text:
    PEOPLE v. WILLIAMS.
    1. Criminal Law — Trial—Instructions—Reasonable Doubt.
    In a prosecution for having sexual intercourse with a female by representing it to be beneficial to her health, while undertaking to treat her medically, in violation of 3 Comp. Laws 1915, § 15505, the charge of the court to the jury that if they believed that the complaining witness consented, as testified to by the defendant, then he should be acquitted, was not open to the objection that the court failed to instruct, in connection therewith, the effect of said testimony in raising a reasonable doubt, where the court fully instructed them, in another part of the charge, as to reasonable doubt, defining the same.
    2. Same — Charge as Whole.
    The correctness of the charge cannot he tested by taking particular parts, hut must be taken as a whole.
    3. Same — Instructions—Inferences from Pacts.
    The charge of the court to the jury that they were the sole judges of the facts, and it was for them to determine who was telling the truth, and what inferences should be drawn from the testimony, was not open to the objection •that it was too indefinite and uncertain and gave the jury to understand that they were not limited in their inferences as to facts.
    4. Same — Instructions—Dependant’s Interest.
    In the absence of any request to charge differently, it was not reversible error, as unduly emphasizing his interest, for the trial court to . charge the jury that they should give defendant’s testimony the same consideration as the testimony of any other witness, except that they might consider his interest in the outcome of the case.
    5. Same — Instructions — Presumption oe Innocence — Reasonable Doubt.
    Failure to instruct the jury, in a criminal case, as to the presumption of innocence, is not reversible error, where the attention of the court was not called to the omission, and the charge as given was explicit and to the effect that the guilt of the accused must be proved beyond a reasonable doubt.
    6. Same — Appeal and Error — Miscarriage oe Justice.
    Where it cannot be said that omission to charge as to the presumption of innocence resulted in a miscarriage of justice, in view of Act No. 89, Pub. Acts 1915, the case should not be reversed therefor.
    Error to recorder’s court of Detroit; Jeffries (Edward J.), J.
    Submitted October 16, 1919.
    (Docket No. 109.)
    Decided December 23, 1919.
    Oscar H. Williams was convicted of violating section 15505, 3 Comp. Laws 1915, and sentenced to imprisonment for not less than 5 nor more than 10 years in the State prison at Jackson.
    Affirmed.

      A. O. Reece, for appellant.

      Alex. J. Groesbeck, Attorney General, Matthew H. Bishop, Prosecuting Attorney, and Herman H. Green-berg, Assistant Prosecuting Attorney, for the people.
   Stone, J.

The defendant was convicted in the recorder’s court for the city of Detroit of a violation of section 15505, 3 Comp. Laws 1915, which statute provides:

“That if any person shall undertake to medically treat any female person, and while so treating her, shall represent to such female that it is, or will be, necessary or beneficial to her health that she have sexual intercourse with a man, and shall thereby induce her to have carnal sexual intercourse with any man, or if any man, not being the husband of such female, shall have sexual intercourse with her by reason of such representation, the person or persons so offending shall, on conviction thereof, be punished by imprisonment in the State prison for any term of years not exceeding ten years.”

Upon his conviction the defendant was sentenced to imprisonment in the State prison at Jackson, where he is now confined. He has brought the case here by writ of error. As the only errors assigned relate to the charge of the court, we here quote the substance of the charge, as follows:

“The statute of this State provides a punishment for any person who shall undertake to medically treat any female person and while so treating her shall represent to such female that it is, or it will be, necessary or beneficial to her health that she have sexual intercourse with a man and shall thereby induce her to have carnal sexual intercourse with any man, or if any man, not being the husband of such female, shall have sexual intercourse with her by reason of such representation, the person or persons so offending shall be — and so forth. And this information, gentlemen of the jury, is drawn under this section of the statute.
“You are the sole judges of the facts. It is for you to determine who is telling the truth and what inferences shall be drawn from the testimony.
“The defendant has taken the stand in his own behalf and you are to give his testimony the same consideration as the testimony of any other witness, except in so far as you may inquire into his motives or any interest he may have in the outcome of the trial.
“The issue, gentlemen of the jury, here is whether the act of intercourse was done under the inducement of the defendant, and if you believe it was done under the inducement of the defendant by reason of offering or holding out to treat the complaining witness medically for bodily ill and that she consented to the act of intercourse under the belief that it was for her health, then, gentlemen of the jury, if you believe that, and believe it beyond a reasonable doubt, it is your duty to convict this defendant.
“If you believe, however, that this complaining witness consented to it, as testified to by defendant, then your duty is to acquit this defendant.
“That is the sole issue, gentlemen of the jury, in this case, as to whether the act of intercourse was induced by the offer of medical treatment or as a process of treatment for the health of the complaining witness, or whether it was done by the consent and knowledge of the complainant and not for her health. That is all there is to this case, gentlemen of the jury; that one issue.
“Now, the defendant is presumed to be innocent until proven guilty beyond a reasonable doubt, and a reasonable doubt is not a vain, possible, imaginary or captious doubt, but a fair doubt founded on reason and . common sense, growing out of the evidence or lack of evidence in the case. It is such a doubt that, after a careful review of all the testimony, you cannot say you have an abiding conviction to a moral certainty of the defendant’s guilt. If you have, give him the benefit of it and acquit him. If not, you may convict him of the charge in the information.”

There were no requests to charge by defendant’s counsel. The errors assigned are as follows:

“(1) That the court erred in charging the jury as follows: Tf you believe, however, that this complaining witness consented to it as testified to by defendant, then your duty is to acquit this defendant/ and in failing to instruct said jury that if this testimony of said defendant raised a reasonable doubt in the minds of said jury as to defendant’s guilt, he, defendant, should be given the benefit of the doubt and should be acquitted.
“(2) That the court erred in charging said jury as follows: Tt is for you to determine who is telling the truth and what inferences shall be drawn from the testimony,’ for the reason that such instruction was too indefinite and uncertain and gave the jury to understand that they might draw inferences and guess at the facts without limit, whereas they should have been confined to such proper inferences as might properly be drawn from facts established as evidence in the case beyond all reasonable doubt.
“(3) That the court erred in charging the jury as follows: ‘The defendant has taken the stand in his own behalf and you are to give his testimony the same consideration as the testimony of any other witness, except in so far as you may inquire into his motives or any interest he may have in the outcome of the trial,’ for the reason that it establishes a different mode, method and rules for the jury to weigh the testimony of the defendant from other witnesses in the case as- to the motives or interest of such witness.
* “(4) That the court erred in failing to instruct the .jury that the burden of proof was upon the people to establish every element of the offense beyond a reasonable doubt and that such burden remained upon the people throughout the trial, and until the evidence satisfied the jury beyond all reasonable doubt of respondent’s guilt.”

1. Criticizing the language of the charge here quoted, defendant’s counsel says:

“In order for the jury to have been justified in acquitting respondent, it was not necessary that they must believe his testimony in reference to her consenting to the act, but they should have been instructed that if his testimony and claim that the act of intercourse was the result of her free will and desire, and not of any alleged misrepresentation on his part as to her health, created in their minds a reasonable doubt (not an absolute belief) they should acquit respondent.”

Counsel cites People v. White, 194 Mich, at p. 175, and People v. Prinz, 148 Mich, at p. 308, and quotes from the last-cited case the following:

“It is doubtless true that the trial judge should, even though no requests be preferred, cover the general features of the case, define the offense, and indicate what it is essential to prove to establish the offense.”

Counsel also quotes from 1 Wharton’s Crim. Ev. (10th Ed.), p. 660, the following:

“A reasonable doubt as to any essential element of the crime, or of the proof of any essential fact, must always be resolved in favor of the defendant.”

Other authorities are cited, including People v. Cismadija, 167 Mich, at p. 215, where the charge erroneously placed the burden of proof upon defendant, to convince the jury beyond a reasonable doubt that he did not premeditate the crime. We do not think that the part of the charge here complained of is open to the criticism made. This court has repeatedly held that we must take the whole charge together in construing it, and that its correctness cannot be tested by taking particular parts thereof. People v. Finley, 38 Mich. 482, 486; People v. Howard, 50 Mich. 239, 246; People v. Brown, 53 Mich. 531, 536. In the last-cited case, in speaking of the charge, we said:

“We do not think, however, that it is quite fair to select out single passages and deal with them as if they were independent.”

Turning to the charge in the instant case, we find that the part of the charge complained of was not misleading or erroneous, in itself. In another part thereof the trial court instructed the jury fully that the defendant was presumed to be innocent until proven guilty beyond a reasonable doubt, and defined such doubt, and concluded as follows:

“It is such a doubt that, after a careful review of all the testimony, you cannot say you have an abiding conviction to a moral certainty of the defendant’s guilt.”

We cannot conceive that there was any likelihood of the jury being led to a wrong conclusion by the charge concerning the question of reasonable doubt, or burden of proof.

