author: STONE, J.

text:
    PEOPLE v. DAY.
    Embezzlement — Executobs and Administrators — Criminal Law —Information.
    An information charging the respondent with embezzlement under 3 Comp. Laws, § 11591 (5 How. Stat. [2d Ed.] § 14646), which relates to the conversion by an agent or clerk of money intrusted to him, was improperly filed against an executor of decedent’s estate for embezzling funds which came into his hands by virtue of his office: if any offense was committed it should have been prosecuted under 3 Comp. Laws, § 11610 (5 How. Stat. [2d Ed.] § 14663), relating to embezzlement by executors and administrators.
    Exceptions before sentence from the recorder’s court of the city of Detroit;. Phelan, J.
    Submitted January 21, 1915.
    (Docket No. 128.)
    Decided March 18, 1915.

      Ebenezer Day was convicted of embezzlement.
    Reversed : respondent discharged.

      Grant Fellows, Attorney General, Allan H. Frazer, Prosecuting Attorney, and Paul W. Voorhies, Assistant Prosecuting Attorney, for the people.

      John Galloway and Henry M. Du Bois, for respondent.
   STONE, J.

An information against the respondent was filed in the recorder’s court of the city of Detroit under the provisions of section 11591, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14646), the charge being in the following language:

“That Ebenezer Day, late of the city of Detroit in said county, heretofore, to wit, on the 9th day of January, A. D. 1912, at the city of Detroit, in the county aforesaid, being then and there an agent and clerk of Edwin Becker, not being then and there an apprentice, nor other person under the age of 16 years, did, by virtue of his said employment, then and there, and whilst he was agent and clerk as aforesaid, receive and take into his possession certain money, to a large amount, to the amount of five hundred and forty ($540.00) dollars, in lawful money of the United States of America, of the value of five hundred and forty ($540.00) dollars, of the property of the said Edwin Becker, and which said money came into the possession of said Ebenezer Day by virtue of said employment, and the said money then and there fraudulently and feloniously did embezzle and convert to his own use, without the consent of the said Edwin Becker; so the said Ebenezer Day, in manner and form aforesaid, the said money, the property of the said Edwin Becker, his employer, from the said Edwin Becker, feloniously did steal and carry away, contrary to the form of the statute in such case made and provided, and against,” etc.

The plea was not guilty.

Upon the trial of the case the following facts appeared to be undisputed: That prior to the time of the alleged embezzlement the respondent had been appointed, and had qualified, and was acting, as the executor of the last will and testament of one Anna M. Anscomb, deceased; that while acting as such executor said respondent had received from said Edwin Becker a sum of money as part payment for certain real estate which had been sold to said Becker by Mrs. Anscomb in her lifetime; that the only relation which the respondent ever sustained to the said Becker in the matter, or in the transaction, was that of executor as aforesaid; that as such executor he received the money in question; and that there was no evidence that respondent was the agent or clerk of the said Edwin Becker in said transaction, or dealings, or at any time, or that he had ever been in his employ.

At the close of all the testimony, respondent’s counsel made a motion for a directed verdict in respondent’s favor, and for his discharge, for the reasons that there was no evidence that respondent had in any way acted as the agent or clerk of said Becker, or been in his employ so as to bring the case within the general statute covering embezzlement by an agent or clerk; and that, if there was any case against the respondent under the evidence, it should have been brought and prosecuted under section 11610, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14663), being

“An act to define and punish the offense of embezzlement by general and special administrators, executors or guardians.”

The motion was denied, and exception duly taken.

Respondent’s counsel also requested the court to charge the jury that under the evidence in the case the respondent was entitled to a verdict of not guilty of the charge, which request was refused. The case was submitted to the jury, and in the course of the .charge the following occurred:

“The Court: Is there anything further you want to have charged, Mr. Galloway?
“Mr. Galloway: All I have to say is this: You stated to the jury that they must find he was the agent. The converse of that would be that, if he was not the agent, what would be his position? He says himself he was not such, and Becker says he was not.
“The Court: The people charge the respondent, gentlemen of the jury, with the receiving of five hundred and forty dollars belonging to Mr._ Becker, which he misappropriated; that at the time this money came into his hands he conceived the felonious intent of converting it to his own use. That is the theory of the people, and that is what is alleged in the information. Now you are to determine the truth or falsity of that charge from all the evidence under the instructions I have given you.”

The trial resulted in a verdict of guilty, and the case is here upon exceptions before sentence.

The eighth assignment of error is to the effect that the court erred in not granting respondent’s motion, made at the conclusion of the trial, for his discharge, under the evidence as therein given. The thirteenth assignment is that the court erred in not directing a verdict in the case as requested by the respondent. The fourteenth assignment of error is that the court erred in using the language in the charge above quoted after its attention was called to the material question of agency, by respondent’s counsel. We are of the opinion that the respondent was prosecuted and convicted under the wrong statute, and that the proceeding amounted to a mistrial. There was no evidence that the respondent was the agent or clerk of the said Becker, or that he was ever in his employ, and the jury should have been so instructed. If the respondent was guilty of any offense, he should have been prosecuted under section 11610, 3 Comp. Laws. People v. Gaige, 23 Mich. 93; People v. Chappell, 27 Mich. 486; People v. Peterson, 166 Mich. 10 (131 N. W. 153).

For the errors indicated, the conviction is reversed and set aside, and the respondent discharged.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    FELTON v. WEDTHOFF.
    1. Injunction — Bond—Stating Action at Law — Preliminary Injunction.
    A bond to secure the defendant in an injunction bill against damages which may be sustained by the issuance of an order restraining the further prosecution of an action at law under 1 Comp. Laws, § 502 (4 How. Stat. [2d Ed.] § 12020), is not required in the case of a permanent injunction issued by the final decree of the court in such proceeding. The statute has reference to the preliminary injunction which may be issued upon the filing of the bill.

      )

    2. Prescription — Railroads—Payment—Presumptions.
    On review of evidence in a suit to quiet title to an easement in property which formed a part of the right of ■ way of a railroad company in a public street, also for the purpose of restraining defendants against the prosecution of an action at law for damages as abutting property owners, testimony considered and held, to raise a presumption of fact that the defendants, as well as other property owners similarly situated, had received compensation for any direct injury to their interest in the real property.
    3. Stipulations — Railroads—Right of Way — Injunction Suit— Restraining Action at Law — Quieting Title.
    Under a stipulation of the parties to an injunction bill limiting the issue to the question of defendants’ damages for the taking of a right of way in a public street by a railroad company, the defendants were prevented from contending that the complainant was asking the court to restrain a recovery of damages because of negligence or . carelessness of the railroad company, and that they were not therefore in court with clean hands as required by the rules of equity.
    4. Railroads — Prescription—Right of Way — Injunction Bill.
    In sustaining a claim by a railroad corporation to title in a public street by prescription, evidence tending to show that the city had authorized its occupation of the street and had frequently renewed or ratified the original action, and recognized the existence of such right in the corporation for a period of more than forty years, during which time the railroad had contributed taxes for special improvements and maintained crosswalks, there was no room for the contention that occupation of the highway amounted to a public nuisance.
    5. Same — Nuisance—Public Nuisance.
    The occupancy of a public street by a railroad company for a period considerably in excess of the statutory period, with the consent of the public authorities of the municipality, even if amounting to a public nuisance, might operate to pass title to an easement in the street as against the private rights of abutting property owners.
    6. Same — Highways and Streets.
    Prescriptive rights may be acquired in this State to an easement in a public street.
    7. Same — Laches.
    By sleeping upon their rights for a period of about forty-five years, the abutting owners upon the street occupied by a railroad corporation for purposes of its right of way lost any right which they may have had to the recovery of damages to their realty by reason of any increase in the servitude of the public easement.
    8. Same — Title by Adverse User.
    There is no doubt in this State that a private nuisance may become legalized by prescription.
    Error to Bay; Collins, J.
    Submitted January 8, 1915.
    (Docket No. 33.)
    Decided March 18, 1915.

      Bill by Samuel M. Felton and others, as receivers of the Pere Marquette Railway Company, against George ■E. Wedthoff and others, to restrain the prosecution of actions at law commenced against the Pere Marquette Railway Company and to quiet title. From a decree for complainants, defendants appeal.
    Affirmed.

      Bills, Parker & Shields (Gillett & Clark, of counsel), for complainants.

      Joslyn & Houghton, for defendants.
   Stone, J.

For’ a clear statement of the questions ■ and issues involved in this cause we here insert, in full, the opinion of the learned circuit judge who heard the case below:

“In this equitable action the complainants have filed a bill of complaint against the defendants to restrain them from the prosecution of a certain action at law for damages, brought by the defendant Wedthoff, as assignee of the other defendants, against the Pere Marquette Railroad Company. The complainants stand for the Pere Marquette Railroad Company which company succeeds to the rights of a railway company organized in 1867, which was succeeded by the Flint & Pere Marquette Railroad Company, the Flint & Pere Marquette Railroad Company being succeeded by the Pere Marquette Railroad Company. These various parties have a continuity of interest and succession of occupation, and will be described hereafter as the company, which term includes said companies and the complainants herein.
“The defendant George E. Wedthoff is a plaintiff in an action at law, as above stated, commenced by him on the 11th day of August, 1911, as assignee of the right of action of some 43 property holders owning property abutting on James and Jefferson streets in Bay City. These parties will be hereafter designated as the property holders. Mr. Wedthoff and the property holders filed an answer in the nature of a cross-bill to the said bill of complaint, contesting the complainants’ claims and asking that their claims for damages as abutting property holders be heard, determined, and assessed in this suit.
“James and Jefferson streets, in Bay City, were established as legal streets therein prior to 1866. In February, 1866, pursuant to proceedings before that had in the common council, the company was granted the right to construct, maintain, and operate its railway upon and along James street and Jefferson street to a point north of all of the land on said street owned by any of the defendants. The company commenced the construction of its railroad upon a right of way laid along the center of said James and Jefferson streets, and completed its construction of said railway going north to a point north of any of the land of the defendants on or prior to the 20th day of May, 1868, since which time until the present time the company has operated its railroad through the use of said track in and on said streets to carry on its railroad business, and during this time its track has been laid upon land of the property holders at the east or west sides thereof, as the case may be, to the extent of from three to five feet.
“As between the company and the property holders, and in respect to all of the property holders, the company on or before May 20, 1868, appropriated the described right of way in the center of the street upon their land, and since that time and up to the commencement of said suit, for a period of more than 42 years, it has occupied said right of way and maintained its track and operated its trains along’ the same, and for said period of more than 42 years prior to the commencement of said suit it has had actual, adverse, peaceable, open, and uninterrupted possession of said real estate, except as qualified by the city street use, and in that time has used its said track upon said right of way.
“The distinct claim of each of the defendants is for abuttal damages for the six years prior to said August 11, 1911, on the theory of the defendants that for prior years their claims are barred by the statute of limitations.
“This claim is valid, and the defendants are entitled to such damages, unless the company, either by grant or by prescription, prior to the time of the commencement of suit, acquired the legal right to the use of said right of way, or, in other words, acquired an easement upon the land of the property holders occupied by it.
“Preliminary to the statement of the main question in the case, it may be said in passing that it is an elementary principle of law that an easement may only be created by grant or by prescription, and that in law the grant of the right of way to a railroad company creates an easement on the land affected, and that an entry upon the land of another by a railroad company, followed by the construction and operation of a railroad upon such right of way, without first obtaining a grant therefor or taking such steps to condemn the land for such right of way, is an appropriation of the right of way such as to afford a right of action for abuttal damages commencing with the time of such appropriation.
“The controverted claims of the parties follow:
“(1) That it has paid for and obtained releases of the right of way from the property holders, and has a grant to said right of way.
“(2) That, if it did not obtain such grant, then prior to the time of the commencement of said action at law by the property holders, it had acquired a prescriptive easement upon and along the land covered by its track, and that therefore the property holders could not maintain its said action for damages.
“The property holders claim:
“(1) That the company has no grant of said easement.
“(2) That there can be no prescriptive easement acquired by a railroad company in a city street to defeat the claim of adjacent property holders for abutting damages.
“(3) That the company, not having acquired a grant or prescriptive easement, has been liable for continuing damages from May 20, 1868, during the whole of said period, and that the damages for that portion of said time, namely, 6 years, not barred by the statute of limitations, can be recovered in said action at law.
“It may be said in explanation of the two periods named, that the 15-year period is the period fixed by the statute of limitation affecting real estafe as being the time required to acquire by adverse possession easements and rights in real estate. The 6-year statute of limitations is that statute which precludes an action of damages, such as said suit at law, from being maintained for damages which accrued 6 years prior to the statute of limitations.
“Upon the disputed questions, I am constrained to hold that in this State an easement upon land for the operation of cars thereon in a public street may be acquired by prescription, and that the time for the acquirement of a prescriptive right commences to run from the time of the commencement of the appropriation of the right of way, where such right of way is appropriated; that as applied to this case, under the facts stated, such time commenced to run on the 20th day of May, 1868, and that the property holders’ right of action for abuttal damages was barred by the prescriptive easement of the company on the land long before the commencement of said suit at law.
“This conclusion is sustained by numerous well-considered cases decided by our Supreme Court commencing with Conklin v. Boyd, 46 Mich. 56 (9 N. W. 134), and concluding with Brockway v. Power & Light Co., 175 Mich. 339 (141 N. W. 693). These cases, either by express decision or by fair inference, decide that an easement may be acquired in real estate by fifteen years’ use under the necessary conditions in principle clearly covering railroad right of way easements in streets and in no manner excepting them from such rule. I make particular reference only to the case of Turner v. Hart, 71 Mich. 128 (38 N. W. 890, 15 Am. St. Rep. 243), which has been often cited and quoted from, the opinion in which is by Judge Champlin. In that case the court states the reason for the rule of prescriptive easements and the rule as to easement by prescription, as follows: In this State an easement founded upon prescription originates from the fact of actual, adverse, peaceable, open, and uninterrupted possession for such length of time that the law presumes that the true owner by his acquiescence has granted the easement, and that the time required to fix said (prescription) presumption is the period named by the 15-year real estate statute of limitations, and that this 15-year period commences at the time when the adverse user or occupancy commences.
“The property holders contend that their claim that no prescription for a railroad right of way can be acquired in a right of way in a city street in Michigan is supported by three Michigan cases, namely, Grand Rapids, etc., R. Co. v. Heisel, 38 Mich. 62 (31 Am. Rep. 306); s. c. 47 Mich. 393 (11 N. W. 212); Hoffman v. Railroad Co., 114 Mich. 316 (72 N. W. 167); Phelps v. City of Detroit, 120 Mich. 447 (79 N. W. 640).
“In my opinion that question was not presented to the court or passed upon in either of the above cases. In the first two cases the time for acquiring a prescriptive easement had not run before the bringing of the suit; in the third case I am advised that the defense made in the case was of the statute of limitations, as against the right to bring that action, and no defense of the prescriptive easement was made in the case. I can therefore not consider these authorities as sustaining the position contended for, and in any event would be constrained to hold that the greater weight of authority was with the line of decisions, above referred to, holding the other way.
“The company contends that it has proved that releases of right of way were given within some reasonable time after the construction of the railroad in the said streets. This contention is denied by the property holders. I do not consider it, for the conclusions above reached dispose of the case.
“A decree may be entered dismissing the cross-bill of the. property holders, and sustaining the bill of the railroad company, with costs to complainants.”

The defendants have appealed from the decree entered pursuant to the foregoing opinion.

In their brief defendants urge that complainants ought not to be granted the relief asked for, for the following reasons:

(1) That they have asked for and obtained a decree for an injunction, as against defendant George E. Wedthoff, directly contrary to the provisions of section 502, 1 Comp. Laws (4 How. Stat. [2d Ed.] § 12020).

(2) That they have wholly failed to produce proof of any payment to or settlement with the defendants or their predecessors in title, and the court will not presume payment in the absence of preponderating, or at least, some, proofs.

(3) That they have come into a court of equity, not to protect their rights to operate their railroad, which is not being questioned, but asking the court to prevent defendants from recovering actual damages inflicted, because of their negligence and carelessness. He who comes into equity must come with clean hands.

(4) That they are asking this court to declare a prescriptive right, founded, as shown by their own testimony, upon the operation of its road along a public highway without authority, contrary to the express provisions of law. The railroad, so far as being in the public street is concerned, has been a public nuisance from 1868 until 1899.

(5) That the permission of the council in 1899 is invalid until the railroad has made settlement with the property owners along the street, as provided by the only law in Michigan which authorizes a railroad to be built along a public street or highway.

(6) That to establish its prescriptive right the company asks this court, in effect, to_ set aside and reverse its rulings made in Grand Rapids, etc., R. Co. v. Heisel, 38 Mich. 62 (31 Am. Rep. 306), and 47 Mich. 393 (11 N. W. 212), and affirmed in Hoffman v. Railway Co., 114 Mich. 316 (72 N. W. 167); Wilkinson v. Dunkley-Williams Co., 139 Mich. 621 (103 N. W. 170), and Phelps v. City of Detroit, 120 Mich. 447 (79 N. W. 640).

(7) That they ask the first adjudication in the history of litigation that a railroad along a public highway, without authority, occupying not adversely or exclusively, but in common with the entire public, has acquired a title by prescription to injure and destroy defendants’ property without compensation, when complainants have had it in their power to have the damages for all times determined, and when defendants have never had and have no right now to determine or have fixed any of the damages for the future.

(8) That to grant the relief prayed for and given by the court would be, and is, to say to these defendants:

“Under our repeated decisions you have never had any right to bring suit for the damages that may accrue to you in the future; you have never had and could not have had a day in court for those damages. Because you have waived the past damages, you may not now recover the future damages.”

These positions are very strongly stated, and, if supported by the authorities, defendants ought to prevail here. We think, however, that the positions taken by defendants are not all warranted under the authorities, as we find them.

1. We have never understood that the provisions of section 502, 1 Comp. Laws, requiring a bond to be given to have injunction to stay trial of action in a court of law, applied to a permanent injunction issued by the decree of the court at the hearing. We had supposed that it referred to preliminary injunction, and such we think has been the understanding of the profession. Carroll v. Bank, Har. Ch. (Mich.) 197; Lawton v. Richardson, 115 Mich. 12 (72 N. W. 988).

2. It is the position of defendants that complainants have wholly failed to produce proof of any payment to or settlement with the defendants or their predecessors in title. We have read very carefully the entire record in this case, and are unable to agree with defendants’ position upon this point. The documentary evidence, taken in connection with the testimony, especially of the witness William Wéstover, shows strong circumstantial proof to the effect that appellants’ predecessors in title were actually compensated for the right of way. The evidence is very convincing that at least some of the parties, who are in the same category as those represented here, were compensated. We think at least a strong presumption of fact has been raised that all who were in like circumstances were alike dealt with. It may be said that no one of the details is individually controlling, but in combination they create a very strong presumption of fact.

8. In the light of this record we hardly know what counsel for defendants mean by their third proposition. Turning to the record, we find the following stipulation signed by the attorneys for both parties in the law case:

“That plaintiff claims no right to recover damages in this action for any misconduct or negligence of the defendant in the operation of its railroad, but merely for abuttal damages based upon the claimed occupation and use for railroad purposes of the highway in front of the above described premises."

Before the chancery case came on for hearing, a further stipulation was entered into between the parties, defining the main question at issue, and providing that it alone should be controlling. This stipulation is very broad, and wé quote only the following language, referring to the record for the remaining portion of the stipulation:

“In view of the fact that the proof of defendants’ damages will necessitate the taking of voluminous testimony, with a needless waste of time and expense in case it should thereafter be determined that no such damages are recoverable, and that it is to the interest of all parties that their rights in respect to ownership, use, and occupation of Jefferson street (hereinafter referred to as the main question) be finally determined before the taking of any proofs on the question of damages.”

The stipulation provides, then, for the taking of testimony with reference to the rights of the parties upon the main question and the submitting of those matters to the court for hearing and decree. An examination of the decree entered in the court below will disclose that it does not assume to restrain actions for any negligence of operation, past or future. The decree merely quiets, as to the defendants, the title to the Pere Marquette Railroad Company to a right of way down the streets in question, and provides against interference by defendants with the occupation of those streets as a right of way. We are unable to find anything in the decree that can be construed to prohibit actions arising out of past or future negligence of operation. Complainants assert, in their brief, that appellants are at liberty to commence any action which they see fit, based upon the ground of negligence or carelessness.

4. An examination of the record discloses that the railroad company constructed its road and has always operated it by permission of the public authorities of the city of Bay City. We are led to the conclusion that the permission granted was not only lawfully granted, but by the action of the council of the city has been renewed and affirmed and ratified upon numerous occasions. The important thing to be established is the existence of the municipal permission, not its validity; and even a tacit permission may be effectual, and in view of the operation of this road in the streets for upwards of 40 years with the consent and approval of the public authorities, and in view of the frequent and substantial contributions from the treasury of the company toward the maintenance of pavements, crosswalks, etc., many of them for the benefit of the abutting property owners, the claim that the railroad is, and always has been, a public nuisance cannot be sustained.

5. The consent of the abutting property owners has nothing to do with the validity of a public franchise as such. Even if the occupancy of the streets constituted a public nuisance, such occupancy would support an acquisition of prescriptive rights against individual abutting property owners. Courts of high authority have held that the rule against the creation of a prescriptive public nuisance must be limited to cases where the private person sustaining the injury, claims under and by virtue of the public right, and that a private nuisance may be prescribed for, notwithstanding the fact that it may be a public nuisance as well. See 21 Am. & Eng. Ene. of Law (2d Ed.), pages 733, 734, and the many cases there cited; Charnley v. Power Co., 109 Wis. 563 (85 N. W. 507, 53 L. R. A. 895). It follows, from the authorities above cited, that even if this railroad constituted a public nuisance (which is denied), that fact would not prevent the acquisition of a prescriptive easement as against the private damage claims of the abutting property owners.

6. We do not agree with counsel for the defendants in their sixth proposition, for the reason stated by the learned circuit judge in his opinion. The cases cited by defendants’ counsel can be readily distinguished from the instant case; and if the position of counsel is correct, the doctrine of prescriptive right to an easement must be held not to prevail in Michigan. The contrary doctrine has been too often asserted in this court to make it necessary to cite cases. The last one upon the subject is that of Walton Cranberry Co. v. Seamon, 171 Mich. 98 (137 N. W. 147).

7. As we understand it, all that the complainants ask in this case is a confirmation of the present right coextensive with its past user. That the abutting property owners had at all times prior to the ripening of complainants’ prescriptive title the right and power to test the validity of their claims, either by an injunction suit or by the commencement of an action to recover past damages either actual or nominal, is not questioned. What we do hold is that by sleeping on their rights, if they had any, for nearly 45 years, they have lost all ground of complaint.

8. The conclusion of the court below, in which we fully concur, is that the abutting owners (if their claims were originally valid) had for 15 years the right to bring suit for their past damages, and at the same time could have stopped future damages by injunction. But by sleeping upon these rights, while the complainants have been every day using the streets in question, they have lost any right which they might have exercised. The rule contended for by appellants would destroy the existence of everything in the nature of a prescriptive easement. This court has in many cases sustained the validity of prescriptive easements. The following additional cases are more or less in point upon this subject: Conklin v. Boyd, 46 Mich. 56 (9 N. W. 134); Ward v. Railroad Co., 62 Mich. 46 (28 N. W. 775, 785); Gregory v. Bush, 64 Mich. 37 (31 N. W. 90, 8 Am. St. Rep. 797); Cornwell Manfg. Co. v. Swift, 89 Mich. 503 (50 N. W. 1001); Hoag v. Place, 93 Mich. 450 (53 N. W. 617, 18 L. R. A. 39); Leidlein v. Meyer, 95 Mich. 586 (55 N. W. 367); Williams v. Barber, 104 Mich. 31 (62 N. W. 155); Wesson v. Tolsma, 117 Mich. 384 (75 N. W. 941); Moon v. Mills, 119 Mich. 298 (77 N. W. 926, 75 Am. St. Rep. 390); Chase v. Middleton, 123 Mich. 647 (82 N. W. 612); Oneida Township v. Allen, 137 Mich. 224 (100 N. W. 441); Bean v. Bean, 163 Mich. 379 (128 N. W. 413).

Under the authorities there is not the slightest doubt that a private nuisance may be legalized by prescription. See, also, 29 Cyc. p. 1206 et seq., and the numerous cases there cited.

The decree of the circuit court is affirmed, with’ costs to the complainants.

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


author: Kuhn, J.

text:
    SPENCER v. JOHNSON.
    1. Intoxicating Liquors — Civil-Damage Action — Damages — ■ Husband and Wife — Services for Nursing — Recovery.
    In an action by a wife against retail liquor dealers for injury to person, property, means of support, or otherwise (2 Comp. Laws, § 5398; 2 How. Stat. [2d Ed.] § 5074), the wife is entitled to recover the value of her services in nursing her husband who suffered injuries during a fit of intoxication.
    2. New Trial — Jury—Separation of Jury — Motions.
    As ground for a motion for a new trial, affidavits showing that, after the jury had retired in the evening to consider their verdict, one of the members of the panel became seriously ill and by order of the court was removed from the jury room to the room of the circuit judge, where there was a couch and where he was attended by a physician in the presence of the judge, being returned to the jury room for a short period thereafter, and being taken again to the judge’s room, apart from the remainder of the jury, for a short time the next day, in the absence of any claim that any of the jury were subjected to improper influence, did not establish any prejudicial error and warranted the circuit judge in denying a new trial. ° The mere fact of separation from the jury for a short period of time without evidence of some abuse or misconduct is not ordinarily, in civil cases, sufficient reason for setting aside a verdict, and judgment.
    3. Same — Trial.
    While the defendant was entitled to the participation of all of the members of the jury in the deliberations, and it is proper and advisable, when necessary to withdraw one of the jurors, because of his disability or indisposition, to instruct the remaining jurors to avoid further discussion of the case during his absence, failure to so instruct was not as matter of law sufficient ground to require the granting of a new trial.
    4. Trial Argument — Conduct of Attorney.
    Upon the trial of a civil-damage action, brought by a wife against a number of retail liquor dealers for inducing the intoxication of her husband, during which an accident occurred and an injury was received, argument of plaintiff’s counsel that the defendants who were in this kind of business unfurled a black flag, saying: “We prefer the dollar to the life of the human being; we prefer the dollar to the feelings of the wife and mother; we prefer the dollar to the poverty and penury it causes; ” while intemperate, was sufficiently corrected by the court’s interposing and advising the jury that the statement should not be considered; and a new trial was not rendered necessary by reason of the misconduct of counsel.
    5. Appeal and Ebbok — Exceptions—Argument.
    Unless a ruling upon an improper remark of plaintiff’s counsel is requested by defendants’ attorney, and an exception taken to the ruling, the alleged misconduct will not be reviewed upon error.
    6. Same.
    Nor was prejudicial error committed by plaintiff’s counsel in referring to the suffering which her husband endured as a result of his accident when it appeared from the record that the court again interposed and instructed the jury not to consider any suffering which he underwent.
    Error to Montcalm; McDonald, J., presiding.
    Submitted January 18, 1915.
    (Docket No. 122.)
    Decided March 18, 1915.
    Case by Myrtle Spencer against Peter L. Johnson and others for injuries to her property and rights by unlawful sales of intoxicating liquors to her husband. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Charles L. Rarden, N. O. Griswold, and A. F. Bunting, for appellants.

