cause was waived by appellant’s failure to assign error upon the objectionable portion of the charge or to refer to the point in its brief. Supreme Court Rule 40.
    Error to Washtenaw; Kinne, J.
    Submitted April 10, 1911.
    (Docket No. 68.)
    Decided May 8, 1911.
    Rehearing granted September 89, 1911.
    Previous opinion reversed March 89, 1918.
    Case by Charles Nissly against the Detroit, Jackson & Chicago Railway Company for the negligent killing of plaintiff’s colt. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      M. J. Cavanaugh and George J. Burke, for appellant.

      J. W. Bennett, for appellee.

       As to injuries by street car collisions with vehicles or horses, see note in 25 L. R. A. 508.

   Hooker, J.

Plaintiff recovered a judgment for $100 for the loss o£ his colt, killed by defendant’s electric car. Defendant has appealed.

The car was being run from Ypsilanti to Saline, along and within the limits of the public highway, at a rate of from 80 to 40 miles an hour. The head lamp was lighted. The plaintiff’s residence was upon an eminence of eight feet, from which the road descended in each direction. From 200 to 250 feet west of plaintiff’s house, there was an oak tree, which stood between the track and the fence. The plaintiff’s testimony indicates that he left the colt tied in his barn, with the doors shut, and on his return from Saline found the horse dead. The motorman and conductor of the car, being the only witnesses who saw the accident, testified that the car was running at a speed of from 30 to 40 miles an hour. Both were in the front of the car, and as the car got up the hill and in front of plaintiff’s house both saw this colt come from behind the oak tree mentioned and run upon the track directly toward the car, until he collided with it. They testified that the motorman did all possible to stop the car, and that he did not ring the gong. The motorman said that he had no time to ring it; his attention being wholly directed to stopping the car. There was no evidence indicating that the horse got caught or entangled in the rails that lay beside the track.

The negligence charged is that the duty of the motorman was to so run his car as to speed that it would be at all times under his complete control, and so that it might be stopped within a short distance, should any cattle or horses or other property of the plaintiff be seen and observed on the track, and so that the car would be stopped, before it should strike or injure the horse or cattle of plaintiff. Yet, although the horse was visible in time to have checked and stopped the car without injury to said horse, he failed and neglected to do so, and the horse was killed. It was also claimed that rails were strewn along the track and prevented the horse, who became caught and ensnared by them, from getting off the tracks in time to avoid the car; but there was no testimony calling for the submission of this question, and no question is raised upon it in defendant’s brief.

Upon the undisputed proof, the horse was struck at or near 11 o’clock at night, about 50 feet from where he was first seen, and the motorman was not negligent in his efforts to stop the car, unless it was negligence to omit to ring the gong. Whether this was negligence upon this record, and whether there was negligence in the rate of speed, were the important questions at the trial.

Upon this record we have three questions: (1) Was defendant proved guilty of negligence ? (2) Was plaintiff negligent ? (3 ) Was the verdict contrary to the evidence ?

Defendant’s Negligence. The undisputed evidence shows that the colt emerged from behind a tree, and that up to that time he was not visible. The two railroad men testify to this, and the plaintiff said that the colt might not be visible, if behind the tree. The undisputed testimony shows, also, that when he came on the track he was plainly visible by aid of the headlight; that he ran directly toward the car, until he collided with it; and that during this time the motorman did his best to stop the car. It is said that he was negligent in not ringing the gong. His evidence indicates that he was engrossed in his efforts to stop the car, which, in his judgment, was more important than ringing the gong.

Counsel urge that Hnging the gong might have frightened the animal from the track, and it is possible that this is true. This was a question which should have been submitted to the jury, had there been any dispute in the testimony, with the instruction that:

“When, to avoid an impending collision, the motorman is obliged to choose instantly one of two appliances (or methods) provided for stopping the car (or averting the collision), he is not guilty of, and his company is not chargeable with, negligence, because the event proves that the one he chose and used may not have been efficacious, or the best to meet the exigency.”

See Bittner v. Railway Co., 153 N. Y. 76 (46 N. E. 1044, 60 Am. St. Rep. 588); Wynn v. Railroad Co., 133 N. Y. 575 (30 N. E. 721).

In the case of Stabenau v. Railroad Co., 155 N. Y. 515 (50 N. E. 277, 63 Am. St. Rep. 698), the court said, where the motorman had used the brake, instead of reversing the current:

“Whether the one or the other means provided for stopping the car should have been adopted was a matter for the exercise of the motorman’s judgment, and, though newly employed, he was not shown to be incompetent. For an error in its exercise, the defendant could not be held responsible. Even the failure to have exercised the best judgment would not have been evidence of negligence.”

