text:
    BARKER v. VALENTINE.
    Common-Law Marriage — Impediment — Evidence to Rebut Presumption — Proceeds of Benefit Certificate.
    -Where it appeared that the beneficiary named in an insurance certificate as the wife of the insured was at the time living with him as his wife, being held out, treated, and introduced by him as such, and that she continued so to live with him until his death, four years later, any presumption as to the continuance of an . alleged illicit relationship between the parties, claimed to be shown to have existed prior to the death of a former wife, which occurred three years before the certificate issued, was overcome, and the beneficiary named was entitled, as being in any event the common-law wife of the insured, to the proceeds of the certificate.

    Appeal from Wayne; Frazer, J.
    Submitted October 12, 1900.
    Decided December 4, 1900.
    Bill by Mary H. Barker to restrain the Great Camp of the Knights of the Maccabees for Michigan from paying to Margaret I. Valentine certain death benefits under a certificate issued to George A. Valentine, deceased. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Edward 8. Grece (William B. Jackson, of counsel), for complainant.

      Phillips & Jenks, for defendant Valentine.

      De Vere Hall, for defendant Great Camp of Knights of Maccabees.

       On the question of cohabitation as proof of marriage where it begins unlawfully, see Collins v. Voorhees, (N. J.) 14 L. R. A. 364, and note.

   Moore, J.

April 20, 1892, George A. Valentine, a resident of Detroit, made a written application for membership in the Great Camp of the Knights of the Maccabees. In that application, among others, the following questions were asked and answered :

Q. Are you married ?
“A. Yes. * * *
“Q. The name and relation of the party or parties for whose benefit your certificate is to be applied ?
“A. Margaret I. Valentine, wife.”

He declared that the above were fair and true answers to the questions. The Margaret I. Valentine mentioned in the application is the same person who is a defendant in this case.

A certificate was issued in which it was stated that, if the certificate was in force at the time of the death of Mr. Valentine, upon satisfactory proof of his death “his beneficiary, to wit, Margaret I. Valentine, his wife, will be entitled to receive one assessment on the membership, but not to exceed two thousand dollars.” Mr. Valentine died December 3,1896. Due proofs of his death were furnished the great camp.

After the proofs had been filed, a protest was filed with said order by the complainant, Mary H. Barker, who is a sister of Mr. Valentine, against the payment to the said Margaret I. Valentine of the amount of such certificate, on tbe ground that the said Margaret was not the wife of the said George A. Valentine. After the filing of the said protest, notice was given by said order to both said Margaret and the said Mary H. Barker, or their attorneys, and the matter was referred to the executive committee of the great camp; and said committee, acting under and in accordance with its laws, appointed a time and place for the hearing of the respective claims of the said Margaret and the said Mary H. Barker. Several adjournments were had, and finally the matter was heard before said committee, a large amount of proofs being filed before them; and the said committee, acting without fraud and in good faith, decided that, under the proofs, the payment of the amount of said certificate should be made to the said Margaret I. Valentine. An appeal was taken, as provided by the laws of said order, by Mary H. Barker to the Great Camp of the Knights of the Maccabees for the State of Michigan. This appeal was heard before the committee on appeals and grievances, on the testimony presented before the executive committee, and also on additional testimony presented to them. At the hearing before the executive committee, and at the hearing before the committee on appeals and grievances, both parties were represented by counsel; and, after a full hearing, the last-named committee decided in favor of Margaret I. Valentine, and recommended to the great camp that the amount of the certificate be paid to her. The report was adopted by the great camp, then in session, after a hearing before the great camp, in which the complainant was represented by counsel, and by the action of the great camp its officers were instructed to pay the amount of such certificate to the said Margaret I. Valentine. Thereupon, and before the payment of the amount of such certificate, the complainant filed the bill in this case to restrain the organization from paying the money to the said Margaret, and to require the payment of the same to the said Mary EL Barker. After a full hearing the court dismissed the bill of complaint, and the case is brought here by appeal.

The questions presented to the court are:

First. Was the beneficiary named in'.the certificate the wife.of George A. Valentine?
Second. Under the laws of the order, have these parties a right to appeal to the courts, or is the action of the order final ?
Third. In any event, can the complainant be entitled to the fund in question ?

As we think the answer to the first question is decisive, we shall not discuss the others.

The facts are not in dispute. So far as material, they are as follows: In 1872 Mr. Valentine was married to Ida Barron in the State of New York. Differences arose between them, and Mr. Valentine instituted divorce proceedings against his wife. An order was made requiring him to pay alimony and solicitor’s fees. He did not comply with this order, and it does not appear that anything further was done in that proceeding. In 1884 Mr. Valentine came to Detroit, Ida Valentine remaining in the State of New York. Margaret Desbrough was a resident of Detroit. In 1881 she filed a bill of complaint for divorce against her husband, Henry'Desbrough, which resulted in the court granting her a decree of divorce. The decree was not entered in the records at that time, though Mrs. Desbrough did not know of that fact until after the death of George Valentine, when the court made an order directing the decree to be entered nunc pro tunc. It is claimed in the brief of counsel that in May, 1885, a marriage ceremony was performed at Detroit between George A. Valentine and Margaret Desbrough. Upon the trial of this case the fact was not proven, but it was proven that he introduced Mrs. Desbrough as his wife, and stated they had been married, and they lived and cohabited together as husband and wife. Some time after this occurred, Mr. Valentine and Margaret Valentine returned to Mr. Valentine’s former home, in New York; and in September, 1889, Ida Valentine made a complaint against Mr. Valentine as a disorderly person, for failing to support her, and a warrant was issued. The docket of the police court showed that Mr. Valentine pleaded “Not guilty,” and that on the adjourned day the parties failed to appear. Mr. Valentine claimed to his acquaintances in New York that he had then been divorced from the first wife, but there is nothing in the record to show that he had in fact been divorced. In October, 1889, Ida Valentine died. The record does not disclose just when Mr. Valentine returned to Detroit, but he had been living there some time when he made application for membership in the defendant order, with Margaret Valentine; he introducing her as his wife, and she introducing him as her husband, and they living together as husband and wife. Shortly after this Mr. and Mrs. Valentine moved to Cleveland, and rented a house of Mr. Case, in which they lived for more than six years, and until the time of his death. The testimony is overwhelming that in Cleveland they lived together as husband and wife. Mrs. Valentine was a member of a church belonging to one of the leading denominations. They introduced each other as husband and wife. They lived in a respectable neighborhood, were visited by respectable people, and in turn visited respectable people. The complainant in this case lived with them for a time, and also corresponded with them, as did other relatives of Mr. Valentine, and treated the defendant as the wife of George Valentine. It is now said by counsel that they did this because they supposed that George Valentine had been divorced from his first wife when he married the defendant. There is nothing to show that Mrs. Valentine knew there was any impediment to her marriage with Mr. Valentine until after his death.

It is the claim of complainant that, as Mr. Valentine had a lawful wife living when he married the defendant, their relations were illicit, and, when this illicit relation once exists, it is presumed to continue, and subsequent actual marriage will not be presumed from continued cohabitation and reputation after the legal impediment to enter into such a contract is removed; citing Rose v. Rose, 67 Mich. 619 (35 N. W. 802); Van Dusan v. Van Dusan, 97 Mich. 70 (56 N. W. 234). An examination of Bose v. Bose shows that the question arose between the parties to the alleged marriage contract; the one claiming that there was an agreement to marry, and the other denying it. In disposing of the case the court said that the testimony had been carefully reviewed, and failed to satisfy the court that any marriage was ever agreed upon. The court used the following language:

“The complainant’s bill, and her testimony relied upon to support it, present a sad exhibition of the indecencies and immoralities of these parties, and the continuance of which, through almost an entire generation, unpunished, is now sought by the complainant to be made the basis of the most sacred of all contracts known to the law. A court of equity will never set its seal of confirmation to such baseness and immorality.”

The case of Van Dusan v. Van Dusan was also a case where one of. the parties alleged that the marriage relation never existed. In disposing of the case, Justice Hooker said:

“The evidence does not satisfy us that these parties ever availed themselves of the opportunity, offered them after the divorce was obtained, of changing their relation. Doubtless the complainant was willing, and we could wish that defendant had been honorable enough to grant her request; but it is not within our province to make a contract of marriage on account of commiseration for one or contempt for the other party, when the evidence does not show one to exist. We think the case within the principle of Rose v. Rose, 67 Mich. 619 (35 N. W. 802). We are therefore not disposed to disturb the decree of the circuit judge, who saw the witnesses, and, in our judgment, committed no error in dismissing the bill.”

There is nothing in either of these cases to indicate that If, after the impediment to a lawful marriage between them had ceased, they had intended to take each other as husband and wife, and had indicated that intention by treating each other in all respects as though they were married, and had introduced each other as husband and wife, and had so held themselves out to the world, and had lived together as husband and wife, the court would not have held that the presumption that the illicit relation, which existed when they commenced to live with each other, continued after the impediment to their marriage ceased, was overcome.

In the case of Blanchard v. Lambert, 43 Iowa, 228 (22 Am. Rep. 245), the plaintiff married Mr. Blanchard when she had a former husband, Mr. Musgrave, living. Mus-grave died in June, 1871. The plaintiff and Mr. Blanchard continued to live together as husband and wife until his death, in August, 1872. Mr. Blanchard introduced her as his wife. He made a will in which he mentioned her as his wife. They lived happily, and in his last illness, which lasted about' 10 months, Mrs. Blanchard waited upon him, and treated him in all respects as a lady would treat her husband. She was recognized in the community as the wife of Mr. Blanchard, and was treated with respect. The court said:

“Under these circumstances, even if the marriage were originally void, a subsequent marriage will be presumed to have occurred after the removal of all legal impediments by the death of Musgrave, in June, 1871.”

1 Bish. Mar., Div. & Sep. §§ 970, 975, state the rule as follows:

“Sec. 970. If the parties desire marriage, and do what they can to render their union matrimonial, yet one of them is under a disability, as where there is a prior mar-ridge undissolved, their cohabitation, thus matrimonially meant, will, in matter of law, make them husband and wife from the moment when the disability is removed; and it is immaterial whether they knew of its existence or its removal, or not, nor is this a question of evidence. This doctrine is overlooked in some of the cases, but it is abundantly sustained by others, and the reasoning on which it rests is conclusive. Here are the mutual present consent, to which not even written or spoken words are necessary, and consummation, which is useful in the proofs, but is not. necessary, — more, therefore, than the law requires.”
“ Sec. 975. Though a cohabitation was introduced by a formal ceremony of marriage, and the parties erroneously supposed the impediment of a former marriage to have been taken away, and never had their mistake corrected, still, in localities where formal solemnization is not essential, valid marriage may be presumed to have, occurred after the impediment was removed. To employ words more nicely accurate, and cover a larger ground, the living together of marriageable parties a single day as married, they meaning marriage, and the law requiring only mutual consent, makes them husband and wife; for here are all the elements of a contract of present matrimony.”

In section 979 the author gives instances:

“Where a woman had formally married, believing her husband to be dead, and, on his returning, still continued to cohabit under the second marriage, and kept it up for several years after he really died, a second marriage after such death was presumed. And in another case, where a married man, knowing his wife to be alive, entered into a form of marriage with another woman, who did not know of the impediment, and continued the cohabitation under this second marriage until after the death of the first wife, a marriage after such death was inferred.”

See, also, Fenton v. Reed, 4 Johns. 52 (4 Am. Dec. 244); Hynes v. McDermott, 91 N. Y. 451 (43 Am. Rep. 677); U. S. v. Hays, 20 Fed. 710; White v. White, 82 Cal. 427 (23 Pac. 276, 7 L. R. A. 799); Yates v. Houston, 3 Tex. 433; North v. North, 1 Barb. Ch. 241 (43 Am. Dec. 778).

The legal impediment to a marriage between these parties, if it had not been removed before, was removed by the death of Ida Valentine in October, 1889. The parties after that date resided and cohabited together. Mr. Valentine applied for insurance, in which he declared he was married, and named his beneficiary, Margaret I. Valentine, his wife. They were regarded and treated by their relatives and neighbors as husband and wife. Mr. Valentine was a carpenter by trade. He was ill for a long time before his death. The testimony is that Mrs. Valentine treated him kindly, gave him his medicine, and did all those things a wife would be expected to do for her husband. She took in boarders, and applied the proceeds to his support as well as her own. No question was raised after the death of Ida Valentine but that Margaret Valentine and George Valentine were husband and wife; until his death, seven years after the legal impediment to their marriage had ceased to exist. Under such circumstances, their marriage must be presumed. Hutchins v. Kimmell, 31 Mich. 126 (18 Am. Rep. 164); Peet v. Peet, 52 Mich. 464 (18 N. W. 220); Flanagan v. Flanagan, 116 Mich. 185 (74 N. W. 460); People v. Mendenhall, 119 Mich. 404 (78 N. W. 325, 75 Am. St. Rep. 408); Lorimer v. Lorimer, 124 Mich. 631 (83 N. W. 609).

The decree is affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Per Curiam

license: Public Domain

text:
    McLEOD v. WAYNE CIRCUIT JUDGE.
    Capias — Affidavit—Sufficiency.

      An affidavit for a capias alleged that defendants represented to affiant that they were vendees in a land contract, owned an equity of redemption in the land, were in possession, receiving $15 per month rent; that affiant purchased the land relying on those representations; that he went to take pos" session, and then learned that the contract had been for. feited, annulled, and canceled by a suit at law; that the vendor was in possession, and refused to recognize any right in affiant; that said contract was in fact forfeited and annulled; that affiant tendered back to defendants the land contract, and demanded a reconveyance of the land deeded by affiant to them in exchange; that they refused; and that these statements were true of affiant’s own knowledge. Held, that the affidavit was sufficient to sustain the writ.

      Mandamus by Charles McLeod to compel Byron S. Waite, circuit judge of Wayne county, to vacate an order quashing a writ of capias ad respondendum.

    Submitted October 30, 1900.
    Writ granted December 4, 1900.
    Relator commenced a suit -by capias against two persons named James N. and Frank E. Matthews. The proceedings were quashed for a defective affidavit. Relator exchanged land with the defendants, Matthews. The affidavit states that the Matthewses represented that they owned an equity in the land they deeded to him by virtue of a laud contract; that they were in possession, and collecting $15 per month rent; that he made the trade relying upon these representations. The further material part of the affidavit is as follows:
    “This deponent says that he thereupon went to take possession and collect the rents of the premises described in said land contract assigned to him by said James N. Matthews and Frank E. Matthews, as aforesaid, when he learned for the first time that said contract had been declared forfeited, and that the vendor therein had taken proceedings by suit at law, and said contract had been annulled and canceled, and the property taken away from the said James N. Matthews and Frank E. Matthews, prior to the transfer and assignment of said contract to this deponent, and the vendor in said contract was in. possession of the premises, collecting the rents therefrom, and refused to recognize said assignment, or that this deponent or said James N. Matthews or Frank E. Matthews had any right, title, or interest in said premises whatever by virtue of said contract; and this deponent says that said contract had been forfeited and annulled by the vendor therein prior to said assignment to him by said James N. Matthews and Frank E. Matthews, and they had no right, title, or interest whatever in said premises, and were not in possession, nor collecting the rents thereof, at the time of the assignment of said contract to this deponent.
    “This deponent further says that, after he discovered that said James N. Matthews and Frank E. Matthews had no right, title, or interest in the premises mentioned in said contract, he tendered back to said James N. Matthews and Frank E. Matthews said land contract, and demanded from them a reconveyance of his property which he had given them in exchange therefor, but they absolutely refused, and still refuse, to reconvey the same to this deponent.
    “This deponent further represents that the foregoing statements are true of his own personal knowledge, and that, by reason of the false and fraudulent representations and acts of the said James N. Matthews and Frank E. Matthews, this deponent has been damaged to the amount of one thousand dollars; and further says not.”

      Charles Kudner, for relator.

      Julian Cr. Dickinson, for respondent.

       Head-note by Grant, J.

   Per Curiam

(after stating the facts). We think the affidavit sufficient, within the following authorities: Paulus v. Grobben, 104 Mich. 42 (62 N. W. 160); Hatch v. Saunders, 66 Mich. 181 (33 N. W. 178).

The writ will issue.


author: Grant, J.

text:
    SHANKE v. UNITED STATES HEATER CO.
    Injury to Employe — Negligence—Assumption oe Risk.

      1. Plaintiff must recover upon the negligence alleged. Where the negligence alleged is that boards were “uneven, unsound, rotten, unsafe, and defective,” he cannot recover upon the theory that sound boards were not sufficiently strong, or that the ground where they were used was soft, so that a loaded truck, when being wheeled over the boards, depressed the ends, causing the load to fall upon him.
    2. Where danger, if any, is apparent, and good and sufficient material is supplied, which employés are authorized to use as they deem necessary, the employé assumes the risk, and there is no negligence on the part of the employer.
    Error to Wayne; Waite, J.
    Submitted November 13, 1900.
    Decided December 4, 1900.
    Case by Joseph Shanke against the United States Heater Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    The defendant was engaged in the manufacture of steam heaters. It had a foundry and machine shop. The castings were wheeled from the foundry to the yard adjoining, and dumped upon the ground. From the yard they were wheeled into the machine shop as they were needed. Two-wheel trucks were used, with two handles, — one on each end. Sand and refuse had been carted from the foundry and dumped in the yard where these castings were placed. The ground was, in consequence, somewhat soft. Plaintiff had been for a year at work cleaning castings, and then carrying them onto the floor in the shop. He also had helped to wheel the sand and refuse from the foundry into the yard. He had seen the castings wheeled into the yard, and from the yard into the shop, and was familiar with the method of the work. The ground was too soft to wheel the castings over, and therefore boards 1 inch thick and from 6 to 12 inches wide were placed upon the ground, over which the trucks were wheeled. Defendant for this purpose had furnished and piled in the yard boards, which the workmen could take and use as they saw fit, and as, in their judgment, were needed. The castings were dumped in the yard without any order, and wherever it was most convenient. The workmen placed these boards end to end where it was necessary to load the castings and wheel them to the shop, or from the foundry to the yard. The castings weighed from 300 to 750 pounds. As the wheel of the loaded truck came to the end of a board, it would press the end more or less into the soft soil. Plaintiff and another employé were ordered on the day of the accident to wheel some of these castings into the shop. They had safely wheeled in 15, weighing from 300 to 350 pounds, and in doing so had taken up and placed the boards where they were needed. The sixteenth casting was heavier, weighing, as plaintiff testified, 700 to 750 pounds. He was in front, pulling, with his face to the truck. His companion was behind, pushing. Plaintiff described the accident as follows :
    “There was a board there underneath, and the weight kept digging into the ground so that it caused a hole, and as I was about to lift, to start with it, the board broke. I fell to my knees, and the casting on top of me.”