2 and 3. The second and third assignments of error are discussed together by counsel. Of the second counsel says it was certainly too indefinite and uncertain, and placed no limit or bounds upon the jury in drawing inferences as to facts; and it is argued that the jury can only draw proper inferences from proven facts — a proposition with which we agree.

The language of Chief Justice Campbell in People v. Finley, 38 Mich, at p. 486, is pertinent here, viz.:

“A jury knows without instruction that it has a right to consider any testimony which has been allowed to go before it, and to draw such inferences as naturally are drawn by each one of the body. When a court calls attention to bits of evidence, or to particular witnesses, more than others, there is some danger that undue prominence will be given to what is so designated. It is. at least quite as safe to avoid this practice, unless circumstances appear to require it.”

' It is very apparent that the language used by the trial court limited any inference the jury might draw to the facts and testimony presented to them upon the trial. The language used was as follows:

“You are the sole judges of the facts. It is for you to determine who is telling the truth, and what inferences shall be drawn from the testimony.”

We find no error in this part of the charge, and think that the jury could not have been misled by it.

It is urged that the instruction complained of in the third assignment of error was unfair and prejudicial to the defendant, in that it unduly emphasized his interest in the case, and in its outcome; and the following cases are cited: People v. Willett, 105 Mich. 110, 115; People v. McArron, 121 Mich. 1, 41.

In the Willett Case this court approved of an instruction in the following form:

“In the beneficence of our modern statutes, in this State, one on trial for a crime is allowed to testify under oath in his own behalf. His interest in the result of the trial, that would formerly preclude his so testifying, now has not that effect, and it is the duty of the jurors, where this is done, to give his testimony such weight as, in view of all the facts and circumstances shown, it shall appear to them to be entitled to. His interest is to be considered only so far as it affects his credit. His testimony is to be scanned and tested the same as that of other witnesses. If rational, natural, and consistent, it may outweigh the testimony of other witnesses. If inconsistent with established facts, or with his prior statements, you will treat it the same as you would that of any other witness whose testimony is thus defective.”

In the McArron Case a request to charge was refused, which read as follows:

"The defendant, under our statute, is allowed to testify under oath in his own behalf, and it is the duty of the jurors, where he has done so, to give his testimony such weight as, in view of the facts and circumstances shown, it shall appear to them to be entitled to. His testimony is to be tested the same as that of other witnesses. If rational, natural, and consistent, it may outweigh the testimony of other witnesses.”

If was held in that case that the refusal to instruct as requested was error. It will be noted that in the McArron Case the question raised was on the refusal of.the court to charge as requested; whereas in the instant case the trial court charged the jury upon the question, there being no request to charge. We cannot say that the charge as given by the trial court was erroneous. That a defendant, in a criminal case, has an interest in the outcome of the trial goes without saying. While the charge might well have been more elaborate upon this proposition, in the absence of any request to charge upon the subject, we do not think there was any reversible error. The charge as given did not establish a different mode, method and rule for the jury to weigh the testimony of the defendant from that of other witnesses in the case. They were told that they should give his testimony the same consideration as the testimony of any other witness, except that they might consider his interest in the outcome of the case.

4. Upon the question of the burden of proof, defendant’s counsel says:

“If the instructions as to defendant’s rights had been clear and correct, the trial court’s failure in respect to the burden of proof might not have been harmful”;

But it is urged that under the circumstances of the case it became important that the court should inform the jury that the burden of proof of each element of the offense was upon the people, and each element should be established beyond all reasonable doubt, and that a failure on the part of the people to establish either of the elements, beyond a reasonable doubt, entitled defendant to acquittal. We have already spoken upon the subject of the presumption of innocence. The questions with reference to burden of proof and presumption of innocence are closely allied and have been frequently discussed by this court. People v. Graney, 91 Mich. 646.

In People v. Ostrander, 110 Mich. 60, it was held that failure to instruct the jury in a criminal casé as to the presumption of innocence is not reversible error where the attention of the court was not called to the omission, and the charge as given was explicit and to the effect that the guilt of the accused must be proved beyond a reasonable doubt; and People v. Graney, supra, and People v. Smith, 92 Mich. 10, were cited. See People v. Yund, 163 Mich. 504, and People v. Rogulski, 181 Mich. 481, where allusion is made to the duty of counsel to call the court’s attention to the subject, by request to charge.

The charge of the court would doubtless have been more elaborate on the question of burden of proof had its attention been called to the subject by counsel. We cannot say that this omission in the charge has in this case resulted in a miscarriage of justice; and, in view of Act No. 89, Pub. Acts 1915 (3 Comp. Laws 1915, § 14565), the case should not be reversed for such failure to more fully charge upon the subject. People v. Smolkiewicz, 206 Mich. 1.

Judgment of the recorder’s court is therefore affirmed.

Bird, C. J., and Sharpe, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Bird, C. J.

license: Public Domain

text:
    HENDRICKS v. COBB.
    1. Brokers — Compensation, When Earned.
    To entitle a broker to recover for making a loan be was employed to make, but wbicb was not accepted by tbe principal, it was necessary for bim to show that be bad produced a person willing, ready! and able to make the loan.
    2. Same — Proof.
    Proof of statements to plaintiff by a lawyer that be had a client ready to make tbe loan, helé, insufficient to prove that plaintiff had a person willing, ready, and able to make tbe loan.

      3. Same — Liability Where Several Brokers Employed.
    Where several brokers were employed to secure a loan, the employer, provided he remains neutral towards the several brokers, is liable for commissions only to the one who first completes the loan, or if he has not delegated authority to conclude the transaction, to the one who first produces a person able, ready, and willing to make the loan on terms agreeable to the employer, and this without any express contract to that effect.
    4. Same — Authority to Close Deal — Liability for Comaiissiok.
    Where there was some evidence that defendant authorized plaintiff to close the deal for the loan, it was not erroneous for the trial court to express the opinion that, in-order to save himself from the danger of being called upon to pay tvio parties for procuring the loan, defendant should have made such a contract with plaintiff as would have protected defendant, and that at the least he should have informed plaintiff that he was seeking the loan elsewhere and would not be held to pay if he succeeded in getting it before plaintiff did.
    Error to Barry; Smith (Clement), J.
    Submitted November 4, 1919.
    (Docket No. 77.)
    Decided December 23, 1919.
    Assumpsit in justice’s court by Hartley E. Hendricks against Ira Cobb for a broker’s commission. There was judgment for- plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Reversed.

      N. A. Cobb and W. W. Potter, for appellant.

      Thomas Sullivan and Milton F. Jordan, for appellee.
   Bird, C. J.

Defendant was the owner of a large farm in Barry county upon which he desired to negotiate a mortgage loan of $5,100. He applied to plaintiff to negotiate it for him. The agreed consideration for obtaining the loan appears to have been $50, and in addition thereto any expense plaintiff might incur in taking prospective lenders to view the premises. Plaintiff took two persons to view the farm, but both refused to make the loan. He then had some talk with one Gleason, a lawyer of Grand Rapids, who had a client with funds to loan on mortgage security. Gleason’s representative was taken to the farm and made a favorable report, whereupon Gleason advised plaintiff that in the event his client took the loan he would have to charge $50 for his services in examining the abstract. Plaintiff called the defendant by telephone and advised him of the talk with Gleason. Defendant replied that he would pay the additional fee and advised plaintiff “to hurry it up as he was very anxious to secure it.” The following day Gleason’s client concluded to take the loan if the abstract showed defendant had a clear title. Plaintiff called defendant on the telephone again and communicated this information to him and requested him to come to Grand Rapids and bring his abstract. Defendant replied that the abstract was in New York, that it would be returned within a day or two, and he would come over to Grand Rapids with it. A few days later defendant informed plaintiff that the loan had been taken in New York, and that he would not need the Gleason loan. The matter being concluded plaintiff demanded his fee, insisting that he had earned his commission. The defendant did not agree with him and this suit was commenced to enforce the payment thereof. At the conclusion of plaintiff’s case defendant insisted that plaintiff had not shown facts which entitled him to recover. In support of this contention counsel insist that it was the duty of plaintiff to show affirmatively that he produced a person who was. willing, ready and able to take the loan. It was argued that plaintiff had not discharged this burden and that no competent proof was offered to show that such a person was produced.

1. It is, undoubtedly, true, as argued, that to entitle plaintiff to recover it was necessary for him to show that he had produced a person willing, ready and able to make the loan. Wright v. Beach, 82 Mich. 469; West v. Hudson, 171 Mich. 669; Crawford v. Cicotte, 186 Mich. 272. An examination of the plaintiff’s testimony discloses that his proofs were defective in this respect. Upon cross-examination the plaintiff admitted that he did not know the party who was to furnish the loan and did not know whether she was worth “fifty cents or five thousand dollars.” In fact, he admitted he knew nothing about her willingness, readiness or ability to make the loan, save what had been told him by Gleason. Neither Gleason nor the party who was to make the loan was produced. With the proofs in this state, we are of the opinion that plaintiff was not entitled to recover.

