author: McAlvay, J. Ostrander, J.

text:
    FISHER v. RADFORD.

    1. Appeal and Error — Decision—Reversal—New Trial.
    Wherq a judgment for plaintiff is reversed because of a vari- - •anee between the declaration and proofs that cannot be avoided by amendment without introducing a new cause of' aotion, and limitations have run against the action, no new trial will be ordered.
    2. Fraud — False Representations — Pleading—Y arianoe.
    In an action for fraud consisting of false representations inducing the purchase of corporate stock, a judgment for plaintiff is reversed because of a fatal variance between the declaration and proofs; Mr. Justice McAlvay, with whom concurs Mr. Justice Carpenter, writing for reversal on the ground that the representation as alleged was made by defendant directly to plaintiff, while that proved was a letter written by defendant to a third person and by him shown to plaintiff, and the statement in the letter did not correspond with the allegations; and Mr. Justice Ostrander, with whom concur Justices Hooker and Moore, writing for reversal on the ground that the representations were alleged to have been made to induce the purchase of stock in a concern in N., while those proved were to induce the purchase of stock in a concern to be removed to and operated in Y.
    Error to "Wayne; Murphy, J.
    Submitted October 15, 1907.
    (Docket No. 46.)
    Decided July 1, 1908.
    Case by Fred E. Fisher against George W. Radford, James W. Fales, Alexander McVittie, Frank N. Clark, and Anson Waring for false representations on the sale of corporate stock. There was judgment for plaintiff, and defendants bring error.
    Reversed, and no new trial ordered.

      8. P. Bradley, for appellant Radford.

      Maybury, Lucking, Emmons & Helfman, for appellants Fales and McVittie.

      Fred A. Baker (Albert B. Hall, of counsel), for appellee.

       Rehearing denied September 10, 1908.

   McAlvay, J.

This suit was brought against defend-

ants for false representations made on the sale of certain corporate stock. From a judgment for plaintiff, defendants bring error.

The principal and controlling question in the case is whether a verdict should have been directed for defendants on account of a variance between the declaration and the proofs. In the case of Van Cleve v. Radford, 149 Mich. 106, this court had under consideration a declaration in the exact language of the one in this case, as far as the allegations of false representations and fraudulent conduct of these defendants is concerned. And the crucial question in the case was whether there was a fatal variance between the declaration and the proofs. From the similarity of these declarations it is evident that the general features of the transactions are identical. The declaration in this suit contained two counts. The first count alleged the formation of a corporation known as the “Keeley Institute,” setting forth its articles of association ; that the capital stock of the company was increased by defendants and their associates without warrant, and for the purpose of fraud, from $50,000 to $350,000, and that defendants sold 100 shares for $3,500 to plaintiff, and that, to induce the plaintiff to buy the same, defendants fraudulently represented that their title to the stock was good, the shares legally issued, etc., and that on, to wit, the 15th day of May, 1893, and for a long time previous thereto, the net earnings of the corporation were 13 per cent, on $350,000, to wit, the sum of $30,000 per annum; that the increase of the capital stock was illegal and void; that the alleged stock dividend was fictitious, defendants had no right to the shares, and that the net earnings up to and at the time of the sale were not 12 per cent, on $250,000; that there were no profits; that plaintiff relied upon these misrepresentations and bought the stock on the 15th of May, 1892, and he afterwards, upon the discovery of the fraud and on the 12th day of July, 1893, tendered the same back, etc. Inasmuch as plaintiff admits that this recovery in this case was upon the first count, it will not be necessary to give the allegations contained in the second count of his declaration. The gravamen of the charge is that defendants, by fraudulently representing to him that the net earnings of the corporation at the time of the sale and for a long time previous were 12 per cent, on $250,000, induced him to purchase and sold to him 100 shares of stock for the sum of $2,500.

We will briefly consider the sale as alleged and as proved. From a careful examination of the record, we find that among other facts the proofs establish that the sale made was a sale of one-fifth interest in this corporation for the sum of $50,000 to certain subscribers in the city of Ypsilanti, who in the record and correspondence are called a syndicate; that plaintiff was one of these subscribers ; that if this sale was made, the business was to be removed from Northville to Ypsilanti, where certain property was to be purchased. for the occupancy and use of the corporation; that a memorandum in writing of the agreement between the Ypsilanti parties and defendants was made as follows:

“ D. L. Quirk, Pres. W. L. Pack, Cashier.
“The First National Bank, Ypsilanti, Mich. 189-.
“Mrs. Swift sells her place to Co. on contract, $25,000 down, balance $15,(300 on or before one and two years, 6 per cent, (to be paid first from receipts of this institute). The present stockholders sell to your syndicate one-fifth interest in the Keeley Institute (to be removed to Ypsilanti) for $50,000 cash. Your syndicate loans to Co, $12,500 (one-half of down payment to Mrs. Swift) and takes the Co.’s note at 6 per cent. The present stockholders loan the same amount to Co. on the same terms for same purpose. These notes to be payable pro rata out of first earnings of this institute. Your syndicate and present stockholders to loan in equal portions sufficient to put Swift property in shape for business, the amount for that purpose being estimated not to exceed $5,000. The capital of the Co. to be increased to $250,000 or $500,000 as your syndicate desire.”

That plaintiff gave his check for $2,500 to Mr. Glover; that he intrusted the money in his hands, and was largely induced to enter the deal because Mr. Glover and other parties he had confidence in were interested; that Mr. Glover was active in bringing about this sale and change of location. The record further shows that the money paid by plaintiff and the other subscribers at Ypsilanti was not paid directly to defendants, but was paid into the hands of the cashier of the bank as trustee, who paid the whole amount to defendants in accordance with the proposition contained in the following letter:

“The First National Bank,
“Ypsilanti, Mich., May 14, 1892.
“Geo. W. Radford,
“ Detroit.
Dear Sir: Yours of the 12th reed. It will be impossible for me to get in today. I am on the sick list — in bed yesterday. I inclose you names of our stockholders, the list may be changed (added to) before the stock is issued. We will pay the money in to our bank here to Mr. W. L. Pack, cash., as trustee and take his receipt. Amount to be delivered to you on receipt of stock certificate, which will, I suppose, be satisfactory. Everything progressing nicely.
“Yours truly,
“J. W. Van Cleve.
“Daniel L. Quirk.
“ Helen C. Swift.
“Henry P. Glover.
“John W. Van Cleve.
“Charles E. King.
“Thomas W. Me Andrew.
“Carlisle P. McKinstry.
“Frederick E. Fisher.
“John W. Watling.
“Clark S. Wortley.
“ F. H. Pease.”

Plaintiff’s money was put into this fund by Mr. Glover who testified:

“I understood that we were paying or about to pay $50,000 for a one-fifth interest for what they had paid $30,000 for.”

He also testified that the unsigned memorandum given above was correct, and, further:

“I understood that they were to increase the capital stock to $250,000; that was part of the arrangement. No more money was to be paid in to the company. We paid in $50,000 according to that memorandum for a fifth interest, and the Detroit stockholders were to have it.”

Mr. Van Cleve, a witness for plaintiff, testified:

“Mr. Fisher (plaintiff) was one of the parties. He was one of the Ypsilanti parties that subscribed. He was one of the parties that was to buy one-fifth interest for $50,000.”

Relative to the whole sale he testified:

“Q. Was the whole sale conditioned upon your raising $50,000?
“A. $50,000; yes, sir, that was the proposition.
. “ Q. And no separate single sale to any one individual?
“A. I don’t know of any.
“Q. What is that?
“A. No.
“Q. Was it to be all one transaction — all consummated at one time ?
“A. Yes, sir; I suppose so.”

Mr. Van Cleve was the person most active in bringing about this f ale and removal. He was a subscriber and resided at Ypsilanti. After the removal to Ypsilanti he became manager of the business. The allegations in the declaration relative to this sale gave no notice to defendants of the transaction proved. In considering the fraudulent representations it will not be necessary to refer to the allegations relative to increasing the capital stock, or the title to stock issued to plaintiff, because both are relied upon as implied warranties.

It appears from the record that the only express fraudulent representation claimed by plaintiff which induced him to enter into this purchase was a certain letter written by defendant Radford to Van Cleve as follows:

“ Detroit, April 25, 1892.
“ J. W. Van Cleve,
“ Ypsilanti.
“Dear Sir: In answer to your inquiry, will say that the Keeley Institute at Northville is now paying 12 per cent, on $250,000.
Yours most truly,
“Geo. W. Radford.”

