author: Grant, J. Montgomery, J.

text:
    Julia Rice v. Parley H. Rice.

      ■Jurors — Competency—Witnesses—Impeachment—Alienation of husband’s affections — Evidence—Instructions to jury — Damages.
    .1. The sources of a juror’s information are important in determining his qualifications; citing People v. Barker, 60 Mich. 387.
    :3. A juror in a civil case testified on his vopr dire that he had known both parties intimately for a long time; that he had talked with many different persons about the case, but had not discussed its merits; that the persons talked with had expressed an opinion to him, and he had also expressed an - opinion based upon what he had heard; that he had formed a sort of an opinion, which it would take some evidence to remove, if what he had heard was true, but that it was not so fixed that he would not be governed by the evidence. On -cross-examination he testified that he did not know as he had formed any opinion upon the merits; that he might have formed some impression; that he presumed he could not try the case as impartially between the parties as if he had not heard of it and formed said impression. It did not appear that the juror had conversed with either of the parties or their friends, or with any one having knowledge of the facts. And it is held that the juror was not legally disqualified.
    $. Where it is sought to impeach a witness by proving his contradictory statements, time, place, and person must be fixed by the impeaching question, and the language which it is claimed the witness used must be given, and he be asked if he used it, and the same question, so far as the language used is concerned, must then be asked of the impeaching witness.
    4. Plaintiff sued her father-in-law for alienating her husband’s affections. Plaintiff and her family were Catholics, and her husband and his family were Protestants. Neither family favored the marriage. And in reversing a judgment in favor of the plaintiff it is held:
    a — Evidence of the defendant’s statement, made in the presence of the plaintiff and her aunt, that “ he would rather see his son dead than living with a Catholic,” was competent; but his further statements, derogatory of a picture of the Virgin Mary, which was hanging upon the wall in plaintiff’s house, were incompetent.

      b — It was not competent to ask plaintiff, on her cross-examination, if she did not know that her church did not recognize as binding a marriage between a Protestant and a Catholic when solemnized by a Protestant minister, nor to ask plaintiff’s sister, who was sworn as a witness in her behalf, if she did not know that in the Catholic church the marriage-meant no salvation for the plaintiff* and if the witness did not object to that, for the purpose of rebutting the testimony of plaintiff and her sister that plaintiff’s family did not object, to the marriage, such proposed testimony being too remote for that purpose.
    c — The testimony of the defendant’s wife as to her objections, to the marriage had no bearing upon the issue, and was properly excluded.
    d — Questions put to defendant’s wife on cross-examination, assuming that the witness had testified that the extent of plaintiff’s sinning at a certain time against defendant's household was by again attending church, and asking her if she-did not think a person in this country ought to be allowed, under reasonable restrictions, to embrace whatever religion seemed to him or her proper, should have been excluded.
    e — A statement made by defendant’s wife in a conversation had by her with a- third party after the separation of the plaintiff and her husband, to the effect that he would not return to plaintiff, did not naturally tend to show ill feeling or prejudice against the plaintiff, and was not competent as-affecting the credibility of the witness.
    / — Any testimony from plaintiff’s husband against her was-within the prohibition of 3 How. Stat. § 7546, the provisions of which could not be avoided by the fact that plaintiff had testified to conversations and acts on the part of her husband in the presence of the defendant, as, had he been permitted to testify to these conversations to contradict her, he would have-been a witness against her, which he could not be unless he came within the exceptions of the statute.

    g — The jury were properly instructed that it was not the duty of the defendant to advise his son not to separate from the plaintiff; that if the son had made up his mind to leave plaintiff if she rejoined her church, and, finding that she had done so, set about leaving her, and the defendant, while the son was so doing, advised him that he thought it was best for him to do so before they had children, there was no liability; that the jury must find that plaintiff’s husband separated from her because the defendant alienated his affections; that he-had the right to object to his son’s marrying a Boman Catholic; that he had the right to advise his son that it would be unwise for him to live with plaintiff if she again joined the church; and that any advice given by defendant to his son after the separation would not afford a cause of action; citing Hutcheson v. Peck, 5 Johns. 196.
    h — It was not error to refuse to instruct the jury that the defendant must have been the sole cause of the separation, as it would be sufficient if he was the effective cause, and the fact, if shown, that defendant’s wife used her influence in the same direction would not relieve the defendant from the consequences of his own conduct.
    i — Defendant’s request for an instruction that there was no testimony entitling plaintiff to recover more than nominal damages, and that there were no facts upon which the jury could determine what, if any, loss plaintiff had sustained, either of the society, assistance, or support of her husband, was properly refused, for the reason that it left out entirely the damages resulting from mental anguish, mortification, and injured feelings, which damages, as also those recoverable for the loss of society of plaintiff’s husband, were not capable of accurate measurement, and it was not necessary to introduce evidence of value.
    J — It was error to allow the jury to award damages for loss of support, there being no evidence of the value of the same.
    Error to Kalamazoo. (Buck, J.)
    Argued January 11, 1895.
    Decided March 19, 1895.
    Case. Defendant brings error.
    Keversed.
    The facts are stated in the opinion.

      Osborn, Mills & Master, for appellant.

      James H. Einnane and Howard & Boos, for plaintiff.

       See note at end of opinion.

        •COMPETENCY OF HUSBAND AND WIFE AS WITNESSES FOR OR AGAINST EACH OTHER IN CIVIL CASES.

      The following note summarizes the legislation and collects the cases bearing upon the subject suggested in the above heading:
      SUMMARY OF LEGISLATION.
      1. Act No. 125, Laws of 1861, taking effect March 11,1861, which made the parties to suits competent witnesses, contained the following provision:
      “A husband shall not be examined as a witness for or against his wife without her consent, nor a wife for or against her husband without his consent; nor shall either, during the marriage or afterwards, be, without the consent of both, examined as to any communication made by one to the other during the marriage; but in any action or proceedings instituted by the husband or wife in consequence of adultery the husband and wife shall not be competent to testify.”
      2. Act No. 84, Laws of 1869 (How. Stat. § 7546), taking effect July 5, 1869, amended the 1861 statute so as to make it read as follows:
      “A husband shall not be examined as a witness for or against his wife without her consent, nor a wife for or against her husband without his consent, except in eases where the husband or wife shall be a party to the record in a suit, action, or proceeding where the title to the separate property of the husband or wife so called or offered as a witness, or where the title to property ■derived from, through, or under the husband or wife so called or offered as a witness, shall be the subject-matter in controversy or litigation in such suit, action, or proceeding, in opposition to the claim or interest of the other of said married persons, who is a party to the record in such suit, action, or proceeding, and in all such eases such husband or wife who makes such claim of title, ■or under or from whom such title is derived, shall be as competent to testify in relation to said separate property and the title thereto, without the cpnsent of said husband or wife who is a party to the record in such suit, action, or proceeding, as though such marriage relation did not exist; nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage; but in any action or proceeding instituted by the husband or wife in consequence of adultery the husband and wife shall not be ■competent to testify.”

        1 As to their competency in criminal cases, see People v. Gordon, 100 Mich. 518, and note.

        3. Act No. 155, Laws of 1883 (How. Stat. § 6260), taking effect September 8, 1883, amended the statute as found in the Revised Statutes of 1846, which provides that “no decree of divorce, or of the nullity of a marriage, shall be made solely on the declarations, confessions, or admissions of the parties, but the court shall, in «11 eases, require other satisfactory evidence of the facts alleged in the bill for that purpose,” by striking out the words, “or of the nullity of a marriage,” and adding the clause, “but either party may, if he or she elects, testify in relation to such facts: Provided, however, that the testimony of either party to the action shall be “taken only in open court, and that such testimony shall not be re■ceived in support or in defense of a charge of adultery.”
      4. Act No. 211, Laws of 1885 (3 How. Stat. § 7546), taking ■effect September 19, 1885, excepted from the operation of the statute eases where the cause of action should grow out of a personal wrong or injury done by the husband to the wife or by the wife to the husband, or out of the refusal or neglect of the husband to furnish the wife or children with suitable support within the meaning of Act No. 136, Laws of 1883.
      GENERAL RULES APPLICABLE TO THE SUBJECT.
      For eases construing the statute generally, see:
      1. Hunt v. Eaton, 55 Mich. 362, 366, holding that the statute •aims to protect all those private confidences which the relation of husband and wife holds as sacred, the disclosure of which might introduce strife, malevolence, and discord into the married life, and includes every communication between them other than such as involves the title to the separate property of either when, it becomes necessary to resort to litigation to obtain, secure, or protect the rights of either to such separate property.
      2. Carter v. Hill, 81 Mich. 275, 279, holding that the statute was intended to subserve a wise public policy; that its purpose is to preserve with saeredness the confidences of the marriage state, and to render it impossible for either husband or wife to speculate upon the other’s dishonor, relying upon their own testimony to make or support a case; that such purpose is salutary, and it is the duty of the courts to see that the statute is not disregarded.
      ILLUSTRATIVE CASES.
      For cases applying the statute, or some portion of it, to a given state of facts, see:

        Grim. Oon. Gases.