2. In view of the fact that a retrial must be had, another question over which counsel are at variance should be noticed. The trial court expressed the opinion that:

“It must be admitted that it is a seeming hardship that defendant should pay two parties for procuring this loan% It is my judgment, however, that in order to save himself from the danger of being called upon to do so, he should have made such a contract with plaintiff as would have protected him, and that at the very least he should have informed him that he was seeking the loan elsewhere, and would not be held to pay the plaintiff should he succeed in getting it before the plaintiff did.”

Defendant’s counsel insist that this is an erroneous view of the law because plaintiff did not have an exclusive agency and because plaintiff did know that others were working on the loan, and authorities are cited to the effect that where several brokers act independently and with knowledge of the fact that one who first completes the sale or obtains the loan is entitled to the commission. Among these citations is 4 R. C. L. p. 385, which states the rule to be that:

“Where the same property is placed for sale with two or more brokers, the owner, provided he remains neutral towards the several brokers, is liable for commissions only to the one who first completes the sale, or if the owner has not delegated authority to conclude the transaction, to the one who first produces a customer, able, ready and willing to purchase the property on terms agreeable to the owner; and this is true without any express contract to that effect.” Citing authorities.

Under this rule, if. plaintiff first obtained the loan, then he was entitled to his commission. The court having found, as a matter of fact, that plaintiff did first obtain it, the judgment in his behalf would be amply supported by conclusions of law and fact. The remaining conclusion of law in this connection that if defendant desired to save himself from the danger of being called upon to pay a second time he should have protected himself by an agreement with the defendant to that effect, is objectionable unless defendant authorized him to close the deal with Gleason. There was some proof to this effect, and, therefore, we cannot hold that this conclusion of law was unwarranted.

The judgment must be reversed and a new trial ordered, with costs of both courts to the defendant.

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


text:
    BAXTER v. OAKLAND CIRCUIT JUDGE.
    1. Costs — Taxing Term Fee on Postponement.
    Under 3 Comp. Laws 1915, § 13685, requiring a term fee to be taxed for every term at which a cause is regularly on the calendar, and not reached, or is postponed, if the ease is not reached on the call, the term fee is taxable, and if reached, hut not tried, by reason of a continuance, a stipulation of the parties, or a lack of time, it is postponed within the meaning of the statute, and the fee is taxable, except where the taxing party has been allowed a continuance fee.
    2. Same — Stipulation to Postpone — Which Party Suggested Postponement Immaterial.
    Under said statute, a term fee is taxed when a case is reached and postponed, although the postponement is at the request of the attorney for the party who finally prevails; for a case is just as clearly postponed if a stipulation is filed the moment the case is reached as it would have been had the stipulation been filed on the first day of the term, and the question at whose suggestion it was postponed can have no influence on the interpretation of the statute.
    3. Same — Purpose.
    The provision for the taxation of a term fee in said statute was created as a service fee for noticing the cause for trial, preparing and delivering a note of issue to the clerk, and afterwards giving the usual attention to cases on the calendar.
    . Mandamus by Arthur L. Baxter to compel Kleber P. Rockwell, circuit judge of Oakland county, to set aside an order refusing to tax certain term fees.
    Submitted December 13, 1919.
    (Calendar No. 28,692.)
    Writ granted December 23, 1919.

      B. F. Reed, for plaintiff.

      Andrew L. Moore, for defendant.
   Bird, C. J.

This is an application for a writ of mandamus to compel defendant to set aside his order refusing to tax certain term fees, in the case of Baxter v. Stout, in the Oakland circuit court, and to tax the same in accordance with plaintiff’s contention. It appears that the case was on the calendar for the September and. November terms of 1917, and for the January, March and June terms of 1918, but for various reasons was not disposed of. The statute in question provides that:

“There shall be allowed to the prevailing parties costs in addition to the fees of officers, * * * for every term at which a cause is regularly on the calendar and not reached, or is postponed, excluding that at which it is tried, five dollars: Provided, That no such term fees shall be allowed to any party for any term at which he was allowed a continuance fee.” * * * 3 Comp. Laws 1915, § 13685.

In commenting on this provision counsel for defendant has this to say:

“The question that is squarely raised in this case is: What does the phrase 'not reached or is postponed’ mean?
“Counsel for relator contends that if the case was reached and then was postponed, that he would be entitled to a term fee. The language of the statute is not free from ambiguity. It is clear that a case might be postponed by stipulation that was not actually reached in the call of the docket, and that question has been settled in the case of Martin v. Wayne Circuit Judge, 111 Mich. 71; but, suppose a case is reached and is postponed, and suppose the postponement is at the request of the attorney for the party who finally prevails — Does the statute mean that in such a case there shall be a term fee taxed?”

Under this statute, if the case is- not reached on the call the term fee is taxable. If the case is reached on the call but not tried, by reason of a continuance, a stipulation of the parties, or a lack of time, it is postponed within the meaning of the statute, and the term fee is taxable, save in one particular, where the taxing party has been allowed a continuance fee. But counsel says, Suppose a case is reached and is postponed? The case is just as clearly postponed if a stipulation is filed the moment the case is reached as it would have been had the stipulation been filed on the first day of term, and the question on whose suggestion it was postponed can have no influence on the interpretation óf the statute. That question involves the rule of reciprocal courtesies which the statute does not appear to have recognized.

The provision for a term fee in the foregoing statute was undoubtedly created as a service fee for noticing the cause for trial, preparing and delivering a note of issue to the clerk, and afterwards giving the case such attention as lawyers are accustomed to give their cases which aré on the calendar. This service is usually performed before it is determined whether the case will be reached and usually before any postponement is requested or granted.

Our conclusion is that the court should have taxed the five term fees. Should any occasion arise for having the writ issue after the trial court’s attention is called to this opinion, it may issue. Plaintiff will recover his costs to be taxed against the defendant Stout.

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


author: Kuhn, J.

text:
    BRIGGS v. TOWNSHIP OF RONALD.
    Election of Remedies — Paupers—Claim fob Cabe.
    Although plaintiff was authorized by the supervisor of the township to care for an aged and infirm man, who was without relatives to care for him, until his death, where she presented her claim for same against the estate of deceased, and the commissioners on claims allowed it in part, presumably determining that the amount allowed was all she was entitled to, she elected her remedy, and could not thereafter maintain an action against the township for the balance of her claim.
    Error to Ionia; Davis (Frank D. M.), J.
    Submitted October 21, 1919.
    (Docket No. 96.)
    Decided December 31, 1919.
    Assumpsit by Minnie Briggs against the township of Ronald for the care of an alleged indigent person. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Hawley & Eldred, for appellant.

      F. C. Miller, for appellee.
   Kuhn, J.

This litigation arises as a result of a claim for the cost of maintenance, care and nursing of an old gentleman named Robert Kettleton during his last illness. On the 8th of December, 1915, Mr. Kettleton was a resident of the defendant township and, so far as this record shows, was without relatives or friends who were in any way liable for his care or support. On that day he was taken to the hotel owned and operated by the plaintiff and her husband, and was accepted by them as a guest. He was suffering from a complication of diseases and was unable to take care of himself physically. On the moming following his reception by the plaintiff, the plaintiffs husband called the supervisor of the township by telephone and advised him as to the physical condition of Kettleton and told him to come and look after him — that they could not keep him at the hotel, and that he must be moved. On the following day, the supervisor investigated the physical condition of Kettleton, consulting with a doctor, and advised the plaintiff and her husband that Kettleton had but a few days to live, according to the doctor’s statement, and that they had better keep him at the hotel for that short time. The supervisor promised to call again in a few days, which he failed to do. No objection was made to this arrangement by the plaintiff and no further claim for compensation and no insistence for any further claim as to compensation was made against the defendant township during the lifetime of Kettleton. Kettleton died on January 11, 1916.

At the time that Kettleton went to the hotel of the plaintiff he was the owner of a parcel of land in the defendant township, which later was sold for $700 and was incumbered to the amount of $127. He also had about $40 on his person and $20 in the bank. He had no one dependent upon him for support. After the death of Mr. Kettleton, the plaintiff and her husband made arrangements for the funeral, which was held at the hotel. The total claim of the plaintiff and her husband for taking care of Kettleton and for expenditures made by them in his behalf amounted to $424, of which $15 was paid by the deceased, leaving the claim balance due the amount of $409. The plaintiff’s husband assigned his interest in the claim to the plaintiff and soon after making this assignment Mr. Briggs died. The plaintiff filed her claim before the commissioners on claims who were appointed by the probate court in the matter of the estate of Mr. Kettleton and after a full hearing before them, the claim was allowed in the sum of $248. No appeal was taken from the allowance of this amount.

This suit is brought to recover the balance of the amount claimed to be due the plaintiff beyond the sum allowed to her by the commissioners. The case was tried before a jury and at the conclusion of the opening statement of the plaintiff’s attorney, on a motion of the attorney for the defendant, the court directed a verdict for the reason that the deceased, Robert Kettleton, being possessed of the amount of property above indicated, was not a “poor person” within the meaning of the statutes. The court further stated that even if the case might proceed upon the theory of the plaintiff that the supervisor authorized the contract, or that the township should be held upon an implied contract, that, nevertheless, the plaintiff chose to bring this case before the commissioners appointed by the probate court, and thus elected her remedy.