      The boards where they loaded this casting had been previously placed there. Plaintiff testified that the boards looked as though they had never been used before. The negligence charged is that:
    “The boards were unfit for the purpose, because they were uneven, unsound, rotten, unsafe, and defective, by reason of which the said path or paths or passageways upon said yard became and were in a dangerous and unsafe condition, and that for this reason the defendant did not provide a reasonably safe place for the plaintiff to work in.”
    The manner of the accident is thus described in the declaration:
    “Plaintiff avers that, while he was thus pulling said car, truck, or wagon in a careful, prudent, or diligent manner, he caught one of his feet on one of the planks or boards which lay in said path or passageway, and he was necessarily and unavoidably tripped, and stumbled.”
    In regard to the work which plaintiff was employed to do, he testified:
    “My regular work was carrying patterns in the foundry, and, if there was nothing for me to do in that line, I would do whatever I was told to do.”
    At the conclusion of the plaintiff’s testimony the court directed a verdict for the defendant.

      Ira A. Lieghley, for appellant.

      Keena & Lightner, for appellee.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). The instruction was correct. - The theory of the declaration is not that sound inch boards were not sufficient, or that the ground was soft, but the sole theory of the declaration is that the boards were uneven, unsound, rotten, unsafe, and defective, in consequence of which the place was unsafe. Plaintiff cannot now recover upon the theory that sound boards were not sufficiently strong, or that the ground was soft, so that the ends of the boards would be pressed into it by tbe weight upon them. If, however, we assume that the declaration was sufficient, still plaintiff has no right of action. He was familiar with the character of the earth, and knew that the effect, when the wheel reached the end of a board, would be to press it down into the ground. This effect was as apparent to him as to any one. He and his co-employé were furnished with sufficient material to make the passageway safe. This is not a case of permanent passageways, upon which employés have a right to rely. The employés made such passageway for themselves, and could either have filled in at the ends of the boards with earth, or have placed a board underneath, or have put down two boards. The doctrine of safe place has no application to this case. The defendant was guilty of no negligence. Whatever danger there was was apparent, and assumed by the plaintiff.

Judgment affirmed.

The other Justices concurred.


author: Moore, J.

text:
    CANTWELL v. JOHN BRENNAN & CO.
    1. Master and Servant — Machinery—Assumption oe Risk.
    A young man 20 years of age, and familiar with machinery, but without experience with belts and pulleys, who accepts a position in which he is required, among other duties, to guard a belt from slipping by applying to a revolving pulley, as often as needed, a certain compound, in the manner of using which he is properly instructed, assumes the risk of injury by reason of the compound’s breaking in his hands, and causing him to fall against the belt.
    2. Same — Suggested Alteration — Continuance at Work.
    The fact that an employ^, who was injured while"'applying a compound to a revolving pulley in order to prevent the slipping of a loose belt which passed around the pulley, had, prior to the accident, worn the compound thin with use, and had asked the superintendent for a new block of compound, “ so as not to run out of it,” and had been directed to use what he already had, and the further fact that he had advised the tightening of the belt, and had been told that it would be tightened, have no bearing upon his assumption of the risk; the suggestions not being prompted by fear of injury.
    Error to Calhoun; Smith, J.
    Submitted November 13, 1900.
    Decided December 4, 1900.
    Case by George L. Cantwell against John Brennan & Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Brennan, Donnelly & Van De Mark and F. W. B. Coleman, for appellant.

      F. W. Clapp and Bowers & Stine, for appellee.
   Moore, J.

The plaintiff recovered a judgment against defendant for injuries received by him while in the employment of the defendant. The case is brought here by writ of error. The testimony of the plaintiff discloses that when he was injured he was nearly 21 years of age, and' had been employed firing and oiling on steamships for about 4 years. He heard that defendant wanted an engineer, and sought the place. He told the superintendent that he had never had experience with belts, or pulleys run with belts. He was given employment. The engine, in addition to running other machinery, was connected part of the time to a dynamo for the purpose of lighting the building. The dynamo is run by a belt about 10 inches wide, attached to an overhead or main shaft, and then passes around a pulley 14 inches in diameter, which is attached to a countershaft which is beneath the floor. This pulley comes about 2 inches above the floor, through an opening cut in it. The distance between the main shaft and the countershaft is about 22 feet. Mr. Cantwell says that he was told by the superintendent, the first day he was employed, that the belt which drove the dynamo slipped. The superintendent got a block of Anti-Slip, a compound put up in a pasteboard box about 4 or 5 inches long, 4 inches deep, and 3 or 4 inches wide, and told him that when the belt slipped, so the lights became dim, he must apply the Anti-Slip to the pulley. The application was made by applying the face of the block or box of compound to the face of the pulley midway between the belt, when the revolving pulley warmed the compound, some of which stuck to the face of the pulley and thus prevented the slipping of the belt. After showing Mr. Cantwell how the application was made, the superintendent said to Mr. Cantwell to go and apply the Anti-Slip, that he might see that he did it right.

He says that he was not told that there was any danger in using the compound; that, whenever he noticed the lights going down, he applied the compound. On cross-examination he said that he had no difficulty in using it, and used it every day, sometimes four or five times a day, until the day he was injured. He further testified that, just a week before he was hurt, the belt slipped about 5 o’clock, so that they had to quit work, instead of working until 6 o’clock. At this time he had some talk with the superintendent about tightening the belt, and advised it be cut and laced. The superintendent said that it was a new belt, and he would not cut it, but would move the countershaft and tighten it that way. He also testified that, three or four days before he was hurt, the block of compound had been worn down so that it was about an inch thick, when he told, the shperintendent that he would have to have another block of compound, as the one he had was getting pretty thin, and he wanted another block, so as not to run out of it; and the superintendent replied, “Use that; it will do.” He says that it was necessary to use the dynamo morning and evening; that upon the morning in question he noticed the lights growing dim; that he got his block of compound, got down on bis knees, and put it on the face of the pulley, and just as he got it there it snapped in his hands; and that was the last he remembered until the next day. He received severe injuries.

It is claimed that the judge should have directed the verdict in favor of defendant. The plaintiff had arrived at years of discretion. It is true that he testified that he was not familiar with belts, but he was familiar with other forms of transmission of power. He had been connected with machinery of various sorts for four years or more. His attention was called to this belt the first day that he was employed. It would not be any compliment to his intelligence to say that he did not know that the application of this compound to a revolving pulley was accompanied by danger unless he exercised care in its application. He must have known that, if his hand or arm was drawn between a revolving pulley and a ten-inch belt, the effect would be disastrous. He also knew just how little of the compound there remained. The workings of the belt and pulley were not complicated. The application of the compound was a simple process. He was told at the outset that he would be required to apply it, and how to apply it. The accident was a very unfortunate one, and any person may well sympathize with him; but his employer cannot be made liable, under the circumstances shown by the record, unless we are to have a new rule of negligence. See McGinnis v. Bridge Co., 49 Mich. 466 (13 N. W. 819); Sjogren v. Hall, 53 Mich. 274 (18 N. W. 812); Schroeder v. Car Co., 56 Mich. 132 (22 N. W. 220); Prentiss v. Manufacturing Co., 63 Mich. 478 (30 N. W. 109); Hewitt v. Railroad Co,, 67 Mich. 61 (34 N. W. 659); Wheeler v. Berry, 95 Mich. 250 (54 N. W. 876); Pilucki v. Spring Works, 117 Mich. 111 (75 N. W. 295); Mackey v. Furnace Co., 119 Mich. 552 (78 N. W. 783); Nephew v. Whitehead, 123 Mich. 255 (81 N. W. 1083).

Counsel say that there was a promise to tighten the belt, and that if this had been done it would not have been necessary to use the Anti-Slip, and the accident would not have happened. Their brief contains this statement:

“Judge Cooley, in his work on Torts, says: ‘It is also negligence, for which the master may be held responsible, if, knowing of any peril which is known to the servant also, he fails to remove it in accordance with assurances made by him to the servant that he will do so. * * * If the servant, having a right to abandon the service because it is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless or until he makes his assurances good. Moreover, the assurances remove all ground for the argument that the servant, by continuing the employment, engages to assume its risks. So far as the particular peril is concerned, the implication of law is rebutted by the giving and accepting of the assurance; for nothing is plainer or more reasonable than that parties may and should, where practicable, come to an understanding between themselves regarding matters of this nature.’ Cooley, Torts, 559, and cases cited.”

No one knew how to state the law more clearly than' Justice Cooley; but the facts in this case do not make the citation from that eminent man applicable. There was no suggestion by Mr. Cantwell that it was dangerous to run the belt because it needed tightening, or that Mr. Cantwell continued to work when he would not otherwise have done so but for the assurance that the belt should be tightened; nor does it appear the tightening of a belt upwards of 20 feet long would have done away with the use of the Anti-Slip. All that was said about tightening the belt related to its being put in such condition that it would drive the dynamo and furnish the necessary lights. The rule invoked by counsel does not apply where neither employer nor employed contemplated any additional danger to the servant in the use of the imperfect machinery, but only desired to make the operations more effective by the proposed change. Tesmer v. Boehm, 58 Ill. App. 609.