      1. Egbert v. Greenwalt, 44 Mich. 245 (decided October 6, 1880), where the testimony of the husband and wife was received for the purpose of showing that they had no sexual intercourse at the time the child, which the husband alleged was the fruit of the unlawful intercourse, was begotten, and that the wrongful act of the defendant must have been the occasion of the wife’s condition-And it was held that the evidence was not admissible.
      2. Mathews v. Yerex, 48 Mich. 361 (decided June 7, 1882), and Reynolds v. Schaffer, 91 Mich. 494 (decided May 6, 1892), holding that a wife, during the continuance of the state of marriage, is. not a competent witness for her husband in a suit brought by him for criminal conversation.
      3. Perry v. Lovejoy, 49 Mich. 529 (decided January 5, 1883), holding that the rule of the common law, making a wife absolutely incompetent to testify in an action brought by the husband for enticing the wife away and alienating her affections, is modified by the statute so as to make her competent (if the charge of adultery is not involved) in case the husband consents to her testifying, but without such consent the common-law rule remains unchanged.
      4. Gleason v. Knapp, 56 Mich. 291 (decided April 9, 1885), where a wife, after securing a divorce, remarried. The first husband sued the second husband for criminal conversation. And it was-held that the wife’s divorce proceedings, being followed by a decree which established that she had a sufficient cause of grievance at the earliest date when plaintiff attempted to show any grievance, must be regarded as a bar to any cause of action for that, grievance, if it existed; that, if plaintiff had such a cause of action as asserted, it would not only have been admissible in evidence in the divorce suit, but it would have been an absolute and perfect defense to it; that there was nothing on plaintiff’sown showing which left him anything to go to the jury upon, as he introduced the divorce proceedings, and without showing them he-could not have been offered as a witness at all. ,
      5. Carter v. Kill, 81 Mich. 275 (decided June 6, 1890), where the plaintiff testified in his own behalf to important facts, affecting-the charge of adultery made against the defendant. And it was held that the plaintiff was not a competent witness for any purpose when the question of his wife’s adultery was involved.
      6. Hanselman v. Dovel, 102 Mich. 505 (decided November 20, 1894), where the suit was brought after the husband had secured a divorce from his wife. And it was held that he was not a competent witness to testify to the charge of adultery.

        Divorce Cases.

      1. Hamilton v. Hamilton, 37 Mich. 603 (decided November 1, 1877), where the wife was called as a witness. In answer to an objection to her competency, the circuit judge, after remarking that he supposed it was competent for the court to order the parties sworn, overruled the objection, and the wife was allowed to testify in her own behalf. No formal order for her examination was made, nor was any action had which indicated more distinctly than the foregoing remark that the, court considered the testimony as being taken under his order. And it was held that the statute established general rules of competency of which the parties might avail themselves, while it left untouched in the court any authoijty previously conferred to deal in the matter of evidence with special cases; that the statute of 1851 for the organization of the Supreme Court provided that the court might at any time, and in accordance with and for the speedy furtherance of justice, in any suit, either at law or in equity, call upon the parties to such suit, or any witness thereto, to testify orally-in open court, and that said court might, by rule, provide for a similar practice in the circuit courts; that under the authority of this statute the Supreme Court, by Chancery Rule No. 99, provided that “in all chancery cases whatever, whether for divorce or otherwise, which are at issue on pleadings and proofs, the court may call upon the parties thereto, or any of them, or any witnesses thereto, to testify orally in open court, and in all eases of divorce, whether at issue or standing on the bill taken as confessed, the court may in like manner call upon the complainant, or any witness thereto, so to testify;” that said rule was still in force, undisturbed and unimpaired by the statute, under which- neither husband nor wife could be a general witness on his or her own behalf in divorce cases without the consent of the other; that, though the circuit ■judge did not expressly call the complainant to the stand as a witness, yet he understood he was proceeding under this rule, and was permitting her to be examined under his discretionary authority, and not because »he considered her to be a general witness in the case under the statute; and that this conclusion disposed of all question touching the competency of her evidence.

        2. Cross v. Cross, 55 Mich. 280 (decided November 19, 1884), where the bill was filed on. grounds .other than that of adultery. The defendant put in a plea denying the marriage. And it was held that, as complainant came before the court asserting herself to be a married woman, and was sworn without the defendant’s, ■consent, she was within the prohibition of How. Stat. § 6260, which declares that the testimony of either party to a suit for divorce shall be taken only in open court.

        Cases in Which the Separate Property of the Wife was Involved.

      1. Jenne v. Marble, 37 Mich. 319 (decided October 16, 1877), where the plaintiff, as assignee, sued the defendant upon her personal covenants contained in a lease from her husband to her, and for the value of certain farm live stock claimed to have been sold to her by him. The trial court held that the transaction was not such as to create a valid right of action for the husband against the wife, and rendered judgment in favor of the defendant. And in affirming the judgment it was held, among other things, that the disabilities of testimony are entirely inconsistent with the idea that a husband and wife may deal with each other as third persons can; that this is impossible if they cannot testify concerning their contracts.
      2. Hubbell v. Grant, 39 Mich. 641 (decided November 21, 1878), where a judgment creditor filed a bill to reach property conveyed by a husband to his wife, both of whom were made defendants. The husband was examined as a witness for the complainant in the absence of his wife, and without any objection on the part of her solicitor. And it was held that there may be cases wh'-ra both the husband and wife are present, and one is called as a witness, where a failure to object might be deemed a waiver, but, in the absence of such party, the silence of his or her solicitor cannot supply the place of actual consent.
      3. Benson v. Morgan, 50 Mich. 77 (decided January 18, 1883), where a wife sued a firm, of which her husband was a member, for work and labor performed by her for the defendants. The husband was present in court, and was examined as a witness on behalf of his wife, and no objection was made by him to her testifying in the cause. And it was held that the consent of the husband to his .wife’s so testifying must be presumed, the court distinguishing this case from Hubbell v. Grant, supra., where the wife was not present, and her consent could not therefore be inferred from her silence.
      4. Hunt v. Eaton, 55 Mich. 362 (decided- November 19, 1884), where, shortly after their marriage, a husband promised his wife to repay her for moneys which he desired her to advance to take ■care of the house. The advancements were made, and, the husband having repudiated any liability to his wife, she assigned the claim, and the assignee brought suit in his own name against the husband to recover the amount due. On the trial, which occurred while the husband and wife were living together as such, the wife was permitted, against the objection of the defendant, to testify to what occurred between her husband and herself relative to the ■agreement as to advances and their repayment. And it was held that whether this testimony was competent depended upon the •construction to be given to How. Stat. § 7546, in connection with How. Stat. § 6297, which provides that “actions may be brought by and against a married woman in relation to her sole property in the same manner as if she were unmarried;” that by the contract testified to, if made, the relation of debtor and creditor was •created, and the debt became and was the separate property of the wife; that she could transfer it by assignment, as she could a .like claim against a third person; that, when the title to the separate property of either is in litigation, between husband and wife, the statute removes the common-law disability, and permits either to testify to the facts which lie at the foundation of the ownership •of the property as fully as if such marriage relation did not exist; ■that the clause of the statute prohibiting either, during the marriage or afterwards, without the consent of both, being examined as to any communication made by one to the other during the marriage, did not apply to a case of this kind.
      5. Eaton v. Knowles, 61 Mich. 625 (decided June 17, 1886), where a married woman sued the assignor of a mortgage, purchased for her by her husband as her agent, for an alleged breach of the covenant of the assignor that a certain sum was due on the mortgage at the time of its assignment. The defense rested upon an alleged settlement of the demand sued for, made with the husband as agent for plaintiff. The defendant sought to make out his defense by the testimony of the husband, which was objected to on the ground that he was incompetent to be a witness without the eon-.sent of plaintiff, which was not given. The objection was sustained, and the testimony excluded. The court was not asked to, nor did he of his own volition, exercise any discretion which might he vested in him in pursuance of How. Stat. § 6424, and the rules of court, to call upon a party to testify for tlae furtherance of justice. And it was held that the court were not called upon to decide whether the lower court ought to or could, under the circumstances of the ease, have called upon this witness to testify in the-cause, but were satisfied to leave the ruling, where the trial court left it,-under the prohibition of the statute.

        1 How. Stat. § 6424, which, as originally enacted, provided that “the Supreme Court may at any time, in accordance with and for the speedy furtherance of justice, in any suit, either at law or in equity, call upon the parties to such suit, or any witness thereto, to testify orally in open court, and said court may, by rule, provide for a similar practice in the circuit courts,” was amended by Act No. 151, Laws of 1887 (3 How. Stat. § 6424), by adding the proviso that “no party or witness whose evidence may not be received under the statutes of the State shall be called upon to testify under the provisions of this section.”
      6. Blanchard v. Moors, 85 Mich. 380 (decided April 24, 1891),. where a bill was filed by a judgment creditor in aid of an execution levied upon land conveyed by the debtor to his wife prior to the rendition of the judgment. The wife was sworn as a witness in her own behalf, and was examined without objection respecting the conveyance to her of the land, her knowledge of her husband’s debts, the amount and nature of her property at the time of her marriage, and what she had accumulated* and spent since-her marriage, all with a view of showing on her part that the-property was conveyed to her in part payment of an actual indebtedness owing to her by her husband. She was then cross-examined, without objection, on the part of the complainant for the purpose of showing that the conveyance was voluntary and fraudulent as to the complainant. After the defendant had introduced, her proof, the complainant called her husband as a witness in his* behalf. The solicitor for the defendant objected to 'the husband, being sworn on the ground that he was a party defendant, and his-testimony would be against his wife, and therefore incompetent. And it was held that the objection was well taken; that, though the-wife’s separate property was in dispute, the interest of the husband was identical with that of his wife; that, there being no conflict between them, the husband was not within the exception in. the statute, and his testimony was incompetent. And it was further held that the testimony of the wife, taken in her own behalf without objection, was admissible.
      7. Berles v. Circuit Judge, 102 Mich. 495 (decided November 20, 1894), homing that a wife, when garnished in a suit against her-husband, cannot, without his consent, be examined as to transfers, of property made to her by him.

        Miscellaneous Cases.

        1. Dawson v. Hall, 2 Mich. 390 (decided in 1852), where a father-filed a bill to set aside a deed executed to three of his daughters, on the ground that the deed was never delivered to the grantees. On the hearing the complainant was permitted to testify to statements and admissions of the husband of one of the grantees, who was a party to the record in his own right, and also as guardian ■of the infant children of his deceased wife. And it was held:
      a — That, were the wife living, as the interest she acquired by the deed was in her own right, — her separate estate, — she and her co-grantees could no more be bound by the statements and admissions of her husband than they could by his testimony.
      6 — That the declarations of husband and wife a,re subject to the ■same rules of exclusion which govern their testimony as witnesses, and that the husband of the deceased grantee could not be •admitted as a witness in said suit.
      2. Herrick v. Udell, 29 Mich. 47 (decided January 29,1874), where ■a bill was filed in behalf of the heirs of a deceased person to obtain a release and redemption of certain real estate formerly belonging to the decedent. The divorced wife of the defendant was allowed to testify in behalf of the complainants to the admissions of the defendant made to the decedent during negotiations between them for a- settlement. And it was held that the testimony did not relate to any communications between husband and wife, and was not within the prohibition of the statute.
      3. Maynard v. Vinton, 59 Mich. 140 (decided January 20, 1886), where a husband contested the probate of his wife’s will on the ■ground of undue influence alleged to have been exerted over her by a legatee, with whom, as alleged by the contestant, she had been unduly intimate. On the trial the contestant was allowed to testify to a communication made to him by his wife shortly prior to her death regarding her relations with the legatee. And it was held that the statement, according to the testimony of the witness, was a communication of the most confidential character, made to him by his wife during the marriage, and under circumstances which brought it within the prohibition of the statute; that it was one which, after her death, he could never be permitted to testify to, because it could not then be done wnn the consent of both; that the privilege is that of the person making the communication, and can only be waived by him or her personally, and that the personal representative has no right to waive it, even in the interest of the estate.
      4. Hitchcock v. Moore, 70 Mich. 112, 115 (decided April 27, 1888), where, in an action for slander, the plaintiff, upon cross-examination, was interrogated in relation to communications claimed to have been made by him to his divorced wife, who was'a daughter of the defendant, during the existence of the marriage relation, ■and the divorced wife was permitted, against objection, to testify as to what the plaintiff said to her while he was her husband, and that she had communicated what was said to her father. And it was held that this was error; that the divorce did not release the-seal of secrecy enjoined by the statute.

   Grant, J.

Plaintiff recovered verdict and judgment against the defendant, her father-in-law, for the alienation •of her husband's affections. Plaintiff and her family were Catholics; her husband and his family were Protestants. Her husband was defendant's only son. Both families were farmers, living about two miles apart. Plaintiff and her husband were of the same age, and 21 years old when married. It is evident that neither family looked with' much favor upon the marriage. During the courtship the; question of her religion had been discussed between them. He refused to be married in the Catholic church or by a Catholic priest. She yielded her wishes in this respect, and they were married by a Protestant clergyman. None-of the members of either family attended the wedding. Immediately after their marriage they went to the defendant’s house, where they lived three months. They then moved to a house on defendant’s farm, where they lived together about six months, when plaintiff’s husband: abandoned her, and returned to his father’s home. Meanwhile he worked on his father’s farm. She remained away from her church for a while, but finally returned to it. Whether her Protestant marriage resulted, ipso facto, in-dissolving her church relations, or whether she voluntarily gave up her membership, does not clearly appear, nor is it material to inquire. On Sunday, the day her husband abandoned her, she returned, and resumed her relations with the church. As she expressed it, she was “taken back into the church.” On her return from church, between 10 and 11 o’clock in the forenoon, she found the defendant and his wife, her husband, and the defendant’s-hired man with a team removing the furniture from the house, and was then informed by her husband, in the presence of the defendant, that she had gone back to the church, and he would no longer live with her. The household goods were removed, and she went back to her former home. The testimony of the plaintiff herself and her witnesses tended to support her case. The testimony of the defendant and his witnesses was a plain and clear denial of that on the part of the plaintiff, and, if true, showed that he had done no more than to give his son that advice which he was justified in giving. If the jury believed her testimony, she was entitled to a verdict; if they believed his testimony, she was not. The error© alleged arise upon the competency of some of the jurors,, the admission and rejection of testimony, and the charge-, of the court.

A juror named Jesse Hitchcock, on his examination,, testified that he lived in the neighborhood; was acquainted! with the defendant; had talked with many different persons about the affair; had not discussed the merits of the case; the persons with whom he talked expressed an opinion to him; he had also expressed an opinion based upon what he had heard; had formed a sort of an opinion, if what he had heard was true; that it would take some evidence to remove that opinion; but that it was not so fixed that he would not be governed by the evidence. On cross-examination he testified that he knew both parties, and had known them intimately for a long time; did not know as he had formed any opinion upon the merits; might have formed some impression.

“Q. Do you think you could try the case as fairly and impartially between the parties as you could if you hadn't, heard of it, and formed those impressions?
“A. Possibly not.
“Q. Ton think you could not?
“A. I presume I could not."

The juror was challenged for cause, and the challenge-overruled.

Even in criminal cases, the formation or expression of opinion not based upon actual knowledge, or upon conversations with those cognizant of the facts, does not disqualify a juror, provided the juror shall declare on oath that he believes he can render a fair and impartial verdict. Holt v. People, 13 Mich. 224; Ulrich v. People, 39 Id. 245. In a civil case, the disqualification of a juror must clearly appear in order to justify a reversal by an appellate court.. It does not appear that this juror had conversed with! either of the parties or their friends, or with any one having knowledge of the facts. The sources of a juror’s information are important in determining his qualifications. People v. Barker, 60 Mich. 287. We do not think this juror was legally disqualified.

The defendant saw a picture of the Virgin Mary hanging upon the wall in plaintiff’s house,, which had been hung there by an aunt of the plaintiff, who was i;hen present. He asked plaintiff if she put it there, to which she replied in the negative. He then asked the -.aunt, who said she put it there, and the conversation was permitted to be given about the picture. The court held it incompetent: but, on the statement of plaintiff’s counsel that he would show something more in that connection, it was allowed to stand. Witness then testified that defendant said, in the presence of plaintiff and her aunt, that “he would rather see his son dead than living with a Catholic.” This testimony was competent, but the rest of the conversation was incompetent. His dislike and condemnation of a picture had no earthly bearing upon the issue. The language imputed to him by the witness was such as would naturally prejudice a jury.

On cross-examination of the plaintiff, this question was asked:

-“Did you know that your church did not recognize a marriage as binding between a Protestant and Catholic, by jsl Protestant clergyman?”

This was ruled out, under objection, and plaintiff’s counsel remarked:

“ There is no law of this State that permits a father-in-law to take away a husband.”

Another witness for the plaintiff was asked, on cross-examination:

“You know that in that church that [the marriage] meant no salvation for her [the plaintiff], and you did mot object to that?”

This also was ruled out. The object of the testimony appears to be that it tended to rebut the testimony of the witnesses that plaintiff’s family did not object to the marriage. We think the ruling of the court that this testimony was too remote for that purpose was correct.

The statement of the plaintiff’s counsel was ill advised, but it is not of sufficient importance to justify a reversal of the case.

The defendant’s wife, a witness in his behalf, testified that she objected to the marriage, and was asked to state what her objections were. The question was properly excluded. Her objections could have no possible bearing upon the issue, viz., the alienation of .the husband’s affections by the defendant.

On cross-examination of defendant’s wife counsel for plaintiff asked:

“So that the extent of her sinning at that time against the Eice household was by attending church again?”

The answer was allowed under objection and exception. This was followed by the question:

“Didn’t you think a person in this country ought to be allowed, under reasonable restrictions, to embrace what religion as seemed to them to be proper?
“A. Yes, sir.”

After it was answered, counsel for defendant objected to it as immaterial and irrelevant, and the court held the question to be improper. Both questions should have been excluded.

In the winter after the separation, which occurred in October, the defendant’s wife had a conversation with a Mrs. Owens, in Kalamazoo. On cross-examination the following question was asked her:

“Do you recollect having a conversation with her in which you said that you were waiting for Lem to come and take you home; that you supposed Julia had got a hold of him somewhere, and was trying to coax him to live with her again, but that was all the good it would do her, — that Lem should never live with her any more?"

This was answered under objection, and she denied saying that her son should never live with plaintiff again. Mrs. Owens was called in rebuttal, and testified to this conversation. She did not, however, testify that Mrs. Rice said that her son should never live with his wife again, but that she did say:

“I presume that Julia has got him cornered somewhere, but it will never do her any good."

She also testified to other statements which she said Mrs. Rice had made, but about which Mrs. Rice had not been questioned, and they were therefore inadmissible.

The court admitted the testimony for the sole purpose of shoAving the feeling of the witness Mrs. Rice towards the plaintiff. The substance of the ruling was to hold it competent as affecting her credibility. Any statement made by her of her prejudice or feelings against plaintiff was proper for the jury to consider in determining Avhat weight they should attach to her testimony, and, if she denied making such statement, it would be proper to contradict her by other witnesses. Attorney General v. Hitchcock, 1 Exch. 91; Tolbert v. Burke, 89 Mich. 145. The difficulty is that the statement testified to by Mrs. Owens does not tend to show any ill feeling or prejudice against the plaintiff. At most, the statement only means that her son would not return to his wife. It does not naturally show any ill will towards her. It was a mere statement of fact, which may have been based upon what her son said and her knowledge of his character.

In view of a new trial, we deem it proper to remark that the proper method of impeachment by proving contradictory statements was not pursued in this case. Time, place, and person must be fixed by the impeaching question. The language which it is claimed the witness used must be given, and he asked if he used it. The same question, so far as the language is concerned, must then be asked of the impeaching witness. De Armond v. Neasmith, 32 Mich. 231. In this case Mrs. Owens was asked to state the conversation she had with Mrs. Rice at the time and place fixed in the impeaching question. As already shown, she introduced other matter, about which no inquiry had been made of Mrs. Rice. In De Armond v. Neasmith it is said:

“When an attempt is made to impeach a witness, there should be no reasonable doubt but that the questions asked the impeaching witness and the witness sought to be impeached are one and the same. It is so easy for witnesses to misunderstand each other, or to forget what was really said, that there should be no chance for dispute in this respect. Fairness to both requires this.”

The unfairness of the opposite course is well illustrated-in this case. It is fair to remark that no objection to the course pursued was made.

The defendant produced and offered to swear the plaintiffs husband as a witness. The court held that he could not be sworn as a witness against his wife without her consent. The court, when objection was made, carefully excluded all conversations between the plaintiff and her husband when the defendant was not present. This right of the defendant to have all conversations which were not in his presence excluded should be carefully guarded by the court. No authorities are cited to sustain the defendants position. Any ' testimony from the husband against his wife is clearly within the prohibition of the statute. 3 How. Stat. § 7546. The plain provisions of the statute cannot be avoided by the fact that plaintiff testified to conversations and acts on the part of her husband in the presence of the defendant. Had he been permitted to testify to these conversations, to contradict her, he would clearly have been a witness against her, and that he cannot be unless he comes within the exceptions in the statute.

Nearly all the requests on the part of the defendant for instructions were given, and covered every phase of the case. The court instructed the jury that it was not the duty of the defendant to advise his son not to separate from his wife; that if the husband had made up his mind to leave her if she rejoined the church, and, finding that she had done so, set about leaving her, and the defendant, while he was so doing, advised him that he thought it was best to do so before they had children, there was no liability; that they must find that her husband separated from her because the defendant alienated his affections; that he had the right to object to his son’s marrying a Roman Catholic; that he had the right to advise his son that it would be unwise for him to live with her if she again joined the church; that any advice he might give his son after the separation would not afford a cause of action. The court in these instructions is within the rule of Hutcheson v. Peck, 5 Johns. 196, which appears to be the earliest case of this character. When a father or mother is charged with the alienation of a husband’s or wife’s affections, the quo animo is an important consideration. The right of the parents to advise their children must ‘ be carefully protected, as well as the rights of a husband or wife. We think this was done in the present case.

It was not error to refuse to instruct the jury that the ■defendant must have been the sole cause of the separation. It was sufficient if he was the effective cause. If it were shown that defendant’s wife had also used her influence to cause the separation, this would not relieve the defendant from the consequences of his own conduct. One joint wrong-doer cannot defend upon the ground that another assisted him in accomplishing the result.

9. The defendant requested the court to instruct the jury that there was no testimony entitling the plaintiff to recover more than nominal damages, and that there was no facts u$on which they could determine what, if any, loss she had sustained, either of the society, assistance, or support of her husband. This request, as a whole, was properly refused, because it left out entirely the damages resulting from mental anguish, mortification, and injured feelings. In those actions where damages may be awardeds for these and for loss of society, the amount of damages lies in the sound discretion of the jury. They are not capable of accurate measurement, and it is not necessary to introduce any evidence of value. When the jury have before them the social standing and character of the parties, and the circumstances surrounding the wrong done, they have all that is proper and necessary upon which to find a verdict. ' Had the defendant requested the court to instruct the jury that there was no evidence upon which they could find a verdict for loss of support and maintenance, it would have been error to refuse it, because there was no evidence of the value of such support. The sole evidence was the fact that they lived together for siXy months in a house owned by defendant. The court instructed them that she was entitled to recover for mental anguish and suffering, mortification and embarrassment, for the loss of her husband's society, and for the loss of his support and maintenance. It is true that the court said to them that “all these elements of damage, except the loss of support and maintenance, are such that it is not possible to figure them out on any mathematical basis;'' but he did not instruct them that there was no basis afforded by the evidence upon which they could determine the damages resulting from loss of support and maintenance. The verdict ($3,000) was large, considering the condition of the parties, and we cannot say that the jury did not consider and allow for the loss of support.

The judgment must be set aside, and a new trial ordered.

Hooker, J., concurred with Grant, J. McGrath, C. J., concurred in the result. *

Montgomery, J.

I concur except as to the last point. As there was evidence that plaintiff had in fact been supported by her husband, I think the withdrawal of such support should be considered as an element of damage.

Long, J., did not sit.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    William R. Montgomery and Franklin L. Lord v. Harry A. Martin, George Beck, and James C. Hamilton.

      Justices of the peace — Jurisdiction—Action on constable's bond— Right of assignee of judgment creditor — Partnership — Evidence.
    1. How. Stat. § 6988, which authorizes an action of assumpsit upon a constable’s bond in favor of the party entitled to moneys collected by the constable on execution, and which he-refuses to pay over, and a recovery in said suit of the amount-of the execution, with interest from the time of the rendition, of the judgment upon which the execution was issued, is not. limited in its operation to bonds in a penalty not exceeding $300, but confers jurisdiction upon justices of the peace up to-the statutory limit, regardless of the amount of the penalty of' the bond upon which the action is brought.
    2. After the commencement of a suit in justice’s court by a firm, and before the rendition of a judgment in their favor, one of' the partners assigned to the firm’s attorneys in the case all of' his right, title, and interest in or to the claim sued upon. An execution was issued on the judgment, and delivered to a. constable, who collected the moneys due thereon, and neglected, to pay the same over. The assignees sued the constable and his sureties on his bond, and their right to maintain the suit, was denied on the ground that the right of recovery conferred, by How. Stat. § 6988, applies only to the plaintiff named in the execution, and does not extend to the owner of the judgment through assignment. And it is held that the party in whose interest the money is received may bring the action, and that the right to bring it is not confined to one whose right to the money has been adjudicated.
    3. The assignor, after testifying that he and his co-plaintiff were partners, was asked whether, at the time the suit was brought,, the money (claim) belonged to him or the partnership, and,, against the objection that the question called for a conclusion, of law, was allowed tofanswer that it belonged to the witness, alone. The defendants introduced testimony tending to show that the assignor did not own the claim, and the only evidence to the contrary was his wholesale statement that he owned it. And it is held that the assignor testified to a conclusion, and this in the face of an objection that apprised counsel for plaintiffs that this was a disputed question; that it was not shown that the assignor was expressly authorized to assign the claim to plaintiffs; that, if it be contended that as partner he might lawfully sell the firm’s interest, it was still important, owing to the qualified nature of the assignment as to the interest assigned, to know what his interest actually was; and that, for the admission of this testimony, the judgment in favor of the plaintiffs should be reversed.
    Error to Wayne. (Donovan, J.)
    Argued January 24, 1895.
    Decided March 19, 1895.

      Assumpsit. Defendants bring error.
    Reversed.
    The facts are stated in the opinion.

      James Swan, for appellants.

      FranJclin L. Lord, for plaintiffs.
   Hooker, J.

Martin was a constable, having given the statutory bond of $2,000. He collected $135.11 and costs, amounting in all to $144.50, from one Haggerty. At the time, he had in his hands an execution in the . case of Nelson & Moorey v. Haggerty for $133.61 damages and $1.50 costs; At the same time he had in his possession an execution against Nelson & Moorey ads. Wheeling & Lake Erie Coal Company. He also had what he calls a “body execution" against Haggerty, Garnishee of Nelson & Moorey, ads. Wheeling & Lake Erie Coal Company. These last two writs are not shown by the record, but it seems to be conceded that the “body execution" was an attachment against Haggerty for not appearing in obedience to a garnishee summons. It appears that the money was collected upon the execution first mentioned. Defendant Martin says that he took the money to the justice, who refused to accept it, and that the execution was never returned, or the money paid over to any one.

Montgomery & Lord, the plaintiffs, are lawyers, who procured the judgment in the case of Nelson & Moorey v. Haggerty. They base their claim in this action upon an assignment reading as follows:

«May 15, 1893.
«For a valuable consideration, to me in hand paid by Montgomery & Lord, attorneys at law, the receipt whereof I hereby acknowledge, I, Alexander Nelson, of Detroit, do hereby assign, sell, transfer, and set over to the said Montgomery & Lord all my right, title, and interest in or to the claim now owing to me from H. H. Haggerty, and now in litigation in the justice’s court of the city of Detroit, before Justice John B. Teagan, with full power to sue for and collect the same.
«Detroit, Michigan.
«Alexander Nelson. [L. S.] ”

They contend that they were entitled to the amount collected, and to bring an action under section 6988, How. Btat., reading as follows:

«If a constable shall neglect or refuse to return an •execution, and pay over the moneys by him collected, within five days after such execution shall have been paid, or shall neglect to levy an execution, or otherwise execute the 'same according to law, the party in whose favor such execution was issued, or who shall be entitled to such moneys, may maintain an action of assumpsit, in his own name, upon the instrument of security given by such constable and his sureties; and in such suit the amount of the execution, with interest from the time of the rendition of the judgment upon which the same was issued, shall be recovered; and execution shall issue forthwith, and no stay of execution shall be allowed.”

The first contention is based upon the proposition that jurisdiction depends upon the amount of the bond, and that, where the penalty exceeds $300, the justice has no jurisdiction. This overlooks section 6988, which provides for an action of assumpsit, upon a constable’s bond in behalf of the person entitled to moneys which the constable refuses- or neglects to pay. It authorizes a judgment for the amount, with interest and costs. In this it differs from cases arising upon probate bonds, where the judgment is taken for the amount of the penalty of the bond, scire facias being resorted to on further breaches. Probate Judge v. Dean, 52 Mich. 387. See, also, Bishop v. Freeman, 42 Mich. 535; Gray v. Stafford, 52 Id. 497. The statute mentioned (section 6988) confers jurisdiction upon justices of the peace in cases like this.

It is next contended that the right of recovery conferred by section 6988 applies only to the plaintiff named in the execution, and does not extend to the owner of the judgmént through assignment. The statute says the action may be brought by “the party in whose favor such execution was issued, or who shall be entitled to such moneys.” By this we understand that the party in whose interest the money is received may bring the action, and that it is not confined to. one “ whose right to the money has been adjudicated.”

Alexander Nelson, a witness for the plaintiffs, testified that he and Moorey were partners. He was then asked the following: “Q. At the time the suit was brought, did the money belong to you or to the partnership?” Against defendants’ objection that it asked for a conclusion of law, he was allowed to answer, “To me alone.” It cannot be doubted that this involved a conclusion. Counsel asserts that this was not so, “ because there was no evidence before the court from which the judge or jury could have concluded the answer at that time.” If that is so, it would seem that the answer was the more objectionable. It permitted the witness to determine from his knowledge of the facts the question of ownership, which was one of the questions in dispute. Counsel admitted that “it was material to show to whom this money belonged at the time the suit was brought, before the plaintiffs could properly introduce evidence to establish their right to recover in this action.” This was all the testimony given in behalf of the plaintiffs from which such ownership could be found. Nelson did not qualify it by stating any facts in relation to it. Upon behalf of the defendants, Moorey testified that this bill was in court at the time the partners ceased doing'business together, and that it was never agreed that Nelson should have the ■money on that bill, but it was agreed that the Wheeling & Lake Erie Coal Company should have it. Here, then, were certain facts and circumstances that tended to show that Nelson did not own the claim, and the only evidence to the contrary was the wholesale statement by Nelson that he owned it. Clearly he testified to a conclusion, and this in the face of an objection that apprised counsel that this was a disputed question; and it is as plain that it was-not cured by any subsequent version of the facts and circumstances which tended to show such ownership. The evidence in the case does not show that Nelson was expressly authorized to assign this claim to the plaintiffs, and, if it be contended that as partner he might lawfully sell the firm’s interest, it was still important to know what his interest actually was, as the assignment only disposed of his right, title, and interest, and did not purport to convey the interest of the firm. If, as he said, he owned the whole claim, the assignment conveyed it; otherwise not.

Eor the admission of this testimony, we think the judgment should be reversed, and a new trial directed. It is-ordered accordingly.

Long, Grant, and Montgomery, JJ., concurred. Mc-Grath, O. J., did not sit.

       Judgment was rendered May 17, 1893.


author: Montgomery, J.

text:
    The Commissioner of Highways of the Township of Pontiac, County of Oakland, v. Ralph Cobb.

      Plank-road companies — Forfeiture of franchise — Public highways.

    Upon the forfeiture by a plank-road company of its franchise, the-turnpike becomes a public highway of the governmental corporation having control of roads of like character.
    Error to Oakland. (Moore, J.)
    Argued January 25, 1895.
    Decided March 19, 1895.
    Trespass for obstructing a highway. Defendant brings-error.
    Affirmed.
    The facts are stated in the opinion.

      J. Ten Eyck, for appellant.

      Jayne & Lynch, for plaintiff.
   Montgomery, J.

This is an action to recover the prescribed penalty for obstructing a public highway. The-only question involved in the case is whether the road in question is a public highway. The findings of the court, below show that the Pontiac & Lapeer Plank-Boad Company, acting under the authority of its charter, granted by Act No. 240, Laws of 1848, by which the provisions of Act No. 62 of the same year were made applicable, constructed the road in question, and maintained and collected toll from travelers over the same from 1854 up to November, 1888, when it abandoned the road, and the public authorities assumed control of the same. It further appears by the findings that the last annual meeting of the board of directors of the company was held on the 17th of January, 1888, and the court finds that by reason of the failure of the company to maintain its road, and its abandonment thereof, and the failure of its directors to meet for a period of five years (see section 3651, How. Stat.), the corporation had forfeited its franchise. Upon this state of facts, the court found, as a matter of law, that the road in question was a public highway when the defendant attempted to obstruct it, and that the defendant was liable to the penalty imposed by the statute. The court finds, as to the manner of dedication, that the plank-road company obtained a right of way, but that the proofs failed to disclose in what manner.

The defendant contends that, on the dissolution of the corporation, the title to the' land reverted to the abutting owner, who is the defendant in this case. The rule is stated in Elliott, Eoads & S. 54, that, if the corporation owning a turnpike suffers it to get out of repair, the franchise may be forfeited; and in that event the turnpike becomes a public highway of the governmental corporation having control of roads of like character. We think this is supported by abundant authority, and that a dedication to a turnpike road is presumptively made in contemplation of its continued use as a public highway, and implies the right of the public to continue its use on the termination of the corporation. Railroad Co. v. Com., 104 Penn. St. 583; State v. Maine, 27 Conn. 641; People v. Davidson, 79 Cal. 166. In State v. Maine it was held that the owner of land taken for a turnpike is presumed to have received compensation for a perpetual public easement when the road was first laid out, and he is not entitled to any farther compensation when the *road is subsequently converted into a public highway.

The judgment of the court below will be affirmed, with costs.

Long, Grant, and Hooker, JJ., concurred. McGrath, O. J., did not sit.

       See How. Stat. §§ 1403, 1434.


author: Long, J.

text:
    Manford P. Lum v. The United States Fire Insurance Company.

      Fire insurance — Pleading—Variance—Contract of insurance— Delivery — Non-payment of premium — Proofs of loss — Fstoppel.
    1. In a suit upon an insurance policy, the declaration set forth the date of the issuance and delivery of the policy, the amount and term of the insurance, the premium paid, the property insured, describing it the same as in the policy, the entire destruction of the property on a given date by fire, the consequent loss to plaintiff, and the refusal of the defendant to pay said loss, and claimed damages in a certain sum. The declaration was not demurred to. And it is held that it contained sufficient averments to warrant a recovery under Circuit Court Rule No. 104, which was adopted for tile purpose of avoiding needless prolixity.

      2. The date of the fire, which was not averred under a videlicet, was fixed in the declaration as having occurred one month later than the true date, as shown by the evidence'. The proofs of loss were made within the time fixed by the policy, and the defendant was not taken by surprise on the trial. And it is held that the misstatement was one which the court would have amended as of course, and it will be treated as-so amended,
    8. An insurance agent was in the habit of issuing policies on blanks furnished by the company for that purpose. Being about to leave home, and anticipating a request for a renewal of a policy so issued by him which would expire before his return, the agent signed a policy in blank, and left it with his office boy to fill up, and deliver to the insured, if called for. On the day the old policy expired, an agent of the insured called at the office of the insurance agent to secure a renewal of the policy, and was informed by the office boy that it had been renewed, and was shown the entry of the new policy on the insurance register. Two days later the insurance agent returned, and, in obedience to a letter from the general agent of the insurance company, sent the new policy to the general agent for cancellation, but did not notify the insured until the morning after the fire, which occurred seven days after the policy had been sent to the general agent. No premium was paid, nor was any asked for by the insurance agent. And it. is held that a valid contract of insurance was made; that, though the policy remained in the agent’s hands, it was treated as delivered, and must be so held; and that the non-payment of the premium would not, under these circumstances, invalidate the insurance.
    4. The proofs of loss did not comply with the requirements of the policy. The company, however, denied all liability, and claimed that the policy had been canceled, and that no valid insurance existed upon the property. And it is held that the company is estopped from objecting to the insufficiency of the proofs of loss.
    Error to Alpena. (Kelley, J.)
    Argued January 25, 1895.
    Decided March 19, 1895.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Charles F. Gates, for appellant.

      Depew & Marshall, for plaintiff.
   Long, J.