Plaintiff saw this writing in the hands of Mr. Glover, and read it. The specific allegation contained in the declaration is:

“And they did further fraudulently and corruptly and with intent to cheat and defraud said plaintiff, and to induce him to buy and pay for said shares of stock, represent to said plaintiff that at the time of said sale, to wit, on the 15th day of May, 1892, and for a long time previous thereto, the net earnings of said corporation were twelve per cent, on $250,000, to wit, the sum of $30,000.”

The letter relied on was sent to Van Cleve, who, as appears from the case of Van Cleve v. Eadford, supra, had full knowledge of all the facts. Van Cleve had no talk with, and made no representations to, plaintiff concerning this letter, nor did any other person. The allegation of the declaration is that this representation was made directly by defendants to plaintiff. The statement of the letter is that “the Keeley Institute at Northville is now paying 12 per cent, net,” etc. No statement in writing to a third person is referred to in the declaration, nor does the statement as made in the letter correspond with the allegation concerning it in the declaration. Collins v. Jackson, 54 Mich. 186; Hubbard v. Long, 105 Mich. 442, and cases cited; Bilsborrow v. Warner, Ilf Mich. 506.

The proofs of fraudulent representations do not support such, allegations. The variance was fatal, and could not be cured by amendment. The court was in error in not directing a verdict for the defendants as requested.

The judgment of the circuit court is reversed and set aside, and, as the cause of action which plaintiff’s proof tended to establish is barred by the statute of limitations, no new trial will be granted.

Carpenter, J., concurred with McAlvay, J.

Ostrander, J.

It was held in Van Cleve v. Radford, 149 Mich. 106, that none of the representations alleged to have been made to plaintiff were proved; which involved the finding, not that defendant Radford did not give to plaintiff a written statement — an apparent representation —that the institution at Northville was paying 12 per cent, net on $250,000, but that this statement, requested by Yan Cleve, and used by him to show to others, was not, to him, a representation of the fact stated. It does not follow that it was not a representation to the plaintiff in this case upon which he had the right to and did rely, to his injury. It is true the statement is addressed to Yan Cleve, who was promoting the increase of capital and the removal of the institution to Ypsilanti. It is equally true that the jury might have found from the testimony that it was made for the purpose of having it shown to those whom Yan Cleve should solicit to invest money in the venture and to induce such persons to invest. It was therefore a representation made to the plaintiff by defendant Radford. The declaration sets out the representation. If plaintiff relied upon it, if he parted with his money to the defendants, and if the representation was false, it is immaterial whether his money was placed with the money of others in effecting a transfer of an interest in the institution. Stock was to be, and was in fact, issued, and plaintiff was to have and he received his-proper number of shares. I am of opinion that the case is not ruled by Van Cleve v. Radford.

The fact that plaintiff was a member of the Ypsilanti syndicate is not decisive of his right to recover. I know of no rule of law which imputes to all of the members of a syndicate formed to purchase property the knowledge of each of the members. Van Cleve was an active promoter of the venture. He may have had knowledge of the business which the others did not possess. I do not understand that because a man induces me to invest money by untruthfully representing conditions, the fact that he also joins in the adventure makes him my agent and charges me with knowledge of a fraud in which he participates, or binds me by his knowledge that representations made to me by others are untrue. Such a rule would relieve wrongdoers if one of their number, or if a confidant, acted with those defrauded. But I concur with Mr. Justice McAlvay in holding there was a fatal variance between the case set out in the declaration and the case proved. Counsel for appellee are clearly right when they say that all of the representations alleged need not be proved. I do not place my concurrence upon the ground that plaintiff did not prove that the false representation alleged was made and was relied upon, but upon the ground that what he and his associates were to receive for their money was not stock in the Northville concern but stock in a concern to be removed to and to be operated in Ypsilanti. The action is case for damages for fraud. It is not claimed that plaintiff would have invested in the stock of the corporation except upon the consideration that it should carry on its business at Ypsilanti. I am not able to distinguish the case upon this point from Collins v. Jackson, 54 Mich. 186.

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


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    TOWNSHIP OF ECORSE v. JACKSON, ANN ARBOR & DETROIT RAILWAY.
    1. Street Railroads — Acquisition of Rights — Consent oe Property Owners.
    Where a street railroad, proceeding under Act No. 238, Pub. Acts 1901, obtained the consent of more than the necessary two-thirds of the abutting property owners without fraud, the fact that the consent of two others was obtained by fraud was not controlling.
    2. Eminent Domain — Use of Highways — Additional Servitude — What Constitutes — Street Railroads — Railroads in Streets.
    There is a well-defined distinction between the definitions of the words “railroad” and “street railway,” the former being a word of general and extended meaning, applying to all roads incorporated under the general law, and the latter being local in its signification, referring to transportation of a character entirely different from that of a general railroad; the former has always been held to impose an additional servitude upon a public way for which the abutting owners were entitled to compensation, while the latter has been held to add no such burden.
    3. Statutes — Objeots and Titles — Amendments —Harmony-Constitutional Law — Railroads—Street Railroads.
    Act No. 238, Pub. Acts 1901, the title of which discloses an intent to amend the general railroad law, offends section 20 of article 4 of the Constitution, requiring unity of object and title, inasmuch as it attempts to graft upon the general railroad law a section under which corporations organized , under it could enjoy all the rights and benefits of street railways, and acquire franchises in the public highways without limit as to time or control by local authorities.
    Appeal from Wayne; Mandell, J.
    Submitted January 14, 1908.
    (Docket No. 52.)

    Decided July 1, 1908.
    Bill by the township of Ecorse against the Jackson, Ann Arbor & Detroit Railway and others to enjoin the construction of a railway upon a highway. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      James H. Pound, for complainant.

      Graves, Hatch & Wasey, for defendants.
   McAlvay, J.

Complainant township filed its bill of complaint against the railway company, and the commis- ' sioner of highways of said township, who are the principal defendants to the suit, asking for a discovery from them to know by and under what agreement or by what right said railway claims to enter upon a highway of said township and occupy the same, and also for an injunction against them to restrain them from constructing a railway upon a certain road running through said township, and for general relief.

Defendant railway is a Michigan corporation organized under the general railroad law of the State. Application was made by it through its vice-president, who appeared before the township board, for a perpetual right of way for a street car line on Fort street boulevard in said township, such right of way to take 24 feet from the center of the highway. Objections were made to a perpetual franchise, to a T rail as proposed, and also to the proposed crossings. Nothing further was done before the board. Defendant railway proceeded to enter upon said highway and to take possession of 24 feet in the center thereof and to construct a railway thereon, laying an ordinary T rail. This it now appears was done under claimed authority of defendant highway commissioner, who, without the knowledge or consent of complainant, entered into an agreement with defendant railway authorizing it to construct such railway and to enjoy its franchise without limit as to time. This agreement was not filed or recorded until after this suit was commenced.

The authority under which the highway commissioner acted is given by Act No. 238, Pub. Acts 1901, which provides as follows:

“Section 1. That article two of chapter one hundred sixty-four of the Compiled Laws of the State of Michigan of the year eighteen hundred ninety-seven, said chapter one hundred sixty-four being ‘ An act to revise the laws providing for the incorporation of railroad companies and to regulate the running and management, and to fix the duties and liabilities of all railroads and other corporations owning or operating any railroad in this State,’ be amended by adding a new section thereto, to be known as section fifty-one, and read as follows:
“Sec. 51. When any corporation is organized under this act for the purpose of constructing, maintaining and operating a street, suburban or interurban railroad, whose cars shall be operated by motive power other than steam engines, such railroad may be constructed upon any public street, lane, alley or highway of any village on such terms and conditions as shall be agreed upon between the railroad company and the village board of such village; and such railroad may be constructed upon any public street, lañe, alley or highway of any township on such terms and conditions as shall be agreed upon between the railroad company and the commissioners of highways of such township: Provided, The railroad company shall have obtained the consent to the construction thereof of two-thirds of the owners of property adjoining the roadbed of such railroad in such township; and if such consent from any owner cannot be obtained by agreement, then for such consent compensation shall be made by the railroad company to such owner, which shall be ascertained as herein prescribed for. obtaining property or franchises for the purpose of its incorporation.”

The claim of complainant that all of the signatures of owners giving consent to construction, required by statute, were fraudulently obtained is not supported by the record. Of the two instances relied upon as fraudulent, but one of them can be said to support the claim, although the testimony indicated that absolute frankness was not used in the other case. This cannot be in any way controlling, for the reason that more than the required two-thirds of the property owners were secured.

The trial court denied the relief prayed, and dismissed the bill of complaint, without costs. The first question raised by the complainant is, that the act under which defendant corporation claims to be authorized to enter upon and occupy the highway in question, and construct a railway thereon by an agreement with the highway commissioner, violates article 4, section 20, of the Constitution, which provides that no law shall embrace more than one object which shall be expressed in its title.

It will be seen from the entitling of the general railroad law given above in the act of 1901, that the object provided for is the incorporation of railroad companies, and to regulate the running and management, and to fix the duties and liabilities of all railroads, and other corporations owning and operating any railroad in this State. The general railroad law in practically its present form embodied in chapter 164, 2 Comp. Laws, is the revision of 1873. Both before and since that revision, many of its provisions have been before this court for construction. Previous to 1871 the general railroad law contained no authority for the use of streets. In 1871 authority was given to lay railroads in streets under certain conditions, one of which was the payment of damages and compensation to abutting owners before occupation by the railroad. Since that time, this requirement has been upon our statute books and remains unrepealed. In recent years conditions in cities and the more densely populated communities have required methods of transportation of the inhabitants which would relieve the congestion of the streets in such places, and from these conditions has grown up the street railway system of the country. Laws have been enacted authorizing corporations to be organized for the purposes of constructing, owning, and operating these street railways. This system has in time extended to what has been called suburban and interurban railways. In this State until the enactment of the act of 1901, relied upon by defendants, the operation and construction of these street railways has not been authorized under our general railroad law. Under the laws authorizing the construction and operation of street railways before the act of 1901, decisions have been rendered by this court, supported by the decisions of the courts of last resort of some other States, holding that such railways constructed upon and along the public highways were not an additional servitude and that the abutting owners could not recover damages by reason of the use of such highways for that purpose. Detroit City Ry. v. Mills, 85 Mich. 684; People, ex rel. Kunze, v. Railway Co., 92 Mich. 522 (16 L. R. A. 752); Dean v. Railway Co., 93 Mich. 330. Judge Cooley, in Grand Bapids, etc., R. Co. v. Heisel, 38 Mich. 62, said of a street railway:

“ So far from constituting a new burden, it is supposed to be permitted because it constitutes a relief to the street; it is in furtherance of the purpose for which the street is established and relieves the pressure of local business and local travel instead of constituting an embarrassment. * * * It is enough that the use of the street for a city railway is a proper use and therefore a lawful use.”

Upon this and similar reasoning it has been held by this court that a street railway is not an additional servitude.

The object of the amendment of 1901 was to graft onto the general railroad law a section under which corporations organized under it could enjoy all the rights and benefits of street railways, and the further right in townships to acquire franchises in the public highways without limit as to time, and without any control by the municipality as to fares, speed, and many other matters, at least as far as the provisions of the amendment are concerned; all this to be accomplished by an agreement with a highway commissioner after obtaining consent of two-thirds of the abutting owners:

The object expressed in the entitling of the act has already been stated. The object contained in this amendment is not expressed in that entitling. The amendment was not germane to the purposes of the general railroad law. No street railway‘was ever contemplated in and by its terms. A reading of the entitling would give no intimation of the object in the body of the amendatory act. There is a well-defined distinction between the definitions of the words “railroad ” and “ street railway.” One is a word of general and extended meaning applying to all roads incorporated under the general law. The other is local in its signification, referring to transportation of a character entirely different from that of a general railroad. One has always been held to impose an additional servitude upon a public way for which abutting owners were entitled to compensation; the other, as already stated, has been held to add no such burden. The act amended did not provide for the incorporation of street, suburban, or interurban railways, as might be inferred from reading the amendment of 1901. In the Mills Case, supra, the writer of the majority opinion recognized the fact that the general purpose of the law then under construction (being the train railway act) was to provide for local transportation only, as distinguished from transportation by railroads generally.

In the Heisel Case, supra, Mr. Justice Cooley distinguished between railroads and street railways. He said:

‘ ‘ It is, to my mind at least, doubtful whether it is competent for the public authorities to bind the interests of individuals by any consent they may give to the occupation for railroad purposes of a public highway, when the land over which the highway is laid is owned by private parties. If the railroad were only a city railway constituting a mere local convenience, and calculated to relieve the pressure of traffic and travel upon the street, the question of course would be different. * * * A street railway for local purposes, so far from constituting a new burden, is supposed to be permitted because it constitutes a relief to the street. * * * But we "cannot say the same in the case of the ordinary railroad. It is not usual for such a road to be laid in one of the public highways, and the cases in which it is permitted are exceptional. For that reason, therefore, if for no other, the owner whose land is taken for a highway * * * cannot be understood to have assented to its being appropriated * * * to railway purposes at the discretion of the public authorities, and to have been compensated for such appropriation. Neither can the use of the highway for the ordinary railway be in furtherance of the purpose for which the highway is established. * * * The two uses, on the other hand, come seriously in conflict; the railroad constitutes a perpetual embarrassment to the ordinary use.”

This quotation is made to show the view of the learned Justice in distinguishing between them as to their objects and uses, as well as to accentuate the proposition that the object of the amendatory act was not expressed in the title of the amended act. The object of that act was to provide for the incorporation of companies to engage in State-wide transportation.

It is unnecessary to extend the discussion. Much might be said in support of the argument concerning the system of taxation and of State and municipal control of, and restrictions upon, ordinary railroads.

The question as to whether corporations organized under the general railroad act can be authorized to construct, own, or operate street railways is not before us, and we do not express any opinion upon that question. We do decide that this act of 1901 is unconstitutional and void for the reasons given, and therefore does not confer authority upon defendant corporation to do the acts complained of in this case.

The decree of the circuit court is reversed, and a decree will be entered in favor of complainant, and defendants will be perpetually enjoined from doing the acts complained of, with costs of both courts.

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


author: Carpenter, J. Montgomery, J.

text:
    FOSTER v. WATSON.
    1. Courts — Decisions—Stare Decisis.
    Mere failure of the court in a decision to apply an applicable rule of law announced by previous decisions, the rule not being discussed nor considered, casts no doubt upon the correctness of the rule.
    2. Certiorari — Propriety — Review op Justice’s Judgment — Matters Considered — Rulings on Evidence.
    Certiorari is inappropriate to review rulings of a justice of the peace on the admission of testimony of an inconclusive character, appeal being the proper remedy in such cases. Montgomery, Hooker, and Moore, JJ., dissenting.
    3. Appeal and Error — Review—Questions Considered — Certiorari.
    On error to review the judgment of the circuit court on certiorari to review the judgment of a justice of the peace, the court will not consider a question not made in the circuit court nor presented by the affidavit for the writ of certiorari.
    Error to Chippewa; Steere, J.
    Submitted January 30, 1908.
    (Docket No. 94.)
    Decided July 1, 1908.
    Assumpsit in justice’s court by Henry B. Foster against John Watson and William J. Armstrong on a promissory note. There was judgment for plaintiff, and defendants appealed to the circuit court by writ of certiorari. There was judgment affirming the judgment of the justice’s court, and defendants bring error.
    Affirmed.

      V. G. Lanning, for appellants.

      Davidson & Hudson, for appellee.
   Carpenter, J.

Plaintiff brought suit in justice’s court to recover on a certain instrument executed and delivered by defendant. The instrument was payable to W. J. Armstrong, or order. The evidence proved plaintiff to be a bona fide holder. The justice held that the instrument was negotiable and he therefore excluded evidence offered by defendant tending to prove a failure of consideration, and rendered judgment in favor of plaintiff. Defendant thereupon had this judgment reviewed in the circuit court upon a writ of certiorari. He contended that the instrument sued upon was not negotiable, and therefore that the justice erred in excluding the proffered evidence. The circuit court affirmed the judgment rendered by the justice. Defendant thereupon obtained a writ of error from this court and now asks a reversal of the judgment in the circuit court and of the judgment in the justice’s court.

Can defendant review the alleged error of the justice by a writ of certiorari ? At most the justice erred in declining to admit the evidence proffered by defendant tending to prove failure of consideration. It cannot be said that the admission of this testimony would have resulted in a judgment in defendant’s favor. The most that can be said is that defendant suffered a technical legal prejudice by the ruling complained of and the proper remedy in an appellate court would be to reverse the judgment and grant a new trial.

Can this ruling be reviewed upon a writ of certiorari ? In Howell v. Shepard, 48 Mich. 472, this court decided that a ruling of a justice erroneously admitting in evidence a certain deposition could not be reviewed by certiorari, saying:

‘ ‘ If the defendant considered himself wronged by its reception, he should have appealed. The remedy by certiorari is not one to be encouraged when the alleged errors are such as might have been obviated on a trial de novo in the circuit.”

Preceding the above quotation there is in the opinion this sentence:

“The deposition does not appear in the return, and may, for anything that does appear, have been of no moment in the case.”

From this and from the language above quoted, Justice Montgomery says the opinion “ plainly implies that had it appeared that the deposition was of a character which worked an injury to the plaintiff in certiorari, the court would have felt bound to review the ruling.” I think this is fully answered by the statement in the opinion: If the defendant considered himself wronged by its reception, he should have appealed

In Erie Preserving Co. v. Witherspoon, 49 Mich. 377, in an opinion of this court by Justice Cooley, it is said:

“Of the fifteen errors assigned in the affidavit for certiorari, fourteen relate to the rulings of the justice on the admission of evidence. In nearly every case the point made is somewhat nice and there is no reason to doubt that the justice decided according to his best judgment. We do not discover that any evidence was excluded which could have aided the defendants, or any received that was clearly improper. It is probable that on some points the case was not very completely made out, but none of the objections taken were such as would necessarily defeat the plaintiff’s recovery, though if sustained, some of them might have rendered further proofs essential.
“Where the alleged errors of the justice go to the foundation of the action, it is proper to review them on certiorari; but where they occur in the course of the trial, and are of such a nature that they might be obviated on a new trial, a new trial is obviously the proper remedy. The writ of certiorari is not given to enable parties to have a technical review of all the justice’s rulings, but to afford a speedy and inexpensive remedy for substantial faults; and where the case is one to be determined on disputed facts, the party dissatisfied with the judgment should remove it to the circuit court for trial on the facts, instead of seeking a reversal on technical grounds without an investigation of the merits. Bitter v. Daniels, 47 Mich. 617. It is not the policy of the law to encourage a choice of remedies that tends to multiply litigation, and to make judgments depend upon something else than a consideration of the real merits in controversy.
“We think the circuit court should not have reversed the justice’s judgment, and its judgment must be set aside and that of the justice affirmed.”

In Galloway v. Corbitt, 52 Mich. 460, this court, speaking through Mr. Justice Champlin, said:

“This court has heretofore expressed its disapprobation of the practice of taking advantage of technical errors in the proceedings before justices of the peace, by the process of certiorari, thus converting what was designed tobe a speedy and inexpensive court for the trial of causes into a costly and dilatory tribunal, and often in its practical operation, through serious delays, defeating the ends of justice; and we are of opinion that except for errors which go to the foundation of the action, the proper remedy is by appeal,” citing Erie Preserving Co. v. Witherspoon, supra.

In Morrison v. Emsley, 53 Mich. 564, upon a writ of certiorari, the circuit court reversed a judgment rendered for the defendant in justice’s court because of an erroneous ruling excluding testimony tending to prove that plaintiff was an infant at the time he entered into the contract involved in the suit. The case was then brought to this court by writ of error, and the judgment of the circuit court was reversed. The unanimous opinion of the court was written by Justice Campbell. The opinion, after stating that the ruling of*the justice was erroneous, proceeds:

“Had the testimony concerning the age of plaintiff been received and retained, it by no means follows that the justice would have been bound to give it full credit, or that defendant might not have contradicted it. There were circumstances sworn to by plaintiff which threw doubt upon it. * * * The fact of age would have been open to dispute.
“If such an error had been committed in a circuit court, the only result would have been a new trial, when all these matters could be litigated. But when a justice’s judgment is reversed on certiorari the whole case falls, whereas on appeal the appealing party will prevail at the circuit on a trial of the facts if he makes out his case, but the adverse party also has a fair chance to meet that case.
“It is not the proper office of a certiorari to reverse ■ proceedings on defects which are not calculated to reach the substance of the controversy. The statute contemplates that on a certiorari from a justice the appellate court may do substantial justice on the whole merits. But this is impossible where the reversal is for the exclusion of testimony which is not of a conclusive character. And it may easily happen that a reversal in such a case may be had, to a destruction of justice, by loss of remedies, or other circumstances of prejudice. While there may not be an absence of jurisdiction to issue a writ in such cases, it is usually a bad practice, and should not be encouraged unless circumstances are exceptional. The conditions of appeal are as readily performed as those of certiorari and the remedy is far more appropriate.”

It is true, as stated by Justice Montgomery, the opinion in Morrison v. Emsley pointed out another ground for reversing the judgment of the lower court, viz., an irregularity in the service of the writ of certiorari. But of that the court said: “We are not disposed to decide the case on this merely technical ground,” and then proceeded to state what is above quoted. I submit that under these circumstances I am warranted in maintaining that the real ground upon which that decision rests is that a writ of certiorari is not the proper writ in which to review rulings of a justice of the peace excluding testimony not of a conclusive character.

In Gray v. Willeox, 56 Mich. 58, in an opinion delivered by Justice Champlin, it is said:

“All of the objections taken by defendant in the course of the proceedings were exceedingly technical, and did not involve the merits of the controversy, and if they should be held legal and valid would not determine the rights of the parties in the subject-matter of the suit, but would merely turn the party over to another action. In such cases, we think the party who feels aggrieved at the result of the trial should, if he desires to remove the case to the circuit court, take it there by appeal instead of certiorari.”

In Mann v. Tyler, 56 Mich. 564, Chief Justice Cooley, speaking for the court, said:

“ Certiorari, in cases which stand upon facts, is a remedy not favorable to justice, because it may set aside a righteous judgment upon errors more technical than substantial.”

In Stoll v. Padley, 98 Mich. 18, it was said by the court, speaking through Mr. Justice Montgomery :

“We think none of the alleged errors went to the jurisdiction of the justice. It may prove of little avail to repeat what the court has so frequently said, — that the more appropriate remedy in such cases as the present is by appeal. [Citing cases.] Undoubtedly, the party has a right to resort to certiorari, but if he does he must do so at the risk of failing to ‘hit the bird in the eye’ and at the risk of losing a trial on the merits in case of such failure. ”

Opposed to the foregoing decisions is Whittle v. Bailes, 65 Mich. 640. There this court held that certiorari was the proper remedy to review a ruling of a justice of the peace improperly excluding testimony offered by the defendant. That opinion was delivered by Justice Champlin, and respecting the point in question, he states:

“It is also claimed that the circuit judge erred in reversing the judgment, inasmuch as if the proffered evidence had been received it was not indisputably conclusive, nor would it have changed the result of the judgment before the justice. * * * Had he [defendant] shown all he attempted to, it may not have changed the results before the justice, but it ought to have done so, and doubtless would, as it is to be presumed that the justice was a conscientious, upright magistrate.”

This opinion contains no reference whatever to the opposing cases heretofore cited, nor to the doctrine therein announced, and .to reconcile it with those cases and their underlying principle is an impossible task. Whittle v. Bailes decides this proposition, viz., that an erroneous ruling of a justice refusing to admit testimony proffered by the defendant party — and which is claimed by him would establish his right to recover if he be plaintiff, or his defense if he be defendant — may be redressed by a reversal of the judgment upon a writ of certiorari. In such a case and in all such cases it cannot be known either in the justice’s court or in the appellate court what would have been proved by the testimony which was proffered and excluded. It cannot be known and it cannot therefore be said that the excluded testimony was of a conclusive character. Whittle v. Bailes is therefore in direct conflict with Morrison v. Emsley, 53 Mich. 564, heretofore referred to. For there it was decided that a writ of certiorari could not be used to review a ruling “ for the exclusion of testimony which is not of a conclusive character.” It is also in conflict with the ruling laid down in many of the other cases heretofore cited, viz., that certiorari is not the remedy where “the alleged errors are such as might have been obviated on a trial in the circuit.” This court must then overrule either Whittle v. Bailes or Morrison v. Emsley and the line of cases which supports the rule it applies. There is little difficulty in making our choice. The rule governing Morrison v. Emsley was deliberately adopted. It was a wise rule and in the interest of justice. The effect of using a writ of certiorari to redress errors which might be obviated by a new trial would convert what was designed to be a speedy and inexpensive court for the trial of causes into a costly and dilatory tribunal, and often in its practical operation, through serious delays, defeat the ends of justice.” Nor can we impute to the learned Justices who participated in deciding Whittle v. Bailes the intention of changing this rule. Had they intended to overrule these cases they would have referred to them. It is rather to be inferred that Whittle v. Bailes was hastily and inconsiderately decided. (It was argued April 12, 1887, and decided April 28, 1887.) There the court made an unintentional departure from the established rule.

It is said that Whittle v. Bailes is sustained by other decisions of this court. We are referred to Drovers’ Nat. Bank v. Blue, 110 Mich. 31; Boatz v. Berg, 51 Mich. 8; and Eldridge v. Hubbell, 119 Mich. 61. We will examine these cases. The most that defendant can claim for Drovers' Nat. Bank v. Blue is that the court failed to apply the rule. The rule, however, was not discussed or considered. Neither the case of Whittle v. Bailes nor Morrison v. Emsley was referred to. Under these circumstances that decision casts no doubt upon the correctness of the rule. See Andrews v. Booth, 148 Mich. 333, and authorities there cited.

Boatz v. Berg, 51 Mich. 8, and Eldridge v. Hubbell, 119 Mich. 61, are much alike. In each of these cases the ruling of the justice complained of — and which it was held might be reversed by certiorari — deprived the defeated party of the kind of trial he was entitled to have. In Boatz v. Berg, the justice improperly refused to give the defeated party a trial by jury. In Eldridge v. Hubbell, the justice by an improper ruling — a ruling giving the prevailing party the right to a peremptory challenge of jurors —deprived the defeated party of a trial by the jury to which he was entitled. It was held — and reluctantly held — that this ruling might be reviewed by writ of certiorari. I do not understand that it was intended in Eldridge v. Hub-bell to overrule Morrison v. Emsley, and the line of cases supporting the principle therein declared. I do not understand that it was decided in Eldridge v. Hubbell that the rulings of a justice made in the course of a trial might be reviewed by writ of certiorari. I understand that it was merely decided, as there stated, “ a question of this nature” — that is, decisions of the justice which deprived the defeated party of the kind of trial he is entitled to have — ‘‘may be reviewed by certiorari.” Construing Eldridge v. Hubbell in accordance with this understanding, it has no relation to the case at bar, and the same may be said of Boatz v. Berg, in which case the propriety of reviewing the ruling by writ of certiorari was not discussed.

There is also a line of cases commencing at a very early date and continuing to the present time (see Cicotte v. Morse, 8 Mich. 424; Berry v. Lowe, 10 Mich. 9; Chicago, etc., B. Co. v. Peters, 45 Mich. 636; and Bullock v. Ueberroth, 121 Mich. 293) which hold that when the plaintiff has entirely failed to prove his case a judgment rendered in his favor by the justice will be reversed by certiorari. It may be suggested that since in such cases the failure of proof may be generally obviated by a new trial, it should have been held within the rule stated in this opinion that the proper remedy was appeal and not certiorari. Perhaps this is true. If so, it only proves that the court did not extend said rule to its logical consequence. This does not, however, justify our denying the rule altogether and declaring that it does not apply in cases where the court has authoritatively determined it does apply. We must therefore distinguish — and I think there is a distinction — between cases where plaintiff has entirely failed to prove his cause of action and cases where testimony not of a conclusive character is excluded. The one class may be reviewed by certiorari; the other cannot.

The only case therefore that presents a serious obstacle to our following Morrison v. BJmsley, and the rule there approved, is Whittle v. Bailes. For reasons heretofore stated, the latter case must be overruled and the rule observed. That rule required defendant to seek relief by appeal and not by certiorari. By seeking relief by certiorari he chose the wrong remedy and cannot obtain relief.

The point is also made that within the rule of Cicotte v. Morse and Bullock v. Ueberroth, supra, the judgment is erroneous, because there was no evidence to support it. This point was not made in the circuit court and it was not raised in the affidavit for the writ of certiorari. We cannot therefore consider it. Drake v. Harvester Co., 150 Mich. 561.

The judgment is affirmed.

Grant, C. J., and Blair, Ostrander, and McAlvay, JJ., concurred with Carpenter, J.

Montgomery, J.

I regret that I am unable to agree with the opinion of my Brother Carpenter. I regret this all the more for the reason that I would be very glad to see the remedy of certiorari circumscribed and limited as his opinion would result in limiting it. But I cannot agree that the prior decisions of the court should be interpreted as having denied the right to review by certiorari a ruling of the character involved in the present case. Were we dealing with the question with plenary power to fix the rule, I should not hesitate to declare in favor of a rule that would compel resort to the remedy by appeal in all cases where the defeated party might by a retrial in the circuit have a determination of his rights. But admittedly no such broad rule as that has ever been established by the court, and there is a multitude of cases in which resort has been permitted to review by certiorari rulings which might have been corrected by a new trial in the circuit.

The first case cited by Mr. Justice Carpenter is Howell v. Shepard, 48 Mich. 472. I do not construe this case as holding that the rulings which exclude testimony which goes to the merits of the case may not be had upon certiorari. On the contrary, I think the exact opposite is implied. The error relied upon was error in admitting in evidence a deposition which was taken on insufficient notice. It was said:

“The deposition does not appear in the return, and may, for anything that does appear, have been of no moment in the ease. If the defendant considered himself wronged by its reception, he should have appealed. The remedy by certiorari is not one to be encouraged when the alleged errors are such as might have been obviated on a trial de novo in the circuit, and nothing will be taken by intendment in favor of errors assigned upon it.”

I think this plainly implies that had it appeared that the deposition was of a character which worked an injury to the plaintiff in certiorari, the court would have felt bound to review the ruling.

So in Erie Preserving Co. v. Witherspoon, 49 Mich. 377, in referring to the rulings on the admission of testimony, it was said:

“We do not discover that any evidence was excluded which could have aided the defendants, or any received that was clearly improper. It is probable that on some points the case was not very completely made out, but none of the objections taken were such as would necessarily defeat the plaintiff’s recovery, though if sustained, some of them might have rendered further proofs essential.”

’ It was with reference to this state of facts that the holding was made, and it was said:

“It is not the policy of the law to encourage a choice of remedies that tends to multiply litigation, and to make judgments depend upon something else than a consideration of the real merits in controversy.”

So in Galloway v. Corbitt, 52 Mich. 460. The error assigned was that the justice had entered the jury room and advised the jury during its deliberations. The court say:

“We have here, from the justice’s return, a statement of all that occurred, and in passing upon this question we must take his return as true. We cannot say that it was an error that prejudiced the rights of the defendant.”

It will be seen that the court actually dealt with the error assigned while availing itself of the opportunity to again reiterate that a more appropriate remedy would have been an appeal to the circuit court where the case could have been tried and determined upon its merits. The court again expressed its disapprobation—

“ Of the practice of taking advantage of technical errors in the proceedings before justices of the peace, by the process of certiorari, thus converting what was designed to be a speedy and inexpensive court for the trial of causes into a costly and dilatory tribunal, and often in its practical operation, through serious delays, defeating the ends of justice; and we are of opinion that except for errors which go to the foundation of the action, the proper remedy is by áppeal.”

This is not inconsistent with a review of an error which excludes offered testimony which goes to the merits of the case.

In Morrison v. Emsley, 53 Mich. 564, the court first determined that the writ of certiorari was not served within the time required by statute, and that the circuit court should have dismissed the writ for the reason that the irregularity was sufficient and the case entirely wanting in merits. It was said:

“The statute contemplates that on a certiorari from a justice the appellate court may do substantial justice on. the whole merits. But this is impossible where the reversal is for the exclusion of testimony which is not of a conclusive character. And it may easily happen that a reversal in such a case may be had, to a destruction of justice, by loss of remedies, or other circumstances of prejudice. While there may not be an absence of jurisdiction to issue a writ in such cases, it is usually a bad practice, and should not be encouraged unless circumstances are exceptional. The conditions of the appeal are as readily performed as those of certiorari and the remedy is far more appropriate.
In the present case, whatever may be plaintiff’s rights, if he really was a minor, there is nothing on the record to indicate that he could insist on them honorably. The case does not appeal to indulgence.”

It will be noted that it was only by an indulgence of the court that the case could have been reversed on the ground of the exclusion of testimony in this case, as the plaintiff in certiorari had failed to serve his writ within the time fixed by the statute.