Putting the most favorable interpretation possible upon the testimony of the plaintiff, it did not entitle him to recover.

Judgment is reversed, and no new trial ordered.

The other Justices concurred.


text:
    MITTS v. HARVEY.
    1. Justices of the Peaoe — Adjournment—Docket Entry — Return to Certiorari.
    On certiorari to a justice, sued out by a defendant against whom judgment was rendered on his failure to appear on the day to which an adjournment.had been taken at his request, a docket entry which fails to show the place to which the cause was adjourned cannot be supplemented, so as to save the judgment, by a return of facts which tend tó show a waiver by defendant of the omission.
    3. Same — 1Technical Defect — Rule on Certiorari.
    Where judgment was rendered for plaintiff by a justice upon defendant’s failure to appear on the day to which the cause was adjourned, an omission to state in the docket entry the place to which the adjournment was taken is not a “technical defect” which the circuit court, under 1 Comp. Laws 1897, § 948, may disregard on certiorari.

    Error to St. Clair; Vance, J.
    Submitted November 14, 1900.
    Decided December 4, 1900.
    Replevin by George Mitts against Frank Harvey. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Atkinson, Wolcott & Moore, for appellant.

      H. W. Smith, for appellee.
   Moore, J.

This suit was commenced in justice’s court, heard on certiorari in the circuit court, and is brought here by the plaintiff by writ of error.

The entry upon the docket of the justice’s court shows that, upon the return day of the writ of replevin, the parties were present in court. It then recites:

“Defendant, Frank Harvey, files an affidavit with the court asking for an adjournment until the 23d day of January, A. D. 1899. Court adjourned until the 23d day of January, A. D. 1899, at nine o’clock in the forenoon.”

Defendant did not appear afterwards, and a judgment was taken against him.

After the justice had made his return, he was allowed to make a further return as follows:

“I return that the application of the defendant above referred to was that the said cause be adjourned to January 23, 1899, at nine o’clock a. m., to my office in the township of Mussey; and I also return that it was fully understood by the said defendant that the cause would be tried on January 23, A. D. 1899, at nine o’clock in the forenoon of said day, at my office in the township of Mussey, in said county, and the place was noted by me at the time of said adjournment in my minutes, but by a clerical error I omitted to have it written in my docket.”

Upon the hearing the circuit judge held the omission to enter upon the justice’s docket the place to which the adjournment was had was fatal, and rendered a judgment in favor of defendant.

It is conceded by counsel for plaintiff that the general rule is as stated by the circuit judge. Their position, as stated in their own language, is: “This rule is so well settled that if it were not for the qualifying facts, which we insist amount to a waiver, and the fact that the question has not been properly raised, we would not be here seeking a reversal of the judgment of the circuit court. The objection is a technical one, and the court will observe that judgments have only been reversed upon this ground with the greatest reluctance, and when there was nothing to show a waiver, and only when the point was properly raised. It is therefore our contention: First. The fact that the adjournment was upon the application of the defendant, and the return shows that he understood thoroughly the place to which the cause was adjourned, amounts to a waiver, and is sufficient to prevent him having the judgment set aside upon this ground,” — citing Whelpley v. Nash, 46 Mich. 25 (8 N. W. 570). “Second. It appearing that the point raised is purely a technical objection,- we submit that the writ of certiorari cannot be used for the purpose of setting aside this judgment. The statute reads as follows: ‘ The court shall proceed to give judgment in the cause as the right of the matter may appear, without regarding technical omissions, imperfections, or defects in the proceedings before the justice, which did not affect the merits,’” — citing 1 Comp. Laws 1897, § 948; Whelpley v. Nash, supra.

If the docket entry showed such a state of facts as amounted to a waiver, or that there had been a hearing upon the merits, there would be much force in this contention. A justice of the peace may hold court at any place in his township. It is essential to his jurisdiction that a writ issued .by him should show the place where it is returnable. It is just as important that his docket should show the place to which a cause commenced before him is adjourned, so that the parties may not be misled by a failure of recollection or a difference of recollection or other reason, and thereby be deprived of an opportunity to be heard in court. Mudge v. Yaples, 58 Mich. 307 (25 N. W. 297); Post v. Harper, 61 Mich. 434 (28 N. W. 161); Noyes v. Hillier, 65 Mich. 636 (32 N. W. 872); Wedel v. Green, 70 Mich. 642 (38 N. W. 638); Waldron v. Palmer, 104 Mich. 556 (62 N. W. 731); Fitzhugh v. Rivard, 109 Mich. 154 (66 N. W. 947); Stolte, Dangel & Foss Co. v. Cochran, 111 Mich. 193 (69 N. W. 247).

It has been repeatedly held that the docket entry must control, and cannot be contradicted or explained by the return to the writ, so as to give the justice jurisdiction, where jurisdiction does not appear upon the face of the docket. Mudge v. Yaples, supra; Noyes v. Hillier, supra; Toliver v. Brownell, 94 Mich. 577 (54 N. W. 302); Holmes v. Cole, 95 Mich. 272 (54 N. W. 761), and many cases cited; Waldron v. Palmer, 104 Mich. 556 (62 N. W. 731). With this return of the justice explaining what occurred before him eliminated, there is nothing to show waiver. Nor does it appear, taking both the return and the waiver into consideration, there has ever been a trial upon the merits. In the case of Whelpley v. Nash, 46 Mich. 25 (8 N. W. 570), while the docket entry did not show the place to which the adjournment was had, the defendant appeared upon the adjourned day and answered; so the court might well hold that he was not prejudiced.

Judgment is affirmed.

The other Justices concurred.


author: Grant, J,

text:
      In re SPRAGUE’S ESTATE (two cases) SPRAGUE v. MOORE.
    Wills — Revocation—Administrator—Appointment—Necessity.

      1. Conveyance of all of one’s property revokes a previous will disposing of the same property.
    2. The statute (3 Comp. Laws 1897, § 9324) prescribing who shall be appointed administrator of the estate of a deceased person applies to the situation at the time letters of administration are granted, and not the situation at the time of the death of the deceased.
    3. The party entitled under the statute to letters of administration waives that right by a failure to apply therefor within the time prescribed.
    4. One who is beneficially interested in the estate of a deceased person is entitled to make application for the appointment of an administrator.
    5. Where one deeds all his property in trust, the same to be divided among the cestuis que trustent at his death, and the declaration of trust provides that the trustee shall pay all the debts of the grantor then existing, and all renewals of the same, and the trustee accepted the trust and carried it during the lifetime of the grantor, a period of 10 years, and after his death the eestuis que trustent filed a bill for an accounting, it is necessary to have an administrator appointed over the estate of the deceased grantor, and that it be made a party to the bill for an accounting.
    Submitted November 14, 1900.
    Decided December 4, 1900.
    Error to "Wayne; Waite, J.
    Irene Sprague Moore presented for probate the last will and testament of Adeline L. Sprague, deceased. Probate was denied, and proponent appealed to the circuit court. From a judgment for contestants (Thomas S. Sprague and Rollin C. Sprague), proponent brings error.
    Affirmed.

      Certiorari to Wayne; Waite, J.
    Thomas S. Sprague petitioned to be appointed administrator of the estate of Amelia L. Sprague, deceased. The petition was granted in the probate court, and Irene Sprague Moore appealed to the circuit court. From a judgment for petitioner, contestant brings certiorari.