As the record stands, therefore, the court should not have instructed the jury that:

“ It was the duty of the motorman, as soon as he saw this colt on the track, to use all means at his command to avoid this accident. If he did so and his car was under such control as I have before described to you, then he was guilty of no negligence. If, on the other hand, he failed to employ all reasonable means within his power to avoid this accident, or if he was careless or reckless or indifferent, then he would be guilty of negligence. Under ordinary circumstances, it would have been his duty to have rung his gong, and thus give notice of his approach, and a failure so to do would be evidence of negligence; but if, under the peculiar circumstances of this case, his failure so to do can be explained and excused on the ground that he did all that a prudent person could naturally be expected to do under like circumstances, then no negligence in this respect can be charged against the motorman.”

The Rate of Speed. There was testimony that the car was running at 40 miles an hour when the colt was first seen, and plaintiff’s counsel claim that this was an unreasonable rate of speed, which prevented the stopping of the car in time to avoid the collision.

If the rate of speed was a reasonable one, there was no negligence, and the question of reasonableness was one to be determined on all the facts and circumstances.

This motorman was not bound to anticipate that plaintiff’s horse would be at large, or concealed behind a tree, and therefore owed no duty to reduce his speed below what would otherwise be reasonable. It is undeniable, however, that if his rate of speed was unreasonably great it would be negligent, and we are of the opinion that if the motorman was running his car so fast that he could not have stopped it within the distance that this colt could have been seen upon a straight track, the jury might have been justified in finding the speed unreasonable. But if the colt came onto the track, well within the distance that he could have been seen, the fact that the car could not be stopped before it struck him would not make the rate unreasonable.

We cannot lose sight of the public convenience, and its desire for rapid transit, with the inducement to run these cars at a much higher speed than 30 miles an hour. They are in competition with steam roads, which run faster than that. Where they run in the highways, which are also used by other vehicles, the circumstances of such use are to be considered. The legislature has power to control and regulate speed, and may require adequate protection. Until this power is exercised, we can recognize only the rule that the rate is unlimited, except by the general rule that it must be reasonable under all the circumstances. Gosnell v. Railway Co., 21 Ont. App. 553; Nellis on Street Railways, § 393 et seq.; Stafford v. Railroad Co., 110 Wis. 331 (36 N. W. 1036).

This motorman was not bound to anticipate that a colt would be at large, and come suddenly upon the track so near that the car could not be stopped in time to avert an accident, and, if. his speed was not such as to have precluded the stopping of the car within the distance that such an object could have been seen upon the track that night, there was no negligence. This was, however, a question for the jury. Apparently this was the view taken by the circuit judge. Gilmore v. Railway Co., 153 Pa. 31 (25 Atl. 651, 34 Am. St. Rep. 682); Nellis on Street Railways, § 515.

Was plaintiff negligent? The plaintiff had no right to allow his colt to run at large in the highway. If he did so intentionally on that occasion, or if it escaped by reason of his negligence, he should not have had a verdict.

Whether either of these conditions existed was a question for the jury, as the trial judge held.

As we are constrained to reverse the judgment for the reason first stated, it is unnecessary to refer to the refusal of a new trial.

The judgment is reversed, and a new trial ordered

Ostrander, O. J., and Bird, Blair, and Stone, JJ., concurred.

on rehearing.

Bird, J.

After this case had been decided {ante, 676 [131 N. W. 145]), the plaintiff applied for and was granted a rehearing. Upon the rehearing it was urged that the case should not have been reversed for the reason stated in the opinion, because the point was neither raised by defendant’s assignments of error, nor discussed in counsel’s brief.

The ground upon which the reversal is based in the opinion is that part of the charge of the trial court in which he stated to the jury what the duty of the motorman was with reference to sounding the gong. We have examined the records and briefs carefully, and are of the opinion that plaintiff’s point is well taken. No. assignment of error is predicated upon that part of the charge, unless it be defendant’s general exception to the whole charge. Such an assignment is too general to reach specific objections of this character. Snyder v. Patton & Gibson Co., 143 Mich. 350 (106 N. W. 1106).

Even if the general assignment were sufficient, we would be obliged to hold that it was waived by reason of failure of counsel to refer to if in their brief. Supreme Court Rule 40; People v. Cole, 139 Mich. 312 (102 N. W. 856).

With this assignment eliminated, it would follow that the case should be, and is hereby, affirmed.

Moore, C. J., hnd Steers, MoAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred.