text:
    WARREN v. RAY.
    1. Slander — Actionable Words — Words Imputing Want op Chastity to Female.
    To call a woman a “damned old bitch” is not actionable as imputing a want of chastity to her.

    2. Same — Damages Recoverable — Attorneys’ Fees.
    Fees paid to an attorney to bring an action for slander are not recoverable in the action brought. Section 10423, 3 Comp. Laws.
    Error to Mason; McAlvay, J.
    Submitted November 17, 1908.
    (Docket No. 112.)
    Decided December 14, 1908.
    Case by Libbie Warren against Frank Ray for slander. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      F. F. Wetmore, for appellant.

      Virgil A. Fitch, for appellee.

      As to actionable character of epithets that impute immorality to a woman, see note to Feast v. Auer (Ky.), 4 L. R. A. (N. S.) 560.

   Blair, J.

This is an action for slander. The slander^ ous words, as set forth in the declaration, were as follows:

“‘You (meaning the plaintiff) are a God damn whore. You (meaning the plaintiff) are a God damn bitch’ — repeating the same with a loud voice and adding thereto other loathsome words too vile, shameful, and monstrous to record.”

The defendant pleaded the general issue and gave notice—

“That, before the commencement of this cause, the said defendant had lost several horses by poisoning, and had had other horses and stock poisoned, and that he found the said plaintiff in and among his horses and stock in his (defendant’s) field, at about 10 o’clock in the nighttime, without any right or license to be there, and that, if the words were uttered as set up in said declaration, they were said under the excitement of the moment, and on account of the said finding of said plaintiff among said stock of said defendant. Defendant will further give in evidence and insist in his defense that, if the said words were uttered, they were justified by the conduct of the said plaintiff, and were true.”

The plaintiff put in testimony tending to fully sustain the charge of her declaration, and further testified that she had paid her attorney $25 at the time she employed him to bring this suit. Defendant’s counsel moved to strike out her testimony as to the attorney fee, but the court retained it. The plaintiff, her husband, and defendant got into an altercation over some horses, and defendant testified that plaintiff applied vile and slanderous epithets to him, in reply to which he said to her:

“You will have to keep your horses away from my fence. Your horse has knocked my post off, you damned old bitch.”

Defendant denied using the language testified to by plaintiff and her husband other than the epithet just quoted.

The court charged the jury, among other things, as follows:

“I will say to you, gentlemen, there is no dispute but what there was a meeting between these parties at the time mentioned in the declaration, and that certain words were used; and I will say to you, further, that the admission of parts of the words used by the defendant, by him upon the witness stand, is an admission that he made a statement derogatory to the character of the plaintiff, and that these words he admits he used did impute the want of chastity to Mrs. Warren. * * * If you find for the plaintiff, you will do as I said in regard to fixing the damages, finding such damages as would be compensation to her feelings, and such damages as she had been caused on account of this claimed slander, in the payment of cash, and bring them in separately.”

We are of the opinion that the court erred in instructing the jury that the language admitted to have been used by defendant, under the circumstances alleged by him, was slanderous per se. 25 Cyc. p. 322; 18 Am. & Eng. Enc. Law (2d Ed.), p. 938.

We are also of the opinion that attorney fees are not recoverable in such a case as this. 3 Comp. Laws, § 10423; 18 Am. & Eng. Enc. Law (2d Ed.), p. 1117; 25 Cyc. p. 534; Halstead v. Nelson, 24 Hun (N. Y.), 395; Irlbeck v. Bierle, 84 Iowa, 47; Hicks v. Foster, 13 Barb. (N. Y.) 663; Indianapolis Journal Newspaper Co. v. Pugh, 6 Ind. App. 510; Grotius v. Ross, 24 Ind. App. 543.

Brand v. Hinchman, 68 Mich. 590, and Chesebro v. Powers, 78 Mich. 472, are not in point. Brand v. Hinchman was an action to recover damages for malicious prosecution of an attachment suit, which, from its nature, is an exception to the general rule, and the point before us was neither raised nor passed upon. Chesebro v. Powers was an action to recover damages for slander of title contained in a deed and mortgage recorded by defendants and stated by them to set forth the truth as to the title. Plaintiff was compelled to file a bill in equity to remove the cloud upon her title, and the only damages claimed or suffered, and which were the necessary result of the slander, were the expenses of the chancery litigation that the plaintiff was compelled to suffer.

The judgment is reversed, and a new trial granted.

Grant, C. J., and Montgomery, Ostrander, and Brooke, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    BARTO v. DETROIT IRON & STEEL CO.

    1. Appeal and Error — Review — Scope — Directed Verdict — Opening Statement.
    Where, after the court had disclosed his intention of directing a verdict for defendant on the opening statement of plaintiff’s counsel, counsel attempted to amend his statement so as to remove a misapprehension of the facts, but was denied and told to take his exception and make his statement to the stenographer after the charge, which he did, the statement so made received the same consideration in this court as though made before the conclusion of the charge.

      2. Same — Directed Verdict — Facts Established.
    Where, after the court had disclosed his intention of directing a verdict for defendant on the opening statement of plaintiff’s counsel, counsel offered a witness by whom he offered to prove the facts alleged in the declaration, and was denied, the material facts alleged must be considered by this court as established.
    3. Master and Servant — Injuries to Servant — Action — Directed Verdict — Propriety.
    In an action for negligent personal injuries to defendant’s servant resulting in death, caused by his being sent to work un. der a chute where, without his knowledge, pigs of iron were dropped from time to time, the declaration and the opening statement of plaintiff’s attorney examined, and held, error to direct a verdict for defendant thereon on the ground that the negligence was that of a fellow-servant.
    Error to Wayne; Rohnert, J.
    Submitted November 18, 1908.
    (Docket No. 60.)
    Decided December 14, 1908.
    Case by Carlo Barto, administrator of the estate of Francis Kopovics, deceased, against the Detroit Iron & Steel Company for the negligent killing of plaintiff’s intestate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Dohany & Dohany, for appellant.

      Brennan, Donnelly & Van De Mark, for appellee.

       Rehearing denied March 3, 1909.

   Blair, J.

A'verdict was directed for the defendant on the opening statement of plaintiff’s counsel, for the reason that it conclusively appeared from such statement that the negligence for which plaintiff claimed the right to recover was the negligence of one Sawyer, who was a fellow-servant of plaintiff in defendant’s employ.

The defendant is engaged in the manufacture of pig iron. After the pigs are formed, they are carried by a traveling crane operated by electric power to certain breaking apparatus, where the pigs are broken apart, fall into a chute, and are conveyed thereby into a freight car placed underneath the chute for that purpose. The traveling crane and the breaking apparatus were operated by Sawyer. Plaintiff’s intestate began work for defendant on the night of February 14, 1905, and was killed the next night by a pig falling upon him while he was clearing the rails beneath the chute so that cars could be placed beneath it. After the trial judge had indicated his intention to direct a verdict, plaintiff’s counsel called the operator, Sawyer, who had been sworn, to the witness stand, and made the following statement:

“ Plaintiff is prepared to prove his case and has placed upon the stand a witness to prove it. He offers the witness for the purpose of sustaining the facts alleged in his declaration.”

In the course of the court’s instructions to the jury, the following occurred :

The Court: It appears that the arrangement is such that these pigs are not supposed to be dropped unless there is a car there, and it is the duty of the operator to conduct it in such a way by not placing them in the breakers or near the chute so that they will drop upon the floor, not to break them until such a time as a car is there.
iCMr. Dohany: In deference to my client it is my duty—
The Court: Take your exception. Don’t interrupt me.
‘1 Mr. Dohany: I must. I must. My duty places me in a position that I must in behalf of my—
“ The Court: You may make your statement to the stenographer after I get through with my charge to the jury. * * *
“Mr. Dohany: Before a verdict is directed I want to make an amendment to your honor’s statement of fact.
“ The Court: And, furthermore, gentlemen of the jury— Now, Mr. Dohany, you stop. I consider that the principle laid down in this case of 131 Mich. 594 applies to this case in connection with the situation that I have outlined and also independent of it. Before I direct a verdict, I desire to say that the case reported in the 131 Michigan I think applies.
“Mr. Dohany: Before your honor directs a verdict, I desire to correct—
“The Court: Take the verdict, Mr. Clerk.
“Mr. Dohany: It is my duty to the court and on my honor as an attorney it is my duty to my client—
“The Court: If you speak further, I will fine you; that is the end of it.”

At the conclusion of the instructions, plaintiff’s counsel made the following statement upon the record:

“ Your honor’s conclusion that the premises were so situated that the operator of the bridge might know that there was a car underneath or not underneath is entirely wrong. As a matter of fact, from the position that he occupied, the operator could not possibly know whether or not a freight car was underneath the chute ready to receive the pigs as they fell below. We are prepared to show, also, that he had no notice whatever that the freight car had been removed. We were also prepared to prove that pigs were often broken up and sent down through the chute when no freight car was underneath the chute. Because of the shortage of freight cars, it would stop the operation of the whole plant if that rule were followed. We are also prepared to prove that the operator of the bridge on the night in question was entirely free from negligence, and also that the deceased was entirely free from negligence.”

Under the ruling of the court that plaintiff’s counsel should make his statement to the stenographer after the charge was finished, we think such statement should receive the same consideration as though made before the conclusion of the charge. Since the plaintiff’s counsel offered to prove by the witness Sawyer, who operated the crane and breaking apparatus, the facts alleged in his declaration, such material facts must be taken as established. The statements of the plaintiff’s counsel before and after the direction of the verdict and the allegations of the declaration, considered together, would warrant a finding: That defendant caused one of its freight cars, which had been placed under the chute for loading with pigs by its operator, to be removed from under the chute while it was only half loaded, without giving notice thereof to its operator. That the operator’s position in performing his duties was such that he could not see whether or not there was a car under the chute, and, as a matter of fact, he was ignorant of the moving of the half loaded car. That the place where the plaintiff’s intestate received the injuries that resulted in his death was entirely separate and distinct from plaintiff’s intestate’s ordinary place of employment under his hiring with the defendant, and it was no part of his regular employment to clean ice off of the tracks in question, or sand. That he never was called upon to do that work before; the work being entirely outside of the casthouse. That defendant’s foreman and superintendent, who took plaintiff’s intestate away from his regular employment on the night in question and sent him in underneath the chute where he was killed, had sole charge of all the men engaged in defendant’s yards outside of the casthouse, and hired and discharged all men under him for defendant. That the falling of the pig that killed plaintiff’s intestate was caused by Sawyer, defendant’s operator of the bridge, continuing to operate the bridge in ignorance of the presence of plaintiff’s intestate below the chute. That defendant and its foreman and superintendent knew that pigs weighing from 250 pounds to 300 pounds were dropping at frequent intervals of not more than five minutes down through the chute in question, and well knew that it was dangerous to the life of any man to go underneath this chute while the bridge in question was being constantly operated for the purpose of bringing pigs in between the bumper and the plunger. That plaintiff’s intestate did not know of such danger, received no warning of such danger, and that defendant and its foreman and superintendent at the time plaintiff’s intestate was killed sent him to work underneath that chute knowing that the plaintiff’s intestate did not know of such danger. ' And that defendant did not establish and maintain a system of signals whereby said bridge operator could know that plaintiff’s intestate was underneath said chute.

We are of the opinion that the court should have received the testimony of the witness Sawyer, and that it was error, under the circumstances, to direct a verdict.

The judgment is reversed, and a new trial granted.

Grant, C. J., and Montgomery, Ostrander, and Brooke, JJ., concurred.


author: Brooke, J.

text:
    NATIONAL CASH REGISTER CO. v. DEHN.
    Sales — Action for Price — Contract—Fulfillment—Evidence —Sufficiency.
    In an action for the price of cash registers sold, evidence examined, and held, that defendants were properly allowed to take the verdict of the jury upon the question whether the machines delivered, though corresponding to the written order, were of the same description as the ones actually ordered.
    Error to Bay; Collins, J.
    Submitted November 18, 1908.
    (Docket No. 22.)

    Decided December 14, 1908.
    Assumpsit by the National Cash Register Company against August Dehn and Carl O. Dehn, copartners as Dehn Bros., for goods sold and delivered. There was judgment for defendants, and plaintiff brings error.
    Affirmed.

      Pierce & Kinnane, for appellant.

      Lee E. Joslyn, for appellees.
   Brooke, J.

This case was before this court on a prior occasion. See 139 Mich. 406. A sufficient statement of the facts therein appears. The judgment upon the former trial was there reversed for errors pointed out. Blair, J., speaking for the court, says in conclusion:

“We think that the only question which should have been submitted to the jury was whether the machines delivered were of the same description as the ones actually ordered, and the jury should have been instructed to find a verdict for the plaintiff in case they found that the cash registers delivered were the same kind of registers as those ordered.”

The trial court charged the jury as follows:

“Gentlemen of the jury: This action is brought by the plaintiff against the defendants to recover from the defendants the price of two cash registers which weré delivered to the defendants on the 12th of October, 1903, and, if the plaintiff is entitled to any recovery, it is entitled to recover $450, with interest from October 12, 1903. You understand from the testimony that two kinds of cash registers have been described and talked about in the testimony, one the No. 35J, total adding register, which is the one described in the contract, and another, called an ‘initial keyboard register,’which is the kind defendants claim they bought and that they believe were described in the contract.
‘ ‘ The contract signed by the defendants purports to contain all the terms of a complete contract. It was acted upon by the plaintiff, who shipped and delivered to the defendants the two cash registers described in the order, and performed its part of the contract according to its terms, and the plaintiff is entitled to recover in this case a verdict for the price of said cash registers, unless that right of recovery is defeated by showing that the defendants’ signature to the contract was obtained by fraud practiced by Mr. Kelley, plaintiff’s agent. The sole defense in this case is the claim made by the defendants that Kelley obtained the signature to the contract in this case by fraud, and if it were not for this claim of fraud by the defendants, and testimony put in in support of the case, it would be my duty to direct a verdict in favor of the plaintiff. I charge you that fraud is not lightly presumed, but must be proved, and unless you find that it is shown by a preponderance of evidence that Mr. Kelley procured the signature of defendants to the contract by fraud, then your verdict must be for the plaintiff.
“ The question of mutual mistake does not arise in this case, as defendants made no claim on that ground in the notice of defense filed with their plea, and there is no evidence offered in support of the claim that the registers in question were inferior in quality and did not work properly, so that the sole question for you to consider is the claim that fraud was practiced by plaintiff’s agent on defendants when the contract was signed. Before you can find such fraud as will make this contract void, it must be shown by a preponderance of evidence that plaintiff’s agent, Mr. Kelley, wilfully, and with intent to cheat and wrong defendants, inserted a false description of the registers in the contract, and, further, that Mr. Kelley, by the use of some device or artifice calculated to deceive, procured defendants’ signature to such paper, and the mere fact, if you find such to be the fact, that there was a mistake in drawing the contract, and defendants signed it without reading it, is no defense. Merely the fact that plaintiff’s agent did not read the contract to Carl Dehn before he signed it for his firm, if you find such to be the fact, has no tendency to show fraud on the part of the agent, as it is the duty of the person to read a contract or procure it to be read to him before he signs, and, if he neglects to do so, it is his own negligence, and will not relieve him of liability, unless he was prevented from reading the contract by some artifice or action of the other party.
“ It is the rule of law that the terms of a written contract cannot be varied or changed by oral evidence of what was talked of by the parties before or at the time it was signed, and all such talk is merged in the writing, and the terms of the written contract cannot be disputed or contradicted by evidence tending to show that a different agreement was made between the parties than that shown in the written instrument. The defendants cannot be permitted to set up an oral arrangement previous to or at the time the contract was signed as against the writing itself.
* ‘ The contract in evidence in this case purports to contain all the elements of a binding contract, and is signed in due form by defendants, and has been acted upon by the plaintiff in this case, who delivered the registers in reliance upon the same, and I charge you that the execution of this contract must be given weight, and that a written contract of this kind should not be lightly set aside.
“I charge you, also, that plaintiff’s agent had a right to make a sale to the firm through either of the partners, and use persuasion to induce Carl O. Dehn to buy the 35¿ registers, even if you should find that Mr. Kelley knew that August Dehn favored the initial key register, and I charge you that one partner has authority to bind his firm by signing a contract like the order in this case, and the consent or approval of his copartner was not necessary. If the preponderance of evidence in this case shows that Kelley, the plaintiff’s agent, represented to Carl O. Dehn that the order he signed was an order for two initial keyboard cash registers, and that Carl O. Dehn relied upon Kelley’s statement and was induced to sign the contract and did sign under the supposition and belief on his part, caused by the statements of Kelley, that the order as written was an order for initial keyboard machines, then the defendants were not bound by the order and were not bound to accept the machines that were given, and your verdict should be for the defendants.
“If, under the charge I have given, you find for the defendants, you will say, ‘ No cause of action.’ If for the plaintiff, you will return a verdict of $450, with interest from October 12, 1908, at 5 per cent, to this date.”

Under this charge the jury returned a verdict of no cause of action. The plaintiff filed its assignments of error, which are in effect but one. It is its claim that the record fails to disclose any evidence of fraud on the part of the plaintiff’s agent, and that therefore the court should have directed a verdict in its favor for the amount of $450 and interest, the price of the cash registers in question. An extended review of the testimony on the part of the defendants is not necessary. It is sufficient to say that it was claimed by both of the defendants that the machines ordered by the defendant Carl O. Dehn on behalf of the partnership were of the initial keyboard type, which was a different type of machine than the No. 35J, which was inserted in the contract relied upon.

On behalf of the defendants, it is claimed that Carl O. Dehn had no familiarity with the numbers by which the machines ordered were designated, and that he was led to believe by the agent, Kelley, that the contract which he signed described the machines he had purchased. It is likewise apparent from the record that, upon the arrival at the place of business of defendants of the machines actually shipped, they immediately protested that they were not those which had been purchased. Under these circumstances, we do not think it can be said that there is no evidence to go to the jury tending to show that the agent inserted in the order a number which described a machine not purchased by the defendants. Aside from the fact that this court has already passed upon the question at issue in this ease upon a record substantially similar to the one before us, we are clearly of the opinion that the testimony offered on behalf of the defendants entitled them to go to the jury upon the question of whether or not the machines delivered were of the same description as the ones actually ordered. See Holcomb v. Noble, 69 Mich. 396; Ripley v. Case, 78 Mich. 126, 86 Mich. 263; Krause v. Cook, 144 Mich. 368. See, also, Shrimpton & Sons v. Netzorg, 104 Mich. 225. The charge above quoted presents the plaintiff’s theory of the case to the jury quite as favorably as the plaintiff is entitled to have it presented under the evidence.

The judgment is affirmed.

Grant, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.


text:
    PEOPLE v. COFFEY.
    1. Fish — Immature Fish — Unlawful Possession — Statute—Construction — Fish Legally Caught.
    The proviso of section 2, Act No. 88, Pub. Acts 1899, permitting the sale of fish legally caught, does not permit the sale of immature fish unavoidably taken while legally fishing with nets of legal mesh.
    2. Criminal Law — 'Venue—Offenses on Great Lakes — Concurrent Jurisdiction.
    Notwithstanding the charter of the village of Manistique (Act No. 277, Local Acts 1885) gives the village jurisdiction over the navigable waters adjacent thereto for a distance of one mile from the shore line, the courts of Charlevoix county have concurrent jurisdiction under section 2448, 1 Comp. Laws, of the offense of having in possession immature fish in that part of Lake Michigan within this State, in violation of section 2, Act No. 88, Pub. Acts 1899, it being admitted that the fish were in his possession at the port of Manistique and it not appearing where they were caught further than the concession that they were caught in that part of Lake Michigan within this State.
    Exceptions before judgment from Charlevoix; Mayne, J.
    Submitted November 19, 1908.
    (Docket No. 180.)
    Decided December 14, 1908.
    John Coffey was convicted of violating the fish law.
    Affirmed.

      C. W. Dunton, for appellant.

      John E. Bird, Attorney General, and Elisha N. Clink, Prosecuting Attorney, for the people.
   Brooke, J.

The respondent was convicted by a justice of the peace of the township of South Arm in the county of Charlevoix. On appeal to the circuit court for Charlevoix county the conviction was affirmed. The action was brought under section 2, Act No. 88, Pub. Acts 1899, which reads as follows:

“It shall be unlawful to market or have in possession any sturgeon or rock sturgeon weighing less than fifteen pounds, any whitefish weighing less than two pounds, any lake trout weighing less than one and one-half pounds, any wall-eyed pike or pickerel weighing less than one pound, or any catfish weighing less than one pound, or any perch weighing less than four ounces, each in the round: Provided, That it shall be lawful to transport or sell any of said described kinds of fish legally caught during any season of the year.”

. The specific charge against the defendant being that, on the 23d day of April, 1908, he had unlawfully in his possession, on that part of Lake Michigan lying and being within the State of Michigan, a certain quantity of whitefish, weighing less than two pounds each, in the round. The record does not disclose exactly where the fish in question were caught, but the defendant admitted that they were caught in that part of Lake Michigan within this State, that they were in his possession on the day in question at the port of Manistique, Schoolcraft county, and that the fish were intended by the respondent to be used for his benefit; that is, sold and otherwise disposed of by him for his benefit. The record discloses the fact that, in fishing during the open season, and according to law, with gill nets of 4¿-inch mesh' — that being the legal mesh — it is impossible to avoid taking some immature fish; further, that when the nets are raised nearly all of the immature fish are dead, and such as are not dead all die after being returned to the water, by reason of injuries sustained in being caught; whitefish being peculiarly susceptible to such injury.

Two questions only are raised in the record:

1. It is claimed by the respondent that a fair construction of the proviso at the end of section 2 permits the respondent to sell such immature fish as are caught in the manner described by the record, instead of destroying them, as required by the State game warden. The statute under consideration has already received a construction in this court in the case of People v. Dornbos, 127 Mich. 136, where Long, J., speaking for the court, says:

“ Counsel in his brief now asserts that this was error, and claims that one might catch fish of the prohibited weight in Indiana, and bring them into this State, without violating the statute, as, by the proviso of section 2 of the act, it is made lawful ‘ to transport and sell any of said described kinds of fish legally caught during any season of the year.’ That proviso has sole reference to fish not prohibited by that section from being caught — that is, fish weighing more than the number of pounds specified in the act — and as to those fish, they might be transported and sold during any season of the year.”

The obvious intention of the legislature was to prohibit the catching of fish under the prescribed weight, as the first portion of the section makes it unlawful to market or to have possession of any such fish. To give the construetion to the proviso claimed for by the respondent would, of course, permit the respondent, not only to have such fish in his possession, but to market them as well, as respondent says he intended to do. The proviso, as clearly stated by Judge Long, simply intended to affirmatively give fishermen the right to transport and sell said described kinds of fish at any time of the year when' they were legally caught in the open season. The construction contended for by the respondent would in our opinion put too great a strain upon the honesty of the fishermen, and would tend to emasculate the prohibitive character of the legislation and thereby to destroy the legislative intent.

2. The respondent says that the courts of Charlevoix county did not have jurisdiction of the offense, and urges as his reason therefor that the village of Manistique was incorporated in 1885, under Act No. 277, Local Acts 1885, which contains a provision as follows:

“ Section 1. That all that tract of country situated in the county of Schoolcraft, in the State of Michigan, known and described as sections twelve (12) and thirteen (13) in township forty-one (41) north, of range sixteen (16) west, be and the same is hereby constituted a village corporate, under the name of the village of Manistique, and the jurisdiction of said village shall cover the navigable waters south of and adjacent to said village for a distance of one mile from the shore line.”

We think that section 2448,1 Comp. Laws, governs the matter in question. It reads as follows:

“Sec. 10. The counties of Berrien, Van Burén, Allegan, Ottawa and Mackinaw, and such other counties as shall hereafter be organized upon the easterly shore of Lake Michigan, shall have jurisdiction, in common, of all offenses committed on that part of Lake Michigan which lies within the limits of this State; and such offenses may be heard and tried in either of said counties, in which legal process against the offender shall be first issued, in like manner, and to the same effect, as if the offense had been committed in any part of either of said counties.”

This act was passed in 1841. Act No. 8, Laws 1841. Charlevoix county -was organized in 1869, and clearly comes within the description above set forth, viz., “and such other counties as shall hereafter be organized upon the eastern shore of Lake Michigan. ”

As before stated, the exact point at which the fish were caught is not disclosed by the ■ record, but it is conceded that they were caught “in that part of Lake Michigan which lies within the limits of this State,” and it is our opinion that the courts of Charlevoix county, under the section above quoted, had concurrent jurisdiction of the offense.

The conviction is affirmed.

Grant, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.


author: Ostrander, J.

text:
    PEOPLE v. MOORE.
    1. Intoxicating Liquors — Offenses—Prosecution—Evidence— Res Gestíe Witnesses — Duty to Call.
    On a prosecution for engaging in the business of selling intoxicating liquors without having paid the tax, contrary to section 5385, 2 Comp. Laws, persons who are shown to have bought liquors at respondent’s place of business are not res gestee witnesses within the rule requiring the prosecuting attorney to produce and examine such witnesses.
    2. Criminal Law — Trial — Witnesses — Indorsement on Information-Propriety .
    There is no abuse of discretion in permitting the prosecuting attorney to indorse the name of a witness upon the information within two hours from the time he was apprised of the witness and his testimony, and where the court announced that the case would not be concluded until the following day in case the respondent’s counsel desired to investigate the witness, and no surprise or facts affecting the credibility of the witness appear, there was no error in receiving his testimony.
    3. Intoxicating Liquors — Offenses — Engaging in Business — Evidence — Federal License — Admissions.
    On a prosecution for engaging in the business of selling intoxicating liquors without having paid the tax, contrary to section 5385, 2 Comp. Laws, it is competent to show that on being arrested respondent claimed he had paid the tax and produced and exhibited to the sheriff a receipt for the tax paid to the Federal government for the current year.
    4. Same —Criminal Law — Conduct of Trial — Bights of Accused-Furnishing Testimony.
    Accused having objected to parol evidence of the contents of the Federal license, the action of the prosecuting attorney in calling upon accused’s counsel to produce it, and the statement of the court that the prosecuting attorney could ask it, but that accused could not be compelled to produce it, are not ground for reversal on the theory that accused was compelled to produce evidence against himself.
    5. Same — Evidence—Accused’s Control of Place of Business.
    Evidence that packages of goods labeled mineral water, shipped over a line of railway to respondent, were delivered at the place of business which it was claimed he carried on, and when empty were returned from that place of business to the railway depot, was admissible to show that whatever business was done at that place was conducted by respondent, as against the objection that the jury were permitted to infer that the packages contained intoxicants.
    Exceptions before judgment from Livingston; Miner, J.
    Submitted November 19, 1908.
    (Docket No. 172.)
    Decided December 14, 1908.
    Lewis Moore was convicted of violating the liquor law.
    Affirmed.

      L. E. Howlett and Edmund C. Shields, for appellant.

      James A. Green, Prosecuting Attorney, for the people.
   Ostrander, J.

Respondent was convicted of having been engaged in the business of selling and with having sold spirituous and intoxicating liquors at retail without having paid' the tax required of retail liquor dealers. 2 Comp. Laws, § 5385. No testimony was introduced on the part of respondent. Two principal questions were submitted to the jury; one whether business at the particular place was carried on by respondent, and the other whether he was there, and at the time laid in the information, engaged in the business of selling spirituous and intoxicating liquors at retail. There is abundant evidence tending to prove that the business was carried on by respondent, and that drinks were sold there during the year 1907, to and including the 18th day of December of that year. There is evidence that a liquor called “hot pop,” or “hop pop,” was sold there at various times during the year, that it appeared to be lager beer, and produced like effects upon some who were acquainted with both beverages. There is testimony that on December 18, 1907, a man named Cone, produced as a witness for the prosecution, drank this liquor at respondent’s place, drank no other liquor, drank at no other place, and became intoxicated. None of this was sold to the witness by respondent, but there is testimony tending to prove that the man who did sell it was employed by respondent “off and on,” and a jury could not well have refused to find that he represented respondent in selling whatever he found in the place for sale. The witness Cone testified that on December 18, 1907, two other men whom he named were present when he drank liquor at respondent’s place of business, and that they also drank there the same kind of liquor. It is assigned as error that the court did not compel the prosecuting attorney to present these men as witnesses. If this assignment is based upon an exception, if, indeed, the point was brought to the attention of the trial court, counsel have failed to refer to record evidence of the fact. We have found no reference to the subject in the record. These men were not res gestse witnesses, within the meaning of the rule which requires that such witnesses shall be produced and examined by the prosecuting attorney. The offense respondent is charged with having committed is that of engaging in the business of selling liquor without having paid the tax. Evidence of a single sale of liquor on a particular day within the period laid in the information, coupled with evidence of other sales on that and on other days, would tend to prove the charge. There can be no doubt of the right of the prosecution to call witnesses who knew the fact to testify that they saw such sales of liquor made, to identified persons, without also calling those persons as witnesses. In any event, the testimony of other witnesses to prove the same or other sales would be cumulative.

During the progress of the trial, the prosecuting attorney asked and was granted leave to indorse upon the information the name of a witness. In permitting the name to be indorsed, the court said:

“In this case, it appears from the evidence of the prosecuting attorney that he knew nothing about this man’s evidence or about the name until today noon. For that reason I think I shall permit the indorsement, but I will say to the defendant’s attorney this: That it now being 15 minutes to 2, standard time, that this case will not be concluded today unless you so desire, but you may have until tomorrow morning to make such investigations as you desire in regard to this witness.”

During the same afternoon, the witness was called and examined, over the objection:

“We desire to object to any testimony from this witness, for the reason there is no proper notice or sufficient notice given to the respondent or his attorneys to investigate this witness’ testimony in this case.”

The objection was overruled and an exception taken. The record shows that, although the sheriff had subpoenaed the witness and had him in attendance at court on the previous day, the prosecuting attorney knew nothing of his presence and had no knowledge that he was a material witness until a few minutes previous to asking permission to indorse his name upon the information. In the absence of a showing, at the trial or after verdict, that respondent was surprised, or that an investigation had developed facts affecting the credibility of the witness, we must test the fairness of the- ruling of the trial court by matter appearing to the court at the time of making the ruling. The discretion of the court was fairly exercised. The objection made to receiving the testimony of the witness conveys no intimation that an adjournment was desired until the next morning for the-purpose of making an investigation. It is not claimed that an adjournment was asked for. The court had offered it if counsel desired it. It was not error to admit the testimony.

The sheriff of the county was a witness for the people, and testified that, after having arrested respondent and read the warrant to him, respondent said, “Ihave paid the tax,” that he went with respondent at his request to the place of business — a pool room — where it is claimed the liquor was sold, and respondent took down and showed to him a paper, saying:

“There is my receipt for the government tax that I paid. I have got it posted in a conspicuous place — what I call a conspicuous place.”

This testimony having been given, the following occurred :

“Q. What was the date of this license ?
“Jir. Shields: We object to that as not the best evidence.
“The Court: I think we better show what he did with it, whether he has got it.
“Q. Have you got the license in your possession ?
“A. I have not.
“Q. In whose possession was that license when you last saw it ?
“A. Mr. Moore’s. possession.
. “Q. Have you seen it since ?
“A. I have not.
“Q. Do you know where it is now ?
“A. No, sir.
“Mr. Green: Then I make a demand on counsel for respondent to produce that license in court.
“Mr. Howlett: It is the first time in my life that I ever heard a prosecuting attorney request the respondent to produce evidence to convict himself.
“Mr. Shields: I take an exception to it.
“The Court: He simply asked you to do it. You can do as you please about it. The respondent or the attorneys for the respondent do not have to produce any evidence.
“Mr. Shields: We do not understand that the prosecutor has a right even to make such a demand, in the presence of the jury.
“The Court: I think, where there is an objection made, he can ask you to produce it, and then it’s your choice to do as you think best about it. I don’t think any one would have a right to compel you to do it.
“Mr. Shields: I take an exception to the statement.”

The witness then testified, over objection, that the paper shown him was a receipt given by the revenue collector, that it was dated in July, 1907, and ran to July, 1908, that he did not read the paper, that respondent told him it was a receipt for the current year, and that he had paid a government tax pretty nearly every year “since I run this place, which is seven or eight years.” The conduct of the prosecuting attorney in asking respondent to produce the receipt, and the language employed by the court in his rulings, and the following language used in delivering the charge to the jury, are made the grounds for several of the assignments of error. The jury were told:

“If you find what the sheriff said is true, you have a right to take that into consideration in determining what his business was at that time. Did he have a government receipt for selling spirituous and intoxicating liquors? Was he in that business at that time, on the ] 8th day of December, 1907 ? * * * The government license, the United States government license, gives no one a right to sell liquor in this State. It is simply a revenue collected by the United States government upon those matters. Outside of that, they have to give a State license as I have explained to you.”

The contentions made are:

(1) That in asking the respondent to produce the government license or receipt, the prosecuting attorney was in effect demanding that respondent take the witness stand, and was asking him to give testimony against himself.
(2) That the rulings which were made and the charge to the jury assumed, and the jury must have so understood them, that respondent had a government license to sell liquor and was therefore engaged in the business of selling liquor.

It was clearly competent to prove what respondent said to the sheriff about having paid a tax and to prove the fact that he exhibited a Federal license for the current year. That the statements were made, and the license exhibited, in immediate connection with the reading to the respondent of a warrant charging him with being engaged in the business of selling spirituous and intoxicating liquor without having paid the tax, is significant. It is true the Federal authorities collect a tax upon the business of selling tobacco, and it appears that respondent kept tobacco for sale. It is not to be supposed that respondent was exhibiting to the sheriff a license to sell tobaccos in proof of his assertion that he had paid a tax upon the business of selling liquor, which was what he was charged with carrying on. The only reasonable inference to be drawn is that respondent’s assertions and his exhibition of the receipt, or license, followed immediately upon, and were brought about by, his arrest upon the charge which was read to him. If the testimony was believed, it was conclusive evidence of the fact that respondent conducted the business carried on in the place. Without explanation, it was convincing evidence of the fact that he wished for no Federal interference with sales of liquor made in his place of business. The reference to the subject in the charge of the court was not error. Nor do we think the conviction should be reversed because the prosecuting attorney asked counsel for respondent to produce the Federal receipt or license. The existence and effect of the paper were before the jury, not as discoveries made by the witness, but as relations and representations made by respondent to the witness in connection with his arrest for the offense for which he was being tried. It turned out that the witness did not read the paper further than to learn the month and year of its issue and the month and year of its expiration. "We know of no rule of evidence which would prevent the prosecution from proving, by competent evidence, that the respondent had, in fact, paid the internal revenue tax exacted from a retail dealer in spirituous liquors and had a receipt therefor posted up in his place of business. Admissions of the respondent would prove it. Production of the receipt itself would prove it. Parol evidence of the contents of the paper could not be given until notice to produce the original was first given. No constitutional or other rights of the accused are involved in making such a demand. The objection which was made by counsel for respondent was that the best evidence of the contents of the paper was not being presented. The paper was in respondent’s possession. Notice in writing to produce it might have been given, and is a practice more to be commended than that pursued by the prosecuting attorney; but we are convinced that respondent was in no manner prejudiced by the oral demand to produce the paper or by what the court said upon the subject. See People v. Brown, 110 Mich. 168.

The prosecution introduced evidence tending to prove that goods were shipped to respondent over a line of railway, consigned to him, and delivered at the place of business which it is claimed the respondent carried on. When the cases were emptied, they were returned from this place of business to the railroad depot. It is said the admission of this testimony was prejudicial, because the jury were permitted to infer that, although the packages were billed as mineral water, they in fact contained intoxicating liquors. The record discloses, and this has already been stated, that one of the issues was whether the respondent was the person conducting whatever business was carried on at the particular place. Clearly, the testimony was competent to prove this fact.

No other of the alleged errors requires particular notice.

We have found no reversible error, and the conviction is therefore affirmed.

Grant, C. J., and Blair, Montgomery, and Brooke, JJ., concurred.


text:
    PEOPLE v. DOW.
    1. Highways and Streets — Use — Regulations — Motor Vehicles — Speed—Cities—Business Portion.
    Section. 12. Act No. 196, Pub. Acts 1905,_ regulating the speed of motor vehicles, and prescribing a maximum of eight miles per hour in the “business portion” of cities and villages, applies not only to the central business area of a city, but to all business districts in a city, where there are more than one.

    2. Same — Statute — Construction — Indeeiniteness — Due Process oe Law.
    The difficulty in ascertaining the fact whether a portion of a city is a business district within the meaning of the statute as so construed does not render it so uncertain and indefinite as to make it unreasonable or make it violative of constitutional provisions requiring due process of law.
    Error to the recorder’s court of Detroit; Connolly, J.
    Submitted November 19, 1908.
    (Docket No. 159.)
    Decided December 14, 1908.

      Alex. Dow was convicted of driving a motor car at an unlawful rate of speed, and sentenced to pay a fine of $25.
    Affirmed.

      Wilkinson, Post & Oxtoby, for appellant.

      Gfeorge B. Yerkes, Prosecuting Attorney, and Stewart Hanley, Assistant Prosecuting Attorney, for the people.
    Respondent was convicted upon the charge that he drove a motor car upon Woodward avenue, in the business portion of the city of Detroit, at a rate of speed exceeding eight miles an hour, contrary to the provisions of Act No. 196, Pub. Acts 1905. The particular section of the act violated is section 12, and it reads:
    “ Sec. 12. No person shall operate a motor vehicle upon a public highway at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of the highway, or so as to endanger the life or limb of any person, or the safety of any property; and shall not in any event, while upon any highway, run at a higher rate of speed than twenty-five miles an hour, and within the corporate limits of all cities and villages the rate of speed shall not be greater than eight miles an hour in the business portion of any such city or village, and not greater than fifteen miles an hour in all other portions thereof, subject, however, to the other provisions of this act.”
    It is admitted that Woodward avenue, between Milwaukee and Baltimore avenues, the point at which respondent was driving his car, is, in fact, a business district. Between this point and the main business portion of the city the distance is about two miles, in which distance are districts usually denominated residence districts, and districts devoted more or less to business. In section 1 of the act the term “business portion of any city or village” is defined as “the territory of a city or incorporated village contiguous to a public highway which is at that point either wholly or partially built up with structures devoted to business.” The questions presented, as stated in the brief for respondent, are:

      “ (1) The proper construction of the provisions of Act No. 196 of the Public Acts of 1905, in so far as it undertakes to prescribe speed limits, and to define what is the ‘ business portion ’ of a city within which the rate of speed shall not be greater than eight miles an hour, and what constitutes ‘ other portions,’ in which the rate shall not be greater than fifteen miles an hour; and
    “ (2) If such provisions of the act are not capable of a definite construction, whether they are valid.
    “Respondent claims that the provisions of this act undertaking to define the ‘ business portion ’ refer only to one central business area in a city, and, if not, that then such provisions are uncertain and indefinite, and therefore void, both on general principles of law and as violating the constitutional provisions with reference to due process of law.”
    These questions arise upon exceptions properly taken in behalf of respondent.

      As to the law governing automobiles, see note to Christy v. Elliott (Ill.), 1 L. R. A. (N. S.) 215.

   Ostrander, J.

(after stating the facts). If we consider only the language found in section 12 of the act (Act No. 196, Pub. Acts 1905), it appears that two maximum rates of speed are sanctioned in all cities and villages of the State — one rate in a portion or district designated as the business portion, the other rate in all other portions or parts of the city or village. In most cities and villages such a division of territory can in a general way be made in correspondence with easily observable conditions. It is, however, matter of common knowledge that in some cities widely separated districts are devoted to business, and the record in this case shows affirmatively that such a condition exists in the city of Detroit. Assuming it to be a proper exercise of the police power to require motor vehicles to be driven more slowly in a city than in the country, and more slowly in a business than in a residence portion of a city, there can be no doubt of the power to regulate speed in' all of the business districts in the same city, and, unless the intention to except all but one business district in a city having more than one is clear, we should find in the reason for the regulation reason for its application to all business districts. When the title of the act and all of its provisions are read together, with proper regard for the fact that the statute is general, applying to all cities and villages, and especially when we consider the meaning which is given, in the statute, to the term “business portion of any city or village,” we are obliged to reject the idea that the violated regulation is operative in all cities and villages only in a single, central, business area. Given the meaning indicated, Is the statute so uncertain and indefinite as to be void ?

It is said that it is not possible for one to know, with certainty, whether he is in a business portion or in some other portion of a city, and that it is unreasonable to require one to determine at his peril the character of the district or portion of the city through which he is passing. No one has the absolute right to travel upon any highway at a particular speed. The statute does not, in any case, deny the right to use the highway. The difficulty in determining in any case whether territory at a particular point is either wholly or partially built up with structures devoted to business does not seem to us to be either real or apparent. Whether it is so wholly or partially built up at a particular point is a question of fact. If a maximum speed within the corporate limits of a city was fixed by statute, it would be a question of fact whether the accused was within the limits. In either case, difficulty in ascertaining the fact would not be reason for saying the statute provision was uncertain or indefinite. It may be inconvenient for the driver of a motor car to diminish or increase speed accordingly as he enters and leaves a portion of the city wholly or partially built up with structures devoted to business, but this is not a good reason for saying that the requirement is unreasonable.

The conviction is affirmed.

Grant, O. J., and Blair, Montgomery, and Brooke, JJ., concurred.


author: McAlvay, J. Ostrander, J.

text:
    WRIGHT v. LA MAY.
    Landlord and Tenant — Lease—Construction—Fixtures—Betterments — Title.
    Where the lease of a building for hotel and saloon purposes provided that the tenant might make alterations subject to the approval of the landlord, or of an architect, in case of their failure to agree, and that “all improvements, betterments, and changes or alterations” should, on the expiration of the lease, belong to the landlord, the quoted words extended only to the alterations of the building, and not to saloon furniture placed in the building by a brewery company under a contract with the tenant providing that he should have the use thereof while he sold the company’s beer.
    Appeal from Wayne; Brooke, J.
    Submitted June 15, 1908.
    (Docket No. 99.)
    Decided December 21, 1908.
    Bill by Leora B. Wright against Louis La May, the Stroh Brewery Company, and James D. Burns, sheriff, to restrain an action of replevin. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      John E. Moloney, for complainant.

      William E. Henze {Alex. J. Qroesbeck, of counsel), for defendants Stroh Brewery Co. and James D. Burns.
   McAlvay, J.

Complainant, who is the owner of a 20-foot lot on which is erected a 3-story brick building, being No. 59 Cadillac Square, in the city of Detroit, leased these premises on November 28, 1904, to defendant, Louis La May, by written lease, for the term of five years from and after May 1, 1905, for hotel and saloon purposes; possession to be taken on the last-mentioned date. This lease contained the following provision:

“The first party grants the second party the right to alter and remodel said premises; provided, however, that no alteration shall be made without first submitting the plans thereof to, and receiving the sanction of, first party. In case first and second parties cannot agree on such alterations, the same shall be submitted to an architect to be chosen by first party and paid by second party, and such alterations shall then be made according to his direction and under his supervision. All improvements, betterments, and changes or alterations shall, at the expiration of this lease, be and remain in said premises and belong to first party as a further consideration for this lease.”

Under the terms of this lease, said defendant entered into possession of the premises. After certain negotiations with defendant the Stroh Brewery Company were had by defendant La May, relative to using its product in the business he was to carry on under his lease, on May 26, 1905, these two defendants entered into a written contract relative to the matter, the material parts of which are as follows:

“Agreement between the Stroh Brewery Company, a corporation, party of the first part, and Louis La May, party of the second part, both of Detroit, Wayne county, Mich., to wit: In consideration of the party of the first part agreeing with and promising to the party of the second part to change the front of the building at No. 59 Cadillac Square, Detroit, Mich., occupied by and under lease to the party of the second part, at a cost of four hundred and sixty-five ($465) dollars, and to also furnish to the party of the second part certain hotel and saloon furniture and fixtures, at an approximate cost of eight hundred ($800) dollars, more or less, for free use in said building while exclusively buying, handling and selling the beer made or sold by the party of the first part, the party of the second part agrees with and promises to the party of the first part to exclusively handle, buy, and sell the beer made or sold by the party of the first part for at least five (5) years from May 1, 1905, and to pay for said beer daily, or at least once a week, at the market prices. The party of the second part also expressly promises to and agrees with the party of the first part that should he, at any time before the expiration of the five years stipulated, violate this agreement, he will reimburse the party of the first part for the money invested by the party of the first part for changing the front of said building, and will also buy the above-mentioned hotel and saloon furniture and fixtures at cost price, as evidenced by the bills.”