So in the case of Gray v. Willcox, 56 Mich. 58, the court reviewed at length the rulings of the justice of the peace on the admission of testimony, finding in effect that no prejudicial error had been committed, and after stating that the objections taken by the defendant did not involve the merits of the controversy, and that if they should be held legal and valid they would not determine the rights of the parties in the subject-matter of the suit, but would merely turn the parties over to another action, and that in such case the party who feels aggrieved should resort to appeal instead of certiorari, it was said:

“If, instead of appeal, the party resorts to certiorari,
the law contemplates that all technical omissions, imperfections, or defects in the proceedings before the justice, which do not affect the merits, will be disregarded, and judgment will be entered as the right of the matter may appear. * * *

“ In this case the circuit court held that there appeared no error affecting the merits of the controversy between the parties either in the record and proceedings or in the giving of judgment, and therefore affirmed the same.”

This was by no means holding that the court would not review the rulings in a case if they were such as to affect the merits.

In Mann v. Tyler, 56 Mich. 564, testimony was given by the defendant on the trial of the case in which he sought to show that the note sued upon was for too large a sum, and that he had made previous payments on account of the transaction which should have been deducted before the note was given. Testimony is quoted showing that he knew of all the claims he then made before the note was given, and made no answer to the question as to whether the note was given for the balance found due on the purchase of the piano. The plaintiff then moved to strike out the testimony, which motion was allowed. It is significant that the court said:

“Had he been trying the case with a jury, it would have been erroneous, because it would have taken the evidence entirely away from the jury; but he was sitting alone, and the evidence was addressed only to him. When he struck it out as immaterial, he merely decided in effect that it had no important bearing in the case, and ought therefore to be disregarded; and if he returns the facts truly, we cannot say he erred. Presumptively, the note was given for the actual balance due, and defendant did not state facts in his evidence which would overcome this presumption.”

The court further said:

“The return as actually made by the justice shows no ground of error on which, in our opinion, we should be warranted in reversing his judgment. If it is reversed, therefore, it must be either because the circuit court re-
fused to require a further return, or upon the grounds alleged or suggested in the last assignment of error.”

But holding that these were not permissible, the court said:

“ Certiorari, in cases which stand upon facts, is a remedy not favorable to justice, because it may set aside a righteous judgment upon errors more technical than substantial. For this reason intendments should be against error on doubtful facts; not in favor of it. The remedy more conducive to justice manifestly is an appeal.”

This, again, is far from saying that a remedy by certiorari is not open.

In Stoll v. Padley, 98 Mich. 13, after citing these cases and condemning the practice of resorting to certiorari when appeal is open, the court said:

Undoubtedly, the party has a right to resort to certiorari, but if he does he must do so at the risk of failing to hit the bird in the eye, ’ and at the risk of losing a trial on the merits in case of such failure.”

This certainly does not support the view that certiorari is not a remedy open to the party. It is but another way of asserting again that when certiorari is resorted to, intendments would be in favor of the ruling of the justice.

It appears to be conceded that the case of Whittle v. Bailes, 65 Mich. 640, is an authority directly in point. That case holds that the exclusion of evidence proper to be considered which goes to the merits of the case may be alleged as ground of error on certiorari. It is suggested in the opinion of Mr. Justice Carpenter that this opinion was perhaps not well considered, and that Morrison v. Emsley was overlooked. I think there are abundant reasons why this should not be said: First, I have endeavored to point out that Morrison v. Emsley is not necessarily in conflict with Whittle v. Bailes; second, Mr. Justice Champlin, who wrote the opinion in Whittle v. Bailes, participated in the decision of Morrison v. Emsley, as did the other members of the court who signed his opinion; third, an examination of the briefs in the case discloses that a distinct point was made that this question ought not to be reviewed on error for the reason that the evidence, had it been received, would not have been indisputably conclusive. And in the brief, Howell v. Shepard, Erie Preserving Co. v. Witherspoon, Galloway v. Corbitt, and Morrison v. Emsley (cited as Morrison v. Grezley, 53 Mich. 564) were all cited, and it is to be presumed were considered by the court.

Drovers’ Nat. Bank v. Blue, 110 Mich. 31, was a case in which the precise question involved was whether there was error in excluding testimony, and this question was reviewed on certiorari. It is true the question of remedy was not discussed, but the exercise of jurisdiction in harmony with the ruling in the earlier cases is clearly some , evidence of what the court conceived the proper practice to be.

So in Eldridge v. Hubbell, 119 Mich. 61, the court again expresses its regret that certiorari is open to review questions which might be raised by appeal. The court say:

“We regret to say that, under the rules early established, a question of this nature may be reviewed by certiorari. [Citing cases.] We say we regret the existence of this rule for the reason that we are convinced that the remedy by appeal is ample in all cases where jurisdiction of the cause is obtained by the justice. We have, in numerous cases, pointed out that appeal is the better remedy. But, in the absence of legislative restriction, we can go no further than to require that, if the aggrieved party resorts to certiorari, he make the error to appear affirmatively and clearly.”

Among the cases cited to sustain this holding was Whittle v. Bailes, 65 Mich. 640. If we could not, except by main strength, deny the existence of the remedy in that case, I cannot understand why we should do it now. It is suggested that it was probably not intended in Eldridge v. Hubbell to overrule Morrison v. Emsley, supra, and the line of oases supporting the principle therein declared. It was certainly not the purpose to overrule those cases, but it was the purpose to construe the previous holdings of the court, a feat which I think was successfully accomplished in Eldridge v. Hubbell.

In principle, the cases of Cicotte v. Morse, 8 Mich. 424, Berry v. Lowe, 10 Mich. 9, Chicago, etc., B. Co. v. Peters; 45 Mich. 636, and Bullock v. Ueberroth, 121 Mich. 293, are in point. In each of these cases, a review was had by certiorari of rulings of the justice which might have been remedied by a new trial on appeal. There is no fair distinction between a case in which the plaintiff has wholly failed to make out a case by his testimony and yet secured a judgment, as in Bullock v. Ueberroth, supra, and one in which the defendant has been prevented from defeating the plaintiff’s case by an erroneous ruling of the justice and the plaintiff thus obtains a judgment, as in the present case. The real question is whether there is a legal right to review by certiorari a ruling of the justice which might moré appropriately be considered, perhaps, by an appeal on the merits of the case. That the practice has obtained through all the court’s history of reviewing such rulings, subject only to the limitation that the burden is put upon the plaintiff in certiorari to make the error appear clearly, and that nothing will be taken in his favor by intendment, I think I have demonstrated.

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


author: Hooker, J. Ostrander,. J. Carpenter, J.

text:
    RICHARDS v. WALTZ.
    1. Animals — Killing Animals — Cutting Ice — Barricading Openings — Statutory Duty — Effect of Neglect.
    Act No. 221, Pub. Acts 1899, making it the duty of ice cutters to barricade openings in the ice, was not intended to protect or prevent injury to unattended animals, and does not create a liability in favor of the owner of a cow allowed to go unattended to a lake to drink and drowned in an unprotected hole in the ice made by defendant. Carpenter, Montgomery, andMoALVAY, JJ., dissenting.
    2. Same — Contributory Negligence.
    Where plaintiff knew that ice was being cut in a lake near his home, and presumably knew the character of the barricade required by the statute to be erected about the cutting, he was not free from negligence in allowing his cattle to go to the lake unattended to drink. Carpenter, Montgomery, and MoAlvay, JJ., dissenting.
    Error to Muskegon; Sessions, J.
    Submitted January 21, 1908.
    (Docket No. 103.)
    Decided July 1, 1908.
    Case by Louis Richards against Fred Waltz and others for the negligent killing of plaintiff’s cow. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Cross, Lovelace & Boss, for appellant.

      Turner & Turner, for appellees.
   Hooker, J.

The plaintiff is a resident of the unincorporated village of Twin Lake, which is upon the east shore of a body of water called Twin Lake, and some of the streets of which are said to run to the shore of the lake. He was the owner of some cows. In conformity to his daily practice, he turned these cows and a horse into the highway, about ten o’clock in the forenoon, and paid no further attention to them until about half past twelve, when he heard that one was drowned in the lake at a place where the defendants had made a hole by cutting and removing ice.

