text:
    MORRISON v. CARPENTER.
    1. Negligence — Licensees—Railroads—Public Wav.
    Where approaches to a walk over the bridge of a railroad corporation, were used continually and openly by the public for years, with the permission and acquiescence of the company, persons using the approach were licensees and entitled to be protected at night against the danger arising from excavating in the passage by city contractors who constructed a, sewer under the railroad right of way.

    .2. Same — Easements and Servitudes — Dangerous Openings or Excavations.
    Ordinarily a licensee, passing over property, takes the risk of such dangers as have existed during the term of use, but not additional risks afterwards created by the licensor; if the latter interferes with the path by making it more dangerous he should give notice to the licensee or guard the dangerous place so made.
    3. Same — Easements—License.
    After granting a license to use his premises, the owner cannot, lawfully, by his affirmative action, change the premises so as to make them more dangerous, without notifying the licensee of that fact, or warning him of the added danger.
    4. Same.
    Whether plaintiff was guilty of contributory negligence in falling into the excavation in the dark, seeing one red light which. did not sufficiently light the opening, was a question for the jury,
    5. Same — Weight of Evidence.
    Upon the testimony of two witnesses that there was no light at the west end of an excavation into which plaintiff fell, contradicted by three witnesses for defendant, the court did not err in denying defendant’s motion for a new trial.
    6. Trial — Argument—Conduct of Counsel Improper.
    Where plaintiff’s attorney in the course of his argument to the jury referred to defendant’s contract with the city, stating that the defendants in estimating the cost of the sewer and the price to be charged took accidents into consideration and added a sufficient sum to cover such contingencies, the argument was misleading and erroneous, requiring the reversal of a judgment in favor of the plaintiff. It was also improper to refer to the price to be received for constructing the sewer, the price being immaterial to the issue.
    7. Same — Misconduct of Attorney — Inflammatory Statements.
    The following argument is also held to- be improper: “Give him what you think he is entitled to. * * * Is $10,000 too much? Would you fall in that sewer for $10,000 and take your chances? Would you go through life that way? Would you have your son go through life that way? Uneducated boy! What can he do?” In the absence of any corrective instructions to the jury by the court, the conduct of plaintiff’s attorney was erroneous and prejudicial.
    Error to Kent; Brown, J.
    Submitted January 20, 1914.
    (Docket No. 151.)
    Decided March 26, 1914.

      Case by Edward Morrison, by his next friend, against. Charles J. Carpenter and Louis W. Anderson for personal injuries. Judgment for plaintiff, and defendants bring error.
    Reversed.

      Charles E. Ward, for appellants.

      Powers & Eardley, for appellee.

       On the question of the duty of the owner of land which licensees are accustomed to cross, to guard against injuries in consequence of changes in the condition, see notes in 13 L. R. A. (N. S.) 1126 and 39 L. R. A. (N. S.) 217.

   Stone, J.

The plaintiff, a young man 20 years old at the time of the injury complained of, brings this suit to recover damages for an injury received by him on the evening of October 23, 1911, resulting from his falling into an excavation in the right of way of the Pere Marquette Railroad Company, near the east end of that company’s bridge across Grand river, in the city of Grand Rapids. The excavation was made under the premises of the said railroad company by the defendants in pursuance, and in execution of, a contract between defendants and the city of Grand Rapids for building what is known as the east side trunk sewer in that city. The river runs practically south at this point, and the sewer is substantially parallel with the river.

It is the claim of the plaintiff that on the evening in question, at about 6:30 o’clock, he had occasion to go from his place of residence, situated on Front street upon the west side of said river, to the home of his brother-in-law on Underhill street upon the east side of the river. To do this it was necessary to cross Grand river from the west to the east side. Instead of crossing the Wealthy avenue bridge, the plaintiff elected to cross the railroad bridge in question, claiming that it was a somewhat shorter route. The record does not show the exact length of this railroad bridge, but it appears that it runs diagonally across Grand river and is necessarily a bridge of considerable length. At the time of the accident complained of, there were two tracks on this bridge. It had a framework extending above the roadbed, and was so constructed that there was just room enough on the outside of these tracks to provide for the traffic of the road. The railroad company used the south track for the running of all its passenger and some other trains; and the north track was used for freight trains and for the storage and switching of freight cars. The two tracks were laid 8 feet apart. Between these two tracks there was a planking 4 feet wide laid between two wooden guard rails parallel with the tracks.

There is no question that the railroad company was the exclusive owner of the right of way between Front street upon the west side, and Market street upon the east side of the river, as well as of the land upon either side of the tracks between the river and Market street. From the river on the east side and Market street the railroad roadbed was raised from 12 to 14 feet above the surrounding land, and pedestrians who undertook to cross on the railroad right of way had to traverse this distance of nearly 300 feet before leaving the railroad tracks. There was no planking on the right of way east of the bridge between the tracks, but there was a well-defined path there. This sewer, extending along the east bank of Grand river, crossed under the Pere Marquette Railroad tracks between the east end of the railroad bridge and Market street. It appeared that the city had procured the right of way for the construction of this sewer. Defendants had no right to place anything whatever on the right of way where the tracks were; and it appeared that the defendants had already paid the railroad company for the right to bring lumber and material there to be used in the sewer.

The work on this sewer was begun some 50 days before the injury to the plaintiff, and defendants had been working with their machinery in the immediate vicinity of the railroad tracks for at least 8 or 10 days at the time the plaintiff was injured. On the night of the accident, and for some time before that, the space between the rails of the tracks was planked over the excavation which had been made for the sewer. But there were no planks over the excavation between the tracks. The excavation was 16 or 17 feet long at the top, parallel with the tracks; and some 7 or 8 feet wide between the two railroad tracks; and it was 23 to 25 feet deep. Special pains had been taken to support the railroad tracks, and there were timbers in the excavation. The bottom of the sewer was being constructed of concrete which had been placed and had already set, and the testimony shows that the bottom of the sewer was as hard as a rock.

The negligence complained of by the plaintiff was the failure of the defendants to place a lantern .on both sides of this excavation, it being testified to, and claimed by the plaintiff, that there was a lighted lantern, with a red globe, at the easterly side of the excavation, which he saw as he left the railroad bridge, about 100 feet distant; but that there was.no lantern, or other signal of danger, upon the west side of the excavation. The plaintiff alleged in his declaration as follows:

“Plaintiff further avers that on, to wit, the 23d day of October, A. D. 1911, and for ten years and upwards prior thereto, and for, to wit, five months afterwards, there had been and was, between said parallel tracks extending from said Front street to said Market street a regularly traveled route, over which the general public, on foot, day and night, was accustomed to pass and repass without let or hindrance, and with entire acquiescence, consent, and approval of the owners, officers, agents, operators, and employees of said Pere Marquette Railroad Company; that said traveled route, on the 23d day of October, 1911, and for more than ten years prior thereto, and for five months thereafter, was open to public travel on foot and was habitually, constantly, and continuously used by the public for public travel, and of which traveled route or way, and of the custom of the public to travel over and thereon, said defendants on the 23d day of October, 1911, and for five years prior thereto, and for, to wit, five months afterward, had full knowledge.”

There was evidence to support this averment.

There was a conflict in the evidence whether or not there was a lighted lantern, with a red globe, placed at the westerly side of the excavation, as well as on the easterly side, at the time the plaintiff fell into the excavation. The plaintiff testified that he had known of this path or way from Front street to the bridge, and from the bridge to Market street, and across the bridge, for some time, but that he had not passed over the same for a month, or a month and a half prior to the occasion when he received his injury, and that he did not know of the excavation.

His own version of the accident was to the effect that it was a dark, cloudy night; that as he went off ("the east end of the bridge he noticed one red light and knew that it was a signal of danger; that he continued I to approach the light, walking cautiously along for a distance of nearly 100 feet from the place where he first saw the light, when he suddenly fell into the excavation ; that the lantern threw no light whatever on the opening of the hole; and that he could not see the hole, and could not distinguish between the ground and the hole; that it all looked alike; and that he merely walked right off into the excavation and received severe injury, his right arm being broken at the elbow, and the elbow joint, in fact, destroyed, and he claimed to have received permanent injuries by reason of the fall.

In support of his claim the plaintiff offered in evidence certain proceedings of the common council of the city of Grand Rapids. These were received over the objection and exception of defendants that the declaration did not allege any right of the plaintiff to travel on the right of way. It is apparent that at the time the resolution was introduced, which appears to have been in April, 1902, there was in contemplation a new bridge, with a draw in it, which was to be approved by the secretary of war; the roadbed was to be raised, necessitating the raising of the grades and approaches of public streets. The railroad company was to construct the approaches under the direction of the city engineer. The third condition of the resolution reads as follows:

“On condition that said railroad company shall construct a sidewalk to be under the control of, and maintained by the city, across said bridge approximately six feet in width; such sidewalk to be guarded by suitable iron railings, and that such railings shall be at least six feet apart, and shall grant to said city of Grand Rapids a permanent right of way under its tracks on its right of way, suitably banked, at least thirty-five feet in width; or said company may, at its option, construct thereunder two adjoining passageways, at least sixteen feet in width to be used as a public street on Island No. 3.”