      R. A. .Hawley, for appellee.
   Kuhn, J.

The facts in this case were sufficiently stated in the opinion of this court when the case was here before, reported in 176 Michigan, page 278 (142 N. W. 582). On a retrial, the jury rendered a verdict in favor of the plaintiff in the sum of $3,000. Judgment being duly rendered thereupon, the case is again brought here by writ of error.

On this trial the plaintiff introduced testimony showing that on the night of the accident, March 9, 1910, she went to the bedside of her husband at the hospital in Greenville, Mich., and remained with him there approximately five weeks, during which time she assisted in caring for and nursing him. Her testimony further showed that since leaving the hospital she had been compelled to care for him occasionally up to the time of the trial. She testified that her services while at the hospital were worth $2 a day. With reference to this service, the court, in charging as to the measure of damages, said to the jury:

“There has also been evidence of services performed by the plaintiff in nursing her husband after his injury. If she is entitled to recover in this case, and you find that she has performed such services, you should allow her what the evidence shows such services to be reasonably worth.”

The statute under which this action is brought provides that:

“Every wife, child, parent, guardian, husband, or other person, who shall be injured in person or property, or means of support or otherwise, by any intoxicated person, or by reason of the intoxication of any person, or by reason of the selling, giving or furnishing any spirituous, intoxicating, fermented, or malt liquors, to any person, shall have a right of action in his or her own name,” etc. Section 5398, 2 Comp. Laws; 2 How. Stat. (2d Ed.) § 5074.

Counsel for appellee contends that the charge of the court was justified by the opinion of this court in Spencer v. Johnson, supra, in which case Mr. Justice Brooke, speaking for the court, said:

“Evidence was admitted of the value of plaintiff’s services in assisting to nurse Spencer while he was in the hospital. This testimony was admissible under the authority of Thomas v. Dansby, 74 Mich. 398 (41 N. W. 1088).”

And later:

“The value of plaintiff’s services in nursing her husband was a proper element to be considered by the jury.”

Counsel for appellants, in their briefs, have in a well-prepared argument sought to demonstrate that it was not the intent of this court by this opinion to hold that the wife can recover the full value of her services in nursing her husband as a substantive part of her damages, and that the value of the wife’s services in nursing should be treated in the same way as the earnings of the husband and the doctor’s bill, and that the court meant that the evidence with reference to the nursing was admissible only as bearing upon the length of time the plaintiff might be deprived of her customary support.

We cannot, however, agree with this contention of counsel, as it was the opinion of the court when the case was here before — and the language of the opinion, we believe, so holds — that by virtue of the statute above quoted, the wife is entitled, in an action of this kind, to recover for the value of her services in nursing such an amount as the jury would find they were reasonably worth. It is clear that she was compelled to do labor which she would not otherwise have been compelled to do, and in our opinion the legislature, in using the word “otherwise” in the statute, intended to provide compensation for this very kind of service. In the case of Thomas v. Dansby, supra, this court said:

“The additional care in nursing the plaintiff was compelled to bestow upon her husband by reason of the injury is one of the elements of damages which she is entitled to recover.”

In the case of Radley v. Seider, 99 Mich. 481, 433 (58 N. W. 366), it was held that the expression “or otherwise” in the statute was broad enough to permit the wife to recover for injury to her feelings. Friend v. Dunks, 37 Mich. 25; McNetton v. Herb, 158 Mich. 525, 529 (123 N. W. 17).

In support of a motion for a new trial, it was shown by affidavits that the case was submitted to the jury under charge of the court in the afternoon of January 29, 1914, and that after the jury had retired to the jury room in charge of an officer, at about the hour of 10 o’clock in the evening of that day, one of the jurors became seriously ill, and by order of the court was removed by the officer in charge of the jury to a room called the circuit judge’s room, where there was a couch. He remained there for several hours, separate from the other jurors, and was visited by a physician, who attended him in the presence of the judge. After midnight the juror was again returned to the jury room, where the other jurors were, and remained there about two hours. He was then again taken by the officer to the judge’s room, where he remained apart from the other members of the jury until about an hour before the jury was taken to breakfast, on the morning of the 30th of January, and while the other jurors were at breakfast he was locked up in the jury room. It is urged that by reason of this separation the trial judge should have granted a new trial, because the defendants in this case had the right to have every member of the jury participate in the deliberation and the discussion of the facts and circumstances of the case, and that as the juror in question was separate and apart from the other jurors several hours during the night, they did not have the benefit of his participation in the discussion and argument which took place during that time; also that they are entitled to have 12 jurors deliberate' upon the case who are in a physical condition to perform every duty as a juror. The facts with reference to the separation of the jurors were shown to the court by affidavits of the juror who was ill, other members of the jury, the officer in charge, the physician, and one of the counsel for defendants.