This contract was executed and delivered after the officers and agents of the defendant brewery company had read and were fully informed of the terms of the lease of complainant to defendant La May. On June 14, 1905, the two defendants named entered into another contract of precisely similar import as the one above quoted, except that the amount to be expended for repairs and alterations to the front of the building was increased to $600. The front was changed and paid for by the brewery company, to the amount of about $600. In the part of the building to be used for a saloon, defendant brewery company, under its agreement in writing with La May, put in a partition across the width of the building about 10 feet back from the front. It is 7 feet high and fastened to the floor and side walls. It has 3 doors to allow people to pass in and out. The brewery company also installed a 22-foot quartered oak bar with mahogany top and 10-inch marble base, one 22-foot rail with lift-up brackets; one 20-foot quartered oak 3-arch mirror frame with plate glass mirrors; one 22-foot copper work board with ice box, bottle racks, and rinse basins; one Chicago sectional ice box; one Champion pump outfit complete. The furniture and fixtures in the saloon were specially designed and made to order for that building. The bar was fastened to the floor by screws through angle irons. In front of it fixed into the floor a mosaic tiling and drain was put in by cutting out the flooring, and about 3 inches of the joists, which was cemented along the edge of the base of the bar to prevent water getting through. The sectional ice box was installed in the basement and connected with the bar and fixtures above by pipes passing through holes made in the floor. The bar and work board weigh 500 pounds, the back bar and mirrors 1,500 pounds, and the sectional ice box 1,000 pounds. All of these improvements were made and the above equipment installed by August 3, 1905. Defendant brewery company paid for the bar equipment, improvements, and fixtures mentioned and for the installation of all the plumbing and building the mosaic tile drain. Altogether there were seven holes made through the floor for connections with the plumbing and ice box below, which were made in such a manner that these articles installed by the brewery company cannot be removed without cutting the pipes.

' On January 30, 1906, defendant brewery company presented to La May for his signature a third agreement, which he signed. All the record shows as to this agreement is the testimony of La May, who says that an officer of defendant company presented a paper to him and asked him to sign it, which he did without reading it, and that he never knew its contents until the day of trial. The right to the possession of this property is claimed under this agreement. The material parts of this agreement are as follows:

“ It is hereby agreed between the Stroh Brewery Company of Detroit, Wayne county, Mich., party of the first part, and Louis La May, of the same place, party of the second part, that, whereas, the said party of the second part desires and agrees to buy beer made or sold by the party of the first part from said party of the first part at the market price or prices established by the party of the first part to their trade in general; and, whereas, the said second party desires said first party to loan or lease to him certain restaurant and saloon furniture and fixtures such as counters, back counters, mirrors, work boards, pumps, signs, etc., more particularly and specifically described as follows, viz.: One 22-foot white quartered oak bar with mahogany top and 10-inch marble base on bar; one 20-foot refrigerator back bar; one 20-foot mirror frame; one 22-foot brass foot rail; one 22-foot copper work board; one 15-foot white oak partition; one Champion pump outfit complete; one Chicago ice box; one cellar ice box; one round table; eight square tables; three dozen No. 41 chairs; one plate glass sign; two electric signs; four drum signs; as well as' any other furniture and fixtures that hereafter may be furnished to the party of the second part by the party of the first part — and 'it being expressly understood and agreed between the parties hereto that all of said above-described property shall remain the property of and belong to the said party of the first part, and it being further expressly understood and agreed that the party of the first part shall loan or lease said above-described property to said second party only and solely during the time that said second party shall continue to purchase beer from said first party in the manner above mentioned, the selling of beer to said second party by said first party as above mentioned being the only consideration to said first party for entering into this agreement: Therefore, it io agreed by said first party that said first party will and does hereby loan or lease said above described property to said second party in the manner and for the time and for the consideration above specified, and it is agrjied by said second party that he will purchase exclusively beer from said first party in the manner above specified, and he will not assign or transfer or sublet any of said property, nor remove said property or any part thereof from No. 59 Cadillac Square, in the city of Detroit, without the consent of the said first party first obtained in writing, indorsed hereon; and it is further agreed that, when said second party shall cease to purchase beer from said first party in the manner above described, he will deliver back to said first party on demand all and every part of the abo ve-described property in as good condition as when received, reasonable wear and tear thereof excepted; and the said second party hereby expressly waives all claims for damages to building, furniture, etc., or any claims for damages of whatever kind or description that may be occasioned by said first party in gaining possession of said property.”

Defendant La May discontinued the purchase of the Stroh Brewery Company beer November 23, 1907. The company then brought replevin for the property which it had delivered to La May and installed in the premises he occupied under his lease, under the agreement of June 14, 1905. The writ of replevin was delivered to defendant Burns, as sheriff of Wayne county, for execution. It commanded him to take into his possession and remove the property hereinbefore described which the brewery company had installed in the premises occupied by La May. These facts being brought to the attention of complainant, she at once filed her bill in this cause, setting forth the facts above related, and claiming that this property could not be removed without her consent; it having been placed in and attached to her premises under the conditions of La May’s lease. She asked for and was granted a temporary injunction. The court denied any relief and dismissed her bill of complaint. She has appealed to this court, and a restraining order has been issued out of this court to maintain the statu quo, pending this appeal.

Complainant’s claim is that this property in dispute is such as in contemplation of the lease to La May was to remain on the premises and belong to her, and that the Stroh Brewery Company, under the circumstances, stands in the shoes of La May, having placed the property in the way already explained in her building, with full knowledge of the terms of the lease. The case turns upon the construction to be given to this lease. The parties agreed that “all improvements, betterments, and changes or alterations shall at the expiration of the lease be and remain in said premises and belong to first party as a further consideration for this lease.” In construing this clause, the purposes for which the property was leased should be considered. In order to occupy for saloon purposes, chairs, tables, and other saloon furniture would be necessary and within the contemplation of the contract of leasing between complainant and defendant La May. We cannot avoid the conclusion that the brewery company entered into contract relations with La May with notice of the lease and is bound by its provisions to such extent as it made “ improvements, betterments, changes, or alterations ” within its fair intent. This had been recognized by the brewery company in the changes made to the front of the building. Of this saloon furniture, it certainly was not intended that the chairs and tables and articles of that class should come within the fair intent of the lease, nor that the bar and ice boxes, usual and necessary in the saloon business, required her approval; but the permanent tile and drain put into the floor and the partition put up, extending across the entire building and affixed to the floor and the walls, should be considered within the terms of the lease, and included in “all improvements, betterments, changes or alterations,” which were to belong to complainant.

The decree should therefore be modified, and a decree entered in favor of complainant as to the oak partition herein above described, which is found to be the property of complainant, and that defendants be enjoined perpetually from removing the same or interfering therewith. In other respects the decree should be affirmed, complainant to recover costs of this court, and neither party to be allowed costs of the circuit court.

Grant, C. J., concurred with McAlvay, J.

Ostrander, J.

I am satisfied that the understanding of La May and the brewery company was that alterations of the building became a part of the building, and that the furniture, which is the property here in question, should not become a part of the building, but should remain the property of the brewery company. Assuming that the brewery company is bound if, and as, La May is bound by the provisions of the lease under which complainant asserts her right to this property, it is a fair interpretation of the lease which limits the meaning of the words “ all improvements, betterments, changes or alterations ” to the alterations and the remodeling of the building for the making of which there is express permission given in the lease, plans for which are required to be submitted to the lessor.

The decree of the court, below should be affirmed, with costs to defendants.

Blair, Montgomery, Hooker, and Moore, JJ., concurred with Ostrander, J.


author: Montgomery, J.

text:
    GILCHRIST v. CORLISS.
    1. Wills — Construction—Intent of Testator.
    It is a cardinal rule in construing wills that the intent of the testator, when ascertained, shall govern.

      2. Same — Precatory Words.
    Though it is a circumstance tending to indicate a purpose that, the whole estate shall be vested in the legatee, and that precatory words shall be regarded as a mere suggestion, rather than as a direction, when it appears that the purpose to which the request would devote the estate is so general that the provision is not capable of being enforced, this does not necessarily follow, for it is also a rule that precatory words will not be construed to confer an absolute gift on the first taker merely because of the failure or uncertainty in the object or subject of the devise.
    3. Same — Estate Devised — Pee or Life Interest.
    Where testator bequeathed all the residue of his estate to his wife, which bequest was followed by a paragraph in which he requested that at his death she make her will and will at least two-thirds of what she received under his will to charities to be designated by her, the amounts so willed to be payable at her death, as it was his wish that she have and use all the income of that portion of his estate willed to her as long as she should live, she did not take an absolute estate in all the residue affected by the provision, but only in one-third thereof, and on her death without disposing of the two-thirds as directed, the two-thirds reverted to the husband’s estate, and as to that he died intestate.
    4. Same — Bequests to Charities — Identification.
    A will making certain bequests to “women’s work in foreign fields,” to “women’s work in home lands (not Tank Home),” and to the “Protestant missionary work among the poor colored people of the South,” examined together with the circumstances of its making and the church and missionary interests of the testator, and held, that the designations were not too uncertain, and that certain home and foreign missionary societies of the Congregational church were intended.
    Appeal from Alpena; Emerick, J.
    Submitted October 9, 1908.
    (Docket No. 8.)
    Decided December 21, 1908.

      Bill by Frank W. Gilchrist and others, executors of the last will and testament of Ella J. Potter, deceased, against George F. Corliss and others for a construction of said will, and a construction of the last will and testament of William H. Potter, deceased. From the decree rendered, complainants appeal.
    Affirmed.