There is some confusion in the record whether this resolution was ever passed, although it appears that the president of the railroad company was probably so informed, as he wrote an acceptance which assumed its passage, and a bond was submitted which was referred to the committee on ways and means. There is no evidence that a report of this committee was ever made, nor does it appear that the roadbed had been raised, or the new bridge built under the resolution. This evidence was followed by other evidence on behalf of plaintiff, that the city engineer’s office, during three or four years prior to the injury, had replanked the bridge, and at some time before the injury the city marshal had repaired this space between the guard rails on the bridge. It does not clearly appear when.the first planking was done, although it may be inferred from the testimony of one of the defendants that it was done by the railroad company when the bridge was built some 12 or 15 years ago. From the evidence tending to show that men in the employ of the city had relaid and repaired the planking on the bridge, and that to the knowledge of the defendants hundreds of people were in the habit of passing over the bridge and right of way daily, it was the claim of the plaintiff that he, with the public generally, was a licensee, rightfully upon the right of way, and with the license of the railroad company, and such seems to have been the view of the trial court. That an implied permission existed finds support in Brinilson v. Railway Co., 144 Wis. 614 (129 N. W. 664, 32 L. R. A. [N. S.] 359).

The undisputed testimony shows that near the east end of this railroad bridge upon the right of way of the company, and close to the point where the plaintiff was injured, the railroad company had kept and maintained, for at least 3years before this injury, a substantial board sign. It was set on a post, was painted, was about 18 by 20 inches in size, and read as follows: “Private property; no thoroughfare; keep off.”

The case was submitted to the jury, and in its charge, • among other things, the court used the following language:

“I charge you, as matter of law, that, if you find the Pere Marquette Railroad Company’s right of way between Front and Market streets on the west side has been used by the public openly and continuously for a number of years immediately preceding this accident, and if you further find that the Pere Marquette Railroad Company allowed the city of Grand Rapids to build or maintain a sidewalk on the bridge, which is a part of the above-mentioned right of way, from Front to Market street, previous to and at the time of this accident for the purpose of accommodating the public and at this time (the time of this accident) and for some time prior thereto the public had been using the footwalk or sidewalk on this bridge in passing to and fro from the east to the west side over this railroad bridge, and using the right of way of the Pere Marquette Company to get to the first public street at either end of the bridge, then you shall, find that the plaintiff at the time of this accident had the right to use the said bridge, and also the right to use the approaches to the said bridge including the place where this accident occurred.
“I will add to that by saying as matter of law that,' under the circumstances of this case, the plaintiff would be a licensee there; he was there substantially by permission. He had no right, or interest in the property, and the railroad company owed him no obligation such as if he had owned the property or was upon a highway, a public highway, or place where he had a right to be, other than they would owe to a person who was upon their right of way as invited or as a licensee. Under the circumstances in this case, in other words, the city put the sidewalk or foot-walk upon the bridge; that is, they rebuilt it, according to the testimony. I do not know whether they put it there in the first place or not. Evidently with the consent of the Pere Marquette Railroad Company; if not with their consent, under the conditions they must have known, or they will be charged with knowing, that the public was walking back and forth on that footbridge, to and across the bridge and from the bridge on either end, for the accommodation of the public. So that while the public had no right in the property, as a matter of license or leave, the Pere Marquette Company had, either affirmatively or by tacit consent, granted the privilege to people to walk at this particular place, the public to walk over the right of way of the Pere Marquette Railroad Company at this particular place. So that the plaintiff at the time and place of this accident, was not a trespasser in the ordinary acceptation of the term.
"" “If the defendants dug, or caused to be dug, an excavation on the right of way of the Pere Marquette Railroad Company between Front street and Market street, on October 23, 1911, at a point -that the public had been openly and continuously using for some time immediately prior thereto, and this fact, if it is a fact —namely, that the public was using said right of way as above stated — was known to the defendants, then it was the duty of defendants to give a warning of said excavation. In determining what constitutes a sufficient warning you have a right to take into consideration the fact that trains were using the right of way, the size and condition of the excavation, the condition of the surroundings, and the darkness of the night at the time of the accident.”

' The plaintiff recovered a verdict and judgment of $4,765 damages, and the defendants, after moving for a new trial upon the ground that the verdict was against the clear weight of the evidence, and the denial thereof, which denial was duly excepted to, have brought the case here upon writ of error, and have assigned many errors.

1. It is the first contention of the defendants that the plaintiff was a trespasser upon the premises; but it is also urged that if he was a licensee there could be no recovery in the case. A careful reading of the record satisfies us that the'court was not ifi~erfdf~ in holding that the undisputed evidence in the case showed that the plaintiff was a licensee upon the premises. The language of the courts has not been uniform in expression as to the rights of a licensee, or whether a licensee has any rights upon the premises.

In Clampit v. Railway Co., 84 Iowa, 71 (50 N. W. 678), the court, in speaking of a plaintiff upon premises, under a license, said:

“Plaintiff, therefore, was not a trespasser upon the railroad track, but is entitled to all the rights and protection of one rightfully upon it with the license of the defendant.”

It is the claim of the plaintiff, and we think the claim is supported by authority, that, even if the plaintiff was a licensee, defendants owed him the duty of exercising ordinary care in the protection of this excavation. The approaches to.the walk on the bridge and the walk itself had been continuously, openly, and constantly used for years, it must be said, with the permission and acquiescence of the railroad company, and the defendants’ rights can certainly be no greater than those of the railroad company. At the easterly end of the bridge, extending to Market street and over this excavation, was a well-defined path which had been there for years. This path to the walk on the bridge had been openly and constantly used, and as many as 500 people were using it daily. This must have been known to the railroad company, whose offices were in that immediate vicinity, and whose employees, the evidence shows, were constantly using this way as a passage, and the evidence shows that the fact was known to the defendants; and while the general rule is that a licensee ordinarily takes the property over which he passes as he finds it and is subject to its risks, yet there are certain exceptions to this rule. If a licensee has been using a well-1 defined path openly and continuously, we think he } takes only such risks as have existed during the time f of using the same; but this does not extend to addi-| tional risks on said path made afterwards by the; licensor, and without the knowledge of the licensee.!. In other words, if the licensee has been using a defined path for a length of time with the knowledge ! and permission of the licensor, then, if the licensor j interferes with said path by making it more danger- J ous, he should give notice to the licensee, or guard the : dangerous place so made. We think this doctrine is clearly recognized by this court in Habina v. Electric Co., 150 Mich. 41, at page 49 (113 N. W. 586, 13 L. R. A. [N. S.] 1126). In that case a child had been injured; but, unlike this case, it did not appear that any path or way was shown to have existed at or over the land where the ditch in which the child was injured was opened. In that case it was distinctly found that it did not appear that the plaintiff ever traveled over the premises in a path or way in a direction used by any one else, or that she twice pursued the same way herself, but that she and others had been in the habit of roaming over the entire premises. Justice Ostrander said:

“The rule, or exception to the rule, stated in Felton v. Aubrey, 74 Fed. 350, 20 C. C. A. 436, relied upon by counsel (see, also, Green v. Railway Co., 110 Mich. 648 [68 N. W. 988]) that—

“‘If with knowledge that such person will (or may) avail himself of the license, the owner actively change the situation by digging a pitfall, or opening a ditch, or obstructing dangerously the premises which he has reason to believe will be traversed by his licensee, sound morals would seem to demand that he should give reasonable warning of the danger,’

—is limited, and was substantially limited in application in Beck v. Carter, supra, to cases where the use is ‘definite, long, open, and continuous.’ ”

See, also, Beck v. Carter, 68 N. Y. 283 (23 Am. Rep. 175). We invite attention to the language of Judge Lurton in Felton v. Aubrey, supra; Barry v. Railroad Co., 92 N. Y. 289 (44 Am. Rep. 377); Byrne v. Railroad Co., 104 N. Y. 362 (10 N. E. 539, 58 Am. Rep. 512). In the last-cited case the court points out the distinction between the duty owed to a licensee who goes upon a place in its existing condition, and one who has been accustomed to be on that place, and using the same as a definite place, but which definite place has been changed subsequently by the licensor, and the court holds that the licensor must, in such latter case, give notice of the change. See, also, Corrigan v. Sugar Refinery, 98 Mass. 577 (96 Am. Dec. 685); Toomey v. Sanborn, 146 Mass. 28 (14 N. E. 921). In Stevens v. Nichols, 155 Mass. 472 (29 N. E. 1150, 15 L. R. A. 459), the court says, quoting from Judge Holmes in Reardon v. Thompson, 149 Mass. 267 (21 N. E. 369), as follows:

“ ‘The general rule is that a licensee goes upon the land at his own risk and must take the premises as he finds them.’ ”

It further says:

“The licensor has, however, no right to create a new danger while the license continues” — citing Oliver v. Worcester, 102 Mass. 489 (3 Am. Rep. 485); Corrigan v. Sugar Refinery, supra; Corby v. Hill, 4 C. B. (N. S.) 556.

We call attention to the cases cited by Justice Hooker in Green v. Railway Co., supra, viz.: Townley v. Railway Co., 53 Wis. 626 (11 N. W. 55); Reifsnyder v. Railway Co., 90 Iowa, 76 (57 N. W. 692); Clampit v. Railway Co., supra, and reported in 84 Iowa, 71 (50 N. W. 673). This last is a strong case, citing many authorities.

Davis v. Railway Co., 58 Wis. 646 (17 N. W. 406, 46 Am. Rep. 667). This is a well-reasoned case and reviews the American and English authorities at great length, and it is worthy of a careful reading. The doctrine of the case is that there is a clear distinction between the care which a railroad company is bound to exercise, between mere trespassers, and those who are on its right of way by license of the company, and in case of the long and constant user of such way a company and its servants are charged with notice of it, and cannot neglect precautions to prevent danger to persons traveling thereon, and that a wilful injury is not the only ground of liability in such a case. In that case the defendant left a boiler and pile driver unattended for more than half an hour, and an explosion occurred injuring the plaintiff, and the court held that it was a question for the jury whether such negligence was the cause of the explosion, and whether leaving such boiler unattended in the vicinity of the place where defendant’s servants knew people would be passing was want of ordinary care towards them; that, while a licensee assumes a risk incident to the business of the company whose way he uses, yet, if injury be caused by negligence of the company, he may recover therefor. See, also, Wheeler v. Terminal Co., 66 Mo. App. 260; Brinilson v. Railway Co., supra. In the last-cited case the court recognized the general rule that a licensor owes no duty to a licensee except to refrain from acts of affirmative negligence rendering the premisés dangerous. See, also, Graves v. Thomas, 95 Ind. 361 (48 Am. Rep. 727). In that case the court held that when the public have, by permission, traveled on foot for years over an open city lot, it was the duty of the owner, upon making an excavation in the pathway, with a view of erecting a building thereon, to put some guard or warning for public protection, and the failure to do so gave a right of action to one who, without fault, was injured thereby. See, also, Penso v. McCormick, 125 Ind. 116 (25 N. E. 156, 9 L. R. A. 313, 21 Am. St. Rep. 211).

We might cite many other cases from other States, but we refrain from doing so.

We think the rule may be stated that, after granting a license to use the premises, the owner cannot, lawfully, by his affirmative action, change the premises so as to make them more dangerous, without notifying the licensee of that fact, or warning him of the added danger. Sylvester v. Bookcase Co., 169 Mich. 340 (135 N. W. 337).

We think that the cases cited are clearly distinguished from Ryan v. Towar, 128 Mich. 463 (87 N. W. 644, 55 L. R. A. 310, 92 Am. St. Rep. 481), and similar cases. We are of opinion that the court did not err in submitting this question to the jury.

2. We are of opinion that the question of plaintiff’s contributory negligence was one for the jury, and was properly submitted.

3. We do not think the trial court erred in denying the motion for a new trial. There was the positive testimony of at least two witnesses on behalf of the plaintiff that there was no light at the west end of the excavation. There were three witnesses on behalf of defendants who testified that such a light was placed there, and the testimony of one of them at least tended to show that the light was burning there at the time of the injury, and remained burning all night until 6 o’clock the next morning. Where two witnesses testify to one state of facts and three testify to another, we cannot say, as matter of law, that the verdict was against the clear weight of the evidence. We have spoken so recently upon this subject that the cases need not be cited. The most that can be said is that it was a close question upon the facts.

4. This brings us to the argument" of counsel to the jury which was complained of in defendants’ fifth assignment of error. Upon the argument of the case by plaintiff’s counsel he used the following language:

“I want to call your attention to something just before I pass this. We have introduced in evidence here the contract. This contract calls for $356,722 for building the sewer, and it specifies there what must be done; specific, everything that must be done. Carpenter and Anderson, of course, they figured on the 25 per cent, for material, perhaps — I don’t know just the per cent. — 10 per cent, or 50 per cent, for labor, and 10 per cent, for depreciation of machinery, and something for accidents. They figured on this, this very thing here, and it is made a part of this $356,000. Let me read to you. So they are meeting just what they figured on.
“Defendants’ Counsel: I except to counsel’s reference to anything of that kind in this contract.
“Plaintiff’s Counsel: The contract is in evidence and we can read it.
“The Court: Counsel for defendants may have an exception.
“Plaintiff’s Counsel: ‘The contractor shall be liable at all times for damages to person or property due to improper protection of the work.’ Above that I will read the whole article on the subject: ‘The contractor shall erect suitable railings or barriers and shall provide watchmen on the work, if required, and if it is necessary for the safety of the public.’ And if necessary, barriers and red lights shall be maintained and kept to protect the public, and if there is any damage, the contractor is responsible for it. That is a part; they figured on that in order to get their estimate, how much they can do the work for.
“Defendants’ Counsel: I take an exception to the argument counsel has made since I called attention to it. I desire to have a ruling, to know there' is a ruling of the court on the matter.
“The Court: Counsel may take an exception and have the benefit of a ruling, that the counsel making the argument takes his chances on that being error. Counsel for defendants may have an exception to the argument.”

If we understand the scope and meaning of the argument of plaintiff’s counsel, it was to the effect that any verdict which the jury might render against the defendants was, after all, only for a sum of money for which they were already indemnified, and which was to be paid to them by the city under the contract, for the express purpose of paying such claims as the plaintiff’s in this case. It is true that the contract between the city and the defendants had been put in evidence by the plaintiff to show that the defendants were doing the work under the contract with the city, and to show such portions of the contract as might have any bearing upon the duty of the defendants toward the plaintiff. The liability of the defendants in no way depended upon the amount which they were to receive under their contract. Manifestly, the price paid for this work was immaterial to the issue in this case. It was also immaterial whether anything was included in the contract for accidents, even if there had been any evidence that such item was included. There was, however, no such evidence. We think this argument was unwarranted, and may have been, and probably was, very damaging to the defendants. Such, argument would have a tendency to induce the jury to conclude that the defendants were already indemnified against any damage which they might award the plaintiff. That such language was reversible error has been frequently held by this court. The case was a close one on some of its facts and required, not only the caution of counsel, but the scrutiny of the court, upon the course pursued in the argument. We have looked for any reference in the charge to the subject and failed to find it. Kerr v. Manfg. Co., 155 Mich. 191 (118 N. W. 925); Person v. Shingle Co., 160 Mich. 1 (124 N. W. 522); Hughes v. City of Detroit, 161 Mich. 283 (126 N. W. 214, 137 Am. St. Rep. 504), and cases cited; Antosik v. Alkali Co., 166 Mich. 415 (132 N. W. 80); J. H. Worden Lumber, etc., Co. v. Railway Co., 168 Mich. 74 (133 N. W. 949), and cases cited; Rauhala v. Maki, 172 Mich. 112 (137 N. W. 703).

We think the language used under the circumstances, and the fact that it was in no way cured by the charge of the court, was highly prejudicial to the rights of the defendants, and amounted to reversible error. If counsel persist in making such improper arguments, they must take the consequences resulting therefrom.

By defendants’ sixth assignment of error complaint is made that again during the closing argument of plaintiff’s counsel he used the following language:

“Give him what you think he is entitled to. Give him what you think he ought to pay his nurse. Is $10,000 too much? Would you fall in that sewer for $10,000 and take your chances; would you go through life that way? Would you have your son go through life that way? Uneducated boy, what can he do?
“Defendants’ Counsel: I except to that line of argument.
“The Court: Just a moment, counsel may have an exception to the argument of counsel for the plaintiff.”

No allusion was made in the charge to this improper argument of counsel. With reference to similar language, Justice McAlvay, in Hughes v. City of Detroit, supra, at page 289, said:

“That this argument above quoted was inflammatory and prejudicial is apparent. It was cause for reversal. Ward v. Reed, 134 Mich. 392 (96 N. W. 438); Hillman v. Railway, 137 Mich. 184 (100 N. W. 399).”

For the errors above pointed out in the argument of counsel and the course taken relating thereto, we are constrained to reverse the judgment of the court below and grant a new trial.