It is the universal rule that the verdict of the jury cannot be impeached by the affidavits of jurors showing misconduct in the jury room. In re Merriman’s Appeal, 108 Mich. 454, 463 (66 N. W. 372), holds that as to the question whether any influence is exerted by one of the jurors unduly upon his fellows, or whether his conduct indicates bias, public policy forbids the proof of such claim by the affidavits of fellow jurors, and that the same rule extends with equal force to facts known only to the jurors, which occur during the trial, whether they occur in or out of the jury room. Wixom v. Bixby, 127 Mich. 479 (86 N. W. 1001); City of Battle Creek v. Haak, 139 Mich. 514, 527 (102 N. W. 1005); People v. Swift, 172 Mich. 473, 491 (138 N. W. 662). It is not stated in the affidavits, nor claimed in the motion or otherwise, that any of the jurors were subjected to improper influence. It must be admitted, however, that the situation here presented is not without some difficulty.

The general rule with reference to the separation of jurors after the submission of a case is thus stated in 17 Am. & Eng. Enc. of Law (2d Ed.), pp. 1227, 1228:

“It has been held that after the submission of the cause to the jury, the jurors should not be permitted to separate without the consent of the parties. In some cases; however, it is considered proper to allow a separation during the deliberation; and if the counsel do not object to the order of court to that effect, consent to the order will be implied. Though it is cause for a new trial if the separation is such as to furnish a ready opportunity for communication with other persons, a new trial will not be granted if it appears that there is no probability of prejudice. That the statute requires the jurors to be kept together by the officer until agreement or discharge has been held not to necessitate a new trial in case of their separation, unless there is a showing of prejudice.”

The same authority, page 1251, says:

“The court may, in its discretion, allow proper medicine and medical attendance 'to be furnished to the juror. That the sick juror is separated from the others does not affect the validity of the proceedings .if he is not tampered with; and that a physician was with the juror was held to be immaterial, where the other jurors were in an adjoining room with the door open. It is proper for the court to put a juror in charge of a sworn officer to enable him to consult a physician, and the court may provide for the comfort of the sick juror by allowing him to lie down during the remainder of the proceedings.”

In 2 Thompson on Trials (1st Ed.), p. 1906, it is said:

“From the foregoing, it follows that the mere fact of the separation of the jury pending a civil trial, or the trial of a misdemeanor, in some jurisdictions without reference to the nature of the case, especially where the separation consists of the temporary absence of a single juror, unless there are other circumstances of misconduct or abuse, will be no ground for a new trial. But in other jurisdictions, the opposing rule, applied for the most part in capital cases, obtains, that such a separation creates a presumption against the integrity of the verdict, and will be ground for a new trial, unless it affirmatively appear that the jurors were not thereby subjected to any improper influence. The State fails to do this, when it does not account for all the period of his separation from his fellows, if it was at a time and place where he might have been improperly approached.”

An examination of the authorities generally indicates that in order to warrant the granting of a new trial under such circumstances, it must be shown that the separation was prejudicial, or that the facts of the separation were such that a presumption would arise that there was prejudice, in that the juror might have been improperly approached. City of New Albany v. McCulloch, 127 Ind. 500 (26 N. E. 1074); Edward Thompson Co. v. Gunderson, 10 S. D. 42 (71 N. W. 764); Nichols v. Nichols, 136 Mass. 256; People v. Buchanan, 145 N. Y. 1 (39 N. E. 846); Waller v. People, 209 Ill. 284 (70 N. E. 681); People v. Bonney, 19 Cal. 426; Stout v. State, 76 Md. 317 (25 Atl. 299).

The facts here presented do not show that the juror was subjected to improper influence, and we are of the opinion that they do not raise any presumption that he was. During the entire time of separation he was in charge of a sworn officer of the court, and in fact during the first separation, when the physician was present, the trial judge was also present.

There is force, however, in the contention of counsel that the litigant is entitled to the participation of all the jurors in the deliberations of the jury; and as soon as it became apparent that it was necessary to separate one of the jurors from the others because of physical indisposition, it unquestionably would have been a proper course to instruct the jury that during the time of such separation further discussion of the case should be dispensed with. However, we are not satisfied that the failure to give this instruction would warrant us in saying as a matter of law that a new trial must necessarily be granted. The trial judge, upon a motion for a new trial, found:

“The mere fact that because of sickness one of the jurors was temporarily separated from the jury during their deliberations did not operate to the defendants’ prejudice.”

With this we are inclined to agree, and therefore refuse to reverse the case on this ground.

Error is assigned because of improper argument of counsel for plaintiff. In his closing argument to the jury, he said:

“These men that go into that kind of business unfurl the black flag; they go into that kind of business saying that, ‘We prefer the dollar to the life of the human being; we prefer the dollar to the feelings of the wife and mother; we prefer the dollar to the poverty and penury it causes.’ ”

It does not appear that this language was used with reference to persons engaged in the liquor business generally, or to those who are conducting that business in compliance with the law. Under plaintiff’s theory and the proofs of this case, these defendants were violators of the law, and it must be said that the language used referred to these men when violating the law. Admitting that the language was somewhat intemperate, when the attention of the court was called to it he said:

“I think, Mr. Hawley, that statement should not be taken. I will instruct the jury not to consider it.”

If it can be said that this argument is improper we are of the opinion that the instruction of the court then and there given corrected it.

The following also appears in the record:

“Mr. Bunting: I desire an exception to the statement of Mr. Hawley that this woman has a sober man for a son, and she is entitled to a sober example to the son she gave birth to.”