    Affirmed.
    Appeal from Wayne; Hosmer, J.
    Bill by Thomas S. Sprague against Irene Sprague Moore, as trustee and individually, and others, heirs at law of Adeline L. Spragüe, deceased, for an accounting. From an order overruling her demurrer to the bill, defendant Moore appeals.
    Reversed.
    These three suits are so intimately connected, involving the same documents, that they will be disposed of in one opinion. Adeline L. Sprague, the mother of the appellant, duly executed her will on September 3, 1877, in which, after bequeathing to her daughters, equally, her household furniture, books, etc., used in connection with her homestead, she bequeathed all the residue and remainder of her estate to her children, equally. On April 22, 1889, she conveyed to the appellant, Irene Sprague Moore, all her property, real, personal, and mixed, in trust for the express uses and purposes set forth in an instrument bearing even date therewith. The deed also empowers the trustee “to sell, transfer, convey, collect, invest, and reinvest the same, and to do all things necessary or proper in connection therewith which said first party might or could do or could have done but for these presents.” She reserved a life estate in her homestead in the city of Detroit. The declaration of trust reads as follows:
    “1. That said Irene Sprague Moore, as trustee, shall take, hold, manage, care for, sell, transfer, convey, collect, invest, and reinvest the property by said deed conveyed, in her best discretion, during the lifetime of said Adeline L. Sprague, and to that end do all and any things necessary or proper in connection therewith.
    “2. That said trustee shall pay all and any legal and necessary expenses incident to the trust, and all actual and bona fide indebtedness of said first party now existing on which she is liable as principal; also, all indebtedness which she is or may become legally bound to pay, whether as surety, indorser, or maker of any promissory notes or other obligations now existing, made or incurred for the accommodation or benefit of others, and which such others should, or of right ought to, pay.
    “ 3. Out of the income, if there shall be sufficient at all times, otherwise from the principal as may be needed, to yield and give said first party a full and ample support during her natural life, according to the station in life she now occupies, — and, for a definition.thereof, it shall be at least the sum of three thousand dollars per annum, if so demanded, payable in monthly installments, or as she shall request, — and in addition thereto all extraordinary expenses, medical and other attendance, or other expenditures necessary or proper for the said first party’s comfort or welfare; also, to pay all funeral and cemetery expenses of the death and burial of said first party, and for the erection of a suitable monument over her grave, the same to be in said trustee’s discretion. And for any expenditure made in her discretion under this clause of this instrument she shall be accountable to no other beneficiary under this trust. During the lifetime of said first party, out of any remaining income, said trustee, in her discretion, may pay to each of the beneficiaries, and to all of full age alike, annually, a sum not exceeding one thousand dollars per year; and any sum withheld from the minor beneficiary, Gracie Deats, shall be equalized at, if not before, the termination of this trust.
    “4. The other beneficiaries under this trust are my seven children, Amelia L. Sprague, Irene Sprague Moore, Rollin C. Sprague, George H. Sprague, Mary A. Stoflet, Ida L. Taylor, Thomas S. Sprague, and my granddaughter, Gracie Deats; and it is my desire, and the purpose of this trust, that they shall share equally and ratably in all past, present, and future benefits received from me and my estate, including this trust estate. I therefore direct that, as soon as practicable after my death, said trustee shall proceed to the distribution of the trust estate among all of said persons as if she were executor and this was my last will. In making such distribution, all advances made by me heretofore to each and all of them, all debts due or to become due from them to me or my trustee, and all payments made by me or my trustee, and advances made to Hattie A. Deats (which shall be charged to Gracie Deats), and all hereafter, on the account or for the benefit of each and all of them, shall be considered as part of said trust estate for the purpose of ascertainment of the share of each; and each shall be paid the amount of such share, less such advancements, charges, debts, or payments. Obligations heretofore entered into for the benefit of any of said beneficiaries, and hereafter paid by said trustee, shall bear interest at six per cent, per annum, and be charged to such beneficiary’s share.
    “5. Should any of said beneficiaries die before me, his or her share shall be paid to his or her estate for distribution according to the laws of Michigan.

      “6. Any statement of advances, payments, charges, and debts hereafter signed by said first party shall hereafter be considered as final, and shall not be questioned by trustee or beneficiaries.”
    Mrs. Moore accepted the trust, and proceeded to execute it. Amelia L. Sprague, an incompetent, died January 13, 1892. Adeline L. Sprague died May 1, 1899. The only property which it is suggested was not covered by the trust was, as testified to by the husband of Mrs-Moore, “some household furniture, and things that she had bought in the ordinary course of living; and she had those on hand at the time of her death.” These were of insignificant value; the witness testifying that such things, he presumed, cost $200 to $400. Forty dollars in money was found in the house. The trustee took possession of this property, and divided a part of it among the children, sold the remainder, and has the money. Mrs. Moore presented the above-named will for probate. Probate was denied upon the ground that it was revoked by the trust deed. That is the question involved in the first-named suit.
    In suit No. 2, Thomas S. Sprague applied for letters of administration upon the estate of Amelia L. Sprague, deceased. This was upon the theory that it was proper, if not necessary, to make her estate a party to the bill filed for an accounting against the trustee, Mrs. Moore. Mrs. Moore contested the appointment of an administrator upon the ground that “the petitioner was not the husband or next of kin, or a grantee of any one of them, or a creditor of the deceased, or in any way interested in the estate, and therefore had no power to petition to have an administrator appointed.” The court overruled the objection, and appointed an administrator.
    In the third suit a bill was filed against the trustee for an accounting. All the children of Adeline L. Sprague, and her granddaughter, and the estate of Amelia, are made parties to that bill. To this bill the trustee demurred, for^the following reasons: (1) That the legal representatives of Amelia L. Sprague are not made parties defendant to the suit; (2) that the legal representatives of Adeline L. Sprague are not made parties defendant to the suit. This demurrer was overruled, and from that decree the trustee has appealed.

      Moore & Moore, for appellant.

      George W. Radford, for appellee Thomas S. Sprague.

      Gray & Gray, for appellee Rollin O. Sprague.

       Head-notes by Grant, J.

   Grant, J,

(after stating the facts). The sole question in suit No. 1 is, Did the trust deed and the declaration of trust revoke the will ? The statute of this State governing the revocation of wills is quoted in full in Lansing v. Haynes, 95 Mich. 18 (54 N. W. 699, 35 Am. St. Rep. 545). We there stated and applied the doctrine of implied revocation. The conveyance of real estate and the transfer by sale or gift of personal property revoke wills devising the same property. The conveyance of all the property devised revokes the will in toto, and conveyance of part of the property revokes the will pro tanto. Chancellor Kent thus states the law upon the subject:

“The doctrine, hard and unreasonable as it appears in some of its excrescences on this subject, and notwithstanding it has been repeatedly assailed by great weight of argument, has nevertheless stood its ground immovably, on the strength of authority, as if it had been one of the essential landmarks of property. The cases have been investigated and discussed with the utmost research and ability by the courts of law and. equity, and the principle again and again recognized and confirmed that, by a conveyance of the estate devised, the will was revoked, because the estate was altered, though the testator took it back by the same instrument, or by a declaration of uses. The revocation is upon the technical ground that the estate has been altered or new modeled since the execution of the will. The rule has been carried so far that, if the testator suffered a recovery for the very purpose of confirming the will, it was still a revocation, for there was not a continuance of the same unaltered interest. There is an exception to the rule in the case of mortgages and charges on the estate, which are only a revocation in equity pro tanto, or quoad the special purpose, and they are taken out of the general rule on the fact of being securities only. These doctrines of the English cases have been reviewed in this country, and assumed to be binding, as part of the settled jurisprudence of the land.” 4 Kent, Comm. 530.

The same rule is stated in Smith, Prob. Law, 51; 2 Greenl. Ev. § 686; and by other law writers.

In Emery v. Union Society, 79 Me. 334 (9 Atl. 891), decided in 1887, a conveyance of land was held to revoke pro tanto the devises. The court said on page 341:

“In Brydges v. Duchess of Chandos, 2 Ves. Jr. 417, the chancellor declared this to be a principle of the common law not to be shaken in point of authority. It is the rule laid down in all of the elementary works, on wills and devises, as well as in the multitude of adjudicated cases.”

We approved the doctrine in Lansing v. Haynes, supra. The rule is too firmly settled to require further citation of authorities. They are cited in the text-books, and we do not deem it important to further refer to them. Applying the rule to this case, but one conclusion is possible. The testatrix expressly Conveyed to the trustee the absolute title in fee to all her real estate, and also the absolute title to all her personalty, merely retaining a life interest in the homestead. The intent to revoke her will and replace it by the trust deed could not be more clearly shown. Neither had she then, nor at her death did she leave, any other property than that covered by the trust deed. It is evident that the trustee and the cestuis que trustent so understood it; for the trustee took possession of the little personal property which the mother had bought subsequently to the trust deed, and the $40 in money, and disposed of them as trust funds, by the acquiescence of the cestuis que trustent. If, however, it be held that she acquired property after the making of the trust de¿d, this would not revive the will, which had been absolutely revoked by the trust deed. Herrington v. Budd, 5 Denio, 321; 29 Am. & Eng. Enc. Law, 308. This case must therefore be affirmed.

In case No. 2 it seems to be assumed that the estate of Amelia was a proper party defendant. It is unimportant, therefore, in this suit, to determine the legal status of the interest of Amelia, given to her by the trust deed, after her own and her mother’s death. It is only necessary to say that Amelia’s share, her mother being dead, now goes to the other cestuis que trustent, subject to the rights of her creditors. Creditors are the only others who can have any claim upon her estate, and can interfere to prevent the distribution of the entire estate among the cestuis que trustent. Amelia was an incompetent. Her mother was appointed her guardian by proper proceedings in 1876, and continued as her guardian until her death. She was maintained at the asylum at Kalamazoo, and her expenses for her care and maintenance have been paid. No one for 8 years asked for administration upon her estate. Under the circumstances, it would be well-nigh absurd to hold that administration was necessary for the benefit of creditors. Creditors do not wait 8 years without taking any steps to enforce their claims against the estate of their deceased debtor. But, upon the assumption that her estate is a proper party, was her brother Thomas a proper party to put the court in motion? He was not only beneficially interested in the estate of his sister Amelia, but was one of the next of kin at the time of the application for letters of administration. The mother, while living, would, under the statute, have been entitled to letters of administration, had she proceeded seasonably; but she neglected, not only for 30 days, but for 8 years, to apply. The statute does not say that, where the mother has died before applying for letters of administration, such application must be made by, and letters issued to, her administrator. The statute applies to the situation at the time letters of administration are granted, and not to the situation at the time of the death of the deceased. Schouler, Ex’rs & Adm’rs, § 97; Carthey v. Webb, 6 N. C. 268; Griffith v. Coleman, 61 Md. 250; Myers v. Cann, 95 Ga. 383 (22 S. E. 611); In re Woods’ Estate, 97 Cal. 428 (32 Pac. 516); In re McLaughlin’s Estate, 103 Cal. 429 (37 Pac. 410).