This is an action to recover upon a fire insurance policy. July 16, 1891, plaintiff had issued to him by the defendant company a policy upon his household furniture in his dwelling house in Bay City. That policy expired on July 16, 1892. It was a Michigan standard in the usual form. In. May, 1892, plaintiff removed from Bay City to Alpena, leaving his furniture and house at Bay City in the keeping of his agent, Benjamin F. Smith. Some time before the expiration of this policy the agent ■of the defendant company at Bay City, Mr. O. F. Forsyth, had concluded to renew it if the plaintiff so desired, and had signed a new policy, and left it with his office boy to fill out and deliver. On July 16, — the date of the' termination of the first policy, — Mr. 'Smith, plaintiff’s •agent, called at the office of defendant’s agent, and ordered the renewal of the insurance. Mr. Forsyth was absent from the .city, but the office boy informed Mr. Smith that it had been renewed, and showed him the record of the renewal on the insurance register of the defendant’s agent, :and pointed out the renewal policy, which had been filled ■out for $300 on the household furniture of the plaintiff. •On July 25 the property covered by the insurance was ■entirely destroyed by fire. It appears that Mr. Forsyth, on his return home, and on the 18th of July, received a letter from the general agent of the company at Detroit ■directing him to cancel the policy, as he had been in•structed by the company not to issue any policies for less than $3 in premiums. Mr. Forsyth sent the policy to the .general agent for cancellation on July 18, — being seven •days before the fire. It is contended that Mr. Forsyth never notified plaintiff or his agent that the policy had been canceled until the next morning after the fire, while 'the defendant contends that Mr. Smith was notified on the 18th that the policy had been canceled. This question, however, was submitted to the jury, who found in favor of plaintiff’s contention. That question, therefore, is not of importance in the case.

The declaration by which the suit was commenced, it is •claimed, was not sufficient to warrant a recovery. It was mot demurred to, and we think it contained sufficient averments to warrant a recovery under Circuit Court Rule 104, which was adopted for the purpose of avoiding needless prolixity.

It is said, however, that the time when the fire took place was stated as August 25, while the proof showed that it was on July 25, and that, the date nof being averred under a videlicet, the variance was fatal. The court below refused so to charge, and we think properly. The date was not very essential, as the proofs of loss were made within the time fixed by the policy, and it is evident, the defendant was not taken by surprise on the trial. It was a misstatement which the court would have at once' amended as of course, and which we may well treat as-amended. Except in describing a written instrument which bears a written date, averments of time are not, in general, material in a declaration. Howland v. Davis, 40 Mich. 545.

■ The principal questions which were raised on the trial' relate to—

1. Whether there was a new policy actually issued, and' whether there was sufficient delivery, so that it took effect, as a valid contract of insurance.

2. Whether the non-payment of the premium vitiated it.

3. Whether the plaintiff’s agent had notice of its cancellation.

4. Whether the proofs of loss were sufficient, and, if not. sufficient, whether the defendant is now in position to-take advantage of the defects.

Mr. Forsyth had been acting as the agent of defendant. for some three years, and, it is claimed by defendant, under limited authority. A commission had been issued, to him to do business, and, while it appears that plaintiff’s agent had seen the commission hanging in Mr. Forsyth’s office, there is no proof that he knew of any limitation upon Mr. Forsyth’s power to issue insurance policies. It .had been the practice of Mr. Forsyth to fill out, sign, and deliver policies of insurance. He was furnished with blank policies by the company for that purpose, and had signed and issued the policy of July 16, 1891, to the plaintiff. Mr. Smith, plaintiff's agent, knew of this fact, and made the application for the renewal of the insurance. This had been anticipated by Mr. Forsyth himself, who had signed and authorized to be filled out and delivered the new policy. It was the same in form as the old policy. Plaintiff's agent regarded the insurance as renewed, and it is evident that Mr. Forsyth left the city with the full understanding that it would be renewed on the day of the expiration of the former policy. It was evidently reported to the' company as a valid and binding contract of insurance. Forsyth did not ask payment of the premium at the time, and it is apparent that he looked to the plaintiff or his agent personally for its payment. We think this was a valid contract of insurance, and a sufficient delivery, without the payment down of the premium. It was understood between the parties to be so, and the actual delivery of the policy into the hands of Mr. Smith and the payment of the premium were not necessary to effectuate valid insurance. That the non-payment of the premium would not invalidate the insurance under these circumstances is held in Mallory v. Insurance Co., 90 Mich, 112. The parties treated the policy as a valid contract, and, though it remained in Mr. Forsyth's hands, it was treated as a delivery, and must be so held. Home Insurance Co. v. Curtis, 32 Mich. 402; Dibble v. Assurance Co., 70 Id. 1.

The third question has already been disposed of, as it was submitted to the jury as before stated.

On the subject of the proofs of loss the policy provides that—

“The insured, * * * within 60 days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire, the interest of the insured and of all others in the property, the cash value of each item thereof, and the amount of loss thereon, and all incumbrances thereon.”

Proofs of loss were made out and sent to the general agent of the company at Detroit. They did not comply with the terms of the policy, in that there was nothing contained therein stating the knowledge and belief of the insured as to the time and origin of the fire, and the interest of the insured and of all others in the property, and such proofs were not signed and sworn to. The proofs of loss did give the list of articles destroyed, and their value, and their ownership as in the plaintiff, and as insured under policy No. 1,926 in the defendant company. It is evident that the proofs of loss did not comply with the requirements of the policy. The court below held, however, that the company denied all liability, and that, therefore, no proofs of loss were necessary.

It is well settled that an insurer who has denied liability for a loss is estopped from objecting to the want or sufficiency of the preliminary proof thereof. O’Brien v. Insurance Co., 52 Mich. 131. The proofs were made out and sent forward to the general agent of the company, and, so far as this record discloses, no objection whatever was made to them. From the outset of the trial the defendant claimed that the policy had been canceled, and that no valid insurance existed upon the property. Counsel sought to establish the fact that the plaintiff’s agent had notice of the cancellation. A letter was put in evidence from the general agent of the company to Mr. Forsyth, dated July 18, 1892, ordering the policy canceled, and from that time it is evident that the company absolutely refused to recognize the plaintiff’s claim; and we ■think the evidence and circumstances of the case show ■conclusively that it denied all liability. The case was tried upon this theory, and counsel claimed to the court and .jury that no policy was in existence; that, if one ever existed, it had been canceled, to the-knowledge of the plaintiff’s agent, before the ñre occurred. The disputed qúestions •of fact were all fairly submitted to the jury.

Some other questions are raised, but the principal ones have been discussed. We find no error in the record.

The judgment must be affirmed.

Grant, Montgomery, and Hooker, JJ., concurred. McGrath, C. J., did not sit.


author: McGrath, C. J. Grant, J.

text:
    Edward Granby v. The Michigan Central Railroad Company.

      Railroad.companies — Killing live stoch — Gross negligence.

    Plaintiff sued to recover the value of a colt, which had escaped from an adjoining field onto defendant’s right of way, and was run over by one of its trains. The testimony tended to show that the plaintiff had exercised reasonable care respecting the gate, which had in some unexplained manner been opened. It was conceded that defendant was not in any sense responsible for the presence of the colt upon the right of way, and that it was not seen thereon prior to the approach of the train, and not from that time afterwards, before it was killed, by any •one except the engineer and fireman, and they both testified that they did not see it until they were within 35 feet of it, and too late to stop the train. The testimony on the part of the plaintiff tended to show that a man or a horse upon the right of way or track, at any point between the gate and the place where the colt was struck, could be readily seen for a distance of over half a mile therefrom, and that the footprints made by the colt showed that it ran upon the track for a distance of 44 rods before being overtaken by the train, which was running at the rate of 45 miles an hour. And it is held that the question whether or not the defendant’s servants were negligent in running down the colt after they became aware-of its presence was properly left to the jury.
    Error to Macomb. (Eldredge, J.)
    Argued February 1, 1895.
    Decided March 19, 1895.
    Case. Defendant brings error.
    Affirmed.
    The facts are-stated in the opinions.

      George K legart (Henry Russel, of counsel), for appellant.

      James C. Lewis (Crocker & Knight, of counsel), for plaintiff.
   McGrath, C. J.

Plaintiff sues to recover the value of' a colt, which was run over by one of defendant’s trains. Defendant’s right of way runs north and south through plaintiff’s farm. Plaintiff’s buildings are on the east side-of the railroad. A lane from the buildings leads to the defendant’s right of way, and at the end of the lane there is a gate, through which plaintiff drove when desirous of' reaching the portion of the farm lying west of the railroad. There is another gate in the west fence, a short-distance to the north of the first gate mentioned. Plaintiff had been pasturing his horses on the west side of the-tracks. On the evening in question, the gate in the fence-on the west side of the tracks had in some unexplained, manner been opened, and the horse in question, with others, left the field, and congregated upon the railroad right of way, near the gate at the end of the aforesaid lane. At about 6 o’clock in the evening the defendant’s, train, south bound, came along, and started the horses. They ran south on the east side of the tracks to a point, about 22 rods north of the semaphore, when the colt in. question, with another, which was not the property of plaintiff, ran up and onto the roadbed, and continued to' run along and upon the roadbed, one running between the rails and the other just outside the rail, for some 44 rods, when both colts were struck and killed. The testimony tended to show that the plaintiff had exercised reasonable care respecting the gates. It is conceded that •defendant was not in any sense responsible for the presence •of the horses upon the right of way. The colt was not seen upon the right of way prior to the approach of the drain, and not from that time afterwards, before it was killed, by any one except the engineer and fireman. The facts as to the congregation of the horses at the gate, their course after the train appeared, and the distance traversed upon the roadbed, were gathered from several witnesses who had examined the ground, which had been softened by recent rains, and found clear and distinct footprints of the animals, indicating that the horses had galloped from the gate to the point where struck. The •engineer and fireman both testified that they did not see the horses until they were within 25 feet of them, and too late to stop the train. The point where the horses were struck was about one-half mile north of a station. The semaphore is located north of the point where the ■first horse was struck. The engineer says that he did not •see the horses until within 25 feet of them, because he was watching for the semaphore, and ■ that there was a ■curve and a cut. Plaintiff’s testimony tended to show a very long and gradual curve, a very shallow cut, and that •the semaphore, or a man, or a horse upon the right of way or track, at any point between the gate and the place where the horses were struck, could be readily seen for a ■distance of over half a mile north thereof.