      Charles R. Henry (Benton Hanchett, of counsel), for complainants.

      Joseph H. Cobb and Alexis C. Angelí, for defendants.
   Montgomery, J.

William H. Potter, late of Alpena, died testate on the 1st day of September, 1896. His wife, Ella J. Potter, died testate on the 14th day of May, 1905. The complainants are the executors named in the will of Ella J. Potter. This bill is filed to obtain a construction of the will of William H. Potter and also a determination as to the validity and effect of certain bequests made in the will of Ella J. Potter. The estate of William H. Potter amounted to some $800,000. His wife had an independent estate amounting to something like $250,000.

The will of William H. Potter, after bequeathing something like $50,000 to relatives and friends, proceeds as follows:

“To my dear wife, Ella J. Potter, I give and bequeath all the balance of my real and personal estate of every name and nature and I do appoint my said wife, Ella J. Potter, administratrix, of this my last will and testament, and it is my wish and desire that she be not required to give bonds for the faithful performance of any of the conditions of this my will, as I feel assured she will carry them out without it.
“I request that at my death, my said wife, Ella J. Potter, make her will and will at least two-thirds of what she receives under this, my will, to some charities, named and designated by her, said charities to be in the city of Alpena, Michigan, and the amount so willed to be payable at her death, as it is my wish that she have and use all the income from that portion of my estate willed to her as long as she lives.”

An attempt to comply with the request in the last clause of William H. Potter’s will was made by Ella J. Potter, but it is conceded and it is apparent that it failed for want of a proper designation of the beneficiary, and the', question presented upon this branch of the case is whether Ella J. Potter took an absolute indefeasible estate in all the residue of the estate of William H. Potter after the specific bequests, or whether she took an absolute estate only of one-third of such residue. In other words, whether the estate in the two-thirds vested in her heirs, or whether it vested in the heirs of William H. Potter.

It is contended on behalf of the heirs of Ella J. Potter that the case falls within Jones v. Jones, 25 Mich. 401, Weir v. Michigan Stove Co., 44 Mich. 507, Dills v. La Tour, 136 Mich. 243, Moran v. Moran, 143 Mich. 322 (5 L. R. A. [N. S.] 323), and Turnbull v. Johnson, 153 Mich. 228, and that on the authority of these cases it should be held that a full estate was bequeathed to Ella J. Potter with full power of disposition, and that the subsequent request in the will should be treated merely as the expression of a wish, and not as a mandatory provision. In other words, that Mr. Potter did not intend to direct as to the disposition of the estate, but only to suggest. We think that no one of the cases cited is necessarily controlling in the present case. It is to be noted of the provisions of the will, first, that it does not in terms bequeath an estate in fee simple. While, doubtless, the first clause quoted would, in the absence of subsequent limitations, be adequate to convey a full estate in fee simple, it does not in terms do so. While it would also be adequate to give full power of disposition in the absence of any limitation, it does not in terms give such power of disposition. What follows therefore may well be considered either as a limitation upon the estate conveyed or as a mere suggestion, if such shall be found to be the intent of the testator, and it is a cardinal rule in construing wills that the intent of the testator, when ascertained, shall govern. It is undoubtedly a circumstance tending to indicate a purpose that the whole estate shall be vested in the legatee, and that precatory words shall be regarded as a mere suggestion, rather than as a direction, when it appears that the purpose to which the request would devote the estate is so general that the provision is not capable of being enforced; but this does not necessarily follow, for it is laid down as a rule that precatory words will not be construed to confer an absolute gift on the first taker merely because of the failure or uncertainty in the object or subject of the devise. See Maught v. Getzendanner, 65 Md. 527, and authorities cited; Minot v. Attorney General, 189 Mass. 176; Abrey v. Duffield, 149 Mich. 257.

The point is that the vagueness of the purpose is evidence that the intention to impress a trust is wanting. The testator in such case has reposed a larger discretion in the donee, and from this fact an inference is sometimes drawn that the precatory words are used by way of suggestion, rather than as words of command or direction. So, also, where it appears that the purpose is too vague to be capable of enforcement, and hence to exclude the trust in a legal sense, the rule that such a construction should be given, if reasonably open, as to. avoid intestacy, is to be considered. These rules, however, are to be considered in connection with the rule that the intent of the testator, as gathered from the whole instrument, should control wherever no positive rule is infringed.

In this case, the intent to limit the bequest to the wife to the one-third of the testator’s estate and the use of the remaining two-thirds is manifest. In my view, it is a significant fact that a disposition of the two-thirds received by Ella J. Potter was expected to be made by her will to be made at the death of the testator, William H. Potter. It was intended that it should then he devoted to the purpose indicated, namely, some charities to be located in the city of Alpena. It is also significant that in this same clause it is provided that the amounts so willed by her should be payable at Tier death, and the reason why it should be so payable at her death is doubly significant, namely, “ as it is my wish that she have and use all the income from that portion of my estate willed to her as long as she lives.” There can be no doubt that what William H. Potter desired was that the two-thirds ■of the estate left after the specific bequests should be set apart and should go to certain charities to be designated by Ella J. Potter, but that the corpus of the estate should be kept intact until her death, and that she should have the use and income of the entire of it as long as she lived. We find no obstacle in the previous provisions of the will, namely, in the clause, I give and bequeath all the balance of my real and personal estate of every name and nature to my dear wife, Ella J. Potter,” to carrying into effect this intent of the testator, for, as above stated, there is in terms no declaration that the purpose is to convey an estate in fee simple. There is no authority conferred in terms to dispose of the estate absolutely, and this authority can only arise by implication. We do not understand the cases above cited from our own reports as laying down a rule that such implication shall be permitted to stand in the way of express provisions embodied in a later clause in the will.

It is not contended but that precatory words, if the intent is manifest, may be treated as mandatory. See 20 Central Law Journal, p. 63; Colton v. Colton, 127 U. S. 300; Trustees of Hillsdale College v. Wood, 145 Mich. 257. But it is contended that there is a distinction between the case of an attempt by the testator by use of positive trust terms to create an express trust and where, by reason of the uncertainty in respect to the intended beneficiaries the attempt to create the trust fails, and the case of the use of precatory words expressing a request or wish in respect to the disposition of property, and the same uncertainty exists in regard to the intended beneficiaries. It is contended that, in the first case, the courts hold that the testator intended to put. the property into the trust, and the title and disposition of the property is affected by such attempt to put the property in the trust. In the latter case, the use of precatory words, the courts hold that, by reason of the uncertainty of the beneficiaries, no trust was intended or attempted, and the disposition of the property is in no way affected by the use of precatory words; the precatory words only express a wish. As already indicated, this is stating the rule too strongly. It is true that a trust cannot arise under our statute (3 Comp. Laws, § 8839, subd. 5), unless fully expressed and clearly defined on the face of the instrument creating it; but it does not follow that, in the attempt to create a trust by the use of either positive or precatory words, the intent may not be made manifest to withdraw from the donee a title otherwise apparently conferred. We think from reading the provisions of the will together it is manifest that Mr. Potter did not intend that his wife should be at liberty to use the body of the estate, that he clearly intended to limit her to one-third and the income of the remaining two-thirds, and that the word “request,” in the connection in which it is here used, is just as signficant of this intent as would have been the word “will” or “direct,” and should be held mandatory, and that, while there may have been a failure to create an express trust, there was no failure in expressing a purpose to limit the bequest to Ella J. Potter in her own right. It follows that as to the two-thirds of his estate he must be said to have died intestate.

It remains to consider the effect of certain items in the will of Mrs. Potter. Item fourth reads as follows:

“To women’s work in foreign fields, and to women’s work in home lands (not Tank Home) I give and bequeath each society or work, the sum of five thousand dollars ($5,000.00).”

The circuit judge held that by the bequest “ to women’s work in foreign fields” was meant the “ Women’s Board of Missions of the Interior.” There was evidence offered which shows that Mrs. Potter was a member of the Congregational Church, and that this church carried on a work in behalf of women in foreign fields through the instrumentality of a corporation, under the title of the "Women’s Board of Missions of the Interior.” It also appeared that Mrs. Potter was a subscriber to Mission Studies, on the title page of whióh appears: "Mission Studies. Women’s work in Foreign Lands.” There is a corporation in Michigan known as the " Women’s Home Missionary Union of the Congregational Churches of Michigan.” It was in evidence that Mrs. Potter was at one time president of the local missionary society in Alpena, and that this society is an auxiliary of the Women’s Home Missionary Union of the Congregational Churches of Michigan, and that the local society sends delegates to the State society. The court held that this society was the beneficiary intended by the use of the words " women’s work in home lands.”