While the first question involved is, indeed, a very interesting one, i. e., whether or not, under the circumstances in this case, it was not a question of fact for the jury to determine whether Mr. Kettleton was, at the time of his death, a'“poor person” within the meaning of the statutes, we are of the opinion that the circuit court was clearly right in saying that in this case the plaintiff has elected her remedy and has had her day in court and consequently had no standing in this proceeding. The claim was filed before the commissioners for $409. It was allowed in the sum of $248. As the learned trial judge said, it must be presumed that the commissioners allowed all that they thought ought to be allowed to the claimant' in that case — the plaintiff in this case. Instead of making a claim against the township at that time, she elected to proceed against the estate of the deceased and she received all that she was allowed by the tribunal that heard her claim and had full authority to adjudicate her rights in the matter. Another situation would have been presented if she had not received all that she was allowed by the commissioners and had brought suit for a claimed balance which could not be collected out of the estate.

We see no escape from the conclusion that the plaintiff has elected her remedy. She took the amount allowed to her by the commissioners on claims and was apparently satisfied therewith, because no appeal was taken from that allowance. See Kraft v. Kraft, 102 Mich. 439.

The judgment must be affirmed.

Bird, C. J., and Sharpe, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred.


author: Bird, J.

text:
    FOLGER v. ADDISON APARTMENT CO.
    Appeal and Error — Immaterial Issue — Harmless Error.
    In an action for the breach of an oral contract of employment as hotel manager, where the issue, i. e., the terms of the contract, and whether defendant had the right to terminate same on 30 days’ notice, was properly submitted to the jury, and decided by them in plaintiff’s favor, the submission also of the question as to whether a previous contract made with plaintiff by defendant’s manager was binding upon defendant, although immaterial, held, not prejudicial to defendant.
    Error to Wayne; Sharpe (Nelson), J., presiding.
    Submitted October 21, 1919.
    (Docket No. 102.)
    Decided January 5, 1920.
    Assumpsit by Alonzo T. Folger against the Addison Apartment Company for breach of a contract of employment. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Trowbridge & Lewis (E. R. Milburn, of counsel), for appellant.

      Percy W. Grose, for appellee.'
   Bird, J.

The board of defendant company, by resolution, appointed F. W. Bergman managing director of the Addison apartments, in the city of Detroit, with power to employ a resident or assistant manager thereof, and set aside $6,000 to cover his yearly compensation, and the compensation of the assistant. Bergman, in the latter part of December, 1915, employed plaintiff as his assistant at $300 a month, with board and room for himself and family. The service was to begin on January 1, 1916, and continue for one year, subject to certain contingencies, which will later appear. This contract with plaintiff is evidenced by several letters which passed between him and Bergman. The contract contains the following provision:

“We wish to confirm our conversation recently during which we offered you the management of the Addison hotel at three hundred dollars per month, and rooms and board for yourself and family, to commence January 1, 1916. After the expiration of six months, providing everything is satisfactory and business has developed under your management to warrant it, a substantial increase in salary will be arranged for; by mutual consent, this arrangement may be terminated on thirty days’ notice, otherwise it is a twelve months’ agreement of service and employment.”

Plaintiff worked under this agreement less, than three weeks when Bergman resigned as manager of the hotel, and also as director of the company. Plaintiff was then called before the board, and after some talk he was offered. Bergman’s place as manager and director. He was asked about compensation and it is his claim that he replied that he would be willing to serve in the new position on the same terms as he was then serving as assistant. This agreement resting entirely in parol, and being desirous of having it confirmed by some writing, defendant wrote plaintiff on January 17, 1916, as follows:

“Pursuant to our conversation as confirmed by our board of directors, I am writing to put the same in such form that there shall be no misunderstanding.
“The Addison Apartment Company employs you to act as its general manager, commencing with January 1st, at a_ salary of three hundred dollars per month, to be paid monthly or semi-monthly, as may be convenient. At the end of six months the work shall be reviewed by yourself and the board of directors, and if agreeable to both parties, a further arrangement can be made. In the event that either party shall wish to terminate the arrangement, in the meantime, he shall give thirty days’ notice.
“You are to have full charge of the management of the hotel, acting and co-operating with the officers and board of directors of the company.
“If this arrangement is not satisfactory to you, we will be pleased to have you advise.”

To this, plaintiff replied:

“In connection with your letter of the 17th in which our understanding to continue service under agreed terms of employment previously arranged is referred to, I note there is a difference in your letter confirming our arrangement.
“I refer to that feature which includes apartments and board for myself and family, which is always understood in taking charge of a house, and in order to make it clear I quote from your managing director’s letter of December 11, 1915, the conditions under which I accepted the management, and which conditions it is understood continue.
“ ‘We wish to confirm our conversation recently during which we offered you the management of the Addison hotel at three hundred dollars per month, and rooms and hoard for yourself and family, to commence January 1, 1916. After the expiration of six months, providing everything is satisfactory, and business has developed under your management to warrant it, a substantial increase in salary will he arranged for; by mutual consent this arrangement may be terminated on thirty days’ notice, otherwise it is a twelve months’ agreement of service and employment’ ”

In answer to this, defendant wrote:

“Answering your communication of January 18, 1916, I have been instructed by the board of directors to say that the letter of myself, dated January 17, 1916, may be, and is hereby modified to include rooms and board for yourself and family, in addition to the monthly compensation provided for.”

On February 7th plaintiff claims he sent the following letter to defendant but defendant denies that it was ever received:

“Your letter of February 7th, referring to mine of January 18th, which gives clearly the terms of my engagement with the Addison Apartment Company, does not give me your promised confirmation of my understanding. The board of directors in meeting January 11th agreed that I should continue under the same terms I had accepted from your retiring managing director, and it is this which should be confirmed, if you think a confirmation necessary.
“Your two letters, the one a modification of the other, does not do this, but would apparently undo the arrangement and place a new one on a monthly basis of employment. No reputable hotel man would care to take a management in which he could not see further than thirty days.
“I would very much like to confer with the board of directors next meeting night, February 14th, and know just what it is I am supposed to Understand in regard to my engagement here.”

Plaintiff went on acting as manager of the hotel and director of the company until August 31, 1916, when he received a letter from defendant putting an end to his employment on October 1st. Accordingly, on this date, he left the hotel with his family, and soon after commenced this suit to recover damages for not being permitted to finish his term. The matter was submitted to a jury and they returned a verdict in plaintiff’s favor of $1,400.

Plaintiff contends he was working under the terms of the agreement he made with Bergman, and that, under that agreement, his dismissal before the end of his term was wrongful.

Defendant argues that it had a right to terminate the agreement either under its own agreement with plaintiff or under the Bergsman contract, by giving thirty days’ notice, and that the trial court was in error in refusing to direct a verdict for defendant, and also in refusing to charge the jury that it had a right to terminate either' contract.

It is conceded that plaintiff made a contract with Bergman, that its terms were certain, and that he began his work as assistant manager thereunder. While so engaged, Bergman resigned his connection with defendant. The board then called plaintiff in and offered the place to him. They discussed the terms under which he should become the manager, and evidently at the time reached an agreement. From this point the parties are not in accord as to the terms of the agreement. Plaintiff says he offered to assume the new position on the same terms as. the old, and that under that agreement his dismissal was wrongful. Defendant, on the other hand, contends that it had a right to terminate the agreement under either contract by giving 30 days’ notice, and it points, to its letters addressed to plaintiff subsequent to the making of the agreement as evidence that its version is right. The fact must not be overlooked that the latter contract with plaintiff was. an oral one. An attempt was subsequently made by both parties to come to a written understanding of what the agreement was, but they did not succeed in this, as will be shown by their letters. It, therefore, became a question of fact which version was the correct one.

The real question in controversy was not whether plaintiff was working under the first or second contract, but what the terms of the second contract were. Plaintiff admitted he was working under the new arrangement which he had with the board, but he insists that the terms of that arrangement were the same as those he had with Bergman. If this were true, it would not matter whether the Bergman contract was binding on the defendant or not. Even if it be conceded that the Bergman contract was invalid, it had terms, and plaintiff says those terms were the terms of his agreement with the board. While we think the question submitted to the jury as to whether the Bergman contract was valid and binding on the corporation was immaterial, still the trial court put the crucial question up to the jury to determine which version was right. If any error was made by submitting this immaterial question, it was more prejudicial to plaintiff than to defendant. The submission of the case to the jury was as favorable to defendant as it had a right to demand. The jury having accepted plaintiff’s version, the parties are thereby, concluded.

We find no reversible error in the remaining assignments. The judgment is affirmed.

Moore, C. J., and Steere, Brooke, Fellows, and Stone, JJ., concurred. Sharpe, J., did not sit.