Another fatal objection to the appellant’s contention is that the widow waived her right to letters of administration by a failure to apply therefor for more than 30 days after Amelia’s death. She, if living, would not he in position to question the jurisdiction of the court, as she had waived her right under the statute by failure to proceed ; neither could the administrator of her estate, because it is already shown that the law does not give to such a person the right of administration which it gave to his intestate. The probate court obtained jurisdiction by the petition of one who was beneficially interested in the estate. No creditor appears, contesting his right under the statute; neither is it shown or pretended that there are any creditors. In such case the probate court may appoint a suitable person administrator, and that appointment is binding upon all parties. Atkinson v. Hasty, 21 Neb. 663 (33 N. W. 206); Garrison v. Cox, 95 N. C. 353; Johnson v. Johnson, 15 R. I. 109 (23 Atl. 106). Also, see Wilkinson v. Conaty, 65 Mich. 614 (32 N. W. 841). In some instances the express words of the statute have been disregarded in order to give the management of the property to those beneficially interested. Johnson v. Johnson, supra, and authorities there cited. The evident purpose of this statute is to place the administration in the hands of some one beneficially interested. If the widow has assigned and sold all interest in her husband’s estate prior to the petition for the appointment of an administrator, she would not be entitled, as a matter of law, to such appointment. The statute means the widow who has an interest in the estate of the deceased, and not the widow who has parted with her entire interest. The order of the probate court appointing an administrator is therefore affirmed.

Is the estate of Adeline L. Sprague a necessary party to the bill for an accounting ? My brethren are of the opinion that it is, and I yield my own views in the matter to theirs. This case will therefore be reversed, and remanded for further proceedings.

We suggested upon the argument that there was little excuse for this litigation. More than a year and a half has expired since the death of Mrs. Sprague, and nothing has been done except the filing of this bill, more than a year ago. It was a case for prompt action, in order that the beneficiaries might receive what their mother had left them. Had the proper harmony existed among the beneficiaries and the trustee, settlement could have been effected long since. The law upon the revocation of wills is so well established that we think there was no occasion for presenting the will for probate. We also think there was little occasion for contesting the appointment of an administrator upon the estate of Amelia upon the technical grounds relied on. If it be true, as stated by counsel for the trustee upon the argument, that she offered, through her counsel, to bear the entire expense of the administration upon the estate of Adeline L. Sprague, and to consent to the appointment of a special administrator to represent that estate in the accounting, we see no reason why the offer should not have been accepted, and thus have avoided litigation. Such a course could have harmed no one, even if her estate was not a necessary party. Under the circumstances, we allow costs to neither party.

The other Justices concurred.


text:
    PEOPLE, ex rel. ESPER, v. DETROIT & SALINE PLANK-ROAD CO.
    1. Pleading — Plea Puis Darrein Continuance — Practice.
    Circuit Court Rule No. 9 provides that, when matter arises after the joining of issue in a suit at law which defendant desires to rely on as a defense, he may give notice thereof as a special defense under the plea of the general issue, and such notice shall not be deemed a waiver of other defenses. After issue had been joined in quo warranto proceedings against respondent plank-road company, an agreement was entered into whereby, if respondent should put its road in a reasonably safe condition by a certain time, the proceedings should be dismissed.; otherwise, to be tried on the issues. On the healing, respondent interposed a plea puis darrein continuance, setting up performance of the agreement, which was denied Held, that it was error to treat the plea as having the effect of such- plea at common law, and effecting a waiver of other defenses, but that it stood as a notice under the former pleadings, in accordance with the rule.
    2. Same — Trial—-Opening and Closing.
    Where, after issue joined, defendant interposed a plea puis darrein continuance, that plaintiff had agreed not to prosecute the action if defendant should perform a certain agreement, and that defendant did perform, the interposition of such plea did not give defendant the right to open and close the case.
    3. Witnesses — Questions oe Fact — Conclusions.
    A witness should not be permitted to express an opinion as to whether a roadbed was reasonably safe and fit for travel, but he should merely give the facts, and leave the deductions to the jury.
    4. Appeal — Conduct oe Counsel — Corporations.
    Where, in an action against a corporation, the attitude of plaintiff’s counsel, as disclosed at the trial and in the briefs submitted on appeal, would convey an impression that he deemed corporations when in court, their witnesses and their attorneys, to be entitled to less consideration than individual litigants and their representatives, the court, in reversing the case on other grounds, expressed their disapproval of such conduct.
    5. Plank Roads — Maintenance—Change in Law — Instructions.
    On an issue as to whether respondent plank-road company had placed its road in a reasonably safe condition, it was error to instruct that the jury should find for relator unless they found that the road was covered with a bed of gravel 9 feet wide and 7 inches deep, and composed of 65 per cent, of pebbles, and not more than 35 per cent, of sand, loam, and bonding material, as required by Act No. 231, Pub. Acts 1897, since respondent, having changed part of its road from plank to gravel prior to 1897, discharged its duty if it graveled such portion of the road with the quality of gravel required by the law at the time the change was made.
    Error to Wayne; Donovan, J.
    Submitted November 15, 1900.
    Decided December 4, 1900.

      Quo warranto by the people of tbe State of Michigan, on the relation of Frank H. Esper, against the Detroit & Saline Plank-Road Company, to forfeit respondent’s charter. From a judgment for relator, respondent brings error.
    Reversed.
    Corliss, Andrus & Leeie (II. H. Hatch, of counsel), for appellant.

      James H. Pound (Thomas Mulvihill, of counsel), for appellee.
   Moore, J.

This is a proceeding in quo warranto brought for the purpose of forfeiting the charter belonging to the respondent company. From a judgment in favor of the relator, the case is brought here by writ of error. After the necessary pleadings had been filed to make an issue, an agreement was made between Esper, the relator, and the respondent. The respondent therein agreed to proceed with all due diligence and put the road “in a reasonably safe and fit condition for public travel, as required by the charter of said second party, and complete the same on or before October 1, 1898.” If respondent made default, then relator “shall proceed with said suit * * * as though this agreement had not been made.” If the respondent kept and performed the agreement, then the suit was to be discontinued. The respondent claimed that it performed this agreement. The relator claimed that it did not do so, and brought the case on for a hearing. The respondent then interposed a plea puis darrein continuance, setting up the performance of this agreement as a defense. The question then arose as to the effect of this plea. The respondent claimed the right, in case it failed to establish the defense set up in the plea puis darrein continuance, to litigate the case upon the issue as it existed when this plea was interposed. The court ruled that the only issue which could be tried was the truth of the defense set up in the plea puis darrein continuance. When this ruling was made, counsel for respondent claimed the right to open and close the case, which right was given them by the court. The ruling of the court in relation to the effect of the plea is assigned as error.

The occasion to interpose pleas of this nature does not often arise, and, with no opportunity to investigate, it is perhaps not surprising that a busy nisi prius judge should make an error in deciding the effect of such a plea. The question, however, is now controlled by a rule of court, which has received a construction in this court, and is now put beyond the realm of doubt. In Burt v. Wayne Circuit Judges, 90 Mich. 520 (51 N. W. 482), a plea puis darrein continuance was interposed subse•quent to placing the cause at issue. No replication was filed to this plea, and the default of plaintiff was taken, and judgment rendered in favor of defendant. The court, in disposing of the case, said:

“Under the practice at the common law, when a plea puis darrein continuance was filed it had the effect to eliminate all other defenses, as by that proceeding the defendant adandoned his former plea, and placed the issue of the suit entirely on the new plea. It therefore became the duty of the plaintiff to reply to such plea, and upon failure to do so his default would be taken.” .

The rule (now Cir. Ct. Rule No. 9) is quoted at length, and the court adds:

“Under this rule, which was adopted prior to the bringing of this suit and the filing of the plea, the plea stands simply as a notice under the general issue, and required no reply. The court was therefore in error in treating it as a plea requiring a replication, and in entering default absolute for want of reply.”

The court set aside the default which had been entered, and directed that the case stand for trial upon the declaration, the plea of the general issue, and the notice contained in the plea.

The plea interposed in this case should have been treated as a notice under the rule; and, if respondent failed to establish the defense set up in this plea, it was not precluded from litigating any defense it might properly interpose under the issue as it existed when this plea was filed. Nor did the interposition of this plea give the respondent the right to open and close the case.

It is claimed that the court erred in allowing witnesses to state conclusions, instead of stating facts, when describing the roadbed. Some of them were allowed to give their opinion as to whether the roadbed was reasonably safe and fit for travel. This was improper, under the repeated rulings of this court. In Smead v. Railway Co., 58 Mich. 200 (24 N. W. 761), it was said:

“The following question was put to the plaintiff and several of his witnesses, viz.: In your opinion, was the cattle-guard sufficient to prevent animals from getting on the right of way under circumstances ordinarily arising at those places?’ This question and the one following it, of a like nature, were permitted to be answered by the plaintiff and his witnesses, against the objection of defendant’s counsel. This, we think, was error. The question called for answers giving merely the opinions of the witnesses, and established no facts. Really, the facts stated by some of these witnesses, when given, tended strongly to contradict the opinion. It is quite elementary that a witness can only give his opinion in exceptional cases, and then only when his knowledge is such as to qualify him, to some extent, as an expert. I think the rule is well stated in Best, Ev., where he says: ‘This rule is necessary to prevent the other rules of evidence being practically nullified. * * * If the opinions thus offered are founded on no evidence, or on illegal evidence, they ought not to be listened to; if founded on legal evidence, that evidence ought to be laid before the jury.’ 2 Best, Ev. §§ 511, 517, and notes; Joyce v. Insurance Co., 45 Me. 168 (71 Am. Dec. 536); Ames v. Snider, 69 Ill. 376; Whitmore v. Bowman, 4 G. Greene, 148; Veerhusen v. Railway Co., 53 Wis. 689 (11 N. W. 433). The testimony was incompetent.”