It is claimed that the designation of the beneficiary was too uncertain. We do not concur in this view. In Gilmer v. Stone, 130 U. S. 586, the bequest was of the remainder of the testator’s estate, to be equally divided between the board of foreign and the board of home missions. This was the only designation. It was in evidence that there are various denominations having a board of foreign missions and a board of home missions. The testator, however, was shown to be a member of the Presbyterian Church and a contributor to the missions established by that church, and it was held that the Board of Foreign Missions of the Presbyterian Church in the United States of America and the Board of Home Missions of the Presbyterian Church in the United States of America were intended by the designation made. We think the uncertainty in the present case is no greater than in that case. The evidence in that case was of a similar character, and it was said of this testimony:

"The purpose of it was to place the court, as far as possible, in the situation in which the testator stood, and thus bring the words employed by him into contact with the circumstances attending the execution of the will. Such proof does not contradict the terms of that instrument, nor tend to wrest the words of the testator from their natural operation. It serves only to identify the institutions described by him as ‘ the board of foreign and the board of home missions,’ and thus the court is enabled to avail itself of the light which the circumstances, in which the testator was placed at the time he made the will, would throw upon his intention.”

See, also, Cook v. Universalist General Convention, 138 Mich. 157.

There was also a bequest, item tenth of the residuary clause of her will, to the Protestant missionary work among the poor colored people of the South. This amount is claimed by the American Missionary Association, which is shown also to be a corporation organized by the Congregational Churches. It was shown that Mrs. Potter was a subscriber to the American Missionary, in which the work among the poor colored people of the South was described, and there was, in addition, evidence of an expression,of an intention to do something for this society. The same considerations which control as to item fourth control as to this.

The decree of the circuit court will be affirmed.

Grant, C. J., and Blair, Moore, and McAlvay, JJ., concurred.


author: McAlvay, J.

text:
    PUTNAM v. PHŒNIX PREFERRED ACCIDENT INSURANCE CO.
    1. Accident Insurance — Action on Policy — Cause op Accident —Evidence—Sufficiency.
    In an action on an accident policy for the death of assured by being thrown from a horse, the defense being that assured came to his death by voluntarily exposing himself to obvious risk and danger, by undertaking to ride a horse known to be vioious and unruly, evidence examined, and held, that defendant was not entitled, under the undisputed evidence, to a directed verdict, and that it was proper to submit the case to the jury.

    3. Appeal and Error — New Trial — Exceptions.
    An assignment of error that the cause was submitted to the jury upon an improper theory will not be considered on appeal where no exceptions were taken to the charge as given.
    3. Same — Evidence—Objection.
    Where an answer to a question propounded by defendant’s counsel was stricken out as not being responsive, and the court indicated that the witness could testify as to her knowledge of the facts, and counsel did not follow such suggestion, he is precluded from questioning the ruling of the court.
    4. Evidence — Animals— Oharaoter.
    Evidence of a witness who had owned and sold a horse as to its value was properly received as bearing upon its reputation and quality, where the defense sought to establish that the horse was vicious and unmanageable.
    5. Same.
    Evidence of witnesses who had known the horse before and after the accident was properly received as against the objection that it had no tendency to prove its disposition on the day of the accident.
    Error to Cass; Des Voignes, J.
    Submitted October 12, 1908.
    (Docket No. 21.)
    Decided December 21, 1908.

      Assumpsit by Ellen Putnam against the Phcenix Preferred Accident Insurance Company on a policy of insurance. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Abbott & Abbott, for appellant.

      Charles E. Sweet, for appellee.

      As to what constitutes voluntary exposure to unnecessary danger, see note to Fidelity & C. Co. v. Chambers (Va.), 40 L. R. A. 432.

   McAlvay, J.

Plaintiff, who was named as beneficiary in a certain accident insurance policy issued to her son by defendant company, recovered a judgment of 1413.28 in a suit brought on such policy; that being the amount to which she, under said policy, claimed she was entitled to recover on account of the death of her son, the insured. His death resulted from injuries received in an accident which occurred September 22, 1906. That he was killed on that date by being thrown from a horse in some manner is not disputed. The defense was that this young man came to his death by voluntarily exposing himself, contrary to the provisions of the insurance contract, to obvious risk of injury and obvious danger, by mounting and undertaking to ride a running mare known to him to be vicious, unruly, and unsafe to ride, and under the policy defendant made tender of 10 per cent, of the amount of the insurance as payment in full. The deceased was by occupation a cook and conducted a restaurant. Defendant at the close of plaintiff’s case, and also when all the testimony had been taken, moved for an instructed verdict in its favor, for the reason that it appeared from the uncontradicted evidence that the death of the insured was caused by his gross negligence in exposing himself “to obvious risk of injury and obvious danger.” These motions were both denied, and the case given to the jury under the charge of the court. A verdict was rendered in favor of plaintiff. Defendant then moved in arrest of judgment, which was denied. A motion was then made for a new trial, for the reasons: (a) That there was no evidence to support the verdict; (6) that the verdiet was contrary to the weight of evidence; and (c) that the verdict was inconsistent with the special findings of the jury. The motion for a new trial was denied; the reasons given therefor negativing all the grounds relied upon.

To. all these rulings of the court, and also to certain ruling on the evidence, exceptions were taken, upon which errors are assigned. No error is assigned to any specific portion of the charge of the court. The facts necessary to state in order to understand the defense relied upon (in addition to what will appear in the special findings of the jury requested by defendant) are as follows: The brother of deceased had in charge several running horses, among them the one in question, and on the day of the accident deceased proceeded to ride this mare from Cassopolis to Dowagiac, a distance of 12 miles. During this ride it is claimed by defendant that she twice ran away with deceased, and that his death was caused by his voluntary act in mounting her after the second runaway and riding her into Dowagiac, exposing himself ‘ ‘ to obvious risk of injury and obvious danger.” The court ruled, in effect, that what occurred during this ride was a question of fact to be submitted to the jury, together with the question of the general character and temperament of the mare and the knowledge of deceased relative to the same. The following are special requests of defendant above referred to and the findings of the jury thereon:

“First. Was Charles Putnam intentionally forcing and driving his horse at a reckless and dangerous rate of speed at the time when it was claimed he was thrown from said horse and killed ?
“A. No.
“Second. Was Charles Putnam killed as a result of the dangerous, vicious, unmanageable disposition, conduct, and actions of the horse, upon which it is claimed he was riding and from which it is claimed he was thrown ?
“A. No.
“ Third. On the 22d of September, 1906, did the horse from which it is claimed that Charles Putnam was thrown and killed become dangerously spirited, unruly, and unmanageable in the vicinity of Well’s farm and while the said Charles Putnam was riding him ?
“A. No.
“Fourth. On the 22d day of September, 1906, did the horse from which it is claimed Charles Putnam was thrown and killed make one or more attempts to run away with said Charles Putnam before said Charles Putnam approached near Dowagiac with said horse ?
“A. No.
“Fifth. Before mounting and riding the horse into the village of Dowagiac, where and from which it is claimed that the said Charles Putnam was thrown and killed, did the said Charles Putnam know from previous experience while riding the said horse on the same day that the said horse was acting viciously and unruly, and that the said horse was hard to manage and control, and that the said horse was inclined to run at a dangerous rate of speed while being ridden ?
“A. No.”

We will consider the questions before us in the order presented in defendant’s brief.

1. It is claimed that a verdict should have been directed for defendant. Under this claim it has been necessary to examine all of the evidence in the case. Prom such examination we are satisfied that the claim of defendant that the evidence was undisputed that the deceased “ voluntarily exposed himself to obvious risk of injury and obvious danger ” was not sustained. There was evidence in the case that this mare was always kind and easy to handle, that she was an even-tempered horse, that she had. been ridden along the road and went along quietly, and that the deceased had seen her in races three times. The record of the occurrences during the ride which ended fatally is not conclusive that the horse was running away or was at any time beyond control of deceased. All these were questions of fact for the jury. The court would not have been justified in directing a verdict. Neither the court below, nor this court, "except in cases where honest minds cannot differ, will pass upon the weight of evidence in any case.

2. Defendant urges that the court erred in denying the motion for a new trial. In connection with this proposition, it is for the first time claimed that the case was submitted to the jury upon an- erroneous theory. Error is not assigned to any specific parts of the charge. The question is therefore not properly before us. The reasons urged in the motion for a new trial are given above. This contention has in fact been disposed of by us in holding that there were questions of fact to be submitted to the jury.

3. Error is assigned because the court excluded and struck out the answer of a witness for defendant to the following question:

‘ ‘ What have you to say as to the speed of the horse ?
“A. Well, I should consider the horse was running away.”

This was objected to as not responsive. The court indicated that the witness might testify to her knowledge of the fact. Counsel for defendant then asked if the answer was stricken out, and the court said:

“ I think it may be, the answer as it stands.”

Counsel did not pursue the subject further, but chose to abandon it. He should not have done so if he cared for the testimony. The court’s ruling plainly invited further examination.

4. The remaining assignments of error discussed relate to admitting and allowing testimony to stand against defendant’s objection. The first two instances relate to testimony of a witness who owned and sold the horse, who stated that the mare was valued at $250. It was claimed by plaintiff that this testimony was material as bearing upon the reputation and quality of the mare. The testimony was material in view of the claim of the defense as to the character of the horse. The remaining three assignments of error relate to testimony of witnesses who knew this horse and testified as to her disposition, temperament, and gentleness, both before and after the accident. The objection was made that this had no tendency to show what her disposition was on the day of the accident. The court properly overruled the objection. The testimony was material and relevant.

We discover no errors in the case. The judgment of the circuit court is affirmed.

Grant, C. J., and Hooker and Moore, JJ., concurred. Blair, J., concurred in the result.