The plaintiff testified that he and others had been in the daily habit of opening drinking holes through the ice at the edge of the lake in the village, and he testified that he turned his animals out to water them at the lake about 40 rods from his house. He stated that he knew it to be the habit of people generally to gather ice from this lake every winter, and that parties cut ice every winter at the place where the cow was drowned, and he knew that they were cutting there that winter, though he had not been down there, and he knew it when he let the cow out. The cow was drowned at a point some 80 rods from the premises of the plaintiff. The cow did not go upon the lake at the drinking place, but, as plaintiff stated, left the highway and crossing private property owned by one Duff, about five rods, went upon the lake, and thence four rods further to the place of drowning, which was at least 40 rods distant from the drinking place. He said that at the time he let the cows out he “did not go down to inspect the hole where they were cutting ice, he paid no attention to it.” He did not testify that he supposed barricades were up, or even that he did not understand that they were not up, so far as we can discover from the record.

There are two counts in this declaration, one an ordinary common-law count for negligence, and the other pleading the statutory duty of erecting barricades, etc., i. e., Act No. 221, Pub. Acts 1899. So far as the first count is concerned, if it can be said that the acts of defendants would be negligence in the absence of the statute, which we doubt, the conduct of the plaintiff in turning out his cows, and leaving them to stray where they pleased, amounted to contributory negligence under the rule of the following cases. Robinson v. Railroad Co., 79 Mich. 323; Niemann v. Railroad Co., 80 Mich. 199; Wright v. Railway Co., 12 N. Dak. 159.

It is clear, however, that the defendants failed to perform the statutory duty of erecting barricades, and it is urged that an action for negligence may rest upon that in a proper case, although the act does not expressly provide for it, as some statutes do.

It was entitled:

“An act to compel parties engaged in securing ice to erect suitable danger signals and barricades, designating what officials it shall be the duty of to see that the provisions of this act are complied with,” etc.
“ Section 1. That it shall be the duty of any person or persons who are, or who hereafter may be, engaged in the procuring of ice from any of the streams, ponds or lakes of this State to erect, or cause to be erected, place, or caused to be placed, at or near all places where they shall be cutting ice, suitable danger signals and barricades. Such barricades shall consist of cross bars upon which a pole, rope, chain or rail shall be laid at a height not less than three feet above the ice and shall be placed not less than ten feet from the edge of the opening.
“Sec. 2. It shall be the duty.of the harbor-master at all places where there is such an official having control of a stream or lake within this State, and where there is no such an official having control as aforesaid, it shall be the duty of the supervisor or other assessing officer in whose assessment district such stream or lake is situated, to see that the provisions of section one of this act are complied with.
“Sec. 3. Any person or persons who shall neglect or refuse to comply with the provisions of this act shall be deemed guilty of a misdemeanor, and shall, on conviction thereof, be punished by imprisonment in the county jail not more than three months, or by fine not exceeding one hundred dollars, or by both such fine and imprisonment, in the discretion of the court.”

It is apparent from the title and provisions of this act that it did not contemplate an effective barricade against animals, for small animals could easily go under it, and a slight effort would throw it down, and we feel justified in saying that the act was not designed to so change the law of negligence as to impose a liability for animals which should wander upon streams and lakes and be drowned. We are also of the opinion that plaintiff’s contributory negligence is a complete defense. We do not overlook the cases of Flint, etc., R. Co. v. Lull, 28 Mich. 510; Parker v. Railway Co., 98 Mich. 607; and LaFlamme v. Railway Co., 109 Mich. 511, all of which were based upon statutes giving a right of action and which rest upon a reason given by Mr. Justice Cooley in the case of Flint, etc., B. Co. v. Lull, 28 Mich. 514. He also states that if the case had been a common-law action, contributory negligence would be a defense. This distinction is consistent with the authorities cited in the Lull Case.

We do not discuss some other questions raised, as they are not necessary to a decision of the case.

The judgment should be affirmed.

Ostrander,. J.

I think the judgment should be affirmed upon the ground that the statute was not designed to protect, or to prevent injury to, unattended animals.

“It may be stated as a general proposition — though there may be difficulty in some cases in applying it — that the violation of a statute or municipal ordinance is not of itself a cause-of action grounded upon negligence in favor of an individual, unless the statute or ordinance was designed to prevent such injuries as were suffered by the individual claiming the damages, and often not then, the question depending upon judicial theories and surmises.” 1 Thompson on Negligence, § 12.

The duty imposed, under penalty, by the statute, Act No. 221, Pub. Acts 1899, upon persons engaged in procuring ice from any of the streams, ponds, or lakes of this State is to erect, or cause to be erected, place or cause to be placed, at or near all places where they shall be cutting ice,

“Suitable danger signals and barricades. Such barricades shall consist of cross bars upon which a pole, rope, chain or rail shall be laid at a height not less than three feet above the ice and shall be placed not less than ten feet from the edge of the opening.”

The legislature has not indicated the danger signal which will be “suitable.” It is not easy to describe or even to imagine one which would deter cattle, turned out in the winter to find water for themselves, from going upon the ice of convenient ponds or streams in search of it. It is .reasonably certain that the statute barricade would not prevent the passage of a thirsty animal to water.

Plaintiff turned out his cattle, unattended, to go to the lake for water as they had been accustomed to do. How his cow got into the hole from which ice had been cut does not appear. The testimony warrants the inference that it was in an attempt to drink quite as well as it warrants any other inference of the cause of her drowning. While it was customary for some one to cut holes in the ice each morning, at which cattle might drink, it does not appear that these holes were open on the morning in question. If the purpose of the statute was doubtful, plaintiff, who knew that ice was being harvested at the lake and who may be supposed to have known the character of the statute barricade, has not shown that his conduct was free from negligence.

Grant, C. J., and Blair and Moore, JJ., concurred with Ostrander, J.

Carpenter, J.

(dissenting). Plaintiff resides about 80 rods from Twin Lake in the county of Muskegon. March 1, 1905, he turned his cows, three in number, in the public highway in order that they might go and drink at said lake. The highway ran along the edge of the lake. At this point — which was 40 rods from plaintiff’s house — it was expected that the cows would drink at holes cut through the ice for that purpose. About 40 rods farther away defendants had been cutting ice. The opening from which they had cut the ice was not barricaded by them as required by Act No. 221 of the Public Acts of 1899. One of plaintiff’s cows wandered to this opening and in some way fell in and was drowned. She did not reach this opening, as she might have done, by going upon the lake at the drinking place, but by leaving the highway, crossing the land of one Duff for five rods and thence walking on the lake about four rods to said opening. It should also be stated that the lake was meandered; that defendants owned no property adjacent thereto, and that a resolution of the board of supervisors, of Muskegon county, passed pursuant to section 5607, 2 Comp. Laws, authorized cattle to run at large in the public highway.

Plaintiff brought this suit in justice’s court to recover compensation for the loss of his cow. It was tried by a jury and a verdict of six cents rendered in plaintiff’s favor. Plaintiff appealed to the circuit court. It was there tried before a jury and a verdict rendered in defendant’s favor by direction of the court. Plaintiff asks us to reverse the judgment entered on said verdict. Three questions are raised:

First. Did the failure of defendants to erect barricades violate any duty they owed to plaintiff ?

Second. If so, was the neglect to comply with that duty the proximate cause of plaintiff’s damages ?

Third. Was plaintiff guilty of contributory negligence ?

We proceed to consider these questions separately.

First. Did the failure of defendants to erect barricades violate any duty they owed to plaintiff ? This depends upon the proper construction of the statute, Act No. 221 of the Public Acts of 1899. That statute makes it the duty—

“ Of any person or persons who are, or who hereafter may be, engaged in the procuring of ice from any of the streams, ponds or lakes of this State to erect * * * danger signals and barricades. Such barricades shall consist of cross bars upon which a pole, rope, chain or rail shall be laid at a height not less than three feet above the ice, and shall be placed not less than ten feet from the edge of the opening.”

Neglect or refusal to comply with the provisions of this act is made a misdemeanor punishable by fine and imprisonment. The learned trial judge held that the statute “is designed for the protection of the entire public and not for the protection of individuals.” We cannot agree with him. As a general proposition it may be said that a statutory duty is a duty toward every individual likely to be injured by its nonobservance, and one so injured has a right of action. We think it may be said in this case, as was said by the Supreme Court of the United States in a somewhat similar case (Hayes v. Railroad Co., 111 U. S. 228):

“ The duty is due * * * to the public considered as composed of individual persons; and each person specially injured by the breach of the obligation is entitled to his individual compensation, and to an action for its recovery.”