It is simply a matter of arithmetic to show that, while the horses were traveling 44 rods, the train, at the rate of speed given by the engineer, would make from one-half to three-quarters of a mile. The plaintiffs contention was that the company’s servants negligently ran the horses-down after they became aware of their presence, and when, by the exercise of care, the destruction of plaintiff’s property could have been avoided. The court properly left that question to the jury. The inferences suggested or presumptions raised by the testimony as to the fact of knowledge on the part of the engineer and fireman of the-presence of the horses in a place of danger were certainly sufficient to go to the jury, and the testimony of the engineer and fireman was not necessarily conclusive.

The judgment is affirmed.

Long and Montgomery,- JJ., concurred with McGrath, C. J.

Grant, J.

(dissenting). Two colts, one belonging to-the plaintiff and the other to a Mr. Stead, were pastured in Mr. Stead’s field, adjoining the defendant’s road on the-west. A gate opened from this field into the defendant’s-right of way, where there was a farm crossing, leading to-Mr. Stead’s farm on the east. The eastern gate to the-crossing was considerably south of the western gate. Some one left the western gate open, through which the colts-entered the right of way. There is no testimony showing-who left the gate open. It is, however, conceded that it-was not the defendant. The accident happened between 6:30 and 7:00 o’clock p. m., local time, July 13. Both colts were killed as they were running on the track in-front qf and away from the engine. The train consisted of six coaches, the engine, tender, and baggage 'car. The-train was running about 45 miles an hour, was from 10 to-15 minutes behind time, around a curve, and on a down grade. No one saw the animals upon the right of way, or the accident, except the engineer and fireman of 'the-train. The sole evidence on the part of the plaintiff, and upon which a recovery was had, was the testimony of witnesses who had examined the ground, and testified that, they saw footprints of the colts running southward from the east gate; that the footprints turned onto the railroad track, and were found from that point to the place they were killed, a distance of 44 rods. The engineer and fireman testified positively that they did not see the colts¡ until they were very near them, andt that it was impossible to then stop the train and avoid running them down. Verdict and judgment were for the plaintiff.

The colts were trespassers, and the defendant owed the owners only the duty due to trespassers. The only theory upon which the plaintiff was entitled to recover, and upon which the case was submitted to the jury, was that the engineer saw the colts, and wantonly, intentionally, and recklessly ran them down, when he might have stopped his train and avoided the injury. The charge of the learned circuit judge was correct in all but one particular, provided there was evidence tending to show that the engineer and fireman saw the colts, and intentionally and deliberately ran them down. The court instructed: the jury that, if the engineer actually saw the colts liable to come upon the track, and purposely and willfully allowed the train to run into and destroy them, the defendant was liable. This instruction necessitated the jury to find that the engineer saw the colts the moment that, they turned to come upon the track, or that he saw them running between the track and the fence, and that, if he did see them so running, it was his duty to stop the train, upon the assumption that they might turn upon the track. In neither of these events is the railroad company bound to check the speed of or stop its train. If the engineer saw the colt turning towards the track, there was no presumption that the colt would turn down the track any more than that he -would cross over the track; if running alongside, there certainly ‘ was no presumption that he would turn upon the track. This part of the charge was erroneous.

No duty is devolved upon a railroad company to exercise any care to discover the presence of animals trespassing on its right of way, and no duty arises towards them or even towards trespassing persons until the employes in charge of the train discover them upon the track. Railroad Co. v. Nolle, 142 Ill. 578; McAllister v. Railway Co., 19 Amer. & Eng. R. R. Cas. 108, and note; Howard v. Railway Co., 67 Miss. 247. It is contrary to reason that an engineer will deliberately run down animals, or any obstruction, upon the track, because he thereby endangers his own safety and life, as well as those of all on board. Trains have been derailed by such obstructions, and the fireman in this case testified that he was once upon an engine which was derailed by this cause. There should, therefore, be clear evidence from which a jury may have the right to find the wanton conduct necessary to sustain liability. The fact that the footprints of the colts were found upon the track for 44 rods before they were struck, and that there was an opportunity to see the colts for a quarter of a mile or more north of the gate, is permitted to allow the jury to find that the engineer and fireman perjured themselves; that they actually did see the co'lts, and that they could have stopped the train before striking them. How fast the colts were running, how long it took to overtake them after they were upon the track, how far the engine was from them when they went upon the track, are, under the plaintiff’s evidence, mere conjecture. The speed of the train is known. If the speed of the colts were known, it would be a simple question of mathematical calculation to determine how long it would have taken the train to overtake them, provided they had 25 feet, or any other number of feet, the start. The train was running at the rate of a mile in one and one-third minutes, or 80 seconds. To run a quarter of a mile, or 80 rods, would therefore take 20 seconds, and to run 44 rods 11 seconds. Can the verdict, therefore, be based upon anything but the merest conjecture? • I have already shown that the engineer was under no legal obligation to check the speed of his train had he seen the colts standing at the gate, or running from it between the fence and the track. Both the engineer and fireman testify that they were watching the semaphore, which was 25 feet high, and that it was their duty to do so, in order to obey the signal .that might be given. The light was in the semaphore. They were in a place where they were under no obligation to watch anything but the semaphore, and where they could not be expected to look for trespassing animals. The engineer was on the right of his engine, and on the inside of the curve. He would not, therefore, look straight down the track while watching the semaphore. If the engineer did not observe and heed the signal given by the semaphore, disaster might result; and, whether it did or not, both he and the fireman would be subject to removal, as they testified. Is it unreasonable or improbable or beyond belief that they did not see these two colts until they were upon the track?

IVe are not, however, without authority upon this point. In McAllister v. Railway Co., supra, the plaintiff, a trespasser, was walking upon a railroad track in the night, with the headlight in full view- for 2,000 feet, with the train running from 13 to 15 miles an hour. The same reason was urged in that case that is urged in this, viz., that the view was unobstructed, and the engineer should have seen him. The engineer testified that he did not see him, and it was held that the plaintiff could not recover.

In Darling v. Railroad Co., 121 Mass. 118, the train was moving at a usual and proper rate of speed, and the engineer did not stop or slacken the train in order to avoid or give way to a trespassing animal, and the court held that he was not bound to do so; citing several authorities to sustain the rule.

In Railway Co. v. Tate, 70 Miss. 348, the engineér. testified that he first saw the animal standing upon the track, about 50 yards ahead, and that it was impossible to avoid the accident. . It was shown by the plaintiff that the footprints of the animal showed that it had run 40 yards down the track before being struck. It was held that there was nothing unreasonable or improbable in the engineer’s statement, and that the plaintiff could not recover.

In Price v. Transportation Co., 31 N. J. Law, 229, it was held that the plaintiff could not recover for carelessness in not slackening the speed of the train, notwithstanding the animals were trespassers without fault on plaintiff’s part. See, also, Railroad Co. v. Rehman, 49 Penn. St. 101, and authorities cited in note to McAllister v. Railway Co., supra; Railway Co. v. Barlow, 71 Ill. 640.

The judgment should be reversed, and a new trial' ordered.

Hooker, J., concurred with Grant, J.


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    A. Schuyler Montgomery et al. v. The Muskegon Booming Company. In the Matter of the Proceedings Against Herman O. Lange for Alleged Contempt of Court.
    [See 88 Mich. 633; 100 Id. 436.]

      Contempt proceedings— Certiorari.

    1. In contempt proceedings under How. Stat. chap. 256, to enforce civil remedies, the respondent cannot be ordered to reimburse-the moving party for the loss and injury which he claims to have sustained by the misconduct of the respondent, except upon a finding that the respondent has been guilty of the contempt charged, that his misconduct has caused actual loss- or injury, and of the amount of such injury; citing Appeal of George T. Smith, 86 Mich. 149; Holland v. Weed, 87 Id. 584.
    2. An order of the circuit court adjudging a respondent guilty of contempt, and imposing a fine for his misconduct, but refusing to order the payment by him of the damages claimed to-have been sustained by the party instituting the contempt proceedings, cannot be reviewed upon certiorari at the instance of such party, the court finding affirmatively that the evidence-does not show that said party has sustained actual loss or injury by reason of the acts complained of; citing Schwab v. Coots, 44 Mich. 468.

      Certiorari to Muskegon. (Moore, J., presiding.)
    Argued February 1, 1895.
    Decided March 19, 1895.
    Plaintiffs instituted contempt proceedings against respondent for unlawful interference with the process and proceedings in an action at law, and bring certiorari to review the order of the court entered therein.
    Writ dismissed.
    The facts are stated in the opinion.

      Bunker & Carpenter, for petitioners.

      FitzGerald & Barry, for respondent.
   Hooker, J.