See Harris v. Township of Clinton, 64 Mich. 447 (31 N. W. 425, 8 Am. St. Rep. 842); Girard v. City of Kalamazoo, 92 Mich. 610 (52 N. W. 1021); Atherton v. Village of Bancroft, 114 Mich. 241 (72 N. W. 208); Ryerson v. Inhabitants of Abington, 102 Mass. 531.

The witnesses should have stated fully the facts as to the condition of the road, and it should have been left to the jury to draw the conclusions from the facts.

Complaint is made as to the conduct of counsel, in the course of the trial, in reference to the respondent, and his examination of witnesses called by the respondent. The attitude of counsel, not only in the trial court, but in the language used [in the brief filed in this court, would give one the impression that he thought corporations, witnesses called by corporations, and lawyers employed by them had no rights which jurors and courts ought to respect. He refers in a sneering way to the respondent as a corporation, to the witnesses as corporation witnesses, and to the lawyers as corporation lawyers. It is true, the respondent is a corporation, and that it produced witnesses to give its version of the differences which had arisen between it and the relator. It also employed lawyers to defend its interest in the courts. It had a right to do all these things. Its existence as a corporation is authorized by law. It had a right to do business in the manner authorized by law. It may sue and be sued. When sued, it may defend .against the suit brought, and may employ counsel and produce witnesses to testify in the case, without its being made an occasion for adverse criticism. A corporati.on, when in court, has no more rights than an individual, but it has the same rights; and the case should be tried with a view of disposing of the legitimate issues involved in the case, as the right of the controversy appears, instead of trying the case in such a way as to constantly appeal to the prejudices of the jurors. When witnesses come into court, it is usually at the command of the court, expressed in its subpoena. Nearly all of them come unwillingly; and, while counsel should have such right of examination and cross-examination as will elicit the truth, it ought never to be forgotten by them that witnesses also have the right to be treated with courtesy, and it is not presumed that they are untruthful because they are called by the opposite party. As this case is to be reversed upon other grounds, we are not called upon to decide whether we would reverse it upon this branch of the case or not, but will content ourselves with expressing our disapproval of the things we have mentioned.

Error is assigned upon many portions of the charge of the trial judge, — especially upon the following language:

“If the jury do not find as a fact that the road is covered with a bed of gravel 9 feet wide and 7 inches deep, and 65 per cent, of pebbles, and not to exceed 35 per cent, of sand and loam and bonding material, — I will say, of sufficient depth to furnish a hard road, convenient for travel, — then you will find a verdict for the relator.”

Error is also assigned on his submission of the following question to the jury:

“Do you, the jury, find the Detroit & Saline Plank-Road Company has constructed upon Michigan avenue, so called, from the westerly city limits of Detroit to Sheldon’s Corners, a roadbed of gravel, or stone so broken as to serve the purpose of gravel, 9 feet in width and 7 inches in depth, of gravel containing 65 per cent, of pebbles, and not more than 35 per cent, of sand, loam, or bonding material, and was such road, by October 15, 1898, composed of the foregoing material, of such depth and quality as to make at all times a good, firm, hard road ?”

Nearly all of the errors in the charge grew out of the error in holding that the only issue to be tried was the one raised by the plea of puis darrein continuance. Aside from those errors, the charge, in the main, was a correct exposition of the law; but we think it possible that the jury may have been misled by that portion of the charge quoted above, and by the special question submitted to them. The respondent corporation has been in existence nearly or quite a half century. A portion of its roadbed is covered with planks. Other portions were changed from planks to a gravel road prior to 1897. If the portion which is covered by planks continues to meet the require-meats of the statute in relation to roads covered with planks, the respondent has discharged its duty in relation to that portion of the road. So, too, as to that portion of the road which was changed from planks to gravel prior to 1897; if the company has continued to gravel that portion of its road in the manner and with the quality of gravel required by law at the time the change was made, it has discharged its duty, even though the gravel did not consist of 65 per cent, of pebbles, and 35 per cent, of sand, loam, and bonding material. While the question was not directly passed upon in Township of Erin v. Detroit & Erin Plank-Road Co., 115 Mich. 465 (73 N. W. 556), we think the reasoning employed in that case, applied to the facts in this case, logically results in the conclusion above stated.

The other assignments of error relate to matters not likely to occur again, and we deem it unnecessary to discuss them.

Judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    LEACH v. DETROIT ELECTRIC RAILWAY.
    1. Trial — Absent Witness — Continuance.
    Where, after the trial had commenced, defendant asked a continuance to enable him to procure a certain witness, stating that he had supposed he could get the witness at anytime, and so had not subpoenaed him, but that when he sent for him he was not in the city, it was not an abuse of discretion to refuse the continuance.
    2. Same — Improper Argument — Correction by Court.
    The fact that plaintiff's counsel told the jury in his argument, in an action for personal injuries, that they stood between the plaintiff and the poor-house, does not require a reversal, where the court promptly instructed the jury that the argument was improper and that they should disregard it.
    3. Evidence — Action eor Personal Injuries — Mortality Tables.
    Mortality tables are inadmissible, in an action for personal injuries, where it is not shown that the injuries are of a permanent character.
    Erfor to Wayne; Donovan, J.
    Submitted November 15, .1900.
    Decided. December 4, 1900.
    Case by Angeline Leach against the Detroit Electric Railway for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Thomas T. Leete, Jr., for appellant.

      Navin & Sheehan, for appellee.
   Moore, J.

The plaintiff recovered a judgment for injuries received by her while alighting from a street car. The case is brought here by writ of error.

It is claimed the court abused its discretion in refusing to continue the case from Thursday until the following Tuesday to enable the defendant to procure one Sherman as a witness. It is said his attendance was arranged for upon October 15th, the case was continued at the request of plaintiff, and when the trial was commenced counsel supposed they could procure the attendance of the witness at any time, but when they sent for him he was out of the city. This witness had not been subpoenaed. No such diligence was shown to procure his attendance as to make it incumbent upon the court to delay the trial that the attendance of the witness might be procured. Courts should not be required to await upon the convenience of counsel and witnesses when engaged in the trial of lawsuits.

It is said error was committed in the argument of counsel when the jury were told by him, “You, gentlemen of the jury, stand between this plaintiff and the poor-house.” The record discloses that the attorney for the defendant made an argument not confined to the record, and well calculated to encourage opposing counsel to also go outside of the record. When the attorney for the plaintiff made the argument quoted above, the court at once told counsel it was not a proper argument, and said to the jury that, it being an improper argument, they could not and must not consider it in arriving at a verdict. Under such circumstances, while we disapprove the action of counsel, we are not inclined to reverse the case for what occurred.

Upon the trial the mortality tables were introduced in evidence. It is claimed this was improper, because it was not shown the injuries received by plaintiff were permanent. Counsel for the plaintiff contend the testimony shows the injuries are permanent, and rely chiefly upon the testimony of Dr. Kirker; but we think, under any fair interpretation of his testimony, it falls far short of showing the injuries to be of a permanent character, while the testimony of Dr. Dees, a witness called by the plaintiff, who examined her at the request of Dr. Kirker, was to the effect that the injuries were trifling. In the recent cases of Mott v. Railway Co., 120 Mich. 127 (79 N. W. 3), and Sax v. Railway Co., ante, 252 (84 N. W. 314), it was held the mortality tables were not admissible where it was not shown the injuries were of a permanent character. In the last-named case the discussion is so complete that it is not necessary to add anything further to it here.

Other errors are assigned, which are either not well taken or are not likely to occur upon a new trial, and for that reason will not be discussed.

Judgment is reversed, and new trial granted.

The other Justices concurred.


author: Gkant, J.

text:
    PEOPLE v. MARRS.
    Criminal Law — Continuance—Rape — Evidence — Complaints — Calling Witnesses.

       1. Where there had been an understanding between the prosecuting attorney and the attorney for the respondent that the case should be brought on for trial upon a fixed day, the respondent was not arraigned until the day of the trial, and his counsel had not asked for an earlier arraignment or for the names of the witnesses, this court will not review the action of the circuit court in refusing a continuance, in the absence of any other showing than the statement of counsel that they are surprised by the names of witnesses indorsed upon the information.
    2. Where the prosecution gave evidence tending to show that the prosecutrix, 18 years of age, was mentally and physically weak, and had never before kept company with young men; that respondent had met her but once before, and promised on the night of the assault to take her to her father’s home, and, when he came for her, told her that he could not take her home, but would take her riding around the city, and instead drove out into the country, in a lonely place, and she testified that he assaulted her, and that she resisted until she became exhausted, and that he then had sexual intercourse with her, — held, that the guilt or innocence of the accused was properly left to the jury.
    3. The prosecution may show the mental and physical condition of the prosecutrix, as bearing upon the extent of the resistance the law required her to make.
    4. The prosecution may show when and to whom the prosecutrix first made complaint of the assault, and the reason why she did not make it earlier.
    5. Parties to whom she made complaint cannot testify to the details of the offense, made to them by the prosecutrix, except in cases where these statements are so intimately connected with the crime as to make them part of the res gestee, or where the prosecutrix is a girl of tender years.
    6. Where the name of a witness was indorsed uj>on the information when drawn, but crossed off before it was filed, and it appears that her testimony will be only cumulative, the prosecution is under no obligation to call such witness.