Justice Kuhn took no part in this decision.


author: Moore, C. J.

text:
    HORNER v. TOWNSEND.
    Bills and Notes — Checks—Failure op Consideration — Directed Verdict..
    In an action on. a check given as part of the purchase price of a farm, where plaintiff’s testimony failed to make out a case, there being a failure of consideration, a verdict for defendant should have been directed.
    Error to Eaton; Smith (Clement), J.
    Submitted October 17, 1919.
    (Docket No. 80.)
    Decided January 5, 1920.

      Assumpsit by Charles S. Horner against Lemuel C. Townsend for the amount of a check. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Reversed.

      Richard Price, for appellant.

      E. R. Boyles, for appellee.
   Moore, C. J.

November 21,1916, the plaintiff commenced this suit, filing a declaration on the common counts in assumpsit, and filed a bill of particulars as follows:

“To amount due and owing on a certain check, bearing date January 1, 1911, signed by the defendant and made payable to the order of the plaintiff for the sum of two hundred dollars, with interest thereon from date thereof; also protest fees on said check, amounting to the sum of one dollar and fifty-four cents, and that said check will be given in evidence upon the trial of said cause.”

Defendant pleaded the general issue and gave notice that he would show under such plea:

“That the check upon which plaintiff's suit is based is without consideration and void; that it was given as part of the purchase price for real estate which said plaintiff contracted to sell to said defendant; that said plaintiff knew that defendant was buying the property for the purpose of sale, and agreed to execute a deed so that transfer could be made to the prospective purchaser of it, but that said plaintiff failed to perform his agreement and defendant lost the sale of the property, and said plaintiff subsequently sold the property to another. Whereby, defendant lost the profits which he would have made upon the purchase and sale of said property and was greatly damaged and claims judgment in the sum of $1,000 in his favor.”

On the trial of the case the check was introduced in evidence. After the testimony was all in the trial court directed a verdict for the full amount of the check in favor of the plaintiff. The case is brought here by writ of error.

The record shows defendant had negotiations with plaintiff for the purchase of a farm. After they had agreed upon the terms defendant was referred by the plaintiff to Mr. Sendee, an attorney, to draw the papers. A land contract was drawn October 3, 1910, which is in the record in which it is said:

“2. In consideration of the foregoing covenants and agreements on the part of the party of the first part to be done and performed as hereinbefore provided, the party of the second part agrees to purchase and does hereby purchase of said first party the lands and premises above described, and agrees to pay therefor to the said party of the first part, his legal representatives and assigns, the sum of five thousand dollars, in manner following, to wit: Two hundred dollars cash upon the execution and delivery of this duplicate agreement; twenty-three hundred dollars or more on or before the 1st day of January, A. D. 1911, at which time and upon the payment of the said sum of twenty-three hundred dollars by second party, first party agrees to execute and deliver to said second party or to such person or persons as second party may designate, a good and sufficient warranty deed of conveyance of said lands and premises above described, and upon the execution and delivery of said deed, second party agrees to execute and deliver to said first party, or cause to be executed and delivered to said first party, a mortgage back upon said lands and premises for the balance of the purchase money remaining unpaid on said 1st day of January, A. D. 1911.” * * *

Instead of paying $200 in cash when the contract' was signed it is inferable from the record that the $200-check which is in suit was given.

The defendant sought to show in substance when the contract was drawn it was understood plaintiff was going south soon, and that the attorney stated that the plaintiff would make a deed and would leave it with the attorney for delivery to the defendant on his performing his part and that later he took Mr. Smith with the money which was required to be paid, and asked for the deed, and that the attorney informed him the deed had not been left with him. This testimony was excluded because Mr. Hendee at the time of the trial was dead, and, unfortunately for the defendant, Mr. Smith was also dead. The defendant gave testimony to the effect that for the purpose of making the payments called for in the contract, he went to the bank in plaintiff’s town and to the office of the attorney who drew the contract, and to the place of business of the plaintiff, and was unable to find him, and was told that the plaintiff was in the south. He testified that he was prepared to make the payments and that he was unable to secure the deed. Much of this testimony was stricken out as being within the knowledge of Mr. Hendee. Complaint is made of this ruling of the court.

For the present we may proceed directly to the testimony of the plaintiff. We quote from it as follows :

“I said I had some negotiations with Mr. Townsend relative to the purchase of a farm which resulted in a contract. That contract is here. * * *
“I don’t remember seeing Mr. Townsend the day that contract,. Exhibit 1, was signed. The business was done through Mr. Hendee entirely. Mr. Townsend and I probably did not meet each other on that day.
“Q. What did you give to Mr. Townsend for this check?
“A. Gave him a contract.
“Q. Gave him a contract. Was that worth $200 alone?
“A. I don’t know, I am sure.
“Q. That contract is dated October 3, 1910, isn’t it?
“A. I don’t remember the date.
“Q. That is the date of it. Your check is dated January 1,1911. How do you explain that?
“A. I have not any explanation for it.
“Q. You can’t explain it. What do you mean by saying you gave Mr. Townsend a contract as a consideration for the $200-check?
“A. Well, it bought the farm.
“Q. You were to give him a farm?
“A. Yes, sir.
“Q. That was the consideration for your two hundred dollar-check?
“A. Yes, sir. I never gave him the farm. I have since disposed of the farm. It has been sold.
“Q. And you have disposed of it for more than what you sold it to Mr. Townsend for?
“A. I think so.
“Q. You went away somewhere after the contract was signed in October, 1910; where did you go, west or south, or where did you go?
“A. I don’t remember; I think it was south.
“Q. And you agreed before you went away that you would leave the deed for that farm with Mr. Hendee so that if Mr. Townsend had an opportunity to dispose of it the deed would be there for that purpose?
“A. I don’t remember agreeing to leave it with Mr. Hendee, no.
“Q. Whom did you agree to leave it with?
“A. It was to be left with the Michigan State Bank. I think it was. left there. I am quite sure about it. I think Mr. Hendee knew about it.
“Q. Mr. Hendee was looking after your business?
“A. Yes, sir. I learned when I got home that Mr. Townsend didn’t take the farm.
“Q. The reason he didn’t take it was because there was no deed made, so that he could give no deed of the farm, and therefore could not make the transaction go through?
"A. I think the deed was given.
“Q. Why didn’t Mr. Hendee know about it?
“A. I don’t know but what he did know about it.
“Q. Mr. Hendee was looking after that business for you?
“A. Partly, yes, sir.
“Q. If Mr. Hendee didn’t know about that deed and couldn’t give it to Mr: Townsend you might as well take it as to leave it somewhere else, mightn’t you, isn’t that true?
“A. Why, yes. I never offered the deed to Mr. Townsend.
“Q. You didn’t leave it with Mr. Hendee who was looking after the business for you?
“A. I wouldn’t say whether it was left with Mr. Hendee or at the bank.”

He later modified his statement about the amount he received on the second sale of the farm.

The recollection of Mr. Homer about the transaction is very hazy. The inference from his testimony, however, is irresistible that instead of a cash payment of $200 being made, the cheek was given instead; that after the contract was made he went away from home without making provision for the giving and delivery of a deed, and bringing home to the knowledge of the defendant where the deed might be obtained. He never tendered a deed and it is not clearly established from his testimony that one was ever drawn.

We think the testimony of the plaintiff shows a failure of consideration for the check. The long delay in bringing suit may or may not be significant. We think upon plaintiff’s own showing he failed to make a case, and that a verdict should have been directed in favor of the defendant.

The judgment is reversed, with costs to the defendant, and a new trial ordered.

Steere, Brooke, Fellows, Stone, Bird, and Sharpe, JJ., concurred.

Justice Kuhn took no part in this decision.


author: Fellows, J.

text:
    TRUITT v. CITY OF BATTLE CREEK.
    1. Deeds — Effect of Life Estate Immaterial — Rehearing.
    The determination of the question of the effect of the giving of a certain life estate, being unnecessary* to a decision of the case, what was said in the former opinion thereon is withdrawn on rehearing.
    2. Same — Gifts—Need Not Be Accepted.
    Since no one can be compelled to accept, by gift, title to land, where one does not accept title attempted to be given- him, but renounces it, he may buy the premises as any other stranger to the title may do.
    3. Same — Presumption of Acceptance of Gift Rebuttable.
    The presumption that plaintiff accepted a gift deed of land may be rebutted by proof.
    4. Same — Gift—Acceptance—Evidence—Sufficiency.
    Evidence held, conclusive that plaintiff did not accept a gift deed of land, but renounced it.
    5. Costs — Allowance by Trial Judge — Guardian Ad Lttem.
    No costs will be allowed against appellant on affirmance, he being a guardian ad litem for unknown heirs appointed by the court below, and his compensation and expenses being determined by the trial judge.
    Appeal from Calhoun; North (Walter H.), J.
    Submitted February 4, 1919.
    (Docket No. 74.)
    Decided April 3, 1919.
    Resubmitted October 7, 1919.
    Former opinion modified January 5, 1920.
    Bill by Melbourne E. Truitt and another against the city of Battle Creek and Samuel A. Howes, guardian ad litem, to remove a cloud upon title to land. From a decree for plaintiffs, defendant Howes appeals.
    Affirmed.