See, also, Deneen v. Railway Co., 150 Mich. 235; Jetter v. Railroad Co., 2 Keyes (N. Y.), 162; Akers v. Railway Co., 58 Minn. 540; McRickard v. Flint, 114 N. Y. 222. This case is within the principle of Stowell v. Standard Oil Co., 139 Mich. 18. Indeed that case goes further than this, for there we held that the statute making it unlawful to sell rejected or condemned oil, or oil that had not been legally inspected, created a duty not only toward the direct purchaser, but also toward a consumer who bought from said purchaser, and a judgment in favor of such a consumer was there affirmed upon the ground (see Pollock on Torts [Webb’s Am. Ed. p. 24]):

“The commission of an act specifically forbidden by law, or the omission or failure to perform any duty specifically imposed by law, is generally equivalent to an act done with intent to cause wrongful injury.”

The case of Taylor v. Railroad Co., 45 Mich. 74, is exceptional and is not opposed to the principles of this opinion. There it was held that an ordinance imposing upon property owners an obligation to repair the sidewalk adjacent to their premises and “to remove snow and ice therefrom” and “to keep the same free from obstruction and incumbrances ” did not create a duty toward individuals, and therefore that plaintiff, who was injured in consequence of a failure to remove such snow and ice, had no cause of action. The reasoning of the court, briefly stated, was as follows. The purpose of the ordinance was to promote the convenience as well as the safety of individual travelers; if such travelers could recover damages for injury arising from an unsafe walk, they could also recover damages if a total obstruction of the walk diminished their comfort, and as these latter damages could not be recovered, neither could the former. It is clear that this reasoning has no application to the case at bar.

Since preparing this opinion, I have been served with an opposing opinion written by Justice Ostrander, in which he denies that the statute gave plaintiff a cause of action. His reasoning rests upon two grounds:

1st. The assumption that the cow fell in the opening in attempting to drink. This, it seems to me, can be most appropriately discussed under the second heading in this opinion, and it will there be discussed.

2d. “That the statute was not designed to protect or to prevent injury to unattended animals.”

The design or purpose of the statute is to be inferred from its language. What mischief was its observance calculated to prevent ? Would the observance of the statutory requirement “ to place a barricade consisting of cross bars upon which a pole, rope, chain or rail shall be laid at a height of not less than three feet above the ice and at a distance not less than ten feet from the edge of the opening ” tend to keep domestic animals from being drowned in the opening ? If it would, then we may attribute to the legislature by the enactment of this law the purpose of protecting such cattle. Undoubtedly such a barricade would afford insufficient protection to unruly cattle. But, on the other hand, it seems to me equally clear that it would afford protection to ruly and docile cattle. We may take judicial notice that barricades no stronger than this often serve that purpose. It is suggested by Justice Hooker that the barricade would be ineffectual to stop the passage of small animals. This is true, for sheep and swine will easily pass under a barricade three feet above the ice. This suggestion is important if it may be said that because the barricade would be altogether ineffectual to stop the passage of sheep and swine, it should be inferred that it was not intended to stop the passage of cattle. If this inference cannot be drawn, the suggestion is unimportant. I do not think this inference can be drawn. We may take judicial notice that there is much less likelihood of sheep or swine going unattended in winter than there is of cattle or horses. And therefore it is not to be inferred that the legislature did not intend to protect cattle because they failed to provide for the protection of sheep and swine. I therefore think that we should say that one of the purposes of the statute was to prevent injury to unattended cattle. I regard as unimportant the circumstance that, before reaching the opening in the ice, plaintiff’s cow had trespassed on the land of one Duff. It is sufficient to say that when she reached the opening she was not trespassing on any rights of defendants, and the statute imposed upon them the obligation to have barricades for the purpose of preventing her being drowned.

Second. Was the failure of defendants to barricade the opening the proximate cause of plaintiff’s loss ? Though it is true, as the trial judge said, “thereis no proof showing that if there had been such a barrier as the statute requires that that would have prevented this cow from getting into the holes in the ice,” an inference that it would could have been legitimately drawn, and the question should therefore have been submitted to the jury. Hayes v. Railroad Co., supra, is a case in point. There the defendant railroad company had neglected to fence its track as required by an ordinance of the city of Chicago. Plaintiff, a child of tender years, went on this unfenced track and was injured. It was argued that the “ want of a fence could not reasonably be alleged as the cause of the injury.” In answer to this the court said:

“ In the sense of an efficient cause, this is no doubt strictly true; but that is not the sense in which the law uses the term in this connection. The question is, Was it causa sine qua non, a cause which if it had not existed, the injury would not have taken place ? * * * The rule laid down by Willes, J., in Daniel v. Railway Co., L. R. 3 C. P. 216, 222, and approved by the exchequer chamber, L. R. 3 C. P. 591, and by the house of lords, L. R. 5 H. L. 45, was this: ‘ It is necessary for the plaintiff to establish by evidence circumstances from which it may fairly be inferred that there is reasonable probability that the accident resulted from the want of some precaution which the defendant might and ought to have resorted to;’ and in the case of Williams v. Railway Co., L. R. 9 Exch. 157, where that rule was applied to a case similar to the present, it was said:
‘ ‘ ‘ There are many supposable oircumstanees under which the accident may have happened, and which would connect the accident with the neglect. If the child was merely wandering about and he had met with a stile, he would probably have been turned back; and one at least of the objects for which a gate or stile is required is to warn people of what is before them and to make them pause before reaching a dangerous place like a railroad.’ ”

I now consider the contention of my Brother Ostrander; heretofore referred to, that the cow was drowned because she was attempting to drink from the opening in the ice left unprotected by defendants. This contention rests in part upon the assumption that this was the only place for her to drink. I regard this assumption as unfounded, for the plaintiff testified “somebody went down to see that the holes was open for the water, but I didn’t.” It thus appears that it was customary for someone to open these holes every morning, and there is no evidence that this custom was not observed on the morning in question. Moreover, another and sufficient explanation of the cow’s drowning is furnished by the following testimony quoted from the record: A witness who visited the place with the plaintiff shortly after the cow was drowned, testified

“The place where they had been cutting ice before, there had been some slush and snow and stuff thrown in the water and a scum of snow was formed.”

Another witness testified:

“It was not all open water because we came pretty near walking into the hole ourselves. I didn’t notice no cakes of ice; I didn’t see anything to prevent a person or animal from walking into the ice; not a thing; would have done it if Mr. Richards hadn’t hollered at us. * * * There was wet snow and ice around the edge of the hole; it was just like it was all over the lake.”

From this testimony the inference may be drawn that the cow walked into the opening not because she was searching for a drink, but because there was nothing to distinguish it from the solid ice surrounding it. Neither can it be said as a matter of law that the statutory barricade placed ten feet away from the opening would not prevent a docile cow from attempting to get a drink from the open water beyond.

3. Contributory negligence. One of the grounds upon which it is contended that plaintiff’s contributory negligence precludes recovery is that he committed an unlawful act in letting his cows go unattended in the public highway. The public cannot complain that this act was unlawful, for the board of supervisors, acting pursuant to legislative authority, had given plaintiff permission to do it. It is true it is held by a well-considered case (Tonawanda R. Co. v. Hunger, 5 Denio [N. Y.], 255) that the public cannot confer upon an individual the right to use the highway “as a sheep walk or a pasture ground for cattle,” for this would be “ taking the private property of the owner of the land used as a highway and transferring it to the owner of the cattle.” But I can see no reason to doubt that the public may permit cattle to pass unattended along the public highway, and if plaintiff’s cows did nothing more than this — and it is not to be inferred that they did — they were not unlawfully in the highway, and plaintiff did no unlawful act in permitting them to be there for that purpose.

Third. I come now to the remaining ground, upon which it is urged that plaintiff was guilty of contributory negligence. That is this, that, knowing as he did that ice was being taken from the lake, he should have anticipated that his unattended cows would be exposed to the danger of falling through the opening from which the ice was taken. If plaintiff had known or had reason to anticipate that this opening was unguarded I should agree that he was guilty of contributory negligence. From the record we are able to say this, and only this, that he knew that ice was being cut. He himself had cut ice at this place and had, as he testifies, barricaded the opening. He had not himself visited the lake, and therefore had no personal knowledge of the method of defendants’ operations. Shall we say that he was bound to know or to believe that they were leaving the opening without barricades ? I am compelled to answer this question “no.” He had a right to believe that defendants would observe the law. He was not bound to assume that they would violate it. His cows, in going unattended to the lake, were therefore exposed to a danger which, as a reasonably prudent person, he was not bound to anticipate. We cannot therefore say that he was guilty of negligence contributing to his loss.

Judgment should be reversed and a new trial ordered.

Montgomery and McAlvay, JJ., concurred with Carpenter, J.