Judgment reversed, and a new trial granted.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    PEOPLE v. AVERILL.
    1. Criminal Law — Minors—Sale of Intoxicants — Intoxicating Liquors — Statutes—Good Faith as Defense.
    Act No. 160, Pub. Acts 1909 (2 How. Stat. [24 Ed.] § 5095), making it unlawful for any person to sell intoxicating liquors to a minor, was intended, particularly, to prohibit sales'made by persons not engaged in the liquor trade, who were not affected by the prior law (2 Comp. Laws, § 5391), under the holdings of this court, and the statute was not intended to repeal the prior act in so far as it gave the respondent the right to show that he sold the intoxicating liquors in good faith, believing the minor to be of full age.
    2. Same — Good Faith.
    It was erroneous, in a prosecution against a saloonkeeper for selling to a minor, to exclude by tbe charge to tbe jury respondent’s defense, as claimed in bis testimony, that be believed tbe minor was over 21 years of age and made tbe sale in good faith, relying on tbe representation of tbe young man that be was of age.
    Exceptions before sentence from the superior court
    of Grand Rapids; Stuart, J.
    Submitted January 29, 1914.
    (Docket No. 140.)
    Decided March 26, 1914.
    Edward Averill was convicted of violating the liquor law.
    Reversed.

      Grant Fellows, Attorney General, Earl F. Phelps, Prosecuting Attorney, and L. T. Herman, Assistant Prosecuting Attorney, for the people.

      Dunham & Dunham, for respondent.
   Stone, J.

The respondent was charged in the information filed against him in the superior court of Grand Rapids with having, on the 29th day of November, 1912, at the city of Grand Rapids, county of Kent, then and there unlawfully sold, furnished, and given—

“To one Harold Williams, a minor under the age of 21 years, to wit, of the age of 16 years, a beverage, a large quantity, to wit, two bottles of brewed, malt, fermented, vinous, and intoxicating liquor, namely lager beer, contrary to Act No. 160 of the Public Acts of the State of Michigan for the year 1909, and contrary to the statute in such case made and provided, and against the peace and' dignity of the people of the State of Michigan.”

The plea was not guilty.

Upon the trial of the case it appeared and was undisputed that the respondent was, at the time and place charged, engaged in the saloon business. The witness Harold Williams testified that he went into the saloon of respondent at the time and place named and purchased two bottles of beer of respondent and paid for them. It further appeared that Williams was, in fact, only 16 years of age at the time. The respondent gave evidence tending to show that he sold the beer-to Williams because he looked to be 21 years old; that he asked Williams if he was 21, and he replied that he was. Respondent described the manner in which Williams was dressed, and testified that he sold the beer in good faith, believing that Williams was 21 years of age, and that he (respondent) did not intend in the sale to sell to a minor.

The trial court held that the defense of good faith was not open to the respondent under the charge contained in the information. In its charge to the jury the court said:

“It was brought to my attention at the opening of the case by counsel for the respondent that he desired to interpose a defense here, which was deemed a defense prior to the law of 1909, under the old statute in the Compiled Laws known as section 5891, namely, that he did not intend to violate the law, that he supposed the boy was 21 that bought the liquor, and sold it to him under that supposition, without any intent to violate the law.”

After stating that such defense would have been permitted under section 5391, the court further said:

“But, under the law that was passed in 1909, Act No. 160, there is no such provision in the law that the fact of the sale and his being shown to be a minor is prima facie evidence, but it cuts all of that out, and just simply says that it shall not be lawful for any person to sell, or furnish, or give to any minor, as a beverage, any brewed, malt, fermented, spirituous, vinous, or intoxicating liquors ; and it appears to the court that it was the intention of the legislature, when it cut out that provision, which has been a part of the law for a great many years, to make the selling to a minor in every case a violation of the law, and that no matter whether he [the respondent] thought he was 21 or not, if it turned out that the boy was a minor, that he made the sale at his peril. * * * I submit the case to you, and instruct you that it is your duty to bring a verdict of guilty, and I will ask you to step into the jury room, choose a foreman, and,' if you coincide with the court’s views, which it is your duty to do, you can return and the foreman announce the verdict.”

Thereupon the jury retired, and, after being absent for a time, returned a verdict of guilty. The respondent has brought the case here for review, and the errors assigned raise the question whether the trial court erred in instructing the jury that they had no right to consider the good faith of the respondent in selling liquor to the minor, and that it was the intention of the legislature to make the selling to a minor in every case a violation of the law, whether the. respondent thought the minor was 21 or not, and that all sales are made at respondent’s peril.

It must be conceded that the legislation upon the subject is somewhat confusing, and it is not surprising that the learned trial court expressed some doubt as to its true interpretation. Act No. 160 of the Public Acts of 1909 is entitled:

“An act to prevent the selling, furnishing or giving of liquors to minors or to persons to whom the selling, furnishing or giving of liquors shall have been forbidden, and to provide a penalty therefor.”

Section 2 is as follows:

“It shall not be lawful for any person to sell, furnish or give to any minor as a beverage any brewed, malt, fermented, spirituous, vinous, or intoxicating liquor or any mixture containing any of said liquors.”

The act was approved May 26, 1909. (2 How. Stat. [2d Ed.] § 5095.)

By act No. 291 the same legislature which enacted the above-named provision, by what is known as the “Warner-Cramton Act,” amended the general statute regulating the liquor traffic in a number of its sections, and added five new sections. That act was approved June 2, 1909. It is significant that it did not amend or change section 5891, 2 Comp. Laws (2 How. Stat. [2d Ed.] § 5067). That section still retains the following clause:

“The fact of selling, giving, or furnishing any liquid in any place where intoxicating liquors are sold or kept for sale, to any minor, * * * shall be prima facie evidence of an intent on the part of the person so selling, giving, or furnishing such liquid, to violate the law.”

In People v. Thompson, 161 Mich. 391, at page 394 (126 N. W. 466), in speaking of Act No. 160 of 1909, we said:

“There is no repealing clause in the act. It stands as an independent enactment. * * * We think that both provisions may stand, as not inconsistent.
“We have already shown that section 13 of the act of 1887 is left in full force by Act No. 291, Pub. Acts 1909, known as the Warner-Cramton act. * * * The Warner-Cramton act is therefore the later expression of the legislative will; and, if there is any inconsistency, the later act must govern.”

It should be remembered that in 1904, in People v. Bird, 138 Mich. 31 (100 N. W. 1003, 67 L. R. A. 424, 110 Am. St. Rep. 299, 4 Am. & Eng. Ann. Cas. 1062), this court held that section 5391, 2 Comp. Laws (2 How. Stat. [2d Ed.] § 5067), prohibiting furnishing liquors to minors, has reference only to acts by persons engaged in the business of liquor selling. It would seem that the legislature of 1909, by Act No. 160, undertook to make it unlawful for “any person” to sell, furnish, or give to any minor any of the prohibited liquors as a beverage, thus rendering it unlawful for a person not engaged in the liquor business to sell, furnish, or give such liquors to a minor. It has not been supposed that Act No. 160 in any way changed or modified the law regulating the sale of liquors by a person engaged in the business of liquor selling, and that such persons, were still within the provisions of section 5891, 2 Comp. Laws. We are of opinion that this is the correct view of the legislation. When it appears, therefore, in a given case, as it did in the instant case, that a respondent, charged with unlawfully furnishing liquor to a minor, is a dealer, under the general law regulating the liquor traffic, and it appears that such furnishing was in a “place where intoxicating liquors are sold or kept for sale,” the question of good faith is involved, and the provisions of section 5391 apply. This view, we think, reconciles the statutes, and the decisions of this court, and renders the law a workable one. Faulks v. People, 39 Mich. 200 (33 Am. Rep. 374); People v. Welch, 71 Mich. 548 (39 N. W. 747, 1 L. R. A. 385); People v. Hughes, 86 Mich. 180 (48 N. W. 945); People v. Bronner, 145 Mich. 399 (108 N. W. 672). The cases of People v. Longwell, 120 Mich. 311 (79 N. W. 484); People v. Curtis, 129 Mich. 1 (87 N. W. 1040, 95 Am. St. Rep. 404); Bailey v. Briggs, 143 Mich. 303 (106 N. W. 863), and People v. Sharrar, 164 Mich. 267 (127 N. W. 801, 130 N. W. 69), deal with sales by druggists, and are controlled by another section of the statute (section 5381).

The case of People v. Roby, 52 Mich. 577 (18 N. W. 365, 50 Am. Rep. 270), had to do with a section of the then existing law similar to the present section 5395, 2 Comp. Laws (2 How. Stat. [2d Ed.] §5071), requiring all saloons to be closed on Sunday, etc.; and it was held that that statute required the proprietor at his peril to keep the bar closed, and that the question of intent was not involved, because it was not an element of the offense.

We are constrained, therefore, to reverse the conviction in the court below, and to grant a new trial.