      Bernard J. Onen, for plaintiffs.

      Charles F. McKenzie, for appellant.
   Fellows, J.

The original opinion in this ease will be found at page 180 of volume 205 of the Reports of this court. A reference to that opinion will disclose the facts sufficiently except as it may be proper in the course of this opinion to refer to other facts necessary to a full understanding of the case as it will be disposed of on this rehearing. We granted a rehearing on the application of plaintiffs based on the claim that we had reached a wrong conclusion as to the effect to be given to the life estate to Oliver Beauregard and wife, and the further claim that we had misapprehended the concession of plaintiffs’ counsel and. misconceived his claim as to the effect to be given the first deed from plaintiff’s mother to him under the facts disclosed by this record.

The case was originally submitted on briefs, but upon rehearing it was fully argued and further exhaustive briefs have been filed. Numerous authorities have been cited to us, all of which have been examined with care. In view of the claim of misapprehension of plaintiff’s contention and those of his counsel, we have again fully considered the record and the original briefs and will now proceed to state our conclusions.

The conclusion we have reached makes it unnecessary to determine the effect of the life estate given to Oliver Beauregard and wife Thersil. The determination of that question being unnecessary, what was said in the original opinion on that subject may be considered withdrawn, and the case will be disposed of on another theory.

It is well understood that a life tenant may not cut off the remainder man and secure the fee by acquiring incumbrances he is legally obligated to pay; nor may he, to the exclusion of the remainder man who is willing to contribute, acquire incumbrances which it is necessary to acquire in order to prevent a forfeiture of his estáte. Counsel for plaintiffs conceded, and concedes, the correctness of these rules; but he insists that they do not apply to the instant case and that we misconceived the extent to which his concession went. It was alleged in the bill of complaint that the original deed, to plaintiff from his mother was a “pretended” one, and it was also stated in the original brief that plaintiff claimed title under his deed from Mr. Onen and the later deed from his mother. It was also claimed'that the original deed from her was void, a mere nullity. But the effect of this claim was not sufficiently followed up or sufficiently explained to make its significance apparent.

Manifestly no one can be compelled against his will, save only in the case of descent, to accept title to real estate, be that title good or bad; and where one does not accept title attempted to be given him but renounces it, he is not prohibited from buying the premises or incumbrances upon them, or from dealing with them as any other stranger to the title may do. Mr. Onen not only purchased the premises at the foreclosure sale but he also purchased the life estate of Mr. Beauregard who was then alive and who lived several years thereafter, paying him $800 therefor. The plaintiff did not purchase from Mr. Onen until something like a year after Mr. Onen’s purchase. Mr. Onen was not acting as attorney or agent for plaintiffs; he sold for what he had in the premises and there is nothing to indicate that the consideration was not adequate. The purchase price was something over $3,100; he had agreed to let Mr. Truitt, who was his neighbor and friend, have the premises at what he had in them. Therefore, when plaintiff entered possession he did so, not by virtue of the original deed from his mother, but by virtue of his grandfather’s life estate transferred to Mr. Onen and by Mr. Onen to him, and by virtue of the title acquired on foreclosure, likewise transferred by Mr. Onen to him. He has occupied the premises for over nine years, under this claim of title and has, and does, insist that the original deed from his mother was, and is, a nullity. After his grandfather’s death he procured a quitclaim deed from his mother. We do not perceive that she had title to convey, but it is quite persuasive that he had not accepted the first deed, and is corroborative of the claim which he now makes. Upon this question, it is unimportant whether plaintiff’s claim that the first deed is a nullity is, or is not, well founded; the important fact to be considered is that he claimed it was a nullity, renounced it and made no claim under it. But it may be said that he executed a mortgage to one Harbeck. This mortgage was to Harbeck as trustee for Louise L. Truitt, and others, and was apparently executed for her benefit rather than for plaintiff’s. The execution of this mortgage is the only evidence on this record tending to show acceptance of the title conveyed under the first deed. Under the circumstances its probative force is materially minimized. There is a presumption that plaintiff did accept this deed, but it is a presumption that may be rebutted by proof. We feel justified upon this record in concluding that plaintiff did not accept the imperfect title his mother sought to convey to him by the first deed, and that he has claimed, and does claim, that when he purchased from Mr. Onen he was a stranger to the record and could deal with the premises as could any other stranger to the record. The law upon this branch of the case is fully discussed in the exhaustive opinion of Mr. Justice Hooker in Defreese v. Lake, 109 Mich. 415 (32 L. R. A. 744, 63 Am. St. Rep. 584), and we need not repeat or attempt to duplicate such discussion here.

From what has been said, it follows that the decree of the court below will be affirmed. The appellant is the guardian ad litem, appointed by the court. No costs will be allowed against him. His compensation and expenses are matters to be determined by the trial judge.

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

Justice Kuhn took no part in this decision.


author: Steere, J.

text:
    HARDY v. PERE MARQUETTE RAILWAY CO.
    Railroads — Negligence—Contributory Negligence — Crossing Accident,
    In an action against a railroad company for damages to plaintiff’s auto truck, received, in collision with defendant's engine upon a highway crossing, where the evidence shows that plaintiff with his chauffeur drove at the regular rate of speed upon the crossing, which was known hy them to he a dangerous one, without stopping to look and listen, he was guilty of contributory negligence, barring recovery.
    Error to Bay; Houghton. (Samuel G.), J.
    Submitted October 23, 1919.
    (Docket No. 49.)
    Decided January 5, 1920.
    Case by Herman A. Hardy against the Pere Marquette Railway Company for damages to an automobile truck by collision. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.
    The question of duty of driver of automobile as to stopping, looking and listening before attempting to cross railroad track, see note in 46 L. R. A. (N. S.) 702.

      Shields, Merriam & Sleeper and William R. Seaton (James E. Duffy and Russell H. Neilson, of counsel), for appellant.

      Collins, Thompson, Otto & McGinnis (Charles W. Hitchcock, of counsel), for appellee.
   Steere, J.

Plaintiff recovered a verdict and judgment in the circuit court of Bay county in the sum of $1,000, for damages done his automobile truck on August 16,1917, in a collision between it and a freight train of defendant’s at a place called Gilman’s crossing, located between the villages of Farwell and Clare in Grant township, Clare county.

Plaintiff is a piano and music dealer of Bay City and was accustomed to make weekly business trips by automobile through different sections of neighboring counties. On the occasion in question he was on his way from the village of Farwell to the village of Clare, a distance of about 6 miles, going southeasterly along the main traveled highway between the two places which crossed defendant’s railroad track about lYz miles southeast of Farwell. He was accompanied by a piano tuner named Hobby who was driving the auto truck. Plaintiff was familiar with the road, having known it for 15 years and traveled it many times. Hobby had driven over it in the opposite direction the previous day. The general direction of the highway between the two places is northwesterly and southeasterly, approaching the railroad track from the northwest at an angle of about 45 degrees. It is called a sandy road for most of the distance from Farwell to the railroad crossing and that section of the country is described by plaintiff as quite hilly.

Some 30 or 40 rods to the northwest of the crossing is a small hill over which the highway passes. From this the railroad is visible both at the crossing and for a considerable distance in each direction. The highway slopes down the hill for some 20 rods or more to a small bridge over the Tobacco river and from the bridge slopes upward for some 8 to 10 rods to the railroad crossing which is estimated by plaintiff as S feet and by Hobby as 6 or 7 feet higher than the bridge. They both testified that as they approached the crossing they listened and looked in both directions for a train, but discovered none, and as they neared the crossing Hobby fed more gasoline into the car and put his foot on the accelerator to carry them up the grade and over the crossing. The automobile is described by plaintiff as a Dodge touring car made into a truck for the piano business, that it was a “fairly high power car” with three speeds — high, medium and low — “usually driven in the high gear,” and of the others said, “second gear is when you get into a pretty tough place, to get through you will throw into second, it gives you more power in second than in high, and if you have a still harder road to travel you put it into low; when you get your engine almost exhausted on high we switch it into second, that gives us more power to shoot through.” They had no piano or other load in the truck except themselves, plaintiff’s grip, some piano player rolls and their appliances for moving pianos, which “stuff” plaintiff says “was just loose, in the back part” of the*van, and he had no difficulty that day in getting up the grade from the bridge to the crossing on high gear. He described their approach to it as follows:

“From the top of the hill we didn’t stop any place until we got hit. We didn’t change the gears at all, did not go from high into intermediate or low. This sand did impede our speed on high geár, but we could still keep' going on high gear through the sand. We didn’t, have to shift into intermediate on account of the sand as you approached the railroad track. When we got to the railroad track we were going 8 or 10 miles an hour. The bell did not ring, being so close to us, or we would have heard it, I didn’t hear the bell and didn’t hear any whistle. I would not say that the bell did not ring- or the whistle did not blow. I was listening for the bell and didn’t hear it. I was listening for the whistle and didn’t hear it, that is the reason I say the whistle did not blow or the bell did not ring.”