Proceedings for contempt were instituted against Herman O. Lange, and he was convicted of being instrumental in preventing one Bard from being present to give his testimony as a witness in a case then pending in the Muskegon circuit' court between Montgomery et al., plaintiffs, and the Muskegon Booming Company. That action was brought to recover damages by fire, alleged to have been caused by the negligent use of the defendant company’s tug. Upon the first trial, plaintiffs recovered a judgment, which was reversed by this Court. See 88 Mich. 633. A second trial was commenced upon a Thursday. Upon the succeeding Saturday, and before the conclusion of the trial, the plaintiffs were informed that one Burd would testify that he put a spark-arrester upon the smoke-stack of the boat about two weeks after the fire, and it is said that Burd told one of the plaintiffs, on the following Sunday, that the tug had no spark-arrester at the time of the fire, and promised to remain, and testify to that fact. He was not subpoenaed. Lange assisted Burd to leave the State the same night, and he was not present at the trial. A verdict was rendered in favor of the defendant, which was subsequently set aside, and a new trial granted, upon motion of the plaintiffs, without costs to either party, for the reason that the plaintiffs had been unable to obtain the testimony of one Bennett and of Burd.

This proceeding was instituted by petition filed in October, 1893, by the plaintiffs, praying that Lange be punished for contempt of the court in causing Bennett, a witness subpoenaed by the plaintiffs, and Burd, who had not been subpoenaed, to leave the jurisdiction of the court, thus depriving the plaintiffs of the benefit of their testimony upon the second trial; and that Lange be required to pay to counsel for the plaintiffs a sum sufficient to reimburse said plaintiffs for the actual loss and injury caused them by such misconduct. The circuit judge filed a written finding, from which it appears that Lange's conviction was based upon his instrumentality in procuring Burd to absent himself, and not upon any interference with Bennett. The court found affirmatively that the evidence did not show that the plaintiffs had sustained actual loss or injury by reason of the acts of Lange, and denied relief to them, but imposed a fine of $200 upon Lange, which was subsequently paid.

Under the decisions of this Court, the plaintiffs would not be entitled to the relief sought except upon a finding that the defendant was guilty of contempt, that the misconduct had caused actual loss or injury, and the amount of the injury. Appeal of George T. Smith, 86 Mich. 149; Holland v. Weed, 87 Id. 584; State v. Lonsdale, 48 Wis. 348. It is claimed upon the part of the petitioners that, inasmuch as the defendant was adjudged guilty, the court had no alternative but to find that plaintiffs had suffered injury, and the extent thereof, under the undisputed evidence. The case of Schwab v. Coots, 44 Mich. 463, is an authority in point. That case holds that these proceedings are “summary criminal proceedings, although allowed to be conducted by a private prosecutor, with a view to ultimate private benefit." That was a case where the court refused to punish a sheriff who was accused of colluding with an execution debtor in defeating an execution in his hands. Here the court refused to find that plaintiffs were injured, and to assess damages in their favor. The only difference between the cases is that in the Coots case the court is not shown to have found the defendant guilty of misconduct, while here he finds misconduct, and punishes, but declines to find that plaintiffs have been injured. In both cases relief was denied to the plaintiffs by the lower court. Both cases were removed to this Court by certiorari. In the Coots case the Court admitted its power to review a final judgment against a respondent, upon his appeal, but said that a different question arises when the petitioner seeks relief which has been denied him, and decided that the .plaintiff in certiorari had lost no remedy of his own, and that to interfere would be to exercise original, and not appellate, jurisdiction. It was said that the action, of the superior court was not final on the relator in regard to any right which he had to proceed for himself, as he had the right to private action, which had never been ■suspended. The writ was dismissed as improvidently issued.

A similar order will be made in this case.

The other Justices concurred.


text:
    Herbert A. Wheeler, Administrator with the Will Annexed of the Estate of Mary L. Dostie, Deceased, v. Samuel S. Wood, Administrator of the Estate of Luther Wheeler, Deceased.

      Wills — Construction—Specific legacy.

    1. The intention of the testator should always govern in the construction of a will (citing Bailey v. Bailey, 25 Mich. 185; Paper Mill Co. v. Fisk, 47 Id. 212; Eyer v. Beck, 70 Id. 179; Morrison v. Estate of Sessions, 70 Id. 297); and, where there is no ambiguity on the face of the instrument, such intention must be determined from the will itself (citing Kinney v. Kinney, 34 Mich. 250; Tuxbury v. French, 41 Id. 7; Waldron v. Waldron, 45 Id. 853; Forbes v. Darling, 94 Id. 625).
    2. A testatrix bequeathed to her nephew the sum of $400, to be paid by the assignment to him of a mortgage upon a farm belonging to his father’s estate. Prior to her death the testatrix discharged the mortgage. And it is held that the bequest’ was designed as a specific legacy.

      Error to Calhoun. (Smith, J.)
    Argued February 12, 1895.
    Decided March 19, 1895.
    Petition for leave to pay a legacy. Petitioner brings •error.
    Affirmed.
    The facts are stated in the opinion.

      Maim é Mains, for appellant.

      William H. Porter, for defendant.
   Hooker, J.

Mary L. Dostie died leaving the following will:

“Know all men by these presents that I, Mary L. 'Dostie, of Homer, Calhoun county, Michigan, being in .good health and of sound and disposing mind and memory, do make and publish this, my last will and testament, hereby revoking all former wills by me at any time here■tofore made:
“First. I hereby direct the payment of all my just debts .and funeral expenses and the legacies hereinafter given out of my estate.
“Second. After the payment of my said debts and fun•eral expenses, I give and bequeath to my niece, Carrie Wheeler, of East Scott, Courtland county, New York, the -sum of $300.
“Third. I give and bequeath to my nephew, Herbert Wheeler, the sum of $400, the said $400 to be paid, by my ■ executor assigning and transferring to the said Herbert Wheeler a certain real-estate mortgage upon the farm owned by the estate of the late Daniel Wheeler, which said farm ■is located in the township of Homer, county of Calhoun, .and State of Michigan, and which mortgage was made to .me by the said Daniel Wheeler about four years ago.
Fourth. I give and bequeath all the rest, residue, and •remainder of my estate of which I shall die seised to my •brother, Luther Wheeler, of Summerville, Cass county, Michigan, and to my sister, Eliza Randall, of Niles, Michigan, share and share alike; provided that my said sister .shall take no part or share of the estate hereby devised during the lifetime of her husband, Darius Randall, and .should my death occur before the death of the said husband, Darius Randall, her interest in my said estate shall vest in my said brother, Luther Wheeler, as trustee for my «aid sister, Eliza Randall, the said trustee to account and pay over to the said Eliza Eandall her interest in said estate at the death of her said husband, Darius Eandall. Should my said sister, Eliza Eandall, die before the death of her said husband, Darius Eandall, then all my estate herein willed to my said sister, Eliza Eandall, shall pass to and become the sole property of my said brother, Luther Wheeler. Mary L. Dostie.
"The above instrument, consisting of one sheet of caligraph paper, was now here subscribed by Mary L. Dostie, the testator, in the presence of each of us, and was at the same time declared to be her last will and testament, and we, at her request, sign our names hereto as attesting witnesses.
"L. B. Tompkins, Homer, Calhoun county, Michigan.
"Jessie Eobards, Homer, Calhoun county, Michigan.”'

The evidence shows that at the time this will was made-Herbert Wheeler was in possession of the farm formerly • owned by Daniel Wheeler, from whom he had inherited it. There were three mortgages upon this farm, of which the one mentioned in the will was last. Before the-death of the testatrix she discharged this mortgage to enable the petitioner, Herbert Wheeler, to raise money to-take up the previous mortgages. The question in the caséis whether he is still entitled to payment of the $400 from the estate. Upon the part of the estate it is maintained that this was a specific legacy or gift of the mortgage. Upon petitioner’s part it is said that the legacy was demonstrative; that the testatrix’s intention was to-give her nephew $400; that the mortgage was mentioned as a fund from which it should be paid; and that his-' right to payment from the general estate exists if the fund specified is not in existence, although the reason for its non-existence as a part of the estate is that he received it previous to the death of the testatrix. An attempt was-made to strengthen this claim by the testimony of the scrivener, to the effect that his understanding when he-drew the will was that the testatrix designed that the-nephew 'should receive $400 in any event, even if the-mortgage should be paid before her death, and that he understood this from a discussion about the possibility of such payment, but that he gave her no advice about the •matter, merely attempting to draw the will in conformity to her wishes. This testimony was offered for the alleged purpose of showing the situation of the testatrix when the will was drawn. The court properly disregarded it, as the intention of the testatrix must be determined from the instrument in this case. Kinney v. Kinney, 34 Mich. 250; Waldron v. Waldron, 45 Id. 353; Forbes v. Darling, 94 Id. 625; Tuxbury v. French, 41 Id. 7. The intention of the testator should always govern in the construction of a will. Eyer v. Beck, 70 Mich. 179; Morrison v. Estate of Sessions, 70 Id. 297; Rock River Paper Mill Co. v. Fisk, 47 Id. 212; Bailey v. Bailey, 25 Id; 185. This will “gives and bequeaths” $400 to the nephew, and provides how it shall be paid, viz.; By assigning and transferring a mortgage against the property of said Wheeler for that amount, given four years before, upon which there was $25 interest accumulated at the time the will was made. The will did not provide that the petitioner should be paid from the fund which said mortgage should produce, but directed an assignment and transfer of the mortgage. The legatee would have been entitled to an- assignment, whether the amount exceeded $4'00 or not. Apparently it was not expected that the executor would collect any balance over the sum of $400, if such should be due. We think, therefore, that this was designed as a specific legacy, and that it cannot be called demonstrative.

It follows that the order of the circuit judge must be affirmed, with costs, and be certified accordingly.

McGrath, C. J., Long and Grant, JJ., concurred. Montgomery, J., did not sit.