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


text:
    PREST-O-LITE CO. v. WIDRIG.
    1. Justices of the Peace — Pleading—Declaration—Appeal.
    In justice’s court a declaration is sufficient if it contains a substantial statement of the cause of action. Substance is required, not form. The rule as to regularity and formality is liberal.
    2. Same — Waiver.
    The declaration is required to state a cause of action by essential averments; failure to state any case is not waived by pleading to the merits, instead of demurring: the point may be raised by objection to the introduction of evidence. •
    3. Sami® — Fraud—Pleading.
    A declaration in tort before the justice, as shown by his return, “on all the common counts, especially for obtaining money under misrepresentation, fraud and deceit Claims damages $500 or under,” was insufficient to apprise the defendant of the ground of plaintiff’s claim. It would not bar another action or support a judgment.
    Error to Wayne; Mandell, J.
    Submitted January 20, 1914.
    (Docket No. 136.)
    Decided March 26, 1914.
    Assumpsit in justice’s court by the Prest-O-Lite Company against Arthur S. Widrig and others for fraudulent representations. Defendants appealed to the circuit court from a judgment for plaintiff. Judgment for plaintiff. Defendants bring error.
    Reversed.

      Bailey & Bradley, for appellants.

      John J. Gafill, for appellee.
   Stone, J.

Plaintiff is. an Indiana corporation engaged in the manufacture of acetylene gas tanks for use in lighting automobiles. Defendant Arthur S. Widrig had been engaged at Detroit in the business Of manufacturing acetylene gas for, and refilling or recharging, empty tanks. Plaintiff claimed a proprietary right in the refilling of the tanks of its manufacture, and the right to prevent any other person from refilling any tanks it had sold, even at the request of the owner of the tank. Plaintiff filed a bill in equity in the United States court at Detroit, and obtained a temporary injunction against said defendant restraining him from refilling such tanks with acetylene gas, unless he should file a bond conditioned to pay plaintiff $2 per tank liquidated damages for every tank filled by him pending said suit. Defendant gave the bond, and continued to do business for a time, but finally sought to settle with the plaintiff, and sell it his business. To that end he went to Indianapolis, upon the invitation of the plaintiff, to discuss the “sale of his business.” Finally defendant agreed to sell to plaintiff his machinery, which defendant claims consisted of two outfits, one of the high-pressure type, and the other of the low-pressure type, consisting of a generator, a compressor, tank, etc., for $1,000 at Detroit, with an additional $100 for loading the property on the car; the plaintiff to dismiss its injunction suit, and release him from all liability upon the bond above mentioned. Plaintiff declined to enter into this contract until and after it had sent its engineer to Detroit to inspect the property, and ascertain just what there was, and what was its value. The plaintiff then accepted the offer, and paid the defendant $500 on the contract.

Defendant proceeded to load the machinery sold, as he claimed, but a controversy arose with plaintiff’s Detroit manager, as to whether all of the machinery sold had been loaded; said manager claiming that there should have been two of each article on the car, instead of one. The parties disagreed upon this matter, and the plaintiff then refused to carry out the contract, refused to release said defendant from his bond, or to pay the balance due defendant, claiming defendant had broken his contract. Defendant claims that at this time all of the machinery, shafting, piping, motor and everything sold had been dismantled, removed from the factory, and loaded on a freight car. Upon plaintiff’s refusal to take the property, defendant was compelled to unload the car and reinstall the machinery in the plant at his own expense.. Defendant sought the advice of counsel, and was advised to retain the $500 which had been paid to him, until an adjustment might be made of the damages which he claimed he had suffered from the plaintiff’s breach of contract.

Thereupon the plaintiff brought this suit in justice’s court at Detroit to recover the $500 paid; the summons being “in a plea of trespass on the case to its damage $500 or under.” The return of the justice to the circuit court, as to the pleadings, was:

“The plaintiff declares, in an action of trespass on the case, on all the common counts, especially for obtaining money under misrepresentation, fraud, and deceit. Claims damages $500 or under. The defendant pleads the general issue.”

From the judgment of the justice, an appeal was taken to the circuit court, where a jury trial was had.

At the trial the defendant objected to the jury being sworn to try the case, because of the variance between the writ and the declaration, and the misjoinder of causes of action upon contract, and for tort in the declaration. Thereupon the plaintiff voluntarily elected to rely upon the action in tort for “obtaining money under misrepresentation, fraud, and deceit,” and the court overruled defendant’s objection.

The defendant then moved the court to strike the declaration from the files, as too vague, indefinite, and uncertain, and stating no cause of action whatever. In urging his motion, defendant’s counsel said:

“Our motion being based on the ground that no inducement is stated, no facts or circumstances show any misrepresentation or fraud, or that the plaintiff was deceived thereby, or that the statement — no statements are shown — or what was claimed was misrepresentation, it is not shown that it was false, or that the plaintiff acted upon it, and it is not shown that it was induced to part with money, and it is not shown that defendant knew it to be false, and no facts are stated whatever that are the basis of a fraud action.”

The court overruled the motion, and held the declaration sufficient, to which ruling defendant duly excepted. Defendant raised the same question by a motion to direct a verdict, and by requests to charge which were refused.

Upon the trial it developed that plaintiff’s claim of fraud was based upon its contention that defendant claimed to own and agreed to sell to plaintiff one generator, one compressor, one gas holder, one dryer, and one cooling tank, in addition to what defendant claimed to have sold and loaded on the car for shipment; that defendant refused to furnish those additional things, and subsequently sold part of the property, which plaintiff refused, to another at a larger price. The case was submitted to the jury, and the trial resulted in a verdict and judgment for the plaintiff for $500 and costs. The defendant brings error, and its first group of assignments of error relates to the sufficiency of the declaration.

It is the claim of defendant that a declaration for fraud and deceit must be more positive, clear, and definite than in any other kind of action; that a defendant is not required to speculate and defend such an action under any such vague and uncertain charges as are contained in this declaration; and that, while pleadings in justice’s court need not have the same fullness and particularity as in the circuit court, they must state facts sufficient to make a cause of action; that a declaration must contain enough of substance to inform defendant of the nature of plaintiff’s claim, and be so explicit that a judgment thereon will bar another suit for the same cause of action; and that, to this extent, it is indispensable that the statement should go, and that all the facts material to the cause of action must be set forth — citing 24 Cyc. pp. 558, 559.

Upon the subject of the sufficiency of a pleading in justice’s court this court has spoken many times, and the rule stated in the early cases has been adhered to, unless the defect had been waived.

In Barber v. Taylor, 1 Mich. 352, the sufficiency of a declaration in justice’s court where the declaration was much more explicit and certain than the one in the instant case, the court said:

“Technical nicety or legal precision is not required. * * * So far as respects regularity and form, the rule is liberal. * * * The rule might be stated thus: Whenever the declaration contains a substantial statement of a cause of action, it shall be held sufficient. Substance is required, not form. * * * We cannot sustain the judgment without a greater relaxation of the rule applicable to the sufficiency of declaration than has ever been permitted.”

In Stoflet v. Marker, 34 Mich. 313, this court, in dealing with a declaration in justice’s court, held that the objection that the declaration failed to state any cause of action was not waived by pleading to the merits instead of demurring, but that the point might be made by an objection to the introduction of evidence ; that, while the plea of the general issue waived technical and formal objections to the declaration, it did not waive the essential allegations of a cause of action. That the declaration in that case was much more intelligent and full than the one with which we are here dealing will appear by an examination of the case.

We think it cannot be said that the declaration in the instant case apprises defendant of the nature of the plaintiff’s claim in any sense. It alleges no substantial grievance, and it cannot be said that it would bar another action, or support a judgment.

In Smith v. Hobart, 43 Mich. 465 (5 N. W. 666), the declaration filed in the justice’s court was as follows:

“The plaintiff declares in assumpsit specially for damages for breach of warranty on a pair of horses purchased of defendant, and claims damages of $200.”

On the first offer of testimony, the defendant objected expressly that the declaration stated no cause of action, and the objection was maintained and urged through the entire case. Justice Gbaves, in speaking of the declaration, said:

“Was it valid? We have no doubt about it. The case is beyond the aid of the liberality extended to pleadings before magistrates. The declaration not only lacks matter of substance, but is wholly vague and uncertain. No one can gather from it any clear notion of the essential characteristics of the complaint intended to be asserted.”

A reference to the remainder of the opinion above quoted from is suggested. That the declaration in that case was not so vague and uncertain as the one in the instant case is manifest. The object of a declaration is fully accomplished when the defendant is fully apprised by it of the grounds of the plaintiff’s claim, so-that he need be under no misapprehension as to what matters are to be litigated on the trial. Does the declaration in the instant case accomplish this purpose? We think not.

It is true that it has been held by this court that almost any declaration must be held sufficient, in justice’s court, which indicates the general nature of the plaintiff’s claim. It was so held in Daniels v. Clegg, 28 Mich. 32. There the “plaintiff declared in trespass to his damage $100 for injury to buggy and horse.” But, in the declaration which we are considering, the plaintiff by its declaration simply says:

“You have obtained money by misrepresentation, fraud, and deceit to my damage.”