A witness named Mrs. Clare McGinnis did say the whistle was blown for the crossing and she heard it. She testified to seeing them approaching the crossing in their automobile apparently paying no attention and that she screamed to warn them. Her home was upon this road on the right hand side some distance north of the crossing. At that time she had followed and was attempting to catch a horse which had gotten out of their pasture, intending to put him back in again, and was but 8. or 10 rods from the crossing. She had just caught the horse when she heard the train approaching and the whistle blew for the crossing, which caused the horse to jump and jerk away from her, hurting her arm. She then turned around to watch the train and saw the automobile passing down the road from the north towards the crossing. She testified the “train tooted before these men got to the bridge” and while she was yet closer to .the crossing than they were she saw the man on the right hand bend down and pass a bottle up to the man who was driving, who raised it to his mouth, and when they got near the track she screamed and then turned towards home not wishing to see the accident. Of what she observed she testified:

“It frightened me; these men were not paying any attention to the train, I thought they didn’t know there was a railroad track there, that is the reason I screamed, I thought if they heard me scream they would look at the track.”

Hardy and Hobby both testified that they did not see or hear the woman, that they had nothing to drink with them; that there was no occurrence with a bottle such as she describes, that they had nothing to drink with them and neither of them drank. A peculiar incident in that connection which is not disputed is the fact that after the collision 3 bottles of beer were found scattered around in that vicinity which certain of the parties secured and had a drink from. Not denying that the bottles were found there at that time, both the parties in the automobile and the train crew positively deny that they had any beer with them on this occasion. .

Just as the automobile went upon the crossing, and before it could clear the track going at the speed described, a freight train of 22 cars coming from the east struck and demolished the truck. Plaintiff and Hobby sprang clear of the collision just in time to save themselves, and two brakemen who were riding on the pilot beam in front of the engine also leaped in time, though one of them was injured by striking the cattle-guard fence. The accident occurred on a bright, clear day between 3 and 3:30 o’clock in the afternoon. The only grounds of negligence charged by plaintiff against defendant were failure to ring the bell and sound the whistle on approaching the crossing.

At the conclusion of plaintiff’s testimony defendant’s counsel moved the court for a directed verdict, urging amongst other grounds failure to show any negligence of defendant and particularly that the plaintiff’s testimony showed the accident was attributable to his own negligence, and that of his driver which was imputable to him. This contention was presented at the close of all the testimony by motion and requests to charge, followed by motion for judgment notwithstanding the verdict, and motion for a new trial in which this claim was urged with various others, including the claim that the verdict was against the great weight of evidence.

The only testimony that the statutory crossing signals of the coming train were not given is that of plaintiff and Hobby, who approached the crossing in this auto truck with a quantity of “stuff” thrown loose in the van behind them, running down the hill, ,across the bridge and up the slope on high speed to the crossing at the rate of 8 or 10 miles an hour, “not to exceed ten miles” as Hobby stated it, without stopping or slowing down to listen. They said the truck made no noise to interfere with their hearing other sounds, and gave negative testimony that they heard no whistle, bell or approaching train, which they fortify by the assertion they would have heard the whistle and bell had they been sounded, although they did not hear the noise of the approaching freight train of 22 cars running over 20 miles an hour until it was upon them. Against their negative testimony was the positive affirmative testimony of several witnesses to the fact that the whistle and bell were sounded. Plaintiff and Hobby both admitted they knew they were coming to a dangerous railroad crossing. Upon the west of the highway, as they describe the situation, they had an unobstructed view of the railroad track for a safe distance, the only danger being from the east by reason of a bank, shrubbery and trees which entirely obstructed their view of the track in that direction, so that it would have availed nothin to stop and look for a train from the east at any safe distance from the track. Conceding the sincerity of their testimony, it is based upo-n what observations they made as they rode along in their covered truck at 8 or 10 miles an hour and they are the only witnesses who so testify. Apparently disinterested witnesses, who had lived long in that vicinity and traveled this road often, flatly testify to the contrary, with description of various points within four rods north of the track where an unobstructed, view of an approaching train from the east can be had for various distances up to over 800 feet. These witnesses corroborated in substance the testimony of defendant’s employees who were familiar with the locality, and the tests and measurements they made.

A careful study of the record is persuasive that the great weight of convincing evidence is to the contrary of plaintiff’s claim that the crossing signals were not given and that in approaching defendant’s track from the north after descending the small hill there was a continuous obstruction of the view to the east until the crossing was reached, but aside from other questions raised in this record the undisputed evidence of plaintiff’s contributory negligence is conclusive against recovery.

It is conceded that plaintiff, with Hobby as his chauffeur, drove his auto truck to and upon the crossing at the regular rate of speed they were maintaining on their journey, without halting at what they say they knew to be a dangerous railroad crossing or complying with that saving duty under such conditions to stop, and having stopped to look and listen. His excuse is that they did listen as they drove along and the obstruction to their view to the east relieved them from the duty to stop. Whether it did or not was left to the jury as a question of fact.

In support of the contention that plaintiff’s evidence i'aised an issue for the jury upon that proposition, it is pointed out that it shows the road as they approached the crossing was sandy and rutted, with a rise, or “bump,” where the wheel track in the highway went upon the planks of the crossing, and the following testimony of plaintiff is emphasized:

“Q. In approaching this railroad you may state whether or not if the car had been stopped just before you got to the track could you have seen from the automobile an approaching train?
“A. We could not without we had driven right up to the track.
“Q. From the condition of the road and the rise there, was there to get over the tracks with your automobile, if your automobile had been stopped at that point, what would you have to do to get over the track?
“A. Well, I think we would have to back down and take a run at it again.”

This excerpt and some other assertions by plaintiff of similar import are largely negatived by his own testimony and that of Hobby, who was driving, and makes no claim that they could not have stopped and started again within the right of way, which he testified extended north from the track “two or two and a half rods, something around 41 or 42 feet.” The railroad right of way was shown without question to be 100 feet wide at this crossing and free from trees and brush. During his examination plaintiff also testified upon this subject as follows:

“Q. You know there is not any evergreen trees near the railroad right of way, don’t you?
“A. Right up to the right of way.
“Q. The evergreen trees, are in front of the house to the north of the track about 100 feet away, isn’t it?
“A. That is inside their yard. * * * The right of way there is about four rods wide. It is fenced on each side, and there are no trees in the right of way. There is none of this brush that I speak of. * * *
“Q. How far down the track could you see an engine which is twice the height of your body, ten feet from the track?
“A. You couldn’t see it until you got up to the track. You couldn’t see it ten feet from the track. * * *
“Q. Your car would have been going slower if you were running on that (intermediate) would it?
“A. No, I don’t know as it would — you could run much slower on intermediate, that is true.
“Q. You could stop quicker also than running on high?
“A. Yes, sir. * * *
“Q. Well, that is a pretty well cleared up territory over there, isn’t it?
“A. Well, right along in that particular place it is not, no, because it is right there where there is a house.
“Q. Well, you understand what I mean by cleared land, it is not wooded land, is it?
“A. No, it is not wooded land. * * *
“Q. There is no shrubbery or small timber on the railroad right of way?
“A. Well, no. * * *
“Q. If you had stopped five, ten or fifteen feet with your machine that day, stating as you did that the train was within 20 feet of you when you got to the crossing, that accident could have been avoided?
“A. Yes, of course, if we had.”

Hobby testified in part as follows:

“From the bridge going towards the railroad track we maintained a speed not to exceed ten miles an hour, I could run that truck on high at ten miles an hour going through the sand; if the sand became such as to slow our machine down I would have made the next move which would be to put the machine into intermediate and putting it into intermediate makes it go slower, but more powerful. * * * I knew the railroad track was just where it was, and I got ready to go over the railroad track from the bridge, that is about eight or ten rods, something like that, 120 to 130 or 140 feet back; from that point I knew the railroad crossing was there, and I took whatever steps I did take either by accelerating my car or in the handling of it to bring myself over that railroad track. * * * * The north fence, the trees and house and all of that were still north of the railroad fence; the Stoyke house on your left as you approach the railroad track southerly on the highway was north of the railroad fence about 30 or 35 feet, something like that as near as I could guess, * * *
“Q. Well, you could (see) for 30 feet at least north of the north railroad fence, couldn’t you, because that is where they are, you say?
“A. Well, sir, I couldn’t tell you whether you could see 30 or 20 feet. * * * I didn’t stop the car 5,10 or 15 feet back of the crossing, because I heard no warning of any trouble. I knew it was a dangerous crossing. *' * * I didn’t stop my car then to find out whether anything was coming, because there was no warning or noise of any kind to signal I should stop. That is the only reason I can give. * * * I had complete command of the automobile when I struck into this rut; it did not throw me on the track; .my engine was going when I was on the track; I was making an effort to get over then; the same effort I was making getting up the hill, nothing extra. I didn’t do anything after I saw the train but to make a getaway. * * * I presume I was 10 foot from the railroad track when I first saw the engine; my front wheels were right there close. In figuring ten feet I figure the distance from the front end of the car.”