      7. A conviction for assault with intent to commit the crime of rape will be upheld, though the prosecutrix afterwards yielded to sexual intercourse.
    Error to Cass; Smith, J.
    Submitted November 16, 1900.
    Decided December 4, 1900.
    Frank Marrs, under an information charging rape, was convicted of an assault with intent to commit the crime, and sentenced to imprisonment for three years in the State house of correction at Ionia.
    Reversed.

      Charles E. Sweet, for appellant.

      Cassius M. Eby, Prosecuting Attorney, for the people.

       Head-notes by Grant, J.

   Gkant, J.

The refusal to continue the case over the term is assigned as error. The alleged crime was committed on the 19th day of August, 1899. Complaint was made upon the 28th day of August, examination had on the 5th day of September, and respondent bound over to the circuit court for trial. Seven witnesses were indorsed upon the information, — the complaining witness, her father, mother, and sister, two physicians, and a Mrs. ICibler. Mrs. Kibler was called to testify to the mental condition of the prosecutrix. She gave no other testimony. Respondent was not arraigned on the first day of the term, but was arraigned upon the day the case was tried, and just as it was called for trial. There had been an understanding between the prosecuting attorney and counsel for respondent that the case should be tried upon that day. Counsel did not ask to have the prisoner arraigned before, so that they might know who the witnesses were; neither did they ask the prosecuting attorney for the names of the witnesses. They had evidently made preparations for the trial; for, in answer to such inquiry by the court, the attorney for respondent said that some of their witnesses were present. The sole ground upon which the application for continuance was based was that there were names upon the information which counsel had not anticipated would be there, and that they had not known who 'the witnesses would be, except those that were mentioned in the testimony taken upon the examination. The testimony of the prosecutrix upon the examination is in the record. Whether that was the sole testimony produced, the record does not show. In her testimony she mentions Mrs. Somers (the woman with whom she was working as a domestic at the time), Dr. Mc-Cutcheon, and her mother. No affidavits for a continuance were presented, nor did counsel ask time to file any. We think the question of a continuance was addressed to the sound discretion of the court, with which we will not interfere. All the testimony is printed in the record, and a careful examination fails to convince us that respondent was prejudiced by the speedy trial.

Counsel alleges as error that the court refused to direct a verdict for the respondent. The evidence on the part of the people tended to show that the prosecutrix was 18 years old, and mentally and physically weak; that she had never before kept company with young men; that respondent had met her but once before; that he came, that night under a promise to take her to her father’s home; that she had a bundle done up to take home with her; that respondent told her that he could not take her home that night, but would take her out riding that evening, around the town, but instead drove a long way out of the city, into the country, and assaulted her in the buggy;that she made such resistance as she could, but finally became exhausted, when he accomplished his object. He testified that he took her out riding a week before, and took improper liberties with her then, and sought to have intercourse with her, but she refused. These statements are denied by her. He then testified that the act of intercourse was entirely voluntary upon her part. It is unnecessary to state further the disgusting details. It is not at all surprising that a jury would place but little confidence in the testimony of the respondent, whose own testimony showed him to have no regard for the honor or virtue of woman. We think the case was one for the jury.

It was competent for the prosecution to show the mental and physical condition of the prosecutrix, as bearing upon the extent of the resistance the law required her to make.

The prosecutrix’s home was about 10 miles from the. house of Mrs. Somers, for whom she worked. She did not return to Mrs. Somers’ the night of the assault until very late, and the family had retired. She made no complaint to Mrs. Somers. Her sister Maud came to see her the following Thursday. To her she told what had occurred. Her mother came the next day, and she made complaint to her, and to her father the following Saturday. She made these complaints immediately upon seeing these members of her own family. It is a strong circumstance against a woman that she made no immediate complaint. It was competent for the people to show when she did make complaint, and the reason why she had not made it before. It was for the jury to consider this evidence in determining what credit they would give to her story. Turner v. People, 33 Mich. 363, 383; People v. Gage, 62 Mich. 271 (28 N. W. 835, 4 Am. St. Rep. 854); People v. Ezzo, 104 Mich. 341 (62 N. W. 407); People v. Bernor, 115 Mich. 692 (74 N. W. 184); Underh. Or. Ev. § 409.

The witnesses were allowed to detail the statements made by the prosecutrix to them in regard to the commission of the offense. It is the well-established rule that the people may show when, where, and to whom the prosecutrix made complaint. The details of her statement are not admissible,, except as they are brought out on cross-examination. Underh. Cr. Ev. § 409, and authorities there cited. If the statements are so intimately connected with 'the time and place of the crime as to be a part of the res gestee, they are then admissible. The only other exception to the rule is in the case where the victim is a girl of tender years. People v. Gage, supra; Hannon v. State, 70 Wis. 448 (36 N. W. 1). The complaint by the prosecutrix in this case was too remote to form a part of the res gestee. Neither did she come within the other exception to the rule. She was not of such weak mind as to bring the case without the rule. It was therefore error to permit her father, mother, and sister to state the circumstances of the commission of the crime as detailed to them by her.

Upon drawing the information the prosecuting attorney placed upon it the name of Mrs. Somers, but before filing it he crossed her name off, for the reason that he did not consider her an important witness, and she was too ill to attend. Counsel for respondent insists that this was error, and that she should have been produced. It appeared then, and appeared upon the trial, that the only points on which Mrs. Somers’ testimony was required were (1) that the prosecutrix made no complaint to her; and (2) that she might testify as to her physical and mental condition. It was admitted that she did not make complaint to Mrs. Somers, and therefore further testimony on this point was unnecessary. The only other point upon which she could testify was her physical and mental condition. This would be merely cumulative, and the people would be under no obligation to call her. She was not a res gestee witness. Her name was not upon the information when filed, and no error was committed in the refusal to produce her.

The most important and difficult question ¿rises upon the following instruction:

“ The respondent may be convicted of an assault with intent to commit the crime of rape, although the jury may find that the complainant did not resist to the extent necessary to render the offense rape, provided they find that he assaulted the complainant with intent to have intercourse with her against her will, by using whatever force might be necessary to overcome whatever resistance she made; and the fact that the respondent had intercourse with complainant, if you find that he did have, would not be in the way of a verdict of assault with intent to commit rape.”

The question presented is this: May a respondent be convicted of an assault with intent to commit rape, where the act of sexual intercourse was afterwards committed by consent, or failure to make' the resistance which the law requires? Consent, or failure to use the proper resistance, at any time before the act of intercourse has actually occurred, precludes conviction for rape. Con-donation never excuses or forgives the criminal act, and affords no defense to the criminal. Com. v. Slattery, 147 Mass. 423 (18 N. E. 399). Where the prosecutrix first objected and afterwards consented, the prisoner was convicted of assault. Reg. v. Hallett, 9 Car. & P. 748. Where the resistance was not such as to constitute the crime of rape, it was held that the respondent might be convicted of assault with intent to commit the crime. State v. Bagan, 41 Minn. 285 (43 N. W. 5). It was also held that a subsequent yielding and consent to sexual intercourse do not relate back and cover the assault with intent to commit the crime. State v. Hartigan, 32 Vt. 607 (78 Am. Dec. 609). Under a charge of the crime of rape, though the court might have inclined to the opinion that the testimony was not sufficient to convict of that crime, the court say:

“We easily arrive at a different conclusion when the jury have 'only found the assault with intent, etc. Of course, if there was consent on the part of the prosecutrix, there could be no such violence, in legal contemplation, as to render the prisoner guilty; for, if the liberties were taken with her consent, there could be no rape, nor yet an assault with that intent. But where the assault is made by the prisoner with the intent to commit the offense, and this is clearly shown, the jury might convict, though not satisfied that at the time he consummated his purpose there was such want of consent as to constitute the higher crime. It is true that the jury must he satisfied, before they could convict for the assault, that the prisoner intended to gratify his passions on the person of the prosecutrix at all events, and notwithstanding any resistance on her part; and yet this might be done, though they were not satisfied that the resistance on her part was so continued and persistent as to prove guilt of the higher crime, when he succeeds in' having carnal knowledge.” State v. Cross, 12 Iowa, 66, 68, 69 (79 Am. Dec. 519).

That case is cited with approval, under a similar state of facts, in State v. Atherton, 50 Iowa, 189 (32 Am. Rep. 134).

Bishop says:

“If, after the assault, and before penetration, the woman yields her consent, the offense of assault with intent to ravish is committed; for the consent does not undo what was done before.” 1 Bish. New Cr. Law, § 766.

The theory of these cases appears to be that the assaulter of female virtue cannot defend himself from an actual assault with intent to accomplish his object by force, by showing that he subsequently obtained the assent of his victim, or that she did not continue that resistance which is essential to a conviction. We think this is a salutary doctrine, and well supported by the authorities.

Conviction reversed, and new trial ordered.

The other Justices concurred.