It is not even alleged what the misrepresentation was, nor what the fraud or deceit was. Under such a pleading, the plaintiff could shift position at will, and defendant never could know what he had to meet. We think that it cannot be said that the defendant is here apprised of the nature of the plaintiff’s claim.

In Watkins v. Ford, 69 Mich. 357 (37 N. W. 300), Justice Champlin, in speaking for the court of the insufficiency of a notice of recoupment in a case in justice’s court, and after referring to a number of cases which arose in the circuit court, said:

“In justice’s court, however, the nature of the claim of the parties litigant must be stated in such manner as to show a cause of action, and with sufficient certainty to prevent surprise of the other party as to what he will be called upon to meet with his proofs; and the plea of recoupment comes within this rule” —citing Bitter v. Daniels, 47 Mich. 618 (11 N. W. 409).

We have examined all of the cases cited by counsel for both parties. They are too numerous to be cited here. A collection, of the cases in this State will be found in the note to section 767, 1 Comp. Laws, and in the citators. Whether the sufficiency of the declaration was challenged in justice’s court does not appear.

We conclude this subject by reference to the late case of- Applebaum v. Goldman, 155 Mich. 369 (121 N. W. 288), where a similar question was considered, and quote the closing language of Justice Ostrander, wherein he says:

“Much as we regret the situation, we have no alternative except either to refuse to apply settled rules or to reverse the judgment.”

We do not think it necessary to consider the other questions discussed by counsel. They are not likely to arise upon another trial.

For the error pointed out, the judgment below is reversed, and a new trial granted.

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


text:
      In re MORE’S ESTATE. APPEALS OF TRUSTEES OF ELMWOOD CEMETERY.
    1. Estates of Decedents — Appeal and Error — Party Aggrieved —Judgment—Probate Court.
    On motion to dismiss an appeal from probate court from an order refusing to require the executor of an estate to pay over the sum of $1,000 left in trust by the will of decedent for the maintenance and care of her cemetery lot and grave, the trustees of a cemetery corporation having charge of the cemetery in which decedent was buried, were rightly held to be aggrieved parties, entitled to appeal: in legal acceptation a party is aggrieved by a judgment or decree which operates on his rights in property or bears directly upon his interest.
    2. Same — Evidence—Error.

      Held, also, that the finding of the circuit court reversing the order of the probate court was supported by competent evidence, and there was no prejudicial error in the reception of evidence.

      3. Same — Devise — Specific Devise — Charge Upon Property Transferred by Will — Executors and Administrators.
    Where decedent transferred by tier will certain real property subject to a charge of $1,000, to be set aside and invested and the income used to maintain her cemetery lot, it was unimportant that the proofs did not disclose any personal property of the estate out of which to pay the $1,000.
    4. Same — Trusts—Wills.
    It becomes the duty of the executor under such will to raise the required amount by sale of the real estate charged therewith, or by collecting that amount from the devisee of the property, he would be bound to make the payment or to exhaust the security before he could obtain his discharge and cancellation of his official bond.
    5. Same — Trusts—Omission to Name Trustee.
    It is a general rule of equity that a trust perfectly defined will not fail for want of a trustee; by its inherent jurisdiction over trusts, equity can supply one.
    6. Same — Probate Courts — Intent of Testatrix.
    Evidence that the remains of the testatrix, of her husband and several children were buried in a certain cemetery lot, owned by the husband, that she owned no lot, justified the trial court in finding that the lot in question constituted the family burial lot, and the will was intended to provide for such lot.
    7. Statutes — Construction.
    Notwithstanding that a statute in derogation of the common law must be construed strictly, it is well settled that it must be construed sensibly and in harmony with the legislative purpose. When acts of the legislature are pari materia, though enacted at different times and not referring to each other, they are to be taken and construed together, as explanatory of and supplemental to each other, and sustained if possible in order to effectually carry out the legislative intent and produce a consistent and harmonious system.
    8. Cemeteries — Trusts—Care of Lots.
    It was the legislative intent, in enacting Act No. 62, Session Laws 1849, whereby the trustees of Elmwood cemetery were constituted a body politic and corporate, and empowered to hold in trust any donation or bequest of property, and to apply the same or the income thereof in improvements, decorations and repair of lots, etc., also by amending the same section (Act No. 235, Local Acts 1883), to confer authority to receive donations and bequests for the purposes specified, in perpetuity.
    Error to Wayne; Hally, J.'
    Submitted January 8, 1914.
    (Docket No. 28.)
    Decided March 26, 1914.
    Appeal to circuit court by the trustees of Elmwood cemetery from an order of the probate court holding st certain legacy of the will of Huldah More, deceased, invalid. From an order sustaining the validity of the bequest, Thomas Hislop, executor, and Adelia Clark, residuary legatee under the will, bring error.
    Affirmed.

      Ed. E. Kane, for appellants.

      Bethune Duffield, for appellees the trustees of Elm-wood cemetery.
   Stone, J.

The history of the matters involved in this litigation may be stated as follows.:

Huldah More died on April 2, 1904, leaving a last will and testament which was admitted to probate by the probate court of Wayne county on May 26, 1904, and the appellant Thomas Hislop was appointed executor, and qualified. By this will the testatrix gave a number of money legacies and the will contains the following provisions:

(1) “I direct the payment of my debts and funeral expenses and the erection of a suitable monument over my grave, out of my estate; said monument not to exceed in cost the sum of one hundred dollars, and I further direct that the sum of one thousand dollars be set aside, out of my estate, and invested, and the income derived therefrom devoted to the care and ornamentation of my grave and burial lot. * * *
“(8) I give, devise and bequeath to William H. Clark of Vernon, in the State of Michigan, and to his heirs forever, the north thirty-three (33) feet of out-lot nineteen (19), and the south half (V2) of outlot eighteen of the Guoin farm, in the city of Detroit, Wayne county, Michigan, the same being the land owned by me on the east side of Russell street and north of Superior street, when said Superior street is extended east of Russell street and south of Willis avenue, in said city of Detroit, subject, however, to the payment of said sum of one thousand dollars, set apart for the care and ornamentation of my grave and burial lot, and also subject to the payment of the legacies in my will hereinafter named.”

After certain other specific bequests, testatrix gave the entire residue of her estate to her daughter, Adelia Clark, the other appellant.

Huldah More did not own any lot in Elmwood cemetery when she died. Her husband bought lot 162, in section N, in that cemetery, in 1856, and it stood in his name at the time of her death, and now stands in his name. Huldah More and her husband, who died in 1874, and several of her children, who died before her, were buried in lot 162. Elmwood cemetery is controlled by trustees of Elmwood cemetery, a corporation.

On April 22, 1910, the trustees of Elmwood cemetery filed in the probate court of said county, in said estate, a petition for an order that said sum of $1,000, referred to in testatrix’s will, be paid over to it. A full hearing was had before said court upon said petition, and on the 27th day of April, 1910, said petition was denied, and no appeal was taken from said order. Afterwards, upon the petition of the trustees of Elmwood cemetery for the appointment of itself or some other suitable person as trustee of said $1,000 fund, the probate court, before the appeals herein were taken, appointed the Security Trust Company, a corporation, as, and it now is, trustee of said fund. Subsequently an application was made to the probate court by the trustees of Elmwood cemetery and the Security Trust Company, as trustee, jointly, for an order directing the executor to turn over said sum of $1,000, with interest, to said trustee, and an order was entered denying this request on August 2, 1911.

The executor of Huldah More’s will filed his final account showing the payment of all . the expenses of administration and all debts, and of all legacies except said bequest of $1,000, and it was allowed as stated. The executor reported that this legacy had not been paid because he had been advised “the above provision in said will is void.”

Appeals were taken to the circuit court by the trustees of Elmwood cemetery alone, from both of these orders; said Security Trust Company, as trustee, did not join in said appeals, nor itself take any appeal from either of said orders.

By consent of counsel, these appeals were consolidated and heard together before the circuit judge without a jury, and on January 9, 1913, he decided that said $1,000 bequest was valid, and should have been paid by the executor. On the following day judgment was entered in accordance with said decision, but, on the application of the appellant, this judgment was vacated and set aside on January 10, 1913, and their attorney then filed a demand for a special finding of facts and law by the court.

On March 7, 1913, appellants here made a motion to dismiss both of said appeals, for the reasons that the proper appellant was not before the court, and that the trustees of Elmwood cemetery were not interested in the said legacy of $1,000 in such a manner and to such an extent as rendered it aggrieved in any way by the orders of the probate court, from which said appeals were taken; and that, under the statutes of this State, said trustees of Elmwood cemetery, a corporation, had and has no legal right to take and prosecute said appeals. Said motion was argued on the 15th day of March, 1913, and denied; the trial court holding that the trustees of Elmwood cemetery “is a person aggrieved,” within the meaning of the statute, which provides for an appeal from the order of the probate court, and was entitled to maintain its appeal therefrom to said court. The trial judge then filed special findings of fact and law, and held that the bequest of $1,000 was valid, and that the executor should have paid it, and judgment was rendered in accordance therewith. Appellants proposed amendments to said special findings of fact and law, all of which were refused, and said findings were duly settled according to the rules and practice of the court, and appellants filed exceptions to said special findings.