The record does not disclose in what connection this argument was used, nor does it appear that when it was made the court was asked for a ruling upon the language and a request made to give instructions with reference thereto to the jury. Unless a ruling is requested of or made by the trial court, an assignment of error based upon an exception to improper argument will not be reviewed. See Pierson v. Railroad Co., 149 Mich. 167, 172 (112 N. W. 923); Formiller v. Railway, 164 Mich. 653, 661 (130 N. W. 347); Meade v. Railway, 165 Mich. 489, 493 (130 N. W. 1114); People v. Sartori, 168 Mich. 308, 317 (134 N. W. 200); Crane v. Ross, 168 Mich. 623, 632 (135 N. W. 83); People v. Danenberg, 176 Mich. 337 (142 N. W. 347); Marx & Son v. King, 177 Mich. 662, 667 (144 N. W. 553); Eberts v. Sugar Co., 182 Mich. 449 (148 N. W. 810).

A reference of counsel to the suffering of plaintiff’s husband was immediately and properly corrected by the court’s saying:

“I have no doubt but counsel meant all right, but I don’t want any misunderstanding in regard to this matter, and the exception is well taken, and counsel will try and avoid any reference to suffering, because the jury cannot consider that, and I will tell you more about it when I get to considering my final instructions.”

We have examined the other assignments of error, and are satisfied that no prejudicial error was committed by the court with reference thereto.

The judgment is affirmed.

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


author: Brooke, C. J.

text:
    MORTON v. DE YOUNG.
    Partnership — Accounting—Salary of One Partner — Appeal and Error.
    Evidence considered, in a suit between members of a partnership, to determine the right of one to compensation for his services, and held, to sustain the conclusion of the circuit judge awarding in the decree a salary of a stated amount; the case being held to belong to that class of disputed questions of fact as to which the conclusion of the circuit judge who heard and saw the witnesses is entitled to especial weight and is therefore controlling.
    Appeal from Bay; Collins, J.
    Submitted January 17, 1915.
    (Docket No. 92.)
    Decided March 18, 1915.
    Bill by Omar J. Morton against John J. De Young for an accounting and dissolution of partnership. From a decree in favor of defendant, complainant appeals.
    Affirmed.

      Stoddard & McMillan, for appellant.

      Cooley & Hewitt, for appellee.
   Brooke, C. J.

The learned trial judge who heard this cause filed a written opinion therein as follows:

“These parties were partners in business from August 1, 1908, until the dissolution of the partnership subsequent to the filing of the bill in this case on March 8, 1913.
“During all of the time the defendant was the general manager of the business. The complainant at no time took any part in the business management, although he was open and ready for advice and assistance when called upon, and at times gave advice in matters' in and about the business. It is undisputed that complainant’s salary for a short time after August 1, 1908, to January 1, 1909, was $15 per week, and that during the year 1910 the complainant was entitled to a salary of $100 per month.
“Defendant drew a salary from January 1, 1910, until the dissolution of the partnership, at the rate of $100 per month, which the defendant claims he is entitled to. The complainant contends that from and after January 1, 1911, the defendant was not entitled to any salary at any amount.
“The business, while not a large one, has been a prosperous business for the amount invested, and on dissolution has repaid the amount advanced, with good additions. This fact is not a controlling fact in the case, but it is a circumstance which may be fairly considered in disposing of the whole question.
“The law applicable to the case, so far as the compensation of partners is concerned, is undisputed and plain. No partner in a partnership is entitled to compensation, unless there is a special agreement between the partners authorizing such compensation, or unless the facts and circumstances are such that such an agreement may be fairly inferred, and this rule of law is the law of this case.
“On the other hand, where it clearly appears that one partner has performed substantially all of the labor of managing and carrying on the partnership, such circumstance affords an equitable basis and claim for compensation. This is not controlling, and does not modify the rule of law above stated, but it is a circumstance to be considered in adjusting the rights of the parties.
“By the agreement of both parties the defendant was entitled to some compensation as the manager of the business up until January 1, 1910. According to the testimony, the services 'rendered by him were such as to equitably entitle him to a reasonably fair compensation.
“I have carefully gone over all of the evidence in the case and weighed and considered the same, together with the attendant circumstances, as established by the testimony, and the reasonable and fair inferences to be drawn therefrom, and have reached the conclusion that the defendant is entitled to the $100 per month until the time of the dissolution of the partnership.
“A strong circumstance in the case is the fact that compensation was fixed at $100 per month, which would leave the burden of proof upon the complainant to prove that that fixing of salary had been modified or changed. I do not believe that the greater weight of the testimony so shows.
“There is much conflict in the testimony, and many circumstances are brought in tending to increase such conflict. Each of the parties have the reputation of being high class, honorable, truthful business^ men, and I believe them to be so, and believe that their disagreement as to the transaction rests in a misunderstanding of terms and different recollections of the same transactions.
“A decree should be entered in accordance with this opinion, but without costs.”

We have read the record, which is short, with care, and have reached the conclusion that the trial court properly determined the single issue presented. The case at bar is one peculiarly within that class where, upon a disputed question of fact, the conclusions reached by the trial court should not be disturbed, unless plainly erroneous, because of the fact that he had an opportunity of seeing and hearing the witnesses upon the stand and of noting their manner as the testimony was introduced.

We have not overlooked the strenuous contention made by counsel for appellant that the burden of proof resting upon complainant was fairly borne by him, but are still constrained to hold that the decree entered in the court below was just.

It is therefore affirmed.

McAlvay, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.