His reason for not stopping near the track within the right of way was not any fear of getting stalled, but because he heard no noise or warning to signal he should stop as he rode along. He had complete command of his automobile and was running on high gear with intermediate and low in reserve, to. give “more power to shoot through” with if his engine became “almost exhausted on high,” of which there was no indication. Under the facts shown by plaintiff’s evidence the following language in the early case of Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274, where the subject is exhaustively discussed by Chief Justice Christiancy, is well in point here:

“That such failure, under such circumstances, to make use of any means to ascertain whether a train is approaching, before venturing upon the track, must of itself be pronounced negligence, as matter of law, is a proposition as sound in principle as it is well supported by authority.”

The rule of reasonable precaution declared in that case has since been many times reiterated and applied to pedestrians, animal-drawn and motor vehicles. We need not repeat what has so recently been said as to the duty oí drivers of motor vehicles when approaching railroad crossings to recognize the danger — stop, look and listen — and make use of any available means to assure themselves no train is approaching before attempting to cross. Plaintiff could have done this, but did not take the trouble to do so. In Shufelt v. Railroad Co., 96 Mich. 327, where the question of obstructed view was involved, this court said:

“These trains must run where the view is obstructed by cuts, by embankments, by trees, and other things. He who does not choose to stop and listen, where he cannot see, must suffer the consequences of his own negligence.”

We think this case is governed by the rule of a driver’s duty as announced in Sanford v. Railway Co., 190 Mich. 390; Miller v. Railway, 200 Mich. 388; Gillett v. Traction Co., 205 Mich. 410; Pershing v. Railway Co., 206 Mich. 304, and cases there cited. In the Pershing Case it is said of an obstructed view:

“It is conceded that Pershing did not stop until he reached the track and it is obvious that he did not look as soon as he could have seen, because if he had, and applied his brake, he could have stopped in a place of safety. * * * If he could have avoided injury by stopping, by listening, or by glancing to the east as soon as the obstructions would permit, and he failed to observe these duties, he did not use the care which an ordinarily prudent man does on such occasions.”

The judgment is reversed without a new trial, with costs to defendant.

Moore, C. J., and Brooke, Fellows, Stone, and Sharpe, JJ., concurred with Steere, J. Bird, J., concurred in the result.

Justice Kuhn took no part in this decision.


author: Fellows, J. Moore, C. J.

text:
    PEOPLE v. RAJONA.
    Criminal Law — Murder—Evidence or Another Crime.
    In a prosecution for murder, the admission of testimony by five witnesses that soon after the killing defendant was identified by a colored mp.n as the man who held him up and robbed him a short time before, field, reversible error which was not cured by the charge of the court that it was admitted to show the context. Moore, C. J., and Steere, J., dissenting.
    For authorities passing on the question of evidence of other crimes in criminal case, see note in 62 L. R. A. 193.
    Error to recorder’s court of Detroit; Connolly (William F.), J.
    Submitted October 16, 1919.
    (Docket No. 108.)
    Decided January 6, 1920.
    Albert Rajona was convicted of murder in the second degree, and sentenced to imprisonment for life in the State prison at Jackson.
    Reversed.

      Doyle & Cameron, for appellant.

      Alex. J. Groesbeek, Attorney General, Matthew H. Bishop, Prosecuting Attorney, and Van H. Ring, Assistant Prosecuting Attorney, for the people.
   Fellows, J.

Defendant was convicted in the trial court of murder in the second degree. The murder of one Clark occurred about 9 o’clock in the evening of February 7, 1917, on Rivard street near Catherine street in the city of Detroit. It is the claim of the prosecution that the defendant shot Clark, ran a few feet to the corner, thence west along Catherine street to Hastings street where he was intercepted by an officer and taken into custody. Defendant was a witness in his own behalf. He denied his guilt. It was his claim that he had been in a store of one Verney and left there about 9 o’clock intending to see one Cianpano and go to bed; that the shots frightened him; he ran down Catherine street and was taken into custody. To sustain its claim the prosecution called two eyewitnesses to the shooting and the officers and others who participated in or who saw the pursuit and capture of defendant; these witnesses testified to defendant making a movement in his flight as though throwing something from him, to the finding of the revolver at that place in the undisturbed snow, and that it had the odor of fresh smoke upon it. Defendant in addition to his denial of guilt and his testimony as above stated produced Verney as a witness; his testimony corroborated that of defendant as to his being in the store and the time he left it. Character witnesses were also produced by the defendant.

In addition to the proof tending to establish the guilt of the defendant of the crime charged, it was permitted the prosecution in its case in chief to prove by five witnesses that when.defendant was brought back to the corner a colored man named Hunter stated in substance that defendant had held him up about an hour before and took $3 from him. The witnesses vary considerably as to what was said. A police officer testified that Hunter said, “He had a blue steel gun, an automatic”; no other witness testifies to this as a part of the conversation. One witness testified that defendant made no reply to Hunter, another that defendant said he didn’t know him, another said he replied to Hunter by saying, “Why, I work,” and one witness was permitted to testify, “Frank Hunter told me that this man had held him up and took $3 from him,” but did not believe he mentioned a revolver. “He just said he held him up.” All this testimony was seasonably objected to and motions were made to strike it out. Hunter was not called as a witness, so that we have not the question before us which was presented in People v. Winney, 196 Mich. 347. There the trial court had permitted proof that defendant had obtained a revolver and ammunition the night before the murder by means of burglary, but the trial court had carefully guarded defendant’s rights and expressly instructed the jury that this testimony could be only considered upon the question of whether he had the means to commit the crime. But here Hunter was not sworn as a witness so as to be subject to cross-examination, his unsworn statement that defendant had held him up was received, and four of the witnesses make no mention of the “blue steel gun” forming any part of the conversation. The only eifeet of this testimony was to prove by such unsworn statements that defendant had committed another crime than the one for which he was on trial, and the trial judge admitted it upon the theory and statement that this court had sanctioned the admission of testimony of a series of crimes of the same character, while in his charge he stated that he admitted it to show the context, but nowhere in his charge did he tell the jury that the testimony could not be considered by them for the purpose of determining defendant’s guilt or that proof of another crime could not be considered in establishing guilt of the crime charged. In the recent case of People v. Rice, 206 Mich. 644, a case where the question of intent was involved, we fully considered the question of receiving evidence of other similar transactions, part of the same system to defraud, and, while recognizing the general rule, we held that where the question of intent to defraud was involved, the case fell within the exception to the rule. While there are other exceptions to the rule, the crime of murder by shooting is not one of them. From the earliest day down to the last speaking of this court on the subject in People v. Wheaton, 207 Mich. 173, the general rule has been recognized that upon the trial of a criminal case the prosecution will not be permitted to give evidence tending to establish the guilt of another distinct and independent crime.

In the instant case the defendant was charged in the information with the crime of murder; upon the trial he was called upon not only to meet this charge but also the further charge that he held up. the colored man, Hunter. Upon this latter charge he was not confronted with his accuser, because Hunter could not be found; but unsworn statements of Hunter, made, not in open court where he might be subject to cross-examination and his testimony sifted, but upon the street corner, were received against defendant. This testimony was of a highly prejudicial character and the effect of its admission was in no way cured or attempted to be cured in the charge of the learned trial judge. The error went to the substantial rights of the defendant; it deprived him of a fair trial.

For this error the conviction must be reversed and the defendant remanded to the custody of the sheriff of Wayne county for a new trial.

Brooke, Stone, Bird, and Sharpe, JJ., concurred with Fellows, J.

Moore, C. J.

(dissenting). I do not agree with the conclusion reached by Justice Fellows. Even though it be conceded that the testimony to which he refers should have been excluded it does not follow that the case must be reversed for that reason. At the common law there is no right of appeal as of course from a conviction for crime. This right is the creature of the statute. In granting it the legislature may impose such terms as in its wisdom are calculated to promote the interests of justice. So many persons who were undoubtedly guilty of the crime with which they were charged have escaped punishment for errors that did not go to the merits of the question of their guilt, as to become the subject of unfavorable criticism of the courts. A remedy for that situation was sought and after a great deal of discussion Act No. 89 of the Public Acts of 1915 (3 Comp. Laws 1915, § 14565) was adopted. It reads:

“No judgment or verdict shall be set aside or reversed, or a new trial be granted by any court of this State in any case, civil or criminal, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless, in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.”

This act was construed by this court in affirming the case of People v. Smolkiewicz, 206 Mich. 1.

In the instant case there was testimony by eyewitnesses of the shooting by the respondent, under such circumstances as to constitute the crime of murder. The case is directly within the language of the statute. An examination of the entire record does not make it “affirmatively appear that the error complained of has resulted in a miscarriage of justice” but on the contrary a reading of this record establishes the guilt of the accused beyond any reasonable doubt.

The conviction and judgment should be affirmed.

Steere, J., concurred with Moore, C. J.

Justice Kuhn took no part in this decision.