The case is here for review upon writ of error, and under appropriate assignments of error the claims of appellants are presented under the following heads:

(1) Motion to dismiss appeals.

(2) Incompetent evidence.

(3) No showing of personal property with which to pay.

(4) The payment of this $1,000 is, by the will, expressly charged upon certain real estate specifically devised.

(5) The provision in the will in regard to this $1,000 creates a perpetual trust and is therefore void.

1. It is the contention of appellants that this question was open to them at any stage of the proceeding; that it presented a question of want of jurisdiction over the subject-matter and could not be waived. On the part of the appellee it is urged that this question was not presented to the court until all the testimony had been taken, the case argued and submitted, exclusively upon the legal question as to whether the bequest was valid, or was void because contravening the rule of perpetuities. At the request of the trial judge, it is said briefs were filed; appellants’ brief containing no reference to the dismissal of the appeals because of the alleged jurisdictional defect or for any other reason.

As already noted, on January 9, 1913, the circuit judge handed down his opinion ordering judgment for payment of the legacy. On the next day, at the request of appellants, the judgment was set aside and the demand for findings of fact and law by the court was filed; that no further steps were taken for nearly two months, when, on March 7th, the motion was made to dismiss the appeals; and that this motion was argued on March 15th and denied. It is urged that this delay was inexcusable, and, although there were no formal pleadings in the circuit court, yet the trial took place as above indicated. It is said that applying the rule adopted by this court in Snyder v. Washtenaw Circuit Judge, 80 Mich. 517 (45 N. W. 596), the motion should not be considered, and should be treated as waived. Upon the merits of the question it is contended, as found by the circuit judge, that said trustees of Elmwood cemetery are the only persons aggrieved by the orders of the probate court appealed from. That if it should turn out that this fund is not available, and the lot, monument, and gravestones belonging to this family fall into a state of disrepair, and become an eyesore, through the neglect of the heirs of Mrs. More to keep them in proper condition, then the cemetery authorities, not being willing to allow such condition to disfigure the beauty of Elmwood cemetery, would be obliged to make the repairs out of funds belonging to Elmwood cemetery. It is also urged that the Security Trust Company, appointed trustee of this fund by the probate court, has no pecuniary interest in the fund, its only duty being to conserve the fund and expend the income as the needs of the lot and appurtenances require ; and that, if this legacy is not paid, the loss will come directly upon the cemetery corporation; and therefore it has a very substantial and pressing interest therein.

In legal acceptation a party is aggrieved by a judgment or a decree when it operates on his rights in property or bears directly upon his interest. 2 Cyc. p. 633; Cole v. Cole’s Estate, 125 Mich. 661 (85 N. W. 113). We agree with the circuit judge, and think there was no error in overruling the motion to dismiss.

2. Incompetent evidence. We have examined the record upon this subject and do not find that any error was committed by the trial judge in the reception of the evidence. Some of it, it is true, was rather remote, but we find no prejudicial error in its acceptance. We find there was competent evidence to support the finding of the circuit judge, and that such finding of fact should not be disturbed.

3. The third point is that there was no showing of personal property with which to pay. The record fails to disclose that this point was presented by the appellants to the trial court. No reference was made thereto in the argument and briefs, it is asserted, nor on the motion to dismiss, nor in the points of law which were presented to the court to be found, nor in the exceptions filed to the court’s findings of facts and law. We doubt if the question is before us properly. It is, in our opinion, a sufficient answer, however, that the legacy in paragraph 1 of said will is by the eighth paragraph, which we have quoted, made an express charge upon real estate therein specifically devised.

4. It is said that the payment of this $1,000 is by the will expressly charged upon certain real estate specifically devised. The same point is urged by appellee as on the last point, that the question was not raised in the court below. It seems to us, however, that it was and is the duty of the executor to raise the sum required by the said legacy, in case the same is held valid, by sale of the real estate charged therewith, by paragraph 8 of said will, or to collect the amount thereof from the devisee or his assigns. And, if it be found that said legacy is valid, the executor woqld be bound to make payment thereof, or to exhaust the security, before he could obtain his discharge and the cancellation of his bond.

5. Is the bequest of $1,000 in the first paragraph of Huldah More’s will void, because it contravenes the common-law rule against perpetuities? This presents the important question in the case. We find here a perfectly defined trust; the only omission being in naming the trustee, which omission has been supplied in the appointment, by the probate court, of the Security Trust Company as such trustee. This court said, in Penny v. Croul, 76 Mich., at page 476 (43 N. W. 651, 15 Am. St. Rep. 318):

“Had no trustee been named, the rule is familiar that a perfectly defined trust will not fail for lack of a trustee, but that a court of equity, by its general inherent jurisdiction over trusts, can supply one.”

There can be no question that the testatrix must have intended said $1,000 bequest as a perpetual trust. No other construction is possible to sustain its validity. No ultimate disposition of the fund is provided for, nor any limitation based upon lives. Counsel for appellants devotes some pages of his brief to maintain this proposition, and it must be conceded. It is undisputed by this record that the remains of the testatrix, of her husband, and of several of her children are buried in lot 162 in this cemetery, and we think the circuit court was justified in finding, there being no evidence to the contrary, that said lot constitutes the family burial lot, which was the object of her care and solicitude in making the bequest.

Elmwood cemetery was incorporated under the corporate name, “Trustees of Elmwood Cemetery,” by Act No. 62 of the Session Laws of 1849. Section 1 provides as follows:

“Be it enacted, etc., * * * that Henry Led-yard, Charles C. Trowbridge, John Owen, Israel Coe, John S. Jenness and Alexander D. Fraser, and their successors, be and they are hereby constituted a body politic and corporate, by the name and style of the Trustees of Elmwood Cemetery/ and by that name to have perpetual succession, and be capable of suing and being sued.”

Section 3 specified its powers; required the application of all moneys realized from the sale of lots, after paying the original purchase price of its land, to the care and improvement of the cemetery. The last clause of said section reads as follows:

“The said corporation may hold in trust any donation or bequest of property, and may apply the same' or the income thereof in the improvement or embellishment of the cemetery, or for the erection, repair, preservation and renewal of any tomb, monument, or fence, or for the planting or cultivation of trees, shrubs, flowers, plants, in and around any cemetery lot, or for the improvement of said premises in any other form or manner conformable to the terms of said grant or bequest.”

By Act No. 235, Local Acts of 1883, section 3 was amended by authorizing the corporation “from the sale of lots or otherwise to create a sinking fund for the purpose of producing an income for the care and maintenance of said cemetery,” which amendment re-enacted the final clause of said section above quoted.

Trustees of Elmwood cemetery thus created is not a corporation organized for profit; it has no stock or stockholders; and its accumulations, if any, can only be used in the manner prescribed by its charter, viz., for the care, improvement, and maintenance of the cemetery.

It is the claim of the appellee that the last clause of section 3 of its charter is broad enough to grant to the corporation the power to hold in trust any donation or bequest of property, and to apply the same, or the income thereof, in the improvement of the cemetery, or any burial lot therein in any form or manner conformable to the terms of such grant or bequest, even though such grant or bequest contemplated the perpetual use of the trust fund for such purpose; and that the intent of the legislature, by the use of the language thus employed, was to remove the disability then existing by reason of the common-law rule against perpetuities. That, in fact, any other construction must result in nullifying the powers therein expressed and render said clause ineffective and meaningless.

In 36 Cyc., at page 1145, referring to construction of statutes changing the common law, it is said:

“The court must assume, however, that the legislature knew the existing law, and that its purpose in enacting the statute was to make some change in the former law.”

It is worthy of notice that the clause we have referred to follows closely after section 1, which grants perpetual succession to the corporation; and it is fair to presume that the legislature must have had this in mind when section 3 was framed.

As stated in 36 Cyc., at page 1131:

“Words, phrases, and sentences of a statute are to be understood as used, not in any abstract sense, but with due regard to the context, and in that sense which best harmonizes with all other parts of the statute.”
“Notwithstanding * * * that a statute in derogation of the common law must be construed strictly, it is well settled that it must be construed sensibly and in harmony with the legislative purpose.” In re Cameron’s Estate, 170 Mich. 578, 582 (136 N. W. 451).
“In construing a statute, the legislative intent may often be ascertained from the provisions of the sections in the immediate connection in which it occurs.” In re Corby’s Estate, 154 Mich. 353, 357 (117 N. W. 906).
“When acts are pari materia, though enacted at different times and not referring to each other, they are to be taken and construed together, as explanatory of and supplemental to each other, and sustained, if possible, in order to effectually carry out the legislative intent and to produce a consistent and harmonious system.” People v. Mire, 173 Mich. 357, 365 (138 N. W. 1069).

Not only have we the statutes already referred to, but, as bearing upon gifts and donations in perpetuity for the care of cemetery lots, it is well to refer to Act No. 81 of the Public Acts of 1903 (4 How. Stat. [2d Ed.] § 10702 et seq.), being an act to provide for the care and preservation of cemetery lots. Section 1 of this act authorizes any person, by will or otherwise, to deposit not less than $50 per lot with any county treasurer, the interest only of which is to be used for the purpose of caring for testator’s cemetery lot. Then follows this proviso:

“Provided this section shall not affect any municipality or association that has at this time provision for such deposit of money and laws governing the maintenance of cemetery lots.”

It is asserted by appellee that Elmwood cemetery was at that time the only cemetery in the State enjoying the right, under legislative enactment, to accept and perform such trusts, and that this proviso evidently referred to its charter. And, in fact, appellants’ counsel notes the applicability of this proviso to Elmwood in his brief.

Section 7 of Act No. 81 provides that every county in this State having any such cemetery fund shall always be held accountable and liable for any and all such cemetery money, thus implying perpetual retention of such deposits. As showing the legislative intent, we may well refer to Act No. 209 of the Public Acts of 1903 (4 How. Stat. [2d Ed.] § 9411), adding section 15 to the “Rural Cemetery” act. Section 15 of that act provides as follows:

“All corporations established under the provisions of this act may receive and hold any grant, donation, or bequest made to them for the purpose of perpetually caring for and maintaining the lots of said donors,” etc.

It is not here claimed that Elmwood cemetery is a rural cemetery, but Act No. 209 shows the legislative intent to give rural cemeteries also power to receive grants for perpetually caring for and maintaining the lots of donors.

The legislature of 1909, by Act No. 95 (1 How. Stat. [2d Ed.] §1521 et seq.), passed an act to authorize township boards of health to receive and hold property, real and personal, left to said board in trust for the upkeep of any cemetery or lots therein. Section 2 of the act provides as follows:

“If left in money it shall, unless otherwise expressed-by those making such gift, grant or bequest, be invested as a permanent fund.”

To show the legislative intent, we might refer to 'Act No. 125 of the Public Acts of 1911 (4 How. Stat. [2d Ed.] §10700), amending title and section 1 of Act No. 122 of 1907, “relative to gifts for religious, educational, charitable and benevolent purposes,” by adding “or for the purpose of providing for the care or maintenance of any part of any cemetery, public or private, or anything therein contained.” A similar statute, passed in 1913, is Act No. 380, entitled “An act to regulate gifts of real and personal property to cities, villages and other municipal corporations, and to validate all such gifts heretofore made,” and contains in section 1 the following clause:

“All such gifts heretofore made, either by grant, devise, bequest or in any other manner are hereby declared valid, though they violate any statute or rule against perpetuities, the same as if this act had been in effect when made.”

It is urged by counsel for appellee, and we think with much force, that, applying the rules of construction as laid down in the foregoing citations, it is clearly apparent that the intent of the legislature in enacting the enabling clause in section 3 of trustees of Elmwood cemetery’s charter was to invest that corporation with the, power to accept and execute such trusts in perpetuity.

An examination of the cases cited by counsel shows that this identical question has been decided by the courts of several States.

In the State of New Jersey, by an act approved March 29, 1878 (P. L. 1878, p. 209), section 1 applies to “any cemetery association within this State existing under special statute, or by virtue of an incorporation under the general statutes of which this is a supplement.”

Sec. 2. “That any association incorporated as aforesaid may take and hold any property, real and personal, bequeathed or given upon trust, to apply the income thereof under the direction of the trustees or managers of such association for the improvement or embellishment of such cemetery, or the erection or preservation of any buildings, structures, fences or walks erected or to be erected upon the lands of such cemetery association or upon the lots or plots of any of the proprietors, or for the repair, preservation, erection or renewal of any tomb, monument, gravestone, fence, railing or other erection in or around any cemetery lot or plot, or for planting and cultivating trees, shrubs, flowers or plants in and around any such lot or plot, or for improving or embellishing such cemetery or any of the lots or plots in any other manner or form consistent with the design and purposes of the association, according to the terms of such grant, devise or bequest.”

We have quoted section 2 because of its similarity to the last clause of section 3 of the Elmwood cemetery act. This statute was passed upon in Moore’s Ex’r v. Moore, 50 N. J. Eq. 554(25 Atl. 405), in the year 1892, and it was there held that the rule against perpetuities, so far as it affected gifts made to cemetery corporations, for certain designated purposes, was abolished in that State by this statute; the vice chancellor saying:

“The design of this statute, as I interpret it, was to abrogate the rule against perpetuities, so far as that rule applied to gifts made to cemetery corporations, and to make it lawful for such corporations to hold property, acquired by gift, subject to perpetual trust for certain designated purposes.”

This is a very instructive opinion, and we regret that we cannot quote more fully from the language of the court.

Counsel for appellants refers to the case of Hartson v. Elden, 50 N. J. Eq. 526 (26 Atl. 561), in support of his contention. The distinguishing feature of the two cases is that in Hartson v. Elden the testator died in 1875, more than two years before the enactment of the statute. The chancellor in that case quotes, with approval, much of the language of Moore’s Ex’r v. Moore, supra.

In Massachusetts it was provided by statute as follows:

“Any such corporation (i. e., cemeteries) may take and hold funds upon trust, to apply the income thereof to the improvement or embellishment of the cemetery or to the care, preservation, or embellishment of any lot or its appurtenances.”

In Re Bartlett, Petitioner, 163 Mass. 509 (40 N. E. 899), the testator gave his burial lot to his executor and trustees, “who will also have charge of the homestead fund, the income of which, in part, shall be used to keep the lot and the monument always in good order.” On page 513 of 163 Mass. (40 N. E. 900), the court said:

“We think that a trust to keep the burial lot and the monument of the'J testator always in good order is under our statutes a good perpetual trust.”

Counsel for appellants refers to Bates v. Bates, 134 Mass. 110 (45 Am. Rep. 305). A careful examination of this case shows that the bequest was held void because it did not provide for the care, preservation, or embellishment of any lot or its appurtenances. The case is readily distinguished from In re Bartlett, Petitioner, supra.

In Rhode Island there was similar legislation which was construed in R. I. Hospital Trust Co. v. Town Council, 29 R. I. 393 (71 Atl. 644), and the bequest was sustained because the statute had made provision for such perpetual trust; and it was held that, a valid trust having been created by the will, the same was valid.

In the State of New York the statute is almost identical with the New Jersey statute, and one, on examination, must become satisfied that the last clause of section 3 of the Elmwood act was copied from the New York statute. This statute is construed in the case of In re Schuler’s Estate, 24 N. Y. Supp. 847. We call attention to the language of the will in that case, as well as the language of the court, where it says, referring to the statute:

“Here is a broad, comprehensive legislative enactment, as to the purpose and intention of which there can be no doubt. Its language is full and explicit, and clearly covers the purpose of the testator.”

Referring to their statute against perpetuities, the court said:

“This statute against perpetuities is general, and applies_ to all cases, except where special provision is otherwise made. The same power that created the general prohibition can authorize an exception, and determine that the general provision shall not apply. The legislative power had prohibited generally such perpetuities, and the same power has, as to cemetery corporations, removed such restriction, and bestowed affirmatively the. power and right to hold funds for the purposes specified in this will, and I see no reason why both should not stand with force, the latter as a statutory exception to the general law.”

We have examined the other cases relied upon by appellants’ counsel, but think they are either overruled or not applicable to the instant case.

This brings us to the cáse of Lounsbury v. Burial Ass’n, 170 Mich. 645 (129 N. W. 36, 137 N. W. 513). The record in that case (page 33, testimony of Robert J. Lounsbury) discloses the fact that . Noah Taylor died in the year 1885, and the certificate of the probate of his will (page 37) shows that it was probated on August 6, 1885. As the will spoke from the date of the testator’s death, there was then no statute which would relieve the bequest from the disability of the rule against perpetuities, and this court could not sustain the validity of the bequest of the $100 involved without overruling the case of Palms v. Palms, 68 Mich. 379 (36 N. W. 419). The case is thus readily distinguished from the instant case. As the trial judge well said:

“In this connection it might be asked: If a cemetery association may take a perpetual trust fund, why is it not competent to give it one, and what purpose would there be in empowering it to take, if a bequest of that character would be void if given?”

The query is answered in the Rhode Island case above cited, wherein it was said:

“As the statute has made provision for such a perpetual trust, a testator has a right to avail himself of such provision by means of a legacy to a town council for such uses in his last will.”

We have examined the other assignments of error, but think them not well founded, and are of the opinion that the learned circuit judge reached the correct conclusion.

The judgment of the circuit court is affirmed.

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